Judge: Michael P. Linfield, Case: 22STCV33857, Date: 2023-01-24 Tentative Ruling

Case Number: 22STCV33857    Hearing Date: January 24, 2023    Dept: 34

SUBJECT:         Demurrer

Moving Party:  Defendant Karla D. Greene

Resp. Party:    City National Bank

Defendant’ Greene’s Demurrer is OVERRULED.

PRELIMINARY COMMENTS:

        The Court is concerned that Defendants’ counsel did not properly meet-and-confer prior to filing this demurrer.  Defense counsel has not filed a declaration attesting to her having met-and-conferred with Plaintiff’s counsel, and Plaintiff’s counsel specifically states that such a meeting did not take place.  (See Motion; see Opposition, p. 5:7-24.)  Nonetheless, “A determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.”  (CCP § 430.41(a)(4).) Such a pre-filing meet-and-confer might have saved all parties – and the Court – the time and expense of having to write, oppose and analyze this demurrer.

The Court expects counsel to act more professionally in the future

BACKGROUND:

On October 19, 2022, Plaintiff City National Bank filed its Complaint against Defendants Lila Gause, Inc. and Karla D. Greene on causes of action for breach of written agreement, breach of continuing guarantee, and money lent.

On December 14, 2022, by request of Plaintiff, the Clerk’s Office entered default on Lila Gause, Inc.

On December 16, 2022, Defendant Karla Greene filed her Demurrer.

On December 19, 2022, Defendant Lila Gause, Inc. filed its Answer.

On January 10, 2023, Plaintiff filed its Opposition.

Defendant Greene has not filed a reply or other response to the Opposition.

ANALYSIS:

I.           Legal Standard

A demurrer is a pleading used to test the legal sufficiency of other pleadings. 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; and for the purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be. (Code Civ. Proc., §§ 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 section 430.10 (grounds), section 430.30 (as to any matter on its face or from which judicial notice may be taken), and section 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 (Code of Civil Procedure section 430.10, subdivision (f)), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Id.)

II.        Discussion

Defendant Greene demurs to the second and third causes of action, arguing that they are barred by the statute of limitations set forth in Code of Civil Procedure section 366.2. (Demurrer, pp. 3:3–6, 4:22–23.)

Plaintiff disagrees, arguing: (1) that Defendant filed the Demurrer in violation of Code of Civil Procedure section 430.41 because there was no meet and confer; (2) that a claim of statute of limitations without additional facts that clearly and affirmatively show the action is time barred is not sufficient grounds for sustaining the Demurrer; and (3) that Code of Civil Procedure section 366.2 does not apply to this claim because the Decedent was not in breach when he passed away. (Opposition, pp. 5:6, 5:16–22, 6:3–17, 6:21–22, 8:20–23.)

“If a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply.” (Code Civ. Proc., § 366.2, subd. (a).)

        The Court agrees with Plaintiff’s interpretation of the statute. If the cause of action did not accrue prior to the defendant’s death, then Code of Civil Procedure section 366.2 does not apply.

        Here, Plaintiff alleged that “[a]fter Borrower’s principal died on January 3, 2021, Plaintiff received no further payments due under the Agreement.” (Complaint, ¶ 12.) There are no allegations in the Complaint that a cause of action manifested prior to the Decedent’s death. Rather, the allegations indicate that the causes of action in the Complaint solely arose after Decedent’s death.

III.     Conclusion

Defendant Greene’s Demurrer is OVERRULED.