Judge: Mark C. Kim, Case: 22LBCV00240, Date: 2022-12-20 Tentative Ruling

Case Number: 22LBCV00240    Hearing Date: December 20, 2022    Dept: S27

1.     Background Facts

Plaintiff, Gerald Besse filed this action against Defendant, City of Long Beach for defamation, civil harassment, and loss of wages.  Plaintiff alleges he was performing volunteer haircut services at KINGCUTS of Long Beach when he was cited and ordered to cease all operations.  He alleges he complied, despite explaining the “volunteer exemption” for fresh-air haircut services.  He alleges he is a non-surgical hair replacement specialist.  Plaintiff alleges he was out of work for five months, and seeks $40,000 in compensation.  He alleges all charges against him were dismissed.      

2.     Demurrer to Complaint

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

Defense Counsel declares he and Plaintiff spoke on the phone, but were unable to resolve the issues presented by way of the demurrer.  The Court will therefore rule on the demurrer on its merits.

d.         Analysis

Defendant’s first and primary argument on demurrer is that Plaintiff has not alleged compliance with the Government Tort Claims Act.  Pursuant to State of Calif. v. Superior Court (2004) 32 Cal.App.4^th 1234, 1239, failure to allege compliance with the Government Tort Claims Act renders a complaint subject to demurrer. 

The Court has reviewed the complaint and finds it does not allege compliance with the Act, which is found at Government Code §810, et seq.  The demurrer is sustained on this ground.  Plaintiff failed to file opposition to the complaint and therefore failed to show he could amend if given leave to do so.  The Court will deny leave to amend unless Plaintiff appears and argues that he could, in good faith, amend the complaint to allege compliance with the Act. 

If Plaintiff appears, the Court also wishes to hear from him concerning his allegation that he was performing services as a volunteer, which seems to directly contradict his allegation that he is entitled to compensation for the time he was not allowed to work in his chosen profession.

Additionally, if Plaintiff appears and the Court agrees to grant leave to amend, the Court will instruct Plaintiff than his claims against the City cannot be grounded in common law, and instead must be grounded in statute.  See Gov Code §815 and Sussman v. Los Angeles (1969) 269 Cal.2d 803.  If Plaintiff amends his complaint, he must plead statutorily based claims only. 

3.     OSC re: Failure to Appear and Failure to Prosecute

The parties are reminded that there is an OSC re: failure to appear and failure to prosecute on calendar concurrently with the hearing on the demurrer.  The Court asks the parties to make arrangements to appear remotely at the OSC and hearing on the demurrer.