CHANG MAN YANG VS FUN SOO KIM, ET AL.

Tentative Rulings

Case Number: 20STLC01471    Hearing Date: July 02, 2020    Dept: 25

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendants Fon S. Kim and Mi Young Kim’s Demurrer to Complaint is DENIED.

SERVICE:

[ ] Proof of Service Timely Filed (CRC, rule 3.1300) NO

[ ] Correct Address (CCP §§ 1013, 1013a) NO

[ ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) NO

OPPOSITION: None filed as of June 29, 2020 [ ] Late [X] None

REPLY: None filed as of June 29, 2020 [ ] Late [X] None

ANALYSIS:

1. Background

On February 13, 2020, Plaintiff Chang Man Yang (“Plaintiff”) filed an action for breach of contract and promise without intent to perform against Defendants Fon S. Kim and Mi Young Kim (collectively, “Defendants”). On March 20, 2020, default was entered as to both Defendants.

On March 26, 2020, Defendants filed the instant Demurrer to Complaint (the “Demurrer”). To date, no opposition has been filed.

1. Legal Standard

“The primary function of a pleading is to give the other party notice so that it may prepare its

case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to

affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“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 does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) 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.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,

however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.

Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

A general demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, Code of Civil Procedure 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.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

1. Discussion

Here, Defendants demur to Plaintiff’s first and second causes of action on the basis that they fail to state sufficient facts to constitute a cause of action. (Demurrer, p. 2.)

First, the Court notes that although Defendants filed a proof of service with their Demurrer, it does not specify on whom the moving papers were served. More importantly, as noted above, default was entered against both Defendants on March 20, 2020. “The clerk’s entry of default cuts off the defendant’s right to take further affirmative steps such as filing a pleading or motion, and the defendant is not entitled to notices or service of pleadings or papers.” (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1301.) Should Defendants wish to defend this action, they must first seek to set aside the default entered against them pursuant to Code of Civil Procedure section 473 or 473.5.

1. Conclusion & Order

For the foregoing reasons, Defendants Fon S. Kim and Mi Young Kim’s Demurrer to Complaint is DENIED.

Moving party is ordered to give notice.