Judge: Daniel M. Crowley, Case: 22STCV29134, Date: 2022-12-20 Tentative Ruling

Case Number: 22STCV29134    Hearing Date: December 20, 2022    Dept: 28

Defendants Francisco Antonio Pavan’s Demurrer with Motion to Strike.

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

BACKGROUND

On September 7, 2022, Plaintiff Debbie Phipps (“Plaintiff”) filed this action against Defendant Francisco Antonio Pavan (“Defendant”) for wrongful death.

On October 28, 2022, Plaintiff filed the First Amended Complaint.

On November 23, 2022, Defendant filed a Demurrer with Motion to Strike to be heard on December 20, 2022.

Trial is scheduled for March 6, 2024. 

PARTY’S REQUESTS

Defendant requests the Court sustain the demurrer on the basis that Plaintiff failed to state sufficient facts to constitute a cause of action. Defendant also requests the Court strike references to speeding, malice, punitive damages, special damages and damage to personal property.

Plaintiff requests the Court overrule the demurrer and deny the motion to strike.

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.)

Under CCP §377.60, a cause of action for wrongful act may only be brought by the following persons: 

“(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. If the parents of the decedent would be entitled to bring an action under this subdivision, and the parents are deceased, then the legal guardians of the decedent, if any, may bring an action under this subdivision as if they were the decedent’s parents.

(b) (1) Whether or not qualified under subdivision (a), if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, parents, or the legal guardians of the decedent if the parents are deceased.

(2) As used in this subdivision, “putative spouse” means the surviving spouse of a void or voidable marriage who is found by the court to have believed in good faith that the marriage to the decedent was valid.

(c) A minor, whether or not qualified under subdivision (a) or (b), if, at the time of the decedent’s death, the minor resided for the previous 180 days in the decedent’s household and was dependent on the decedent for one-half or more of the minor’s support.”

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).”  (CCP § 435(b)(1).)  “A notice of motion to strike must be given within the time allowed to plead, and if a demurrer is interposed, concurrently therewith, and must be noticed for hearing and heard at the same time as the demurrer.”  (CRC 3.1322(b), italic added.)  “The defendant shall answer the amendments, or the complaint as amended, within 30 days after service thereof, or such other time as the court may direct, and judgment by default may be entered upon failure to answer, as in other cases.”  (CCP § 471.5(a).) 

“The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”  (CCP § 437(a).)  The court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.”  (Ivanoff, supra, 9 Cal.App.5th p. 725.)  The court “assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.”  (Id.)  “The court does not, however, assume the truth of contentions, deductions or conclusions of law.  [Citation.]”  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) 

Under CCP §377.34, “in an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable may include damages for pain, suffering, or disfigurement if the action or proceeding was granted a preference pursuant to Section 36 before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026.”

DISCUSSION

Plaintiff alleges that Defendant was negligently operating his vehicle when he struck Decedent, causing injury and death of Decedent. Plaintiff specifically notes that Defendant was driving at an excessive rate of speed in violation of the law.

Plaintiff claims that she is the successor in interest for Decedent. Plaintiff is Decedent’s sister; he was unmarried at the time of his death. Plaintiff does not state whether Decedent has living parents, both of whom would have superior claim to this action. Plaintiff’s complaint does not clearly state that Decedent’s parents are deceased, and thus it is not clear that Plaintiff has standing to bring forward this claim. The Court sustains the demurrer.

As the demurrer is sustained, the motion to strike is moot.

CONCLUSION

Defendants Francisco Antonio Pavan’s Demurrer is SUSTAINED, with 30 days 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.