Judge: Mark C. Kim, Case: 21STCV02627, Date: 2022-11-15 Tentative Ruling

Case Number: 21STCV02627    Hearing Date: November 15, 2022    Dept: S27

1.     Background Facts

Plaintiff, Sharron Willis filed this action against Defendants, Anaheim Gardens Housing, LLC, et al. for damages arising out of the shooting death of Decedent, K’Len Grandberry.  Plaintiff alleges the death occurred on Defendants’ property due to Defendants’ insufficient security measures at the property.  Plaintiff’s Firsta Amended Complaint include causes of action for negligence, premises liability, negligent hiring, supervision, training, and/or retention, and survival.  The FAC includes a prayer for punitive damages.

 

2.     Demurrer

  1. Parties’ Positions

Defendant, Anaheim Gardens Housing, L.P. demurs to the FAC, contending it is uncertain as to the parties against whom it is alleged, and the emotional distress suffered and it fails to state a cause of action. 

 

Plaintiffs oppose the motion, contending the FAC is sufficiently certain and any ambiguity can be clarified by way of discovery, and each cause of action is adequately pled. 

 

  1. Legal 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).)

 

  1. Meet and Confer

Defense Counsel declares he sent a detailed meet and confer email on 9/28/22, and Plaintiff’s attorney did not respond.  The Court is disappointed that Plaintiff’s attorney did not respond.  Additionally, the Code requires meet and confer in person or by telephone, not by email.  Defense Counsel did not attempt to meet and confer in person or by telephone.  The Court orders the parties to comply with the meet and confer requirement. 

 

The hearing on the demurrer and motion to strike is continued to Tuesday, 1/10/23 at 8:30 a.m. in Department S27.  Counsel are ordered to meet and confer within the next week in an attempt to resolve the issues presented by way of the demurrer and motion to strike.  If they resolve the issues, Defendant must take the matter off calendar upon resolution.  If they are unable to resolve the issues, each party must file a brief at least ten court days prior to the continued hearing date stating what efforts were made to resolve the matter and what issues remain outstanding. 

 

  1. Guidance

The Court notes that Plaintiff, in her opposition to the demurrer and motion to strike, argues the matters should be “denied” based on Defendant’s failure to attach evidence.  Evidence is not permitted in connection with a demurrer or motion to strike, which challenge the face of the pleading. 

 

The parties are advised that demurrers to negligence-based claims based on uncertainty are disfavored, and issues relating to uncertainty can be resolved by way of discovery.  The parties are advised that demurring to a mother’s allegation that she suffered emotional distress as a result of the death of her son as “uncertain” because the amount of emotional distress suffered is not pled and was likely not severe enough to claim damages is in poor taste and should not be advanced further. 

 

With respect to the motion to strike the claim for punitive damages, the parties should discuss the case of Penner v. Falk (1984) 153 Cal.App.3d 858, 846, which deals with imposition of punitive damages when an apartment building is unsafe.  Additionally, it does not appear Plaintiff opposes the motion to strike the prayer for non-economic damages in connection with the fourth cause of action; the parties must discuss this issue, and if Plaintiff is not opposing the motion, she must withdraw this request for damages from her FAC.

 

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 the parties do not submit on the tentative, they should arrange to appear remotely.