Judge Audra Mori, Case 20STCV37144 2022-12-06 Tentative Ruling

Plaintiffs Terri Lynn Scrape (“Scrape”), Linda Sue Badger (“Badger”), and Jay Esperance (“Esperance”) (collectively, “Plaintiffs”) filed this action against defendant Enterprise Holdings, Inc., EAN Holdings, LLC (“EAN”), and Xiao Mi (“Mi”) for damages arising from an automobile accident. The operative First Amended Complaint (“FAC”) alleges the Mi was operating a vehicle owned and entrusted to Mi by EAN and Enterprise when Mi caused a collision with Scrape’s and Badger’s vehicle. (Compl. at p. 3.) Additionally, the FAC alleges that Esperance is the brother of Scrape, who succumbed to her injuries from the accident, and that Esperance is the person entitled to bring an action for the death of Scrape. The FAC asserts causes of action for action for (1) negligence by Scrape and Badger against defendants, (2) motor vehicle by Scrape and Badger against the defendants, and (3) negligence by Esperance against the defendants. Plaintiffs have filed a request for dismissal dismissing EAN only.

Defendant Mi now demurs to the FAC arguing that the third cause of action for negligence by Esperance fails to state sufficient facts to constitute a claim against Mi.[1] Plaintiff Esperance opposes the demurrer, and Mi filed a reply.

Mi argues that third cause of action by Esperance lacks ultimate facts to establish standing on the part of Esperance to sue for wrongful death under CCP § 377.60. Mi contends that the FAC does not allege that Esperance is one of the persons that has standing to assert a cause of action for wrongful death. Mi argues that as a result, the third cause of action is uncertain such that Mi cannot determine the nature of the claim against him.

In opposition, Esperance argues that the FAC sufficiently pleads facts to establish standing to sue for wrongful death against Mi. Esperance argues he is lawful heir of Scrape, who died on October 20, 2020, and is entitled to bring this action under CCP § 377.60. In addition, Esperance asserts that Mi did not meet and confer before filing the demurrer, and Esperance asserts that any issues with the FAC can be easily corrected.

In reply, Mi avers that the FAC does not allege sufficient facts to establish that Esperance has standing to bring the third cause of action against him, and that the claim remains uncertain and ambiguous.

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). (CCP §§ 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.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP § 430.41(a).)

Mi has fulfilled this requirement prior to filing the demurrer. (Demurrer Bozoghlian Decl. ¶¶ 3-4.)

A cause of action for wrongful death is a statutory claim held by a decedent's heir. (CCP §§ 377.60-377.62.) Its purpose is to compensate specified persons for the loss of companionship and for other losses suffered as a result of a decedent's death. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263; see Jackson v. Fitzgibbons (2005) 127 Cal.App.4th 329, 335.) Persons with standing to bring a wrongful death claim are enumerated in CCP section 377.60, which provides:

A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent's personal representative on their behalf: (a) The decedent's surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession.

“Because it is a creature of statute, the cause of action for wrongful death ‘exists only so far and in favor of such person as the legislative power may declare.” (Stennett v. Miller (2019) 34 Cal.App.5th 284, 290, internal quotations omitted.) “Thus, ‘ “the right to bring such an action is limited to those persons identified” ’ in the wrongful death statute, section 377.60.” (Id.) Further, “a plaintiff's ‘standing to bring a wrongful death action must be determined in accordance with the laws of intestate succession.’ ” (Id. at 295.)

Accordingly, pursuant to CCP § 377.60, “a decedent's parents and siblings do not have standing to sue for wrongful death unless the decedent leaves behind no ‘children.’ ” (Id. at 298, emphasis in original; see also Medrano v. Kern County Sheriff’s Officer (E.D. Cal. 2013) 921 F.Supp.2d 1009, 1018 [“A sibling is not the ‘surviving spouse, domestic partner, children, [or] issue of deceased children.’ ”].) “For purposes of the California wrongful death statute, Plaintiffs would have to establish the absence of surviving issue and standing through the intestate succession statute. Under intestate succession, siblings may recover as heirs if there is no issue of the decedent, and no surviving parents of the decedent.” (Medrano, 921 F.Supp.2d at 1018, citing Cal. Prob. Code § 6402(c).) Moreover, a demurrer may be sustained when a person does not have standing to sue.¿ (County of Fresno v. Shelton (1998) 66 Cal.App.4th 996, 1009.)¿

Here, the third cause of action by Esperance alleges, “Plaintiff Jay Esperance (“Plaintiff Esperance”) is th [sic] brother of decedent, Terri Lynn Scrape who died on October 20, 2020. Plaintiff Esperance is the lawful heir of decedent Terri Scrape and pursuant to section 377.60 of the Code of Civil Procedure is th [sic] person entitled to bring an action for the death of the decedent.” (FAC at p. 5.) The term “heir” does not appear in section 377.60 of the Code of Civil Procedure. Esperance as Scrape’s brother does not have standing to sue Mi for wrongful death unless Esperance is Scrape’s heir under the laws of intestate succession. (Stennett, 34 Cal.App.5th at 295, 298.) It would not be sufficient, for example, if Esperance were lawfully an heir by bequest but Scrape also had surviving parents. While the FAC alleges in conclusory fashion that Esperance is the lawful heir of Scrape, there are no specific allegations concerning the existence of any spouse, issue, or surviving parents of Scrape. (Id. at 298, Medrano, 921 F.Supp.2d at 1018.) Therefore, the FAC fails to allege that Esperance has standing to assert the third cause of action for wrongful death against Mi. (Medrano, 921 F.Supp.2d at 1018 [holding with regard to the claims of the plaintiffs, who were the decedent’s brothers, “The Complaint alleges Plaintiffs are successors in interest to Decedent, but there are no specific allegations concerning the existence of any spouse, issue, or surviving parents of Decedent. Accordingly, the Court will grant the County’s motion to dismiss the Third Cause of Action.”])

Mi’s demurrer to the third cause of action for negligence by Esperance is sustained. Esperance requests leave to amend to clarify the allegations in the FAC. The Court finds there is a reasonable possibility the third cause of action of the FAC can be cured to state a claim against Mi.

Therefore, the demurrer to the FAC is sustained as to the third cause of action for negligence by Esperance against Mi with 20 days leave to amend.

Hon. Audra Mori

Judge of the Superior Court

[1] On November 3, 2022, Mi filed two demurrers directed at the third cause of action of the FAC. One demurrer was electronically filed at 4:39 p.m. and the other at 4:45 p.m. The Court will consider only the demurrer filed at 4:45 p.m.