Judge: Serena R. Murillo, Case: 21STCV46933, Date: 2022-09-06 Tentative Ruling

Case Number: 21STCV46933    Hearing Date: September 6, 2022    Dept: 29

Harlon Caldwell v. Jason Arnoldo Esparza, et al.

Tuesday, September 6, 2022

TENTATIVE 

Defendant’s demurrer to the First Amended Complaint is CONTINUED.

Legal Standard 

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525).) 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. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.) 

Meet and Confer 

The demurrer is accompanied by the declaration of Christopher K. Opfell, which satisfies the meet and confer requirements. (Code Civ. Proc. § 430.41.)  

Discussion 

The Court notes that there is no Opposition filed by Plaintiff to Defendant’s Demurrer to the FAC, but that Defendant has filed a Reply to “Plaintiff’s Opposition to Demurrer.” As such, it appears Plaintiff has inadvertently failed to file the Opposition. The same is true for the Opposition to Defendant’s Motion to strike the FAC, which is set to be heard in this department on September 30, 2022. Therefore, the Court will continue this matter to allow Plaintiff to file his Oppositions to both the Demurrer to the FAC and the Motion to Strike the FAC.

Conclusion

Accordingly, Defendant’s demurrer is CONTINUED to allow Plaintiff to file his opposition.

Moving party is ordered to give notice.