Judge Lee S. Arian, Case Number: 22STCV34563, Date: 2024-10-24 Tentative Ruling

On October 28, 2022, Plaintiffs Tonya Emerson (“Tonya”) and Hanna Abdullah (“Hanna”) (collectively, “Plaintiffs”) filed an action against Defendants Ahmad Ayam (“Ahmad”), Ayam Ayam (“Ayam”), Malaysia Sierra Pye (“Malaysia”), Hertz Vehicles LLC (“Hertz”), Mechanics Bank (“Bank”) and Does 1 through 50 for bodily injury and/or property damage. The Complaint alleges that around November 1, 2020, Defendants’ negligence caused a motor vehicle accident involving Plaintiffs. As a result, Plaintiffs sustained bodily injuries and damages. On May 10, 2024, pursuant to Plaintiffs’ request, the Court dismissed Defendants Hertz and Bank without prejudice.

On September 23, 2024, Defendants Ahmad and Ayam filed the instant Demurrer to the Complaint. No opposition has been filed.

A demurrer is used to test the legal sufficiency of the factual allegations in the complaint. (Code of Civ. Proc., § 430.10.) There are two types of demurrers – general demurrers and special demurrers. (See McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 77.)

General demurrers can be used to attack pleadings for failure to state facts sufficient to constitute a cause of action or for lack of subject matter jurisdiction. (Code Civ. Proc., § 430.10, subd. (e); McKenney, 167 Cal.App.4th at 77.) Such demurrers can be used only to challenge defects that appear on the face of the pleading or from matters outside the pleading that are judicially noticeable; evidence or extrinsic matters are not considered. (Code of Civ. Proc., §§ 430.30, 430.70; Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) For the purpose of testing the sufficiency of the cause of action, the Court admits “all material facts properly pleaded” and “matters which may be judicially noticed,” but does not consider contentions, deductions, or conclusions of fact or law. [Citation].” (Blank, 39 Cal.3d at 318.) It gives these facts “a reasonable interpretation, reading it as a whole and its parts in their context.” (Ibid.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) The face of the complaint includes exhibits attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) "If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence." (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447.)

Special demurrers can be used to attack the pleadings on grounds that the pleading is uncertain, ambiguous, and unintelligible, or in a contract case, for failure to allege whether a contract is oral or written. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty will be sustained only where the pleading is so unclear that the responding party cannot reasonably determine what issues to admit or deny or what counts and claims are directed toward the responding party. (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.)

Moreover, Code of Civil Procedure section 430.41 requires that “[b]efore 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).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) When a plaintiff “has pleaded the general set of facts upon which his cause of action is based,” the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not “be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892, 900.) Generally, the court will allow leave to amend on at least the first try, unless there is absolutely no possibility of overcoming the issue. (See Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227 ("Denial of leave to amend constitutes an abuse of discretion unless the complaint shows on its face it is incapable of amendment. [Citation.] Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.").)

Defense counsel declares that she attempted to meet and confer with Plaintiffs’ counsel, but her efforts were not successful. (Foster Decl. ¶¶ 3-4, Ex. A.) She has attached a copy of her email communications with Plaintiffs’ counsel evidencing discussions regarding the possible filing of an amended complaint. (Ibid.) As of the date of the hearing, no amended complaint has been filed.

The Court finds defense counsel’s declaration sufficient to fulfill the meet and confer requirement.

Moving Defendants demur to the Complaint on the basis that the Complaint fails to state a cause of action or state facts sufficient to constitute any legally cognizable cause of action. Moreover, Defendants contend that the Complaint does not name the Defendants or state any allegations regarding the circumstances of their involvement in the motor vehicle collision and the Complaint is also uncertain.

Defendants also argue that if Plaintiffs are attempting to assert a claim for negligence, the allegations in the Complaint are not sufficient to establish any of the elements of negligence. Defendants request that the Court sustain the Demurrer without leave to amend as Plaintiffs will not be able to cure the defects in the Complaint.

The Court finds that the two-page Complaint for bodily injury and/or property damage fails due to uncertainty. Under California Rule of Court, Rule 2.112: “Each separately stated cause of action, count, or defense must specifically state: (1) [i]ts number…(2) [i]ts nature.” Moreover, Code of Civil Procedure section 425.10, subdivision (a)(1), states that a complaint “shall” contain a “statement of the facts constituting the cause of action, in ordinary and concise language.” Although a court, “must look to the allegations in the body of the complaint to determine whether a set of alleged facts constitutes a cause of action,” there must be some indication of what cause of action and elements are being pleaded. (People ex rel. Feuer v. Superior Court (Cahuenga’s the Spot) (2015) 234 Cal.App.4th 1360, 1376.)

A demurrer for uncertainty will be sustained only where the pleading is so unclear that the responding party cannot reasonably determine what issues to admit or deny or what counts and claims are directed toward the responding party. (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.) However, “[a]s the leading practical treatise advises, failure to comply with rule 2.112 presumably renders a complaint subject to a motion to strike (Code of Civ. Proc., § 436), or a special demurrer for uncertainty.” (Grappo v. McMills (2017) 11 Cal.App.5th 996, 1014 (citing Weil & Brown, Cal. Practice Guide: CPBT (Rutter Group 2016), ¶6:113). Similarly, a pleading is subject to a demurrer for uncertainty, when it is unintelligible by “attempt[ing] to state numerous causes of action in a very loose and rambling manner without any attempt at separately stating them.” (Craig v. City of Los Angeles¿(1941) 44 Cal.App.2d 71, 73.)

Here, Plaintiffs have initiated an action for bodily injuries and damages but have not asserted any causes of action in the Complaint. The Complaint alleges that around November 1, 2020, near Los Angeles Street and 11th Street in the City of Los Angeles, County of Los Angeles, “a motor vehicle or vehicles were owned and were so negligently operated, maintained, controlled and permissively used by defendants and each of them including DOES 1 through 50, inclusive so as to cause an accident involving each plaintiff and causing damage.” (Complaint, ¶ 3.) As a proximate result of Defendants’ negligence, Plaintiffs sustained bodily injuries and other forms of damages generally referenced in the Complaint. (Id. at ¶¶ 4-6.)

The Court finds that the Complaint does not set forth any causes of action or present any factual allegations to establish a cause of action. If Plaintiffs are asserting a cause of action for negligence, the Complaint is comprised of conclusory statements, without any factual allegations regarding each defendant’s actions or omissions that could constitute negligence. The pleading is so unclear that moving Defendants cannot reasonably determine what issues to admit or deny or what counts and claims are directed toward each Defendant. Thus, the Court finds the Complaint to be uncertain according to Code of Civil Procedure section 430.10, subdivision (f).

Plaintiffs have not had a prior opportunity to amend the Complaint, thus, the Court SUSTAINS the Demurrer with 20 days leave to amend.

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.

Hon. Lee S. Arian

Judge of the Superior Court