Judge: Daniel M. Crowley, Case: 21STCV16083, Date: 2023-02-15 Tentative Ruling

Case Number: 21STCV16083    Hearing Date: February 15, 2023    Dept: 28

Defendant Sherri Finn’s Demurrer with Motion to Strike

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND

On April 28, 2021, Plaintiffs Aristides Perez (“Perez”), Jermy Villalta (“Jermy”) and Jonathan Villalta (“Jonathan”) filed this action against Defendant Sherri Finn (“Sherri”) for negligence. Plaintiffs later amended the complaint to include Defendant Jacob Michael Finn (“Jacob”).

On January 12, 2023, Sherri filed a Demurrer with Motion to Strike to be heard on February 15, 2023. Sherri filed an amended demurrer on January 17, 2023. On January 30, 2023, Plaintiffs filed an opposition. On February 7, 2023, Sherri filed a reply.

There is no currently scheduled trail date.

PARTY’S REQUESTS

Sherri requests the Court sustain the demurrer on the basis that judicial notice establishes there is no cause of action against Sherri. Sherri also requests the Court strike punitive damages.          Plaintiffs request the Court overruled the demurrer.

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.)

DISCUSSION

Judicial Notice

Sherri requests the Court take judicial notice of the vehicle registration and a traffic collision report as an official records.  There is no foundation for either.  Moreover, the traffic collision report is inadmissible.  (Vehicle Code § 20013; Box v. California Date Growers Assn. (1976) 57 Cal.App.3d 266, 271.)

Demurrer

Plaintiffs’ complaint alleges that Defendants owned, operated, and controlled the subject motor vehicle that caused injury to Plaintiffs. Defendant attempts to offer evidence to suggest the allegations of the complaint are incorrect, but that the purview of a motion for summary judgment, not a demurrer.  In ruling on a demurrer, the Court must accept the allegations of the complaint as true.  (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-1112.)  Here the complaint alleges that Sherri was the owner and operator of the vehicle.  While these allegations may not be true, they survive challenge by a demurrer.  The demurrer is overruled.

Motion to Strike

The Court grants the motion to strike the punitive damages claim in Plaintiff’s statement of damages.  There are no allegations in the complaint to support a prayer for punitive damages. 

CONCLUSION

Defendant Sherri Finn’s Demurrer with Motion to Strike is OVERRULED.  The Motion to Strike is GRANTED, without leave to amend.

            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.