Judge: Cherol J. Nellon, Case: 21STCV34163, Date: 2023-05-08 Tentative Ruling

Case Number: 21STCV34163    Hearing Date: May 8, 2023    Dept: 28

Defendant Numero Uno Acquisitions, LLC’s Demurrer with Motion to Strike

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On October 24, 2022, Plaintiff Viridiana Medina (“Plaintiff”) filed this action against Defendant Numero Uno Acquisitions, LLC (“Defendant”) for premises liability, negligence and negligent hiring, supervising and training.

On March 28, 2023, Defendant filed a Demurrer with Motion to Strike to be heard on May 8, 2023.

Trial is scheduled for April 22, 2024.

PARTY’S REQUESTS

Defendant requests the Court sustain Defendant’s demurrer to the third cause of action, or, in the alternative, strike the third cause of action.

LEGAL STANDARD

CCP § 430.10 states: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have the legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible; and (g) In an action founded

upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, 147 Cal.App.4th at 747.)

Any party, within the time allowed to response to a pleading, may serve and file a notice of motion to strike the whole or any part of that pleading. (CCP § 435(b).) 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 asserted 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." (CCP § 436.) The Court's authority to strike improper pleadings includes the power to strike those pleadings that are "not filed in conformity with its prior ruling." (Janis v. California State Lottery Com (1998) 68 Cal.App.4th 824, 829.)

DISCUSSION

Defendant argues that the third cause of action, for Negligent Hiring, Training, Retention, and Supervision, is based upon the same primary right theory of negligence, and thus is duplicative of the cause of action for negligence. The Court disagrees; while both negligence and negligent hiring rely upon the same basic elements of a negligent claim, negligent hiring has more specific elements required for Plaintiff to prove. The Court does not find the two duplicative, nor does it find that Plaintiff fails to state a cause of action.

Defendant relies upon Slater v. Blackwood (1975) 15 Cal.3d 791, 795, in asserting that a primary right gives rise to but a single cause of action; however, Slater does not address the issue of a plaintiff arguing multiple causes of action based on one violation of a primary right. Rather,

Slater addresses the fact that a plaintiff cannot file a new action after a previous action is dismissed, merely by changing the relevant cause of action when the plaintiff is still asserting the same basic primary right. Slater addresses the issue of res judicata, not allegedly cumulative causes of action. Wulfen v. Dolton (1944) 24 11 Cal.2d 891, similarly discusses only when an additional complaint was filed after the adjudication of a previous action—it addresses not splitting causes of action between entirely different cases. Neither of the cited cases are relevant to this demurrer.

Based on the above, the Court overrules the demurrer. As the motion to strike requests the Court strike the third cause of action on the same basis, the Court denies the motion to strike.

CONCLUSION

Defendant Numero Uno Acquisitions, LLC’s Demurrer is OVERRULED.

Defendant Numero Uno Acquisitions, LLC’ Motion to Strike is DENIED.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.