Judge Michael P. Linfield, Case 21STCV13158 2022-08-29 Tentative Ruling

Judge: Michael P. Linfield, Case: 21STCV13158, Date: 2022-08-29 Tentative Ruling

Case Number: 21STCV13158 Hearing Date: August 29, 2022 Dept: 34

SUBJECT: Demurrer of Defendant Tacos El Arco to the Plaintiff’s First Amended Complaint

Moving Party: Defendant Tacos El Arco

Resp. Party: Plaintiff David Ramirez-Europa

SUBJECT: Defendant Tacos El Arco’s Motion to Strike Damages from Plaintiff’s First Amended Complaint

Moving Party: Defendant Tacos El Arco

Resp. Party: None

Defendant Tacos El Arco’s Demurrer to Plaintiff David Ramirez-Europa’s First Amended Complaint is SUSTAINED without leave to amend.

Given the Court’s ruling sustaining the demurrer without leave to amend, Defendant Tacos El Arco’s Motion to Strike is MOOT.

I. BACKGROUND

On April 6, 2021, Plaintiff David Ramirez-Europa filed a complaint against Defendant Tacos El Arco alleging the following causes of action:

1. General Negligence

2. Intentional Tort

3. Trespassing

4. Translation

5. Profiting

6. Slaving

7. Vandalizing

On May 25, 2022, Defendant Tacos El Arco demurred jointly and severally to Plaintiff’s Complaint in its entirety.

On June 29, 2022, the Court sustained with leave to amend Defendant Tacos El Arco’s Demurrer to Plaintiff David Ramirez-Europa’s Complaint.

On July 1, 2022, Plaintiff David Ramirez-Europa filed a First Amended Complaint against Defendant Tacos El Arco alleging the following causes of action:

1. General Negligence

2. Intentional Tort

3. Translating

4. Trespassing

5. Profiting

6. Slavery

7. Vandalization

On July 29, 2022, Defendant Tacos El Arco demurred jointly and severally to Plaintiff David Ramirez-Europa entire First Amended Complaint.

On July 29, 2022, Defendant Tacos El Arco moved to strike the following allegations from Plaintiff David Ramirez-Europa First Amended Complaint:

· Page Two. Line 9 stating: "After I David Ramirez-Europa presented legal documentation authorized by the American government to Tacos El Arco representatives as they requested and noticing complete deficiency in their mental understanding, it is necessary to raise the initial penalty of $2,000,000 (two million dollars) to $ 16,000,000 (sixteen million dollars) and Credential Revocation for everyone involved in this legal case to compensate my time in a peaceful manner "

· Page Two. line 13 stating: "Also, I can share everyone's involved illness name once the American government pays for my legal rights"

· Page Two Line 16 stating: "Every word employed by the Tacos El Arco defendants in my case will cost $ 250,000 (two hundred fifty thousand dollars) since they lack of language knowing America is already independent"

II. ANALYSIS

A. Legal Standard

1. Demurrer

A demurrer is a pleading used to test the legal sufficiency of other pleadings. (Cty. of Fresno v. Shelton (1998) 66 Cal.App.4th 996, 1008–09; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 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. (Unruh-Haxton v. Regents of Univ. of California (2008) 162 Cal.App.4th 343, 365, as modified (May 15, 2008).) For purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be. (CCP §§ 422.10, 589.)

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 (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under Code of Civil Procedure § 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).

A demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted. A demurrer for uncertainty may be brought pursuant to Code of Civil Procedure section 430.10, subdivision (f). “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) “In general, ‘demurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.’” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)

2. Motion to Strike

"Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof . . ..” (CCP § 435, subd. (b)(1).) "The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court." (CCP § 436.) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice." (CCP § 437, subd. (a).)

B. Discussion

1. Demurrer

Plaintiff First Amended Complaint alleges:

“I am David Ramirez-Europa representing to myself and my MEXICAN IDENTITY with legal documentation authorized by the American government in 2007 and 2017 to claim all the rights over MEXICO and AMERICA and since there is not way to understand from Tacos El Arco defendants to pay for all the penalties. (FAC, p. 1:14-16 [typos and EMPHASIS in original].)

In his opposition, Plaintiff appears to believe that the was granted this right “as the Proprietor over MEXICO and AMERICA 1SBN # 978-1-68256-850-7, ISBN # 978-1-61764-663-8.” (Opposition to Demurrer, p. 1:14-17.)

(The Court, on its own motion, takes judicial notice that these ISBN numbers refer to two books, written by Plaintiff David Europa, entitled “Centinela a la Distancia” and “Linguistic Formula: A+F=L Mexico Desegregated Identity.” (See https://books.litfirepublishing.com/product/linguistic-formula-afl-mexico-desegregated-identity/; https://www.todostuslibros.com/libros/centilena-a-la-distancia_978-1-61764-663-8.)

However, there are no facts alleged in Plaintiff’s First Amended Complaint. The Court understands that to the pro per litigant, “interrogatories, requests for admissions, law and motion proceedings, and the like” are “baffling devices.” (Bruno v. Superior Court (1990) 219 Cal.App.3d 1359, 1363, quoting Burley v. Stein (1974) 40 Cal.App.3d 752, 755, fn. 3.) The FAC fails to state facts sufficient to constitute a cause of action under CCP § 430.10(e).

It is true that a trial court “must ignore confusing or erroneous labels attached to causes of action by an inept pleader and instead determine whether the complaint, liberally construed, alleges facts sufficient to constitute a cause of action under any legal theory.” (Andreacchi v. Price Co. (1997) 53 Cal.App.4th 646, 651.) However, Plaintiff David Ramirez-Europa’s First Amended Complaint fails to state facts sufficient to constitute a cause of action under any legal theory. The Court has read Plaintiff’s First Amended Complaint and finds that there are no allegations or ultimate facts pled that are pertinent to any legal theory.

“The plaintiff is required only to set forth the essential facts of his case with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action.” (Alch v. Superior Court (2004) 122 Cal.App.4th 339, 382.) Plaintiff David Ramirez-Europa has failed to meet this minimal burden in both his Complaint and his First Amended Complaint.

Instead, Plaintiff appears to believe that he is entitled to sue on behalf of Mexico and America. He is not. Plaintiff claims that

“After I David Ramirez-Europa presented legal documentation authorized by the American government to Tacos El Arco representatives as they requested and noticing complete deficiency in their mental understanding, it’s necessary to raise the initial penalty of $2,000,000 (two million: dollars) to $16,000,000 (sixteen million dollars) and Credential Revocation for everyone involved in this legal case to compensate my time in a peaceful manner.

“Also, I can share everyone’s involved illness name once the American government pays for my legal rights

“Every word employed by the Tacos El Arco defendants in my case will cost $250,000 (two hundred fifty thousand dollars) since they lack of language knowing America is already independent. (FAC, p. 1:14-16; p. 2:9-16 [typos, EMPHASIS and punctuation in original].)

A judge should be able to dismiss claims “that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff’s recent trip to Pluto, or experiences in time travel.” (Ashcroft v. Iqbal, 556 U.S. 662, 696 [129 S. Ct. 1937, 1959, 173 L. Ed. 2d 868] (2009) J. Souter, dis.)

Trial courts have the “flexibility to exercise historic inherent authority to fashion a remedy as necessary to protect [defendants’] rights to be free from the monetary expense and other costs of responding to appellant’s frivolous claims that cannot avoid being categorized as ‘fantastic,’ ‘delusional,’ or ‘fanciful.’” (Huang v. Hanks (2018) 23 Cal.App.5th 179, 182 [cleaned up].)

Leave to amend should not be granted unless plaintiff can establish that facts exist sufficient to state a cause of action. (Community Assisting Recovery, Inc. v. Aegis Security Ins. Co. (2001) 92 Cal. App. 4th 886, 895.) Plaintiff has the burden of establishing in what manner it would be possible to amend the complaint. (Fuller v. First Franklin Financial Corp (2013) 216 Cal.App.4th 955, 962-963.)

Unless Plaintiff can satisfy this burden at the hearing on this matter, the Court will SUSTAIN the demurrer without leave to amend.

2. Motion to Strike

The Court would normally strike the requested language from Plaintiff David Ramirez-Europa’s First Amended Complaint pursuant to CCP § 437(a). However, since the Court is sustaining the demurrer without leave to amend, the motion to strike is MOOT.

III. CONCLUSION

Defendant Tacos El Arco’s Demurrer to Plaintiff David Ramirez-Europa’s First Amended Complaint is SUSTAINED without leave to amend.

Given the Court’s ruling, Defendant Tacos El Arco’s Motion to Strike is MOOT.