Judge Lee S. Arian, Case Number: 21STCV15412, Date: 2023-11-01 Tentative Ruling

On April 22, 2021, Plaintiff Babak Mobasser, filed a form complaint in pro per against Defendants, Joel Bond Deas (“Deas”) and Edmundo Gerardo Llamas, for injuries arising from a motor vehicle collision. The Complaint asserts causes of action for (1) Motor Vehicle – Personal Injury and (2) Exemplary Damages for fraud. Plaintiff is currently represented by counsel.

On October 4, 2023, Deas filed this Demurrer and Motion to Strike portions of Plaintiff’s Complaint.

On October 23, 2023, Plaintiff filed an Opposition to the Demurrer only. The Motion to Strike is unopposed.

As a threshold matter, Plaintiff indicates in his Opposition that he agrees to remove the Second Cause of Action for Exemplary Damages. Thus, the sole issue to be decided in connection with the Demurrer is whether the Complaint states a cause of action for Motor Vehicle – Personal Injury.

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 form complaints are not invulnerable to demurrer. (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1482.)

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 Lisa Mersereau.)

“The elements of a cause of action for negligence are well established.¿ They are (a) a legal duty to use due care; (b) a breach of such legal duty; and (c) the breach as the proximate or legal cause of the resulting injury.”¿ (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917; CACI No. 400.) (Quotations omitted.)¿¿ The elements are the same for a Motor Vehicle cause of action. (See Judicial Council Form, Cause of Action-Motor Vehicle.)

Deas demurs to the Motor Vehicle cause of action as being uncertain, ambiguous, and unintelligible. The Court agrees. Although the form Complaint alleges the elements of a Motor Vehicle claim, i.e, “the acts of defendants were negligent; the acts were the legal (proximate) cause of injuries and damages to plaintiff”, the Complaint is devoid of allegations making clear which of Deas’s actions were negligent. For instance, the Complaint does not apprise Deas whether the basis for the action is a collision involving motor vehicles, a pedestrian, or a cyclist. The Complaint is uncertain.

Plaintiff Babak Mobasser is ordered to serve and file a First Amended Complaint within 15 days of this order.

Defendant Joel Bond Deas is ordered to serve and file a responsive pleading within 30 days of being served with 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] Deas argues the Court should not consider Plaintiff’s Opposition because it was untimely filed. The Court exercises its discretion and considers the Opposition herein. (See Cal. Rules of Court, rule 3.1300, subd. (d).)

[AS1]Plaintiff does not put up much of a fight. However, if you are inclined to move this case forward, I think there is a good argument that the complaint is sufficiently pled. The complaint identifies the date, time, and location of the incident. Although the complaint doesn't indicate whether this is an auto v. auto, auto v. pedestrian, etc. case, we could liberally construe the complaint as infer its, at least a motor vehicle collision. Presumably, defendant has knowledge of the underlying events.