Judge: Stephen I. Goorvitch, Case: 20STCV24776, Date: 2022-10-27 Tentative Ruling

Case Number: 20STCV24776    Hearing Date: October 27, 2022    Dept: 39

Willie Mae McKay v. A.O.E. Law & Associates, Inc., et al.

Case No. 20STCV24776

Plaintiff’s Demurrer to Cross-Complaint

[TENTATIVE] Order

Plaintiff Willie Mae McKay (“Plaintiff”) filed a third amended verified complaint against A.O.E. Law & Associates, Inc., Anthony O. Egbase (“Defendant Egbase”), and Sedoo Manu (collectively, “Defendants”) asserting a single cause of action for professional negligence.  Defendants filed a cross-complaint asserting causes of action for breach of contract and common counts, alleging that Plaintiff did not pay her legal fees.  Plaintiff now demurs to the cross-complaint.    

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

            In this case, Plaintiff argues that Defendant did not disclose his lack of malpractice insurance, which is a defense to the cause of action.  That is not a basis for demurrer.  The Court cannot rely on matters outside the complaint in ruling on the demurrer.  (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  Plaintiff must raise this argument in a motion for summary judgment or at trial.

            Based upon the foregoing, Plaintiff’s demurrer to the cross-complaint is overruled.  Plaintiff shall file an answer within thirty (30) days.  Plaintiff’s counsel shall provide notice and file proof of such with the Court.