Case Number: KC069282 Hearing Date: August 22, 2017 Dept: J

Re: Myesha Prather v. CVS Pharmacy, Inc. (KC069282)

MOTION FOR NEW TRIAL OR ALTERNATIVELY FOR LEAVE TO AMEND

Moving Party: Plaintiff Myesha Prather

Respondent: Defendant Garfield Beach CVS, LLC

POS: Moving OK; Opposing OK

Plaintiff alleges that she purchased makeup from defendant in West Covina. Plaintiff attempted to return the makeup at a CVS store in Henderson, Nevada, but was informed by a salesperson that there was a new policy and defendant was not processing returns with out of state receipts. The complaint, filed 5/2/17, asserts causes of action for:

Intentional Infliction of Emotional Distress
Breach of Contract
Breach of Warranty Express and/or Implied
Deception
Defamation of Character
Slander
Negligent Misrepresentation
Fraud
Mental Anguish

On 7/10/17, the court sustained Defendant Garfield Beach CVS, LLC’s (erroneously sued herein as CVS Pharmacy, Inc.) (“Garfield”) demurrer without leave to amend and ordered the action dismissed with prejudice. Plaintiff filed no opposition to the demurrer, failed to appear at the hearing, and presented no offer of proof as to what additional facts could be alleged if given leave to amend. On 7/11/17, Garfield filed its “Notice of Ruling on Demurrer to Complaint;” it had been mail-served on 7/10/17. On 7/12/17, Garfield filed its “Judgment of Dismissal After Demurrer to Complaint Sustained Without Leave to Amend;” it had been mail-served on 7/10/17. On 7/18/17, Garfield filed its “Notice of Entry of Judgment of Dismissal” and served same via mail.

Plaintiff Myesha Parker (“plaintiff”) seeks a new trial, on the following grounds: (1) irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial (CCP § 657(1)); (2) accident or surprise, which ordinary prudence could not have guarded against (CCP § 657(3)); (4) newly-discovered evidence, material to the moving party’s case, that could not, with reasonable diligence, have been discovered and produced at trial (CCP § 657(4)); (5) insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law (CCP § 657(6)); and (6) error in law occurring at the trial and objected to by the moving party (CCP § 657(7))).

A motion for new trial is procedurally appropriate after a demurrer is sustained without leave to amend. See Carney v. Simmons (1957) 49 Cal.2d 84. However, plaintiff has not demonstrated that she is entitled to a new trial on any of the grounds stated.

CCP § 657(1), (2)&(4): “When the application is made for a cause mentioned in the first,…, third and fourth subdivisions of Section 657, it must be made upon affidavits…” CCP § 658 (emphasis added). Plaintiff’s declaration contains no reference to irregularity of proceedings, accident or surprise and/or any newly discovered evidence.

Plaintiff’s points and authorities, moreover, fail to set forth any irregularity in the proceedings of the court. An “irregularity in the proceedings” includes “’any departure by the court from the due and orderly method of disposition of an action by which the substantial rights of a party have been materially affected.’ (5 Witkin, Cal. Procedure (2d ed. 1971) Attack on Judgment in Trial Court, § 24, p. 3602).” Jacoby v. Feldman (1978) 81 Cal.App.3d 432, 446. No departure from the court’s orderly proceedings is shown. No misconduct of the court is shown. No abuse of discretion in sustaining the demurrer without leave is shown. “Whether a plaintiff who has failed to state a cause of action should be given leave to amend his or her complaint is entrusted to the discretion of the trial court.” Camsi IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1538. Moreover, plaintiff failed to appear at the 7/10/17 hearing on the demurrer. She did not challenge any exercise of discretion by the court in denying leave to amend. She never made an offer of proof that the defects in her complaint could have been cured by amendment.

Plaintiff’s points and authorities also make no showing of accident or surprise. Plaintiff mentions that she “had car trouble” but offers no substantive information and provides no basis for the court to find that this provides an explanation as to why she did not appear in court.

Plaintiff’s points and authorities also make no showing of any newly discovered evidence.

CCP § 657(6): “A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision…, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” CCP § 657. “The ‘against law’ ground differs from the ‘insufficiency of the evidence’ ground…in that there is no weighing of evidence or determining credibility, etc. I.e., the ‘against law’ ground applies only when the evidence is without conflict in any material point and insufficient as a matter of law to support the verdict.” Weil & Brown, et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2017) ¶ 18:180 (emphasis theirs).

Plaintiff’s declaration and points and authorities make no showing that there was an insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.

CCP § 657(7): Plaintiff’s declaration and points and authorities make no showing that there was an error in law, let alone that she raised any such error at the time of the demurrer hearing. Again, plaintiff was not present in court on 7/10/17.

Finally, no basis to vacate the judgment is shown. Plaintiff does not reference CCP § 473, nor does she demonstrate “mistake, inadvertence, surprise, or excusable neglect” as would be required.

Accordingly, plaintiff’s motion is denied.