Judge Randy Rhodes, Case 22CHCV00840 2023-04-11 Tentative Ruling

Judge: Randy Rhodes, Case: 22CHCV00840, Date: 2023-04-11 Tentative Ruling

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Case Number: 22CHCV00840 Hearing Date: April 11, 2023 Dept: F51

Dept. F-51¿

Date: 4/11/23

Case #22CHCV00840

DEMURRER

Demurrer without Motion to Strike Filed: 2/6/23

MOVING PARTY: Defendant Town Ridge Homes Association (“Defendant”)

RESPONDING PARTY: Plaintiff Aric Cho, in pro per (“Plaintiff”)

NOTICE: OK

RELIEF REQUESTED: Defendant demurs to Plaintiff’s entire first amended complaint (“FAC”).

TENTATIVE RULING: The demurrer is sustained without leave to amend, and the action is therefore dismissed.

I. BACKGROUND

Plaintiff alleges that he was injured as a result of a dangerous condition on property associated with Defendant, a homeowner’s association.

On 10/11/22, Plaintiff filed his original complaint, alleging against Defendant the sole cause of action for dangerous condition on property. On 11/29/22, Defendant filed a demurrer to Plaintiff’s original complaint, which the Court granted on 1/18/23 with 30 days leave to amend.

On 1/18/23, Plaintiff filed his FAC. On 2/6/23, Defendant filed the instant demurrer. On 2/21/23, Plaintiff filed his opposition. No reply has been filed to date.

II. ANALYSIS

Meet-and-Confer

Before filing its demurrer, “the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc. § 430.41, subd. (a).) The demurring party must file and serve a meet and confer declaration stating either: “(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer;” or “(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Id. at subd. (a)(3).)

Here, counsel for Defendant declares that on 2/3/23, he sent a letter to Plaintiff by email detailing the issues raised in the instant demurrer. (Exs. B and C to Decl. of Adam G. Byrne.) The parties discussed further by email, but were unable to come to a resolution. (Ibid.)

Therefore, counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a).

Demurrer

As a general matter, a¿party may respond to a pleading against it by demurrer on the basis of any single or combination of eight enumerated grounds, including¿that¿“the pleading does not state facts sufficient to constitute a cause of action” or is uncertain, meaning “ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) and (f).)

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 pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc.¿v.¿Accountants, Inc. Servs.¿(2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda¿(2007) 147 Cal.App.4th 740, 747.)

Here, Defendant¿demurs to Plaintiff’s FAC pursuant Code of Civil Procedure section 430.10, subdivisions¿(e) and (f),¿arguing that the pleading fails¿to allege facts sufficient to¿state¿a cause of action and is uncertain. Defendant further demurs to the complaint on the bases that it does not comply with statutory pleading form requirements and is time-barred by the relevant statute of limitations.

A. Failure to State Facts to Constitute a Cause of Action

Plaintiff’s FAC states that Defendant “uses different street names for my him in business,” “is liable for everything inside their gate,” and that “the dangerous conditions to property is continual and has been for over 20 years.” (FAC 1:18–23.)

As Defendant argues, such ambiguous statements in Plaintiff’s FAC fail to state facts to support a cause of action, and fail to cure the defects raised in the previous demurrer. As set forth in the Court’s ruling on the demurrer to the original complaint, the FAC again “fails to state facts (1) connecting Defendant to the property; (2) detailing any conduct by Defendant; or (3) describing the mechanism by which he was injured.” (1/18/23 Minute Order, p. 3.) Nor does Plaintiff’s opposition indicate how the FAC successfully states the necessary facts to constitute a cause of action.

Based on the foregoing, the Court finds that Plaintiff has not successfully alleged facts to support a cause of action against Defendant. As such, Defendant’s demurrer is sustained on this ground.

Uncertainty

Generally speaking, “demurrers for uncertainty are disfavored and thus are strictly construed because ambiguities can reasonably be clarified under modern rules of discovery. Such demurrers are granted only if the pleading is so incomprehensible that defendant cannot reasonably respond.” (Cal.Jur.3d § 137.) “Where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.” (Williams v. Beechnut Nutrition Corp. (2011) 185 Cal.App.3d 135, 139 fn.2.)

Here, Defendant argues that the FAC is uncertain pursuant to Code of Civil Procedure section 430.10, subdivision (f) because it “fails to provide any semblance of a legal or factual basis to support Plaintiff’s claims.” (Dem. 4:10–11.) As Defendant observes, the complaint fails to state the dates, location, and method by which Plaintiff’s injuries were allegedly sustained, thereby making the pleading “so incomprehensible that defendant cannot reasonably respond.” (Cal.Jur.3d § 137.)

Accordingly, the demurrer is sustained on this ground.

C. Leave to Amend

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Here, the Court notes that this is the second demurrer brought in this action, and Plaintiff has failed to amend his complaint in accordance with the Court’s previous ruling. Moreover, Plaintiff has made no attempt to show the Court how he may be able to further successfully amend his FAC to state a valid cause of action against Defendant. Accordingly, the Court denies Plaintiff leave to amend.

CONCLUSION

The demurrer is sustained without leave to amend, and the action is therefore dismissed. (Code Civ. Proc. § 581, subd. (f).)