Judge: Stephen Morgan, Case: 23AVCV00038, Date: 2023-05-02 Tentative Ruling
Case Number: 23AVCV00038 Hearing Date: May 2, 2023 Dept: A14
Background
This is a civil rights
discrimination action. Plaintiff Shaves D. Adams (“Plaintiff”) brings this
action against Defendant Antelope The form Complaint does not contain any
attachments for the causes of action alleged. Plaintiff alleges damages in the
amount of $50,000.00.
On January 11, 2023, Plaintiff
filed his Complaint alleging four causes of action for: (1) Breach of Contract,
(2) Civil Rights Violation, (3) Theft of Student Aid Funds, and (4)
Discrimination.
On February 17, 2023, defense
counsel, Louis R. Dumont (“Dumont”), filed a declaration pursuant to Cal. Code
Civ. Proc. § 430.41(a)(2) in which he stated that an attempt was made to reach
Plaintiff, but was unsuccessful. Defendant provided a meet and confer letter to
Plaintiff via mail and email on February 14, 2023. (See Exh. A.) Cal. Code Civ. Proc. § 430.41(a)(2) provides
an automatic 30-day extension of time in which to file a response pleading if
the parties are not able to meet and confer at least five days prior to the
date the responsive pleading is due upon a declaration stating under penalty of
perjury that a good faith attempt to meet and confer was made and explaining
the reasons why the parties could not meet and confer.
On March 06, 2023, Plaintiff
filed a response which included grievances with Defendant and a statement that
he was “open to meet and confer to reach a meaningful resolution respectfully.”
(Plaintiff’s Response to Defendant’s Declaration at p. 2.) No proof of service
was attached to this declaration.
On April 06, 2023, Defendant
filed its Demurrer.
On April 13, 2023, Plaintiff
filed a Motion for Default Judgment. No proof of service was attached.
No Opposition has been filed to
the Demurrer or Motion for Default Judgment. “All papers opposing a motion so
noticed shall be filed with the court and a copy served on each party at least
nine court days. . .before the hearing.” (Cal. Code Civ. Proc. § 1005(b).) “Section
1013, which extends the time within which a right may be exercised or an act
may be done, does not apply to a notice of motion, papers opposing a motion, or
reply papers governed by this section.” (Ibid.) The hearing for both
matters is set for May 02, 2023. Accordingly, Oppositions were due by April 19,
2023. Should an Opposition be filed, it is now untimely.
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Legal Standard
Standard for Demurrer –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.)¿ In a demurrer proceeding, the
defects must be apparent on the face of the pleading or by proper judicial
notice.¿ (Cal. Code Civ. Proc. § 430.30(a).)¿A demurrer tests the pleadings
alone and not the evidence or other extrinsic matters.¿ (SKF Farms v.
Superior Court¿(1984) 153 Cal. App. 3d 902, 905.)¿ Therefore, it lies only
where the defects appear on the face of the pleading or are judicially
noticed.¿¿(Id.)¿¿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.)¿
A general demurrer admits the truth of all factual,
material allegations properly pled in the challenged pleading, regardless of
possible difficulties of proof.¿¿(Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿Thus,
no matter how unlikely or improbable, plaintiff’s allegations must be accepted
as true for the purpose of ruling on the demurrer.¿¿(Del E. Webb Corp. v.
Structural Materials Co.¿(1981) 123 Cal.App.3d 593, 604.)¿ Nevertheless,
this rule does not apply to allegations expressing mere conclusions of law, or
allegations contradicted by the exhibits to the complaint or by matters of
which judicial notice may be taken.¿¿(Vance v. Villa
Park¿Mobilehome¿Estates¿(1995) 36 Cal.App.4th 698, 709.)¿ A general
demurrer does not admit contentions, deductions, or conclusions of fact or law
alleged in the complaint; facts impossible in law; or allegations contrary to
facts of which a court may take judicial notice.¿¿(Blank,¿supra,
39 Cal.3d at p. 318.)¿¿¿¿¿¿¿
Pursuant to¿Code Civ. Proc.¿§430.10(e), the party
against whom a complaint has been filed may object by demurrer to the pleading
on the grounds that the pleading does not state facts sufficient to constitute
a cause of action.¿ It is an abuse of discretion to sustain a demurrer without
leave to amend if there is a reasonable probability that the defect can be
cured by amendment.¿¿(Schifando¿v. City of Los Angeles¿(2003) 31 Cal.4th
1074, 1082,¿as modified (Dec. 23, 2003).)¿¿¿
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Meet and Confer
Requirement – Before filing a demurrer or a motion to strike, the
demurring or moving party is required to meet and confer with the party who
filed the pleading demurred to or the pleading that is subject to the motion to
strike for the purposes of determining whether an agreement can be reached
through a filing of an amended pleading that would resolve the objections to be
raised in the demurrer.¿ (Cal. Code Civ.¿Proc. § 430.41 and § 435.5.)¿¿¿
Dumont declares
that he was able to reach and speak with Plaintiff on April 06, 2023 and offered
to assist tying to discuss a resolution of this matter. (Decl. Dumont ¶ 4.) He
explained to Plaintiff he needed Plaintiff’s documents to understand what Plaintiff
was claiming and seeking to recover. (Ibid.) Plaintiff expressed
hesitancy to email Dumont his evidence, so Dumont directed him to an adjuster
with the TPA at Keenan and Associates. (Ibid.) Dumont states that he
also explained why the Complaint was defective. (Id. at ¶ 5.)
The Court finds
that an attempt to meet and confer occurred.
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Standard for
Default Judgment – Cal. Code Civ. Proc. § 585(a) provides the basis
for a default judgment. It reads, in relevant part:
Judgment may be
had, if the defendant fails to answer the complaint, as follows:
(a) In an
action arising upon contract or judgment for the recovery of money or damages
only, if the defendant has, or if more than one defendant, if any of the
defendants have, been served, other than by publication, and no answer,
demurrer, notice of motion to strike of the character specified in subdivision
(f), notice of motion to transfer pursuant to Section 396b, notice of motion to
dismiss pursuant to Article 2 (commencing with Section 583.210) of Chapter 1.5
of Title 8, notice of motion to quash service of summons or to stay or dismiss
the action pursuant to Section 418.10, or notice of the filing of a petition
for writ of mandate as provided in Section 418.10 has been filed with the clerk
of the court within the time specified in the summons, or within further time
as may be allowed, the clerk, upon written application of the plaintiff, and
proof of the service of summons, shall enter the default of the defendant or
defendants, so served, and immediately thereafter enter judgment for the
principal amount demanded in the complaint, in the statement required by
Section 425.11, or in the statement provided for in Section 425.115, or a
lesser amount if credit has been acknowledged, together with interest allowed
by law or in accordance with the terms of the contract, and the costs against
the defendant, or defendants, or against one or more of the defendants. If, by
rule of court, a schedule of attorneys’ fees to be allowed has been adopted,
the clerk may include in the judgment attorneys’ fees in accordance with the
schedule (1) if the contract provides that attorneys’ fees shall be allowed in
the event of an action thereon, or (2) if the action is one in which the
plaintiff is entitled by statute to recover attorneys’ fees in addition to
money or damages. The plaintiff shall file a written request at the time of
application for entry of the default of the defendant or defendants, to have
attorneys’ fees fixed by the court, whereupon, after the entry of the default,
the court shall hear the application for determination of the attorneys’ fees
and shall render judgment for the attorneys’ fees and for the other relief
demanded in the complaint, in the statement required by Section 425.11, or in
the statement provided for in Section 425.115, or a lesser amount if credit has
been acknowledged, and the costs against the defendant, or defendants, or
against one or more of the defendants.
The Judicial
Council of California has adopted CIV-100 for mandatory use in defaults. (See Cal.
Gov. Code § 68511.) The CIV-100 form asks the court to enter a default against
a defendant or cross-defendant because they failed to file a responsive
document in the case. I may be used to ask for default, default judgment, or
both.
In requesting a
default judgment, certain requirements must be met, including but not limited
to, a proposed order, a declaration under penalty of perjury that set forth the
elements of his contract claim, and a proposed form of judgment, either on
optional California Judicial Council Forms, form JUD-100, or otherwise. (See Holloway
v. Quetel (2015) 242 Cal.App.4th 1425, 1432-33; See also Cal. Rules of
Court, Rile 3.1800.)
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Discussion
Application –
i. Motion
for Default Judgment
“It is well settled that the
appearance of a party at the hearing of a motion and his or her opposition to
the motion on its merits is a waiver of any defects or irregularities in the
notice of the motion. [Citations.] This rule applies even when no notice was
given at all. [Citations.] Accordingly, a party who appears and contests a
motion in the court below cannot object on appeal or by seeking extraordinary
relief in the appellate court that he had no notice of the motion or that the
notice was insufficient or defective.” (Tate v. Superior Court (1975) 45
Cal.App.3d 925, 930. See also Reedy v. Bussell (2007) 148 Cal.App.4th
1272 [quoting Tate, supra, 45 Cal.App.3d 925; Eliceche v. Federal Land Bank
Assn. (2002) 103 Cal.App.4th 1349, 1375; Pacific Std. Life Ins. Co. v.
Tower Industries, Inc. (1992) 9 Cal.App.4th 1881, 1888 [“Tower has waived
its right to complain of insufficient notice of the motion for judgment
[because it] did not object to the motion on the ground of lack of notice”].)
Defendant has not filed an
Opposition; however, Defendant has appeared in Court at the hearing on this
motion.
A default judgment is not
appropriate in these circumstances.
Defendant first appeared in this
action on February 17, 2023, through the filing of Dumont’s declaration. (See
Procedural Background, ante.)
Pursuant to Cal. Code Civ. Proc.
§ 430.41(a)(2), “[t]he 30-day extension shall commence from the date the
responsive pleading was previously due, and the demurring party shall not be
subject to default during the period of the extension.” “A person against whom
a complaint or cross-complaint has been filed may, within 30 days after service
of the complaint or cross-complaint, demur to the complaint or cross-complaint.”
(Cal. Code Civ. Proc. § 430.40(a).)
Here, service of process occurred
on January 17, 2023. With the extension provided by Cal. Code Civ. Proc. §
430.41(a)(2), a responsive pleading was due on March 18, 2023, Saturday. “Unless
otherwise provided by law, if the last day for the performance of any act that
is required by these rules to be performed within a specific period of time
falls on a Saturday, Sunday, or other legal holiday, the period is extended to
and includes the next day that is not a holiday.” (Cal. Rules of Court, Rule
1.10(b).) Accordingly, a responsive pleading was due on March 20, 2023.
Defendant did not file a
responsive pleading by March 20, 2023. However, Plaintiff did not place
Defendant in default. The Court notes that there was an attempt by Plaintiff to
place Defendant in default on March 29, 2023; however, it was rejected as the
CIV-100 form was filled out incorrectly. Specifically, (1) Plaintiff’s date for
the Complaint was incorrect; (2) Plaintiff attempted to put Dumont, a non-party
to this action, in default, along with Defendant; (3) it appears Plaintiff
attempted to request a Court Judgment without marking the request in the
header, No. 4 inquiring about legal assistance was not marked, No. 5 requesting
a Declaration under Cal. Code Civ. Proc. § 585.5 was not marked, and Plaintiff
did not include a date in No. 6 with his signature and printed name for his
declaration under penalty of perjury under the laws of the State of California.
Defendant was never placed in
default and has now filed its Demurrer.
“When the plaintiff fails to
comply with these procedures, the defendant need not suffer the consequences of
a default judgment. [Citation.]” (Benchbook, supra, § 16.2, p. 371.)’ ” (Fasuyi
v. Permatex, Inc. (2008) 167 Cal. App.4th 681, 692 (“Fasuyi”).) As
the Court of Appeal put it in both Fasuyi and Lopez v. Fancelli
(1990) 221 Cal.App.3d 1305, 1312 [271 Cal. Rptr. 87], the first case cited in
the Benchbook: “The rules pertaining to defaults and default judgments must be
precisely followed to ensure that a defaulting defendant is aware of
plaintiff's claims.”
Those rules were not “precisely
followed” and Defendant has now filed a responsive pleading. Defendant’s
Demurrer constitutes an appearance in the action. (See Cal. Code Civ. Proc. §
1014.) “A default may only be entered when no responsive pleading has been
filed. ( Code Civ. Proc., § 585, subd. (b).)” (Pinkerton's, Inc. v. Superior
Court (1996) 49 Cal.App.4th 1342, 1347.) As such, default is now improper.
Accordingly, the Motion for
Default Judgment is DENIED.
ii. Demurrer
Defendant demurs to Plaintiff’s Complaint.
Defendant presents that the Complaint seeks to improperly hold Defendant liable
under various legal theories without alleging any factual allegations to
support the claims. Thus, the Complaint both fails to state facts sufficient to
constitute a cause of action and the pleading is uncertain. (See Cal. Code Civ.
Proc. § 430.10(e)-(f).) Defendant further argues that Plaintiff has failed to
comply with the Government Tort Claims Act as: (1) a Plaintiff has burden of
both pleading and proving compliance with the claim presentation requirement,
and (2) the Complaint fails to allege facts to establish when, if at all, a
claim for damages against Defendant was filed. Defendant believes that no
exception applies to Plaintiff, and so, Plaintiff has not exhausted his
administrative remedies. Finally, Defendant reiterates that the Complaint fails
to include factual allegations and highlights that, in cases against a public
entity, “the [p]laintiff is held to a higher standard, which requires that all
statutory causes of action be pled with particularity and based upon ultimate
facts.” (Demurrer 7:20-28 [citing to Susman v. City of Los Angeles
(1969) 269 Cal.App.2d 803].)
Plaintiff has not opposed this
Demurrer.
Plaintiff’s Complaint is on form
PLD-C-001, labeled “COMPLAINT – Contract.” The Complaint is such that:
·
Plaintiff has filled out the names of the
parties in Numbers 1 and 2;
·
Plaintiff informs the Court that Defendant is a
public entity (Complaint at No. 4(a));
·
Plaintiff marked that he has “complied with the
applicable claims statutes.” (Id. at 5(a));
·
Plaintiff has marked off “Civil Code section
2984.4” and states that this Court is proper because “real property that is
subject of the action is located here” (Id. at 7(f));
·
Plaintiff has selected that the causes of action
are “Breach of Contract” and “Other Allegations” (Id. at 8-9);
·
It appears that 10(d) is the “Other allegations”
as Plaintiff has written in Civil Rights Violation, Theft of Student Funds,
Discrimination” instead of a prayer for relief (Id. at 10(d));
·
Plaintiff seeks damages in the amount of $50,000
(Id. at 10(a)); and
·
Plaintiff has dated, printed, and signed his
name at the end of the filing (Id. at p. 2).
Cal. Gov.
Code § 68511 provides that “the Judicial Council may prescribe by rule the form and content of forms used in
the courts of this state.” (See also Code Civ. Proc., § 425.12.) Mandatory
forms bear the word “adopted” in the lower left corner of the first page and
optional forms bear the word “approved” in the lower left corner of the first
page. (Judicial Council Forms List, Appendix A < https://www.courts.ca.gov/documents/appendix-a.pdf>
[as of Apr. 19, 2023].) Mandatory forms must be used wherever applicable and
must be accepted for filing by all courts. (Cal. Rules of Court, Rule 1.31.) Use
of an approved (optional) form is not mandatory, but the form must be accepted
by all courts in appropriate cases (Cal. Rules of Court, Rule 1.35(a))
The form that Plaintiff used,
PLD-C-001, labeled “COMPLAINT – Contract,” is a form approved for optional use
by the Judicial Council of California.
“The Judicial Council pleading
forms have simplified the art of pleading, and have made the task of drafting
much easier. Nevertheless, in some cases more is required than merely placing
an ‘X’ in a box. (Weil & Brown, supra, at § 6:105, p. 6-24.) ‘Adoption of
Official Forms for the most common civil actions has not changed the statutory
requirement that the complaint contain “facts constituting the cause of
action.” ’ ” (Id., at § 6:103, p. 6-23.5.) Thus, in order to be
demurrer-proof, a form ‘complaint must contain whatever ultimate facts are
essential to state a cause of action under existing statutes or case law.’ (Ibid.)”
(People ex rel. Dept. of Transportation v. Superior Court (1992) 5
Cal.App.4th 1480, 1484. See also Id. at 1486 [“In some cases, merely
checking a box on a Judicial Council form complaint will be sufficient. In
other cases, such as this one, where specific allegations need be alleged, the
form complaint is like a partially completed painting. It is up to the pleader
to add the details that complete the picture. The form complaint here, standing
alone, is no more immune to demurrer than any other complaint that fails to
meet essential pleading requirements to state a cause of action.].)
Here, there are errors within the
form complaint:
·
Plaintiff does not describe the public entity
despite instructions to do so (Complaint at 4(a)(4));
·
Plaintiff has not checked off that he is
required to comply with a claims statute despite stating that he has complied (Id.
at 5);
·
Plaintiff has checked of Cal. Civ. Code section
2984.4, but has not checked off that the action is subject to it (Id. at
6);
·
Plaintiff has checked off that the court is
proper because the “real property that is subject of this action is located
here,” but the Complaint does not reflect that any real property is at issue (Id.
at 7(f));
·
Plaintiff has written in what appears to be
causes of action in his prayer for relief (Id. at 10(d)); and
·
Plaintiff has not attached any attachments
describing the cause of action (Id. at 8 [“The following causes of
action are attached and the statements above apply to each (each complaint
must have one or more causes of action attached)”].
Without the causes of action
forms attached, there are no factual allegations to the Complaint.
A special demurrer should not be
sustained when the allegations of the complaint are sufficiently clear to
apprise the defendant of the issues which he is to meet. (Lord v.
Garland (1946) 27 Cal.2d 840, 853.) Such a demurrer for uncertainty is
not intended to reach the failure to incorporate sufficient facts in the
pleading, but is directed at the uncertainty existing in the allegations
actually made. (People v. Lim (1941) 18 Cal.2d 872, 882.) A demurrer
which attacks an entire pleading should be overruled if one of the counts
therein is not vulnerable to the objection. (Lord, supra, 27
Cal.2d at 850.) The sole issue on a demurrer for uncertainty is whether
“the allegations are sufficiently clear to apprise the defendant of the issues
that must be met, even if the allegations of the complaint may not be as clear
and as detailed as might be desired.” (Merlino v. West Coast Macaroni
Mfg. Co. (1949) 90 Cal.App.2d 106, 108.) “. . .The essence is fairness in
pleading in order to give the defendant sufficient notice of the cause of
action stated against him so that he will be able to prepare his case. (Bradley
v. Hartford Acc. & Indem. Co. (1973) 30 Cal.App.3d 818, 825 [overruled
in Silberg v. Anderson (1990) 50 Cal.3d 205 as to the exception to the
privilege prescribed by Cal. Civ. Code § 47(2) for communications not made for
the purpose of promoting the “interest of justice].)
Here, there are no factual
allegations. Defendant has no ability to prepare its case for any cause of
action alleged as the issues surrounding each cause of action are not pled.
Accordingly, the Demurrer is
SUSTAINED.
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Leave to Amend
Leave to amend must be allowed
where there is a reasonable possibility of successful amendment. (Goodman v.
Kennedy¿(1976) 18 Cal.3d 335, 348.) While under California law leave to
amend is liberally granted, “leave to amend should not be granted where, in all
probability, amendment would be futile.” (Vaillette v. Fireman's Fund Ins.
Co. (1993), 18 Cal.App.4th 680, 685).¿ “A trial court does not abuse its
discretion when it sustains a demurrer without¿leave to amend¿if either (a) the
facts and the nature of the claims are clear and no liability exists, or (b) it
is probable from the nature of the defects and previous unsuccessful attempts
to plead that the plaintiff cannot state a claim.” (Cantu v. Resolution
Trust Corp.¿(1992)¿4 Cal.App.4th 857, 889.)¿¿
Defendant believes that the
Complaint cannot be amended because the Complaint is devoid of allegations
relating to a Claim for Damages against Defendant. However, this is not
entirely true. Plaintiff has checked off that he “has complied with applicable
claims statute.” (See Complaint at 5(a).) As mentioned, ante, no factual
allegations are pled. It appears that Plaintiff may be able to rectify the
deficiency in the Complaint regarding compliance to the Government Tort Claims
Act.
Accordingly, leave to amend is
GRANTED.
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Conclusion
Antelope Valley Community College
District’s Demurrer is SUSTAINED with leave to amend.
Plaintiff Shaves D. Adam is to
file an amended complaint within 30 days of this Court Order.