Judge: Mark C. Kim, Case: 21LBCV00257, Date: 2022-12-20 Tentative Ruling



Case Number: 21LBCV00257    Hearing Date: December 20, 2022    Dept: S27

1.     Background Facts

Plaintiff, Juan Carlos Sanchez filed this action against Defendants, Lucy E. Ramirez, Luz Elena Ramirez and Vision One Mortgage, Inc. on 5/06/21.  The Court sustained demurrers to the original complaint on the ground that they were uncertain and numerous pages were missing from the complaint.  Plaintiff filed his First Amended Complaint on 12/14/21.  The Court sustained a demurrer to the FAC on the ground that it was uncertain on 5/24/22.  Plaintiff filed his operative SAC on 6/13/22.  The SAC includes causes of action for quiet title, partition of real property, breach of contract, and fraud.    

 

2.     Demurrer to Second Amended Complaint

a.         Parties’ Positions

Defendant demurs to the fourth cause of action for fraud in the SAC on the ground that it lacks the required specificity.    

 

Plaintiff opposes the demurrer, contending fraud has been pled with specificity, and Defendant necessarily possesses superior knowledge of the facts.  He seeks leave to amend in the event the demurrer is sustained.      

 

b.         Standard on Demurrer

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be.

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. Blank v. Kirwan 39 Cal.3d 311 (1985). No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under CCP § 430.10 [grounds], § 430.30 [as to any matter on its face or from which judicial notice may be taken], and § 430.50(a) [can be taken to the entire complaint or any cause of action within]. Specifically, a demurrer may be brought per CCP § 430.10(e) if insufficient facts are stated to support the cause of action asserted. Per CCP §430.10(a) a demurrer may be brought where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. Furthermore, demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. CCP § 430.10(f).

 

However, in construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. Financial Corporation of America v. Wilburn, 189 Cal.App.3rd 764, 769 (1987). And, if the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control. Further, irrespective of the name or label given to a cause of action by the plaintiff, a general demurrer must be overruled if the facts as pled in the body of the complaint state some valid claim for relief. Special demurrers are not allowed in limited jurisdiction courts. (CCP § 92(c).)

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

 

Finally, CCP section 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.” (CCP §430.41(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (CCP §430.41(a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (CCP §430.41(a)(3).)

 

c.         Meet and Confer

Defendant contends she met and conferred in connection with the demurrer to the FAC, and there was no need to meet and confer in connection with the instant demurrer.  This is not the law.  A new meet and confer is required each time a party challenges a pleading. 

 

The Court will continue the hearing to require the parties to meet and confer.  The Court asks the parties to discuss two issues during the meet and confer. 

 

First, Defendant filed this demurrer as “Luz Elena Ramirez (aka Lucy Elena Ramirez and Lucy E. Ramirez).”  The two named defendants in the SAC are Luz Elena Ramirez aka Lucy E. Ramirez aka Lucy Elena Ramirez and Lucy E. Ramirez.  Defendant, by putting an “and” in italics between the two akas, creates confusion concerning whether she is demurring in her individual capacity with both of her akas, or whether she is demurring on her own behalf AND on behalf of the other named defendant.  With names so similar, the parties must ensure clarity in all pleadings and documents so as to avoid additional unnecessary confusion.

 

Second, Plaintiff contends his misrepresentation allegations, found at ¶56 of his SAC, are sufficiently pled.  ¶56 alleges, “Plaintiff alleges that he and Defendant Luz Elena Ramirez made an agreement that he would be a 50% owner of the property located at 1094 Lime Ave., Long Beach, CA 90813 beginning in 2004.”  Plaintiff argues Defendant knows all of the specific information about this agreement, so he need not plead it.  He also argues the information was given to him during Defendant’s deposition.  The parties must meet and confer concerning what information is in Plaintiff’s possession regarding where, when, and how that agreement was made. 

 

It does not appear Defendant is arguing the other elements of fraud (beyond the misrepresentation itself) have not been pled with specificity.  If she is, her demurrer is not clear in this regard.  If she so contends, the parties must discuss those allegations as well. 

 

The hearing on the demurrer is continued for one month, to Tuesday, Tuesday, 1/24/23.  Counsel must meet and confer forthwith with the above guidance in mind.  The parties must either agree to the filing of an amended complaint curing any agreed-upon defects, or they must file declarations concerning their meet and confer efforts and further briefs concerning any outstanding issues one week prior to the continued hearing date. 

 

Moving Defendant is ordered to give notice. 

 

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If any party does not submit on the tentative, the party should make arrangements to appear remotely at the hearing on this matter.