Judge: Katherine Chilton, Case: 22STLC07014, Date: 2023-02-16 Tentative Ruling

Case Number: 22STLC07014     Hearing Date: February 16, 2023    Dept: 25

PROCEEDINGS:      DEMURRER WITH MOTION TO STRIKE

MOVING PARTY:   Defendants Stacey Hale, et al.

RESP. PARTY:         Plaintiff Quanda King

DEMURRER WITH MOTION TO STRIKE

(CCP §§ 430.10, 435 et seq.)

TENTATIVE RULING:

The hearing on the Demurrer with Motion to Strike filed by Defendants Stacey Hale, et al. is CONTINUED to MARCH 16, 2023 at 10:30 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 January 23, 2023.                                    [   ] Late                      [   ] None

REPLY:                     None filed as of February 8, 2023.                       [   ] Late                      [X] None

ANALYSIS:

I.                Background

On October 21, 2022, Plaintiff Quanda King (“Plaintiff”), in propria persona, filed an action against Defendants Stacey Hale (“Hale”), FDC Management (“FDC Management”) and FDC Equities, Inc. (“FDC Equities”), (collectively “Defendants”) for:

(1) Disability Discrimination: Failure to Provide Reasonable Accommodations in Violation of the Fair Employment and Housing Act (“FEHA”);

(2) Landlord Harassment in Violation of FEHA, California Civil Code § 1940.2, Cal. Civ. Code § 1942.5 and L.A. County, Cal., Mun. Code § 8.52.170;

(3) Retaliatory Discrimination in Violation of FEHA, Cal. Civ. Code § 1942.5, and L.A. County, Cal., Mun. Code § 8.52.170;

(4) Failure to Prevent Discrimination, Retaliation, and Landlord Harassment in Violation of FEHA, California Civil Code Section 1940.2, Cal. Civ. Code § 1942.5 and L.A. County, Cal., Mun. Code § 8.52.170; 5

(5) Breach of Covenant of Good Faith and Fair Dealings;

(6) Disparate Treatment in Violation of Unruh Act;

(7) Negligent and Intentional Infliction of Emotional Distress;

(8) Injunctive Relief.

On November 30, 2022, Defendants filed a Declaration of Demurring or Moving Party in Support of Automatic Extension.

On December 30, 2022, Defendants filed a Demurrer (“Demurrer”) with Motion to Strike (“MTS”).

Plaintiff filed an Exhibit List on January 17, 2023.  Plaintiff also filed an Opposition to the Demurrer and Motion to Strike (“Opposition”) on January 23, 2023.

No reply has been filed.

II.              Legal Standard

a.     Demurrer

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).)

b.     Motion to Strike

According to Code of Civil Procedure § 436:

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strikeout any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.

However, motions to strike in limited jurisdiction courts may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc. § 92(d).) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.”  (Code Civ. Proc. § 436.)  Furthermore, § 435.5 requires that “[b]efore filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that resolves the objections to be raised in the motion to strike.”  (Code Civ. Proc. § 435.5(a).)

III.            Discussion

a.     Demurrer

Defendants demur to all eight causes of action on the basis that each cause of action fails to state facts sufficient to constitute a cause of action and each cause of action is uncertain.  (Demurrer pp. 2-3.)  As an initial matter, special demurrers on the ground that pleadings are uncertain 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).)

Defendants make the following arguments in support of their Demurrer.

First, the first four causes of action fail to plead sufficient facts because Plaintiff does not identify the disability or medical condition that forms the basis of her protected status.  (Demurrer pp. 9-10.)  Plaintiff has also failed to demonstrate “any causal relationship between her claims of disability and any action by Defendants.”  (Ibid. at p. 10.)  Second, Stacey Hale, an employee of Defendants FDC Management and FDC Equities, as an individual, cannot be held liable under the Fair Employment and Housing Act.  (Ibid.)  Third, Plaintiff refers to ten incidents of harassment, but does not “plead what actions constitute harassment, that she is disabled, and that any harassment is because of her disability.”  (Ibid. at p. 11.)  Fourth, the covenant of good faith and fair dealing does not apply to the circumstances of the instant case.  (Ibid. at pp. 11-12.)  Moreover, it cannot apply to Defendant Hale, as she was not party to any contract with Plaintiff.  (Ibid. at p. 12.)  Fifth, Plaintiff’s sixth cause of action for violation of the Unruh Civil Rights Act fails because Plaintiff has not identified a disability, a protected class, or any disparate treatment by Defendants.  (Ibid. at pp. 12-13.)  Sixth, Plaintiff does not allege any facts showing extreme or outrageous conduct that would be sufficient to plead a cause of action for intentional infliction of emotional distress.  (Ibid. at p. 13.)  Finally, Plaintiff does not plead facts sufficient to show why injunctive relief is appropriate.  (Ibid. at p. 14.)

Plaintiff opposes the Demurrer.  Plaintiff argues that she filed and served a first amended complaint on January 18, 2022.  (Oppos. p. 2.)  Given that the Complaint was filed in October 2022, the Court presumes that Plaintiff intended to state that she filed an amended complaint on January 18, 2023.  However, the Court is not in receipt of an amended complaint.

Plaintiff also states that she is “dissatisfied with the meet and confer process” and Defendants’ attorney did not produce any legal support for seeking a demurrer during the telephonic meet and confer process with Plaintiff.  (Ibid. at pp. 2-3.)  Having review Defendants’ counsel’s declaration and the meet and confer letter sent to Defendant by overnight mail, the Court finds that Defendants have satisfied the meet and confer requirement.  (Duarte Decl., ¶¶ 3-5, Ex. 2.)

However, the Court notes that the moving papers have been improperly served on self-represented Plaintiff by electronic transmission.  (Demurrer p. 15; MTS p. 7.)  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).)  Here, Plaintiff is not represented by an attorney and there is no indication that she has consented to electronic service.

            Moreover, Plaintiff states that she has filed an amended complaint.  However, the Court is not in receipt of any amended pleadings.

For these reasons, the hearing on the Demurrer with Motion to Strike is CONTINUED.  Defendants are ordered to properly serve Plaintiff with the moving papers.  Furthermore, prior to the next scheduled hearing, Plaintiff may file an amended complaint.

b.     Motion to Strike

Defendants move to strike several portions of the Complaint on the basis that (1) self-represented Plaintiff cannot recover attorney’s fees, (2) Plaintiff has not pled facts demonstrating malice, oppression, or fraud, and (3) Plaintiff’s Complaint contains irrelevant language.  (MTS pp. 2-6.)

For reasons discussed above, the hearing on the Demurrer with Motion to Strike is CONTINUED.

c.      Leave to Amend

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.").)

Given that the hearing on the Demurrer with Motion to Strike is CONTINUED, the Court will not determine whether leave to amend is necessary at this hearing.

IV.           Conclusion & Order

For the foregoing reasons,

The hearing on the Demurrer with Motion to Strike filed by Defendants Stacey Hale, et al. is CONTINUED to MARCH 16, 2023 at 10:30 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.