Judge: Mark E. Windham, Case: 22STCV38717, Date: 2024-02-28 Tentative Ruling

Case Number: 22STCV38717    Hearing Date: February 28, 2024    Dept: 26

Daniel v. Credit Corp Solutions, Inc., et al.

DEMURRER

(CCP §§ 430.10, et seq.)

TENTATIVE RULING:

Demurrer of Defendant Credit Corp Solutions, Inc., assignee of Compass Bank, to Second Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

ANALYSIS:

On December 13, 2022, Plaintiff Marzina Daniel aka Marzina Florenstine Daniel (“Plaintiff”) brought the instant action against Defendant Credit Corp Solutions, Inc., assignee of Compass Bank (“Defendant”). The case was originally assigned to the unlimited jurisdiction court. On February 15, 2023, the Court sustained Defendant’s demurrer to the First Amended Complaint with leave to amend. (Minute Order, 02/15/23.) Plaintiff filed the Second Amended Complaint on December 14, 2023. On December 26, 2023, the Court reclassified the action as a limited jurisdiction case. (Notice of Reclassification, 12/26/23.)

On January 2, 2024, Defendant filed the instant Demurrer to the Second Amended Complaint. Plaintiff filed an objection to the Demurrer on January 8, 2024.

Discussion

The demurring party must meet and confer in person or by telephone with the party who filed the pleading to resolve objections raised in the demurrer. (Code Civ. Proc. § 430.41(a).) Here, Defendant did not properly meet and confer with Plaintiff as required under section 430.41. The supporting declaration indicates that defense counsel made a single attempt by email to reach out to Plaintiff on December 27, 2023. (Demurrer, Shlink Decl. ¶3, Ex. A.) Plaintiff did not respond to this email. This does not satisfy the meet and confer requirements under section 430.41, which requires the parties to meet over the phone or in person. Here, Defendant had evidence that Plaintiff is of limited means but did not attempt to call Plaintiff or provide an opportunity to meet in person to confer about resolving the objections raised in the demurrer. Despite this deficiency, the Court cannot sustain or overrule the demurrer under this basis and therefore will address the merits of the demurrer. (Code Civ. Proc., § 430.41, subd. (a)(4).)

The Second Amended Complaint states a single cause of action for general negligence but attaches no facts to support the claim. (SAC, ¶10.) The form pleading indicates that facts in support of each cause of action must be included in a separate attachment. (Ibid.) However, no attachment with the necessary facts is included with the Second Amended Complaint. (Ibid.) The demurrer to the Second Amended Complaint, therefore, is sustained.

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.) Here, Plaintiff has only filed an objection to the demurrer on two irrelevant grounds, First, that the case was reclassified as a limited jurisdiction case, which has no bearing on the sufficiency of the allegations. Second, Plaintiff objects that the location of the hearing on the Demurrer is incorrectly stated to be 111 N. Hill Street, Los Angeles, California, instead of 312 S. Spring Street, Los Angeles, California. Again, this has no relevance to the sufficiency of the allegations in the Second Amended Complaint and demonstrates that Plaintiff is not prejudiced by the incorrect notice. These arguments, therefore, do not demonstrate that amendment to the Second Amended Complaint is possible to assert any cause of action against Defendant. Leave to amend is denied.

Conclusion

Defendant Credit Corp Solutions, Inc., assignee of Compass Bank’s Demurrer to Second Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Moving party to give notice.