Judge: Carolyn M. Caietti, Case: 37-2023-00017703-CU-PA-CTL, Date: 2024-05-31 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 30, 2024

05/31/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  PI/PD/WD - Auto Motion Hearing (Civil) 37-2023-00017703-CU-PA-CTL ASHE VS THOMAS [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant Ashley Page's Demurrer to Plaintiff's Complaint is SUSTAINED WITH LEAVE TO AMEND.

Defendant Ashley Page's Motion to Strike Punitive Damages and Portions of Plaintiff's Complaint is OFF CALENDAR as moot in light of the ruling on the Demurrer.

Demurrer 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 v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) Ono April 27, 2023, Plaintiff filed this Complaint and, on November 29, 2023, amended it to name Defendant Ashley Page as Doe 1. (ROA 14.) This demurrer is to the third and fourth causes of action for battery and intentional infliction of emotional distress (erroneously referred to as the second and third causes of action in the demurrer). These causes of action specifically allege Defendant Lilyann Frazer used her vehicle to strike Plaintiff's vehicle. There are no facts alleged supporting any conduct by Defendant Ashley Page or other doe-defendants. Thus, the Complaint does not state sufficient facts to constitute these causes of action against Defendant Ashley Page and, as written without the reference to the doe defendants, it is also uncertain. (C.C.P., § 430.10(e), (f).) Leave to amend is liberally allowed as a matter of fairness and Plaintiff has shown how the Complaint is capable of amendment. (See, City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.) Thus, the demurrer is SUSTAINED WITH LEAVE TO AMEND.

Motion to Strike In light of the ruling on the demurrer to allow leave to amend, the motion to strike is moot and will be taken OFF CALENDAR.

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3067478  28 CASE NUMBER: CASE TITLE:  ASHE VS THOMAS [IMAGED]  37-2023-00017703-CU-PA-CTL Concluding Orders Plaintiff Averi Ashe is ordered to file and serve an amended complaint by June 14, 2024.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final ruling.

Defendant Page is ordered to serve written notice of the Court's final ruling on all appearing parties by June 4, 2024.

The parties are reminded to comply with Department 70's Policies and Procedures and to provide courtesy copies of all motion paperwork.

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3067478  28