Demurrer to Cross-Complaint; Motion to Strike Portions of Cross-Complaint; Case Management Conference
9. Dwivedi vs. Agatep
25-01529728
1. Demurrer to Cross-Complaint 2. Motion to Strike Portions of Cross-Complaint 3. Case Management Conference
Plaintiff/Cross-Defendant Tathagat Dwivedi’s Demurrer to Defendant/Cross-Complainant James Agatep’s Cross-Complaint is SUSTAINED.
The Court notes that the demurrer and motion to strike are not in compliance with Rule 2.108, which requires each line to be one and half spaced or double spaced and number consecutively. Plaintiff is urged to familiarize himself with the Rules of Court as well as the Code of Civil Procedure. “Mere self-representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984- 985.)
First Cause of Action – Breach of Contract
Defendant’s breach of contract claim is based on the allegation that Plaintiff breached the agreement by “refusing to permit demolition and insisting on a topper.” However, the Defendant admits the City would not permit the construction of a wall with a topper. Therefore, the contract was legally impossible to carry out.
Second Cause of Action – Defamation
Civil Code § 47(b) provides an absolute privilege for publications made in any "official proceeding authorized by law." This privilege bars defamation claims based on reports to police or code enforcement, even if made with malice. (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350.) Defendant’s claims based on reports to the City and Police are barred as a matter of law.
Third Cause of Action – IIED
To state a cause of action for intentional infliction of emotional distress the conduct alleged must be “outrageous.” Defendant alleges he suffered distress due to Plaintiff documenting the demolition. Exercising a legal right to document the destruction of the shard wall is not outrageous conduct.
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Fourth Cause of Action – Harassment
The cause of action appears in the caption but is missing from the body of the Cross-Complaint.
Fifth Cause of Action – Nuisance
A nuisance is a substantial and unreasonable interference with the use and enjoyment of land. (Civ. Code § 3479.) It requires an interference with the property itself (e.g., noise, odor, vibration). Defendant alleges "anxiety," "uneasiness," and an "uncomfortable environment" regarding his social standing with neighbors (XComplaint, ¶¶ 59–60). Social awkwardness or reputational harm is not a nuisance under the law.
Sixth Cause of Action – Declaratory Relief
Defendant’s sixth cause of action for declaratory relief is duplicative of the relief sought in Plaintiff’s Complaint, i.e., adjudication of the wall’s legality. Thus, Defendant’s cause of action is unnecessary.
Defendant’s failure to oppose the demurrer may be treated as an implied concession to the merits of the same. (Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20.) Additionally, the court may construe the absence of a memorandum as waiver of all grounds not supported. (CRC 3.1113(a).)
Based upon these grounds, the Court SUSTAINS the unopposed demurrer. Although the demurrer is unopposed, the Court finds that Plaintiff should be given an opportunity to cure the defects in the operative complaint that were raised by Plaintiff in the demurrer.
MOTION TO STRIKE
Plaintiff/Cross-Defendant Tathagat Dwivedi’s Motion to Strike certain portions of Defendant/Cross-Complainant James Agatep’s Cross- Complaint is GRANTED.
Plaintiff seeks to strike the following allegations from the Cross- Complaint related to punitive damages:
1. Paragraph 52 (Page 17): The phrase "...and punitive damages for the breach of contract."
2. Paragraph 64 (Page 20, Prayer for Relief): The phrase "For punitive damages for breach of contract in the amount of $26,250.00."
3. Paragraph 67 (Page 20, Prayer for Relief): The phrase "For punitive damages in an amount to be determined at trial."
Code of Civil Procedure section 436 provides, “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading, (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”
“No claim for exemplary damages shall state an amount or amounts.” (Code Civ. Proc. § 3295(e).)
Moreover, Defendant has failed to allege facts or state a claim that supports an award of punitive damages.
The motion is unopposed. The court may construe the absence of a memorandum as waiver of all grounds not supported. (CRC 3.1113(a).)
Accordingly, the motion is GRANTED
Thus, Defendant has 30 days leave to file First Amended Cross- Complaint.
The Case Management Conference is CONTINUED to January 21, 2027, at 9:30 a.m. in Department C12.
Clerk to give notice of this ruling.
10. Kossoff vs. Hepner
23-01308009
Motion for Summary Judgment and/or Adjudication
Defendant David D. Dearing, M.D.’s (Doe 1) Motion for Summary Judgment is GRANTED.
Dr. Dearing has met his initial burden to show the plaintiffs’ sole cause of action for wrongful death based on medical negligence has no merit. (See Code Civ. Proc., § 437c, subds. (a), (p)(2) [burden]; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 [burden]; Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263 [elements of a claim for wrongful death include, inter alia, the underlying tort]; Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305 [elements of medical negligence, standard of care]; Chakalis