"Demurrer with Judicial Notice"
Memorandom of Points and Authorities Supporting Demurrer 1 Terry Baylor, Esq., SB# 95309 THE LAW OFFICES OF TERRY BAYLOR 2 2140 Desert Drive, Suite 123 Desert Village, California 3 (555) 555-1234 4 Attorney for Defendants 5 Nathan Norman and Robert Daniels 6 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 7 COUNTY OF DESERT PALMS 8 FELICIA GRANT, et al., ) CASE NO. 2224-9876 9 ) Plaintiffs, ) MEMORANDUM OF POINTS 10 ) AND AUTHORITIES IN SUPPORT v. ) OF DEFENDANTS’ DEMURRER TO 11 ) THIRD AMENDED COMPLAINT 12 NATHAN NORMAN, et al., ) ) Limited Civil Case 13 Defendants. ) ) Date: 6-30-04 14 _______________________________ ) Time: 9:00 a.m. Dept. 2 15 16 Introduction 17 18 This is an action for damages brought by attorney Farley Frost on behalf of alleged tenants 19 of a residential property in Desert Village.1 Plaintiffs allege that at all relevant times that the 20 premises was owned by defendant Nathan Norman and managed by defendant Robert Daniels. 21 In or about January 2002, 27 tenant plaintiffs, including all of the plaintiffs herein, sued 22 Norman and a former owner for injuries allegedly arising from violations of the warranty of 23 habitability in their respective units and the common areas of the property, in an action 24 1 The First Amended Complaint (FAC) named 14 plaintiffs; the Second Amended Complaint added 4 more, 25 for whom no leave was given. The Third Amended Complaint is now at 15, all the parties in the First Amended Complaint with the addition of David Smith. ____________________________________ 1 Grant v. Norman Memorandum Supporting Demurrer to To Third Amended Complaint Memorandom of Points and Authorities Supporting Demurrer 1 hereinafter referred to as “Grant 1”. (See Request for Judicial Notice in Support of Defendants 2 Demurrer to Plaintiffs’ Third Amended Complaint [RJN], filed herewith.) In or about May 3 2003, 27 alleged tenants, including 13 of the 14 plaintiffs in the First Amended Complaint, sued 4 Robert Daniels for injuries allegedly arising, inter alia, out of alleged violations of the warranty 5 of habitability in their respective units and the common areas of the property in an action referred 6 to hereinafter as “Grant 2”. (See B, RJN.) It was not served. 7 The Grant 1 plaintiffs executed a settlement agreement and general release on October 1, 8 2003. (See I C, RJN.) The Grant 1 plaintiffs released the owner generally, as well as his 9 “agents, servants, employees, insurance carriers, and all other persons (hereinafter 10 sometimes referred to as “RELEASEES”) of and from all claims, demands, actions and 11 causes of action arising out of, or in any way connected with, or occupancy of, 9000 Palm 12 Street. Desert Village, Ca and all individual dwelling units located in the building 13 containing this address”. (Emphasis in original.) (See Exhibit 1 C through G to RJN.) 14 15 The release included a Civil Code section 1542 waiver, and was followed by a dismissal 16 with prejudice. (Id.) 17 18 On November 16, 2003, the Grant 2 plaintiffs amended their complaint and served it. (Id.) 19 The Grant 2 defendants moved for summary judgment against the Grant 2 plaintiffs, contending 20 that the unqualified general mutual release executed by the Grant 1 plaintiffs October 1, 2003 21 was an absolute bar to any recovery by them against defendants for any events occurring prior to 22 October 1, 2003. All of the causes of action alleged in Grant 2 allegedly arose prior to October 23 1, 2003. 24 25 2 ____________________________________ Grant v. Norman Memorandum Supporting Demurrer to To Third Amended Complaint Memorandom of Points and Authorities Supporting Demurrer 1 On March 1, 2004, the Honorable Judge Judith Jules granted summary judgment in favor 2 of defendants and against 27 of the 29 plaintiffs, and 13 of whom are plaintiffs in this action.2 3 Now, for the third time, these (now 15) plaintiffs complain for damages against the same 4 defendants, for the identical injuries for which they have already sued twice, and for which 5 they have been paid once. 6 This Court sustained defendants’ demurrer to the Grant 3 First Amended Complaint 7 (FAC) with leave to amend. Plaintiffs were ordered to file and serve a Second Amended 8 Complaint (SAC) that sets forth, in clear and unambiguous terms, the exact nature of each 9 alleged cause of action and specifically when each cause of action arose, and if they could do 10 so, possible, facts showing that each cause of action is timely within the applicable statute(s) 11 12 of limitation. The Court noted that, as then pled, the FAC appeared to be internally 13 inconsistent with respect to the acts complained of by plaintiffs and when such occurred. 14 (E.g., comparing FAC paragraphs 4-10 and paragraph 18.) 15 The SAC failed to comply with the Court’s order. While the Court tentatively ordered the 16 SAC dismissed without leave to amend, the Court generously granted plaintiffs’ counsel’s 17 request that he should be given a fourth opportunity to plead. 18 The TAC also fails to meet the Court’s requirements. 19 20 Argument 21 A complaint fails to state facts sufficient to constitute a cause of action if it shows on its 22 face or it appears from judicially noticed matter that the action is barred by an affirmative 23 24 defense. (Halvorsen v. Aramark Uniform Services, Inc. (1998) 65 Cal. App. 4th 1383, 1391.) 25 2 One of the newly named plaintiffs, David Smith, settled his portion of Grant 2 with a general release in December 2003. ____________________________________ 3 Grant v. Norman Memorandum Supporting Demurrer to To Third Amended Complaint Memorandom of Points and Authorities Supporting Demurrer 1 Res judicata and the bar of the statute of limitations are affirmative defenses that may appear 2 on the face of the pleading or from judicially noticed matter. (Weil v. Barthel (1955) 45 Cal. 3 2d 835, 837; Cochran v. Cochran (1997) 56 Cal. App. 4th 1115, 1120.) 4 Defendants generally demur that the TAC fails to state facts sufficient to constitute a 5 cause of action because the allegations fail to allege clearly and unambiguously the nature of 6 each cause of action and that no cause of action is barred by statutes of limitation. 7 The TAC also violates the Court’s order in that it fails to specify when each alleged 8 condition arose, and continues to allege a series of conditions that were part of the prior 9 pleadings and released. Defendants also note that plaintiffs have violated this Court’s order 10 by adding one new plaintiff for which no leave was sought. 11 12 For these reasons, defendants contend that this demurrer must be sustained and 13 the TAC dismissed without leave to amend. 14 I. PLAINTIFFS’ PRIOR PLEADINGS CONTRADICT – AND SUPERSEDE -- THE ALLEGATIONS OF THE TAC IN THIS ACTION. 15 In support of these arguments, defendants re-offer the documents for which they have 16 previously requested judicial notice. These documents include the actions of the Court in 17 18 prior proceedings, as well as the plaintiffs’ statements in prior actions against these 19 defendants. In determining the sufficiency of a complaint against demurrer, judicially 20 noticeable facts supersede inconsistent factual allegations contained in the complaint. (City of 21 Chula Vista v. County of San Diego (1994) 23 Cal. App. 4th 1713, 1719.) Judicial notice of 22 the plaintiffs’ earlier pleadings and positions is proper; plaintiffs cannot avoid demurrer by 23 pleading facts that contradict facts or positions pleaded in earlier actions or by suppressing 24 facts that prove the newly pleaded facts false. (Cantu v. Resolution Trust Corp. (1992) 4 Cal. 25 App. 4th 857, 877; EC § 452; CCP § 430.70; Colapinto v. County of Riverside (1991) 230 4 ____________________________________ Grant v. Norman Memorandum Supporting Demurrer to To Third Amended Complaint Memorandom of Points and Authorities Supporting Demurrer 1 Cal.App.3d 147, 151.) The complaint should be read as containing the judicially noticeable 2 facts, "even when the pleading contains an express allegation to the contrary." (Chavez v. 3 Times-Mirror Co. (1921) 185 Cal. 20, 23.) “The principle is …truthful pleading.” (Watson v. 4 Los Altos School Dist. (1957) 149 Cal.App.2d 768, 771.) “When the plaintiff pleads 5 inconsistently in separate actions, the plaintiff's complaint is nothing more than a sham that 6 seeks to avoid the effect of a demurrer.” (Cantu v. Resolution Trust Corp. supra at 878.) 7 Under such circumstances, the court must disregard the falsely pleaded facts and affirm the 8 demurrer. (Id.) 9 In this case -- Grant 3 – plaintiffs continue to deliberately frame their allegations to 10 conceal the claims and facts they alleged in Grant 1 and the settlement and release of those 11 12 claims that establish absolute defenses to the instant Third Amended Complaint. Their 13 pleading is a sham. 14 II. THE THIRD AMENDED COMPLAINT CONTINUES TO VIOLATE THE COURT’S ORDER. 15 16 This Court ruled, in its prior order of March 1, 2004 and in the order on Demurrer for the 17 Second Amended Complaint that plaintiffs were to specifically to set forth, in clear and 18 unambiguous terms, the exact nature of each alleged cause of action and specifically when 19 each cause of action arose. As to the latter, Plaintiffs were also ordered to allege, if possible, 20 facts showing that each cause of action is timely within the applicable statute(s) of limitation. 21 Plaintiffs have, for the second time, failed to do so. They have pleaded that “certain 22 conditions” arose either on or after October 1, 2003. However, they continue to plead 23 24 (paragraph 20 a–i.) that other conditions have occurred prior to that date. Not only were these 25 ____________________________________ 5 Grant v. Norman Memorandum Supporting Demurrer to To Third Amended Complaint Memorandom of Points and Authorities Supporting Demurrer 1 allegations contained in prior versions of this complaint, but also they were released by in 2 prior litigation. 3 Plaintiffs also continue to allege that “most” defects arose after October 1, 2003. Thus, 4 defendants are still uncertain as to what conditions are alleged to have arisen when, and which 5 ones were actually released in Grant 1, and which ones are barred by the statute of 6 limitations. 7 The demurrer must be sustained, and the TAC dismissed without leave to amend, since 8 after three tries, plaintiffs cannot comply with the Court’s order. 9 III. THE THIRD AMENDED COMPLAINT FAILS TO COMPLY WITH THE 10 COURT’S ORDER BECAUSE IT FAILS TO CLEARLY AND UNAMBIGUOUSLY 11 ALLEGES THE NATURE OF EACH CAUSE OF ACTION TO SHOW THAT THEY WERE NOT RELEASED AND ARE NOT BARRED BY THE APPLICABLE 12 STATUTES OF LIMITATIONS. 13 Even if the causes of action were not barred as violations of the rule against splitting 14 actions, the TAC does not comply with the Court’s order on demurrer: it does not clearly and 15 unambiguously allege when each cause of action arose to show that they are not barred by the 16 statutes of limitations.3 Indeed, the TAC does nothing to correct the inconsistencies of the 17 18 FAC and SAC, and demonstrates the sham nature of the pleading. 19 The FAC and SAC alleged that the conditions causing injury arose at the inception of 20 each tenancy; so all causes would have been barred by the statutes of limitations. Since they 21 were previously alleged in this action and Grant 1 to have arisen at the inception of the 22 respective tenancies, the current attempt to avoid pleading the inception of these conditions is 23 a sham. Thus, the demurrer must be sustained for two reasons: it fails to comply with the 24 3 The statutes of limitations for the first, second, third, fourth, fifth, seventh, eighth and ninth causes of 25 action is one year. (CCP section 340(3).) The statute for the sixth, tenth and eleventh causes of action is three years. (CCP section 338(a).) 6 ____________________________________ Grant v. Norman Memorandum Supporting Demurrer to To Third Amended Complaint Memorandom of Points and Authorities Supporting Demurrer 1 Court’s order, and it continues to suppress facts previously pleaded that would prove the 2 newly pleaded facts false. (See e.g. Cantu v. Resolution Trust Corp. (1992) supra at 877; EC 3 § 452; CCP § 430.70.) Thus, the TAC must be dismissed without leave to amend. 4 IV. PLAINTIFFS HAVE VIOLATED THIS COURT’S ORDER ON DEMURRER 5 BY ADDING A NEW PARTY AND AMENDING PARAGRAPH 4 WITHOUT LEAVE. 6 CCP § 472 provides that a pleading may be amended once as a matter of right. 7 Subsequent amended pleadings require leave of court. 8 The SAC and TAC names and add an allegation for causes of action regarding a plaintiff 9 who was not a party to the First Amended Complaint -- David Smith – and changes the unit 10 number for one of the alleged units (SAC, paragraph 4, TAC, paragraph 4). Plaintiffs just 11 12 took the opportunity to slip in a few changes in violation of the Court’s order, hoping nobody 13 would notice. 14 Conclusion 15 Plaintiffs sued once, and were paid for their releases and dismissal with prejudice. Not 16 content, they violated their settlement agreement and sued again. When their second case was 17 thrown out, they brought this action, concealing from the Court the true history of the case, 18 and framing their allegations to avoid the fact that their actions – at least insofar as they have 19 been split from the settled causes -- are barred. 20 This Court not only gave them an opportunity to salvage their pleading, but also told 21 them TWICE exactly how to do it. Plaintiffs did not affirmatively explain how and when the 22 causes arose, but made additional blanket allegations, which conflict with their prior 23 allegations, and only to survive demurrer and perpetuate their sham pleading. But this 24 25 version demonstrates even more clearly that the causes are split from those already released and____________________________________they waived. And not only that – add new plaintiffs in violation of the Court’s order! 7 Grant v. Norman Memorandum Supporting Demurrer to To Third Amended Complaint Memorandom of Points and Authorities Supporting Demurrer 1 Four attempts are more than enough. The demurrer must be sustained without leave to 2 amend. 3 4 June 1, 2004 _____________________________ 5 Terry Baylor, Esq. Attorney for Defendants Nathan Norman 6 and Robert Daniels 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 8 ____________________________________ Grant v. Norman Memorandum Supporting Demurrer to To Third Amended Complaint