Judge: Randy Rhodes, Case: 22CHCV01429, Date: 2023-04-11 Tentative Ruling
Case Number: 22CHCV01429 Hearing Date: April 11, 2023 Dept: F51
Dept. F-51¿
Date: 4/11/23
Case #22CHCV01429
¿
DEMURRER
Demurrer without Motion to Strike Filed: 2/3/23
MOVING PARTY: Defendant Motion Picture Association,
Inc. (“Defendant”)
RESPONDING PARTY: Plaintiff Aric Cho, in pro per (“Plaintiff”)
NOTICE: OK
RELIEF REQUESTED: Defendant demurs to Plaintiff’s
entire complaint.
TENTATIVE RULING: The demurrer is sustained with 30
days leave to amend. Defendant’s request for judicial notice is denied.
I.
BACKGROUND
Plaintiff alleges that he was
injured by the content of the film “Avatar: The Way of Water” (“Avatar 2”),
which he viewed on 12/16/22.
On 12/19/22, Plaintiff filed his
complaint against Defendant, an entertainment trade association. On 2/3/23,
Defendant filed the instant demurrer. On 2/14/23, Plaintiff filed his
opposition. On 3/30/23, Defendant filed its reply.
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 1/20/23, he met and conferred with Plaintiff by telephone to
discuss the issues raised in the instant demurrer, but the parties were unable
to reach an agreement. (Decl. of W. Joseph Denapole, ¶¶ 2–3.)
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 complaint 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.
A.
Procedural Defects
The California Rules of Court,
Title 2, Chapter 1 lists the various form and format requirements of papers
presented for filing in this court, including that “each page must be numbered
consecutively at the bottom,” “line numbers must be placed at the left margin,” and that separate causes of action must be
clearly stated. (Cal. Rules of Ct., rules 2.108, 2.109, and 2.112.)
As a preliminary matter, the Court
notes that here, Plaintiff’s complaint fails to meet the format requirements
under the California Rules of Court, including that it does not include an
appropriate cover page, page numbers, line numbers, nor separate causes of
action. Plaintiff is reminded that failure to comply with these requirements in
the future may result in papers being rejected, matters being placed off
calendar, matters being continued so documents can be resubmitted in compliance
with these requirements, documents not being considered and/or the imposition
of sanctions.
B.
Failure to State Facts to Constitute a
Cause of Action
In his complaint, Plaintiff alleges
that “everything that is part and associated with the avatar 2 water movie is
liable for the product. The product is slander against me and society.” (Compl.
p. 4.) To the extent that Plaintiff seeks to bring a cause of action for
slander, or oral defamation, the elements of a cause of action for defamation
are: “(1) a publication that is (2) false, (3) defamatory, (4) unprivileged,
and (5) has a natural tendency to injure or causes special damage. The
defamatory statement must specifically refer to, or be of and concerning, the
plaintiff.” (John Doe 2 v. Superior Court
(2016) 1 Cal.App.5th 1300, 1312.)
Here, as Defendant observes,
Plaintiff’s complaint fails to state facts sufficient to constitute a cause of
action against it because Plaintiff fails to “allege facts identifying any
specific conduct by MPA giving rise to” his claims. (Dem. 11:4–6.) The majority
of Plaintiff’s complaint describes his impressions of the content depicted in
Avatar 2, which does not sufficiently state facts to support a cause of action
for defamation. In fact, as Defendant notes, the complaint “fails to specify
which statutes and/or common laws Plaintiff contends to have been violated.” (Id.
at 11:6–7.)
Based on the foregoing, the Court
finds that Plaintiff has not successfully alleged facts to support a cause of
action for defamation against Defendant. As such, Defendant’s demurrer is
sustained on this ground.
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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 complaint
is uncertain pursuant to Code of Civil Procedure section 430.10, subdivision
(f) because it “does not contain any indication of: (1) what cause(s) of action
Plaintiff is asserting; (2) against whom Plaintiff is directing his
allegations; (3) what, if any, of Plaintiff’s allegations relate to MPA; or (4)
what relief Plaintiff is purporting to seek, and the basis therefor.” (Dem. 6:7–10.)
As Defendant observes, the complaint fails to state the conduct which allegedly
caused Plaintiff’s injuries, the injuries sustained, and the relief requested,
thereby making the pleading “so incomprehensible that defendant cannot
reasonably respond.” (Cal.Jur.3d § 137.)
Accordingly, the demurrer is sustained
on this ground.
D.
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, Defendant argues that leave
to amend must be denied because Defendant is an entertainment trade
association, and “not a producer of Avatar 2 and was not involved in any way in
the production of that film. … Thus, Plaintiff cannot in good faith allege that
MPA could be subject to liability for any claims over the content of Avatar 2.”
(Dem. 11:21–26.) In opposition, Plaintiff contends that Defendant “is liable
for all the damages created; rating movies and using legal name in the movie
product without vote defaming me is wrong.” (Pl.’s Opp. 3:3–5.)
The Court notes that this is the
first demurrer brought in this action. Accordingly, under the Court’s liberal
policy of granting leave to amend, the Court grants Plaintiff 30 days leave to
amend the complaint to cure the defects set forth above.
CONCLUSION
The demurrer is sustained with 30 days leave to amend.