Judge: Stephen P. Pfahler, Case: 22CHCV01156, Date: 2023-08-14 Tentative Ruling

Case Number: 22CHCV01156    Hearing Date: August 14, 2023    Dept: F49

DEMURRER TO THE COMPLAINT

MOVING PARTY: Defendant, World Wide Specialty Programs, Inc.

RESPONDING PARTY: /Plaintiff, Aric Cho, pro per

RELIEF REQUESTED:

Demurrer to “Amended Complaint 2”

Motion to Strike

SUMMARY OF ACTION

On November 16, and December 7, 2022, Aric Cho, in pro per, filed a complaint and “amended” complaint against defendant World Wide Specialty Programs, Inc. with no identified cause of action. The pleadings allege the apparent placement of Plaintiff into a facility identified by Royal Gorge Academy when Plaintiff was a minor by one or both parents. During the time spent with Defendant, Plaintiff alleges a deprivation of certain rights, including “freedom of speech,” due to the inability to communicate with Plaintiff’s mother, other persons present, and removal of writing utensils.

On April 12, 2023, the court sustained the demurrer to the “first amended” complaint. On April 27, 2023, Plaintiff filed “amended complaint 2.” The subject complaint alleges kidnapping and transportation across state lines, with eventual placement in a boarding school in an unspecified location, but presumably outside of California. Plaintiff was a minor at the time of placement. At the “school” Plaintiff alleges various deprivations of things, such as natural light, leisure time, and music. Said impacts become triggered when certain songs by artists, such as Taylor Swift, Lorde, and Drake play, as well as the movies Starred Up and Avatar: The Way of Water, are seen and heard.

RULING

Demurrer: Sustained with Leave to Amend.

Request for Judicial Notice: Granted in Part/Denied in Part.

The court takes judicial notice of the filed complaints, but not for the truth of the content presented in the pleadings. The court declines to take notice of any other items, but accepts the existence of the meet and confer efforts and other exchanges, as well as the prior order of the court in ruling on the first amended complaint.

Defendant World Wide Specialty Programs, Inc., brings a demurrer to “amended complaint 2” on grounds of failure to state an articulated, valid claim. Plaintiff in opposition discusses personal educational, psychological, philosophical, political, sociological, and religious beliefs; maintains he was “kidnapped” from 91326 zip code, thereby vesting the court with jurisdiction;  Defendant operates in multiple states in including California, Utah, and Pennsylvania; and, abusive deprivation and/or “brain washing” via playback of a movie called “de ja vu” while not being allowed any shoe laces, occurred while on the premises operated by Defendant. In sum, said time with Defendant now impacts Plaintiff’s ability to obtain gainful employment. Plaintiff also references a “witness” statement, which is also incorporated into the operative complaint.

Defendant submitted both a notice of non-opposition to the motion to strike, and reply to the demurrer.  Defendant reiterates the merits of the demurrer, including jurdisction and lack of factual support, and demands for a ruling sustaining the demurrer without leave to amend, due to the inability of Plaintiff of Plaintiff to submit an amended complaint curing the defects.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) 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 applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

As noted in the first two iterations of the complaint, and now the third version of the operative pleading, Plaintiff continues to present any identified causes of action. (Cal. Rules Ct., rule 2.112.) The court overall finds no specifically, cognizable factual conduct against moving defendant. The court sustains the demurrer on this basis.

Aside from the lack of an identified cause of action, Defendant challenges the second amended complaint as one for false imprisonment, RICO Violations, and Fraud. The court declines to make any findings regarding the assumed causes of action notwithstanding the reference words within the operative complaint. Again, the court instead sustains the demurrer on grounds of failure to articulate and identify any and all causes of action against moving defendant.

Furthermore and notwithstanding the lack of any identified claim, the court again questions the basis of jurisdiction with this court. Plaintiff noted the “kidnapping” occurring from a location within court jurisdiction, but all other activities apparently occurred out of state by as presented in the allegations of the operative complaint regarding crossing state lines out of California. Plaintiff references Nevada and Colorado in October 2008 in the opposition as well. Furthermore, the exhibits attached to the operative complaint show the alleged operator of the “boarding school” remains incorporated in New York, with operations in Pennsylvania and Utah, among multiple United States and international locations. The court therefore again finds the jurisdictional questions constitute a second basis for sustaining the demurrer in terms of establishing proper jurisdiction against the defendant for alleged activities occurring in an out of state facility.

Finally, given the Colorado 2008 statement, the court also expresses concern for the statute of limitations given the paucity of information otherwise alleged. The court declines to take any notice of the “witness testimony” submitted with the opposition (a declaration from Cho), as it is extrinsic to the parameters of the operative pleading.

The demurrer is sustained with 15 days leave to amend. The motion to strike is MOOT.

The court has now twice considered challenges to the complaint and first amended complaint by both defendants. “In response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action. The three-amendment limit shall not include an amendment made without leave of the court pursuant to Section 472, provided the amendment is made before a demurrer to the original complaint or cross-complaint is filed.” (Code Civ. Proc., § 430.41, subd. (e)(1).) Should a second amended complaint be filed and a third demurrer presented to the court, the court will consider the applicable standard in determining whether Plaintiffs can properly allege the challenged claims.

Case Management Conference set for the same date.

Defendant to give notice.