Judge: Virginia Keeny, Case: 24STCV11603, Date: 2025-03-19 Tentative Ruling

Case Number: 24STCV11603    Hearing Date: March 19, 2025    Dept: 45

SHANE ATTLES V. FIRST ENTERTAINMENT CREDIT UNION

DEMURRER TO ANSWER; MOTION TO STRIKE

Date of Hearing:          March 19, 2025                                   Trial Date:       March 2, 2026

Department:               45                                                        Case No.:         24STCV11603

Moving Party:             Plaintiff Shane Attles  

Responding Party:       Unopposed    

BACKGROUND

This action arises from the alleged breach of an agreement arising out of a credit card application. On May 8, 2024, Plaintiff Shane Attles (“Plaintiff”), in pro per, filed a complaint against Defendant First Entertainment Credit Union (“Defendant”) alleging causes of action for: (1) breach of fiduciary duty; and (2) restitution for quasi-contract.

On September 16, 2024, Defendant filed its answer to the complaint, which sets forth 11 affirmative defenses therein as well as a prayer for relief.  

On October 7, 2024, Plaintiff filed the instant demurrer to the answer as well as a motion to strike the answer.

As of March 14, 2025, the demurrer and motion to strike are unopposed.

[Tentative] Ruling

The demurrer to the answer is OVERRULED due to improper notice.

The motion to strike is DENIED due to improper notice.  

LEGAL STANDARD

“A party against whom an answer has been filed may object, by demurrer . . . to the answer” on the grounds that: “(a) [t]he answer does not state facts sufficient to constitute a defense” or “(b) [t]he answer is uncertain.” (Code Civ. Proc., § 430.20, subds. (a)-(b).) 

“[T]he determination whether an answer states a defense is governed by the same principles which are applicable in determining if a complaint states a cause of action.” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.) “A demurrer reaches only the contents of the pleading and such matters as may be considered under the doctrine of judicial notice.” (Ibid.) “[A] demurrer does not . . . admit contentions, deductions or conclusions of fact or law alleged in the pleading.” (Ibid.) In assessing a demurrer to the answer, “each so-called defense must be considered separately without regard to any other defense.” (Id. at p. 733.) An answer must not set forth mere legal conclusions but must articulate “facts averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint.” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.)  

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.” (Code Civ. Proc., § 435, subd. (b)(1).) A court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436, subd. (a).) A court may “[s]trike 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, subd. (b).)

ANALYSIS 

Meet and Confer Requirement

Before filing a demurrer or motion to strike, the moving party must meet and confer in person, by video conference, or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (CCP §§ 430.41(a), 435.5.) “Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer” or to grant or deny a motion to strike. (CCP §§ 430.41(a)(4), 435.5.)

The meet and confer requirement has not been satisfied. Plaintiff declares that Defendant failed to respond to his request to meet and confer. (See 09/26/24 Declaration of Demurring or Moving Party Regarding Meet and Confer.) However, the Court will still assess the demurrer and motion to strike. The parties are reminded to comply with the requirements of the Code of Civil Procedure.

The Demurrer and Motion to Strike are Both Procedurally Defective

Initially, the Court notes that Plaintiff did not file a memorandum of points and authorities in support of either the demurrer or motion to strike. “A party filing a motion . . . must serve and file a supporting memorandum. The court may construe the absence of a memorandum as an admission that the motion or special demurrer is not meritorious and cause for its denial and, in the case of a demurrer, as a waiver of all grounds not supported.” (Cal. Rules of Court, rule 3.1113(a).) Here, the lack of a memorandum of points and authorities in support of either the demurrer or motion to strike is not compliant with California Rules of Court, rule 3.1113(a).)

Moreover, the Court notes that Plaintiff filed a combined demurrer and motion to strike. Plaintiff should have filed separate motions. Plaintiff cannot combine two separate motions into one motion to avoid the filing fee.

Additionally, the notice of the demurrer and motion to strike are defective as Plaintiff failed to set forth the location of the hearing on the demurrer and motion to strike therein. Plaintiff should have set forth “[t]he . . . location” of the hearing on the demurrer and motion to strike in the notice of motion. (Cal. Rules of Court, rule 3.1110(b)(1).)

Critically, based upon its review of the proof of service filed as to the demurrer and motion to strike, it does not appear that Defendant was served with the demurrer and motion to strike. Plaintiff served a person named “Diana Mccgunigale” with the demurrer and motion to strike; however, the defendant in this action is First Entertainment Credit Union. The person named “Diana Mccgunigale” is neither a named party nor an attorney representing Defendant in this action. Defendant is represented by Mark K. Worthge of Litchfield Cavo LLP, which is located in Pasadena, CA. Thus, Plaintiff should have served Defendant’s counsel with the demurrer and motion to strike.

Due process requires a party to be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail. (Fenn v. Sherriff (2003) 109 Cal.App.4th 1466, 1482.) Defendant was not served with the demurrer and motion to strike. Although Plaintiff is a pro per litigant, pro per litigants are held to the same standards as attorneys. (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)  

CONCLUSION

Based on the foregoing, the demurrer of Plaintiff to the answer filed by Defendant is OVERRULED due to improper notice.

The motion to strike is DENIED due to improper notice. 

Moving party is ordered to give notice.