Judge: Mark H. Epstein, Case: 21SMCV01968, Date: 2023-03-07 Tentative Ruling

Case Number: 21SMCV01968    Hearing Date: March 7, 2023    Dept: R

The demurrer by cross-defendants InterSolutions and Kares (InterSolution’s CEO) is SUSTAINED WITH LEAVE TO AMEND. 

Cross-complainant Ramirez sued Mayendia and others relating to his eviction during the holidays in 2021.  In the cross-complaint as filed, neither of the present moving parties was named.  On December 29, 2022, Ramirez named both as DOE defendants and filed a form amendment to that effect. 

The cross-complaint alleged that Stone (not a moving party)—who was the landlord’s representative at the time—conspired with Mayendia and his wife to evict Ramirez knowing that Mayendia was breaking the law and that the eviction was improper.  Ramirez also alleges that Stone aided Mayenia in depriving Ramirez of his property.  InterSolutions and Kares assert in their demurrer that they cannot be liable for any of that because Stone was no longer their employee as of July 2021—months before the alleged wrongful conduct.  They also complain that the cross-complaint is unintelligible.

Although the parties spend a lot of time discussing Stone, Stone is not a demurring party.  And although Ramirez claims that there is evidence that Stone still works for InterSolutions, that is not before the court.  This is a demurrer.  The court will not resolve disputed facts at this stage.  Of course, while that bars the evidence Ramirez cites, it really works against the demurring parties.  While they say that Stone was not their employee, that is not something the court can consider on a pleading motion, so the court cannot sustain the demurrer on that basis.  In other words, it might well be that Stone was no longer an employee as of July 2021, but the court cannot decide that on demurrer (and cross-defendants ought to know as much).

The problem with the cross-complaint is that it is uncertain as to these cross-defendants.  By that the court does not adopt cross-defendants’ characterization of the cross-complaint as a whole.  Although it takes a bit of parsing, the cross-complaint is not so uncertain or hard to understand that the reader is left not knowing what the case is about.  But these two cross-complainants are added only as DOE defendants.  There is nothing in the cross-complaint that says what they are alleged to have done.  It is for that reason that the cross-complaint is uncertain and must be amended.  Ramirez needs to specify what it is that InterSolutions and Kares did that was tortious.  And, to the extent that Kares is being sued on the theory that he is InterSolution’s CEO, Ramirez will have to describe Kares’ individual involvement in the alleged wrongdoing.  Generally, a corporate employee—even a manager or CEO—is not personally liable for the entity’s torts; there must be some personal wrongful involvement. 

InterSolutions and Kares have also moved to strike the sur-reply.  The court agrees that it was improper and unauthorized and it is STRICKEN.

The court strongly urges all parties here to choose their words more carefully, even in briefs.  While it is true that court pleadings enjoy a privilege, tensions are already running far too high in this case.  This court stresses to the parties that it will resolve the case on the merits, not on rhetoric.  In the court’s experience, the louder the rhetoric, the weaker the case.  Strong cases allow the facts to cause the court to draw the negative or positive inferences.  Insulting adjectives and adverbs convince the court that the facts are not strong enough to do the job themselves.

Accordingly, the demurrer is SUSTAINED WITH LEAVE TO AMEND.  Ramirez has 30 days to amend.

The court is aware of Ramirez’s Third Amended Cross-Complaint that was filed on 3/6/23.  It was filed in error.  Leave of court is required to file such a document and Ramirez never sought such leave.  The court would normally not worry about that (given that leave to amend has been given), but the amendments could well extend beyond those that relate to the demurrer.  The other parties have a right to be heard before a new cross-complaint is filed. 

Accordingly, the filing of the third amended cross-complaint is revoked and the document is to be considered lodged, not filed.  If Ramirez believes that the third amended cross-complaint does no more than address the demurrer, then he can file a document with the court so stating and the third amended cross-complaint will then be filed.  However, if the third amended cross-complaint it does more than that, Ramirez will need to file a motion for leave to file it.  The court notes that a motion for leave will satisfy the 30 day time requirement set forth in today’s order. 

As an aside, the court has some concerns about the service of process on certain defendants.  A original summons or complaint may be served in a number of ways, however electronic service is not, the court believes, among them.  Other papers can be served electronically, and the court prefers such service in a case like this.  But the first service of a summons and complaint must be served differently on a party that has not yet appeared in court must be served in a different manner.  Ramirez should double check to be sure that he has properly served the parties named in the cross-complaint but not in the main action given that he has sought defaults.  Any default where service was not proper will need to be vacated.  The court is not actually making any rulings today in that regard, but the court is taking advantage of this opportunity to try and forestall further motion practice.