Judge: Theresa M. Traber, Case: 22STCV12040, Date: 2022-08-03 Tentative Ruling
Case Number: 22STCV12040 Hearing Date: August 3, 2022 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: August 3, 2022 TRIAL DATE: NOT SET
CASE: Mehmet Kaya Bolukgiray v. Glenn Eugene Stallings et al.
CASE NO.: 22STCV12040 
DEMURRER
TO COMPLAINT
MOVING PARTY: Defendants Glenn Stallings, Carolina Arriola, Mauricia
Vitangcol, Jesus Vitangcol.
RESPONDING PARTY(S): No response on
eCourt as of 8/1/2022
CASE
HISTORY:
·
04/11/22: Complaint filed.
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is an action for breach of contract and intentional infliction of
emotional distress filed on April 11, 2022.
Defendants demur to the Complaint
in its entirety.
TENTATIVE RULING:
Defendants’ Demurrer is SUSTAINED
with leave to amend. Plaintiff shall have 30 days leave to amend from the date
of this order.
DISCUSSION:
Defendants
demur to the entire Complaint on the grounds that it fails to state facts
sufficient to constitute a cause of action, is uncertain, and fails to state
the nature of the contract which it alleges was breached.
Legal Standard
A demurrer 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 via proper judicial
notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968,
994.) “A demurrer tests the pleadings alone and not the evidence or other
extrinsic matters. Therefore, it lies only where the defects appear on the face
of the pleading or are judicially noticed.” (SKF Farms v. Superior Court
(1984) 153 Cal.App.3d 902, 905.) “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 p. 747.) The
ultimate facts alleged in the complaint must be deemed true, as well as all
facts that may be implied or inferred from those expressly alleged. (Marshall
v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields
v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n
demurrer, pleadings are read liberally and allegations contained therein are
assumed to be true”].) “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.)
"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.) "A demurrer for uncertainty will be
sustained only where the complaint is so bad that defendant cannot
reasonably respond--i.e., he or she cannot reasonable determine what issues
must be admitted or denied, or what counts or claims are directed against him
or her." (Weil & Brown, Civil Procedure Before Trial (The Rutter
Group) § 7:85 (emphasis in original).) "The objection of uncertainty does
not go to the failure to allege sufficient facts." (Brea v.
McGlashan (1934) 3 Cal.App.2d 454, 459.)
Meet and Confer
Before filing a demurrer, the
demurring party shall meet and confer in person or by telephone with the party
who has filed the pleading subject to the demurrer and file a declaration
detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a).)
However, an insufficient meet and confer process is not grounds
to overrule or sustain a demurrer. (Code Civ. Proc., §
430.41(a)(4).)
The Declaration of Adolfo B. Garber
states that he personally telephoned Plaintiff, who is not represented by
counsel, to discuss the defects in the Complaint. (Declaration of Adolfo Garber
ISO Mot. ¶ 3.) The Declaration states that the parties had a pair of short
telephone conversations, which do not, from the declaration, appear to have
been productive. (Id. ¶¶ 3-4.) A couple of short telephone conversations
in the span of half an hour is not, in the Court’s view, a sufficient meet and
confer process to satisfy the statutory requirements. Nevertheless, the Court
will consider the demurrer on its merits.
Analysis
Defendants
demur to the entire complaint on the basis that it is uncertain, fails to state
facts sufficient to constitute a cause of action, and does not identify the
form of the contract allegedly breached.
Plaintiff’s complaint is a two-page court form that checks boxes for
breach of contract and intentional infliction of emotional distress but does
not asset any factual allegations supporting these claims.
To state a cause of action for breach
of contract, a Plaintiff must plead the contract, the Plaintiff’s performance
of the contract or excuse for nonperformance, Defendant’s breach, and finally
the resulting damage. (Otworth v. Southern Pac.
Transportation Co. (1985) 166 Cal.App.3d 452, 458.)
Further, the complaint must indicate whether the contract is written, oral, or
implied by conduct. (Code Civ.Proc. § 430.10(g).) General allegations stating
that defendants violated a contract are insufficient, and plaintiffs must state
facts showing a breach. (Levy v. State Farm Mutual
Automobile Ins. Co. (2007) 150 Cal.App.4th 1, 5-6.)
To support a claim for intentional infliction of emotional
distress, a complaint must include allegations that describe:
“(1) extreme and outrageous conduct by the defendant with
the intention of causing, or reckless disregard of the probability of causing,
emotional distress;
(2) the plaintiff’s suffering severe or
extreme emotional distress; and (3) actual and proximate causation of the
emotional distress by the defendant’s outrageous conduct. …” Conduct to be
outrageous must be so extreme as to exceed all bounds of that usually tolerated
in a civilized community.’ [Citation.]” (Citation omitted.) “It is not enough
that the conduct be intentional and outrageous. It must be conduct
directed at the plaintiff,
or occur in the presence of a plaintiff of
whom the defendant is aware.”
(Catsouras v. Department of California Highway Patrol (2010)
181 Cal.App.4th 856, 874-875.) The defendant’s conduct must be “directed
primarily” at the plaintiffs, “calculated to cause them severe emotional
distress,” or “done with knowledge of their presence and of a substantial
certainty that they would suffer severe emotional injury.” (Christensen v.
Superior Court (1991) 54 Cal.3d 868, 906.)
As noted
above, Plaintiff filed the Complaint using Optional Judicial Council Form
PLD-C-001, which is a form for filing a Complaint for an action in contract.
The Complaint identifies two causes of action: Breach of Contract, and
Intentional infliction of Emotional Distress (Complaint ¶¶ 8-9.) However,
explanations of these causes of actions and the alleged facts giving rise to
them are not attached to the Complaint. The Complaint does not specify the form
of the contract that was allegedly breached, as required by Code of Civil
Procedure section 430.10(g). It is also impossible to determine from the face
of the Complaint what issues must be admitted or denied by each defendant, or
which causes of action are asserted against which Defendants. The Complaint is also
incomplete on its face, alleging no facts which satisfy the elements of either
of its two identified causes of action. No exhibits nor declarations are
attached to the Complaint as filed.
The Court
notes that Plaintiff filed a separate Declaration on April 11, 2022, along with
the Complaint, laying out some of the facts that prompted him to sue, but the
Declaration was not attached to or otherwise made part of the Complaint.
Construing the Declaration, as Defendants do, as being meant to accompany the
Complaint, the allegations state that LADWP shut off Plaintiff’s electricity at
his rental unit. (Declaration of Mehmet Bolukgiray, p.1, Exh.1.) Plaintiff
alleges that Defendant Stallings turned off electricity to the property. (Id.)
However, plaintiff also attached an electrical
bill showing a negative balance from LADWP in the name of Pedro Pablo Vargas,
who is not an individual named in the Complaint. (Id. Exh. 4.) Allegations
in the complaint must yield to contrary facts in exhibits attached. (Software
Design & Application, Ltd. V. Hoefer & Arnett, Inc. (1996) 49
Cal.App.4th 472, 484.) The declaration does not allege the terms or form of any
contract. Even construing the allegation that Defendant Stallings never called
LADWP to resolve the issue as an allegation of intentional conduct, as required
for a claim of intentional infliction of emotional distress, Plaintiff’s
exhibit contradicts the allegation that this call was the cause of any injury
to Plaintiff. The attached electrical bill alleges a negative balance on the
account associated with Plaintiff’s unit—an account which is not in any
Defendant’s name. (Declaration Exh. 4.) These allegations, even in the light
most favorable to Plaintiff, are not sufficient to support either of the
identified causes of action.
As
Plaintiff has not responded to the demurrer, the Court therefore finds that the
complaint fails to state facts sufficient to constitute a cause of action, is
uncertain, and fails to allege the form of the contract allegedly breached as
required by Code of Civil Procedure section 430.10(g). Defendants’ demurrer
must therefore be sustained.
Leave to Amend
When a demurrer is sustained, the
Court determines whether there is a reasonable possibility that the defect can
be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311,
318). When a plaintiff “has pleaded the general set of facts upon
which his cause of action is based,” the court should give the plaintiff an
opportunity to amend his complaint, since plaintiff should not “be deprived of
his right to maintain his action on the ground that his pleadings were defective
for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892,
900.) Accordingly, California law imposes the burden on the plaintiffs to
demonstrate the manner in which they can amend their pleadings to state their
claims against a defendant. (Goodman v. Kennedy (1976) 18
Cal.3d 335, 349.) “Denial of leave to amend constitutes an abuse of discretion
unless the complaint shows on its face it is incapable of amendment.
[Citation.] Liberality in permitting amendment is the rule, if a fair
opportunity to correct any defect has not been given." (Angie M. v.
Superior Court (1995) 37 Cal.App.4th 1217, 1227.)
Plaintiff, having not responded to
this demurrer, has not shown the way the Complaint could be amended to repair
the defects in the Complaint. However, the defects in the Complaint are readily
apparent and stem from the dearth of facts and incomplete nature of the
complaint. In light of the liberal standard for amendment of pleadings, the
Court will nevertheless exercise its discretion to grant leave to amend.
CONCLUSION:
Accordingly, Defendants’ Demurrer is
SUSTAINED with leave to amend. Plaintiff shall have 30 days leave to amend from
the date of this order.
Moving Parties to give notice.
IT IS SO ORDERED.
Dated: August 3, 2022 ___________________________________
Theresa
M. Traber
Judge
of the Superior Court
Any party may submit on the
tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day
before the hearing. All interested parties must be copied on the email. It
should be noted that if you submit on a tentative ruling the court will still
conduct a hearing if any party appears. By submitting on the tentative you
have, in essence, waived your right to be present at the hearing, and you
should be aware that the court may not adopt the tentative, and may issue an
order which modifies the tentative ruling in whole or in part.