Judge: Lisa R. Jaskol, Case: 21STCV47476, Date: 2024-04-03 Tentative Ruling

Case Number: 21STCV47476    Hearing Date: April 3, 2024    Dept: 28

Having considered the moving, opposition, and reply papers, the Court rules as follows. 

BACKGROUND 

On December 30, 2021, Plaintiff Pegah Keshavarz (“Plaintiff”) filed this action against Defendants State to State Logistics, Inc. (“State”) and Does 1-100 for negligence. 

On September 14, 2023, Plaintiff amended the complaint to include Defendant Dagan Vaismarder (“Defendant”) as Doe 1. 

On February 5, 2024, Defendant filed a demurrer to be heard on April 3, 2024. On March 20, 2024, Plaintiff filed an opposition. On March 27, 2024, Defendant filed a reply. 

No trial date is currently scheduled. 

PARTIES’ REQUESTS 

Defendant asks the Court to sustain the demurrer. 

Plaintiff asks the Court to overrule the demurrer. 

LEGAL STANDARD 

Code of Civil Procedure section 430.10 provides in part: 

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: 

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“(e) The pleading does not state facts sufficient to constitute a cause of action. 

“(f) The pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible. 

“(g)  In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct. . . .” 

(Code Civ. Proc., § 430.10, subds. (e), (f), (g).) 

In a demurrer proceeding, the defects must be apparent on the face of the pleading or by judicial notice. (Code Civ. Proc., § 430.30, subd. (a) [“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading”].) 

“For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not conclusions, deductions, or conclusions of facts or law).”  (L. Edmon and C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 7:43, p. 7(l)-25 (Cal. Practice Guide), emphasis omitted.) 

DISCUSSION 

A.   Complaint 

The complaint alleges the following: 

On or about June of 2020, Plaintiff contracted with State to have State pick up certain personal and professional household and office furnishing and goods from Plaintiff for delivery to a location in San Diego.  On or about June 24, 2020, State picked up certain personal and professional household and office furnishing and goods from Plaintiff for delivery to Plaintiff at a location in San Diego. 

On July 9, 2021, State delivered only a few of the goods to Plaintiff. A large portion of the goods were never delivered to Plaintiff. The portion that was delivered were delivered in a damaged condition in that numerous items of Plaintiff’s property were broken or otherwise seriously damaged. 

Defendants were negligent because they failed to perform their duty as a moving company to safeguard and protect Plaintiff’s property from damage and/or loss and failed to foresee the probable danger which may be caused by Defendants’ failure to do so. 

As the result of Defendants’ negligence, Plaintiff’s merchandise was damaged and/or lost and Plaintiff’s business was interrupted.  As the result of Defendants’ negligence and the resulting loss and damage to Plaintiff’s property, “Plaintiff was injured in her emotional health, strength and activity, sustaining, injury to her body and shock and injury to her nervous system and person, and, among others, sustained personal injuries.” 

B.   The demurrer 

Defendant argues that the complaint is vague because it does not specify (1) when the parties entered into the contract, (2) the contract’s terms, or (3) Defendant's relationship to State or to Plaintiff.  In addition, Defendant argues, the complaint is subject to demurrer because it “cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”  (Code Civ. Proc., § 430.10, subd. (g).)  Defendant also appears to argue that a bill of lading limits Defendant’s liability.  

C.   Analysis 

Defendant's arguments are misplaced because Plaintiff has asserted a claim for negligence, not for breach of contract.  Defendant does not contend that a negligence claim or damages for negligence are unavailable based on the facts Plaintiff alleges in the complaint.  In addition, on a demurrer, the Court considers only the material facts alleged in the complaint and matters subject to judicial notice. 

In addition, after filing the complaint Plaintiff named Defendant as Doe 1.  The complaint alleged that Does 1-50 were “negligently, carelessly, recklessly, unlawfully, tortuously, wantonly, wrongfully, illegally, or in some other actionable matter, responsible for the events and happenings hereinafter referred to, and thereby negligently, carelessly, recklessly, unlawfully, tortuously, wantonly, wrongfully, and illegally proximately caused the hereinafter described injuries and damages to Plaintiff.”  The complaint also alleged that all of the defendants “were agents, servants, employees and joint venturers of each other, and were, as such, acting within the course, scope and authority of said agency, employment and joint venture, and that each and every Defendant, as aforesaid, when acting as a principal, was negligent in the selection and hiring of each and every Defendant as an agent, employee, contractor, subcontractor and joint venture, and that each Defendant, by and through its officers, officials, directors, managers, supervisors and/or managing agents, authorized, ratified and otherwise approved the acts of the remaining Defendants, and that said officers, directors, or managing agents participated in said acts with the Defendants . . . .”  These allegations are sufficient to withstand a demurrer for vagueness concerning Defendant's relationship to State and to Plaintiff. 

The Court overrules the demurrer. 

CONCLUSION 

The Court OVERRULES Defendant Dagan Vaismarder’s demurrer to the complaint filed by Plaintiff Pegah Keshavarz. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.