Demurrer Without Motion To Strike

Motion

Cal. Super. - 2nd Dist.November 13, 2018

Electronically FILED by Superior Court of California, County of Los Angeles on 12/17/2018 10:46 AM Sherri R. Carter, Executive Officer/Clerk of Court, by K. Hung,Deputy Clerk 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GEORGE J. HERNANDEZ, JR., ESQ., SB#107774 ARCHIE CHIN, ESQ., SB#140331 ERICKSEN ARBUTHNOT 835 Wilshire Blvd., Suite 500 Los Angeles, California 90017-2603 (213) 489-4411 (213) 489-4332/Fax Attorneys for Defendant, SINGLE ROOM OCCUPANCY HOUSING CORPORATION erroneously sued and served as SRO HOUSING CORPORATION SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES SHARELLE T. CARTER, CASE NO.: 18STCV04764 Plaintiff, [Complaint Filed: 11/13/18] Vs. [Assigned to Hon. Richard Fruin — Dept. 15] NOTICE OF DEMURRER AND SRO HOUSING CORP, DEMURRER TO PLAINTIFF’S COMPLAINT; DECLARATION OF Defendants. ARCHIE CHIN (MEET AND CONFER); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF DATE: January 15, 2019 TIME: 8:30 a.m. DEPT.: 15 CRS NO. 230730802601 N e N e N e ee N e N e N e a N e S e a N a N a a N a SN SN SN N a SN Trial Date: Not Assigned TO ALL PARTIES HEREIN AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on January 15, 2019, at 8:30 a.m., or as soon thereafter as counsel may be heard, in Department 15 of the above-entitled court, located at 111 North Hill Street, Los Angeles, CA 90012, defendant SINGLE ROOM OCCUPANCY HOUSING CORPORATION erroneously sued and served as SRO HOUSING CORPORATION (hereinafter “Defendant” or “defendant’) will demur to the entirety of plaintiff's Complaint. ' Plaintiff is in Pro Per and her Complaint is solely comprised of an unsigned, bare bones, two paragraph pleading with a number of “attachments,” but the pleading does not allege the nature of any cause(s) of action asserted or, more importantly, allege any “ultimate facts” to state any cause of action. 1 NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT S & L N N O Y Dn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This Demurrer will be made pursuant to Code of Civil Procedure §§ 430.10(e) and 430.10(f), and on the following grounds, and each of them: Xe That the complaint fails to state any facts sufficient to constitute a cause of action against defendant; and 2. That the complaint is uncertain, ambiguous and unintelligible. The Demurrer will be based on this Notice, the Demurrer, the Declaration of Archie Chin (Meet and Confer) and Memorandum of Points and Authorities, served and filed herewith, on all pleadings, records and files in this action, and on such other argument as may be presented at the time of the hearing. DATED: December 17,2018 ERICKSEN, ARBUTHNOT . (h ( GEORGE J. HERNANDEZ, JR., ESQ. ARCHIE CHIN, ESQ. Attorneys for Defendant SINGLE ROOM OCCUPANCY HOUSING CORPORATION erroneously sued and served as SRO HOUSING CORPORATION 2 NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT 0 9 ON oO 10 11 12 13 14 15 16 17 18 19 20 21 7a 23 24 25 26 27 28 DEMURRER TO PLAINTIFF'S COMPLAINT Defendant SRO HOUSING CORPORATIOIN demurs to the entirety of the Complaint, on the following grounds: DEMURRER 1. The Complaint fails to state facts sufficient to constitute a cause of action [Code of Civil Procedure §430.10(e)]; and 2. The Complaint is uncertain, ambiguous and unintelligible [Code of Civil Procedure §430.10(f)] DATED: December 17,2018 ERICKSEN, ARBUTHNOT /) GEORGE J. HERNANDEZ, JR., ESQ. ARCHIE CHIN, ESQ. Attorneys for Defendant SINGLE ROOM OCCUPANCY HOUSING CORPORATION erroneously sued and served as SRO HOUSING CORPORATION By: ~ 3 NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT N O oo 10 11 12 13 14 15 16 I? 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF ARCHIE CHIN I, ARCHIE CHIN, declare as follows: 1 [ am an attorney at law, duly licensed to practice before all of the courts of the State of California. I am an associate in the law firm of Ericksen Arbuthnot, attorneys of record for defendant SINGLE ROOM OCCUPANCY HOUSING CORPORATION erroneously sued and served as SRO HOUSING CORPORATION. I am familiar with the files and pleadings in this case, and if called upon as a witness, I could and would competently testify to the following facts based upon my own personal knowledge. 2 On December 11, 2018, Declarant sent an email to plaintiff in pro per to “meet and confer” in compliance with the requirements of Code of Civil Procedure §430.41(a). The email outlined the deficiencies in the complaint and the legal support for defendant’s position, namely the fact that the unsigned complaint did not allege any “ultimate facts” required to state a cause of action but merely alleged the “legal conclusion” that plaintiff was “illegally locked out” of her premises. Declarant further invited plantiff to meet and confer, in person or by telephone, to discuss any contention that plaintiff may assert that the complaint was legally sufficient and asked that platiniff contact Declarant by the close of business on December 12, 2018. Plaintiff responded to the email stating that the telephone number listed on the complaint was “no longer in service” and “without a reachable phone until the beginning of the year. Plaintiff further stated that she was homeless and “unavailable” to discuss the issues until after the holidays. (Attached hereto and incorporated herein by reference as Exhibit “A” is a true and correct copy of the email chain between Declarant and Plaintiff in pro per reflecting Declarant’s attempt to meet and confer in compliance with the Code). I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this (7 ay of December 2018 at Los Angeles, (a ARCHIE CHIN California. 4 NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES L PLAINTIFF'S COMPLAINT FAILS TO STATE ANY FACTS TO CONSTITUTE A CAUSE OF ACTION It is well settled California law that a complaint must contain “a statement of the facts constituting the cause of action in ordinary and concise language. (Emphasis added) Code of Civil Procedure §425.10. The essential elements that must be pled, and proven, to state a cause of action are typically determined by the substantive law as outlined, for example, in the California Civil Jury Instructions which set forth the prima facie elements for any particular civil cause of action (i.e. — Fraud, Negligence, Negligent Infliction of Emotional Distress etc.) The facts that must be pled in a complaint are in the nature of “ultimate facts,” and not “conclusions of law.” Ultimate facts are the facts that raise the issues on which a right to recover depends, namely the facts upon which liablity depends and that are material to the cause of action. Doe v City of Los Angeles (2007) 42 Cal.4™ 531, 67 Cal.Rptr.3d 330. The operative complaint herein contains two paragraphs. The first paragraph, composed of a mere 46 words, summarily concludes that plantiff was “illegally locked out” of her residential unit, and that based on the “illegal” lock out she became homeless and lost her personal belongings.” The complaint is absolutely silent as to “who” illegally locked her out. Was it defendant? Was it some party who was an agent or employee of defendant? The complaint is also silent as to “why” plantiff was “illegally locked out.” What was the “lock out”? In what way was it “illegal?” On its face, the bare allegations of “illegal lock out” are in the nature of legal conclusions, and not ultimate facts required by the Code of Civil Procedure. Plaintiff's failure to plead “ultimate facts” subjects the complaint to demurrer for failure to state “facts constituting a cause of action.” Code of Civil Procedure §430.10(e); * The second paragraph contains a skeletal “prayer” for damages, claiming “unit fees” and loss of “personal property” with no quantified value, as well as “emotional distress.” 5 NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Berger v California Insurance Guarantee Assoc. (2005) 128 Cal. App.4"™ 989, 27 Cal.Rptr.3d 583. “A complaint must allege the ultimate facts necessary to the statement of an actionable claim. It is both improper and insufficient for a plaintiff to simply plead the evidence by which [she] hopes to prove such ultimate facts”. Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1390, 272 Cal Rptr. 387. In this case the paragraph does not allege ultimate facts, does not allege any evidence, but summarily concludes that some unidentified conduct, presumably performed by defendant or its agents and/or employees, was “illegal.” Such a bare bones pleading fails to pass muster and does not plead facts necessary “to acquaint a defendant with the nature, source and extent of [plaintiff's] claims.” 42 Cal.4™ at 550. The complaint is “adequate so long as it apprises the defendant of the factual basis for the claim.” Prue v Brady Co. (2015) 242 Cal. App.4" 1367, 1376, 196 Cal.Rprt.3d 68. The single paragraph containing the sole charging allegation of “illegal lock out” apprises defendant of nothing, is inadequate as a matter of law and subjects the complaint to demurrer. IL. PLAINTIFF'S COMPLAINT IS UNCERTAIN, AMBIGUOUS AND UNINTELLIGIBLE The complaint herein is uncertain, ambiguous and unintelligible and fails to satisfy the pleading requirements of Code of Civil Procedure §430.10(f). The complaint is bereft of any substantive allegations of ultimate fact and defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against it. Khoury v Maly '’s of California, Inc. (1993) 14 Cal. App.4" 612, 17 Cal.Rptr.2d 708. On its face, the complaint is uncertain because it fails to label the claims or parties and renders the complaint so confusing that defendant cannot tell what it is supposed to respond to. Williams v Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 229 Cal.Rptr. 605. (See Complaint, page 1, lines 20-22). The complaint makes the single allegation that plantiff was 6 NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “illegally locked out” and says nothing more to substantiate the nature of her claim or cause of action and defendant’s alleged involvement with the so-called lockout. IIL. THE COMPLAINT ALSO CONTAINS ADDITIONAL PLEADING DEFECTS WHICH SUBJECT THE COMPLAINT TO PLEADING CHALLENGE To be acceptable and adequate for filing, a complaint must be drafted in accordance with the rules applicable to pleadings. Rules of Court, Rule 2.100-2.119. For example, each cause of action should be separately stated, separately numbered and must identify the parties asserting he claim and against whom it is asserted. Rule 2.112. The complaint does not comply. The prayer must state the amount of the money damages sought. Code of Civil Procedure §425.10(a) (2). The complaint does not comply with respect to the damages for “loss of personal property.” Finally, the complaint must be signed by the attorney of record or by the party personally if not represented by counsel. Code of Civil Procedure §128.7. An in propria persona complaint must be signed by the plaintiff personally. Board of Trustees of Leland J. Stanford University v Superior Court (2007) 149 Cal. App.4™ 1154, 57 Cal.Rptr.3d 755. The operative complaint is not signed by plaintiff in pro per. IV. CONCLUSION Based on the foregoing, defendant respectfully request that the courts sustain its demurrer, without leave to amend. DATED: December 17,2018 ERICKSEN, ARBUTHNOT w UU GEORGE J. HERNANDEZ, JR., ESQ. ARCHIE CHIN, ESQ. Attorneys for Defendant SINGLE ROOM OCCUPANCY HOUSING CORPORATION erroneously sued and served as SRO HOUSING CORPORATION 7 NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT EXHIBIT “A” Archie Chin EC Lees From: Archie Chin Sent: Wednesday, December 12, 2018 2:53 PM To: Relly Carter Cc: George Hernandez; Victor Iniguez (viniguez@ericksenarbuthnot.com); Nancy Hanamoto Subject: RE: Carter v SRO Housing Corporation - LASC Case No. - 18STCV04764 I am sorry to hear that you are homeless and unavailable to discuss the issues with me until after the holidays, but unfortunately I must proceed with my demurrer. Archie Chin, Esq. Ericksen Arbuthnot 835 Wilshire Blvd., Suite 500 Los Angeles, CA 90017-2656 Phone: (213) 489-4411 (Ext. 114) Fax: (213) 489-4332 E-Mail: achin@ericksenarbuthnot.com ERICKSEN ARBUTHNOT Attorneys at Law CONFIDENTIALITY NOTICE: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 USC 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This communication may contain confidential and privileged material for the sole use of the intended recipient and receipt by anyone other than the intended recipient does not constitute a loss of the confidential or privileged nature of the communications. Any review or distribution by others is strictly prohibited. If you are not the intended recipient please contact the sender by return electronic mail and delete all copies of this communication From: Relly Carter [mailto:real2soullst@gmail.com] Sent: Wednesday, December 12, 2018 2:44 PM To: Archie Chin Subject: Re: Carter v SRO Housing Corporation - LASC Case No. - 185TCV04764 [ am unavailable until after the holidays!.. An am homeless without a reachable phone until the beginning of the year. On Wed, Dec 12, 2018, 9:46 AM Archie Chin Subject: Re: Carter v SRO Housing Corporation - LASC Case No. - 185TCV04764 Good morning that number is no long in service however you can reach me by e-mail. Also after the 1st of the year i would be able to meet with you at my earliest convenience. On Dec 12,2018 9:13 AM, "Archie Chin" wrote: Ms. Carter, [ just left a voicemail at your telephone number listed on the complaint, (213) 298-5449. It is essential that we talk on the telephone regarding the issues raised in my “meet and confer” email below. Unfortunately, 2 time is of the essence so an in person meeting is not feasible or practicable. In order to cut to the chase, feel free to outline in a responsive email, the grounds upon which you contend that the complaint is legally sufficient in advance of our telephone conversation. I look forward to hearing from you. Archie Chin, Esq. Ericksen Arbuthnot 835 Wilshire Blvd., Suite 500 Los Angeles, CA 90017-2656 Phone: (213) 489-4411 (Ext. 114) Fax: (213) 489-4332 E-Mail: achin@ericksenarbuthnot.com CONFIDENTIALITY NOTICE: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act, 18 USC 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This communication may contain confidential and privileged material for the sole use of the intended recipient and receipt by anyone other than the intended recipient does not constitute a loss of the confidential or privileged nature of the communications. Any review or distribution by others is strictly prohibited. If you are not the intended recipient please contact the sender by return electronic mail and delete all copies of this communication. From: Relly Carter [mailto:real2soullst@gmail.com] Sent: Tuesday, December 11, 2018 9:01 PM To: Archie Chin Subject: Re: Carter v SRO Housing Corporation - LASC Case No. - 18STCV04764 I Sharelle Carter have received your email. Under court law 430.41(a) is willing to meet at my earliest convenience. You may inform me of any dates within this month you are available. Which i can notify you on my availability. To schedule meeting Thank you. On Dec 11, 2018 3:10 PM, "Archie Chin" wrote: 3 Ms. Carter, This office represents defendant SRO Housing Corporation (“SRO”) in the above-entitled action. Please direct all further communications to either Mr. Hernandez (lead partner) or the undersigned. I am in receipt of plaintiff's “Complaint for Damages,” filed on November 13, 2018 and apparently personally served on November 26, 2018. This email will serve as an attempt to “meet and confer” in compliance with Code of Civil Procedure section 430.41(a) before SRO files a demurrer to the Complaint. This email will also outline some of the deficiencies in the complaint and the legal support for defendant’s conventions. For example, your bare bones, two paragraph complaint does not comply with the California Rules of Court which mandates that each cause of action must be numbered separately and its nature stated. Rules of Court 2.112. Additionally, the complaint does not contain “a statement of the facts constituting the cause of action in ordinary and precise language.” Code of Civil Procedure section 425.10. The law is clear that the essential elements to be pleaded to state a cause of action are determined by the substantive law. Plaintiff has not alleged any factual elements to state a cause of action based on California substantive law, typically outlined in the California Civil Jury Instructions. The complaint merely states that plantiff was “illegally locked out” of a certain premises but does not allege “ultimate facts” constituting the cause of action. Doe v City of Los Angeles (2007) 42 Cal.4™ 531. Alleging that plantiff was “illegally locked out” is a legal conclusion and subjects the complaint to demurrer. Code of Civil Procedure section 430.10(d); Berger v California Insurance Guarantee Assoc. (2005) 128 Cal. App.4" 989. Please contact me before the close of business on December 12, 2018 so we can discuss in person or by telephone any legal support for your contention that the complaint is legally sufficient so we may be in compliance with the mandate of section 430.41(a). Otherwise I will proceed with the filing of the demurrer. Thank you. Archie Chin, Esq. Ericksen Arbuthnot 835 Wilshire Blvd., Suite 500 Los Angeles, CA 90017-2656 Phone: (213) 489-4411 (Ext. 114) Fax: (213) 489-4332 wr E-Mail: achin@ericksenarbuthnot.com CONFIDENTIALITY NOTICE: This communication constitutes an electronic communication within the meaning of the Electronic Communications Privacy Act. 18 USC 2510, and its disclosure is strictly limited to the recipient intended by the sender of this message. This communication may contain confidential and privileged material for the sole use of the intended recipient and receipt by anyone other than the intended recipient does not constitute a loss of the confidential or privileged nature of the communications. Any review or distribution by others is strictly prohibited. If you are not the intended recipient please contact the sender by return electronic mail and delete all copies of this communication. 10 11 12 13 14 15 16 Lé 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of eighteen and not a party to the within action; my business address is 835 Wilshire Boulevard, Suite 500, Los Angeles, California 90017. On December 17, 2018, I served the foregoing document described as NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT; DECLARATION OF ARCHIE CHIN (MEET AND CONFER); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF on the interested parties in this action by placing true and correct copies thereof enclosed in sealed envelopes addressed as follows: SEE ATTACHED PROOF OF SERVICE LIST X BY MAIL. I caused such envelopes to be deposited in the mail at Los Angeles, California. The envelopes were mailed with postage thereon fully prepaid. I am “readily familiar with the firm’s practice of collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or pegs meter date is more than one day after date of deposit for mailing in affidavit Electronic Transmission: by transmitting via email from nhanamoto@ericksenarbuthnot.com during normal business hours, complete and without error on the date indicated below, to the email address set forth below. Facsimile Transmission: by transmitting via facsimile from (213) 489- 4332 during normal business hours, complete and without error on the date indicated below, to the fax numbers set forth below. Personal Delivery: by personally delivering the document(s) listed above to the person(s) at the address(es) set forth below. Overnight Delivery: by placing the document(s) listed above in a sealed envelope and marked for next-day delivery by UPS. [>< (State) 1 declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on the date below at Los Angeles, California. DATED: December 17, 2018 Voor lore Nancy Hanamoto 8 NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST Case Name: Carter v. SRO Housing Corp Case No. 18STCV04764 Service List Updated:12/11/18 Sharelle T. Carter P.O. Box 21134 Los Angeles, CA 90021 Tel: 213.298.5449 Email: REAL2SOULIST@GMAIL.COM In Pro Per 9 NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT Make a Reservation | Journal Technologies Court Portal ~.»4 Journal Technologies Court Portal Make a Reservation SHARELLE T CARTER vs SRO HOUSING CORP Case Number: 18STCV04764 Case Type: Civil Unlimited Category: Other Complaint (non-tort/non-complex) Date Filed: 2018-11-13 Location: Stanley Mosk Courthouse - Department 15 Reservation Case Name: Case Number: SHARELLE T CARTER vs SRO HOUSING CORP 18STCV04764 Type: Status: Demurrer - without Motion to Strike RESERVED Party: Location: SRO Housing Corp (Defendant) Stanley Mosk Courthouse - Department 15 Date/Time: Number of Motions: 01/15/2019 8:30 AM 1 Reservation ID: Confirmation Code: 230730802601 CR-Y5V8QVAEMEVUZTTGNP Fees Description Fee Qty Amount First Paper Fees (Unlimited Civil) 435.00 1 435.00 Credit Card Percentage Fee (2.75%) 11.96 1 11.96 TOTAL $446.96 Payment Amount: Type: $446.96 Visa Account Number: Authorization: XXXX7579 02223G = Print Receipt +4 Reserve Another Hearing Copyright © Journal Technologies, USA. All rights reserved. https://portal-lasc.journaltech.com/public-portal/?q=calendar/reserve 2/2