Judge: H. Jay Ford, III, Case: 24SMCV04878, Date: 2025-02-04 Tentative Ruling

Case Number: 24SMCV04878    Hearing Date: February 4, 2025    Dept: O

Case Name:               Maria Zegarra, et al. v. Sam Hakim, et al.

SUBJECT:                 DEMURRER TO COMPLAINT

MOVING PARTY:   Defendant Sam Hakim

RESP. PARTIES:     Plaintiffs Maria Zegarra, Grace Cabrales, and Elizabeth Cabrales (by and through her Guardian Ad Litem Angel Alberto Zegarra Peralta)

TENTATIVE RULING

            The Demurrer to the Complaint is OVERRULED.

            Defendant Sam Hakim is ordered to file his Answer to the Complaint within 20 days of this ruling.

            Plaintiffs Maria Zegarra, Grace Cabrales, and Elizabeth Cabrales (by and through her Guardian Ad Litem Angel Alberto Zegarra Peralta) are ordered to file and serve Code of Civil Procedure section 377.32 declarations. The declarations must contain certified copies of Decedent Juan Cabrales Reyes’s death certificate as required by subdivision (c) of the statute.

I.                Legal Standard

            “A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” (Ibid.) 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.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.) “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.)

            Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the court that a pleading can be amended successfully. (Ibid.)

II.             Meet and Confer

            “Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone 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.” (Code Civ. Proc., § 430.41, subd. (a).)

            Here, Plaintiffs Maria Zegarra, Grace Cabrales, and Elizabeth Cabrales (collectively, “Plaintiffs”) argue in their opposition that Defendant Sam Hakim (“Hakim”) did not meet and confer before filing his demurrer. (Opposition, p. 5:3-4.)

            However, that argument is not supported by any declaration. On the other hand, Hakim’s counsel testifies that on July 24 and August 13, 2024, he sent meet and confer letters to opposing counsel and left voicemails. (Demurrer, Declaration of Kevin M. Badkoubehi, ¶¶ 4-5.) Plaintiffs have not argued that they never received those letters or voicemails. Plaintiffs’ counsel has also failed to file a declaration denying those facts.

            Therefore, the Court finds the meet and confer requirement satisfied and shall rule on the demurrer on its merits.

III.           Discussion

            Plaintiffs filed this action against Hakim, S2 Squared Properties, LLC, Nettle 1031, and Does 1 to 50, inclusive, asserting the following causes of action: (1) negligence – Labor Code section 3700 et seq.; (2) wrongful death and survival action; (3) premises liability; and (4) general negligence.

Defendant Hakim now demurs all claims making several arguments.

A.    Statute of Limitations

            First, Hakim argues that the second cause of action for wrongful death and survival action is barred by a two-year statute of limitations because Plaintiffs allege Decedent died on February 7, 2021, yet they filed the Complaint more than two years later on February 17, 2023.

            Code of Civil Procedure “Section 335.1 states: ‘Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another [shall be brought].’” (Krupnick v. Duke Energy Morro Bay (2004) 115 Cal.App.4th 1026, 1028, fn. 2.) “As a usual matter, the date of accrual of a cause of action for wrongful death is the date of death.” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1277, fn. 26.)

            As Hakim points out, the Complaint alleges that Juan Cabrales Reyes (“Decedent”) passed away on February 7, 2021.

            However, the Court has determined that Plaintiffs filed the Complaint on February 3, 2023, within the two-year statute of limitations. (See Minute Order dated March 8, 2023, p. 1 [“The Ex Parte Application for an Order Filing the Complaint for Damages Nun Pro Tunc filed by Elizabeth Cabrales by and through Guardian Ad Litem, Maria Zegarra, Grace Cabrales, Angel Alberto Zegarra Peralta on 03/07/2023 is Granted. ¶ The Court deems the Complaint filed as of February 3, 2023”].)

            Therefore, Hakim’s demurrer based on the statute of limitations is overruled.

B.    Uncertainty

            Hakim also demurs the Complaint, arguing that it is uncertain, ambiguous, and unintelligible because there are no specific allegations tied to each of the named defendants.

A party may demurer a pleading on the ground that “[t]he pleading is uncertain,” a term whose meaning “includes ambiguous and unintelligible.”  (Code Civ. Proc., § 430.10, subd. (f).)

            However, “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)      

            Here, the Complaint is not so uncertain that Hakim cannot file a response. The Complaint alleges that each of the defendants, including Hakim, “negligently, carelessly, and recklessly owned, controlled, managed, inspected, repaired and maintained the ladder” that the Decedent fell from. (Compl., ¶ 2.) The Complaint also alleges that as a direct and proximate result of the defendants’ negligence, Decedent was injured and passed away. (Compl., ¶ 42.) Those facts are sufficient. To the extent Hakim is seeking more details regarding how he was negligent, he can resolve that uncertainty through discovery.

            Required Declaration Under Code of Civil Procedure Section 377.32

            Hakim also demurs the Complaint, essentially arguing that (1) Code of Civil Procedure section 377.32 (“Section 377.32”) required Plaintiffs to file a declaration or affidavit showing that they have standing to commence this action as Decedent’s personal representatives or successors in interest, but (2) Plaintiffs failed to do so.

            Plaintiffs argue in their opposition that they filed the required declarations.

            “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, subject to Chapter 1 (commencing with Section 7000) of Part 1 of Division 7 of the Probate Code, and an action may be commenced by the decedent’s personal representative or, if none, by the decedent’s successor in interest.” (Code Civ. Proc. § 377.30.) 

            Section 377.32, subdivision (a) states: "The person who seeks to commence an action … as the decedent’s successor in interest under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following:

(1)   The decedent’s name.

(2)   The date and place of decedent’s death.

(3)   ‘No proceeding is now pending in California for administration of the decedent’s estate.’

(4)   If the decedent's estate was administered, a copy of the final order showing the distribution of the decedent’s cause of action to the successor in interest.

(5)   Either of the following, as appropriate, with facts in support thereof:

(A)  ‘The affiant or declarant is the decedent’s successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) and succeeds to the decedent’s interest in the action or proceeding.’

(B)  'The affiant or declarant is authorized to act on behalf of the decedent’s successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) with respect to the decedent’s interest in the action or proceeding.’

(6)   ‘No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding.’

(7)   ‘The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct.’”

A certified copy of the decedent’s death certificate must be attached to the declaration. (Code Civ. Proc. §§ 377.32, subd, (c).)

Here, although on January 10, 2025, Plaintiffs Maria Zegarra and Grace Cabrales filed declarations satisfying most of the requirements above, they did not attach copies of the Decedent’s death certificate.

The Court also notes that Plaintiff Elizabeth Cabrales (by and through her Guardian Ad Litem Angel Alberto Zegarra Peralta) did not file any declaration. To the extent Elizabeth Cabrales is seeking to assert any claim as Decedent’s successor in interest, she must file a declaration under Section 377.32.

Since Hakim has not cited any law holding that a Section 377.32 declaration must be part of the complaint. Hakim’s demurrer on the ground that Plaintiffs failed to file Section 377.32 declarations is overruled. However, the Court shall order the Plaintiffs to file new declarations with copies of the death certificate.

C.    Alter Ego Allegations

Lastly, Hakim demurs the Complaint, arguing that the alter-ego allegations are insufficient.

“‘Alter ego is a limited doctrine, invoked only where recognition of the corporate form would work an injustice to a third person.’ [Citation.] ‘The essence of the alter ego doctrine is that justice be done.... Thus the corporate form will be disregarded only in narrowly defined circumstances and only when the ends of justice so require.’ [Citation.]” (Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 810 (“Zoran”).)

“[I]t is generally stated that in order to prevail on an alter-ego theory, the plaintiff must show that ‘(1) there is such a unity of interest that the separate personalities of the corporations no longer exist; and (2) inequitable results will follow if the corporate separateness is respected.’ [Citation.]” (Zoran, supra, 185 Cal.App.4th at p. 811.)

For example, in one case, the California Court of Appeal found the following facts sufficient to allege alter-ego liability and overcome a demurrer: “[The defendant Shereen Caswell] dominated and controlled PDR [a corporate defendant]; that a unity of interest and ownership existed between Caswell and PDR; that PDR was a mere shell and conduit for Caswell’s affairs; that PDR was inadequately capitalized; that PDR failed to abide by the formalities of corporate existence; that Caswell used PDR assets as her own; and that recognizing the separate existence of PDR would promote injustice.” ((Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 235 [emphasis added].)

Here, the Complaint alleges the following. “Plaintiffs are informed and believe and based thereon allege that at all times herein mentioned, each Defendant was the agent, servant, representative, alter ego and/or employee of each other Defendant and was acting within the course and scope of their authority as such agent and/or employee, and with the permission, consent and ratification of each other Defendant.” (Compl., ¶ 10.)

The use of the phrase “and/or” above makes the Complaint uncertain regarding whether Plaintiffs are alleging Hakim was or was not an alter-ego of any of the other defendants.

However, as stated above, a demurrer on the ground of uncertainty is strictly construed because ambiguities can be clarified through discovery. Here, the uncertainty regarding whether Plaintiffs are alleging Hakim is liable under an alter-ego theory and what facts they are relying on to make that allegation can be determined through discovery.