Judge Mark A. Young, Case 22SMCV00831 2023-03-28 Tentative Ruling

Judge: Mark A. Young, Case: 22SMCV00831, Date: 2023-03-28 Tentative Ruling

Case Number: 22SMCV00831 Hearing Date: March 28, 2023 Dept: M

CASE NO.: 22SMCV00831

MOTION: Demurrer to the Complaint

HEARING DATE: 3/27/2023

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.)

A special demurrer for uncertainty is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (CCP § 430.10(f); Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

“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

Defendant Iranian Jewish Senior Center (“IJSC”) demurrers to all causes of action asserted by plaintiff Nader Nafe.

Generally, the Complaint is illegible and unintelligible. To the best of the Court’s ability, the Court reads the charging allegations as follows:

“(1) Slander & Libel / Filing Reporting False Fraudulent to State Agency on 3 occasion [sic] causing irreparable legal consequences. 115 PC [¶] (2) Larceny Penal Code 484 + Unlawfully Holding on to my property 5500 & 1000 dollars in gold coins [¶] Menana [sic] & Duress for Improper abusive treatment of My Mother threat to to [sic] throw her out & for my complaint to her takes a retaliatory action unlawful & fraudulent ‘Penal Code 115 PC’ Violation of my Personal Identifying into Penal Code ‘530.5’ ”

(Compl., ¶ 8.) Further, Plaintiff request $100,000, and $10,850 in attorneys fees “+ other costs of misery [unintelligible] & document” (¶ 10.)

IJSC cannot fairly respond to these allegations, as they do not inform IJSC of the issues to be met. Not only this, but IJSC is not yet a named party to this suit. Leave to amend will be denied, unless Plaintiff explains the basis of IJSC’s inclusion in this suit, and promptly files for a doe amendment using the required form, LASC CIV-105 (Fictitious / Incorrect Name). (See CCP, §§ 471.5, 472, 473, 474.)

Accordingly, the demurrer for uncertainty is SUSTAINED.