Judge: Anne Hwang, Case: 21STCV27266, Date: 2024-03-19 Tentative Ruling

Case Number: 21STCV27266    Hearing Date: March 19, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

On July 23, 2021, Plaintiff Sergio Antonio Aceves Cisneros (“Plaintiff”) filed a complaint against Defendants Mark Mcintosh and Does 1 to 50 for negligence surrounding a motor vehicle accident.

            On October 27, 2023, Plaintiff filed an amendment to the complaint substituting Arnulfo Solis Bermejo as Doe 2.

Defendant Arnulfo Solis Bermejo (“Defendant”) now demurs to the complaint for failing to state facts to constitute a cause of action and for uncertainty. Plaintiff opposes and Defendant replies.

LEGAL STANDARD

A demurrer is a pleading used to test the legal sufficiency of other pleadings.  It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint).  (Code Civ. Proc. §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true.  (Donabedian, 116 Cal.App.4th at 994.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) 

On demurrer, a trial court has an independent duty to “determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory.” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)

A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her. (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.)

            Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).  

MEET AND CONFER

Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

According to the Declaration of Defendant, it does not appear that Defendant attempted to meet and confer with Plaintiff’s counsel prior to filing this demurrer. (See Bermejo Decl.) Nevertheless, “[a] determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc. § 430.41 (a)(4).)

ANALYSIS

The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.)

Here, the complaint alleges that on August 30, 2019, at Long Beach Boulevard near Hill Street, Long Beach, California, “the defendant and each of them named in the complaint, the defendant and each of them named did not exercise ordinary care, caution or prudence to avoid or prevent said accident and injuries sustained by plaintiffs were actually and proximately caused by said fault, carelessness and negligence of defendants and each of them named in the complaint.” (Complaint, 5.) The Complaint also alleges that Doe Defendants 1–6 were the agents or employees of other named defendants and acted within the scope of that agency or employment. (Id. ¶ 6a.)

Defendant sets forth extrinsic evidence to support that he is not liable for the allegations in the complaint. However, at the demurrer stage, the Court must assume the truth of the complaint, and only look at the face of the complaint and any matters judicially noticed. Therefore, looking at the face of the complaint, the Court cannot conclude as a matter of law that Defendant is not liable. Additionally, the complaint appears to set forth sufficient allegations of the elements for negligence and is not so uncertain that Defendant cannot reasonably respond.

CONCLUSION AND ORDER

Therefore, the Court OVERRULES Defendant’s demurrer to Plaintiff’s complaint. Defendant shall file and serve a responsive pleading within 30 days.

The Court sets a Final Status Conference for July 15, 2024 at 10:00 a.m. in Department 32 of the Spring Street Courthouse.

Trial is set for July 29, 2024 at 8:30 a.m. in Department 32 of the Spring Street Courthouse.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.