Judge: Kerry Bensinger, Case: 22STCV22236, Date: 2023-01-09 Tentative Ruling

Case Number: 22STCV22236    Hearing Date: January 9, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On July 11, 2022, plaintiff Gayle Sharron Liner (“Liner”) filed this action against defendant Rochelle Sterling, as Trustee of the Sterling Family Trust and dba Beverly Hills Properties (“Sterling”).  Plaintiff alleges that on July 11, 2020, she slipped on an oily substance in a parking garage and fell.   

          On September 15, 2022, Sterling filed a Cross-Complaint for breach of contract and negligence. 

          On November 30, 2022, Liner filed this demurrer to Sterling’s cross-complaint.  Liner argues that the Cross-Complaint fails to state sufficient facts because: (1) it raises claims that are not transactionally related to the claims she asserted in her complaint, (2) it states claims that have not been pled as affirmative defenses in Sterling’s answer, (3) the alleged claims fall below the jurisdictional limits of this court, and (4) Sterling does not have the legal capacity to sue. 

          On December 21, 2022, Sterling filed an opposition brief.

          No reply brief is on file.  

II.     LEGAL STANDARDS

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.  We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.  [Citation.]”  (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.)  A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Ibid.)

III.    DISCUSSION

Before filing a demurrer, the demurring party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., § 430.41, subd. (a).)  

          Michael Domingo, Liner’s counsel, declares that he engaged in a discussion with Sterling’s counsel over the telephone to request an extension to file a responsive pleading because Liner had not yet retained counsel to represent her regarding the matters raised in Sterling’s Cross-Complaint.  Sterling declined to extend Liner’s deadline to respond and on November 21, 2022, Liner filed a declaration for an automatic 30-day extension due to the inability to meet and confer.  On November 23, 2022, Sterling attempted to have default entered against Liner, but the request for default was rejected.  It does not appear that the parties have had an opportunity to meet and confer but that Liner has satisfied the requirements to do so. 

          Liner first argues that the alleged failure to pay rent and destruction of property in Sterling’s Cross-Complaint is not related to the slip and fall that she alleges in her own Complaint.  This is of no importance, as a cross-complaint need not be “transactionally related” to the complaint.  (Code Civ. Proc., § 428.10(a) [cross complaint may assert any cause of action whatsoever that a defendant has against a plaintiff].) 

          Next, Liner argues that the Cross-Complaint fails to state sufficient facts to state a cause of action because Sterling failed to plead those claims as affirmative defenses.  Liner cites to no authority that a cross-complaint need only assert claims that arise from a defendant’s affirmative defenses.  Additionally, Sterling’s Cross-Complaint pleads causes of action directed against Liner, they are not affirmative defenses. 

          Liner also argues that the Cross-Complaint fails to state a claim because it is seeking damages below the $25,000 jurisdictional threshold of this court.  As pointed out by Sterling, Liner offers no authority stating that a cross-complaint needs to independently meet any monetary minimums, as the Court’s jurisdiction is determined by Plaintiff’s complaint.  (Opp., 4:13-17.) 

          Last, Liner argues that Sterling lacks standing and capacity to sue because she does not own the allegedly damaged property, an electric vehicle charging station, and that the charging station is owned by nonparty Chargepoint.  This argument relies on matter outside the pleadings and cannot be considered on a demurrer.  Also, Chargepoint’s email attached to Liner’s counsel’s declaration is not judicially noticeable for the fact that Chargepoint owns the electric vehicles.  At this stage of the case, Sterling’s allegation is deemed factually true. 

IV.    CONCLUSION

Accordingly, Liner’s Demurrer to Sterling’s Cross-Complaint is OVERRULED in its entirety.  Liner is ordered to file an answer to Sterling’s Cross-Complaint within 10 days of being served with the notice of the Court’s ruling. 

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.