| Case | County / Judge | Motion | Ruling | Indexed | Hearing |
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Demurrer; Motion to Strike
remain unresolved, the parties must appear at the hearing and articulate which issues remain pending between them; the Court will either resolve the issues or further continue the matter depending on what issues are posed. Defendant is ordered to give notice. Parties who intend to submit on this tentative must send an email to the court at [email protected] indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.
If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.
Background
Facts Plaintiffs, Mario Casale, by and through his successor-in-interest, Malcolm Casale, as well as Malcolm Casale and Vera Casale in their individual capacities, filed this action against Defendants, Bay Breeze Care, Inc. and CHLB, LLC for dependent adult abuse, negligence, and wrongful death. The crux of the complaint is that Decedent, a disabled adult with schizophrenia, while he was a resident at Bay Breeze, suffered two violent attack at the hands of a co-resident in close temporal proximity to each other, and ultimately succumbed to the injuries suffered in the attacks.
Demurrer a. Legal Standard on Demurrer 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. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be. 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 39 Cal.3d 311 (1985). No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under CCP § 430.10
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Furthermore, demurrer for uncertainty will be
sustained only where the complaint is so bad that the defendant cannot reasonably respond. CCP § 430.10(f). However, in construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. Financial Corporation of America v. Wilburn, 189 Cal.App.3rd 764, 769 (1987). And, if the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control.
Further, irrespective of the name or label given to a cause of action by the plaintiff, a general demurrer must be overruled if the facts as pled in the body of the complaint state some valid claim for relief. Special demurrers are not allowed in limited jurisdiction courts. (CCP § 92(c).) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. Goodman v. Kennedy, 18 Cal.3d 335, 348 (1976). The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)
Finally, CCP section 430.41 requires that?[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone 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.” (CCP §430.41(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (CCP §430.41(a)(2).)
Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (CCP §430.41(a)(3).) b. Meet and Confer Defense Counsel declares the parties met and conferred and Plaintiff’s attorney advised he would not amend prior to the filing of a demurrer, but would review the demurrer and determine whether to amend after reviewing it. This is not the purpose of the Code. The purpose of the Code is to avoid the time and effort expended in connection with the demurrer in the event the plaintiff needs to amend the complaint to cure any defects appearing therein.
Plaintiff’s attorney is admonished to meet and confer in a manner compliant with the spirit of the Code in the future in connection with this and other actions. Initial Note Plaintiff has not timely opposed the demurrer or filed a timely First Amended Complaint in response to the demurrer. Dependent Adult Abuse Defendant’s demurrer is directed at the first cause of action for dependent adult abuse only; Defendant does not demur to the negligence and/or wrongful death causes of action. Defendant correctly notes that malice, fraud, oppression, or recklessness must be alleged to support a claim
for dependent adult abuse. Defendant also correctly notes that the complaint is confusing and uncertain, referring to Robert Burris as Plaintiff’s attacker in ¶¶15-18 and Christopher Monks as the attacker in ¶22. Defendant argues Plaintiff failed to allege recklessness, as Plaintiff admits Defendant’s employees contacted the police and fails to allege what specifically they could or should have done to prevent or stop the attack. In the absence of opposition, the Court presumes Plaintiff concedes the defects and sustains the demurrer without leave to amend.
Motion to Strike Defendant moves to strike the prayer for attorneys’ fees, the prayer for punitive damages, and all related allegations. The motion to strike the prayer for punitive damages and related allegations is moot due to the ruling above on the demurrer; the Court notes, however, that it would be granted on the additional ground that Plaintiff’s failed to allege authorization, ratification, or participation by an officer, director, or managing agent of Defendant, as required by Civil Code §3294.
Defendant did not meaningfully brief the motion to strike the prayer for attorneys’ fees, which is sought in connection with the first cause of action for dependent adult abuse only. The motion to strike is moot, however, due to the ruling above on the demurrer. The parties are reminded that there is a Case Management Conference on calendar concurrently with the hearing on the demurrer and motion to strike. The Court asks the parties to make arrangements to appear remotely at the CMC and hearing on the demurrer and motion to strike.
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