Judge Olivia Rosales, Case 22NWCV00238 2022-12-29 Tentative Ruling

Judge: Olivia Rosales, Case: 22NWCV00238, Date: 2022-12-29 Tentative Ruling

Case Number: 22NWCV00238 Hearing Date: December 29, 2022 Dept: SEC

COLEMAN v. GARCIA

CASE NO.: 22NWCV00238

HEARING: 12/29/22

JUDGE: LEE W. TSAO

TENTATIVE ORDER

Defendant KEVIN GARCIA’s unopposed Demurrer to Plaintiff’s Complaint is SUSTAINED without leave to amend.

Moving Party to give Notice.

No Opposition filed as of December 27, 2022. Due by December 15, 2022. (CCP §1005(b).)

This action was filed by Plaintiff MYESHA COLEMAN (pro per) (“Plaintiff”) on March 30, 2022. Plaintiff alleges that an advertisement outside of a Target store in Lakewood, California depicted Plaintiff’s 25-year-old son without either her or her son’s permission. Plaintiff further alleges that the advertisement has caused her to be harassed, followed home from work, receive unwanted phone calls, and have her photos taken by strangers. Plaintiff alleges that this has caused her to isolate, seek therapy, take medication, and suffer personal injuries.

Plaintiff’s Complaint asserts the following causes of action: (1) False Advertising; (2) Nuisance; (3) Violation of Federal Law Title 17 (Copyright Infringement); and (4) Fraud Impersonation Pursuant to Penal Code §529.

All of Plaintiff’s Claims are pled against Target Employee KEVIN GARCIA (“Defendant”). Target has not been named a party to this action.

Defendant specially and generally demurs to the entire Complaint.

Uncertainty

Defendant specially demurs to Plaintiff’s Complaint, arguing that each cause of action is fatally uncertain. The Court agrees.

“A special demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made.” (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145-146.) However, demurrers will be sustained where the pleading is so bad that the defendant cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of Calif. Inc. (1993) 14 Cal.App.4th 612, 616.)

Here, the Court finds that the Complaint contains no facts to support any cause of action alleged against Defendant Garcia. As alleged, it is completely uncertain what the source of Defendant Garcia’s liability may be.

The demurrer is properly sustained on the basis of uncertainty.

Standing

Standing is a threshold element required to state a cause of action and, thus, lack of standing may be raised by demurrer. To have standing to sue, a person must “have a real interest in the ultimate adjudication because he has suffered or is about to suffer any injury of sufficient magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented. Code of Civil Procedure section 367 establishes the rule that every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute. A real party in interest is one who has an actual and substantial interest in the subject matter of the action and who would be benefitted or injured by the judgment in the action. [Internal Citations Omitted.]” (Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031-1032.)

Taking Plaintiff’s allegations as true, for purposes of demurrer, it is unclear how she has standing to sue for claims arising out of Target’s use of her son’s image without his consent. As argued in the instant Demurrer, Plaintiff’s son is not a minor and there is no indication that Plaintiff is entitled to bring suit on behalf of her son in some representative capacity.

The demurrer to the entire Complaint is also properly sustained based upon Plaintiff’s lack of standing.

For the reasons stated above, Defendant’s unopposed demurrer is SUSTAINED without leave to amend. The Court declines to address Defendant’s remaining arguments.