Judge Katherine Chilton, Case 22NWLC22743 2023-05-16 Tentative Ruling

Judge: Katherine Chilton, Case: 22NWLC22743, Date: 2023-05-16 Tentative Ruling

Case Number: 22NWLC22743 Hearing Date: May 16, 2023 Dept: 25

PROCEEDINGS: DEMURRER

MOVING PARTY: Plaintiff/Cross-Defendant Creditors Adjustment Bureau, Inc.

RESP. PARTY: None

DEMURRER

(CCP §§ 430.10)

TENTATIVE RULING:

The hearing on Plaintiff/Cross-Defendant Creditors Adjustment Bureau, Inc.’s Demurrer is CONTINUED to JUNE 20, 2023 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Plaintiff/Cross-Defendant must file and serve supplemental papers addressing the errors discussed herein. Failure to do so may result in the Motion being placed off calendar or denied.

SERVICE:

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

[ X ] Correct Address (CCP §§ 1013, 1013a) OK

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

OPPOSITION: None filed as of May 14, 2023. [ ] Late [X] None

REPLY: None filed as of May 14, 2023. [ ] Late [X] None

ANALYSIS:

I. Background

On September 28, 2022, Plaintiff Creditors Adjustment Bureau, Inc. (“Plaintiff” or “Creditors”) filed an action against Defendant KC Branaghans, Inc. dba KC Branaghans adba KC Branaghan’s Irish Pub[1] & Restaurant (“Defendant” or “KC”) for open book account, account stated, reasonable value, and breach of contracts.

On January 11, 2023, KC filed an Answer to the Complaint. KC also filed a Cross-Complaint against Cross-Defendants Creditors and American Textile Maintenance Company dba Republic Master Chefs (“American Textile”) for 1) fraud, 2) breach of contract, 3) breach of covenant of good faith and fair dealing, 5) unfair business practices, and 6) declaratory relief.

On February 9, 2023, Creditors filed a Demurrer and Motion to Strike KC’s Cross-Complaint. KC filed a First Amended Cross-Complaint (“FACC”) on March 7, 2023.

On March 17, 2023, the Court noted that Creditors took the Motion to Strike off calendar. (3-17-23 Minute Order.) The Court also found that the case is not a “collection hub” matter and transferred the case to Department One for re-assignment. (Ibid.) On March 22, 2023, the case was assigned to Judge Katherine Chilton in Department 25 at the Spring Street Courthouse. (3-22-23 Minute Order.)

On April 7, 2023, Creditors filed the instant Demurrer (“Demurrer”) to KC’s FACC.

No opposition has been filed.

II. Legal Standard

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).)

When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) When a plaintiff “has pleaded the general set of facts upon which his cause of action is based,” the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not “be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892, 900.) Generally, the court will allow leave to amend on at least the first try, unless there is absolutely no possibility of overcoming the issue. (See Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227 ("Denial of leave to amend constitutes an abuse of discretion unless the complaint shows on its face it is incapable of amendment. [Citation.] Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.").)

III. Discussion

Plaintiff/Cross-Defendant Creditors demurs to Defendant/Cross-Complainant KC’s “entire amended cross-complaint and each and every cause of action contained therein.” (Dem. p. 2.) The only cause of action asserted against Creditors in the FACC is for declaratory relief. (FACC pp. 7-8.) Thus, Creditors demurs to the cause of action for declaratory relief because it “fails to state facts sufficient to constitute a cause of action against [Creditors] and is uncertain under Code of Civil Procedure§ 430.l0(e) and ( f), nor is the declaratory relief action necessary under Code of Civil Procedure § 1061.” (Dem. p. 2.)

As a preliminary matter, the Court finds that Plaintiff/Cross-Defendant has filed a defective Notice of Demurrer. The Notice contains conflicting information about the courthouse where the hearing on the Demurrer will be held. (Dem. p. 2.) The Notice lists the courthouse as Stanley Mosk (Unlimited Civil) but also provides the address for the Spring Street Courthouse, 312 N. Spring Street, Los Angeles, CA 90012. (Ibid.)

For this reason, the Court continues the hearing on the Demurrer and orders Plaintiff/Cross-Defendant Creditors to file and serve a corrected Notice of Demurrer.

IV. Conclusion & Order

For the foregoing reason,

Moving party is ordered to give notice.

[1] On December 30, 2022, Plaintiff filed an Amendment to Complaint, correcting Defendant’s name.