Judge: Steven A. Ellis, Case: 23STCV19149, Date: 2024-12-19 Tentative Ruling

Case Number: 23STCV19149    Hearing Date: December 19, 2024    Dept: 29

Vandenberg v. Doe
23STCV19149
Defendants’ Demurrer
Defendant’s Motion to Strike

Tentative

The hearing on the demurrer and motion to strike is continued for approximately 45 days so that counsel may comply with their statutory obligation to meet and confer.

Background

On August 11, 2023, Kenneth Vandenberg (“Plaintiff”) filed a complaint against John Doe, Network Parking Inc., Curacao Ltd. (“Curacao”), and Does 1 through 50, asserting causes of action for battery, respondeat superior, and negligent hiring.

On August 21, 2023, Plaintiff filed the First Amended Complaint against the same defendants asserting the same causes of action.

On October 16, 2023, Curacao filed an answer and a cross-complaint against All-American Protective Services, Inc. and Roes 1 through 50.

On October 23 and 30, 2023, Plaintiff amended the complaint to name Dwight Scott as John Doe and All American Protective Services, Inc. as Doe 11.

On February 14, 2024, Parking Network Inc. filed an answer and a cross-complaint against Dwight Scott, All-American Protective Services, Inc., and Roes 1 through 50.

On October 18, 2024, Plaintiff filed the Second Amended Complaint (“SAC”) against Dwight Scott, All American Protective Services Inc., Parking Network Inc., Curacao, and Does 1 through 20, asserting causes of action for battery; respondeat superior; negligent hiring,  training, retention, assignment, and or supervision; abuse of dependent adult; and violation of Civil Code section 51.7.

On November 20, 2024, Curacao filed this demurrer and motion to strike. Plaintiff’s counsel filed a declaration regarding lack of service on December 6.  Curacao filed a reply on December 10.

Legal Standard

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id.) 

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].) 

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]). 

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

"Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).)

Code of Civil Procedure section 436 permits trial courts to strike out any irrelevant, false, or improper matter inserted in a pleading:  “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any 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.” (Code Civ. Proc. § 436.)

“Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion to strike the amended pleading.” (Code of Civ. Proc. § 435.5, subd. (a).)

Discussion

As a preliminary matter, counsel for the parties have not met and conferred as required by statute.  In the reply papers (but not in moving papers), Curacao’s counsel contends that the two sides met and conferred by email and could not resolve the matter.

Emails back and forth between counsel do not satisfy the meet and confer requirements of Code of Civil Procedure section 430.41 and 435.5.

The hearing on the demurrer and the motion to strike is continued so that the parties may comply with the requirements of the applicable statutes, and so that moving party may file a declaration attesting, under oath, to such compliance.

This continuance will also render moot the parties’ dispute about service.  Plaintiff now has actual notice of Defendant’s moving papers, and if the parties are unable to resolve the dispute through the meet and confer process, Plaintiff will have ample opportunity to file an opposition to the demurrer and motion to strike.

Conclusion

The hearing on the demurrer and the motion to strike is continued to February __, 2025, at 1:30 PM in Department 29 at Spring Street Courthouse.

The Court ORDERS the parties to meet and confer as required by Code of Civil Procedure section 430.41 and 435.5.

The Court ORDERS that moving party to file a declaration attesting to compliance with the meet and confer requirements of Code of Civil Procedure section 430.41 and 435.5. no later than 16 court days before the hearing.

Any opposition and reply are due per Code with reference to the new hearing date.

Moving Party is to give notice.