Judge: Michael Shultz, Case: 22CMCV00532, Date: 2023-03-30 Tentative Ruling

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If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on. 

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Case Number: 22CMCV00532    Hearing Date: March 30, 2023    Dept: A

22CMCV00532 Danielle Morris v. Pamela Egans, Lalonnie Egans

Thursday, March 30, 2023, at 8:30 a.m.

[TENTATIVE] ORDER SUSTAINING DEMURRER TO COMPLAINT WITH 10 DAYS LEAVE TO AMEND

            The Judicial Council form complaint alleges one cause of action for “personal injury.” Defendants demur to the complaint for failure to state a cause of action. Defendants served Plaintiff with the demurrer on December 28, 2022. No opposition has been filed. Defense counsel contacted Plaintiff by mail and telephone to meet and confer about the demurrer. Plaintiff did not respond.

            The bases for demurrer are limited by statute and may be sustained where the pleading fails to state a cause of action (among other grounds). (Code Civ. Proc., § 430.10). A demurrer “tests the sufficiency of a complaint as a matter of law and raises only questions of law.” (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706). The court assumes the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318). The plaintiff must show that the pleading alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43).

            The complaint is impermissibly vague and fails to state any cause of action or the facts from which Plaintiff’s claim arose. The complaint refers to eight additional pages, however, non are attached to the complaint. Additionally, Plaintiff did not attach a form alleging the cause of action as required. (Complaint, ¶ 10.f.).

            Leave to amend is ordinarily given if there is a reasonable possibility that the defect can be cured. (Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302). Therefore, the Court sustains demurrer to the complaint. Plaintiff has 10 days leave to file an amended complaint. (Cal. Rules of Court, rule 3.1320).