Judge: Jill Feeney, Case: 22STCV00500, Date: 2022-08-02 Tentative Ruling

Case Number: 22STCV00500    Hearing Date: August 2, 2022    Dept: 30

Department 30, Spring Street Courthouse
August 2, 2022
Demurrer to Plaintiff’s Complaint (by Defendants Ford Motor Company, LTD and Will Tiesiera Ford Inc.) with Motion to Strike


The motion to strike is denied.

The demurrer is overruled.

Answers must be filed and served  within 30 days after the date of this order.

Moving party is ordered to provide notice. 


The actions at issue here arise from a multi-vehicle accident that took place on January 9, 2020. The events of the accident are alleged as follows. Defendant Faaborg, while driving intoxicated, collided with Decedent Jeremy Olivas’s vehicle. Decedent’s vehicle was then pushed forward into Plaintiff Marshall Tanaka’s vehicle, which was then pushed forward into the car of a non-party to these cases. A fire subsequently ignited, completely burning Decedent’s car and killing him. The fire partially burned Plaintiff Tanaka’s car and caused Plaintiff Tanaka to suffer injuries. Defendant Faabog was convicted of felony charges of gross vehicular manslaughter and hit and run.

On May 10, 2021, Plaintiff Linda Aversa (individually and as successor in interest) and Plaintiff Ricardo Olivas filed a complaint against Defendant Ford Motor Company, LTD. (“Ford”) and others. Plaintiffs alleged (1) strict product liability; (2) negligent product liability; and (3) motor vehicle negligence. This is case number 21STCV17487.  Plaintiff Aversa is Decedent’s mother and Plaintiff Olivas is Decedent’s father.

On May 13, 2021, Plaintiff Marshall Tanaka filed a complaint against Ford and others alleging: (1) strict product liability; (2) negligent product liability; and (3) motor vehicle negligence. This is case number 21STCV18090.

On July 19, 2021, 21STCV17487 and 21STCV18090 were related, with the 487 case being the lead  case. On December 8, 2021, both cases were ordered consolidated. 

Plaintiff Linda Aversa filed a request to dismiss case number 21STCV17487 without prejudice on December 29, 2021. The request was granted on January 11, 2022. This leaves Plaintiff  Olivas and Defendants Ford, Will Tiesiera Ford, Inc. and Kaj Wendell Faaborg in case number 21STCV17487.  

On January 5, 2022,  Plaintiff Aversa (individually and as successor-in-interest) filed another complaint against Ford, Will Tiesiera Ford, Inc. and Kaj Wendall Faaborg. This complaint (Case Number 22STCV00500) alleges: (1) strict product liability; (2) negligent product liability; (3) motor vehicle negligence; and (4) successor in interest damages including Decedent’s non-economic damages and for exemplary damages. 

On March 24, 2022, Defendants Ford Motor Company, erroneously sued as Ford Motor Company, LTD., and Will Tiesiera Ford, Inc. filed a demurrer and motion to strike Plaintiff’s complaint. 
On April 22, 2022, Plaintiff Linda Marie Aversa, individually and as the successor-in-interest to the Estate of Jeremy Richard Olivas, deceased, filed an opposition to Defendants’ demurrer and motion to strike. 

On April 28, 2022, Defendants filed a reply to Plaintiff’s opposition. 

On May 5, 2022, Plaintiff filed a notice of related case. 
Trial has been set for July 5, 2023.

Stated Grounds for Demurrer and Motion to Strike

Defendants Ford Motor Company, erroneously sued as Ford Motor Company, LTD., and Will Tiesiera Ford, Inc. demur to Plaintiff’s complaint on the following grounds. 

First, Defendants contend that the doctrine of abatement dictates the granting of a demurrer with respect to 22STCV00500. Defendants contend that because multiple actions are or were simultaneously pending regarding the same transaction the instant case must be abated as “the second action.” 

Second, Defendants contend that even if abatement does not apply, a demurrer is appropriate due to exclusive concurrent jurisdiction. According to this rule, Defendants contend, to courts cannot have concurrent jurisdiction over the same subject matter.

Third, Defendants contend that the instant case violates the one action rule and Section 389. For this reason, Defendants argue a demurrer is appropriate.

Fourth, Defendants argue that pain and suffering damages are not available under Section 377.34(a) and move to strike the following: Paragraph 1, lines 4-6;  Paragraph 12, lines 14-19; Paragraph 13, lines 27-1;Paragraph 18, lines 2-6; Paragraph 19, lines 12-13; Paragraph 19, lines 16-19;Paragraph 23, lines 11-12; Paragraph 25, (subsection O), lines 20-22 and Prayer, paragraph 2, line 20-28.

Legal Standards

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 via proper judicial notice.  (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)  “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, supra, 147 Cal.App.4th at p. 747.)

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 Code Civ Proc., §§ 435-437.) A motion to strike can be made to strike irrelevant, false or improper matter inserted in any pleading or to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of the court. (§ 436.) 

A party filing a demurrer “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).) “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to 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.” (Code Civ. Proc., § 430.41, subd. (a)(2).) 

Similarly, a party filing a motion to strike must meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion and identify all of the specific allegations that it believes are subject to be stricken and identify with legal support the basis of the deficiencies. (Code Civ. Proc., § 435.5, subd. (a).)

A failure to meet and confer does not constitute grounds to sustain or overrule a demurrer or to grant or deny a motion to strike. (See Code Civ. Proc., §§ 430.41, subd. (a)(4); 435.5, subd. (a)(4).)

Under California Evidence Code section 453, the Court shall take judicial notice of any matter specified in section 452 if a party requests it and (a) gives each adverse party sufficient notice of the request to enable such adverse party to prepare to meet the request and (b) furnishes the court with sufficient information to enable it to take judicial notice of the matter. 

Under California Evidence Code section 452, the Court may take judicial notice, among other things, of official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States and facts, court records, and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (§ 452(c), (d), (h).) The Court can take judicial notice of the official acts of a state including records, orders, and reports of its administrative agencies. Rodas v. Spiegel (2001) 87 Cal. App. 4th 513, 518.

Upon demurrer, judicial notice of matters is dispositive only in instances where there is not or cannot be a factual dispute concerning that sought to be judicially noticed. Williams v. Southern California Gas Co. (2009) 176 Cal. App. 4th 591, 599 600.


Judicial Notice

Defendants request judicial notice of:  Plaintiffs Linda Aversa and Ricarda Olivas’s Complaint filed on May 10, 2021, Case No. 21STCV17487; 2021 California Senate Bill 447; June 22, 2021 Assembly Committee on Judiciary Report regarding Senate Bill 447;Plaintiff Marshal Tanaka’s Complaint filed on May 13, 2021, Case No. 21STCV18090;Department 28’s Minute Order regarding Notice of Related Case dated July 19, 2021;Department 30’s Minute Order regarding Consolidation of Cases dated December 8, 202; and Plaintiff Linda Aversa’s Request for Dismissal in Case No. 21STCV17487 filed on December 29, 2021.

Pursuant to Evidence Code section 452(c), (d), and (h), Defendants’ request for judicial notice is granted.

Meet and Confer

The Court finds that Defendants have filed a sufficient meet and confer declaration. (See Defendants’ CIV-141.)



“A plea in abatement pursuant to Code of Civil Procedure Section 430.10(c) may be made by demurrer or by answer when there is another action pending between the same parties on the same cause of action.” (Plant Insultation co. v. Fibreboard Corp. (1990) 224 CA3d 781, 789.) Here, the initial case has been dismissed with respect to Plaintiff Aversa. Hence, abatement does not apply. Moreover, in the event that  a demurrer was sustained, the result would be that the second action would be stayed pending the resolution of the initial action. For these reasons, this is not the proper basis for a demurrer in this instance.

Exclusive Concurrent Jurisdiction

Exclusive concurrent jurisdiction doctrine becomes relevant when there are related cases in different superior courts, specifically different counties. In these situations, the first court to assert jurisdiction excludes the other actions. (See Franklin & Franklin v. 7-Eleven Owners for Fair Franchising (2000) 85 CA4th 1168, 1175; Levine v. Smith (2006) 145 CA4th 1131, 1135; County of Siskiyou v. Sup.Ct. (Environmental Law Found.) (2013) 217 CA4th 83, 89, 158 CR3d 164, 169.)
Here, all three cases are now pending in the same county, and in the same court, Department 30. Additionally, the Court granted the related case notice recently filled by Plaintiff. 

One Action Rule/Section 389/Avoiding Consolidation Order

California Code of Civil Procedure section 389, subdivision (a) states: “[a] person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.  If he has not been so joined, the court shall order that he be made a party.”

California Code of Civil Procedure section 389, subdivision (b) states: “[i]f a person described in paragraph (1) or (2) of subdivision (a) cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable.  The factors to be considered by the court include: (1) to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person’s absence will be adequate; (4) whether the plaintiff or cross-complainant will have an adequate remedy if the action is dismissed for nonjoinder.”

In the case of a wrongful death action, the action belongs to all the decedent’s heirs and hence they are necessary parties. (Ruttenberg v. Ruggenberg (1997) 53 CA4th 801, 808.) However, nonjoinder of one or more heirs does not affect the court’s ability to hear the case. (Id. at 808) Rather, any judgment bars claims by the omitted heirs. It is plaintiff who would be liable to omitted heirs in such a situation.

In essence, failure of joinder is an equitable issue. The purpose is to prevent defendants facing a series of suits from heirs. To that extent, this issue can be remedied by a motion to consolidate the new case with the older cases. This would also address the argument that Plaintiff’s actions here were meant to circumvent the court’s consolidation order.
Since all three cases are now consolidated, the demurrer is overruled.

Motion to Strike

The heart of this motion is Plaintiff’s claim for Decedent’s pain and suffering based on new legislation. That is the reason that Plaintiff Aversa dismissed the initial action and filed another. It is also the reason that Defendants want the new case dismissed.

The new law, S.B. 447, permits the recovery of a decedent’s non-economic damages (such as pain, suffering and disfigurement) by the decedent’s personal representative or successor in interest in certain instances. The statute states that such damages are now recoverable (1) if the action or proceeding was granted a trial preference prior to January 1, 2022 or (2) the action or proceeding was filed on or after January 1, 2022 and before January 1, 2026. (CCP Section 377.34(b).)

Here, Plaintiff Aversa dismissed her initial complaint and refiled in order to take advantage of this change in the law. Had Plaintiff Olivas been represented by counsel, he likely would have joined in the new complaint obviating the need for the analysis above.

Defendants contend that this is a ruse that should not be permitted. Further, they contend that the instant situation is not covered by the new legislation.

Before addressing the merits of the claim, the Court notes that Plaintiff Aversa should have served Defendants with the request to dismiss 21STCV18090 filed on December 29, 2021. The Defendants, after all, were parties to the action. Indeed, upon reviewing the proof of service it appears that the third defendant in the case was served, while the Defendants here were not. This is inexcusable. In the future, any items filed by Plaintiff Aversa which are not properly served will be stricken from the record. Furthermore, Plaintiff Aversa’s failure to promptly file a notice of related case (as required by CRC 3.300  and Local Rule 3.3) and thereafter a motion to consolidate (required to prevent circumvention of the court’s prior consolidation order) is similarly inexcusable.
“[A] dismissal ‘without prejudice’ necessarily means without prejudice to the filing of a new action on the same allegations, so long as it is done within the period of the appropriate statute of limitations. [Citations.]” (Eaton Hydraulics Inc. v. Continental Casualty Co. (2005) 132 Cal.App.4th 966, 974–975, fn. 6, 34 Cal.Rptr.3d 91.) Here there is no contention that second action was filed late.

The purpose behind the right of a plaintiff to voluntarily dismiss a case under Code of Civil Procedure section 581 “is to allow a plaintiff a certain amount of freedom of action within the limits prescribed by the code.” (Cal–Vada Aircraft, Inc. v. Superior Court (1986) 179 Cal.App.3d 435, 446, 224.) Where this right does not conflict with other statutory provisions, judicial procedures or public policy, the dismissal is valid. (Zapanta v. Universal Care Inc. (2003) 107 Cal.App.4th 1167.)

A plaintiff's right to voluntary dismissal is governed by section 581, subdivision (b)(1): “An action may be dismissed in any of the following instances.... With or without prejudice, upon written request of the plaintiff to the clerk, filed with papers in the case, or by oral or written request to the court at any time before the actual commencement of trial.” But “[t]he right of a plaintiff to voluntarily dismiss an action before commencement of trial is not absolute.” (Harris v. Billings (1993) 16 Cal.App.4th 1396, 1402.) There are statutory exceptions to a plaintiff's right of voluntary dismissal, and “other limitations have evolved through the courts' construction of the term ‘commencement of trial.’ ” (Ibid.) The meaning of the term “trial” is not restricted to jury or court trials on the merits, but includes other procedures that “effectively dispose of the case.” (Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 785; Gregory A. Cole v. Betty Hammond (2019) 37 Cal.App.5th 912.)

The Court has not found any and Defendants do not cite to any cases holding that it is impermissible to dismiss and refile to take advantage of a new law. This Court does not find any reason to prevent it here.

The plain language of the statute makes it clear that the new law applies to cases filed on and after January 1, 2022 which the new case was. If there is no ambiguity in the language of a statute, courts are to presume that the Legislature meant what it said. (MCI Communications Services, Inc. v. California Department of Tax and Fee Administration (2018) 28 Cal.App.5th 635, 643.) 

Moreover, nothing in the legislative history provided by Defendants indicates that the legislature considered the situation at hand. 

California is one of a few state that prevents a decedent’s personal representative or successor in interest from collecting damages for a decedent’s pain, suffering and disfigurement. The new law requires any plaintiffs who recover such damages to submit that information to the Judicial Council for transmission to the Legislature. This indicates to the court that the legislature may  consider in the future making a permanent change in the law to align with the vast majority of states. The legislative history also seems to indicate that the legislature is considering California’s position on this issue vis a vis the vast majority of states.

For these reasons, the motion to strike is denied.