Judge: Katherine Chilton, Case: 22STLC01967, Date: 2022-08-18 Tentative Ruling

Case Number: 22STLC01967    Hearing Date: August 18, 2022    Dept: 25

PROCEEDINGS:      DEMURRER TO COMPLAINT

MOVING PARTY:   Defendants Raymond Ghermezian, et al.

RESP. PARTY:         None

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendants Raymond Ghermezian, et al.’s Demurrer is OVERRULED and Motion to Strike is 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 August 16, 2022.               [   ] Late                      [X] None

REPLY:                     None filed as of August 16, 2022.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On March 25, 2022, Plaintiff Dadvand Chiropractic, Inc. (“Plaintiff”) filed an action against Raymond Ghermezian, Esq. (“Ghermezian”), Raymond Ghermezian, A Professional Law Corporation (“Ghermezian Law”), Sirous Ghermezian (“Sirous”), Maryann Makabi (“Makabi”), and Daniel Couceiro (“Couceiro”) (collectively “Defendants”) for (1) breach of contract, (2) breach of implied covenant of good faith and fair dealing, (3) fraud and deceit, (4) unjust enrichment, and (5) for work, labor and services unpaid (quantum meruit).

On June 1, 2022, Defendants filed the instant Demurrer with Motion to Strike (“Demurrer”) and Motion to Strike.  On July 7, 2022, Plaintiff filed an Amended Complaint.  On July 18, 2022, the Court continued the hearing on the Demurrer and Motion to Strike to allow Defendants additional time to file a declaration regarding meet and confer efforts.  (7-18-22 Minute Order.)  The Court also struck the First Amended Complaint filed on July 7, 2022, because it was not timely.  (Ibid.)

On August 5, 2022, Plaintiff once again filed the First Amended Complaint.  No additional papers have been filed by the Defendants.

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).)

III.            Discussion

A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike.”  (Code Civ. Proc., § 472(a).)  When plaintiff files an amended complaint after a demurrer is filed, but before it is decided, the demurrer must be overruled as moot.  (JKC3H8 v. Colton, (2013) 221 Cal.App.4th 468, 477.)

On July 18, 2022, the Court struck Plaintiff’s First Amended Complaint because it was filed after the date any opposition would be due.  (7-18-22 Minute Order, p. 5.)  Plaintiff has once again filed the First Amended Complaint; however, when the Court continued the hearing, it did not extend the date for filing an opposition.  Therefore, the First Amended Complaint, filed on August 5, 2022, is once again stricken.

The Court continued the hearing on July 18, 2022, to allow Defendants an opportunity to file additional papers regarding meet and confer efforts with Plaintiff.  To date, Defendants have not filed any additional papers.

Given that Defendants have not complied with the Court order and have not satisfied the meet and confer requirements of Code of Civil Procedure § 430.41, Defendants’ Demurrer to the Complaint is OVERRULED and the Motion to Strike is DENIED.

IV.           Conclusion & Order

For the foregoing reasons, Defendants Raymond Ghermezian, et al.’s Demurrer is OVERRULED and Motion to Strike is DENIED.

Moving party is ordered to give notice.