Judge: Curtis A. Kin, Case: 20STCV12977, Date: 2023-03-14 Tentative Ruling

Case Number: 20STCV12977    Hearing Date: March 14, 2023    Dept: 72

DEMURRER

Date:       3/14/23 (9:30 AM)                 

Case:      Marlon Mora v. Haul Away Rubbish Service, Co. et al. (20STCV12977)

TENTATIVE RULING:

The UNOPPOSED Demurrer to the Complaint by defendants Morris M. Beliakoff and John Beliakoff is SUSTAINED.

Defendants’ requests to take judicial notice are DENIED as “unnecessary to the resolution” of the issues before the Court. (Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1075.)

Demurring defendants Morris M. Beliakoff and John Beliakoff demur to the sole cause of action for negligence on the ground that the Complaint contains insufficient allegations to apprise them of the nature, source, and extent of the claim against them. (See Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 719 [“The Supreme Court has consistently stated the guideline that ‘a plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action.’ [Citations.]”]

“The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages.”  (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.) 

Demurring defendants were named in place of Does 1 and 2. (See 8/29/22 Amendments to Complaint.) The only allegations against the Doe defendants are the following:

·                     “The true names and capacities, whether individual, corporate, associate, governmental, or otherwise of DOE 1 through DOE 25, inclusive, are unknown to Plaintiff at this time, who therefore sues said Defendants by such fictitious names; and when the true names and capacities of said Defendants are ascertained, Plaintiff will amend this Complaint accordingly.” (Compl. ¶ 13.)

·                     “Plaintiff is informed and believes, and thereupon alleges, that each of the Defendants designated herein as a DOE was negligent and is responsible in some manner for the events and happenings herein referred to and their negligence proximately caused the injuries and damages sustained by Plaintiff as herein alleged, either through said Defendants' own negligent conduct or through the conduct of their agents, servants, or employees, or in some other manner.” (Compl. ¶ 14.)

·                     “At the time of this collision, and all relevant times prior thereto, Defendants BELIAKOFF, HAUL AWAY RUBBISH SERVICE, JUAN JUAREZ, UN BUG ME PEST CONTROL INC, GARCIA, and DOES 1 through 25, inclusive, and each of them, so negligently owned, entrusted, managed, maintained, operated and controlled their motor vehicle as to directly and legally cause the collision with Plaintiff thereby causing the hereinafter described injuries and damages to Plaintiff.” (Compl. ¶ 22.)

The allegations quoted above do not discuss how demurring defendants caused or played any role in the vehicular collision with plaintiff Marlon Mora. Plaintiff only alleges that the Doe defendants were negligent in “some manner.” (Compl. ¶ 14.) Allegations of legal conclusions are disregarded on demurrer. (Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331, 1336.) The allegations are insufficient to apprise demurring defendants of the nature, source, and extent of the negligence cause of action against them.

The demurrer is SUSTAINED.

With respect to leave to amend, defendants maintain that any claims against them are barred by res judicata. Defendants maintain that they are owners of defendant Haul-Away Rubbish Service, Co. and that any claim of vicarious liability is negated by the granting of summary judgment in favor of defendant David Beliakoff and Haul-Away. This issue is premature, as plaintiff has not sufficiently defined the claims against Morris M. Beliakoff and John Beliakoff such that the Court can determine whether such claims are identical to the claims litigated against Haul-Away and David Beliakoff.  (See Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797 [element of res judicata includes whether a “claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding”].) Accordingly, the Court allows leave to amend.

Ten (10) days leave to amend the sole cause of action for negligence as to defendants Morris M. Beliakoff and John Beliakoff.