Judge: Mark A. Young, Case: 21SMCV01059, Date: 2023-09-29 Tentative Ruling
Case Number: 21SMCV01059 Hearing Date: March 19, 2024 Dept: M
CASE NO.: 21SMCV01059
MOTION: Demurrer
to the Complaint
HEARING DATE: 3/19/2024
Legal
Standard
A
demurrer for sufficiency tests whether the complaint states a cause of action.
(Hahn v. Mirda (2007)
147 Cal.App.4th 740, 747.) When considering demurrers, courts read the
allegations liberally and in context. In a demurrer proceeding, the defects
must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co.
(2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not
the evidence or other extrinsic matters. Therefore, it lies only where the
defects appear on the face of the pleading or are judicially noticed. (CCP §§
430.30, 430.70.) 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.) A “demurrer does not, however, admit
contentions, deductions or conclusions of fact or law alleged in the pleading,
or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen
(1964) 226 Cal.App.2d 725, 732, internal citations omitted.)
“Liberality in permitting amendment
is the rule, if a fair opportunity to correct any defect has not been given.” (Angie
M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of
discretion for the court to deny leave to amend where there is any reasonable
possibility that plaintiff can state a good cause of action. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to
show in what manner plaintiff can amend the complaint,
and how that amendment will change the legal effect of the
pleading. (Id.)
Analysis
Cross-Defendant Jassica Jacobs demurs to the second amended cross complaint
(SACC) filed by Steven Ray Ritchie. On September 29, 2023, the Court granted Jacobs
motion for judgment on the pleadings against the SACC’s first through eighth
causes of action. As Ritchie failed to file an amended cross-complaint, the
only remaining cause of action is defamation.
Jacobs has filed only a notice of motion, stating that that the sole
remaining cause of action for defamation fails to state a claim because Jacobs
recalls that her posts on the website Nextdoor never referred to or identified
Ritchie, and that such statements were true. The Court cannot grant the
demurrer for several reasons. Procedurally,
Jacobs did not file proof of service of the demurrer. (CCP § 1005(b).) On that
basis alone, the demurrer would be denied. Jacobs also did not file any
memorandum of points and authorities, which is required for all motions. (See
CRC Rule 3.1113.) This also justifies denial. Finally, Jacobs relies on
extrinsic evidence which is unalleged in the SACC and not subject to judicial
notice. Thus, her demurrer is not supported even if the court ignores the fatal
procedural issues. Accordingly, the demurrer is OVERRULED. Jacobs is ordered to
answer the SACC within 10 days.