DOUGLAS KRUSCHEN VS STEVEN RICHARD GITTLEMAN

Tentative Rulings

Case Number: 20STLC07815    Hearing Date: January 28, 2021    Dept: 25

HEARING DATE: Thu., January 28, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Kruschen v. Gittleman COMPL. FILED: 09-15-20

CASE NUMBER: 20STLC07815 DISC. C/O: 02-13-22

PROCEEDINGS: DEMURRER TO PLAINTIFF’S COMPLAINT WITH MOTION TO STRIKE

MOVING PARTY: Defendant Steven Richard Gittleman

RESP. PARTY: None

DEMURRER WITH MOTION TO STRIKE

(CCP § 430.10, et seq.; 435)

TENTATIVE RULING:

ON THE CONDITION THAT, before the hearing, Defendant Steven Richard Gittleman files a proof of service demonstrating Plaintiff was properly served with the moving papers, the Demurrer as to the first cause of action is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND THE COMPLAINT and the Motion to Strike is GRANTED WITH 20 DAYS’ LEAVE TO AMEND as to Plaintiff’s request for punitive damages, GRANTED WITHOUT LEAVE TO AMEND as to Plaintiff’s request for attorney’s fees under Code of Civil Procedure section 1021.4, and DENIED as to the request to strike page 4 in its entirety and the phrase “intentional tort” from page 3, ¶ 10(c). If no proof of service is filed before the hearing, the matter will be CONTINUED TO MARCH 30, 2021 at 11:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. If continued, Defendant must file the requested proof of service at least 16 court days before the next scheduled hearing. Failure to do so may result in the Demurrer and Motion to Strike 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: None filed as of January 26, 2021 [ ] Late [X] None

REPLY: None filed as of January 26, 2021 [ ] Late [X] None

ANALYSIS:

1. Background

On September 15, 2020, Plaintiff Douglas Kruschen (“Plaintiff”) filed a complaint, in pro per, alleging defamation against Defendant Steven Richard Gittleman (“Defendant”). Defendant was personally served with the Complaint on October 1, 2020. (10/19/20 Proof of Service.)

Defendant filed the instant Demurrer with Motion to Strike on October 30, 2020. To date, no opposition has been filed.

1. Legal Standard

A. Demurrer

“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. All other grounds listed in Section 430.10, including uncertainty under subdivision (f), are special demurrers. 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).)

B. Motion to Strike

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (Code Civ. Proc. §§ 435; 436, subd. (a).) Motions may also target pleadings or parts of pleadings that are not filed or drawn in conformity with applicable laws, rules, or orders. (Code Civ. Proc. § 436, subd. (b).) However, motions to strike in limited jurisdiction courts may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the complaint.” (Code Civ. Proc. § 92, subd. (d).) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (Code Civ. Proc. § 436.)

Finally, 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).)

1. Discussion

A. Demurrer

The Demurrer is accompanied by a meet and confer declaration. (Dem., Bell Decl., ¶¶ 3-5.)

Defendant demurs to Plaintiff’s only cause of action for defamation on the basis that it is uncertain and that it fails to state sufficient facts. (Mot., p. 2:3-11.) Demurrers for failure to state a cause of action or for lack of subject matter jurisdiction are “general” demurrers. (McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77.) All other grounds listed in Code of Civil Procedure section 430.10, including uncertainty, are “special” demurrers. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).) Thus, the Court cannot consider this Demurrer on grounds of uncertainty.

“ ‘The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or cause special damage.’ [Citation.]” (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1259.)

Plaintiff’s Complaint alleges: (1) that on or about September 8, 2019, “Defendant made defamatory statements to a person or persons other than Plaintiff”; (2) that the person or persons reasonably understood the statements were about Plaintiff”; (3) that “Defendant failed to use reasonable care to determine the truth or falsity of the statement(s)”; (4) that “Defendant acted with malice, oppression, or fraud”; and (5) that “Plaintiff has suffered harm to reputation and shame, mortification, and hurt feelings as a result of Defendant(s) tortious behavior.” (Compl., p. 4, ¶ IT-1.)

The Court finds these conclusory statements insufficient. Other than the date of the alleged wrongful acts, Plaintiff has not alleged any specific facts such as what was said, to whom it was said, and whether the statements were written or oral. In the interest of resolving this matter on the merits, the Court finds the Demurrer should be SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

B. Motion to Strike

The Motion to Strike is also accompanied by the required meet and confer declaration. (Mot. to Strike, Bell Decl., ¶¶ 3-4.)

Defendant seeks to strike the Complaint in its entirety without leave to amend or, in the alternative, to strike (1) the phrase “Intentional Tort” from Page 3, ¶ 10(c); (2) page 4 of the Complaint entitled Cause of Action – Intentional Tort in its entirety; (3) the request for punitive damages on page 3, ¶ 14(2); and (4) the request for attorney’s fees pursuant to Code of Civil Procedure section 1021.4 on page 3, ¶ 11(g). (Mot., p. 2:1-15.)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) A request for punitive damages may be made pursuant to Civil Code section 3294, which provides that “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).) As noted above, Plaintiff has not alleged sufficient specific facts, let alone sufficient facts demonstrating punitive damages are warranted. Thus, the Motion to Strike the request for punitive damages should be GRANTED WITH 20 DAYS’ LEAVE TO AMEND.

Plaintiff also seeks attorney’s fees pursuant to Code of Civil Procedure section 1021.4 (Compl., p. 3, ¶ 11(g).) Section 1021.4 provides that “[i]n an action for damages against a defendant based upon that defendant’s commission of a felony offense for which that defendant has been convicted, the court may, upon motion, award reasonable attorney’s fees to the prevailing plaintiff against the defendant who has been convicted of the felony.” Here, Plaintiff has not alleged that Defendant committed or has been convicted of a felony. Thus, Section 1021.4 is inapplicable and the Motion to Strike should be GRANTED WITHOUT LEAVE TO AMEND.

Finally, as noted above, motions to strike in limited jurisdiction are only permitted on the basis that the damages or relief sought are not supported by the allegations in the Complaint. Thus, Defendant’s request to strike page 4 in its entirety and the phrase “intentional tort” from page 3, ¶ 10(c) should be DENIED.

C. Service of the Moving Papers

The attached proofs of service do not clearly specify whether Plaintiff was served with the Demurrer and Motion to Strike by mail, electronically, or both. This is important because Plaintiff is a self-represented litigant and electronic service on a self-represented litigant is permitted only where they serve and file a notice with the Court expressly consenting to accept electronic service. (Cal. Rules of Court, rule 2.251, subd. (b); see also Code Civ. Proc., § 1010.6, subd. (d)(4).) No such consent for Plaintiff is on file, so he must be served by mail.

In the interest of judicial economy, Defendant is ordered to file an amended proof of service before the hearing demonstrating that Plaintiff was properly served with the moving papers. Failure to do so will result in this hearing being CONTINUED.

1. Conclusion & Order

ON THE CONDITION THAT, before the hearing, Defendant Steven Richard Gittleman files a proof of service demonstrating Plaintiff was properly served with the moving papers, the Demurrer as to the first cause of action is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND THE COMPLAINT and the Motion to Strike is GRANTED WITH 20 DAYS’ LEAVE TO AMEND as to Plaintiff’s request for punitive damages, GRANTED WITHOUT LEAVE TO AMEND as to Plaintiff’s request for attorney’s fees under Code of Civil Procedure section 1021.4, and DENIED as to the request to strike page 4 in its entirety and the phrase “intentional tort” from page 3, ¶ 10(c). If no proof of service is filed before the hearing, the matter will be CONTINUED TO MARCH 30, 2021 at 11:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. If continued, Defendant must file the requested proof of service at least 16 court days before the next scheduled hearing. Failure to do so may result in the Demurrer and Motion to Strike being placed off calendar or denied.

Moving party is ordered to give notice.