Judge: Katherine Chilton, Case: 21STLC09128, Date: 2022-12-20 Tentative Ruling

Case Number: 21STLC09128     Hearing Date: December 20, 2022    Dept: 25

PROCEEDINGS:      DEMURER WITH MOTION TO STRIKE

MOVING PARTY:   Defendant Vista Realty

RESP. PARTY:         None

DEMURRER WITH MOTION TO STRIKE

(CCP § 430.10, et seq., 436)

TENTATIVE RULING:

Defendant Vista Realty’s Demurrer and Motion to Strike are PLACED OFF CALENDAR AS MOOT.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                 OK

[X] Correct Address (CCP §§ 1013, 1013a)                                                 NOT OK[1]

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     OK

OPPOSITION:          None filed as of December 14, 2022.                     [   ] Late                      [X] None

REPLY:                     None filed as of December 14, 2022.                     [   ] Late                      [X] None

ANALYSIS:

I.                Background

On December 30, 2021, Plaintiffs Sonia Pulliam (“Sonia”) and Derrik Pulliam (“Derrik”), (collectively “Plaintiffs”), in propria persona, filed an action against Defendants Fernando Robles (“Fernando”), Felipe Robles (“Felipe”), Maria De Jesus Robles (“Maria De Jesus”), and Vista Realty Inc. dba Vista Sotheby’s International Realty (“Vista Realty”), (collectively “Defendants”), for (1) breach of contract, (2) common counts, and (3) intentional tort.

On March 2, 2022, Plaintiffs filed a Motion for Leave to File Amended Complaint.  It appears that Plaintiffs did not make a reservation for the hearing as a hearing on the Motion never took place.

On May 31, 2022, Plaintiffs filed another Motion for Leave to Amend Complaint (“Motion”).  On August 23, 2022, the Court granted Plaintiffs’ Motion and ordered Plaintiffs to file the Amended Complaint.  (8-23-22 Minute Order.)

On October 14, 2022, Defendant Vista Realty filed a Declaration of Demurring Party in Support of Automatic Extension to allow for additional time to meet and confer with Plaintiffs.

On November 16, 2022, Defendant Vista Realty filed the instant Demurrer (“Demurrer”) and Motion to Strike (“MTS”) the First Amended Complaint.  No opposition has been filed.

The First Amended Complaint was filed with the Court on November 18, 2022.

On November 30, 2022, based on the Plaintiffs’ Request for Dismissal, the Court dismissed Defendant Vista Realty from the case with prejudice.  (11-30-22 Request for Dismissal.)

II.              Legal Standard

A.    Demurrer

A demurrer is a pleading that may be used to test the legal sufficiency of the factual allegations in the complaint.  (Code of Civ. Proc. § 430.10.)  There are two types of demurrers – general demurrers and special demurrers.  (See McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77.)

General demurrers can be used to attack pleadings for failure to state facts sufficient to constitute a cause of action or for lack of subject matter jurisdiction.  (Code Civ. Proc. § 430.10(e); McKenney, 167 Cal.App.4th at 77.)  Such demurrers can be used only to challenge defects that appear on the face of the pleading or from matters outside the pleading that are judicially noticeable; evidence or extrinsic matters are not considered.  (Code of Civ. Proc. §§ 430.30, 430.70; Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  For the purpose of testing the sufficiency of the cause of action, the Court admits “all material facts properly pleaded” and “matters which may be judicially noticed,” but does not consider contentions, deductions, or conclusions of fact or law. [Citation].”  (Blank, 39 Cal.3d at 318.)  It gives these facts “a reasonable interpretation, reading it as a whole and its parts in their context.”  (Ibid.). At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him.  (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.)  The face of the complaint includes exhibits attached to the complaint.  (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.)  "If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence."  (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447.)

Special demurrers can be used to attack the pleadings on grounds that the pleading is uncertain, ambiguous, and unintelligible, or in a contract case, for failure to allege whether a contract is oral or written.  (Code Civ. Proc., § 430.10(f).)  However, special demurrers are not allowed in limited jurisdiction civil actions and any grounds for special demurrers must be raised as affirmative defenses in the answer.  (Code Civ. Proc., § 92(c).)

Moreover, Code of Civil Procedure § 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due.  (Code Civ. Proc., § 430.41(a)(2).)  Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts.  (Code Civ. Proc., § 430.41(a)(3).)

B.    Motion to Strike

According to Code of Civil Procedure § 436:

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strikeout any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.

However, motions to strike in limited jurisdiction courts may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc. § 92(d).) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.”  (Code Civ. Proc. § 436.)  Furthermore, § 435.5 requires that “[b]efore filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that resolves the objections to be raised in the motion to strike.”  (Code Civ. Proc. § 435.5(a).)

III.            Discussion

On November 16, 2022, Defendant Vista Realty filed a Demurrer with Motion to Strike First Amended Complaint.  On November 30, 2022, based on the Plaintiff’s Request for Dismissal, the Court dismissed Defendant Vista Realty from the case with prejudice.  (11-30-22 Request for Dismissal.)

Accordingly, Defendant Vista Realty’s Demurrer and Motion to Strike are PLACED OFF CALENDAR AS MOOT.

IV.           Conclusion & Order

For the foregoing reasons,

Defendant Vista Realty’s Demurrer and Motion to Strike are PLACED OFF CALENDAR AS MOOT.

Moving party is ordered to give notice.