Judge: Nathan Vu, Case: 2021-01220392, Date: 2022-10-10 Tentative Ruling

Please Note: The hearing on this matter has been changed to 8:30 A.M.

Demurrer

The court STRIKES the Second Amended Complaint filed on 08/08/2022.

Defendant Huntington Beach Police Department’s demurrer to the Plaintiff Dariusz Kadziolka’s Amended Complaint is SUSTAINED as to the entire Amended Complaint, with leave to amend.

If Plaintiff Dariusz Kadziolka wishes to file an amended complaint, he must file and serve the amended complaint by 11/28/2022.

Defendant Huntington Beach Police Department demurs to Plaintiff Dariusz Kadziolka’s Amended Complaint.

Filing of the Second Amended Complaint

As an initial matter, the court must address the issue of Plaintiff’s Second Amended Complaint (SAC). If the SAC stands, then Defendant’s Demurrer to the Amended Complaint becomes moot.

On 05/05/2022, Plaintiff filed a Motion for Leave to File a Second Amended Complaint. (ROA #33.) The court denied this motion on 07/11/2022 without prejudice due to the Plaintiff’s failure to comply with the procedural requirements of Rule of Court Rule 3.1324. (ROA #47.) Despite the court’s 07/11/2022 ruling, Plaintiff filed a Second Amended Complaint on 08/08/2022. (ROA #56.)

The court is authorized to “[s]trike 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.” (Civil Proc. Code, § 436, subd. (b); see also Ricard v. Grobstein, Goldman, Stevenson, Siegel, LeVine & Mangel (1992) 6 Cal.App.4th 157, 162 [court may strike pleading “not filed in conformity with its prior ruling”].) The court may do so “upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper.” (Civil Proc. Code, § 436.)

Here, Plaintiff filed the SAC without leave of court and in direct contravention of the court’s order denying leave to file. Therefore, the court strikes the SAC on the court’s own motion, pursuant to Civil Procedure Code section 436.

This leaves the Amended Complaint filed on 04/21/2022 as the operative pleading in this action. (ROA #32.) The demurrer is therefore not moot.

Meet and Confer

Civil Procedure Code section 430.41(a)(2) requires that “[t]he parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading . . . .” (Civil Proc. Code, § 430.41, subd. (a)(2), emphasis added.) In this case, Defendants did not meet and confer until one day before the extended response deadline and did not meet and confer at all on the 10th cause of action.

However, failing to meet and confer is not grounds to overrule or sustain a demurrer. (See Civil Proc. Code, § 430.41, subd. (a)(4).) Nevertheless, “[i]f, upon review of a declaration under section 430.41, subdivision (a)(3), a court learns no meet and confer has taken place, or concludes further conferences between counsel would likely be productive, it retains discretion to order counsel to meaningfully discuss the pleadings with an eye toward reducing the number of issues or eliminating the need for a demurrer, and to continue the hearing date to facilitate that effort.” (Dumas v. Los Angeles County Board of Supervisors (2020) 45 Cal.App.5th 348, 356, fn. 3.)

Here, the court will exercise its discretion to consider the demurrer despite the failure to properly meet and confer. There is no reason to believe that further conferences would likely be productive. The matter is fully briefed and the court is able to rule on the issues presented in the demurrer.

Standards for Demurrer

In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations. (Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.)

Questions of fact cannot be decided on demurrer. (Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.) Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 fn.7.)

Although courts should take a liberal view of inartfully drawn complaints, (see Civil Proc. Code, § 452), it remains essential that a complaint set forth the actionable facts relied upon with sufficient precision to inform the defendant of what plaintiff is complaining, and what remedies are being sought, (Leek v. Cooper (2011) 194 Cal.App.4th 399, 413). Bare conclusions of law devoid of any facts are insufficient to withstand demurrer. (Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 481; see Civil Proc. Code, § 425.10, subd. (a).)

“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.) Demurrers for uncertainty “are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) “[A] demurrer for uncertainty will not be sustained where the facts claimed to be uncertain or ambiguous are presumptively within the knowledge of the demurring party.” (Ching (Yee) v. Dy Foon (1956) 143 Cal.App.2d 129, 136.)

Merits of the Demurrer

Although Plaintiff is representing himself in pro per, a self-represented litigant is “treated like any other party and is entitled to the same . . . consideration” as other litigants and attorneys, but no greater consideration. (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.)

The Amended Complaint contains only a request from Plaintiff for time to amend his complaint and to obtain counsel. (ROA #32.) Even taking a liberal view of the Amended Complaint does not contain any legal theory upon which liability can be based and does not contain any factual allegations relating to any legal theory.

However, there is a possibility that Plaintiff will be able to amend the complaint to address the issues raised in the demurer. Therefore, the court will sustain the demurrer with leave to amend.

The court notes that the Second Amended Complaint appears to suffer from some of the same defects asserted by Defendant in its demurrer to the Amended Complaint. Thus, Plaintiff is encouraged to seek the assistance of legal counsel and the court will give Plaintiff sufficient time to seek legal counsel before he must file an amended complaint. Plaintiff may also wish to refile his claim(s) as a Civil Limited case or as a Small Claims case, where there may be fewer procedural requirements.

Defendant shall give notice of this ruling.