This case was last updated from Los Angeles County Superior Courts on 03/09/2020 at 15:20:06 (UTC).

GINA P GONZALES VS CHRIS SIMS

Case Summary

On 08/28/2019 GINA P GONZALES filed a Contract - Other Contract lawsuit against CHRIS SIMS. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******8025

  • Filing Date:

    08/28/2019

  • Case Status:

    Other

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiff and Cross Defendant

GONZALES GINA P

Defendant and Cross Plaintiff

SIMS CHRIS AKA CHRISTOPHER SIMS AKA CURLY SIMS JR. AKA CURLY CHRISTOPHER CHIP SIMS

Attorney/Law Firm Details

Plaintiff and Cross Defendant Attorney

BALDWIN DANIEL WEBSTER

 

Court Documents

Request for Dismissal - Request for Dismissal

2/27/2020: Request for Dismissal - Request for Dismissal

Stipulation (name extension) - No Order - Stipulation - No Order Stipulation of the parties

3/2/2020: Stipulation (name extension) - No Order - Stipulation - No Order Stipulation of the parties

Notice of Ruling - Notice of Ruling

1/10/2020: Notice of Ruling - Notice of Ruling

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

1/14/2020: Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

Notice of Ruling - Notice of Ruling

1/16/2020: Notice of Ruling - Notice of Ruling

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

11/21/2019: Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

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

11/22/2019: Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

General Denial - General Denial

11/8/2019: General Denial - General Denial

Proof of Personal Service - Proof of Personal Service by Sheriff's Department

10/22/2019: Proof of Personal Service - Proof of Personal Service by Sheriff's Department

Proof of Personal Service - Proof of Personal Service

10/1/2019: Proof of Personal Service - Proof of Personal Service

General Denial - General Denial

10/4/2019: General Denial - General Denial

Cross-Complaint - Cross-Complaint

10/4/2019: Cross-Complaint - Cross-Complaint

Summons - Summons on Cross Complaint

10/4/2019: Summons - Summons on Cross Complaint

Notice (name extension) - Notice Notice of Unavailability

10/15/2019: Notice (name extension) - Notice Notice of Unavailability

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

8/28/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

Complaint - Complaint

8/28/2019: Complaint - Complaint

Summons - Summons on Complaint

8/28/2019: Summons - Summons on Complaint

First Amended Standing Order - First Amended Standing Order

8/28/2019: First Amended Standing Order - First Amended Standing Order

9 More Documents Available

 

Docket Entries

  • 03/02/2020
  • DocketStipulation - No Order Stipulation of the parties; Filed by: GINA P GONZALES (Plaintiff); As to: CHRIS SIMS (Defendant)

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  • 02/28/2020
  • DocketAddress for Daniel Webster Baldwin (Attorney) updated

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  • 02/28/2020
  • DocketHearing on Demurrer - without Motion to Strike scheduled for 03/11/2020 at 10:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 02/28/2020

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  • 02/28/2020
  • DocketNon-Jury Trial scheduled for 02/24/2021 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 02/28/2020

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  • 02/28/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 08/31/2022 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 02/28/2020

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  • 02/27/2020
  • DocketOn the Complaint filed by GINA P GONZALES on 08/28/2019, entered Request for Dismissal without prejudice filed by GINA P GONZALES as to the entire action

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  • 02/27/2020
  • DocketRequest for Dismissal; Filed by: GINA P GONZALES (Plaintiff); As to: CHRIS SIMS (Defendant)

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  • 01/16/2020
  • DocketNotice of Ruling; Filed by: GINA P GONZALES (Cross-Defendant)

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  • 01/14/2020
  • DocketHearing on Demurrer - without Motion to Strike scheduled for 03/11/2020 at 10:30 AM in Stanley Mosk Courthouse at Department 94

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  • 01/14/2020
  • DocketMinute Order (Hearing on Demurrer - without Motion to Strike)

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14 More Docket Entries
  • 10/04/2019
  • DocketSummons on Cross Complaint; Issued and Filed by: Clerk

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  • 10/01/2019
  • DocketProof of Personal Service; Filed by: GINA P GONZALES (Plaintiff); As to: CHRIS SIMS (Defendant); Service Date: 09/11/2019; Service Cost: 75.00; Service Cost Waived: No

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  • 09/03/2019
  • DocketNon-Jury Trial scheduled for 02/24/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 09/03/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 08/31/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 09/03/2019
  • DocketCivil Case Cover Sheet; Filed by: GINA P GONZALES (Plaintiff)

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  • 09/03/2019
  • DocketCase assigned to Hon. James E. Blancarte in Department 94 Stanley Mosk Courthouse

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  • 08/28/2019
  • DocketComplaint; Filed by: GINA P GONZALES (Plaintiff); As to: CHRIS SIMS (Defendant)

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  • 08/28/2019
  • DocketSummons on Complaint; Issued and Filed by: GINA P GONZALES (Plaintiff); As to: CHRIS SIMS (Defendant)

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  • 08/28/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 08/28/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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Tentative Rulings

Case Number: 19STLC08025    Hearing Date: January 14, 2020    Dept: 94

DEMURRER

(CCP §§ 430.31, et seq.)

TENTATIVE RULING:

Plaintiff/Cross-Defendant Gina Gonzales Demurrer to Defendant/Cross-Complainant’s Second cause of Action in his Cross-Complaint is CONTINUED to MARCH 11, 2020 at 10:30 a.m. in Department 94.

ANALYSIS:

  1. Background

On August 28, 2019, Plaintiff Gina Gonzales (“Plaintiff”) filed an action for breach of contract, common counts, conversion, replevin, trespass to chattels and fraud against Defendant Chris Sims (“Defendant”). On October 4, 2019, Defendant filed a cross-complaint against Plaintiff. On November 18, 2019, Defendant filed an Amended Cross-Complaint for breach of contract, libel, and intentional infliction of emotional distress.

On November 22, 2019, Plaintiff filed the instant Demurrer to Amended Cross-Complaint of Cross-Complaint [sic] Chris Sims (the “Demurrer”).

To date, no opposition or reply briefs have 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.)

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

  1. Meet and Confer Requirement

Plaintiff’s counsel states he attempted to meet and confer with Defendant on November 22, 2019 by calling him. (Demurrer., Baldwin Decl., ¶ 4.) He left a voicemail for Defendant stating that he counsel did not hear back from him he would file a demurrer to the Amended Cross-Complaint. (Id.) He also mailed a letter to Defendant stating that if counsel did not hear back from Defendant, he would file a demurrer. (Id., ¶ 3, Exh. A.) However, the same day Plaintiff’s counsel called Defendant and mailed a letter, he filed the instant Demurrer.

The Court does not find this to be a reasonable meet and confer effort because it did not allow Defendant the opportunity to respond. Plaintiff is ordered to meet and confer with Defendant and file a supplemental declaration in support of this demurrer if the parties cannot resolve the issue.

  1. Conclusion & Order

Accordingly, Plaintiff/Cross-Defendant Gina Gonzales’ Demurrer to Plaintiff’s Cross-Complaint is CONTINUED to MARCH 11, 2020 at 10:30 a.m. in Department 94.

Moving parties are ordered to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCdept94@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Case Number: 19STLC08025    Hearing Date: January 09, 2020    Dept: 94

DEMURRER

(CCP §§ 430.31, et seq.)

TENTATIVE RULING: Plaintiff Gina P. Gonzales’ Demurrer to the Amended General Denial is SUSTAINED AS TO THE FIRST, SECOND AND SEVENTH AFFIRMATIVE DEFENSES WITH 20 DAYS’ LEAVE TO AMEND; AND OVERRULED AS TO THE FIFTH AND SIXTH AFFIRMATIVE DEFENSES.

Plaintiff Gina P. Gonzales’ Demurrer to the Amended General Denial is SUSTAINED AS TO THE FIRST, SECOND AND SEVENTH AFFIRMATIVE DEFENSES WITH 20 DAYS’ LEAVE TO AMEND; AND OVERRULED AS TO THE FIFTH AND SIXTH AFFIRMATIVE DEFENSES.

MOTION: The Amended General Denial of Defendant Chris Sims fails to allege sufficient facts in the first, second, fifth, sixth and seventh affirmative defenses. misrepresentation.  

On August 28, 2019, Plaintiff Gina P. Gonzales (“Plaintiff”) filed the instant action for breach of contract, common counts, and fraud against Defendant Chris Sims aka Christopher Sims aka Curly Sims Jr. aka Curly Christopher Chip Sims (“Defendant”). On October 4, 2019, Defendant filed a General Denial and Cross-Complaint. On November 8, 2019, Defendant filed an Amended General Denial.

Plaintiff filed the instant Demurrer to the Amended General Denial on November 21, 2019. To date, no opposition has been filed.

Discussion

Meet and Confer Requirement

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).)

The Court finds that the Demurrer is accompanied by a satisfactory meet and confer declaration as required by Code of Civil Procedure section 430.41. The meet and confer declaration states that Plaintiff’s counsel sent a letter to Defendant regarding the Demurrer. (Demurrer, Baldwin Decl., ¶3 and Exh. A.) In the meet and confer letter, Plaintiff’s counsel states he called Defendant and left a message and asked for a return phone call. (Ibid.) Defendant did not respond to the meet and confer attempt. (Id. at ¶4.)

Demurrer to 1st, 2nd, 5th, 6th and 7th Causes of Action

Plaintiff demurs to the first affirmative defense for failure to state a cause of action, second affirmative defense for fraud, fifth affirmative defense for equitable estoppel, sixth affirmative defense for unjust enrichment and seventh affirmative defense for statute of frauds on the grounds that they failure to allege sufficient facts and are uncertain.

As an initial matter, demurrers for uncertainty are not permitted in courts of limited jurisdiction. (Code Civ. Proc., § 92, subd. (c).) Therefore, the Court will not rule on the demurrer for uncertainty.

When pleading affirmative defenses in an answer, the same pleading of “ultimate facts” rather than evidentiary matter or legal conclusions is required as when pleading the complaint. (FPI Development, Inc. v. Nakashimi (1991) 231 Cal.App.3d 367, 384.) The answer must aver facts as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint. (Ibid.)  The various affirmative defenses must be separately stated and must refer to the causes of action to which they relate “in a manner by which they may be intelligently distinguished.”  (Code Civ. Proc., § 431.30, subd. (g).)

The determination of the sufficiency of the answer requires an examination of the complaint because its adequacy is with reference to the complaint it purports to answer. (Chadbourn, Grossman, Van Alstyne, Cal. Pleading, § 1334, pp. 490, 491; Miller & Lux, Inc., v. San Joaquin Light & Power Corp., 120 Cal.App. 589, 600, 8 P.2d 560.) This requirement, however, does not mean that the allegations of the complaint, if denied, are to be taken as true, the rule being that the demurrer to the answer admits all issuable facts pleaded therein and eliminates all allegations of the complaint denied by the answer. (Miller & Lux, Inc., v. San Joaquin Light & Power Corp., supra, 120 Cal.App. p. 600, 8 P.2d 560; Sheward v. Citizens' Water Co., 90 Cal. 635, 639, 27 P. 439; Chadbourn, Grossman, Van Alstyne, Cal. Pleading, § 1334, p. 489.)

(South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 733.) 

Defendant’s first affirmative defense alleges that the Complaint fails to state the date of the alleged contract, the date of breach, or the material terms of the agreement. Defendant also alleges that there was no contract. (Amended General Denial, p. 3:1-10.) These allegations are clearly contradicted by the Complaint, which does allege the relevant dates and terms of the contract. (Compl., ¶¶BC-1, BC-2.) The first affirmative defense does not plead any facts regarding the alleged contract or its non-existence. The demurrer to the first affirmative defense is sustained with leave to amend.

Similarly, the second affirmative defense for fraud simply alleges that Plaintiff fails to specifically allege the representations that constitute the fraud. (Amended General Denial, p. 3:12-16.) Yet this is disproven by the Complaint, which alleges that Defendant falsely promised to repay Plaintiff for flights to Hawaii. No facts are alleged in the Amended General Answer as to any other deficiency in the fraud cause of action. The demurrer to the second affirmative defense is sustained with leave to amend.

The fifth affirmative defense of equitable estoppel is sufficiently alleged. The Amended General Denial disputes the nature of the parties’ agreement and alleges that flights were gifts. (Id. at p. 4:2-7.) Contrary allegations in the Complaint do not overcome these alleged facts in the Amended General Denial. The demurrer to the fifth affirmative defense is overruled.

The demurrer to the sixth affirmative defense relies on the same basis as to the fifth affirmative defense and fails for the same reason. Allegations in the Amended General Denial as to the amount Plaintiff is entitled to recover cannot be overcome by contradictory allegations in the Complaint. (Id. at p. 4:8-13.) The demurrer to the sixth affirmative defense is overruled.

Finally, the demurrer to the seventh cause of action contends that the alleged contract is required to be written under the Statute of Frauds as set forth in Civil Code section 16249a, subdivisions (1-7). (Id. at p. 4:14-19.) However, no facts are alleged to support this contention. (Ibid.) Therefore, the demurrer to the seventh affirmative defense is sustained with leave to amend.

Conclusion

Plaintiff Gina P. Gonzales’ Demurrer to the Amended General Denial is SUSTAINED AS TO THE FIRST, SECOND AND SEVENTH AFFIRMATIVE DEFENSES WITH 20 DAYS’ LEAVE TO AMEND; AND OVERRULED AS TO THE FIFTH AND SIXTH AFFIRMATIVE DEFENSES.

Moving party to give notice.