Judge: Katherine Chilton, Case: 22STLC06731, Date: 2023-01-19 Tentative Ruling
Case Number: 22STLC06731 Hearing Date: January 19, 2023 Dept: 25
PROCEEDINGS: DEMURRER
MOVING PARTY: Defendants Coldwell Banker Residential Brokerage Company dba Coldwell Banker Realty (erroneously sued as “Coldwell Banker Realty”) and Philip Boroda
RESP. PARTY: Plaintiff Karla Moore, in propria persona
DEMURRER
(CCP §§ 430.10)
TENTATIVE RULING:
The hearing on the Demurrer filed by Defendants Coldwell Banker Residential Brokerage Company and Philip Boroda is CONTINUED to MARCH 1, 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 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) NOT OK[1]
[ X ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK
OPPOSITION: Filed on December 16, 2022. [ ] Late [ ] None
REPLY: None filed as of January 12, 2023. [ ] Late [X] None
ANALYSIS:
I. Background
On October 11, 2022, Plaintiff Karla Moore (“Plaintiff”), in propria persona, filed an action against Coldwell Banker Realty (“Coldwell”) and Philip Boroda (“Boroda”), (collectively, “Defendants”), for illegal lockout/eviction.
On December 12, 2022, Defendants filed the instant Demurrer (“Demurrer”). On December 16, 2022, Plaintiff filed an Opposition to the Demurrer (“Opposition”). No reply 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 the following deficiencies in the instant Demurrer.
First, the Notice of the Demurrer contains the wrong address for the courthouse where the hearing on the Demurrer will take place and does not comply with California Rules of Court, rule 3.1110(b).
Second, Defendants have filed Proof of Service indicating that the moving papers were served on Plaintiff via electronic transmission. (Demurrer pp. 11-13.) Code of Civil Procedure § 1010.6 authorizes service of documents by electronic service (service by e-mail) in certain enumerated circumstances. Code of Civil Procedure § 1010.6(a)(2)(A)(ii) provides, “[f]or cases filed on or after January 1, 2019, if a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of the document is authorized” only: (1) “if a party . . . has expressly consented to receive electronic service in that specific action”, (2) “if . . . the court has ordered electronic service on a represented party or other represented person under subdivision (c) or (d)”, or (3) “if . . . the document is served electronically pursuant to the procedures specified in subdivision (e)”, that is, electronic service is made upon a party who is represented by counsel. (Code Civ. Proc., §§ 1010.6(a)(2)(A)(ii), (c), (d), (e).) Plaintiff is self-represented and there is no indication that she has consented to service by electronic transmission.
For these reasons, the Court continues the hearing on the Demurrer. Defendants are ordered to correct the Notice of Demurrer, serve all moving papers on Plaintiff by an authorized means, and file proof of service with the Court.
IV. Conclusion & Order
For the foregoing reasons,
The hearing on the Demurrer filed by Defendants Coldwell Banker Residential Brokerage Company and Philip Boroda is CONTINUED to MARCH 1, 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 Motion being placed off calendar or denied.
Moving party is ordered to give notice.