Judge: David B. Gelfound, Case: 23CHCV02536, Date: 2024-03-06 Tentative Ruling

Case Number: 23CHCV02536    Hearing Date: March 6, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

DEMURRER

Motion filed: 2/5/24

MOVING PARTY: Defendant County of Los Angeles

RESPONDING PARTY: None

NOTICE: ok 

RELIEF REQUESTED: An order sustaining Defendant’s Demurrer to Plaintiff’s First Amended Complaint

TENTATIVE RULING: The Demurrer is SUSTAINED WITH LEAVE TO AMEND.

BACKGROUND

On August 22, 2023, Plaintiff Victor Sonora (“Plaintiff”) initiated this action against Defendant Carl Warren & Company LLC, seeking damages for personal injuries and property damages resulting from an accident in which Plaintiff’s vehicle encountered a road hazard.

On September 15, 2023, Plaintiff filed his operative First Amended Complaint (“FAC”), wherein Defendant County of Los Angeles (“Defendant”) was substituted in as the sole Defendant.

On February 5, 2024, Defendant filed the instant Demurrer to the FAC.

No opposition has been received.

ANALYSIS

Code of Civil Procedure section 430.10 provides, in pertinent part, that "[t]he party against whom a 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: … (e) [t]he pleading does not state facts sufficient to constitute a cause of action."

The function of a demurrer is to test the legal sufficiency of a complaint, but not the

truthfulness of the allegations. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968,

994.) Any defects to Plaintiff’s complaint must be present on the face of its pleadings or apparent on the face of items properly judicially noticed. (Code of Civil Procedure § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318 (Kirwan).) Concerning the legal sufficiency of a pleading, the sole issue on demurrer is whether the facts pleaded, if true, state a valid cause of action - i.e., if the complaint pleads facts that would entitle the plaintiff to relief. (Limandri v. Judkins (1997) 52 Cal.App.4th 326, 339.)

            A general demurrer admits the truth of all factual material allegations properly pleaded in

the challenged pleading, regardless of possible difficulties of proof. (Kirwan, supra, 39

Cal. 3d at 318.) Thus, no matter how unlikely or improbable, plaintiff's allegations must be

accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural

Materials Co. (1981) 123 Cal.App.3d 593, 604.) Nevertheless, this rule does not apply to

allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the

complaint, or by matters of which judicial notice may be taken. (Vance v. Villa Park Mobilehome

Estates (1995) 36 Cal.App.4th 698, 709.) A general demurrer does not admit contentions,

deductions, or conclusions of fact, or law alleged in the complaint, facts impossible in law, or

allegations contrary to facts of which a court may take judicial notice. (Kirwan, at 318.)

A.    All Procedural Requirements Are Met

1.      Meet and Confer

Code of Civil Procedure section 430.41 subdivision (a) provides, in relevant part, that “ Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.”

“The demurring party shall file and serve with the demurrer a declaration stating either of the following: (A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer. (B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Code Civ. Proc., § 430.41, subd. (a)(3).)

Here, Defendant’s counsel (“Counsel”) states that he engaged in a met and confer with Plaintiff both telephonically and via email on January 10, 2024. (Gordon Decl., ¶ 2.) During this exchange, Counsel explained to Plaintiff the reasons for Defendant’s belief that the FAC is legally defective. (Ibid.) Furthermore, Counsel requested a response to his email correspondence; however, Plaintiff did not respond, and the parties were unable to resolve the objections raised in the instant demurrer. (Id., ¶ 3.)

Based on this declaration, the Court finds that Defendant has satisfied the meet and confer requirement under Code of Civil Procedure section 430.41 subdivision (a).

2.      Timeliness of the Demurrer

“A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.” (Code Civ. Proc., § 430.40, subd. (a).)

Code of Civil Procedure section 430.41 subdivision (a)(2) provides, “If the parties are not able to meet and confer at least 5 days before the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.”

Here, Defendant asserts that it was personally served with the FAC on December 18, 2023 (Dem., at 2), which sets the deadline for any responsive pleading, including demur, as January 17, 2024, in accordance with Code of Civil Procedure section 430.40, subdivision (a). Subsequently, a meet and confer occurred on January 10, 2024 (Gordon Decl., ¶ 2), which is at least 5 days before the date the responsive pleading is due. Consequently, per Code of Civil Procedure section 430.41 subdivision (a)(2), Defendant is entitled to an automatic 30-day extension to file a responsive pleading, due to its code-compliant declaration that states a good faith attempt to meet and confer. (Gordon Decl., ¶¶ 2-3.) As a result, Defendant has an extended deadline to file its Demurrer is February 16, 2024.

The instant Demurrer was filed on February 5, 2023, which is before the extended, making the Demurrer timely filed.  

3.      Service of Unrepresented Party

Unless they expressly consent to service by email, unrepresented litigants must be served by personal or substitute service or by mail. (See Code Civ. Proc., §§ 1010.6, subd. (c), 1011, subd. (b).)

Here, Defendant’s proof of service indicates that the service was made on February 5, 2024, via mail through overnight delivery. Therefore, Defendant’s service is code-compliant.

            Accordingly, given that Defendant has met all procedural requirements, the Court proceeds to examine the merits of the instant Demurrer.

B.     Demurrer

Code of Civil Procedure section 425.10 subdivision (a) paragraph (1) provides, “A complaint or cross-compliant shall contain both of the following: (1) A statement of the facts constituting the cause of action, in ordinary and concise language.” (Underlines added.)

“A complaint will be upheld ‘so long as the pleading gives notice of the issues sufficient to enable preparation of a defense.’ [Citation]” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549-550.)

Defendant asserts that Plaintiff’s FAC fails to state sufficient facts to establish a sole cause of action for motor vehicle liability. (FAC, at 3.) Specifically, Defendant argues that the FAC lacks any facts regarding the underlying incident, including the date, location, and individuals involved. (Dem., at 3-4.)

            Upon reviewing Plaintiff’s FAC, the Court agrees that it lacks factual allegations or reasons for any specific statutory liability of a government entity, such as Defendant in the present case. Furthermore, the case records do not show any other pleading papers that Plaintiff might have served upon Defendant, since no proof of service has been filed by Plaintiff for the Court’s consideration.

            Accordingly, the Court SUSTAINS the Demurrer with leave to amend.

CONCLUSION

Defendant County of Los Angeles’s Demurrer is SUSTAINED WITH LEAVE TO AMEND.

Plaintiff is ordered to file a Second Amended Complaint within 30 days.

Moving party is ordered to provide notice of this order.