Judge: Mark C. Kim, Case: 22LBCV00077, Date: 2022-10-27 Tentative Ruling
Case Number: 22LBCV00077 Hearing Date: October 27, 2022 Dept: S27
Plaintiff, Kurry Moultry filed this
action against Defendants, Dexter Barnes, Roselyn King, Russell Laster, David
Mitchell, John Winston, Joe Martinez, Carol Fowler, Quincy Thacker, and Raymond
Moorehead on 2/25/22. Barnes, Mitchell,
Thacker, and Fowler filed a demurrer on 6/10/22, and Plaintiff filed his
operative First Amended Complaint prior to the hearing, on 7/01/22. Plaintiff’s FAC is a hand-written judicial
council form complaint, and does not contain any substantive cause of
action. Plaintiff indicates he is suing
for civil rights violations, and seeks $30 million in damages. The allegations are not clear, but it appears
Plaintiff is alleging he was paroled in 2004, and subsequent to that time, Defendants
have been illegally conducting surveillance on him.
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).)
Defendant submits the Declaration
of Cassandra J. Shryock, which adequately shows Counsel attempted to meet and
confer prior to bringing this demurrer.
California Rules of Court, Rule
2.112, requires a complaint to include separately stated causes of action,
which must include a cause of action number, nature, and statement of which
party is asserting the claim and against whom the claim is being asserted. Notably, the judicial council has created
forms for most causes of action that are recognized under California law.
Plaintiff’s FAC, by failing to comply
with CRC 2.112, renders itself impossible to evaluate. The Court cannot determine what cause(s) of
action Plaintiff is attempting to assert, whether the elements of those causes
of action have been, against whom the causes of action are being asserted, whether
any defense to the purported cause of action appears on the face of the FAC,
etc. The Court needs a complaint that
satisfies the requirements of the Rules of Court if Plaintiff intends to proceed
with prosecution of this action.
The demurrer is sustained. Leave to amend is granted if and only if
Plaintiff can cure each of the defects detailed above. If Plaintiff amends, and if Defendant
challenges the pleading, Plaintiff must meaningfully discuss, in a timely and
properly filed opposition to the demurrer, each argument made in the demurrer
if he wishes to avoid a ruling sustaining a future demurrer without leave to
amend. Plaintiff must file any amended
complaint within twenty days.
Defendant, Laster’s joinder is
granted. The above ruling applies with
equal force and effect to the claims made against Laster.
The parties are reminded that there
is an Order to Show Cause re: failure to file proof of service and Case
Management Conference on calendar concurrently with the hearing on the demurrer
and joinder. The Court asks the parties to
make arrangements to appear remotely at the OSC, CMC, and hearing.