This case was last updated from Los Angeles County Superior Courts on 10/26/2020 at 07:58:39 (UTC).

DISCOVER BANK VS RANDALL STEVENS

Case Summary

On 06/17/2019 DISCOVER BANK filed a Contract - Debt Collection lawsuit against RANDALL STEVENS. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is RANDY RHODES. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******2837

  • Filing Date:

    06/17/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Debt Collection

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

RANDY RHODES

 

Party Details

Plaintiff and Cross Defendant

DISCOVER BANK

Defendant and Cross Plaintiff

STEVENS RANDALL

Attorney/Law Firm Details

Plaintiff Attorney

BABILIS NICHOLAS J

Cross Plaintiff Attorney

STEVENS RANDALL G.

Cross Defendant Attorney

TANG JASON W

 

Court Documents

Notice (name extension) - Notice of Withdrawal of Motion to Strike Defendant's First Amended Cross Complaint

9/11/2020: Notice (name extension) - Notice of Withdrawal of Motion to Strike Defendant's First Amended Cross Complaint

Minute Order - Minute Order (Hearing on Motion - Other Motion To Strike Defendant's Cross-...)

9/17/2020: Minute Order - Minute Order (Hearing on Motion - Other Motion To Strike Defendant's Cross-...)

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

8/14/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

Opposition (name extension) - Opposition DECLARATION OF RANDALL G. STEVENS IN OPPOSITION TO CROSS-DEFENDANT DISCOVER BANK'S NOTICE OF MOTION AND MOTION TO STRIKE THE FIRST AMENDED CROSS-COMPLAINT OF R

6/22/2020: Opposition (name extension) - Opposition DECLARATION OF RANDALL G. STEVENS IN OPPOSITION TO CROSS-DEFENDANT DISCOVER BANK'S NOTICE OF MOTION AND MOTION TO STRIKE THE FIRST AMENDED CROSS-COMPLAINT OF R

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

6/4/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

4/15/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

Declaration (name extension) - Declaration of Jason W. Tang In Support of Cross-Complaint of Randall Stevens And Motion To Dismiss The Cross-Complaint of Randall Stevens

3/6/2020: Declaration (name extension) - Declaration of Jason W. Tang In Support of Cross-Complaint of Randall Stevens And Motion To Dismiss The Cross-Complaint of Randall Stevens

Memorandum (name extension) - Memorandum Plaintiff's At-Issue Memo

3/17/2020: Memorandum (name extension) - Memorandum Plaintiff's At-Issue Memo

Memorandum of Points & Authorities - Memorandum of Points & Authorities

12/30/2019: Memorandum of Points & Authorities - Memorandum of Points & Authorities

Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

1/9/2020: Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

11/18/2019: Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

Certificate of Mailing for - Certificate of Mailing for (Hearing on Demurrer - without Motion to Strike) of 10/18/2019

10/18/2019: Certificate of Mailing for - Certificate of Mailing for (Hearing on Demurrer - without Motion to Strike) of 10/18/2019

Notice of Case Reassignment/Vacate Hearings - Notice of Case Reassignment/Vacate Hearings

10/21/2019: Notice of Case Reassignment/Vacate Hearings - Notice of Case Reassignment/Vacate Hearings

Proof of Service by Substituted Service - Proof of Service by Substituted Service

7/17/2019: Proof of Service by Substituted Service - Proof of Service by Substituted Service

Answer - Answer

8/7/2019: Answer - Answer

Notice of Trial - Notice of Trial

8/8/2019: Notice of Trial - Notice of Trial

Cross-Complaint - Cross-Complaint

8/13/2019: Cross-Complaint - Cross-Complaint

Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

6/17/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

24 More Documents Available

 

Docket Entries

  • 09/21/2021
  • Hearing09/21/2021 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial

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  • 09/17/2020
  • DocketAnswer; Filed by: DISCOVER BANK (Cross-Defendant)

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  • 09/17/2020
  • DocketJury Trial scheduled for 09/21/2021 at 08:30 AM in Spring Street Courthouse at Department 25

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  • 09/17/2020
  • DocketMinute Order (Hearing on Motion - Other Motion To Strike Defendant's Cross-...)

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  • 09/17/2020
  • DocketHearing on Motion - Other Motion To Strike Defendant's Cross-Complaint scheduled for 09/17/2020 at 10:30 AM in Spring Street Courthouse at Department 25 Not Held - Taken Off Calendar by Court on 09/17/2020

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  • 09/17/2020
  • DocketTrial Setting Conference scheduled for 09/17/2020 at 10:30 AM in Spring Street Courthouse at Department 25 updated: Result Date to 09/17/2020; Result Type to Held

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  • 09/11/2020
  • DocketNotice of Withdrawal of Motion to Strike Defendant's First Amended Cross Complaint; Filed by: DISCOVER BANK (Plaintiff); As to: RANDALL STEVENS (Defendant)

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  • 09/11/2020
  • DocketAnswer; Filed by: DISCOVER BANK (Cross-Defendant); As to: RANDALL STEVENS (Cross-Complainant)

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  • 08/14/2020
  • DocketNotice Re: Continuance of Hearing and Order; Filed by: Clerk

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  • 08/14/2020
  • DocketOn the Court's own motion, Trial Setting Conference scheduled for 08/24/2020 at 10:00 AM in Spring Street Courthouse at Department 25 Not Held - Advanced and Continued - by Court was rescheduled to 09/17/2020 10:30 AM

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42 More Docket Entries
  • 08/07/2019
  • DocketAnswer; Filed by: RANDALL STEVENS (Defendant); As to: DISCOVER BANK (Plaintiff)

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  • 07/17/2019
  • DocketProof of Service by Substituted Service; Filed by: DISCOVER BANK (Plaintiff); As to: RANDALL STEVENS (Defendant); Proof of Mailing Date: 07/17/2019; Service Cost: 69.50; Service Cost Waived: No

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  • 06/17/2019
  • DocketThe case is placed in special status of: Collections Case (CCP 3.740)

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  • 06/17/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service and Failure to File Default Judgment Pursuant to CRC 3.740 scheduled for 06/22/2020 at 08:30 AM in Chatsworth Courthouse at Department F43

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  • 06/17/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 06/17/2019
  • DocketOrder to Show Cause Hearing/Trial Date (Cal. Rules of Court, rule 3.740); Filed by: Clerk

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  • 06/17/2019
  • DocketSummons on Complaint; Issued and Filed by: DISCOVER BANK (Plaintiff); As to: RANDALL STEVENS (Defendant)

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  • 06/17/2019
  • DocketCivil Case Cover Sheet; Filed by: DISCOVER BANK (Plaintiff); As to: RANDALL STEVENS (Defendant)

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  • 06/17/2019
  • DocketComplaint; Filed by: DISCOVER BANK (Plaintiff); As to: RANDALL STEVENS (Defendant)

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  • 06/17/2019
  • DocketCase assigned to Hon. Randy Rhodes in Department F43 Chatsworth Courthouse

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Tentative Rulings

Case Number: 19CHLC22837    Hearing Date: September 17, 2020    Dept: 25

HEARING DATE: Thu., September 17, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Discover Bank v. Stevens

CASE NUMBER: 19CHLC22837 COMP. FILED: 06-17-19

NOTICE: OK DISC. C/O: NONE

MOTION C/O: NONE

TRIAL DATE: NOT SET

PROCEEDINGS: MOTION TO STRIKE THE FIRST AMENDED CROSS-COMPLAINT

MOVING PARTY: Plaintiff and Cross-Defendant Discovery Bank

RESP. PARTY: Defendant and Cross-Complainant Randall Stevens

MOTION TO STRIKE FIRST AMENDED CROSS-COMPLAINT

(CCP §§ 435, 436)

TENTATIVE RULING:

Plaintiff Discovery Bank’s Motion to Strike the First Amended Cross-Complaint and Motion to Dismiss the Cross-Complaint is PLACED OFF CALENDAR.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on June 22, 2020 [ ] Late [ ] None

REPLY: None filed as of September 15, 2020 [ ] Late [X] None

ANALYSIS:

  1. Background & Discussion

On June 17, 2019, Plaintiff Discovery Bank (“Plaintiff”) filed an action for open book account and account stated against Defendant Randall Stevens (“Defendant”). On August 7, 2019, Defendant filed an Answer.

On August 13, 2019, Defendant filed a Cross-Complaint for fraud, abuse of process, equitable comparative indemnity, equitable implied indemnity, total equitable indemnity, and declaratory relief against Plaintiff. On September 13, 2019, Plaintiff filed a Demurrer to Defendant’s Cross-Complaint.

The demurrer came for hearing on October 18, 2019, at which time Judge Robert Schuit in Department F43 at the Chatsworth Courthouse found that this was not a collections case, and transferred the action to limited jurisdiction. (10/18/19 Minute Order.)

On November 18, 2019, Plaintiff re-filed the Demurrer to the Cross-Complaint. On January 9, 2020, the Court sustained Plaintiff’s demurrer and granted Defendant 20 days’ leave to amend the Complaint. (1/9/20 Minute Order.) On January 30, 2020, Defendant filed a First Amended Cross-Complaint (the “FACC”). On March 6, 2020, Plaintiff filed the instant Motion to Strike the First Amended Complaint and Motion to Dismiss the Cross-Complaint (the “Motion”).

At the initial hearing on July 6, 2020, the Court noted that the Motion was not accompanied by a meet and confer declaration as required by Code of Civil Procedure section 435.5, and ordered Plaintiff to file one attesting to its meet and confer efforts. (7/6/20 Minute Order.) The Court also requested supplemental papers demonstrating the FACC was untimely filed. (Id.)

To date, Plaintiff has not filed any supplemental papers. Accordingly, the Motion is PLACED OFF CALENDAR.

  1. Conclusion & Order

For the foregoing reasons, Plaintiff Discovery Bank’s Motion to Strike the First Amended Cross-Complaint and Motion to Dismiss the Cross-Complaint is PLACED OFF CALENDAR.

Moving party is ordered to give notice.

Case Number: 19CHLC22837    Hearing Date: July 06, 2020    Dept: 25

MOTION TO STRIKE FIRST AMENDED CROSS-COMPLAINT

(CCP §§ 435, 436)

TENTATIVE RULING:

Plaintiff/Cross-Complainant Discovery Bank’s Motion to Strike the First Amended Cross-Complaint and Motion to Dismiss the Cross-Complaint is CONTINUED TO SEPTEMBER 17, 2020 at 10:30 a.m. in Department 25 at the Spring Street Courthouse. At least 16 court days before the next scheduled hearing, Plaintiff must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

SERVICE

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on June 22, 2020 [   ] Late [   ] None

REPLY: None filed as of July 1, 2020  [   ] Late [X] None

ANALYSIS:

  1. Background

On June 17, 2020, Plaintiff Discovery Bank (“Plaintiff”) filed an action for open book account and account stated against Defendant Randall Stevens (“Defendant”). On August 7, 2019, Defendant filed an Answer.

On August 13, 2019, Defendant filed a Cross-Complaint for fraud, abuse of process, equitable comparative indemnity, equitable implied indemnity, total equitable indemnity, and declaratory relief against Plaintiff. On September 13, 2019, Plaintiff filed a Demurrer to Defendant’s Cross-Complaint.

This Demurrer came for hearing on October 18, 2019, at which time Judge Robert Schuit in Department F43 at the Chatsworth Courthouse found that this was not a collections case, and transferred the action to limited jurisdiction. (10/18/19 Minute Order.)

On November 18, 2019, Plaintiff re-filed a Demurrer to the Cross-Complaint. On January 9, 2019, the Court sustained Plaintiff’s Demurrer and granted Defendant 20 days’ leave to amend. (1/9/20 Minute Order.) On January 30, 2020, Defendant filed a First Amended Cross-Complaint (the “FACC”).

On March 6, 2020, Plaintiff filed the instant Motion to Strike the First Amended Complaint and Motion to Dismiss the Cross-Complaint.

  1. Legal Standard

Code of Civil Procedure section 436 provides:

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”

(Code Civ. Proc., § 436, subd. (b.))

Code of Civil Procedure section 435.5 requires that “[b]efore filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a).) 

“‘Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court’s order.  [Citation.]’”  (Zakk v. Diesel (2019) 33 Cal.App.5th 431, 456.) If an amended pleading is filed after the time allowed, a party may obtain an order striking the amended pleading by way of noticed motion in accordance with Code of Civil Procedure section 1010. (Cal. Rules of Court, rule 3.1320, subd. (i).)

  1. Discussion

Plaintiff argues that Defendant failed to amend its Cross-Complaint in accordance with the Court’s January 9, 2020 Order, specifically, that he failed to amend within 20 days as permitted by the Court. (Mot., p. 2:15-25; p. 4:23-26.)

As an initial matter, the Court notes that the Motion is not accompanied by a meet and confer declaration as required by Code of Civil Procedure section 435.5, subdivision (a). Thus, Plaintiff is ordered to meet and confer with Defendant, and to file a declaration attesting to such efforts.

For the sake of completeness, the Court notes that “[t]he time to amend a complaint following a demurrer runs from the notice of that ruling, not from the ruling itself even if counsel is present.” (People v. $20,000 U.S. Currency (1991) 235 Cal.App.3d 682, 691.) When service of the notice is made by mail, the time to amend is extended by five days. (Id. at p. 692; Code Civ. Proc., § 1013, subd. (a).)

Here, Plaintiff did not file a proof of service demonstrating how it served notice of the Court’s January 9, 2020 Order. The court record also does not include a certificate of mailing from the clerk for this Order. Thus, Plaintiff is ordered to file a proof a service demonstrating when and by what means it served notice of the January 9, Order for the Court to determine whether the FACC was timely filed.

  1. Conclusion & Order

For the foregoing reasons, Plaintiff/Cross-Complainant Discovery Bank’s Motion to Strike the First Amended Cross-Complaint and Motion to Dismiss the Cross-Complaint is CONTINUED TO SEPTEMBER 17, 2020 at 10:30 a.m. in Department 25 at the Spring Street Courthouse. At least 16 court days before the next scheduled hearing, Plaintiff must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

Moving party is ordered to give notice.

Case Number: 19CHLC22837    Hearing Date: July 02, 2020    Dept: 25

MOTION TO STRIKE FIRST AMENDED CROSS-COMPLAINT

(CCP §§ 435, 436)

TENTATIVE RULING:

Plaintiff/Cross-Complainant Discovery Bank’s Motion to Strike the First Amended Cross-Complaint and Motion to Dismiss the Cross-Complaint is CONTINUED TO SEPTEMBER 17, 2020 at 10:30 a.m. in Department 25 at the Spring Street Courthouse. At least 16 court days before the next scheduled hearing, Plaintiff must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on June 22, 2020 [ ] Late [ ] None

REPLY: None filed as of July 1, 2020 [ ] Late [X] None

ANALYSIS:

  1. Background

On June 17, 2020, Plaintiff Discovery Bank (“Plaintiff”) filed an action for open book account and account stated against Defendant Randall Stevens (“Defendant”). On August 7, 2019, Defendant filed an Answer.

On August 13, 2019, Defendant filed a Cross-Complaint for fraud, abuse of process, equitable comparative indemnity, equitable implied indemnity, total equitable indemnity, and declaratory relief against Plaintiff. On September 13, 2019, Plaintiff filed a Demurrer to Defendant’s Cross-Complaint.

This Demurrer came for hearing on October 18, 2019, at which time Judge Robert Schuit in Department F43 at the Chatsworth Courthouse found that this was not a collections case, and transferred the action to limited jurisdiction. (10/18/19 Minute Order.)

On November 18, 2019, Plaintiff re-filed a Demurrer to the Cross-Complaint. On January 9, 2019, the Court sustained Plaintiff’s Demurrer and granted Defendant 20 days’ leave to amend. (1/9/20 Minute Order.) On January 30, 2020, Defendant filed a First Amended Cross-Complaint (the “FACC”).

On March 6, 2020, Plaintiff filed the instant Motion to Strike the First Amended Complaint and Motion to Dismiss the Cross-Complaint.

  1. Legal Standard

Code of Civil Procedure section 436 provides:

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”

(Code Civ. Proc., § 436, subd. (b.))

Code of Civil Procedure section 435.5 requires that “[b]efore filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a).)

“‘Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court’s order. [Citation.]’” (Zakk v. Diesel (2019) 33 Cal.App.5th 431, 456.) If an amended pleading is filed after the time allowed, a party may obtain an order striking the amended pleading by way of noticed motion in accordance with Code of Civil Procedure section 1010. (Cal. Rules of Court, rule 3.1320, subd. (i).)

  1. Discussion

Plaintiff argues that Defendant failed to amend its Cross-Complaint in accordance with the Court’s January 9, 2020 Order, specifically, that he failed to amend within 20 days as permitted by the Court. (Mot., p. 2:15-25; p. 4:23-26.)

As an initial matter, the Court notes that the Motion is not accompanied by a meet and confer declaration as required by Code of Civil Procedure section 435.5, subdivision (a). Thus, Plaintiff is ordered to meet and confer with Defendant, and to file a declaration attesting to such efforts.

For the sake of completeness, the Court notes that “[t]he time to amend a complaint following a demurrer runs from the notice of that ruling, not from the ruling itself even if counsel is present.” (People v. $20,000 U.S. Currency (1991) 235 Cal.App.3d 682, 691.) When service of the notice is made by mail, the time to amend is extended by five days. (Id. at p. 692; Code Civ. Proc., § 1013, subd. (a).)

Here, Plaintiff did not file a proof of service demonstrating how it served notice of the Court’s January 9, 2020 Order. The court record also does not include a certificate of mailing from the clerk for this Order. Thus, Plaintiff is ordered to file a proof a service demonstrating when and by what means it served notice of the January 9, Order for the Court to determine whether the FACC was timely filed.

  1. Conclusion & Order

For the foregoing reasons, Plaintiff/Cross-Complainant Discovery Bank’s Motion to Strike the First Amended Cross-Complaint and Motion to Dismiss the Cross-Complaint is CONTINUED TO SEPTEMBER 17, 2020 at 10:30 a.m. in Department 25 at the Spring Street Courthouse. At least 16 court days before the next scheduled hearing, Plaintiff must file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

Moving party is ordered to give notice.

Case Number: 19CHLC22837    Hearing Date: January 09, 2020    Dept: 94

DEMURRER

(CCP §§ 430.31, et seq.)

TENTATIVE RULING:

Cross-Defendant Discover Bank’s Demurrer to the Cross-Complaint of Randall Stevens is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

SUMMARY OF COMPLAINT: Action for breach of credit card agreement. Cross-action for abuse of process, fraud, indemnity and declaratory relief.

MOTION: The Cross-Complaint fails to allege facts sufficient to state a cause of action. No facts are alleged as to what representations were made by Cross-Defendant, or Cross-Complainant’s reliance on the same. Nor does the Cross-Complaint allege facts to show that Cross-Defendant is jointly and severally liable for Cross-Complainant’s damages, or otherwise breached a duty owed to him.

OPPOSITION: Filed October 4, 2019 and December 30, 2019.

REPLY: None filed as of December 23, 2019.

ANALYSIS:

On June 17, 2019, Discover Bank (hereinafter “Cross-Defendant”) filed the instant action for breach of credit card agreement against Randall Stevens (hereinafter “Cross-Complainant). Cross-Complainant filed a Cross-Complaint on August 13, 2019. Cross-Defendant filed the instant Demurrer to the Cross-Complaint on September 13, 2019. Cross-Complainant filed an opposition on October 4, 2019, and further opposition on December 30, 2019.

Legal Standard

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be.

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under CCP § 430.10 [grounds], § 430.30 [as to any matter on its face or from which judicial notice may be taken], and § 430.50(a) [can be taken to the entire complaint or any cause of action within]. Specifically, a demurrer may be brought per CCP § 430.10(e) if insufficient facts are stated to support the cause of action asserted. Per CCP §430.10(a) a demurrer may be brought where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. Furthermore, demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. CCP § 430.10(f).

However, in construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) And, if the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control. Further, irrespective of the name or label given to a cause of action by the plaintiff, a general demurrer must be overruled if the facts as pled in the body of the complaint state some valid claim for relief. Special demurrers are not allowed in limited jurisdiction courts. (CCP § 92(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, CCP 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.” (CCP § 430.41(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (CCP § 430.41(a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (CCP § 430.41(a)(3).)

Discussion

The Demurrer is supported by a declaration that satisfies the meet and confer requirements. (Demurrer, Jordan Decl., ¶¶4-12.) Defendant demurs to the Cross-Complaint on the grounds that it fails to allege facts sufficient to state a cause of action under Code of Civil Procedure section 430.41, subdivision (e).

1st Cause of Action for Fraud and Abuse of Process

Cross-Complainant improperly attempts to state two different causes of action—fraud and abuse of process—in the first cause of action. Neither is supported by sufficient factual allegations.

The elements of a claim for fraud are (1) misrepresentation of a material fact; (2) knowledge of falsity or lack of a reasonable ground for belief in the truth of the representation; (3) intent to induce reliance; (4) [4]  actual and justifiable reliance by the plaintiff; and (5) resulting damage. (Orient Handel v. United States Fid. & Guar. Co. (1987) 192 Cal.App.3d 684, 693.) The heightened particularity requirement for fraud also requires pleading facts that “show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) And when fraud is alleged against a corporate defendant, as here, the pleading must specifically allege the names of the persons who allegedly made the representation, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mutual Auto Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

It appears the basis of the fraud cause of action is the parties reached an accord and satisfaction, upon which Cross-Complainant relied regarding payoff of the credit card debt. (Cross-Compl., ¶9.) These allegations do not state a cause of action for fraud as there are no facts alleged to show that Cross-Complainant relied on the accord and satisfaction, nor are there allegations that Cross-Defendant knew the agreement was false. Finally, there are no allegations as to who was responsible for the agreement on behalf of Cross-Defendant, and their authority to enter into an accord and satisfaction.

The basis of the cause of action for abuse of process Cross-Defendant’s filing of the Complaint in this action. Cross-Complainant alleges that the allegations in the Complaint are false and fraudulent regarding payments owed by Cross-Complainant, and that purpose of the false allegations is to “defraud and coerce payments of moneys not due and owing. (Cross-Compl., ¶¶9-10.)

“The common law tort of abuse of process arises when one uses the court’s process for a purpose other than that for which the process was designed.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057.) “To succeed in an action for abuse of process, a litigant must establish that the defendant (1) contemplated an ulterior motive in using the process, and (2) committed a willful act in the use of the process not proper in the regular conduct of the proceedings.” (Ibid. (citing Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1168).)

The Cross-Complaint does allege that Cross-Defendant had an ulterior motive in filing the Complaint, namely, to coerce his payment of moneys not owed. (Cross-Compl., ¶10.) However, it does not allege that Cross-Defendant committed an improper act in the conduct of the proceedings. “Improperly instituting or maintaining an action . . . —even for an improper purpose—is not a proper basis for an abuse of process action.” (Oren Royal Oaks Venture, supra, 42 Cal.3d 1169.) Filing an improper action may give rise to a cause of action for malicious prosecution, but only if the action is pursued to an end in Cross-Complainant’s favor.

Based on the foregoing, the demurrer to the first cause of action is sustained with leave to amend.

2nd Cause of Action for Equitable Comparative Indemnity; 3rd Cause of Action for Equitable Implied Indemnity; 4th Cause of Action for Total Equitable Indemnity

A right of equitable indemnity can arise only if the prospective indemnitor and indemnitee are mutually liable to another person for the same injury.” (Fremont Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1177.) There is no allegation here that the parties are liable to a third party; rather, the allegation is that Cross-Defendant is liable for damages to itself or Cross-Complainant. (Cross-Compl., ¶¶17-18.) Therefore, there is no “other person” to whom Cross-Defendant is allegedly liable. To the extent Cross-Complainant contends Cross-Defendant caused any damages, this is set forth as an affirmative defense. (Answer, filed 8/7/19, ¶¶3-4.)

The demurrer to the second, third, and fourth causes of action for indemnification is sustained with leave to amend.

5th Cause of Action for Declaratory Relief

“Any person interested under a written instrument . . . who desires a declaration of his or her rights or duties with respect to another . . . may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract.” (Code Civ. Proc., § 1060.)

The Cross-Complaint alleges that an actual controversy exists with respect to Cross-Defendant’s obligation to defend and indemnify Cross-Complainant. (Cross-Compl., ¶27.) As discussed above, Cross-Complainant has not stated alleged facts showing that equitable indemnification is appropriate to the circumstances of this dispute, nor are facts alleged to show why Cross-Defendant would be obligated to “defend” Cross-Complainant. No present controversy has been shown to exist regarding the parties’ rights around the alleged accord and satisfaction.

The demurrer to the fifth cause of action is sustained with leave to amend.

Conclusion

Based on the foregoing, Cross-Defendant Discover Bank’s Demurrer to the Cross-Complaint of Randall Stevens is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

Moving party to give notice.