Judge: Michelle C. Kim, Case: 22STCV36475, Date: 2023-04-13 Tentative Ruling

Case Number: 22STCV36475    Hearing Date: April 13, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

On November 18, 2022, Plaintiff Loretta Ann McIlwain (“Plaintiff”) filed this action against Defendant Michelle Proyect (“Defendant”).  The complaint filed on Judicial Council form PLD-PI-001 states that causes of action for general negligence and premises liability are attached.  However, there are no attachments with any causes of action attached to the complaint.  Additionally, the complaint includes a prayer for punitive damages. 

Defendant now demurs to the complaint arguing the complaint fails to state any claim against Defendant and is uncertain.  Defendant avers that other than mark the boxes for premises liability and general negligence, the complaint fails to set forth any allegations to support any claim for liability against Defendant.  The demurrer is unopposed. 

2. Demurrer

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 (complaint, answer or cross-complaint).  (CCP §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true.  (Donabedian, 116 Cal.App.4th at 994.)

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, 318; Donabedian, supra, 116 Cal.App.4th at 994.)  No other extrinsic evidence can be considered.  (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery.  (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.)  The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action.  (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action.  (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

a. Meet and Confer

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.  (CCP § 430.41(a).) 

Defendant fulfilled this requirement prior to filing the demurrer.  (Demurrer Hall Decl. ¶¶ 3-5.)

b. Analysis

As Defendant contends, the complaint fails to allege any specific elements or facts to support a claim against Defendant.  Plaintiff did not attach any cause of action form to the complaint, and there are otherwise no factual allegations in the complaint regarding the claims or harms suffered by Plaintiff.  Moreover, there are absolutely no allegations concerning any specific party to apprise Defendant of the allegations against Defendant. 

The Judicial Council pleading forms have simplified the art of pleading, and have made the task of drafting much easier. Nevertheless, in some cases more is required than merely placing an “X” in a box. [Citation.] “Adoption of Official Forms for the most common civil actions has not changed the statutory requirement that the complaint contain 'facts constituting the cause of action.' ” [Citation.] Thus, in order to be demurrer-proof, a form “complaint must contain whatever ultimate facts are essential to state a cause of action under existing statutes or case law.” [Citation.]

(People ex rel. Dep't of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1484.) 

            The complaint, thus, fails to state any cause of action against Defendant.

            Defendant’s demurrer to the complaint is sustained.  Because this is the first challenge to the complaint, and Plaintiff can seemingly cure the above defects, the Court will grant leave to amend.

Defendant’s demurrer is sustained with twenty (20) days leave to amend.

3. Motion to Strike

            In light of the ruling above sustaining Defendant’s demurrer to the entire complaint, the Court finds the motion to strike the complaint moot. 

Defendant is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 13^th day of April 2023