Judge Michael J. Strickroth, Case 2022-01257640 2022-11-07 Tentative Ruling

Judge: Michael J. Strickroth, Case: 2022-01257640, Date: 2022-11-07 Tentative Ruling

Demurrer to Complaint

Defendants, Caren Halabi Cruz, Julia Maren Cruz and Paul Candelaria Rodriguez’s (Defendants) Demurrer to the Complaint is SUSTAINED, with 20 days leave to amend.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. Code of Civil Procedure § 430.30, subd. (a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318. Additionally, a defendant may demurrer on the grounds that the pleading is uncertain. Code Civ. Proc., § 430.30, subd. (f). The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” Postley v. Harvey (1984) 153 Cal.App.3d 280, 286. The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .” Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525. “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Code Civ. Proc., § 452; Stevens v. Sup. Ct. (1999) 75 Cal.App.4th 594, 601. “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.” Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.

“Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.

Defendants demur to the Complaint’s “first through fifteenth causes of action.” (See Demurrer [ROA 10], p. 1.) However, the Court notes that the Complaint appears to allege only two causes of action, as follows: (1) intentional tort and (2) civil rights violations.

Therefore, the Court will treat Defendants’ demurrer as a demurrer to the Complaint’s two causes of action.

Meet and Confer Efforts

Code of Civil Procedure, section 430.41 provides that a Defendant, prior to filing a demurrer, “shall meet and confer in person or by telephone” with Plaintiff to determine whether an agreement can be reached regarding the objections to be raised in the demurrer. Code Civ. Proc. § 430.41, subd. (a). Further, as part of the meet and confer process, the demurring Defendant “shall identify all of the specific causes of action that it believes are subject to the demurrer and identify with legal support the basis of the deficiencies.” Code Civ. Proc. § 430.41, subd. (a)(1). The Plaintiff is then to respond by providing “legal support for its position that the pleading is legally sufficient,” or, alternatively, “how the complaint…could be amended.” (Id.) This meet and confer shall occur “at least five days before the date the responsive pleading is due.” Code Civ. Proc. § 430.41, subd. (a)(2). Finally, the demurring Defendant is to file and serve a declaration with the demurrer stating either:

“(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer.

(B) That the party who filed the pleading subject to the demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.”Code Civ. Proc. § 430.41, subd. (a)(3)(A)-(B).

Defendants’ demurrer previously came on for hearing on 09-26-2022, at which time the Court continued the demurrer to 11-07-2022. The Court specifically ruled as follows: “Therefore, the Court CONTINUES Defendants’ demurrer to 11-07-2022 at 1:45 p.m. in Department C15. The parties are to meet and confer regarding the issues raised in Defendants’ demurrer. Defendant is to file a declaration demonstrating compliance with Code of Civil Procedure section 430.41 no later than 10-28-2022.” (See ROA No. 25.)

On 09-26-22, Defendants filed a Declaration of Demurring Party (Declaration) (See ROA No. 27). The Declaration states:

1.(Name of party making declaration): Carren Halabi Cruz was served with

[x] a complaint

[x] other (specify): no resolution was met

In the above-titled action and is filing a [x] demurrer

2.A. [ ] At least five days before the date a responsive pleading was due to be filed (if I am filing a demurrer or motion to strike) or at least five days before filing a motion for judgment on the pleadings (if I am filing a motion for judgment on the pleadings), I met and conferred with the party who filed the pleading

[ ] by telephone [ x] in person and we did not reach an agreement resolving the matters raised by the demurrer, motion to strike, or motion for judgment on the pleadings.

Though unconventional and lacking detail, the Court finds the Declaration is sufficient to fulfill the requirements of Code of Civil Procedure section 430.41.

Merits

Defendants argue the Complaint is insufficiently pled because it fails to state facts sufficient to constitute causes of action against Defendants. (See Demurrer p. 1.)

According to Defendants, a restraining order was entered against Plaintiff on 04-08-22 which provided Plaintiff was not to “harass, attack, strike, threaten, assault (sexually or otherwise) hit, follow, stalk, molest, destroy, personal property, keep under surveillance…” the defendants. (Demurrer, p. 2.) Defendants argue Plaintiff is in violation of the restraining order by “filing a false and malicious lawsuit to extremely [taunt], terrorize, intimidate and cause mental and emotional harm to Defendants.” (Demurrer, p. 4.)

Plaintiff did not file opposition to the Demurrer. The Court notes that on 09-19-2022, Plaintiff filed a First Amended Complaint under ROA No. 31.

Code of Civil Procedure section 472, subdivision (a) states: “A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading.”

Therefore, Plaintiff’s First Amended Complaint does not moot Defendants’ demurrer as Plaintiffs’ opposition was due on 09-12-2022.

Based on these reasons, Caren Halabi Cruz, Julia Maren Cruz and Paul Candelaria Rodriguez’s (Defendants) Demurrer to the Complaint is SUSTAINED, with 20 days leave to amend.

Defendants are to give notice.

Case Management Conference

The parties are required to appear in person or remotely for the Case Management Conference.