Judge: Michael P. Linfield, Case: 23STCV16129, Date: 2023-09-21 Tentative Ruling
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Case Number: 23STCV16129 Hearing Date: September 21, 2023 Dept: 34
SUBJECT: Demurrer
Moving Party: Defendants
The Agent and Company, and Liliana Barajas
Resp. Party: Plaintiff Ralitsa Malcheva, in propria
persona
The hearing on the Demurrer is CONTINUED to ________
On July 11, 2023, Plaintiff Ralitsa Malcheva, in propria
persona, filed her Complaint against Defendants Armando Jimenez, Jimenez
Enterprises LLC, Jonathan Bergman, Bergman Home Inspection, Liliana Barajas
(erroneously sued as Lily Barajas), The Agent and Company, and Kurt Kuebler.
The causes of action arise after Plaintiff’s purchase of real property.
On August 25, 2023, Defendants The Agent and Company and
Liliana Barajas (“Defendants”) filed their Demurrer to the Complaint.
On September 7, 2023, Plaintiff filed her “Reply.” (The
Court will refer to this document as the “Opposition.”)
On September 13, 2023, Defendants filed their Reply.
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 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 Cal., 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
Defendants demur to Plaintiff’s first cause of action (breach of
contract) and seventh cause of action (violations of Civil Code sections 1102,
et seq.).
Among other things, Plaintiff requests
that the Court continue the hearing on the Demurrer because: (1) not all
parties have had a chance to prepare; (2) there is potential discussion of
expedited settlement; and (3) it was also requested by Defendants Armando
Jimenez and Jimenez Enterprises, LLC. (Opposition, p. 2:2–13.)
Defendants do not address the request
for continuance in their Reply.
The Court agrees with Plaintiff that a
continuance of the hearing on the Demurrer would be appropriate.
III.
Conclusion
The hearing on the Demurrer is CONTINUED to _____________.