Judge: Katherine Chilton, Case: 22STLC08431, Date: 2023-05-25 Tentative Ruling
Case Number: 22STLC08431 Hearing Date: May 25, 2023 Dept: 25
PROCEEDINGS: DEMURRER WITH MOTION TO
STRIKE
MOVING PARTY: Defendant FPI Management,
Inc.
RESP. PARTY: Erica Henderson, Jeffrey Henderson
DEMURRER WITH MOTION TO STRIKE
(CCP §§ 430.10, 435 et seq.)
TENTATIVE RULING:
The hearing on the Joinders to
Demurrer and Motion to Strike filed by Defendant Rockvale Apartments LP is
CONTINUED TO JUNE 26, 2023 at 10:30 a.m. in Department 25 at the SPRING STREET
COURTHOUSE. At least 16 court days
before the next scheduled hearing, Defendant Rockvale must file and serve
supplemental papers addressing the errors discussed herein. Failure to do so may result in the Joinders
being denied.
The hearing on the Demurrer with
Motion to Strike, filed by Defendant FPI Management, Inc. CONTINUED TO JUNE 26, 2023 at 10:30 a.m. in Department 25 at the
SPRING STREET COURTHOUSE.
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: Filed
on May 16, 2023. [X] Late [ ] None
REPLY: Filed on May 18, 2023. [ ] Late [ ] None
ANALYSIS:
I.
Background
On December 19, 2022, Plaintiffs
Erica Henderson (“Erica”) and Jeffrey Henderson (“Jeffrey”) (collectively “Plaintiffs”),
in propria persona, filed an action against Defendants Rockvale Apartments LP (“Rockvale”),
Rockvale Apartments GP (“RA GP”), Rockvale Apartments Limited (“RA Limited”),
FPI Management[1], Inc.
(“FPI”), and Eden Iris Gardens, LLC (“Eden”) for (1) breach of implied warranty
of habitability, (2) negligence, (3) nuisance, (4) personal injury, (5)
intentional infliction of emotional distress, and (6) breach of contract.
On April 19, 2023, Defendant FPI
filed the instant Demurrer with Motion to Strike Complaint (“Demurrer” and
“MTS”).
On May 4, 2023, Defendant Rockvale
filed a Notice of Joinder to Demurrer to Complaint and Notice of Joinder to MTS
Complaint.
Plaintiffs filed an Opposition to
Joinder, Opposition to Demurrer, and Opposition to MTS on May 16, 2023. The Court notes that Plaintiffs have not
filed timely Oppositions.
On May 18, 2023, Defendant Rockvale
filed a Reply to Opposition to Joinder.
On the same day, Defendant FPI filed a Reply to Opposition to Demurrer
and Reply to Opposition to MTS.
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.
Joinder to Demurrer and MTS
As a preliminary matter, the Court
addresses Defendant Rockvale’s Notice of Joinder to Demurrer and Notice of
Joinder to MTS. On May 4, 2023,
Defendant Rockvale filed these Notices, stating that Defendant Rockvale joins
Defendant FPI in demurring to and moving to strike portions of the Complaint.
On May 16, 2023, Plaintiffs filed a
late Opposition to Joinder. However, the
Court, in its discretion, considers the Opposition. (Cal. Rules of Court, rule 3.1300(d).) Plaintiffs cite to Barak v. Quisenberry
Law Firm (2006) 135 Cal.App.4th 654, and Frazee v. Seely (2002) 95
Cal.App.4th 627, for the legal requirements of filing a joinder. (Oppos. pp. 3-4.) Plaintiffs argue that Defendant Rockvale was
properly served with the Complaint on March 3, 2023, through its agent for
service of process FPI and had to respond to the Complaint by April 19,
2023. (Ibid. at p. 4.) Given that Rockvale did not file timely
responsive pleadings, “Rockvale lost their right to demurrer.” (Ibid.) Plaintiffs also argue that the brief
statement that Defendant Rockvale joins in Defendant FPI’s Demurrer and Motion
to Strike is not sufficient because it is not in the form of a motion and does
not provide any supporting facts for the Court to consider. (Ibid. at pp. 4-5.)
In its Reply to the Opposition,
Defendant Rockvale argues that Plaintiffs’ “Opposition is filled with
conclusory statements and improper legal conclusions.” (Reply p. 2.)
First, Defendant contends that the entire Opposition should be
disregarded for being untimely and because it was improperly served via
electronic mail without Defendant’s consent.
(Ibid.) As noted above,
the Court, in its discretion, does consider the Opposition, as Defendant has
filed a Reply.
Second, Plaintiff was legally
required to serve all parties with the Complaint; however, it only served
Defendant FPI with the Complaint. (Ibid.
at pp. 2-3.) Therefore, Rockvale was not
required to file responsive pleadings as it has not been served with the
Complaint and it properly and timely filed the Joinders. (Ibid.)
Third, Defendant argues that no
additional information was required for the Joinders as Defendant is not
seeking independent relief, but merely joining in the arguments presented by
FPI. (Ibid. at p. 2.) The Court should allow Defendant to join the
Demurrer and MTS for the purpose of judicial efficiency, pursuant to Code of
Civil Procedure § 128, which “empowers the court to ‘provide for the orderly
conduct of proceedings before it’ and ‘exercise reasonable control over
litigation before it.’” (Ibid. at
p. 3.) Defendant argues that the Joinders
will allow for the case to be litigated “efficiently and economically” as
Defendant is “both legally and factually situated with FPI’s Demurrer and
Motion to Strike.” (Ibid. at pp.
3-4.) Defendant argues that the cases
cited by Plaintiff are not applicable as they pertain to motions for summary
judgment. (Ibid. at p. 4.)
The
Court finds that Plaintiffs have not filed proof that Defendant Rockvale has
been served with the Summons and Complaint, as the Proof of Service filed only
pertains to Defendant FPI. (5-3-23 Proof
of Service.) As Rockvale has not been
served and default has not been entered against Rockvale, there is no basis to
support Plaintiffs’ argument that Rockvale may no longer file responsive
pleadings. Thus, the Joinders were
timely filed.
However,
the Court does not find that Defendant Rockvale’s Joinders comply with
applicable procedural requirements. “Although ‘standard practice’ permits parties to join each
other’s arguments, ‘joining in an argument is different from joining in a motion’;
absent compliance with procedural requirements for a properly filed motion, [a]
party ‘joining’ [an] other party’s motion lacks standing to seek relief from
the court.” (Bridget A. v. Superior
Court (2007) 148 Cal.App.4th 285, 300, fn. 5.) The Second District Court of Appeal has
recognized that joinder is permissible to allow a party to join in a separate
party’s special motion to strike under Code of Civil Procedure, § 425.16 (“anti-SLAPP motion”), where the joining party seeks
the same relief as the moving party. (Barak
v. The Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 661.) The Barak Court recognized that, unlike
a party joining a summary judgment motion, which requires presentation of
separate evidence by the moving party, a moving defendant in an anti-SLAPP
motion need only demonstrate that the action arises out of protected First
Amendment activity and that a joining defendant bears the same legal burden. (Ibid.)
The
Demurrer with Motion to Strike in this case are analogous to the anti-SLAPP
motion in Barak because the demurring party is challenging the pleading
based on the allegations of the pleading itself or matters of which the court
may take judicial notice. As such, the Court
finds that the Barak court’s reasoning applies, and that Defendant Rockvale’s
joinder is permitted under California law. (See Barak, supra, 135
Cal.App.4th at p. 651.)
However, the Court finds that
Defendant Rockvale has not complied with the procedural requirements for filing
the Joinders. Although Defendant is
correct in that it does not need to present any additional evidence in support
of the motion, it has failed to follow the requirements of California Rules of
Court 3.1112 that require a notice of motion, the motion, and a memorandum in
support of the motion outlining the basis of the relief sought. (Cal. Rules of Court 3.1112(a), (d).) The Joinders do not contain a memorandum or
cite any basis for the Court to grant the relief requested. In its Reply, Defendant Rockvale argues that
Defendant is “both legally and factually situated with FPI’s Demurrer and
Motion to Strike.” (Reply p. 4.) However, this statement is presented for the
first time in the Reply, not the Joinders, and is a conclusory statement that
does not provide the Court with any factual or legal basis to grant the
Joinders.
The Court is inclined to deny
Defendant’s Joinders and to proceed with addressing the Demurrer and Motion to
Strike. However, for the purpose of
efficiency and judicial economy, the Court continues the hearing and allows
Defendant Rockvale to file procedurally proper Joinders.
B.
Demurrer with Motion to Strike
The hearing on the Demurrer and MTS
are also CONTINUED to allow the Court to make a ruling on the Joinders before
addressing the arguments in the Demurrer and MTS.
IV.
Conclusion & Order
For the foregoing reasons:
The hearing on the Joinders to
Demurrer and Motion to Strike filed by Defendant Rockvale Apartments LP is
CONTINUED TO JUNE 26, 2023 at 10:30 a.m. in Department 25 at the SPRING STREET
COURTHOUSE. At least 16 court days
before the next scheduled hearing, Defendant Rockvale must file and serve
supplemental papers addressing the errors discussed herein. Failure to do so may result in the Joinders
being denied.
The hearing on the Demurrer with
Motion to Strike, filed by Defendant FPI Management, Inc. CONTINUED TO JUNE 26,
2023 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE.
In addition, Defendant Rockvale is ordered to
pay the filing fees for the Joinders prior to the next scheduled hearing.
Moving party to give notice.