Judge: Mark C. Kim, Case: 22LBCV00078, Date: 2022-10-27 Tentative Ruling
Case Number: 22LBCV00078 Hearing Date: October 27, 2022 Dept: S27
Plaintiff, Kurry Moultry filed this
action against Defendants, Kevin Hoffman, Brant Choate, Jeffrey Macomber, Jennifer
Barretto, and Jennifer Nolan on 2/25/22.
Barnes, Mitchell, Thacker, and Fowler filed a demurrer on 6/10/22. Plaintiff’s complaint 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 $20 million in damages. The allegations are not clear, but it appears
Plaintiff is alleging Defendants improperly hired Dexter Barnes as an inmate
supervisor.
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 complaint, 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 Defendants challenge
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.
The parties are reminded that there
is a 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 CMC and hearing.