This case was last updated from Los Angeles County Superior Courts on 06/18/2020 at 00:10:52 (UTC).

MIKE MCKELVY VS DAVID MILLER

Case Summary

On 12/18/2018 MIKE MCKELVY filed a Personal Injury - Other Personal Injury lawsuit against DAVID MILLER. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is WENDY CHANG. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******4888

  • Filing Date:

    12/18/2018

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

WENDY CHANG

 

Party Details

Plaintiff

MCKELVY MIKE

Encino, CA 91316

Defendant

MILLER DAVID

Attorney/Law Firm Details

Defendant Attorney

JONES FRANK STEPHEN

 

Court Documents

Minute Order - Minute Order (Nunc Pro Tunc Order)

7/29/2019: Minute Order - Minute Order (Nunc Pro Tunc Order)

Opposition (name extension) - Opposition Notice of Non Opposition to Def. David Miller's Demurrer to Complaint of Mike McKelvy

8/28/2019: Opposition (name extension) - Opposition Notice of Non Opposition to Def. David Miller's Demurrer to Complaint of Mike McKelvy

Objection (name extension) - Objection Defendant's Objection and Reply to Plaintiff's Opposition to Defendant David Miller's Demurrer

9/3/2019: Objection (name extension) - Objection Defendant's Objection and Reply to Plaintiff's Opposition to Defendant David Miller's Demurrer

Other - (name extension) - Other - Addendum to David Miller's Demurrer

9/26/2019: Other - (name extension) - Other - Addendum to David Miller's Demurrer

Other - (name extension) - Other - Addendum to Defendant David Miller's Demurrer

10/4/2019: Other - (name extension) - Other - Addendum to Defendant David Miller's Demurrer

Other - (name extension) - Other - Addendum to David Miller's Demurrer

10/15/2019: Other - (name extension) - Other - Addendum to David Miller's Demurrer

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

10/24/2019: Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

Proof of Service by Mail - Proof of Service by Mail

11/13/2019: Proof of Service by Mail - Proof of Service by Mail

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

12/10/2019: Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

Answer - Answer TO DEMURRER

1/6/2020: Answer - Answer TO DEMURRER

Other - (name extension) - Other - Answer to proposed order granting special motion

6/24/2019: Other - (name extension) - Other - Answer to proposed order granting special motion

Objection (name extension) - Objection Def. Objection and Reply to Pl. Opposition to Def. David Miller's Special Motion to Strike; Memorandum of Points and Authorities; Declaration of F Stephen Jones

7/1/2019: Objection (name extension) - Objection Def. Objection and Reply to Pl. Opposition to Def. David Miller's Special Motion to Strike; Memorandum of Points and Authorities; Declaration of F Stephen Jones

Other - (name extension) - Other - Addendum to Proposed Order Granting Special Motion of Defendant David Miller to Strike Complaint

7/22/2019: Other - (name extension) - Other - Addendum to Proposed Order Granting Special Motion of Defendant David Miller to Strike Complaint

Special Motion to Strike under CCP Section 425.16 (Anti-SLAPP motion) - Special Motion to Strike under CCP Section 425.16 (Anti-SLAPP motion)

2/11/2019: Special Motion to Strike under CCP Section 425.16 (Anti-SLAPP motion) - Special Motion to Strike under CCP Section 425.16 (Anti-SLAPP motion)

Proof of Personal Service - Proof of Personal Service

2/20/2019: Proof of Personal Service - Proof of Personal Service

Civil Case Cover Sheet - Civil Case Cover Sheet

12/18/2018: Civil Case Cover Sheet - Civil Case Cover Sheet

Summons - Summons on Complaint

12/18/2018: Summons - Summons on Complaint

First Amended Standing Order - First Amended Standing Order

12/18/2018: First Amended Standing Order - First Amended Standing Order

22 More Documents Available

 

Docket Entries

  • 01/31/2020
  • DocketNon-Jury Trial scheduled for 06/16/2020 at 08:30 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 01/31/2020

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  • 01/31/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 12/21/2021 at 10:30 AM in Spring Street Courthouse at Department 26 Not Held - Vacated by Court on 01/31/2020

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  • 01/21/2020
  • DocketSubstitution of Attorney; Filed by: Frank Stephen Jones (Attorney)

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  • 01/16/2020
  • DocketOn the Amended Complaint (1st) filed by Mike McKelvy on 11/12/2019, entered Order for Dismissal with prejudice as to the entire action

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  • 01/16/2020
  • DocketMinute Order (Hearing on Demurrer - without Motion to Strike)

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  • 01/16/2020
  • DocketHearing on Demurrer - without Motion to Strike scheduled for 01/16/2020 at 10:30 AM in Stanley Mosk Courthouse at Department 94 updated: Result Date to 01/16/2020; Result Type to Held

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  • 01/13/2020
  • DocketReply Defendant David Miller's Reply to Plaintiff's Opposition to Defendant's Demurrer to First Amended Complaint of Mike McKelvy; Memorandum of Points and Authorities in Support Thereof; Filed by: David Miller (Defendant)

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  • 01/06/2020
  • DocketAnswer TO DEMURRER; Filed by: Mike McKelvy (Plaintiff)

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  • 12/10/2019
  • DocketDemurrer - without Motion to Strike; Filed by: David Miller (Defendant)

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  • 12/10/2019
  • DocketDeclaration of F Stephen Jones re Meeting and Conferring Prior to Filing Demurrer to the First Amended Complaint; Filed by: David Miller (Defendant)

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32 More Docket Entries
  • 12/18/2018
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 12/21/2021 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 12/18/2018
  • DocketUpdated -- Amended Complaint (1st): Status Date changed from 11/12/2019 to 12/18/2018

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  • 12/18/2018
  • DocketRequest to Waive Court Fees; Filed by: Mike McKelvy (Plaintiff)

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  • 12/18/2018
  • DocketOrder on Court Fee Waiver (Superior Court); Signed and Filed by: Clerk; As to: Mike McKelvy (Plaintiff)

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  • 12/18/2018
  • DocketCivil Case Cover Sheet; Filed by: Mike McKelvy (Plaintiff)

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  • 12/18/2018
  • DocketSummons on Complaint; Issued and Filed by: Clerk

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  • 12/18/2018
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 12/18/2018
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 12/18/2018
  • DocketCase assigned to Hon. Wendy Chang in Department 94 Stanley Mosk Courthouse

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  • 12/18/2018
  • DocketNon-Jury Trial scheduled for 06/16/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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Tentative Rulings

Case Number: 18STLC14888    Hearing Date: January 16, 2020    Dept: 94

DEMURRER

(CCP § 430.31, et seq.)

TENTATIVE RULING:

Defendant David Miller’s Demurrer to the First Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

SUMMARY OF COMPLAINT: Action for slander and defamation.

REQUEST FOR RELIEF: The First Amended Complaint is defective because it fails to state a cause of action against Defendant and is uncertain.

OPPOSITION: Defendant’s lies cannot simply be protected by the litigation process. He continues to threaten Plaintiff and must be investigated.

REPLY: None filed as of January 13, 2020.

ANALYSIS:

Plaintiff Mike McKelvy (“Plaintiff”) filed the instant action for defamation and slander against Defendant David Miller on December 18, 2018. Defendant filed a Special Motion to Strike the Complaint, which the Court placed off calendar on July 29, 2019 as not permitted in a court of limited jurisdiction. Defendant then filed a demurrer to the Complaint on August 7, 2019. The Court sustained the demurrer with leave to amend on October 24, 2019. On November 12, 2019, Plaintiff filed the First Amended Complaint.

Defendant filed the instant Demurrer to the First Amended Complaint on December 12, 2019. Plaintiff untimely filed an “Answer to Demurrer” on January 6, 2020.

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 accompanied by a meet and confer declaration that satisfies the requirements of Code of Civil Procedure section 430.41. (Demurrer, Jones Decl., ¶¶1-2 and Exh. A.) Defendant demurs to the entire First Amended Complaint for uncertainty, and to each cause of action for failure to allege facts sufficient to state a cause of action pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f).

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

It is unclear what causes of action the First Amended Complaint seeks to allege, as none are separately enumerated. The Court will presume that the First Amended Complaint, like the Complaint, alleges causes of action for (1) negligence; (2) intentional tort; and (3) fraud. The First Amended Complaint alleges that Defendant represented Plaintiff in two legal actions in 2017, which were eventually thrown out. (FAC, p. 1:13-18.) After those cases ended, Defendant and his representatives allegedly continued to contact Plaintiff about money owed for the representation, to the point of unreasonableness. (Id. at p. 1:22-25.) Defendant is allegedly on a campaign to paint Plaintiff as anti-Sematic by referring to made up comments in their communications and possibly taking these statements to watchdog groups. (Id. at p. 2:8-20.) Defendant also allegedly makes offensive statements about Plaintiff in the presence of Plaintiff’s friends and now seeks contact information for Plaintiff’s parents.

A cause of action for negligence must allege duty, breach, causation and damages. (Hair v. State of California (1991) 2 Cal.App.4th 321, 329.) The First Amended Complaint does not allege the existence of a duty owed by Defendant to Plaintiff. Nor does it even use the word negligence. As noted in the Court’s ruling on the demurrer to the Complaint, there is no duty to not make up things about another person. If Plaintiff is attempting to allege a cause of action for defamation, he must state facts showing that Defendant intentionally published a statement of fact that was false, unprivileged, and had a natural tendency to injure or that caused special damage. (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.) Plaintiff does not allege that the statements made by Defendant were published, unprivileged or had a natural tendency to injure. (Ibid.) He only speculates that statements were made to watchdog groups, or that Defendant says the statements were made to those groups. (FAC, p. 4:3-14.) To the extent Plaintiff contends this conduct is harassment, he may bring a petition to obtain a civil harassment restraining order. As the first cause of action does not state sufficient facts, the demurrer is sustained.

Again, no specific intentional tort is alleged in the First Amended Complaint. Plaintiff alleges that Defendant has threatened him by seeking his parents’ contact information. (FAC, p. 5:20-26.) Yet there is nothing alleged regarding how this amounts to a threat. Other types of comments, which are not factual in nature, are not actionable. (See Moyer v. Amador Valley J. Union High School Dist. (1990) 225 Cal.App.3d 720, 723.) The demurrer to the second cause of action is sustained.

The third cause of action for fraud is actually based on the same facts. Fraud requires (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) 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.) No facts are alleged demonstrating that Defendant made any misrepresentation of fact to Plaintiff or that Plaintiff relied on such a statement. The demurrer to the third cause of action, therefore, is also sustained.

“‘If there is a reasonable possibility that the defect in a complaint can be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend. [Citation.] The burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended.’” (Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302 (citing Hendy v. Losse (1991) 54 Cal.3d 723, 742).) As Plaintiff has not demonstrated that the First Amended Complaint can be amended to state a proper cause of action, leave to amend is denied.

Defendant David Miller’s Demurrer to the First Amended Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Moving party to give notice.

Case Number: 18STLC14888    Hearing Date: October 24, 2019    Dept: 94

DEMURRER

(CCP § 430.31, et seq.)

TENTATIVE RULING:

Defendant David Miller’s Demurrer to the Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

SUMMARY OF COMPLAINT: Action for slander and defamation.

REQUEST FOR RELIEF: The Complaint is defective because it fails to state a cause of action against Defendant.

OPPOSITION: Defendant’s lies cannot simply be protected by the litigation process. He continues to threaten Plaintiff and must be investigated.

REPLY: Plaintiff objects to the opposition because it was not properly served. Also, the opposition makes no argument to refute the demurrer. It simply reiterates the meaningless allegations of the Complaint and attaches exhibits that cannot be considered by the Court.

ANALYSIS:

Plaintiff Mike McKelvy (“Plaintiff”) filed the instant action for defamation and slander against Defendant David Miller on December 18, 2018. Defendant filed a Special Motion to Strike the Complaint, which the Court placed off calendar on July 29, 2019 as not permitted in a court of limited jurisdiction. Defendant then filed the instant Demurrer on August 7, 2019. Plaintiff filed his opposition on August 27, 2019 and Defendant objected on September 3, 2019. Plaintiff thereafter filed three “Addendums” to the Demurrer. As these are not filings permitted by the Code of Civil Procedure, the Court will not consider them. (See Code Civ. Proc., § 1005.)

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 accompanied by a meet and confer declaration that satisfies the requirements of Code of Civil Procedure section 430.41. (Demurrer, Jones Decl., ¶1.) Defendant demurs to each cause of action for failure to allege facts sufficient to state a cause of action pursuant to Code of Civil Procedure section 430.10, subdivision (e). The Complaint alleges causes of action for (1) negligence; (2) intentional tort; and (3) fraud.

A cause of action for negligence must allege duty, breach, causation and damages. (Hair v. State of California (1991) 2 Cal.App.4th 321, 329.) The Complaint does not allege the existence of a duty owed by Defendant to Plaintiff. It alleges that Defendant has been negligent by “making up things about [Plaintiff], that he has not researched to confirm their validity.” (Compl., ¶GN-1.) However, there is no duty to not make up things about another person. If Plaintiff is attempting to allege a cause of action for defamation, he must state facts showing that Defendant intentionally published a statement of fact that was false, unprivileged, and had a natural tendency to injure or that caused special damage. (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.) Plaintiff does not allege that the statements made by Defendant were published, unprivileged or had a natural tendency to injure. (Ibid.) As the first cause of action does not state sufficient facts, the demurrer is sustained with leave to amend.

The second cause of action for “intentional tort” does not state what specific intentional tort is at issue. Plaintiff alleges that Defendant has threatened him, but the nature of the threats is not articulated. (Compl., ¶IT-1.) Defendant also allegedly joked about Plaintiff’s deep devotion to god and said it is okay for Plaintiff to lie to him. (Ibid.) These types of comments, which are not factual in nature, are not actionable. (See Moyer v. Amador Valley J. Union High School Dist. (1990) 225 Cal.App.3d 720, 723.) The demurrer to the second cause of action is sustained with leave to amend.

The third cause of action for fraud is actually based on the same facts as the negligence claim. The elements of a claim for fraud, however, are distinct from negligence. Fraud requires (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) 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.) No facts are alleged demonstrating that Defendant made any misrepresentation of fact to Plaintiff or that Plaintiff relied on such a statement. (Compl., ¶FR-1.) The demurrer to the third cause of action, therefore, is also sustained with leave to amend.

Defendant David Miller’s Demurrer to the Complaint is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

Moving party to give notice.