Judge: Katherine Chilton, Case: 22STLC05845, Date: 2022-12-06 Tentative Ruling

Case Number: 22STLC05845     Hearing Date: December 6, 2022    Dept: 25

PROCEEDINGS:      DEMURRER

MOVING PARTY:   Defendants Larry King, et al.

RESP. PARTY:         None

DEMURRER

(CCP §§ 430.10)

TENTATIVE RULING:

The hearing on the Demurrer filed by Defendants Larry King, et al. is CONTINUED TO JANUARY 11, 2023 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  At least 16 court days before the next scheduled hearing, Defendants must file and serve supplemental papers addressing the errors discussed herein. Failure to do so may result in the Demurrer 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 December 2, 2022.                       [   ] Late                      [X] None

REPLY:                     None filed as of December 2, 2022.                       [   ] Late                      [X] None

ANALYSIS:

I.                Background

On September 7, 2022, Plaintiffs Allan Bowman (“Allan”) and Angela Bowman (“Angela”), (collectively “Plaintiffs”), in propria persona, initiated this action against Defendants Larry King (“King”) and The Myrtle C. King Living Trust (“King Living Trust”), (collectively, “Defendants”).

On October 14, 2022, Defendant Larry King, in propria persona, and as a trustee of Myrtle C. King Trust (erroneously sued herein as Larry King, Myrtle C. King Trust”) filed the instant Demurrer (“Demurrer”).

On November 7, 2022, the Court noted that the hearing on the Demurrer had not been properly scheduled and continued the hearing from November 7, 2022, to December 6, 2022.  (11-7-22 Minute Order.)  The Court ordered the moving party to give notice of the continuance.  (Ibid.)

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

As a preliminary matter, the Court notes that Defendants have not served the Plaintiffs with a notice of continuance of the hearing, as ordered by the Court on November 7, 2022.

Furthermore, Defendants have not submitted any proof that they tried to meet and confer with the Plaintiffs prior to filing the instant Demurrer, as required by Code of Civil Procedure § 430.41(a).

For these reasons, the Court continues the hearing on the Demurrer and orders Defendants to file proof of their meet and confer efforts and to serve Plaintiffs with a notice of continuance of the hearing.

IV.           Conclusion & Order

For the foregoing reasons,

The hearing on the Demurrer filed by Defendants Larry King, et al. is CONTINUED TO JANUARY 11, 2023 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  At least 16 court days before the next scheduled hearing, Defendants must file and serve supplemental papers addressing the errors discussed herein. Failure to do so may result in the Demurrer being placed off calendar or denied.

Moving party is ordered to give notice.