Judge: Robert S. Draper, Case: 22STCV10827, Date: 2023-05-22 Tentative Ruling
Case Number: 22STCV10827 Hearing Date: May 22, 2023 Dept: 78
Superior Court of California
County of Los Angeles
Department 78
JULIANA PAYNE,
Plaintiff;
vs.
NAIMA RICHARDSON, et al.,
Defendants. Case No.: 22STCV10827
Hearing Date: May 22, 2023
[TENTATIVE] RULING RE:
DEFENDANT TIFFANY ELDER’S DEMURRER TO THE FIRST AMENDED COMPLAINT.
Defendant Tiffany Elder’s Demurrer to the First Amended Complaint is STRICKEN without prejudice to Elder properly filing a Motion for Judgment on the Pleadings on the same grounds.
FACTUAL BACKGROUND
This is an action for defamation and harassment. The operative First Amended Complaint (“FAC”) alleges as follows.
Plaintiff Juliana Payne (“Plaintiff”) is a children’s book author and filmmaker. (FAC ¶ 4.) Through her work, Plaintiff became acquainted with Defendant Naima Richardson, A.K.A. Kitty Bradshaw (“Richardson”). (FAC ¶ 5.) Plaintiff hosted Richardson on Plaintiff’s Twitch stream. (FAC ¶ 9.) Shortly thereafter, Richardson’s behavior toward Plaintiff changed. (FAC ¶ 14.)
On April 1, 2021, Richardson hosted a Twitch Stream on which Richardson made numerous malicious statements of purported facts about Plaintiff that Richardson knew to be false. (FAC ¶ 17.) Richardson began to regularly post on social media that Plaintiff was stalking Richardson. (FAC ¶ 20.) Richardson has continued to harass and defame Plaintiff, despite Plaintiff’s attempts to rebut the information.
PROCEDURAL HISTORY
On March 30, 2022, Plaintiff filed the Complaint asserting six causes of action:
1. Harassment;
2. Invasion of Privacy – False Light;
3. Defamation;
4. Intentional Infliction of Emotional Distress;
5. Intentional Interference with Prospective Economic Advantage; and,
6. Injunctive Relief.
On April 15, 2022, Plaintiff file the operative First Amended Complaint, adding a cause of action for Negligence.
On May 2, 2022, Plaintiff filed a Doe Amendment naming Defendant Tiffany Elder (“Elder”) as Doe Number 2.
On December 13, 2022, Elder filed an Answer.
On February 17, 2023, Elder filed the instant Demurrer to the First Amended Complaint.
As of May 17, 2023, no Opposition has been filed.
DISCUSSION
I. DEMURRER
Defendant Tiffany Elder demurs to the First Amended Complaint pursuant to code of civil procedure section 430.10.
Elder’s Demurrer is procedurally improper for two reasons.
First, Elder filed the instant Demurrer two months after filing an Answer to the First Amended Complaint.
Where a defendant has previously filed an answer and the statutory time to file a demurrer has expired, the proper method to challenge the sufficiency of the complaint’s allegations is a motion for judgment on the pleadings brought pursuant to Code of Civil Procedure section 438. (See Code Civ. Proc. § 438(f)(2) [“The motion provided for in this section may be made only after. . . the defendant has already filed his or her answer to the complaint and the time for the defendant to demur to the complaint has expired]”; See also Ion Equipment Corp. v. Nelson (1980) 110 Cal. App.3d 868 [“A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed”].)
Here, as Elder has already filed an Answer, and as the time to file a demurrer under Code of Civil Procedure section 430.10 has expired, the instant motion is properly brought under Code of Civil Procedure section 438.
Second, Elder failed to attest as to any attempt to meet and confer with Plaintiff prior to filing the instant motion.
“Before filing a demurrer pursuant to this chapter, 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(a).)
As the instant motion is not filed in conformity with the laws of this state, the Court strikes Elder’s Demurrer to the First Amended Complaint pursuant to Code Civ. Proc. § 436(b). However, this ruling does not address the merits of Elder’s Demurrer and does not preclude Elder from filing a Motion for Judgment on the Pleadings pursuant to Code of Civil Procedure section 438 on these same grounds.
CONCLUSION
Defendant Tiffany Elder’s Demurrer to the First Amended Complaint is STRICKEN. Elder may file a Motion for Judgment on the Pleadings on these same grounds after meeting and conferring with Plaintiff if she so wishes.
DATED: May 22, 2023
___________________________
Hon. Jill T. Feeney
Judge of the Superior Court
