Judge: Michael E. Whitaker, Case: 24SMCV01097, Date: 2024-06-27 Tentative Ruling

Case Number: 24SMCV01097    Hearing Date: June 27, 2024    Dept: 207

TENTATIVE RULING

MOTION

On May 20, 2024, Plaintiff Hassan Aminghazaei filed the Verified Complaint against Defendant Discover Bank[1] (“Defendant” or “Discover”), alleging two causes of action for (1) Violation of Statutory Duties (§1785.25(a) of California Civil Code Title 1.6, Chapter 3.5); and (2) Violation of Section 17200 of California’s Business and Professions Code.

Defendant demurs to both causes of action pursuant to Code of Civil Procedure section 430.10, subdivisions (c), (e), and (f) on the following grounds:  there is another case pending between the same parties on the same causes of action; the complaint fails to state facts sufficient to constitute a cause of action; and uncertainty, respectively.

Defendant’s demurrer is unopposed.

REQUEST FOR JUDICIAL NOTICE

            Defendant requests judicial notice of the following:

·       Exhibit A – A true and correct copy of the complaint filed by Plaintiff Case No. 23VECV00924 on March 1, 2023.

·       Exhibit B – A true and correct copy of the Minute Order issued by Department A of this Court on July 13, 2023 in Case No. 23VECV00924 sustaining Defendant Discover’s Demurrer to the Second Cause of Action in the complaint without leave to amend.

·       Exhibit C – A true and correct copy of the docket in related Case No. 23VECV00924 obtained by Discover’s counsel from the court’s “Case Access” website on May 20, 2024.

Judicial notice may be taken of records of any court in this state.  (Evid. Code, § 452, subd. (d)(1).)  Because the requested documents are court records, the Court may take judicial notice of them.  (Ibid.)   However, “while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.  Courts may not take judicial notice of allegations in affidavits, declarations and probation reports in court records because such matters are reasonably subject to dispute and therefore require formal proof.”  (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [cleaned up].) 

Accordingly, the Court takes judicial notice of Exhibits B and C, and for Exhibit A, the Court takes judicial notice of the existence of the Complaint and the fact that certain allegations were made in case number 23VECV00924, but not the truth of the allegations contained therein.

ANALYSIS

1.     DEMURRER

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In testing the sufficiency of a cause of action, a court accepts “[a]s true all material facts properly pled and matters which may be judicially noticed but disregard contentions, deductions or conclusions of fact or law.  [A court also gives] the complaint a reasonable interpretation, reading it as a whole and its parts in their context.”  (290 Division (EAT), LLC v. City & County of San Francisco (2022) 86 Cal.App.5th 439, 450 [cleaned up]; Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 280 [“in considering the merits of a demurrer, however, “the facts alleged in the pleading are deemed to be true, however improbable they may be”].)

Further, in ruling on a demurrer, a court must “liberally construe” the allegations of the complaint “with a view to substantial justice between the parties.”  (See Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)  

In summary, “[d]etermining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.”  (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

A.    ANOTHER ACTION PENDING

Code of Civil Procedure section 430.10, subdivision (c) provides that a party may demur to a complaint when “There is another action pending between the same parties on the same cause of action.”

A review of RJN Ex. A shows that Plaintiff previously filed a nearly identical complaint in case number 23VECV00924.  Both cases are brought by Plaintiff against Discover and Does 1 to 20, inclusive.  Both complaints allege the exact same two causes of action, and both complaints stem from the same allegations that Discovery inaccurately reflected Plaintiff’s outstanding balance to credit bureaus.  Moreover, the enumerated allegations of the two complaints are almost entirely verbatim copies of one another.

Therefore, the Court sustains Defendant’s demurrer on the grounds that there is already another action pending between the same parties on the same causes of action.

2.     LEAVE TO AMEND

A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v. City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v. Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v. Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v. Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, Plaintiff did not oppose the demurrer and therefore, the Court finds that Plaintiff has not met his burden. 

CONCLUSION AND ORDER

For the reasons stated, the Court sustains Defendant’s Demurrer to both causes of action without leave to amend under Code of Civil Procedure section 430.10, subdivision (c). 

Further, Defendant shall file proposed a proposed Order and Judgment in conformity with the Court’s ruling on or before July 11, 2024. 

Further, the Court advances and reschedules the Case Management Conference from July 9, 2024 to October 3, 2024 at 8:30 A.M. in Department 207. 

Defendant shall provide notice of the Court’s orders and file the notice with a proof of service forthwith. 

DATED:  June 27, 2024                                                         ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court