Judge Kerry Bensinger, Case Number: 21STCV23797, Date: 2023-09-11 Tentative Ruling

On June 25, 2021, Plaintiffs, Parichehr K. Naffe (“Parichehr”) and Nader Nafe (“Nader”), filed a form complaint in pro per against Defendants, Navid Nafee (”Navid”) and Ben Elliot Johnson (“Ben”), for intentional tort. The allegations are handwritten. From what the Court can discern, Plaintiffs allege Defendants pushed Parichehr’s son, Nader, which caused Parichehr to fall and sustain injury. Navid is the father of Nader.

On March 7, 2023, Parichehr requested dismissal of the complaint against Defendants with prejudice.

On August 16, 2023, Navid filed this demurrer to Nader’s Complaint. Navid also filed a motion to strike the exemplary damages attachment to the Complaint.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) Judicial Council forms are not immune to demurrer. (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1486.)

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) “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 California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) 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.)

Defense counsel has complied with the meet and confer requirement.¿ (See Declaration of Shahin Motallebi.)

The Court construes the allegations of the Complaint as setting forth causes of action for assault and battery.

“The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s conduct was a substantial factor in causing plaintiff’s harm.” (So v. Shin (2013) 212 Cal.App.4th 652, 668-669; CACI No.1301.)

“The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” (So, supra, Cal.App.4th 652, 669; CACI No. 1300.)

Navid argues the demurrer should be sustained because Nader’s Complaint is vague and unintelligible. Specifically, the Complaint does not state who committed the alleged intentional tort. The Court agrees the Complaint is vague, but not for the reason Navid identifies. The Complaint alleges “Defendant and his partner attacked my son Nader pushing him as a result causing for me to fall on my back & 16 hours of bleeding.” This allegation adequately states that both defendants—Navid and Ben—committed the intentional tort. However, the Court can discern little else of the handwritten allegations. As such, Navid is not sufficiently apprised of the allegations asserted against him. The Complaint is vague and unintelligible.[2]

Navid seeks to strike punitive damages from the Complaint. Given the Court’s disposition of the demurrer, the motion to strike is MOOT.

Plaintiff Nader Nafee is ordered to serve and file a First Amended Complaint within 20 days of this order.

Defendant Navid Nafee is ordered to serve and file his responsive pleading within 30 days of service of the First Amended Complaint.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

[1] A failure to oppose a motion may be deemed a consent to the granting of the motion. (Cal. Rules of Court, rule 8.54, subd. (c).)

[2] Because the handwritten allegations of the Complaint are unintelligible, the Court further finds the Complaint fails to state facts sufficient to constitute a cause of action for either assault or battery. There are no discernible allegations as to each element of assault (see So, supra, and CACI No. 1301) nor to each element of battery (see So, supra, and CACI No. 1300).

[3] Navid filed the demurrer and motion to strike as one attachment. Navid is directed to file the demurrer and motion to strike separately should the occasion arise in the future.