Judge Peter A. Hernandez, Case 21PSCV00919 2022-12-08 Tentative Ruling

Judge: Peter A. Hernandez, Case: 21PSCV00919, Date: 2022-12-08 Tentative Ruling

Case Number: 21PSCV00919 Hearing Date: December 8, 2022 Dept: O

Defendant Wenxiang Xu’s Demurrer to Plaintiffs Yuzheng Chen and Jixian Han’s First Amended Complaint is OVERRULED. The court will strike out the First Amended Complaint on its own motion pursuant to Code of Civil Procedure § 436 [see below].

Background

This is a landlord/tenant dispute. On November 9, 2021, Plaintiffs Yuzheng Chen and Jixian Han (“Plaintiffs”) filed a complaint, asserting a cause of action against Defendants Ruzhuan Cao (“Cao”), Wenxiang Xu (“Xu”) and Does 1-2 for:

1. Breach of Contract

On March 24, 2022, the court ordered Cao dismissed without prejudice.

On November 7, 2022, Plaintiffs filed a First Amended Complaint (“FAC”), asserting a cause of action against Defendants Cao, Xu, Christopher D. Lee and Does 1-3 for:

1. Breach of Contract

The Final Status Conference is set for January 9, 2024. Trial is set for January 23, 2024.

Legal Standard

A demurrer may be made on grounds that (1) the court has no jurisdiction of the subject of the cause of action alleged in the pleading; (2) the person who filed the pleading does not have the legal capacity to sue; (3) there is another action pending between the same parties on the same cause of action; (4) there is a defect or misjoinder of parties; (5) the pleading does not state facts sufficient to constitute a cause of action; (6) the pleading is uncertain and/or that (7) in an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct. (Code Civ. Proc., § 430.10, subds. (a)-(g).)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Discussion

Xu demurs to Plaintiffs’ FAC, on the basis that it was filed in violation of Code of Civil Procedure § 472, without leave to amend from the court and/or any stipulation.

Xu has utilized an improper statutory vehicle in attacking Plaintiffs’ FAC. A demurrer is directed only to defects apparent on the face of the pleading or via proper judicial notice. Xu has not articulated any grounds for his demurrer as set forth in Code of Civil Procedure § 430.10; as such, Xu’s demurrer is overruled.

With that said, “[t]he court may, . . . at any time in its discretion, and upon terms it deems proper: (a) [s]trike out any irrelevant, false, or improper matter inserted in any pleading[;] (b) [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.” (Code Civ. Proc., § 436.)

Here, Plaintiffs filed their original complaint on November 9, 2021. Xu filed his answer on January 24, 2022. Plaintiffs’ FAC was filed on November 7, 2022. Pursuant to Code of Civil Procedure § 472, subdivision (a), “[a] party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties.”

Plaintiffs did not obtain leave from the court to amend their complaint, nor did they apparently obtain a stipulation to do so from Xu; accordingly, the court, on its own motion, will strike out Plaintiffs’ FAC pursuant to Code of Civil Procedure § 436.