Judge Kerry Bensinger, Case 23STCV00669 2023-05-03 Tentative Ruling

DEFENDANT MV TRANSPORTATION, INC’S DEMURRER TO PLAINTIFF’S COMPLAINT AND REQUEST FOR SANCTIONS

On August 29, 2022, Plaintiff Alvin Daniel filed an action against defendants Raymond Ojeda (“Ojeda”), Jamal Leshun Daniels (“Daniels”), and MV Transportation, Inc. (“MVT”) in Case No. 22STCV28113. In that case, Plaintiff alleged the first cause of action for negligence against Ojeda for a motor vehicle accident occurring August 21, 2021 and a second cause of action for negligence against Daniels and MVT for a separate bus incident occurring December 4, 2021. MVT demurred to the second cause of action based on misjoinder of parties. The court sustained the demurrer because no common question of law or fact between the two causes of action appeared from the face of the complaint. Plaintiff’s counsel represented to the court that he caused to be filed a separate complaint (Case No. 23STCV00669) against MVT. The court noted that Plaintiff asserted the same facts against MVT in the separate complaint. On February 6, 2023, Plaintiff filed a First Amended Complaint in Case No. 22STCV28113 asserting a cause of action against Ojeda only.

The separate complaint, which bears case number Case No. 23STCV00669, was filed on January 12, 2023. The complaint in Case Number 23STCV00669 is the matter before the Court and the target of Defendant MVT’s Demurrer. According to the Complaint, “[o]n December 4, 2021, Plaintiff was a passenger on Bus Number 15730 operated by MV Transportation, Inc.” (Complaint, ¶ 10.) “Said bus was driven by Jamal Leshun Daniels, who was employed by MV Transportation, Inc. and DOES 26 through 36, and was acting within the course of employment.” (Complaint, ¶ 11.) “As the bus reached Florence and Figueroa, Los Angeles, CA 90044, Defendant Jamal Leshun Daniels abruptly hit the brakes, so hard that it caused Plaintiff to fly through the windshield and almost lose his life.” (Complaint, ¶ 12.)

On March 30, 2023, MVT filed this demurrer[1] to Plaintiff’s Complaint. Plaintiff opposes and MVT replies.

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.)

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.)

Before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a).) Defense counsel has not satisfied this requirement. (Declaration of Christopher C. Surh.) However, a failure to comply with the requirement shall not be grounds to overrule or sustain a demurrer. (Code Civ. Proc., § 430.41, subd. (a)(4).) Therefore, the Court considers the merits.[2]

Plaintiff requests judicial notice of (1) his opposition to MVT’s demurrer, including a proposed First Amended Complaint, filed in Case No. 22STCV28113, (2) the court’s ruling in Case No. 22STCV28113 granting Plaintiff leave to amend, (3) and Plaintiff’s First Amended Complaint filed in Case No. 22STCV28113. The unopposed request is GRANTED. (Evid. Code, § 452, subd. (d).)

MVT argues that the single Cause of Action for Negligence fails because there is another action pending (Case No. 22STCV28113) between the same parties on the same cause of action. For this reason, MVT seeks an order sustaining their demurrer and ordering Plaintiff to dismiss MVT from Case No. 22STCV28113.

Plaintiff contends there is no other pending action against MVT on the same cause of action because Plaintiff’s First Amended Complaint filed in Case No. 22STCV28113 does not assert any cause of action against MVT.

The party against whom a complaint has been filed may object by demurrer to the pleading if there is another action pending between the same parties on the same cause of action. (Code Civ. Proc., §430.10, subd. (c).) However, the filing of an amended complaint which omits a previously named defendant as a party effects a dismissal without prejudice of that defendant from the action. (Kuperman v. Great Republic Life Ins. Co. (1987) 195 Cal.App.3d 943, 947.

Here, Plaintiff filed a First Amended Complaint in Case No. 22STCV28113. MVT is named as defendant in the caption of that complaint, but no causes of action are asserted against MVT. (See Request for Judicial Notice (“RJN”), Ex. B.) Under these facts, MVT’s demurrer fails.[3] As Plaintiff’s cause of action for negligence against MVT in this case is not asserted in Case No. 22STCV28113, there simply is not “another action pending between the same parties on the same cause of action.”

Based on the foregoing, MVT’s demurrer is OVERRULED. As the Court has found MVT’s demurrer to lack merit, the Court DENIES MVT’s request for sanctions.

Defendant MV Transportation, Inc. is ordered to file an Answer to Plaintiff Alvin Daniel’s Complaint within 30 days of this order.

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] Complicating the procedural history is the fact MVT’s demurrer bears the incorrect case number and case name. Because Plaintiff has filed an opposition and both parties appear to be focused on Case No. 23STCV00669, the Court considers MVT’s arguments.

[2] Failure to meet and confer may result in the continuance of the hearing.

[3] Plaintiff’s failure to delete MTV from the caption, no doubt, led to confusion. Plaintiff should remedy this confusion by eliminating MTV from the caption in Case No. 22STCV28113.