LENIN LOPEZ VS ROSA URBINA, ET AL.

Tentative Rulings

Case Number: 18STLC12789    Hearing Date: August 27, 2020    Dept: 25

HEARING DATE: Thu., August 27, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Lopez v. Urbina COMPL. FILED: 10-09-18

CASE NUMBER: 18STLC12789 DISC. C/O: 08-04-20

NOTICE: OK MOTION C/O: 08-19-20

PROCEEDINGS: DEMURRER TO PLAINTIFF’S COMPLAINT

MOVING PARTY: Defendant Rosa Urbina, in pro per

RESP. PARTY: None

DEMURRER

(CCP §§ 430.31, et seq.)

TENTATIVE RULING:

Defendant Rosa Urbina’s Demurrer to Plaintiff’s Complaint is SUSTAINED. PLAINTIFF IS GRANTED 20 DAYS’ LEAVE TO AMEND THE COMPLAINT.

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 August 25, 2020 [ ] Late [X] None

REPLY: None filed as of August 25, 2020 [ ] Late [X] None

ANALYSIS:

1. Background

On October 9, 2018, Plaintiff Lenin Lopez (“Plaintiff”) filed a contract form complaint, in pro per, against Defendants Rosa Urbina (“Urbina”) and Last Resource Multi Services, Inc. (collectively, “Defendants”). Plaintiff has not filed a proof of service for the Summons and Complaint as to any Defendant.

On July 11, 2019, Defendant Urbina filed the instant Demurrer to the Complaint of Lenin Lopez (the “Demurrer”), in pro per. On February 6, 2020, the Court continued the hearing and ordered Defendant Urbina to file a proof of service demonstrating Plaintiff was served with the Demurrer as well as a supplemental declaration demonstrating compliance with the meet and confer requirement. (2/6/20 Minute Order.) The Court cautioned that failure to comply with the order could result in the Demurrer being placed off calendar or denied. (Id.)

At the following hearing on June 30, 2020, the Court provided Defendant Urbina with a copy of the Court’s February 6, 2020 Minute Order. (6/30/20 Minute Order.) The Court once again ordered Defendant Urbina to file and serve a declaration demonstrating compliance with the meet and confer requirement and to file a proof of service demonstrating Plaintiff was properly served with this Demurrer. (Id.)

Defendant Urbina thereafter filed a proof of service demonstrating that, on July 29, 2020, Defendant was served with the Demurrer initially filed on July 11, 2019, and the Declaration of Demurring Party in Support of Automatic Extension with attached meet and confer letter initially filed on June 28, 2019, via regular mail. (8/7/20 Proof of Service.)

To date, Plaintiff has not filed an opposition.

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

Defendant Urbina’s Declaration of Demurring Party in Support of Automatic Extension, filed on June 28, 2019, states that she attempted to meet and confer with Plaintiff, but was unable to do so because both parties are self-represented litigants. (6/28/19 Urbina Decl.) Defendant’s Demurrer filed on July 11, 2019 does not include a meet and confer declaration. However, because a meet and confer conference would not be productive in this case, the Court finds that it is in the interest of judicial economy to proceed and make a ruling on the merits.

Plaintiff’s contract form Complaint does not include any allegations and does not specify what cause of action he is asserting. Specifically, under paragraph 8 of the form Complaint, Plaintiff does not check off the box indicating he is asserting a cause of action for breach of contract or common counts against Defendant. (Compl., ¶ 8.) Instead, Plaintiff checks off the boxes for “other” and “other allegations,” but does not identify what other cause of action he is asserting, or otherwise provide any further information. (Id.) Plaintiff also does not include any cause of action attachments as required. (See Compl., ¶ 8 [“each complaint must have one or more causes of action attached”].) (Italics added.) Thus, as Plaintiff’s form Complaint is devoid of any factual allegations, the Court finds he has failed to state sufficient facts to constitute a cause of action against Defendant Urbina.

Accordingly, the Defendant Urbina’s Demurrer is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

1. Conclusion & Order

For the foregoing reasons, Defendant Rosa Urbina’s Demurrer to Plaintiff’s Complaint is SUSTAINED. PLAINTIFF IS GRANTED 20 DAYS’ LEAVE TO AMEND THE COMPLAINT.

Moving party is ordered to give notice.

Case Number: 18STLC12789    Hearing Date: June 30, 2020    Dept: 25

DEMURRER

(CCP §§ 430.31, et seq.)

TENTATIVE RULING:

Defendant Rosa Urbina’s Demurrer to Plaintiff’s Complaint is PLACED OFF CALENDAR.

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 25, 2020 [ ] Late [X] None

REPLY: None filed as of June 25, 2020 [ ] Late [X] None

ANALYSIS:

1. Background & Discussion

On October 9, 2018, Plaintiff Lenin Lopez (“Plaintiff”) filed a contract form complaint, in pro per, against Defendants Rosa Urbina (“Urbina”) and Last Resource Multi Services, Inc. (collectively, “Defendants”). Plaintiff has not filed a proof of service for the Summons and Complaint as to any Defendant.

On July 11, 2019, Defendant Urbina filed the instant Demurrer to the Complaint of Lenin Lopez (the “Demurrer”). On February 6, 2020, the Court continued the hearing and ordered Defendant Urbina to file a proof of service demonstrating Plaintiff was served with the Demurrer as well as a supplemental declaration demonstrating compliance with the meet and confer requirement. (2/6/20 Minute Order.) The Court cautioned that failure to comply with the order could result in the Demurrer being placed off calendar or denied. (Id.)

To date, Defendant Urbina has not filed any supplemental papers. As a result, the Demurrer is PLACED OFF CALENDAR.

1. Conclusion & Order

For the foregoing reasons, Defendant Rosa Urbina’s Demurrer to Plaintiff’s Complaint is PLACED OFF CALENDAR.

Moving party is ordered to give notice.

Case Number: 18STLC12789    Hearing Date: February 06, 2020    Dept: 25

DEMURRER

(CCP § 430.31, et sq.)

TENTATIVE RULING:

Defendant Rosa Urbina’s Demurrer is CONTINUED TO APRIL 22, 2020 AT 10:30 A.M. in Department 25, SPRING STREET COURTHOUSE.

At least 16 court days prior to the new hearing date, Defendant is to file and serve a declaration demonstrating compliance with the meet and confer requirement and a proof of service demonstrating Plaintiff was properly served with this Demurrer. Failure to comply with the Court’s order may result in the Demurrer being placed off calendar or denied. Any opposition and reply papers may be filed and served per Code of Civil Procedure section 1005.