This case was last updated from Los Angeles County Superior Courts on 12/09/2019 at 14:27:29 (UTC).

NICOLE Y JACKSON VS NK PROPERTIES INC

Case Summary

On 08/30/2018 NICOLE Y JACKSON filed a Contract - Other Contract lawsuit against NK PROPERTIES INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is RICHARD E. RICO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0090

  • Filing Date:

    08/30/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

RICHARD E. RICO

 

Party Details

Plaintiff

JACKSON NICOLE Y.

Defendants and Respondents

DOES 1 THROUGH 10

NK PROPERTIES INC.

Attorney/Law Firm Details

Defendant Attorneys

SHEPARD ROBERT STEPHEN

BERRY LEAH

JOLLY KEVIN RICHARD

 

Court Documents

Motion to Compel Further Discovery Responses

11/22/2019: Motion to Compel Further Discovery Responses

Opposition - OPPOSITION TO DEFENDANT'S MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF NICOLE Y JACKSON

11/20/2019: Opposition - OPPOSITION TO DEFENDANT'S MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF NICOLE Y JACKSON

Opposition - OPPOSITION TO DEFENDANT'S MOTION TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION TO DOCUMENTS

11/21/2019: Opposition - OPPOSITION TO DEFENDANT'S MOTION TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION TO DOCUMENTS

Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL FURTHER DISCOVERY RESPONSES; HEAR...)

10/11/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL FURTHER DISCOVERY RESPONSES; HEAR...)

Opposition - OPPOSITION TO DEFENDANTS MOTION TO STRIKE

9/26/2019: Opposition - OPPOSITION TO DEFENDANTS MOTION TO STRIKE

Minute Order - MINUTE ORDER (EX-PARTE PROCEEDINGS)

9/27/2019: Minute Order - MINUTE ORDER (EX-PARTE PROCEEDINGS)

Motion to Compel - MOTION TO COMPEL PLAINTIFF'S ATTENDANCE AT DEPOSITION

8/9/2019: Motion to Compel - MOTION TO COMPEL PLAINTIFF'S ATTENDANCE AT DEPOSITION

Order - ORDER ORDER ON TENTIVE RULING

6/7/2019: Order - ORDER ORDER ON TENTIVE RULING

Summons - SUMMONS ON AMENDED COMPLAINT (4TH)

6/26/2019: Summons - SUMMONS ON AMENDED COMPLAINT (4TH)

Notice of Ruling - ON DEMURRER TO AND MOTION TO STRIKE PORTIONS OF SECOND AMENDED COMPLAINT OF PLAINTIFF NICOLE Y. JACKSON BY DEFENDANT NK PROPERTIES, INC.

6/11/2019: Notice of Ruling - ON DEMURRER TO AND MOTION TO STRIKE PORTIONS OF SECOND AMENDED COMPLAINT OF PLAINTIFF NICOLE Y. JACKSON BY DEFENDANT NK PROPERTIES, INC.

Notice of Intent to Appear by Telephone

6/6/2019: Notice of Intent to Appear by Telephone

Request for Judicial Notice

3/15/2019: Request for Judicial Notice

Demurrer - with Motion to Strike (CCP 430.10)

3/15/2019: Demurrer - with Motion to Strike (CCP 430.10)

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

3/21/2019: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

Case Management Statement

12/28/2018: Case Management Statement

Motion to Strike (not initial pleading) - Motion to Strike (not initial pleading) portions of Complaint of Plaintiff Nicole Y. Jackson by Defendant NK Properties, Inc.

12/17/2018: Motion to Strike (not initial pleading) - Motion to Strike (not initial pleading) portions of Complaint of Plaintiff Nicole Y. Jackson by Defendant NK Properties, Inc.

Demurrer - with Motion to Strike (CCP 430.10)

12/17/2018: Demurrer - with Motion to Strike (CCP 430.10)

NOTICE OF CASE ASSIGNMENT

8/30/2018: NOTICE OF CASE ASSIGNMENT

75 More Documents Available

 

Docket Entries

  • 03/23/2020
  • Hearing03/23/2020 at 08:30 AM in Department 17 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Quash Motion to Quash Subpoena

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  • 02/21/2020
  • Hearing02/21/2020 at 08:30 AM in Department 17 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Terminating Sanctions

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  • 12/10/2019
  • Hearing12/10/2019 at 08:30 AM in Department 17 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses

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  • 12/09/2019
  • Hearing12/09/2019 at 08:30 AM in Department 17 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Reclassify (Walker Motion)

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  • 12/09/2019
  • Hearing12/09/2019 at 08:30 AM in Department 17 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses

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  • 12/09/2019
  • Hearing12/09/2019 at 08:30 AM in Department 17 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses

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  • 12/09/2019
  • Hearing12/09/2019 at 08:30 AM in Department 17 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Further Discovery Responses

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  • 12/09/2019
  • Hearing12/09/2019 at 08:30 AM in Department 17 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Compel Discovery (not "Further Discovery")

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  • 11/22/2019
  • DocketMotion to Compel Further Discovery Responses; Filed by NK Properties Inc. (Defendant)

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  • 11/21/2019
  • DocketOpposition (to Defendant's Motion to Compel Responses to Requests for Production to Documents); Filed by Nicole Y. Jackson (Plaintiff)

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101 More Docket Entries
  • 11/21/2018
  • DocketProof of Personal Service; Filed by Nicole Y. Jackson (Plaintiff)

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  • 11/02/2018
  • DocketOrder to Show Cause Failure to File Proof of Service; Filed by Clerk

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  • 11/02/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 08/30/2018
  • DocketRequest-Waive Court Fees

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  • 08/30/2018
  • DocketORDER ON COURT FEE WAIVER

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  • 08/30/2018
  • DocketNOTICE OF CASE ASSIGNMENT

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  • 08/30/2018
  • DocketComplaint; Filed by Nicole Y. Jackson (Plaintiff)

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  • 08/30/2018
  • DocketSUMMONS

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  • 08/30/2018
  • DocketCOMPLAINT

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  • 08/30/2018
  • DocketRequest to Waive Court Fees

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Tentative Rulings

Case Number: BC720090    Hearing Date: September 29, 2020    Dept: 25

HEARING DATE: Tue., September 29, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Jackson v. NK Properties, Inc. COMPL. FILED: 08-30-18

CASE NUMBER: BC720090 DISC. C/O: NONE

NOTICE: OK MOTION C/O: NONE

TRIAL DATE: NOT SET

PROCEEDINGS: DEMURRER TO PLAINTIFF’S FIFTH AMENDED COMPLAINT AND MOTION TO STRIKE

DEMURRER WITH MOTION TO STRIKE

(CCP §§ 430.10 et seq.; 435)

MOVING PARTY: Defendant NK Properties, Inc.

RESP. PARTY: Plaintiff Nicole Jackson, in pro per

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 February 5, 2020 [ ] Late [ ] None

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

TENTATIVE RULING:

Defendant NK Properties, Inc.’s Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the breach of contract cause of action but OVERRULED as to the negligence cause of action.

In addition, Defendant’s Motion to Strike is GRANTED IN PART AND DENIED IN PART. Defendant’s request to strike particular paragraphs and words is DENIED. However, its request to strike Plaintiff’s prayer for punitive damages is GRANTED. Plaintiff is GRANTED 20 DAYS’ LEAVE TO AMEND the Complaint to include allegations that would support a punitive damages request.

Lastly, Defendant’s request to strike the Fifth Amended Complaint in its entirety is DENIED.

ANALYSIS:

  1. Background

On August 30, 2018, Plaintiff Nicole Jackson (“Plaintiff”) filed a complaint for breach of contract against Defendant NK Properties, Inc. (“Defendant”). Defendant filed a demurrer with motion to strike on December 17, 2018, which was never heard because Plaintiff filed a First Amended Complaint on January 3, 2019. Plaintiff filed a Second Amended Complaint on February 7, 2019 for breach of contract, negligence, gross negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress. Defendant filed a demurrer with motion to strike on March 15, 2019. Thereafter, Plaintiff filed a Third Amended Complaint without a stipulation or leave of court.

On June 7, 2019, the demurrer came up for hearing. The Court did not consider the Third Amended Complaint in issuing its ruling. (6/7/19 Minute Order.) The demurrer was sustained with 20 days’ leave to amend as to the breach of contract cause of action, sustained without leave to amend as to the gross negligence cause of action, and overruled as to the negligence and intentional/negligent infliction of emotional distress causes of action. (Id.) Plaintiff’s request for attorney’s fees was also stricken. (Id.)

On June 26, 2019, Plaintiff filed a Fourth Amended Complaint alleging breach of contract, negligence, and theft causes of action. Defendant demurred to the Fourth Amended Complaint on September 3, 2019. On October 17, 2019, the Court sustained the demurrer as to the breach of contract and theft causes of action, but overruled it as to the negligence cause of action. (10/7/19 Minute Order.) The Court did not specify a date by which Plaintiff needed to amend the complaint. (Id.)

Most recently, on November 14, 2019, Plaintiff filed a Fifth Amended Complaint alleging breach of contract and negligence causes of action. On January 7, 2020, Defendant filed the instant Demurrer to Plaintiff’s Fifth Amended Complaint and Motion to Strike (the “Demurrer”). On February 5, 2020, Plaintiff filed an Opposition. No reply brief was filed. On February 19, 2020, the Court continued the hearing on the Demurrer due to Defendant’s failure to meet and confer with Plaintiff in person or by telephone. (2/19/20 Minute Order.) The Court ordered Defendant to file and serve a declaration attesting to its meet and confer efforts and warned that failure to do so could result in the Demurrer being placed off calendar. (Id.)

At the July 13, 2020 continued hearing, the Court noted that Defendant had not filed a meet and confer declaration as requested. (7/13/20 Minute Order.) The hearing was continued once more to allow Defendant to file said declaration. (Id.) Defendant filed the requested declaration on July 17, 2020.

  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 which are not filed or drawn in conformity with applicable laws, rules or orders. (Code Civ. Proc. § 436, subd. (b).) 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).)

California’s policy of liberal construction applies to motions to strike. (Code Civ. Proc. § 452; see also Duffy v. Campbell (1967) 250 Cal.App.2d 662, 666 [noting that courts must resolve all reasonable doubts in favor of the pleading when considering a motion to strike].) 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).)

III. Discussion

A. Demurrer

The Demurrer is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41, subdivision (a). (7/17/20 Jolly Decl.)

Defendant demurs to Plaintiff’s breach of contract and negligence causes of action for failure to state sufficient facts and on the basis of uncertainty. (Dem., p. 2:4:13.)

As noted above, demurrers brought on the basis of uncertainty are special demurrers, and special demurrers in limited jurisdiction courts are not permitted. (Code Civ. Proc., § 92, subd. (c).) Thus, the Court only considers Defendant’s arguments regarding Plaintiff’s failure to state a cause of action.

1. First Cause of Action – Breach of Contract

“To establish a cause of action for breach of contract, the plaintiff must plead and prove (1) the existence of the contract, (2) the plaintiff’s performance or excuse for nonperformance, (3) the defendant’s breach, and (4) resulting damages to the plaintiff. [Citation.] ‘In an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.’ [Citation.]” (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.)

In pertinent part, Plaintiff alleges the following: that on March 1, 2016, she rented a room at Defendant’s residential hotel at the rate of $65.00 per night; that Plaintiff signed an agreement for the rental of the room (the “Contract”); that according to the terms of the Contract, Plaintiff was eligible to rent the room for three weeks provided that no violations of the contract occurred; that Plaintiff informed Defendant she would rent the room for about a week; that daily rent was due every day by 10:00 a.m.; that Plaintiff paid daily rent before 10:00 a.m. but was not given receipts; that on day 7, Plaintiff attempted to pay daily rent but was not allowed to do so by the residential hotel staff and was asked to leave; that after not being allowed to pay for an additional day’s stay, Plaintiff informed Defendant that she would return for the items in her room in a few hours; that Defendant agreed to Plaintiff leaving her belongings in her room until she returned with transportation to move; that Plaintiff performed all conditions of the contract, including keeping her items and toiletries organized in her rented room; that Defendant breached the terms of the contract by refusing payment and evicting Plaintiff before termination of the rental agreement, which allowed renters to stay for at least three weeks; that as a result of Defendant’s actions, Plaintiff lost a valuable gold necklace, had her property lost or stolen, and experienced and continues to experience fear, pain, sorrow, and suffering. (Fifth Amended Complaint, ¶¶ 4, 5, 12-18, 21, 23, 27-28.)

Defendant argues the cause of action fails because Plaintiff failed to set forth the salient contract provisions verbatim. (Dem., p. 12:8-9.) As noted above, Plaintiff need not set forth the contractual provisions verbatim and may instead plead the legal effect of the contract. (Maxwell v. Dolezal (2014) 231 Cal.App.4th 93, 97-98.) However, the terms of the contract are not clearly alleged. For instance, Plaintiff alleges that it informed Defendant she intended to rent the residential hotel room “for about a week” (Compl., ¶13), but states Defendant breached the terms of the contract by “refusing to accept [Plaintiff’s] room payment and by evicting [Plaintiff] prior to termination of the rental agreement[,] which contained a provision allowing renters to stay for at least three weeks” (Compl., ¶ 21.) Thus, it is unclear what the exact terms of the contract were. Plaintiff purports to attach a copy of the parties’ agreement as Exhibit A to the Fifth Amended Complaint. However, this is simply a copy of the hotel’s rules and regulations. It doesn’t contain any dates, the names of the parties, daily rental rate, or other terms as alleged by Plaintiff. In addition, the copy of the rules and regulations includes a provision, written in pen or pencil, stating “NO MORE THAN 3 WEEKS.” (Fifth Amended Complaint, Exh. A.) Although it is unclear what this provision refers to, it appears to contradict Plaintiff’s assertion that persons may stay at the hotel for at least three weeks. Thus, no allegation demonstrates that Defendant was required to accept Plaintiff’s tender of payment for a seventh days’ stay. If Defendant was not required to accept Plaintiff’s payment pursuant to an enforceable agreement, there is no breach of contract.

Furthermore, several of Plaintiff’s material allegations in the Fourth Amended Complaint are different than those contained in the operative Fifth Amended Complaint. For example, Plaintiff’s Fourth Amended Complaint alleges that she rented a room from Defendant on or about January 13, 2016, that on the morning of January 15, or 16, 2016, when she was getting ready to pay for another day’s stay, someone knocked on her door at 10:30 a.m., and that daily rent was due every day before 11:00 a.m. (Fourth Amended Complaint, ¶¶ 4, 5, 11.) However, without any explanation as to why the changes were made, it appears that Plaintiff is manipulating the purported contractual terms in response to arguments raised in Defendant’s previous demurrers.

Lastly, the Court notes that this is Plaintiff’s Fifth Amended Complaint and that the Court has twice previously sustained demurrers to the first cause of action for breach of contract. (6/7/19 Minute Order; 10/7/19 Minute Order.) Yet, Defendant has still failed clearly set forth the terms of the contract and thus failed to properly plead a breach of contract cause of action.

Because the complaint has been amended five times, because Plaintiff has substantially changed the material allegations of the contract without explanation, and because Plaintiff has not argued or demonstrated in her Opposition that the defects raised in this Demurrer may be corrected by a subsequent amendment, Defendant’s Demurrer as to the first cause of action for breach of contract is SUSTAINED WITHOUT LEAVE TO AMEND.

2. Second Cause of Action – Negligence

A negligence cause of action requires the plaintiff to allege defendant had a duty, defendant’s breach of that breach of duty, and proximate cause resulting in injury. (Pereida v. HR Mobile Services (2018) 25 Cal.App.5th 680, 687.)

Plaintiff alleges, in pertinent part, the following: that Defendant had a duty to care for her items “in such a way that her belongings were not stolen, damage[d], destroyed, or lost”; that Plaintiff’s belongings were placed in bags in such a way that dirt from a live plant and toiletries spilled onto Plaintiff’s belongings; that Defendant “did not take reasonable care with [Plaintiff’s] items and engaged in conduct which falls below the established standard by law for the protection of others against unreasonable risk of harm”; that Defendant’s conduct resulted in severe emotional distress, “injury to [Plaintiff’s] body and mind, past and future medical expenses, past and future pain and suffering, and past and future emotional distress”; and that Defendant acted with the knowledge of the risk associated with evicting Plaintiff and removing her belongings and that Defendant’s action involved a significant degree of risk of harm to Plaintiff and her belongings.” (Fifth Amended Complaint, ¶¶ 30-38.)

Hotel owners and innkeepers owe a duty of care to their guests to maintain their property in a reasonably safe condition.” (Lawrence v. La Jolla Beach & Tennis Club, Inc. (2014) 231 Cal.App.4th 11, 30.) Defendant argues that a hotel or innkeeper owes no contractual duty to protect items that may or may not have been left in the room once a guest once she has paid the bill and agreed to vacate the premises. (Dem., p. 15:1-6.) However, Plaintiff specifically alleges that Defendant permitted Plaintiff’s belongings to remain in the room while she secured additional housing. (Fifth Amended Complaint, ¶ 16.) For purposes of a demurrer, all allegations are taken as true. (Harris, supra, 56 Cal.4th p. 240, [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”].)

As Plaintiff has alleged all elements of a negligence cause of action, Defendant’s demurrer as to the second cause of action is OVERRULED.

B. Motion to Strike

Defendant’s Motion to Strike is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 435.5. (7/17/20 Jolly Decl.)

Defendant seeks to strike paragraphs, or words contained in paragraphs, 7-8, 24-26, 28, 31, 34, and 35. (Dem., pp. 15:24-16:15.) However, as set forth above, 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).) Thus, the Court declines to strike any particular paragraphs or words from the Fifth Amended Complaint.

Defendant also argues that the request for punitive damages should be stricken because, absent vicarious liability allegations, a corporation does not have a mind capable of the recklessness, wickedness, or intent to injure or deceive. (Dem., p. 16:16-20.)

“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).)

Under the statute, malice is defined as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others” and oppression is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Code Civ. Proc., 3294, subds. (c)(1), (2).) Although not defined by the statute, despicable conduct refers to circumstances that are base, vile, or contemptible. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) Also, “[u]nder the statute, malice does not require actual intent to harm…Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences…. [Citation.]” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.)

An award of punitive damages against a corporate defendant must be based on the malice of the corporation’s employees. (Wilson v. Southern California Edison, Co. (2015) 234 Cal.App.4th 123, 164.) Civil Code section 3294, subdivision (b), provides:

An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”

Here, Plaintiff does not allege hotel employees’ conduct was perpetrated, authorized, or knowingly ratified by a corporate officer, director or managing agent. Thus, Plaintiff’s request for punitive damages is unsupported. Accordingly, Defendant’s request to strike the prayer for punitive damages is GRANTED. Plaintiff is GRANTED 20 DAYS’ LEAVE TO AMEND the complaint to include allegations that would support a request for punitive damages.

C. Request to Dismiss

In the alternative, Defendant argues this action should be dismissed because Plaintiff’s Fifth Amended Complaint was not filed within 10 days of the Court’s ruling on Defendant’s demurrer to the Fourth Amended Complaint. (Dem., p. 17:7-17.)

The Court’s previous order sustaining Defendant’s demurrer to the Fourth Amended Complaint did not provide a time period within which Plaintiff was required to amend her complaint. (10/7/19 Minute Order.) California Rules of Court, rule 3.1320, subdivision (g) provides that unless otherwise provided, leave to amend within ten days is deemed granted. If an amended pleading is filed after the time allowed, the moving party may seek a motion to strike the late-filed pleading pursuant to a noticed motion. (Cal. Rules of Court, rule 3.1320, subd. (i).)

Here, however, Defendant waited approximately two months before requesting that the Fifth Amended Complaint be stricken. Importantly, between the filing of the Fifth Amended Complaint and the instant Motion, Defendant engaged in law and motion practice. Thus, Defendant’s request is DENIED.

IV. Conclusion & Order

For the foregoing reasons, Defendant NK Properties, Inc.’s Demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the breach of contract cause of action but OVERRULED as to the negligence cause of action.

In addition, Defendant’s Motion to Strike is GRANTED IN PART AND DENIED IN PART. Defendant’s request to strike particular paragraphs and words is DENIED. However, its request to strike Plaintiff’s prayer for punitive damages is GRANTED. Plaintiff is GRANTED 20 DAYS’ LEAVE TO AMEND the Complaint to include allegations that would support a punitive damages request.

Lastly, Defendant’s request to strike the Fifth Amended Complaint in its entirety is DENIED.

Moving party is ordered to give notice.

Case Number: BC720090    Hearing Date: July 28, 2020    Dept: 25

HEARING DATE: Tues., July 28, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Jackson v. NK Properties, Inc. COMP. FILED: 08-30-18

CASE NUMBER: BC720090 DISC. C/O: NONE

NOTICE: OK MOTION C/O: NONE

TRIAL DATE: NOT SET

PROCEEDINGS: (1) DEFENDANT’S MOTION FOR TERMINATING SANCTIONS AND REQUEST FOR MONETARY SANCTIONS

MOVING PARTY: Defendant NK Properties, Inc.

RESP. PARTY: Plaintiff Nicole Jackson

MOTION FOR TERMINATING SANCTIONS

(CCP §§ 2025.450)

PROCEEDINGS: (2) PLAINTIFF’S MOTION TO QUASH SUBPOENA

MOVING PARTY: Plaintiff Nicole Jackson

RESP. PARTY: None

MOTION TO QUASH SUBPOENA

(CCP § 1987.1)

TENTATIVE RULING:

(1) Defendant NK Properties, Inc.’s Motion for Terminating Sanctions is PLACED OFF CALENDAR.

(2) Plaintiff Nicole Jackson’s Motion to Quash Subpoena 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

Motion for Terminating Sanctions

OPPOSITION: Filed on February 5, 2020 [ ] Late [ ] None

REPLY: None filed as of July 24, 2020 [ ] Late [X] None

SUPP. PAPERS: None filed as of July 24, 2020 [ ] Late [X] None

Motion to Quash Subpoena

OPPOSITION: None filed as of July 24, 2020 [ ] Late [X] None

REPLY: None filed as of July 24, 2020 [ ] Late [X] None SUPP. PAPERS: None filed as of July 24, 2020 [ ] Late [X] None

ANALYSIS:

  1. Background

On August 30, 2018, Plaintiff Nicole Y. Jackson (“Plaintiff”) filed a complaint for breach of contract against Defendant NK Properties, Inc. (“Defendant”). On November 14, 2019, Plaintiff filed a Fifth Amended Complaint (“FAC”) for breach of contract and negligence. On December 19, 2019, the action was reclassified as civil limited.

On September 19, 2019, Plaintiff filed the instant Motion to Quash Subpoena (“Motion to Quash”) seeking to prevent Defendant from obtaining Plaintiff’s medical and employment records from third parties. No opposition was filed. On November 22, 2019, Defendant filed the instant Motion for Terminating Sanctions. On February 5, 2019, Plaintiff filed an Opposition. No reply brief was filed.

A hearing for both motions was scheduled for February 25, 2020. Plaintiff did not appear. (2/25/20 Minute Order.) Having heard oral argument from Defendant’s counsel, the Court took the matter under submission. (Id.)

On March 13, 2020, the Court granted sanctions of $3,046.40 against Plaintiff, but continued the hearing on Defendant’s request for terminating sanctions. (3/13/20 Minute Order.) Plaintiff was ordered to appear for deposition as soon as the stay at home and social distancing orders were lifted. (Id.) In addition, the parties were ordered to file and serve supplemental papers at least 16 court days before the next scheduled hearing demonstrating whether or not the deposition took place as ordered. (Id.) To date, no supplemental papers regarding the deposition have been filed.

The Court also continued the hearing on the Motion to Quash because Plaintiff failed to attach copies of the subpoenas being challenged. (Id.) Plaintiff was ordered to file copies of the requested documents at least 16 court days before the next scheduled hearing. To date, Plaintiff has not filed any supplemental papers.

Because the parties failed to file supplemental papers as ordered, both motions are PLACED OFF CALENDAR.

  1. Conclusion & Order

For the foregoing reasons:

(1) Defendant NK Properties, Inc.’s Motion for Terminating Sanctions and Request for Monetary Sanctions is PLACED OFF CALENDAR.

(2) Plaintiff Nicole Jackson’s Motion to Quash Subpoena is PLACED OFF CALENDAR.

Moving parties are ordered to give notice.

Case Number: BC720090    Hearing Date: July 13, 2020    Dept: 25

DEMURRER

(CCP §§ 430.10 et seq.)

MOVING PARTY: Defendant NK Properties, Inc.

RESP. PARTY: Plaintiff Nicole Jackson

MOTION TO WITHDRAW ADMISSIONS

(CCP §§ 2033.300)

MOVING PARTY: Plaintiff Nicole Jackson

RESP. PARTY: Defendant NK Properties, Inc.

SERVICE:

[ ] Proof of Service Timely Filed (CRC, rule 3.1300) NO (Admissions Motion)

[ ] Correct Address (CCP §§ 1013, 1013a) NO (Admissions Motion)

[ ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) NO (Admissions Motion)

Demurrer

OPPOSITION: Filed on February 5, 2020 [ ] Late [ ] None

REPLY: None filed as of July 7, 2020 [ ] Late [X] None

Motion to Withdraw Admissions

OPPOSITION: Filed on March 12, 2020 [ ] Late [ ] None

REPLY: None filed as of July 7, 2020 [ ] Late [X] None

TENTATIVE RULING:

(1) Defendant NK Properties, Inc.’s Demurrer is PLACED OFF CALENDAR.

(2) Plaintiff Nicole Jackson’s Motion to Withdraw Admissions is CONTINUED TO September 29, 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 correcting the deficiencies identified herein. Failure to do so may result in the Motion being placed off calendar or denied.

ANALYSIS:

  1. Background

On August 30, 2018, Plaintiff Nicole Jackson (“Plaintiff”) filed a complaint for breach of contract against Defendant NK Properties, Inc. (“Defendant”). On November 14, 2019, Plaintiff filed a Fifth Amended Complaint (“FAC”) for breach of contract and negligence. On November 19, 2019, the action was reclassified as civil limited.

On January 7, 2020, Defendant filed a Demurrer to Plaintiff’s Fifth Amended Complaint and Motion to Strike (the “Demurrer”). On February 5, 2020, Plaintiff filed an Opposition. No reply brief was filed. On February 19, 2020, the Court continued the hearing on the Demurrer due to Defendant’s failure to meet and confer with Plaintiff in person or by telephone. (2/29/20 Minute Order.) The Court ordered Defendant to file and serve a declaration attesting to its meet and confer efforts and warned that failure to do so could result in the Demurrer being placed off calendar. (Id.)

In addition, on March 3, 2020, Plaintiff filed a Motion to be Relieved from Admissions (the “Motion”). Defendant filed an Opposition on March 12, 2020. To date, no reply brief has been filed.

  1. Demurrer

A. Discussion

Despite being warned that that failure to file the requested supplemental declaration could result in the Demurrer being placed off calendar or denied, Defendant failed to do so.

For this reason, the Demurrer is PLACED OFF CALENDAR.

III. Motion to Withdraw Admissions

A. Service of the Moving Papers

Plaintiff seeks to amend her answer to a single Request for Admission, No. 12, from “admit” to “deny” because she misread the question and responded incorrectly. (Mot., Jackson Decl., ¶¶ 3, 4.) In Opposition, Defendant argues the Motion does not include a proof of service as required and that it was not properly served until March 9, 2020, only 14 court days before the previously scheduled March 27, 2020 hearing. (Oppo., p. 2.)

Although the Motion itself does not include a proof of service, Plaintiff’s supporting declaration does. (3/3/20 Jackson Decl., Proof of Service.) The attached proof of service demonstrates that Steven Brown served Defendant with a copy of the Notice of Motion and Motion by mail on March 3, 2020. (Id.) However, it appears that Defendant was not served with Plaintiff’s supporting declaration and exhibits. Thus, Plaintiff is ordered to serve Defendant with her declaration and supporting exhibits and file a proof of service demonstrating Defendant was properly served.

  1. Conclusion & Order

For the foregoing reasons:

(1) Defendant NK Properties, Inc.’s Demurrer is PLACED OFF CALENDAR.

(2) Plaintiff Nicole Jackson’s Motion to Withdraw Admissions is CONTINUED TO September 29, 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 correcting 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: BC720090    Hearing Date: February 25, 2020    Dept: 25

MOTION FOR TERMINATING SANCTIONS

(CCP §§  2025.450)

PROCEEDINGS: (2) PLAINTIFF’S MOTION TO QUASH SUBPOENA

MOVING PARTY:   Plaintiff Nicole Jackson

RESP. PARTY: None  

MOTION TO QUASH SUBPOENA

(CCP § 1987.1)

TENTATIVE RULING:

(1) Defendant NK Properties, Inc.’s Motion for Terminating Sanctions and Request for Monetary Sanctions is CONTINUED TO APRIL 29, 2020, at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE.

(2) Plaintiff Nicole Jackson’s Motion to Quash Subpoena is CONTINUED TO APRIL 29, 2020 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE.

At least 16 court days before the next scheduled hearing, the parties are ordered to file and serve supplemental papers addressing the deficiencies identified herein. Failure to do so may result in the Motions being placed off calendar or denied.

Motion for Terminating Sanctions

OPPOSITION: Filed on February 5, 2020 [   ] Late [   ] None

REPLY: None filed as of February 24, 2020 [   ] Late [X] None

Motion to Quash Subpoena

OPPOSITION: None filed as of February 24, 2020     [   ] Late [X] None

REPLY: None filed as of February 24, 2020     [   ] Late [X] None

ANALYSIS:

  1. Background

On August 30, 2018, Plaintiff Nicole Y. Jackson (“Plaintiff”) filed a complaint for breach of contract against Defendant NK Properties, Inc. (“Defendant”). On November 14, 2019, Plaintiff filed a Fifth Amended Complaint (“FAC”) for breach of contract and negligence. On December 19, 2019, the action was reclassified as civil limited.

On August 8, 2019, Defendant filed a Motion to Compel Plaintiff’s Deposition. On September 4, 2019, Defendant filed a Motion to Compel Responses to Form Interrogatories, Motion to Compel Responses to Special Interrogatories, Motion to Deem Requests for Admission Admitted, and Motion to Compel Responses for Request for Production of Documents. On December 9, 2019, the Court granted the Motion to Compel Deposition and Motion to Compel Responses to Form Interrogatories, and denied the Motion to Deem Requests for Admission Admitted. (12/9/19 Minute Order.) The Court also denied the Motion to Compel Responses to Special Interrogatories and Request for Production of Documents to the extent Plaintiff had already served answers. (Id.)

On September 19, 2019, Plaintiff filed the instant Motion to Quash Subpoena (“Motion to Quash”) seeking to prevent Defendant from obtaining Plaintiff’s medical and employment records from third parties. To date, no opposition or reply briefs have been filed.  

On November 22, 2019, Defendant filed the instant Motion for Terminating Sanctions. On February 5, 2019, Plaintiff filed an Opposition. To date, no opposition or reply briefs have been filed.

  1. Motion for Terminating Sanctions

  1. Legal Standard

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence, or monetary sanctions. (Code Civ. Proc., §§ 2023.010, subd. (g), 2025.450, subd. (h); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.)  An evidence sanction prohibits a party hat misused the discovery process from introducing evidence on certain designated matters into evidence. (Code Civ. Proc., § 2023.030, subd. (c).) Ultimate discovery sanctions are justified where there is a willful discovery order violation, a history of abuse, and evidence showing that less severe sanctions would not produce compliance with discovery rules.  (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.)  “[A] penalty as severe as dismissal or default is not authorized where noncompliance with discovery is caused by an inability to comply rather than willfulness or bad faith.”  (Brown v. Sup. Ct. (1986) 180 Cal.App.3d 701, 707.)  The court may impose a terminating sanction by one of the following orders:

(1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process.

(2) An order staying further proceedings by that party until an order for discovery is obeyed.

(3) An order dismissing the action, or any part of the action, of that party.

(4) An order rendering a judgment by default against that party.

(Code Civ. Proc., § 2023.030, subd. (d).)

  1. Discussion

Defendant argues that the Court should issue terminating sanctions due to Plaintiff’s blatant abuse of the discovery process as evidenced by her repeated refusal to appear for duly noticed depositions and failure to serve any valid objections as required by Code of Civil Procedure section 2025.410. (Mot., p. 4:19-24.) As evidence, Defendant submits copies of five Notices of Videotaped Deposition and Request for Production of Documents that were served on Plaintiff. (Id., Jolly Decl., ¶¶ 3, 7, 8, 10, and 11; Exhs., A, D, E, G, and K.) The depositions were noticed for August 1, 2019, September 25, 2019, October 2, 2019, October 30, 2019, and November 13, 2019. (Id.) Defendant submits two Certificates of Non-Appearance for the August 1, 2019 and November 13, 2019 depositions. (Id. at ¶¶ 4, 18, Exhs. B, N.) Defendant also submits four meet and confer letters sent to Plaintiff after her failure to appear or last-minute cancellation of a scheduled deposition. (Id. at ¶¶ 5, 9, 11, 12; Exhs. C, F, H, and I.)

Defendant further argues that Judge Rico advised Plaintiff she needed to appear for her Deposition during a Case Management Conference and that on October 11, 2019, when the Court addressed the parties in chambers, Judge Rico ordered Plaintiff to appear for her Deposition within 30 days. (Mot., Jolly Decl., ¶¶ 7, 10.) However, this was not memorialized in any order, and thus the Court cannot find that Plaintiff did not obey the Court’s orders. However, the Court did grant Defendant’s Motion to Compel Plaintiff’s Deposition on December 9, 2019. (12/9/19 Minute Order.) Notably, Plaintiff’s February 5, 2020 Opposition does not state she has appeared for deposition and complied with the December 9 Order. Thus, it appears that Plaintiff has failed to obey at least one Court order.  

In her opposition, Plaintiff argues that Defendant is being disingenuous and deliberately misrepresenting the facts. Specifically, she states that Defendant scheduled four depositions without conferring with her and as a result were in conflict with previously calendared matters. (Oppo., p. 6:7-14.) Plaintiff also states she “stayed in consistent communication with [Defendant] in order to find a suitable date.” (Id.) Notably, Plaintiff does not state whether she responded to Defendant’s various meet and confer letters, specifically the October 24, 2019 and October 29, 2019 letters where Defendant offered Plaintiff several dates to schedule a deposition. (Mot., Jolly Decl., ¶¶ 11-12, Exhs. H, I.)

Plaintiff further argues that she was unable to attend the November 13, 2019 deposition due to a transportation change, and that Defendant’s statement that “all trains and busses were running on time [with] no disruption in service” is false. (Oppo., p. 6:15-24.) Plaintiff also claims that a city employee informed her the bus line she planned to take to that deposition had been discontinued a few weeks prior due to lack of ridership. (Oppo., Jackson Decl., ¶ 5.)

Given the history between the parties, they are ordered to appear at the hearing prepared to discuss five (5) available deposition dates within the next thirty (30) days. The Court will then set the deposition date at the hearing. Defendant’s Motion is thus CONTINUED to allow Plaintiff an opportunity to appear for the Court-scheduled deposition. At least 16 court days before the next scheduled hearing, the parties should file supplemental papers demonstrating whether or not Plaintiff appeared for the court-ordered deposition.

  1. Motion to Quash Subpoena

  1. Legal Standard

Under Code of Civil Procedure section 1987.1, subdivision (a), “If a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.  In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”

“[U]pon motion reasonably made by the party, judges may rule upon motions for quashing, modifying or compelling compliance with, subpoenas.” (Lee v. Swansboro Country Property Owners Ass’n (2007) 151 Cal. App. 4th 575, 582-83.)  Either the nonparty witness who has been subpoenaed or any party to the action may challenge the deposition subpoena. (Code Civ. Proc., § 1987.1, subd. (b).) A deposition subpoena may be quashed for: (1) defects in form or content of the subpoena (e.g., inadequate description of requested records); (2) defects in service of the subpoena (e.g., failure to satisfy the requirements of providing notice to consumer; (3) requesting production of records not within the permissible scope of discovery; and (4) being unjustly burdensome or oppressive. (Code Civ. Proc., § 1987.1, subd. (a).)

  1. Discussion

 

Here, Plaintiff challenges two subpoenas sent by Defendant to Aspire Public Records (“Aspire”) and Daniel Sanchez, M.D. (“Dr. Sanchez”) on the basis that they are not parties to this action, with no interest in the outcome, and as such, it is unreasonably burdensome. (Motion to Quash, p. 4:15-19.) However, a subpoena for the production of documents is not restricted to parties to an action and may be directed to third-parties in appropriate circumstances. (Code Civ. Proc., § 2020.020, subd. (b).)

In the alternative, Plaintiff argues that the subpoena should be dramatically limited and raises several objections relevance, materiality, and failure to comply with Code of Civil Procedure section 1985.3. However, Plaintiff only attached copies of the Notice to Consumer or Employee Objection form, not of the subpoenas themselves. Although Plaintiff purportedly quotes the language of the subpoenas being challenged, the Court cannot make a determination based on this alone.

Thus, Plaintiff is ordered to file copies of the subpoenas she seeks to quash.

  1. Conclusion & Order

For the foregoing reasons:

(1) Defendant NK Properties, Inc.’s Motion for Terminating Sanctions and Request for Monetary Sanctions is CONTINUED TO APRIL 29. 2020, at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE.

(2) Plaintiff Nicole Jackson’s Motion to Quash Subpoena is CONTINUED TO APRIL 29, 2020, at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE.

At least 16 court days before the next scheduled hearing, the parties are ordered to file and serve supplemental papers correcting the deficiencies identified herein. Failure to do so may result in the Motions being placed off calendar or denied.

Moving parties are ordered to give notice.

Case Number: BC720090    Hearing Date: February 19, 2020    Dept: 25

DEMURRER WITH MOTION TO STRIKE

(CCP §§ 430.10 et seq.; 436)

TENTATIVE RULING:

Defendant NK Properties, Inc.’s Demurrer is CONTINUED to APRIL 30, 2020, at 10:30 a.m. in Department 25, SPRING STREET COURTHOUSE.. At least 16 court days prior to the next court hearing, Defendant must file and serve a declaration demonstrating the parties met and conferred in person or by telephone. Failure to obey the Court’s order may result in the Demurrer being placed off calendar or denied.

OPPOSITION: Filed on February 5, 2020 [ ] Late [ ] None

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

ANALYSIS:

  1. Background

On August 30, 2018, Plaintiff Nicole Y Jackson (“Plaintiff”) filed a complaint for breach of contract against Defendant NK Properties, Inc. (“Defendant”). On November 14, 2019, Plaintiff filed a Fifth Amended Complaint (“FAC”) for breach of contract and negligence. On December 19, 2019, the action was reclassified as civil limited.

On January 7, 2020, Defendant filed the instant Demurrer to Plaintiff’s Fifth Amended Complaint and Motion to Strike (the “Demurrer”). On February 5, 2020, Plaintiff filed an Opposition. To date, no reply brief has been filed.

  1. Legal Standard & Discussion

As an initial matter, the Court discusses the meet and confer requirement.

“Before 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 the demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) (Italics added.)

Defendant’s Demurrer is accompanied by a declaration stating that Defense counsel sent Plaintiff a meet and confer e-mail on December 30, 2019. (Demurrer, Jolly Decl., ¶ 3, Exh. B.) However, because Code of Civil Procedure section 430.41, subsection (a), requires that parties meet and confer in person or by telephone, the Court finds the attached meet and confer e-mail letter insufficient. Accordingly, Defendant ordered to meet and confer in person or by telephone and file a supplemental declaration attesting to such efforts at least 16 court days before the new hearing date.

  1. Conclusion & Order

For the foregoing reasons, Defendant NK Properties, Inc.’s Demurrer is CONTINUED to APRIL 30, 2020, at 10:30 a.m. in Department 25, SPRING STREET COURTHOUSE. At least 16 court days prior to the next court hearing, Defendant must file and serve a declaration demonstrating the parties met and conferred in person or by telephone. Failure to obey the Court’s order may result in the Demurrer being placed off calendar or denied.

Moving party is ordered to give notice.

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