Re: Marcelo Rivas v. Robert Gonzalez
Superior Court No. 17CECG03597
Hearing Date: Tuesday February 27, 2018 (Dept. 502)
Motion: Defendants’ Demurrer and Motion to Strike
Tentative Ruling:

To deny Defendants’ request that Plaintiff’s Complaint be deemed a First Amended Complaint.

To overrule the demurrer in its entirety.

To deny the motion to strike

Defendants are granted 10 days leave to file an answer. The time in which the answer may be filed will run from service by the clerk of the minute order. (Code Civ. Proc., § 472b.)

Explanation:

Demurrer

Code Civ. Proc., § 430.10, subd. (f) – failure to separately state causes of action

A complaint that combines multiple, “novel” causes of action into a single cause of action is defective and subject to special demurrer for uncertainty. (Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 9 emphasis added.) The first cause of action does not suffer from this infirmity as it pleads only a claim for declaratory relief.

Code Civ. Proc., § 430.10, subd. (f) – failure to attach written agreement

Plaintiff has now filed the agreement.

Code Civ. Proc., § 430.10, subd. (g) – failure to allege whether contract is oral/written

Plaintiff has alleged the agreement is partly written and partly oral.

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Motion to Strike

Code Civ. Proc., § 436, subd. (b) – Code of Civ. Proc., § 761.020

The complaint is verified.

Code Civ. Proc., § 436, subd. (a)- Attorney’s fees

The written agreement clearly sets forth the basis for recovery of attorneys’ fees

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling
Issued By: DSB on 02/26/18

(Judge’s initials) (Date)