TENTATIVE RULING

Defendant Brian J. Nissel’s Demurrer to Plaintiffs’ Complaint is SUSTAINED with thirty (30) days leave to amend as to all claims.

Defendant Brian J. Nissel’s Motion to Strike Portions of Plaintiffs’ Complaint is DENIED as MOOT.

Defendant Dahlia Nissel’s Demurrer to Plaintiffs’ Complaint is SUSTAINED with thirty (30) days leave to amend as to all claims.

Defendant Dahlia Nissel’s Motion to Strike Portions of Plaintiffs’ Complaint is DENIED as MOOT.

Plaintiffs Daniel Lavaee and Roxanna Lavaee may amend their complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Defendants Brian J. Nissel and Dahlia Nissel to give notice. 

REASONING

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not “assume the truth of contentions, deductions, or conclusions of fact or law” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125).

Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike 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. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Defendants Brian J. Nissel and Dahlia Nissel (“Defendants”) demur to all causes of action in Plaintiffs Daniel Lavaee and Roxanna Lavaee (“Plaintiffs”)’s complaint on the ground that the complaint is devoid of any reference to Defendants, such that there is no basis for Defendants’ connection to the property, alleged actions, or Plaintiffs. Plaintiffs argue that the pleading identifies conduct by all defendants, and they allege that all defendants acted in concert with each other and as agents of each other, such that liability has been stated. Plaintiffs also provide the declaration of one of the attorneys for Plaintiffs, who states facts learned in discovery. The Court does not consider this declaration, as this is extrinsic evidence not properly considered in the context of a demurrer, and Plaintiffs have not properly requested judicial notice of these facts, i.e., including a parenthetical statement in a declaration is not sufficient to request judicial notice to support a demurrer. Moreover, even if the Court were to take judicial notice of the facts, the pleading is rife with references to “Defendants” generally, Defendants are not identified in the pleading, and any basis for liability which has been learned through discovery is not stated in the pleading, such that reference to the facts stated in counsel’s declaration does not connect Defendants sufficiently to the conduct alleged in the pleading. It is axiomatic that the complaint itself must give Defendants notice of the exact nature of the claims against them, and Plaintiffs have simply asked the Court to find all Defendants jointly liable for the same conduct, which is not proper without further facts. Accordingly, Defendants Brian J. Nissel and Dahlia Nissel’s Demurrers to Plaintiffs’ Complaint are SUSTAINED with thirty (30) days leave to amend as to all claims. Given the ruling on demurrer, Defendants Brian J. Nissel and Dahlia Nissel’s Motions to Strike Portions of Plaintiffs’ Complaint are DENIED as MOOT.