Judge: Stephen Morgan, Case: 23AVCV00367, Date: 2023-07-11 Tentative Ruling
Case Number: 23AVCV00367 Hearing Date: July 11, 2023 Dept: A14
Background
This is a defamation action. Plaintiffs
Andres Rivera (“Rivera”), Sergio Gutierrez Casillas (“Casillas”), Hugo Avina
(“Avina”), and Rodolfo A. Perez Escobar (“Escobar” and collectively
“Plaintiffs”) each allege their own causes of action against Defendant Antionio
Flores dba Flores Auto Care (“Defendant”).
On April 05, 2023, Plaintiffs filed one Complaint against Defendant. It appears that Plaintiffs have filed their individual allegations under one cause of action for Intentional Tort.
On June 07, 2023, Defendant filed this Demurrer.
On June 26, 2023, Plaintiffs filed their Opposition.
On July 03, 2023, Defendant filed his Reply.
-----
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).)¿¿¿¿¿¿¿¿¿¿¿
-----
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.)¿¿Counsel for Defendant, Bruce W. Wagner (“Wagner”), details his
attempts to contact each Plaintiff in his declaration. Wagner met and conferred
with all Plaintiffs; however, it appears no resolution has been reached. (Decl.
Wagner ¶¶ 11-14.)
-----
Discussion
Judicial Notice –
Def.’s Request for Judicial
Notice No. 1 [Plaintiff’s Claim and ORDER to Go to Small Claims Court filed on
May 10, 2022, in Sergio Gutierrez Casillas v. Porfirio Antonio Flores, Los
Angeles County Superior Court, North District, Case Number 2AVSC00372] –
GRANTED.
Def.’s Request for Judicial
Notice No. 2 [Defendant’s Claim and ORDER to Go to Small Claims Court, in
Sergio Gutierrez Casillas v. Porfirio Antonio Flores filed on May 25, 2022, Los
Angeles County Superior Court, North District, Case Number 22AVSC00372] –
GRANTED.
Def.’s Request for Judicial
Notice No. 3 [e Minute Order of June 30, 2022, in Sergio Gutierrez Casillas v.
Porfirio Antonio Flores, Los Angeles County Superior Court, North District,
Case Number 22AVSC00372] – GRANTED.
Def.’s Request for Judicial
Notice No. 4 [Notice of Entry of Judgment of July 1, 2022, in Sergio Gutierrez
Casillas v. Porfirio Antonio Flores , Los Angeles County Superior Court, North
District, Case Number 22AVSC00372] – GRANTED.
Application – Defendant
demurs on several grounds. The first is to the Complaint as a whole for
uncertainty.
Specifically, Defendant presents
that “[a] person may be joined as plaintiff only if he, she, or it either (1)
asserts a right to relief jointly, severally, or in the alternative, in respect
of or a rising out of the same transaction, occurrence, or series of
transactions or occurrences and a question of law or fact common to all
plaintiffs will arise in the action or (2) the person has a claim, right, or
interest adverse to defendant in the property or controversy that is the
subject of the action.” (Demurrer 11:10-15 [citing Cal. Code Civ. Proc. §
378(a)].) Defendant argues that, in this action, Plaintiffs do not seek a right
to relief arising out of the same transaction or series of transactions with
there being a question of law of fact common to all plaintiffs. Defendant
presents the following, based on the Complaint:
·
Rivera alleges (1) he was slandered by Defendant
telling others that he is a drug lord and supplier of drugs, did not have a
permit to do business, and called city law enforcement to inspect Rivera’s
shop; and (2) he suffered damages to the wall separating his driveway and the
entrance to Defendant’s shop.
·
Casillas alleges (1) Defendant slandered him
when he told others that Casillas damaged the property leased to him by
Defendant; and (2) emotional distress caused by Defendant.
·
Avina alleges (1) Defendant slandered him when
he told others that Avina damaged the property leased to him by Defendant; (2)
emotional distress caused by Defendant; and (3) Defendant has not returned his
security deposit.
·
Escobar alleges (1) Defendant owes him wages;
and (2) emotional distress caused by Defendant.
Plaintiffs present that their
Complaint contains only one case of action: Defamation, Libel, and/or Slander.
(Opp. 2:12-14.) Plaintiffs next concede that their Complaint is a consolidation
of the complaints of each plaintiff as they share the same nature and issues
against the defendant. (Id. 3:15-16.) Plaintiffs then present details as
to each of their respective grievances against Defendant. Plaintiffs argue that
(1) a demurrer for misjoinder can only be sustained when a defendant shows
prejudice suffered or some interests affected by the misjoinder and (2) a
defendant is seldom injured by the joinder of unnecessary or improper parties.
Plaintiffs present that the Demurrer for uncertainty should be overruled as
there is only one cause of action in which “the allegation is clearly stated
and it is not subject to a different interpretation, thus, the allegation can
clearly be denied or admit[ted].” (Opp. 11:3-4.) Further, Plaintiffs believe
that Defendant has not pointed to any defect on the face of the Complaint.
Defendant’s Reply, as to
uncertainty, reiterates arguments from the moving paper:
(1) The
Complaint warrants the granting of a special demurrer as Defendant performed a
series of distinct actions against each plaintiff, the allegations by each
plaintiff are unrelated except that they are all against Defendant; Weil &
Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2023) 6:104
and 7:861, California Rules of Court Rule 2.112, and Cal. Code Civ. Proc. §
430.10(f) provide a legal basis for sustaining this Demurrer; and Defendant is
not in a position to deny the various allegations in the complaint positively
because Defendant cannot tell what he is supposed to respond to.
(2) The
pleadings constitute a misjoinder that warrants sustaining this Demurrer as
Plaintiffs do not seek a right to relief arising out of the same transaction or
series of transactions with a question of law or fact common to all Plaintiffs
as required by Code of Civil Procedure § 378(a), there is no need for prejudice
to a defendant before a demurrer for uncertainty can be granted, and Defendant
will suffer prejudice by this misjoinder as Defendant will be required to
participate in discovery and trial on the claims of Plaintiffs that are not
factually related.
Pursuant to Cal. Code Civ. Proc.
§ 430.10(f), “uncertainty” is a proper demurrer ground where the pleading is
ambiguous and unintelligible. Demurrers for uncertainty will only be
sustained where the complaint is so vague that the defendant cannot reasonably
respond—i.e., determine what issues must be admitted or denied or what counts
or claims are directed against him or her. (Khoury v. Maly’s Calif.,
Inc. (1993) 14 Cal.App.4th 612, 616.)
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 ambiguity 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.)
Here, there is a misjoinder of
the parties which leads to uncertainty in the Complaint. As conceded, Plaintiffs
are attempting to use one action to address each of their individual
allegations. Due to this, Complaint lacks coherence as the individual rights of
each plaintiff are blended and various allegations are made. For clarity, the
Court notes that this defect is on the face of the Complaint. The Court further
notes that Plaintiffs have attempted to separate each of their claims in one
section of the Complaint; however, this does not negate the defect in the
pleading. As pled, the Complaint would require Defendant to determine which
claims are being asserted against him from which plaintiff and which alleged
actions comprise each claim.
Plaintiff’s own citations provide
support for this decision: “Cal. Civ. Proc. Code § 378 permits joinder of
plaintiffs if they assert any right to relief arising out of the same
transaction, occurrence, or series of transactions or occurrences and if any
question of law or fact common to all these persons will arise in the action.”
(Anaya v. Superior Court (1984) 160 Cal.App.3d 228, 230-231 (“Anaya”)
[citing Cal. Code Civ. Proc. § 378].) Further, while Plaintiffs attempt to use Anaya
as support, the issue in Anaya was a court order regarding joinder of
two complaints, not a joinder of a causes of actions from each plaintiff put
into one complaint. (See Anaya, supra, 160 Cal.App.3d 228 at 231
[“Petitioners filed two lawsuits. . .”], 233 [“The employees are said to have
been exposed to harmful chemicals at one location over a period of many years
by inhalation, drinking of water, and physical contact. Thus, they were all
involved in the same series of transactions or occurrences and assert rights to
relief therefrom. The fact that each employee was not exposed on every occasion
any other employee was exposed does not destroy the community of interest
linking these petitioners.” And “Common issues of fact and law abound, because
all plaintiffs allege employee exposure to DBCP at the same location over the
course of many years.”].) Here, while Plaintiffs may be bringing similar causes
of actions, the allegations as to each plaintiff do not occur from the “same
transaction, occurrence, or series of transactions or occurrences” as each
plaintiff had their own individual interactions and/or leases with Defendant at
different times and involving different allegations. (Cal. Code Civ. Proc. §
378; Opp. 3:12-28, 4:1-28; and 5:1-2.) Some Plaintiffs also seek to recover
lost wages.
The Court highlights that while
Plaintiffs are presenting defamation, slander and libel together as one cause
of action, they are not necessarily the same causes of action. Defamation may
be either libel or slander. (See Cal. Civ. Code § 44.) “Libel
is a false and unprivileged publication by writing, printing, picture, effigy,
or other fixed representation to the eye, which exposes any person to hatred,
contempt, ridicule, or obloquy, or which causes him to be shunned or avoided,
or which has a tendency to injure him in his occupation.” (Cal. Civ. Code §
45.) Slander is defined as:
a false and
unprivileged publication, orally uttered, and also communications by radio or
any mechanical or other means which:
1. Charges any
person with crime, or with having been indicted, convicted, or punished for
crime;
2. Imputes in him
the present existence of an infectious, contagious, or loathsome disease;
3. Tends directly to
injure him in respect to his office, profession, trade or business, either by
imputing to him general disqualification in those respects which the office or
other occupation peculiarly requires, or by imputing something with reference
to his office, profession, trade, or business that has a natural tendency to
lessen its profits;
4. Imputes to him
impotence or a want of chastity; or
5. Which, by natural
consequence, causes actual damage.
(Cal. Civ. Code
§ 46.)
It appears that Rivera is the
main Plaintiff in this Complaint as (1) Rivera provided his contact information
on the Complaint (Complaint, Decl. Wagner ¶¶ 4) and (2) Rivera is the only
individual that signed the Complaint (Complaint at p. 3). Accordingly, the
Court strikes Casillas, Avina, and Escobar from the Complaint as “part of any
pleading not drawn or filed in conformity with the laws of this state, a court
rule, or an order of the court” under the authority granted to it in Cal. Code
Civ. Proc. 436(b). Plaintiffs proceeding in pro per may file their own
complaints to represent their individual interests.
A joinder may occur once
individual actions are filed. That is, “ ‘ “[t]he code section [Code of Civil
Procedure, section 378] contemplates of course an action single in form, but
with each ‘case’ or demand retaining its distinctive identity as though pleaded
in an independent action. No plaintiff is interested in the entire complaint.
The interest of each is in his own ‘case’ or cause of action; and the complaint
as a whole is merely a series of ‘cases’ embodied in one document. The
institution of a joint action thus amounts to an election to consolidate at the
outset several causes of action for trial instead of bringing several actions
based on common grounds, and then having them consolidated later.” ’
[Citations.]” (Brennan v. Superior Court (1994) 30 Cal.App.4th 454,
461-62.)
-----
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.)
Here, the deficiencies in the
Complaint may be rectified by an amendment which clarifies the causes of action
against Defendant by Rivera and the allegations that make up each cause of
action.
Accordingly, leave to amend is
GRANTED.
-----
Conclusion
Defendant Antonio Flores dba
Flores Auto Care’s Demurrer is SUSTAINED with 30 days’ leave to amend.