Judge: Katherine Chilton, Case: 22STLC08223, Date: 2023-03-01 Tentative Ruling

Case Number: 22STLC08223     Hearing Date: March 1, 2023    Dept: 25

PROCEEDINGS:      DEMURRER WITH MOTION TO STRIKE

MOVING PARTY:   Defendant Maria Carmen Ramos, D.D.S.

RESP. PARTY:         None

DEMURRER WITH MOTION TO STRIKE

(CCP § 430.10, et seq., 436)

TENTATIVE RULING:

Defendant Maria Carmen Ramos, D.D.S.’s Demurrer to the Complaint’s cause of action for intentional tort is SUSTAINED with 20 days leave to amend.

Defendant’s Motion to Strike portions of the Complaint 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 February 26, 2023.                     [   ] Late                      [X] None

REPLY:                     None filed as of February 26, 2023.                     [   ] Late                      [X] None

ANALYSIS:

I.                Background

On December 9, 2022, Plaintiffs Mrs. Sonia Pulliam (“Sonia”) and Mr. Derrik Pulliam (“Derrik”), (collectively “Plaintiffs”), in propria persona, filed an action against Defendants Brian Withers D.D.S. dba Withers Dental (“Withers”) and Carmen Ramos (“Ramos”), (collectively “Defendants”), for (1) general negligence, (2) intentional tort, and (3) common counts.

On January 6, 2023, Defendant Brain Withers, D.D.S, individually and as dba Withers Dental, filed an Answer to the Complaint.

On January 17, 2023, Defendant Maria Carmen Ramos, D.D.S. (erroneously named and sued as Carmen Ramos, DMD) filed the instant Demurrer (“Demurrer”) with Motion to Strike (“MTS”).  Immediately after filing the Demurrer with Motion to Strike, Defendant Ramos filed an Answer to the Complaint.  The Court notes that a party may file a demurrer and answer at the same time, according to Code of Civil Procedure § 430.30(c).

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.    Meet and Confer Requirement

Defendant’s counsel Ted D. Conley states that on December 27, 2022, he sent written correspondence to Plaintiffs to schedule a time to discuss a potential demurrer and motion to strike portions of the Complaint.  (Conley Decl. ¶ 4, Ex. A.)  Plaintiff Derrik responded that none of the four dates/times suggested by defense counsel worked for Plaintiffs and requested additional dates before January 11 or after January 16.  (Ibid. at ¶ 5, Ex. B.)  Defense counsel responded on January 5, 2023, and offered January 9 and 10 as dates to speak by telephone.  (Ibid. at ¶ 6, Ex. C.)  Plaintiff Derrik stated that “[p]robably the 10th is good” and explained that Mr. Michael Howard, as Plaintiff’s assignee through a Power of Attorney would be speaking on their behalf.  (Ibid. at ¶ 7, Ex. D.)  On January 8, 2023, defense counsel sent an email to Plaintiffs, asking them to confirm a time to speak on January 10, and requesting to speak to Plaintiffs, not Mr. Howard.  (Ibid. at ¶ 8, Ex. E.)  On the same day, Plaintiff Derrik responded that he would not speak to defense counsel without Mr. Howard.  (Ibid. at ¶ 9, Ex. F.)  Defense counsel responded that Mr. Howard could be on the line, but he would need to speak to Plaintiffs, and again asked to set a time to speak on January 10, 2023.  (Ibid. at ¶ 10, Ex. G.)  Plaintiff Derrik responded that they did not agree to a meeting unless defense counsel spoke to Mr. Howard.  (Ibid. at ¶ 11, Ex. H.)  On January 9, 2023, Defense counsel wrote to Plaintiffs reiterating that Mr. Howard is not an attorney and does not have authority to represent Plaintiffs.  (Ibid. at ¶ 12, Ex. I.)  Plaintiff Derrik responded that he would not be on the call; however, his wife and Mr. Howard would speak with defense counsel on Tuesday, January 10, 2023, at 10:00 a.m.  (Ibid. at ¶ 13, Ex. J.)  Plaintiff added that his wife “speaks English but doesn’t always understand everything.”  (Ibid.)  Defense counsel responded, objecting to Plaintiff Derrik’s absence, and stating that he will be conferring with Plaintiffs “via the attached written correspondence (also being sent via 1st Class U.S. Mail)” which includes “facts, authorities and arguments establishing good cause for a demurrer and motion to strike portions of Plaintiffs’ Complaint.”  (Ibid. at ¶ 14, Ex. K.)  On January 10, 2023, Defense counsel sent another email to Plaintiffs adding that “none of the elements of the 2nd Cause of Action for General Negligence are plead as to [Plaintiff Derrik Pulliam]. Instead, the entire Cause of Action relates only to matters purportedly affecting [Plaintiff Sonia Pulliam]. So the Cause of Action is fatally flawed for lack of sufficient factual allegations to establish the elements of duty, breach, damages and causation as to [Plaintiff Derrik Pulliam].”  (Ibid. at ¶ 15, Ex. L.)  On January 11, 2023, Plaintiff Derrik emailed defense counsel stating that he is not a party to the lawsuit and given that English is not his wife’s first language, Michael Howard has Power of Attorney to handle Plaintiffs’ legal matters as their assignee.  (Ibid. at ¶ 16, Ex. M.)  On January 11, 2023, Michael Howard sent an email to defense counsel explaining his role in the case and attaching a copy of the Power of Attorney, “under which he purported to have the authority to act on the Plaintiffs behalf in this litigation.”  (Ibid. at ¶ 17, Ex. N.)  On the same day, defense counsel replied to Plaintiff Derrik’s email citing to the Court’s docket showing that he is a party to the case.  (Ibid. at ¶ 18, Ex. O.)

The Court finds that defense counsel’s declaration and the attached correspondence are sufficient to show Defendant’s attempts to meet and confer with Plaintiffs regarding the instant Demurrer with Motion to Strike.

B.    Demurrer

Defendant Ramos demurs to the Complaint’s cause of action for intentional tort on the basis that it “fails to state facts sufficient to constitute a cause of action” and “is uncertain.”  (Demurrer p. 3.)  Specifically, Defendant states that Plaintiffs have not alleged any facts to establish the elements for an intentional tort cause of action.  (Ibid. at p. 6.)  The Court notes that special demurrers on the basis of uncertainty are not permitted in limited jurisdiction civil actions.  (Code Civ. Proc., § 92(c).)

The Complaint sets forth the following causes of action: (1) general negligence, (2) intentional tort, and (3) common counts.  (Compl. ¶ 10.)  While Plaintiffs make allegations regarding their claims for common counts and general negligence, there are no facts pleaded for the cause of action for intentional tort.  (Ibid. at pp. 5-6.)

Therefore, the Court SUSTAINS Defendant Ramos’s Demurrer to the Complaint’s cause of action for intentional tort.

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.").)

Although Plaintiffs have not opposed the Demurrer, the Court finds that there is a reasonable possibility that Plaintiff may cure the defect by amending the Complaint.

Accordingly, Defendant Ramos’s Demurrer to the cause of action for intentional tort is SUSTAINED with 20 days leave to amend.

D.    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).)

Here, Defendant moves to strike the following portions of the Complaint:

1. “This pleading, including attachments and exhibits, consists of the following number of pages: ” [Complaint, ¶ 2];

2. “Intentional Tort” [Complaint ¶ 10(c)];

3. “Form lntergatories [sic] both Defendants 8 pages total” [Complaint ¶ 15];

4. Document entitled “DECLARATION;”

5. “the sum of $2000.00 approximate the reasonable value.” [Complaint ¶ CC1(b)(2)];

6. “according to proof”” [Complaint ¶ CC-2].

(MTS p. 2.)  Defendant argues that these allegations are subject to a motion to strike because “they are irrelevant, immaterial, false, improper and not drawn in conformity with the laws and Rules of Court of this State.”  (Ibid. at p. 3.)

As discussed above, the Court finds that defense counsel’s declaration is sufficient to show that Defendant has satisfied the meet and confer requirement.

The Court reiterates that 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).)  Given that Defendant’s Motion to Strike is not brought on any grounds permissible in a limited jurisdiction court, the Motion to Strike is DENIED.

However, Code of Civil Procedure 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.)  The Court finds that it is proper to strike the following portions of the Complaint:

1.     Complaint ¶ 15: “Form Interogatories both Defendants 8 pages total;”

2.     Complaint pages 23-35 – Form Interrogatories.

IV.           Conclusion & Order

For the foregoing reasons,

Defendant Maria Carmen Ramos, D.D.S.’s Demurrer to the Complaint’s cause of action for intentional tort is SUSTAINED with 20 days leave to amend.

Defendant’s Motion to Strike portions of the Complaint is DENIED.  On the Court’s own motion, Paragraph 15 of the Complaint is stricken as are pages 23-35 (Form Interrogatories).

Moving party is ordered to give notice.