Demurrer and Motion to Strike (Judge William D. Stewart)


Case Number: EC065346??? Hearing Date: October 14, 2016??? Dept: A

California Energy Investment Fund 1 v Hu & Associates

DEMURRER COMBINED WITH MOTION TO STRIKE UNDER CCP SECTION 425.16

Calendar: 10
Case No: EC065346
Date: 10/14/16

MP: Defendants, John Hu and Hu & Associates LLC
RP: Plaintiff, California Energy Investment Fund 1, LP, Western Regional Center, Inc., and WRC Investment Fund 1, LLC

ALLEGATIONS IN COMPLAINT:
The Plaintiffs were involved in marketing a project in China and other foreign countries to raise money and fund the project pursuant to the EB-5 Immigrant Investor Pilot Program. This program grants permanent resident status in the United States to those who make qualifying investments. The Defendants made false and defamatory statements to injure the Plaintiff about their project by claiming that the approvals for the project were fakes and forgeries, that the project contained elements of deception, and that the Plaintiffs were guilty of forging and disseminated forged government documents. The Plaintiffs bring this action to seek damages for the defamation.

CAUSES OF ACTION IN COMPLAINT:
1) Libel Per Se – article
2) Libel – article
3) Libel Per Se – email
4) Libel – email
5) Libel Per Se – open letter
6) Libel – open letter
7) Defamation
8) Intentional Interference with Prospective Economic Advantage
9) Intentional Interference with Contractual Relationship

RELIEF REQUESTED:
Demurrer to Complaint
Strike portions under CCP section 425.16

DISCUSSION:
This hearing concerns a single motion filed by the Defendants that includes a demurrer to each cause of action combined with a request to strike portions of the pleadings under CCP section 425.16. The Defendants identify no authority that allows them to seek two types of relief, which are based on different grounds, in a single motion.
First, a review of the authority for demurrers in CCP section 430.10 to 430.90 and the authority for the special motion to strike in CCP section 425.16 reveals no language that authorizes a party to combine a demurrer and a motion to strike under CCP section 425.16 into a single motion. Further, CRC rule 3.1322 authorizes a party to file a motion to strike concurrently with a demurrer; however, it does not authorize the parties to combine the two different types of relief into a single motion.
Second, the two types of relief sought in the Defendants? motion require substantially different, and even contradictory, types of analysis and grounds for support. A demurrer is a pleading used to test the legal sufficiency of other pleadings. CCP section 422.10. It raises issues of law, not fact, regarding the form or content of the opposing party?s pleading and tests the legal sufficiency of the pleading. Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994. In ruling on the demurrer, the Court does not consider declarations or other evidence unless the evidence is a matter of which the Court may take judicial notice. Id. CCP section 430.41 has added a requirement that a demurrer be accompanied by a meet and confer declaration to show that the moving party attempted to confer about the issues in the demurrer before it was filed. Finally, when the Court sustains a demurrer, the Court generally grants leave to amend to correct the defects in the pleadings.
This differs markedly, substantially and inherently antithetically from the procedures for a statutory motion to strike under CCP section 425.16. Unlike a demurrer, the anti-SLAPP motion is a ?speaking? motion because CCP section 425.16 requires the Court to consider supporting and opposing affidavits that state the facts upon which liability or a defense is based. The party opposing the motion must produce sufficient admissible evidence to establish the probability of prevailing on the merits of the claims. Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal.App.4th 713, 721. The opposing party must make that showing by competent, admissible evidence. Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 11. There is no requirement to meet and confer before filing the motion. Finally, when the Court grants the anti-SLAPP motion, the opposing party does not have the right to file an amended pleading. Simmons v. Allstate (2001) 92 Cal.App.4th, 1068,1074.
There is no authority that allows a party to combine a pleading, such as a demurrer, with a motion to strike under CCP section 425.16. Further, there is no authority for seeking two types of relief, which involves substantially different types of analyses and grounds, into a single motion. The combination of these two, different types of relief causes prejudice because it conflates two types of analysis, one that does not consider facts extrinsic to the pleadings and one that must consider facts extrinsic to the pleadings, into a single motion that confuses the issues and complicates the opposition. Since the Defendants have sought these two types of relief in a single, combined motion, the motion is procedurally defective and must be denied.

Accordingly, the Court will deny the Defendants? motion because it is a procedurally defective self-abnegating mixture of pleading and motion.

RULING:
Deny all relief requested.