Judge: William A. Crowfoot, Case: 22STCV17802, Date: 2022-12-22 Tentative Ruling

Case Number: 22STCV17802    Hearing Date: December 22, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On June 1, 2022, plaintiff Maria Margarita Carranza (“Plaintiff”), in pro per, filed this action against defendants Chedraui USA, Inc. dba El Super (“El Super”) (erroneously sued as “El Super”) and Gallagher Bassett Services, Inc. (“Gallagher Bassett”) (erroneously sued as Gallagher Bassett, Svcs, Inc. D1-10) (collectively, “Defendants”). Plaintiff asserts causes of action for negligence and premises liability and alleges that on June 15, 2020, her foot became caught on a broken bar or pipe under a refrigerator in the meat department of a grocery store. 

Defendants demur to the Complaint on the grounds that it is uncertain, ambiguous, and unintelligible, and fails to state sufficient facts.  Defendants also move to strike Plaintiff’s Complaint in its entirety or, in the alternative, page 6 of the Complaint (erroneously numbered p. 9 of 10), Cause of Action 2 for Fraud, Cause of Action 3 for Intentional Tort, and the Exemplary Damages Attachment, Paragraphs EX-1 and EX-2. 

The demurrer is unopposed.

The Court notes that on December 13, 2022, defense counsel represented that the case had settled but a settlement agreement was pending.  Defense counsel requested that the hearing on this demurrer and motion to strike remain on calendar until a notice of settlement is filed. 

No notice of settlement appears on the Court’s docket and no settlement appears to have been reached.  See Court’s Minute Order dated December 20, 2022. Accordingly, the Court addresses the demurrer and motion to strike on their merits.

II.      LEGAL STANDARDS

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face.  (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.  We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.  [Citation.]”  (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.)  A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).) 

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).)  The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)  The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (b).)  An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.  (Code Civ. Proc., § 431.10, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Ibid.)

III.     DISCUSSION

Before filing a demurrer or motion to strike, the demurring or moving party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., §§ 430.41, subd. (a); 435.5, subd. (a).)  

          Counsel for Defendants, Rosemary Do, declares that on July 14, 2022, she spoke to Plaintiff about Defendants’ intent to file a demurrer and motion strike.  Plaintiff stated she would review her Complaint to determine if amendment was needed and extended Defendants’ deadline to respond to the Complaint to August 29, 2022, while the parties engaged in settlement negotiations.  This deadline was extended to September 19, 2022, and then to October 24, 2022.  On October 21, 2022, Plaintiff indicated that she would not file an amended Complaint.  On October 24, 2022, Defendants filed a declaration for the automatic 30-day extension of time to respond.  On November 10, 2022, Defendants sent correspondence identifying the deficiencies of the Complaint and requesting a response to meet and confer.  The Court finds that Defendants have satisfied their meet and confer obligations. 

          Motion to Strike

          Plaintiff’s Complaint fails to comply with California Rules of Court rules 2.109 and 2.112.  Rule 2.109 requires each page to be numbered consecutively at the bottom unless a rule provides otherwise for a particular type of document.  Plaintiff’s Complaint is correctly numbered from pages 1 to 4, but fails to include page numbers on the fifth page, incorrectly labels the sixth page as “pg. 9 of 10”, and fails to include any page numbers for the rest of the document.  The lack of page numbers and inconsistent page numbering makes it difficult for the Court and Defendants to refer to specific sections of Plaintiff’s Complaint. 

          Rule 2.112 governs the format for stating causes of action and requires each separately stated cause of action to state its number, its nature, the party asserting it if more than one party is represented on the pleading, and the party or parties to whom it is directed.  (CRC 2.112.)  Here, Plaintiff confusingly provides a numbered list of causes of action for: (1) malicious acts, (2) malice in fact, (3) injury to plaintiff, and (4) bodily injury, but also includes form attachments for general negligence, fraud, and intentional tort, which she also labels as the first, second, and third causes of action, respectively.  Again, this duplicative and inconsistent numbering makes it difficult for the Court and Defendants to refer to specific causes of action in Plaintiff’s Complaint. 

Under the law, a party may choose to act as his or her own attorney. (Paradise v. Nowlin (1948) 86 Cal.App.2d 897, 898; Gray v. Justice's Court (1937) 18 Cal.App.2d 420, 423.)  “[S]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]”  (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.)  Thus, as is the case with attorneys, self-represented litigants must follow correct rules of procedure.  (Kabbe v. Miller (1990) 226 Cal.App.3d 93, 98; Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193 [self-represented party “held to the same restrictive procedural rules as an attorney”]; Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638–639 [same].)

          Accordingly, Defendants’ motion to strike the Complaint in its entirety is GRANTED. 

IV.     CONCLUSION

Defendants’ motion to strike the entire Complaint is GRANTED with 20 days’ leave to amend.  The demurrer is taken off calendar as moot.   

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.