This case was last updated from Fresno County Superior Courts on 12/09/2019 at 19:48:29 (UTC).

Fred Colley, JR vs. Sierra Meadows Senior Living, LLC

Case Summary

On 03/23/2018 Fred Colley, JR filed a Contract - Other Contract lawsuit against Sierra Meadows Senior Living, LLC. This case was filed in Fresno County Superior Courts, Bf Sisk Courthouse located in Fresno, California. The Judges overseeing this case are Gaab, Kimberly, Diaz, Monica, Black, Donald, Simpson, Alan and Tharpe, D Tyler. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******1010

  • Filing Date:

    03/23/2018

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Contract - Other Contract

  • Court:

    Fresno County Superior Courts

  • Courthouse:

    Bf Sisk Courthouse

  • County, State:

    Fresno, California

Judge Details

Judges

Gaab, Kimberly

Diaz, Monica

Black, Donald

Simpson, Alan

Tharpe, D Tyler

 

Party Details

Plaintiff

Colley, Fred, JR

Defendants

Sierra Meadows Senior Living, LLC

Estate of James Ransom

Ransom, James

Cross Plaintiff

Roes 1 through 25

Cross Defendant

Sierra Meadows Senior Living LLC

Attorney/Law Firm Details

Plaintiff Attorney

Garcia, Stephen M.

Defendant and Cross Defendant Attorney

Kennedy, Kevin P

 

Court Documents

Proof of Service

Hrg: 06/26/18 Proof of Service; Comment: Hrg: 06/26/18 Proof of Service

Opposition filed

Hrg: 06/26/18 Opposition; Comment: Hrg: 06/26/18 Opposition

Order Denied

Order Denied; Judicial Officer: Gaab, Kimberly; Comment: Order on Request for Pretrial Discovery Conference and Certificate of Mailing

Summons issued and filed

Summons; Summons issued and filed; Comment: Summons

Summons issued and filed

Summons; Summons issued and filed; Comment: Summons

Cross Complaint Filed

Defendant Cross Complainant, Sierra Meadows Senior Living, L; Comment: Defendant Cross Complainant, Sierra Meadows Senior Living, Llcs, Cross-complaint

Notice Filed

Defendant Sierra Meadows Snioe Living LLC Notice of Advance; Comment: Defendant Sierra Meadows Snioe Living LLC Notice of Advance Payment of Jury Fee Deposit

Objection filed

Defendant, Sierra Meadows Senior Living, Llcs Jeld-wen V. Su; Comment: Defendant, Sierra Meadows Senior Living, Llcs Jeld-wen V. Superior Court Objection

Answer Filed

Defendant, Sierra Meadows Senior Living, Llcs, Answer To Pla; Comment: Defendant, Sierra Meadows Senior Living, Llcs, Answer To Plaintiffs Complaint And Demand For Trial By Jury

Opposition filed

Defendant/Cross Complainant Sierra Meadows Senior Living LLC; Comment: Defendant/Cross Complainant Sierra Meadows Senior Living LLC Opposition to Plaintiffs Demurrer to Sierra Meadows Demurrer to Sierra Meadows Senior Living

Response filed

Response to Interrogatories [Set Two]; Comment: Response to Interrogatories [Set Two]

Notice Filed

Notice of Ruling on Motion for Trial Preference; Comment: Notice of Ruling on Motion for Trial Preference

Minute Order Attachment (Tentative Rulings Only)

Minute Order Attachment (Tentative Rulings Only); Comment: and Certificate of Mailing

Order Appointing Court Approved Reporter

Order Appointing Court Approved Reporter; Judicial Officer: Gaab, Kimberly; Comment: Florence Colby #12433

Case Management Statement Filed

Case Management Statement; Comment: Case Management Statement

Case Management Statement Filed

CMC.Stmt.pdf; Comment: Hrg. 7/16/18 - Case Management Statement

Motion filed

Demurrer.X-Complaint.pdf; Comment: Hrg. 7-24-18 - Demurrer

Reply filed

Reply.MTP.pdf; Comment: in Support of Motion - Trial Preference. Hearing: 6/26/18

65 More Documents Available

 

Docket Entries

  • 10/31/2019
  • View Court Documents
  • DispositionDisposition: Judgment- Request for Dismissal filed; Judgment Type: Request for Dismissal filed; Party Names: Colley, Fred, JR; Sierra Meadows Senior Living, LLC; Sierra Meadows Senior Living LLC; Roes 1 through 25; Ransom, James; Estate of James Ransom; Comment: with prejudice.

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  • 10/23/2019
  • View Court Documents
  • DispositionDisposition: Judgment- Dismissal - Other filed; Judgment Type: Dismissal - Other filed; Party Names: Sierra Meadows Senior Living LLC; Roes 1 through 25; Comment: with prejudice.; Comment: (as to Cross-Complaint)

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  • 12/09/2019
  • HearingJury Trial- Judicial Officer: Simpson, Alan; Hearing Time: 9:00 AM; Cancel Reason: Settled; Comment: Jury Req by both; 5-14 Days

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  • 12/06/2019
  • HearingTrial Readiness- Judicial Officer: Simpson, Alan; Hearing Time: 9:30 AM; Cancel Reason: Settled

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  • 11/21/2019
  • HearingCRC 3.1385 After Settlement- Judicial Officer: Tharpe, D Tyler; Hearing Time: 3:31 PM; Cancel Reason: Dismissed

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  • 10/31/2019
  • View Court Documents
  • HearingRequest for Dismissal Received - Pending Review- Request for Dismissal

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  • 10/30/2019
  • HearingMandatory Settlement Conference- Hearing Time: 1:30 PM; Cancel Reason: Settled

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  • 10/28/2019
  • View Court Documents
  • HearingNotice of Entry of Dismissal filed- Notice of Entry of Dismissal and Proof of Service

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  • 10/23/2019
  • View Court Documents
  • HearingRequest for Dismissal Received - Pending Review- Request for Dismissal; Comment: Request for Dismissal

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  • 08/12/2019
  • View Court Documents
  • HearingNotice of Hearing- Notice of Hearing; Comment: Notice of Dismissal Hearing

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98 More Docket Entries
  • 09/05/2018
  • FinancialFinancial info for Colley, Fred, JR: Transaction Assessment $120.00

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  • 07/19/2018
  • FinancialFinancial info for Colley, Fred, JR: EFile Payment Receipt # WEB-2018-52490 Colley, Fred $150.00

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  • 07/19/2018
  • FinancialFinancial info for Colley, Fred, JR: Transaction Assessment $150.00

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  • 06/20/2018
  • FinancialFinancial info for Colley, Fred, JR: EFile Payment Receipt # WEB-2018-44880 Colley, Fred $60.00

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  • 06/20/2018
  • FinancialFinancial info for Colley, Fred, JR: Transaction Assessment $60.00

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  • 04/20/2018
  • FinancialFinancial info for Colley, Fred, JR: EFile Payment Receipt # WEB-2018-28322 Colley, Fred $60.00

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  • 04/20/2018
  • FinancialFinancial info for Colley, Fred, JR: Transaction Assessment $60.00

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  • 03/23/2018
  • FinancialFinancial info for Colley, Fred, JR: EFile Payment Receipt # WEB-2018-21233 Colley, Fred $435.00

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  • 03/23/2018
  • FinancialFinancial info for Colley, Fred, JR: Transaction Assessment $435.00

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  • 03/23/2018
  • FinancialFinancial: Colley, Fred, JR; Total Financial Assessment $905.00; Total Payments and Credits $905.00

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Complaint Information

GARCIA, ARTIGLIERE & MEDBY

Stephen M. Garcia, State Bar No. 123338 edocs@lawgarcia.com

One World Trade Center, Suite 1950

Long Beach, California 90831 E-FILED

Telephone: (562) 216-5270 6/20/2018 8:57 AM

Facsimile: (562) 216-5271 FRESNO COUNTY SUPERIOR COURT Attorneys for Plaintiff By: K. Daves, Deputy

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF FRESNO

FRED COLLEY IR, CASE NO. 18CECGO01010

Plaintiff, PLAINTIFF FRED COLLEY JR'S

NOTICE OF DEMURRER AND

VS. DEMURRER TO DEFENDANT AND

CROSS-COMPLAINANT SIERRA

SIERRA MEADOWS SENIOR LIVING MEADOWS SENIOR LIVING, LLC’S LLC; and DOES 1 through 250, inclusive, CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES;

Defendants. DECLARATION OF NICHOLAS W.

STADMILLER IN COMPLIANCE WITH

-------------------- OO = mmm o mmmm m e CODE OF CIVIL PROCEDURE §430.41(a)

SIERRA MEADOWS SENIOR LIVING, | Date: July 24, 2018 LLC, Time: 3:30 p.m. Department: 503 Cross-Complainant, Assigned to Hon. Kimberley A. Gaab,

VS. Dept. 503 ROES 1 through 250, inclusive, Action Filed: March 23, 2018 Trial Date: None Set

Cross-Defendants.

TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on July 24, 2018 at 3:30 p.m. or as soon thereafter as the matter may be heard in Department 503 of the above-entitled Court, Plaintiff Fred Colley Jr.

(“Plaintiff”) will and hereby does demur to Defendant and Cross-Complainant Sierra Meadows

1 PLAINTIFF FRED COLLEY JR.’S NOTICE OF DEMURRER AND DEMURRER TO DEFENDANT AND

1 PLAINTIFF FRED COLLEY JR.’S NOTICE OF DEMURRER AND DEMURRER TO DEFENDANT AND Senior Living LLC’s (“Cross-Complainant” or “Defendant’) Cross-Complaint.

Senior Living LLC’s (“Cross-Complainant” or “Defendant’) Cross-Complaint.

Good cause exists for this Demurrer pursuant to Code of Civil Procedure §§ 430.10(d) and (f) because the Cross-Complaint suffers from a defect in parties by failing to name any Cross- Defendant whatsoever other than “ROES 1 through 250, inclusive”, and is so uncertain as to be ambiguous and unintelligible so that demurring party cannot tell what he is supposed to respond to, and therefore Plaintiff is justified in bringing forth this Demurrer.

This Demurrer will be based upon this Notice, the attached Demurrer and Memorandum of Points and Authorities, the Declaration of Nicholas W. Stadmiller, all documents and records in the Court’s file, and all additional documentary evidence as may be presented at the time of the hearing.

DATED: June 20, 2018 GARCIA, ARTIGLIERE & MEDBY

Attorneys for Plaintiff

e e e e — PLAINTIFF FRED COLLEY JR.'S NOTICE OF DEMURRER AND DEMURRER TO DEFENDANT AND

DEMURRER

Plaintiff Fred Colley Jr. hereby demurrers to Defendant and Cross-Complainant Sierra Meadows Senior Living, LLC’s Cross-Complaint pursuant to Code of Civil Procedure §§ 430.10 (d) and (f) as follows:

DEFENDANT AND CROSS-COMPLAINANT’S ENTIRE CROSS-COMPLAINANT

The entire Cross-Complaint suffers from a defect in parties by failing to name any Cross- Defendant whatsoever other than “ROES 1 through 250, inclusive”. Code of Civil Procedure § 430.10(d).

The entire Cross-Complaint is so uncertain as to be ambiguous and unintelligible so that demurring party cannot tell what he is supposed to respond to. See Cross-Complaint at Page 1, line 21 through Page 4, line 20; Code of Civil Procedure § 430.10(f).

CROSS-COMPLAINT’S FIRST CAUSE OF ACTION

The Cross-Complaint’s First Cause of Action suffers from a defect in parties by failing to name any Cross-Defendant whatsoever other than “ROES 1 through 250, inclusive”. Code of Civil Procedure § 430.10(d).

The Cross-Complaint’s First Cause of Action is so uncertain as to be ambiguous and unintelligible so that demurring party cannot tell what he is supposed to respond to. See Cross- Complaint at Page 2, line 20 through Page 3, line 20; Code of Civil Procedure § 430.10(f).

CROSS-COMPLAINT’S SECOND CAUSE OF ACTION

The Cross-Complaint’s Second Cause of Action suffers from a defect in parties by failing to name any Cross-Defendant whatsoever other than “ROES 1 through 250, inclusive”. Code of Civil Procedure § 430.10(d).

The entire Cross-Complaint 1s so uncertain as to be ambiguous and unintelligible so that demurring party cannot tell what he is supposed to respond to. See Cross-Complaint at Page 3, line 21 through Page 4, line 3; Code of Civil Procedure § 430.10(%).

CROSS-COMPLAINT’S THIRD CAUSE OF ACTION

The Cross-Complaint’s Third Cause of Action suffers from a defect in parties by failing to

1 PLAINTIFF FRED COLLEY JR.’S NOTICE OF DEMURRER AND DEMURRER TO DEFENDANT AND

1 PLAINTIFF FRED COLLEY JR.’S NOTICE OF DEMURRER AND DEMURRER TO DEFENDANT AND name any Cross-Defendant whatsoever other than “ROES 1 through 250, inclusive”. Code of Civil Procedure § 430.10(d).

name any Cross-Defendant whatsoever other than “ROES 1 through 250, inclusive”. Code of Civil Procedure § 430.10(d).

The Cross-Complaint’s Third Cause of Action is so uncertain as to be ambiguous and unintelligible so that demurring party cannot tell what he is supposed to respond to. See Cross- Complaint at Page 4, lines 4-20; Code of Civil Procedure § 430.10(f).

DATED: June 20, 2018 GARCIA, ARTIGLIERE & MEDBY

By: Stephen M. Garcia Attorneys for Plaintiff

MEMORANDUM OF POINT AND AUTHORITIES

L. INTRODUCTION

This is an Elder Abuse, Negligent Hiring and Supervision and Assault & Battery case brought by Plaintiff Fred Colley Jr. by and through his attorney in fact Jane Colley (hereinafter referred to as "Plaintiff"). Plaintiff is an elder under the Elder Abuse statutes who suffered abuse while he was a resident at Sierra Meadows Senior Living, LLC (hereinafter referred to as the “Facility” or “Defendant”), a Residential Care Facility for the Elderly, On May 29, 2018, Defendant filed a document entitled “Defendant/Cross-Complainant, Sierra Meadows Senior Living, LLC’s, Cross-Complaint.” Defendant/Cross-Complainant’s Cross-Complaint suffers from a defect in parties by failing to name any Cross-Defendant whatsoever other than “ROES 1 through 250, inclusive”, and is so uncertain as to be ambiguous and unintelligible so that demurring party cannot tell what he is supposed to respond to, and therefore Plaintiff is justified in bringing forth this Demurrer. Plaintiff respectfully requests that this Court sustain its demurrer without leave to amend. II. STANDARD OF REVIEW

Pursuant to Code of Civil Procedure section 430.10: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: “(d) There is a defect or misjoinder of parties”, or “(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.” /d. The purpose of a demurrer is to test the sufficiency of the pleadings as a matter of law, and to raise questions of law. Whitcombe v. Yolo County (1977) 73 Cal.App.3d 698. Since the demurrer tests pleadings alone and not evidence or extrinsic matters, it lies only where defects appear on the face of the pleadings, or where contradicted by facts or documents of which the court can take judicial notice. A “demurrer to a complaint or cross-complaint may be taken to the whole complaint or cross-complaintcauses of action stated therein.” Code of Civil Procedure §430.50(a). Therefore, the moving Plaintiff is

permitted to demurrer to the whole Cross-Complaint, as well as all three causes of action asserted

WITH THE RULES OF PLEADING

Defendant’s Cross-Complaint is woefully defective procedurally, entirely fails to name any Cross-Defendant whatsoever other than “ROES 1 through 250, inclusive”, and is hopelessly uncertain.

It is axiomatic that a cross-complaint must conform to the rules applicable to pleadings generally. See California Rules of Court 2.100 through 2.119.

Moreover, a party against whom a cause of action has been asserted in a complaint may file a cross-complaint setting forth either or both of the following:

(a) Any cause of action he has against any of the parties who filed the

complaint or cross-complaint against him. Nothing in this subdivision

authorizes the filing of a cross-complaint against the plaintiff in an action

commenced under Title 7 (commencing with Section 1230.010 ) of Part 3.

(b) Any cause of action he has against a person alleged to be liable thereon,

whether or not such person is already a party to the action, if the cause of action

asserted in his cross-complaint (1) arises out of the same transaction, occurrence,

or series of transactions or occurrences as the cause brought against him or (2)

asserts a claim, right, or interest in the property or controversy which is the

subject of the cause brought against him. See Code of Civil Procedure § 428.10 (bold added). Here, the purported Cross-Complaint is fatally uncertain, and consists only of only conclusory allegations against no identified party at all.

In addition, the fatally uncertain Cross-Complaint is clearly premature. Pursuant to Code of

5 PLAINTIFF FRED COLLEY JR.’S NOTICE OF DEMURRER AND DEMURRER TO DEFENDANT AND

5 PLAINTIFF FRED COLLEY JR.’S NOTICE OF DEMURRER AND DEMURRER TO DEFENDANT AND Civil Procedure § 428.10, it is axiomatic that:

Civil Procedure § 428.10, it is axiomatic that:

(a) A party shall file a cross-complaint against any of the parties who filed the

complaint or cross-complaint against him or her before or at the same time as the

answer to the complaint or cross-complaint.

(b) Any other cross-complaint may be filed at any time before the court has

set a date for trial.

(¢) A party shall obtain leave of court to file any cross-complaint except one

filed within the time specified in subdivision (a) or (b). Leave may be

granted in the interest of justice at any time during the course of the action.

See Code of Civil Procedure § 428.10 (bold added). Thus, as there is no Cross-Complaint identified against Plaintiff, there is no basis in law or fact for the Cross-Complaint as it currently stands.

Clearly the Cross-Complaint violates California Code of Civil Procedure § 430.10. Moreover, the caption of a cross-complaint must identify both the original parties and the parties to the cross-complaint. California Code of Civil Procedure § 422.40; California Rules of Court 2.111(4). Here, the caption does not comply with this format, and does not identify any party against who the Cross-Complaint is asserted.

For these reasons the demurrer should be sustained for failing to comply with the rules of pleading for a proper cross-complaint.

IV. THE __CROSS-COMPLAINT’S FIRST CAUSE OF ACTION _FOR

EQUITABLE/IMPLIED INDEMNITY SUFFERS FROM DEFECTS IN PARTIES AND IS UNCERTAIN

Plaintiff incorporates all above arguments. Aside from the clear procedural defects set forth above, it is entirely unclear against whom the First Cause of Action is being asserted. It is simply anyone’s guess. Yet even if properly plead, Defendant’s First Cause of Action is still insufficient to state any valid cause of action.

A cross-complaint is treated as an independent action. It is nof dependent on Plaintiff's

6 PLAINTIFF FRED COLLEY JR.’S NOTICE OF DEMURRER AND DEMURRER TO DEFENDANT AND

6 PLAINTIFF FRED COLLEY JR.’S NOTICE OF DEMURRER AND DEMURRER TO DEFENDANT AND action. The issues raised by the cross-complaint are treated as “completely severable” from the

action. The issues raised by the cross-complaint are treated as “completely severable” from the

issues raised by the original complaint and answer. See Bertero v. National General Corp. (1974)

13 Cal.3d 43, 51-52; Ohio Cas. Ins. Group v. Sup.Ct. (1994) 30 Cal.App.4th 444, 448449,

The Cross-Complaint’s First Cause of Action suffers from a defect in parties by failing to name any Cross-Defendant whatsoever other than “ROES 1 through 250, inclusive”. Code of Civil Procedure § 430.10(d).

The Cross-Complaint’s First Cause of Action is also so uncertain as to be ambiguous and unintelligible so that demurring party cannot tell what he is supposed to respond to. See Cross- Complaint at Page 2, line 20 through Page 3, line 20; Code of Civil Procedure § 430.10(f).

For these forgoing reasons, the demurrer should be sustained as to the First Cause of Action.

V. THE _CROSS-COMPLAINT’S SECOND CAUSE _OF ACTION FOR

APPORTIONMENT AND CONTRIBUTION SUFFERS FROM DEFECTS IN PARTIES AND IS UNCERTAIN

Plaintiff incorporates all above arguments. The Cross-Complaint’s Second Cause of Action

suffers from a defect in parties by failing to name any Cross-Defendant whatsoever other than

“ROES 1 through 250, inclusive”. Code of Civil Procedure § 430.10(d).

The entire Cross-Complaint is also so uncertain as to be ambiguous and unintelligible so that demurring party cannot tell what he is supposed to respond to. See Cross-Complaint at Page 3, line 21 through Page 4, line 3; Code of Civil Procedure § 430.10(f).

For these forgoing reasons, the demurrer should be sustained as to the Second Cause of Action.

V. THE _CROSS-COMPLAINT’S THIRD CAUSE OF ACTION _FOR

DECLARATORY RELIEF SUFFERS FROM DEFECTS IN PARTIES AND IS UNCERTAIN

Plaintiff incorporates all above arguments. The Cross-Complaint’s Third Cause of Action

suffers from a defect in parties by failing to name any Cross-Defendant whatsoever other than

7 PLAINTIFF FRED COLLEY JR.’S NOTICE OF DEMURRER AND DEMURRER TO DEFENDANT AND

7 PLAINTIFF FRED COLLEY JR.’S NOTICE OF DEMURRER AND DEMURRER TO DEFENDANT AND “ROES 1 through 250, inclusive”. Code of Civil Procedure § 430.10(d).

“ROES 1 through 250, inclusive”. Code of Civil Procedure § 430.10(d).

The Cross-Complaint’s Third Cause of Action is also so uncertain as to be ambiguous and unintelligible so that demurring party cannot tell what he is supposed to respond to. See Cross- Complaint at Page 4, lines 4-20; Code of Civil Procedure § 430.10(%).

For these forgoing reasons, the demurrer should be sustained as to the Third Cause of Action.

VII. THIS COURT MAY SUSTAIN MOVING PARTY’S DEMURRER WITHOUT

LEAVE TO AMEND AS THERE IS NO REASONABLE POSSIBILITY THAT THE DEFECTS IN THE CROSS-COMPLAINT CAN BE CURED BY AMENDMENT

Where a party cannot establish that the defects in the amended pleading are curable, a court is justified in refusing to grant further leave to amend. See Goodman v. Kennedy, (1976) 18 Cal.3d 335, 349. A party "must show in what manner [he] can amend [his] Complaint and how that amendment will change the legal effect of the pleading." Here, as it is Cross-Complainant’s burden to establish that the pleading defects are curable, Cross-Complainant has alleged no facts in the Cross-Complaint to indicate that there is a reasonable possibility the defects in the pleading can be cured, Cross-Complainant should not be allowed leave to amend. See, e.g., Price v. Dames & Moore, (2001) 92 Cal. App. 4th 355, 359 (recognizing that it is the burden of the party against which a demurrer is brought to establish a reasonable possibility that the defect can be cured by amendment); Goodman, supra, 18 Cal.3d at 349.

Furthermore, where there can be no liability as a matter of law, leave to amend should not be granted. See Schonfeldt v. State of California, (1998) 61 Cal.App.4th 1462, 1465); Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 436 ("Leave to amend should be denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law."). Here, even if Cross-Complainant was given the opportunity to amend, it would still be unable to state sufficient facts to allege any possible cause of action against any party. Therefore,

the Court should sustain Plaintiff’s demurrer, without leave to amend.

-8 PLAINTIFF FRED COLLEY JR.’S NOTICE OF DEMURRER AND DEMURRER TO DEFENDANT AND