Joshua Taylor (SB LAW OFFICES OF TAYLOR AND ASSOCIATES Island Avenue, Ste#1 San Diego, CA 01 ( -0 Telephone Attorney for Defendant David Deffen SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF SAN DIEGO NORTH COUNTY REGIONAL CENTER JOHN and JANICE PLANT, individuals. v. Plaintiff, DAVID DEFFEN, an individual; and DOES 1 0, inclusive, Defendants. Case No.: --0000-CL-CL-EC DEMURRER TO COMPLAINT MEMORANDUM OF POINTS AND AUTHORITIES COMES NOW Defendant DAVID DEFFEN, an individual, and submits this Memorandum of Points and Authorities in support of his demurrer to Complainant JOHN and JANICE PLANT S complaint. I INTRODUCTION/STATEMENT OF FACTS This matter arises from a transaction involving the termination of a residential lease, wherein Defendant quit the premises leased to him under a written residential lease by Plaintiffs after Plant v. Deffen Page 1 Case No: --0000-CL-CL-EC
discovering that the premises were less than habitable. At that time, Defendant sued Plaintiff s to recover costs associated with finding suitable substitute housing. Plaintiff has now filed this action after the ultimate culmination of the prior action, alleging that Defendant is liable to Plaintiff for malicious prosecution, negligence, and fraud. II AUTHORITY The party against whom a complaint is filed may file a demurrer to the pleading when the pleading does not state facts sufficient to constitute a cause of action. Code of Civil Procedure 0.(e. In addition, a defendant against whom a complaint has been filed may demur to a pleading that is uncertain, ambiguous or unintelligible. Code of Civil Procedure 0.(f. A demurrer tests the pleadings alone, leaving out any consideration of extrinsic matters or evidence. Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc., Cal.App th, (. The demurrer lies where the defect appears on the face of the pleading or when judicially noticed. Code of Civil Procedure 0.0, 0.0. The only issue to be resuled on demurrer is whether the complaint, as it stands and unconnected to an extraneous matters, states a valid cause of action. SKF Farms v. Superior Court, Cal.App d 0, 0 (. Additionally, the defense of statute of limitations maybe asserted by general demurrer if the complaints shows, plainly on its face, that the statute bars the action. Bennett v. Hibernia Bank, Cal.d 0, 0 (. In order to raise the statute of limitations defense on demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred. McMahon v. Republic Van & Storage Co., Inc., Cal.d 1, (. Finally, a Court must presume that the Plaintiff has made their case as favorably as permitted by the facts plead. Vavoni v. Western Airlines, CAd (. If a fact necessary to the complainants cause of action is not set forth and alleged in the complaint, it must be taken as having no existence. Melikian v. Truck Ins. Exchange, CAd 1, 1 (. Plant v. Deffen Page Case No: --0000-CL-CL-EC
III PLAINTIFFS FIRST CAUSE OF ACTION FOR MALICIOUS PROSECUTION FAILS TO STATE FACTS SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION AND IS UNCERTAIN AND AMBIGUOUS Plaintiff has filed a complaint against Defendant David Deffen alleging that Defendant has maliciously prosecuted a civil action naming the Plaintiffs as parties. In order to establish a cause of action for malicious prosecution of a civil proceeding, a Plaintiff must establish that (1 the prior action was commenced by or at the direction of the defendant, ( was pursued to a legal termination in the Plaintiff s favor, ( was brought without probable cause, and ( was initiated with malice. Crowley v. Katleman, Cal. th, (. The tort of malicious prosecution requires a showing of an unsuccessful prosecution of a civil action, which any reasonable attorney would regard as totally and completely without merit, for the intentional and wrongful purpose of injuring another person. Downey Venture v. LMI Ins. Co., Cal.App. th, (. A. Complainant Fails to Plead Facts Necessary to Show the Prior Action was Without Probable Cause A requirement for any pleading is that it plead facts sufficient to show that the necessary elements of the underlying action have been met. Here, Plaintiffs have pled that the defendant commenced an action against them after quitting a residential lease over concerns about habitiability. (Complaint. They further plead that, after a jury trial that culminated August,, a verdict was rendered in favor of the Plants. (Complaint. If a trial court determines that the prior action was objectively reasonable, plaintiffs fail to meet the threshold requirement of demonstrating a lack of probable cause. Bixler v. Goulding, Cal.App. th 1, 1 (. The prior trial court allowed the matter to proceed to trial, allowing Mr. Deffen to pursue damages for his relocation expenses relating to the underlying breach of the lease agreement for failure to provide a habitable premises. Deffen s prior action survived the pleading stage, potentially survived summary judgment, and was finally placed in the hands of a jury to resolve. It should be patently obvious that Deffen, and the prior trial court, saw some probable cause for the action to lie. B. Complainant Fails to Plead Facts Necessary to Show Malice Plant v. Deffen Page Case No: --0000-CL-CL-EC
Plaintiff has failed to plead any facts necessary to show that Deffen commenced the prior action with malice. Malice means actual ill will, or some improper purpose, whether express or implied, ranging anywhere from open hostility to indifference. Grindle v. Lorbeer, Cal.App. d 1, (. The Plants have boldly concluded that the prior lawsuit was wrongful and malicious solely because they won. This, fortunately, is not the legal standard. IV PLAINTIFFS SECOND ALLEGED CAUSE OF ACTION FOR NEGLIGENCE FAILS TO STATE FACTS SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION, IS UNCERTAIN AND AMBIGUOUS, AND IS BARRED BY THE STATUTE OF LIMITATIONS Plaintiffs next allege a cause of action against Defendant for negligence. A negligence action requires that there be a (1 legal duty to use due care, ( a breach of that duty, ( a reasonably close causal relationship between the breach and any resulting injury, and ( actual loss or damage to the plaintiff. Ahern v. Dillenback, 1 Cal.App.th (1. A. Plaintiffs Fail to Allege Any Facts Showing Defendant Breached a Duty Plaintiffs allege that Defendant had a duty to act as a reasonable tenant during his tenancy. Compl.. They further allege that he breached the duty simply by suing the Plaintiffs. Compl.. The Plaintiff supports this assertion with hyperbole and bare legal conclusions of malicious actions on the part of Defendant, but plead no facts. A legal duty of care requires the use of ordinary care to prevent injury to others and is determined on a case-by-case basis. Weirum v. RKO Gen., Inc., Cal.d 0 (. That duty is breached when a person could have reasonably foreseen that an act or omission could result in harm to another from the time of that act or omission. Alva v. Cook, Cal.App. d (. Yet, in no instance is a party required to simply grin-and-bear a harm to themselves because taking legal action might harm a tortfeasor, in the economic sense. Plaintiff s ask that we accept the bare legal conclusion that Defendant breached a duty simply because he chose to exercise his legal rights, and make use of the legal mechanisms available to him, to force the Plaintiffs to correct their own breach. Plant v. Deffen Page Case No: --0000-CL-CL-EC
B. Plaintiffs Fail to Allege Any Facts Showing Damages Plaintiffs allege that they have incurred damages in the form of fees required to mount a legal defense. A mere breach of a duty, causing only nominal or speculated harm, or the threat of potential future harm, does not suffice to create a cause of action in negligence. Budd v. Nixen, Cal. d, 0 (1. In addition, the general rule in American jurisprudence is that in the absence of a special controlling statute, each party bears their own costs and attorneys fees. Davis v. KGO-TV, Cal th, (. Plaintiffs have not plead any facts to indicate that they were damaged beyond the fees and costs associated with defending Deffen s prior litigation, and have not plead facts necessary to show that such fees are statutorily permissible. C. Plaintiffs Claim for Negligence is Time-Barred On the Face of the Pleadings California Code of Civil Procedure.1 provides that the statute of limitations for personal injury tort claims is two years. Negligence is such a claim. Causes of action accrue and the statute of limitations begins to run upon any appreciable harm. If, in the alternative to the theory asserted herein IV-B, the costs and fees accrued by Plaintiff are enough to satisfy the damages element of a negligence claim, then they would have been harmed on or shortly after the commencement of the underlying suit in May, 0. Plaintiff did not file a cross-complaint to the prior suit to preserve their rights, but rather waited until the filing of this claim, which was lodged with the clerk of the court June 1,. The period of May 0 to June is substantially greater than the two years provided by statute. V PLAINTIFFS THIRD ALLEGED CAUSE OF ACTION FOR FRAUD FAILS TO STATE FACTS SUFFICIENT TO CONSTITUTE A CAUSE OF ACTION, IS UNCERTAIN AND AMBIGUOUS, AND IS BARRED BY THE STATUTE OF LIMITATIONS The tort of fraud occurs when a party willfully deceives another with the intent to induce him to alter his position to his injury or risk. Civil Code 0. In order to adequately plead a cause of action for fraud, the Plaintiffs must show that Defendant made a (1 misrepresentation of ( material fact, with the ( knowledge of its falsity, ( intent to induce reliance, such reliance being ( justifiable reliance that ( causes damages to the victim. Plant v. Deffen Page Case No: --0000-CL-CL-EC
A. Plaintiffs Fail to Appropriately Plead Any Single Element of a Fraud Claim Plaintiffs allege that the breach of the rental agreement is oppressive and malicious, that the fraud was perpetuated by a malicious prosecution, and other matters of opinion and conjecture that appear to have struck the Plaintiffs fancy as they were drafting this complaint. Compl. 1-. However, nowhere in the specious and conclusory language of the complaint have the elements of fraud begun to coalesce. There is no discernible representation by the Defendant, without which no other elements may lie. There is no pleading to speak to reliance, intent, or the knowledge of falsity. B. Even If Plaintiffs Had Adequately Plead Fraud, The Claim is Time Barred In California, the statute of limitations for deceit is three years. Code of Civil Procedure (d. Plaintiff must plead and prove facts showing a lack of knowledge regarding the fraud, lack of means of obtaining knowledge, or why facts could not be obtained by reasonable diligence at an earlier date, or how and when Plaintiff discovered the fraud in order for the cause of action to accrue. Lee v. Escrow Consultants, Inc., 0 Cal.App. d, (. Plaintiff also has a duty to exercise diligence so as to discover the facts that would give rise to delayed discovery. Ibid. Here, Plaintiffs have done none of the above. The transaction at issue occurred over the course of a month in April-May, 0. A lawsuit resulted, in which Plaintiff prevailed. Any representations to Plaintiff, by Defendant, which could have resulted in the tort of deceit would have necessarily been made six years prior, more than double the statute of limitations. Even assuming an exceptionally methodical and slow plaintiff, one would expect that due diligence would be completed in less than - months, particularly if the matter were as oppressive, cruel and unjust to the Plaintiffs. VI CONCLUSION The complaint filed by the Plaintiff Plant s is severely deficient in several key facets, lacking even the most scant facts to adequately meet the most basic elements. The sum total of the facts missing from the pleading are such that Defendant Deffen cannot adequately ascertain the allegations against him, whether defenses that Defendant has outlined are responsive to Plaintiffs allegation, what damages Plaintiffs seek, or whether Plaintiffs can in good-faith be seeking $1,000,000 in punitive damages based on a breach of residential lease action. Complainants must either more extensively, and Plant v. Deffen Page Case No: --0000-CL-CL-EC
clearly, plead the causes of action alleged in the complaint, or this demurrer must be sustained without leave to amend. Respectfully submitted, TAYLOR AND ASSOCIATES July, Joshua Taylor Attorney for Defendant David Deffen Plant v. Deffen Page Case No: --0000-CL-CL-EC