Judge: Frank M. Tavelman, Case: 23BBCV02762, Date: 2025-05-09 Tentative Ruling

Case Number: 23BBCV02762    Hearing Date: May 9, 2025    Dept: A

DEMURRER & MOTION TO STRIKE

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is required and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Johnaton Green, Sr. (Johnaton Sr.), Johnaton Green. Jr. (Johnaton Jr.), Emmanuel Green (Emmanual), and Clarissa Heath (Clarissa) (collectively Plaintiffs) bring this action against LA Specialty Produce Co. (Produce Co.) and Jesus Chavez Gutierrez (Gutierrez) (collectively Defendants).

This action concerns a December 13, 2021 motor vehicle collision in which Gutierrez, an employee of Produce Co., negligently collided with a vehicle in which Christina Green (Decedent) was a passenger. On November 21, 2023, Decedent filed the Complaint in this matter. At the time the Complaint was filed, Decedent was still living. On February 8, 2024, Produce Co. and Gutierrez filed their Answers to the Complaint. Westrux International Inc. (Westrux) was also a named Defendant in this action but on March 6, 2024, Plaintiff voluntarily dismissed them.

On January 8, 2024, Decedent passed away.  Decedent’s counsel then spent the greater part of 2024 searching for Decedent’s successor in interest. Decedent’s counsel made contact with Johnaton Sr. in December of 2024 and confirm the other Plaintiffs as the surviving heirs of Decedent.

In the interim, Defendant’s counsel issued a medical record subpoena to Sherman Oaks Hospital seeking Decedent’s medical records. Defendant’s counsel contends that the purpose of this subpoena was to discover the circumstances surrounding Decedent’s passing. Decedent’s counsel thereafter moved to quash the subpoena. The motion to quash was the subject of an Informal Discovery Conference (IDC) request by the parties. The Court ultimately took the IDC off calendar when it was informed that no successor in interest had yet been appointed for Decedent. The Court further held that the subpoena was to be held in abeyance until such time as a successor was appointed and a proper IDC could commence.

On August 20, 2024, the matter came on for a status conference. At this time no successor in interest had yet been identified or appointed. Pursuant to oral stipulation between the parties, the Court continued the status conference to allow a successor to be appointed and for Decedent’s counsel to make any necessary amendments to the pleading.

On January 10, 2025, Decedent’s counsel filed the First Amended Complaint (FAC). Johnaton Sr., Johnaton Jr., Emmanuel, and Clarissa were then named Plaintiffs. The FAC states that each Plaintiff brings the action as an individual and as “surviving statutory beneficiary of the deceased.” The FAC states causes of action for (1) General Negligence, (2) Negligent Hiring, Supervision, Retention (as against Produce Co.), (3) Negligent Entrustment (as against Produce Co.), (4) Joint Enterprise, and (5) Survivorship. Despite previously having been dismissed, Westrux was again named as a Defendant. Plaintiffs have since dismissed their second, third, and fourth causes of action and Westrux was also dismissed.

Before the Court is a demurrer and motion to strike brought by Defendants. Defendants demur to the first and fifth cause of action on grounds that they (1) fail to allege sufficient facts, (2) are uncertain, and (3) are barred by the applicable statute of limitations. Defendants also move to strike Johnaton Jr., Emmanuel, and Clarisse as improper Plaintiffs, arguing they lack standing to pursue any of the claims stated. Defendants also move to strike Johnaton Sr. in his individual capacity, arguing that he may only properly proceed as the successor in interest to Decedent’s claims.

Plaintiffs oppose the motion, arguing that (1) Defendants did not properly meet and confer re: the demurrer to the first cause of action and (2) that the additional allegations in the FAC are more properly the subject of a motion to strike than a demurrer to the entire causes of action.

ANALYSIS: 

I.                    LEGAL STANDARD 

Demurrer

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Id.)

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the 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.) But this does not include contentions; deductions; 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.  (Blank, supra, 39 Cal. 3d at 318.)

Pursuant to C.C.P. §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

Motion to Strike

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer, such as words, phrases, and prayers for damages. (See C.C.P. §§ 435, 436, and 437.) The proper procedure to attack false allegations in a pleading is a motion to strike. (C.C.P. § 436(a).) In granting a motion to strike made under C.C.P. § 435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (C.C.P. § 436(a).) Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. (C.C.P. § 431.10.)

The court may also “[s]trike 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.” (C.C.P. § 436 (b).)

II.                 MERITS

Meet and Confer

C.C.P. §§ 430.41(a) and 435.5(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer and/or motion to strike. The Court notes that the parties dispute whether there were adequate meet and confer efforts made prior to the filing of this demurrer/motion to strike. The Court finds to engage with these arguments would only delay efficient adjudication of the underlying motions, as failure to meet and confer is not grounds to overrule or sustain a demurrer, or grant or deny a motion to strike, but would be a basis to continue the matter. (C.C.P. §§ 430.41(a)(4); C.C.P. 435.5(a)(4).)

Discussion

The Court begins its discussion by noting that Defendants have not briefed two of their three grounds for demurrer. Defendants present no argument as to the factual sufficiency of the pleadings or their uncertainty. Defendant’s argument in demurrer is entirely focused on whether Plaintiffs have timely stated their survivorship claims in light of the holding of Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256 (hereinafter Quiroz). Defendants argue that Plaintiffs seek relief which can only be sought via an action for wrongful death, as opposed to survivorship. Defendants further argue that Plaintiffs have improperly brought these claims outside of the two-year statute of limitations for a timely stated wrongful death cause of action.

Quiroz clarified that a wrongful death claim “arises on the death of the decedent and it is vested in the decedent's heirs.” (Id. at p. 1263.) It is statutory in nature and designed “to compensate specified persons—heirs—for the loss of companionship and for other losses suffered as a result of a decedent's death.” (Id.) “Damages awarded to an heir in a wrongful death action are in the nature of compensation for personal injury to the heir.” (Id. at 1264.)

A survivor cause of action, unlike a wrongful death action, “…is not a new cause of action that vests in the heirs on the death of the decedent. It is instead a separate and distinct cause of action which belonged to the decedent before death but, by statute, survives that event.” (Quiroz, supra, 140 Cal.App.4th at 1264.) Standing to bring a survivor claim is governed by C.C.P. § 377.30: “A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent's successor in interest ..., and an action may be commenced by the decedent's personal representative or, if none, by the decedent's successor in interest.” The recoverable damages are limited by statute to those sustained or incurred by the decedent prior to death. (C.C.P. § 377.34; Quiroz, at 1265.) In other words, survivor actions are based on injuries to the decedent. (Garofalo v. Princess Cruises, Inc. (2000) 85 Cal.App.4th 1060, 1072.)

In Quiroz, the initial complaint alleged wrongful death claims in connection with the passing of a dependent adult in a nursing home. (Quiroz, supra, 140 Cal.App.4th at 1266.) The first amended complaint added a survivorship claim, which purported to assert the rights of the decedent. (Id. at p. 1267.) The defendants moved for summary adjudication of the survivor cause of action, arguing it was time-barred and did not relate back to the original complaint. The appellate court agreed:

[W]e readily conclude, as did the court below, that the survivor cause of action pleaded a different injury than the initial complaint. We also conclude that the two claims in the amended pleading were asserted by different plaintiffs, [the decedent's mother] acting in two separate capacities with respect to each, and that the addition of fresh allegations concerning her representative capacity in pursuit of the new survivor claim was not just the mere technical substitution of the proper party plaintiff on a previously existing claim. This survivor claim, which plaintiff pursued as the decedent's successor in interest, pleaded injury to the decedent .... In contrast, the earlier-filed wrongful death claim pleaded only injury to plaintiff, acting for herself, as the decedent's heir.

(Id. at p. 1278.)

In making this demurrer, Defendants argue that Plaintiffs, much like the Plaintiff in Quiroz, are attempting to assert different injuries than those initially pleaded. Specifically, Defendants argue that Plaintiffs are impermissibly asserting injury to themselves, rather than injury to Decedent. Defendants identify the following offending portions of the FAC:

Defendants, and each of them, so negligently, recklessly and carelessly entrusted, owned, leased, managed, maintained, controlled, repaired, drove and/or operated their vehicle, 2017 International truck, so as to proximately cause the SUBJECT INCIDENT, thereby causing severe and permanent injuries to the Decedent and damages to Plaintiffs. (FAC ¶ 24.)

As a result of the foregoing, Plaintiffs and Decedent have incurred hospital, medical, professional and incidental expenses. (FAC ¶ 25.)

As a proximate and direct consequence of the Defendants' reckless conduct, statutory violations, and/or regulatory violations, the Decedent and Plaintiffs sustained the injuries and damages stated herein. (FAC ¶ 48.)

The Decedent and Plaintiffs incurred special damages, in the form of reasonable value of services rendered for medical care for the injuries that the Decedent incurred as the result of the Subject Incident. (FAC ¶ 49.)

Defendants appear to argue that the above allegations constitute a request for relief extrinsic of injuries incurred by Decedent. The Court agrees that Plaintiffs appear to be alleging injury to themselves which was not previously asserted in Decedent’s negligence action. At the same time, the facts here are almost opposite that of Quiroz. Here, there was no initial claim for wrongful death, nor could there have been given Decedent had yet to pass. Regardless, the Quiroz holding is clear that where the injuries alleged in the later filed claim are substantively different from those initially asserted, the relation-back doctrine does not apply. 

It appears to the Court from the above excerpts of the FAC that Plaintiffs seek to be compensated for some unidentified hospital/medical expenses that were incurred by themselves rather than Decedent. Quiroz makes clear that such damages are properly asserted in a claim for wrongful death, rather than survivorship. (Id. at 1264 [“Damages awarded to an heir in a wrongful death action are in the nature of compensation for personal injury to the heir.”].) As such, the Court finds that the Negligence claims asserted by Plaintiffs, in their individual capacities, are untimely. However, this does not necessarily warrant the granting of Defendants’ demurrer.

“The defense of statute of limitations may be asserted by general demurrer if the complaint shows on its face that the statute bars the action…In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred.” (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315-1316.) Here, the facts upon which Defendant’s statute of limitations argument are made are all present on the face of the FAC. However, a demurrer may not lie as to only part of a cause of action. (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 163.) Defendants have shown that the negligence claim by Plaintiffs, as individuals, seek relief which is time barred but they have not shown the same for the negligence claims as asserted by Plaintiff in their capacity as survivors of Decedent. As such, a demurrer seems to the Court to be the improper vehicle to address the impropriety of Plaintiffs’ claims. Such seems to be the purview of a motion to strike, which Defendants have indeed brought concurrently with this demurrer.

Accordingly, the Court finds the demurrer to the first and fifth causes of action should be OVERRULED. The Court will proceed with an analysis of the motion to strike.

Motion to Strike

Defendants seek to strike each Plaintiff from the Complaint in their individual capacity. As detailed above, the Court finds that Plaintiffs’ individual claims of relief as to negligence are indeed time barred and improperly stated. Were this to be the only dispute, the Court would be satisfied in ordering the Plaintiffs’ individual capacity stricken, alongside the allegations identified by Defendants as to Plaintiffs’ individual relief (portions of FAC ¶¶ 24, 25, 48, and 49). However, Defendants also seek to strike out Johnaton Jr., Emmanuel, and Clarisse in their capacity as survivors of decedent. Defendants argue that California law supports only one survivor to a decedent, in this case Johnaton Sr.

In making their argument, Defendants rely on an unpublished Eastern District of California ruling in the case of Estate of Elkins v. Pelayo E.D. Cal., May 21, 2020, 2020 WL 2571387 (Elkins). The Court reminds the parties that unpublished rulings are not citable pursuant to CRC Rule 8.1115(a). Even were the Court to consider Elkins, that case does not resolve whether there may be multiple successors in interest pursuing a claim under C.C.P. § 377.10. Elkins only opined that the statute does not require all successors in interest be joined in an action for a single successor to have standing.

In the Court’s view, this question is one not properly resolvable upon a motion to strike. Motions to strike, as with demurrers, must derive from the face of the pleadings and judicially noticed facts. Whether Plaintiffs may each state that they are the successor in interest to Decedent’s negligence action is a matter which inherently relies upon statutes which have not been judicially noticed (specifically C.C.P. § 377).

Even had notice of these statutes been made, the Court finds they would provide no clear resolution as there is conflicting language between C.C.P. §§ 377.10 and 377.30. Defendants argue that there cannot be multiple successors because C.C.P. § 377.10 describes the cause of action as passing to a decedents “successor” in the singular form. Plaintiffs counter that C.C.P. § 377.30 contains the phrase “…the sole person or all of the persons who succeed to a cause of action” indicating that multiple successors are permitted.

In truth, the Court perceives no functional difference between one or multiple successors. Each successor here is represented by the same counsel and is asserting the same claim previously owned by Decedent. There would appear to be no prejudice to Defendants in allowing the matter to proceed with multiple successors where they present a unified front.  Furthermore, C.C.P. §377.32, which sets forth the affidavit or declaration requirements for a successor, expressly contemplates situation where such affidavit or declaration is completed by more than one person.  C.C.P. §377.32(b) [Where more than one person executes the affidavit or declaration under this section, the statements required by subdivision (a) shall be modified as appropriate to reflect that fact.].  As such, he Decedent’s causes of action may be continued by more than one person.

Accordingly, the motion to strike is GRANTED in part and DENIED in part. The Court orders that Johnaton Green. Sr., Johnaton Green. Jr., Emmanuel Green, and Clarissa Heath be stricken from the FAC as parties in their individual capacity, as their claims to relief are barred by the applicable statute of limitations. The Court further orders the portions of paragraphs 24, 25, 48, and 49 which refer to Plaintiffs’ injuries/damages also be stricken.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

LA Specialty Produce Co. and Jesus Chavez Gutierrez’s Demurrer and Motion to Strike came on regularly for hearing on May 9, 2025, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE DEMURRER TO THE FIRST AND FIFTH CAUSES OF ACTION IS OVERRULED.  

THE MOTION TO STRIKE IS GRANTED IN PART AND DENIED IN PART.

JOHNATON GREEN. SR., JOHNATON GREEN. JR., EMMANUEL GREEN, AND CLARISSA HEATH ARE STRICKEN FROM THE FAC AS PARTIES IN THEIR INDIVIDUAL CAPACITY.

THE PORTIONS OF PARAGRAPHS 24, 25, 48, AND 49 IDENTIFIED IN THE ABOVE RULING ARE ALSO STRICKEN.

CASE MANAGEMENT CONFERENCE IS CONTINUED TO AUGUST 13, 2025 AT 9:00 AM.

DEFENDANT LA SPECIALTY PRODUCE CO. TO GIVE NOTICE.

IT IS SO ORDERED.