Case Number: 17STLC02755 Hearing Date: January 17, 2018 Dept: 77

Defendant Estate of Lillian Solomon c/o Debrah Caraway’s Demurrer to Complaint is SUSTAINED with 20 days’ leave to amend.

Background

On October 4, 2017, Plaintiff Lorna A. Stephenson (“Plaintiff”) filed, in pro per, this action against Defendant Estate of Lillian Solomon c/o Debrah Caraway (“Defendant”). On November 13, 2017, Defendant filed a Demurrer. As of January 10, 2018, no opposition or reply has been filed.

Meet and Confer

Pursuant to CCP § 430.41(a), “[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.”

Pursuant to a Court’s order, Defendant submitted a declaration attesting to its meet-and-confer effort on January 3, 2018. (See Kerendian Decl.) The Court is satisfied with Defendant’s meet-and-confer effort.

Timeliness of the Demurrer

CCP § 430.40(a) states, “[a] person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.” Courts have the discretion to consider untimely demurrer so long as their action does not affect the substantial rights of parties. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 749.)

Here, the Complaint was filed October 4, 2017, but the Proof of Service does not show the date on which the Complaint was served on Defendant. (See Compl., Proof of Service.) Thus, the Court cannot determine whether the Demurrer was timely filed when it was filed on November 13, 2017. The Court notes, however, the difference between the filing date the Complaint and the filing date of the Demurrer is less than two weeks. Thus, even if the Complaint was untimely filed, the Court exercises its discretion to consider the Demurrer as it appears there would be no prejudicial effect on Plaintiff’s substantial rights.

Legal Standards

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The court “assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.” (Id.) The court liberally construes the pleading with a view to substantial justice between the parties. (Id. at 726.) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.) Allegations in the complaint must not be read in isolation for purposes of a demurrer or a motion to strike. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.)

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, ‘leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.’” (CLD Const., Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 114.)

Discussion

A. Uncertainty

Defendant demurs to the Complaint for uncertainty. (Demurrer pp. 5-7.) The Court notes, however, that special demurrers for uncertainty are not permitted in a limited jurisdiction court. (Code Civ. Proc., § 92(c); see also Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145–146 [“A special demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made.”].) Accordingly, the Court declines to consider the issue of uncertainty that Defendant raised in the Demurrer.

B. Failure to Allege Sufficient Facts

The Complaint alleges the following two sentences:

“Unpaid balance of tax for property tax + walk[-]in tub heater: at address 1013 S. 8th Place, Inglewood, CA 90303” (Compl. ¶ 1); and

“Bal of $2000 for property tax for 2016 and $19,885 for walk[-]in bathtub with water heater at address 10613 S. 8th Place, Inglewood, California 90303” (id. ¶ 8).

Plaintiff also attaches what appears to be a contract to the Complaint between herself and third parties, Nichol Turner and Aqua Finance, Inc. (Compl., Attch.) It does not appear, however, that Plaintiff is a party to the contract.

In the Demurrer, Defendant contends that Plaintiff fails to allege sufficient facts to form any causes of action against it. (Demurrer p. 4.) The Court agrees. Plaintiff fails to sufficiently allege how Defendant could be liable for the unpaid property tax and the costs of the walk-in bathtub heater.

For the foregoing reasons, Defendant’s Demurrer to the Complaint is SUSTAINED with 20 days’ leave to amend.

Moving party to give notice.