Judge: Katherine Chilton, Case: 22STLC05845, Date: 2023-01-11 Tentative Ruling

Case Number: 22STLC05845    Hearing Date: January 11, 2023    Dept: 25

PROCEEDINGS:      DEMURRER

MOVING PARTY:   Defendant Larry King, as trustee of Myrtle C. King Trust

RESP. PARTY:         None

DEMURRER

(CCP §§ 430.10)

TENTATIVE RULING:

The Demurrer filed by Defendant Larry King, as trustee of Myrtle C. King Trust, is OVERRULED.

SERVICE: 

[ X ] Proof of Service Timely Filed (CRC, rule 3.1300)                 NOT OK

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

[ X ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     NOT OK

OPPOSITION:          None filed as of January 9, 2023.               [   ] Late                      [X] None

REPLY:                     None filed as of January 9, 2023.               [   ] 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, as a trustee of Myrtle C. King Trust (erroneously sued herein as Larry King and The Myrtle C. King Trust”), in propria persona, 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.)

On December 6, 2022, the Court noted that Defendant had not served Plaintiffs with a notice of continuance of the hearing, as ordered by the Court on November 7, 2022.  (12-6-22 Minute Order.)  The Court also noted that Defendant had not submitted proof that he had tried to meet and confer with Plaintiffs prior to filing the instant Demurrer.  (Ibid.)  For these reasons, the Court continued the hearing on the Demurrer to provide Defendant with an opportunity to correct these deficiencies.  (Ibid.)

            On December 22, 2022, Defendant filed a First Amended Notice of Demurrer and Demurrer, as well as Proof of Service indicating service of the Notice and Demurrer on October 12, 2022.

            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

On December 22, 2022, Defendant filed the First Amended Notice and Demurrer to the Complaint (“Amended Demurrer”).  Defendant moves the Court for an order sustaining a general demurrer to the Complaint filed by Plaintiffs, without leave to amend.  (Amended Demurrer pp. 1-2.)  Defendant argues that the Demurrer should be sustained because the Complaint isn't verified, fails to state any cause of action, and is fatally defective.  (Ibid. at p. 2.)  Defendant specifically demurs to First through Eighth causes of action for failure to state facts sufficient to constitute a cause of action.  (Ibid. at pp. 3-4.)  Defendant also argues that Plaintiffs have committed fraud upon the court for making fraudulent statements and the Complaint “makes conclusory allegations based on retaliation” in response to eviction.  (Ibid. at p. 5.)

On December 6, 2022, the Court noted that Defendant had not served Plaintiffs with a notice of continuance of the hearing, as ordered by the Court on November 7, 2022.  (12-6-22 Minute Order.)  The Court also noted that Defendant had not submitted proof that he had tried to meet and confer with Plaintiffs prior to filing the instant Demurrer.  (Ibid.)  For these reasons, the Court continued the hearing on the Demurrer to provide Defendant with an opportunity to correct these deficiencies.  (Ibid.)

The Court finds that Defendant has again failed to file proof that Plaintiffs have been properly served.  On December 22, 2022, Defendant filed Proof of Service of Notice of Demurrer and Demurrer, which pertains to the original Demurrer filed on October 14, 2022.  (12-22-22 Proof of Service.)  There is no indication that Plaintiffs have been served with the Amended Notice and Demurrer.

Furthermore, Defendant has not provided a declaration regarding its efforts to meet and confer with Plaintiffs prior to filing the instant Demurrer.

Finally, Defendant demurs to the First through Eighth causes of action; however, Plaintiffs have not set forth any causes of action in the Complaint.

            For these reasons, the Court OVERRULES the Demurrer. 

IV.           Conclusion & Order

For the foregoing reasons,

The Demurrer filed by Defendant Larry King, as trustee of Myrtle C. King Trust, is OVERRULED.  An Order to Show Cause re: Filing of Answer is set for March 30, 2023 at 9:30 a.m. in Department 25, Spring Street Courthouse.

Moving party is ordered to give notice.