Judge Lynne M. Hobbs, Case Number: 21STCV01774, Date: 2023-08-17 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 21STCV01774, Date: 2023-08-17 Tentative Ruling

Case Number: 21STCV01774 Hearing Date: August 17, 2023 Dept: 30

BERTHA VALDEZ vs O'REILLY AUTOMOTIVE INC., et al.

Re: Demurrer

Ruling: Defendant’s Demurrer is OVERRULED. Moving party is ordered to give notice.

Discussion:

MEET AND CONFER

A party filing a demurrer “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(a).) “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., § 430.41(a)(2).) A failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., §§ 430.41 (a)(4).)

As noted, Defendant failed to engage in an effort to meet and confer with Plaintiff with regard to the instant demurrer and is thus in violation of Code of Civil Procedure section 430.41, subdivisions (a) and (b).

JUDICIAL NOTICE

Defendant’s requests for judicial notice of the Complaint is denied as unnecessary. The Court may always refer to the pleadings in the matter at hand.

TIMING

As an initial matter, this demurrer is untimely. A defendant must file a demurrer within the same period of time it has to answer, which is 30 days after service of a Complaint or Cross-Complaint unless extended by stipulation or court order. (Code Civ. Proc., section 430.40(a).) However, a court has discretion to consider untimely demurrers in the interests of justice so long as the parties’ substantial rights are not affected. (Code Civ. Proc., section 473(a)(1); Jackson v Doe (2011) 192 CA4th 742, 749.)

Here, Plaintiff filed her Complaint on January 15, 2021 and served the Summons and Complaint on Defendant via personal service on November 18, 2021. The deadline to file a demurrer was February 14, 2021. Defendant filed its demurrer on June 2, 2023. The demurrer is untimely.

The Court notes that Defendant has filed its demurrer nearly two years after receipt of personal service of the Complaint. Defendant has not provided any explanation or justification as to why its response to the Complaint has been so substantially delayed. Further the Court finds that such a late filed demurrer would likely adversely affect Plaintiff’s substantive rights as the current trial date is set for November 17, 2023, only a few months away. As such, the Court shall exercise its discretion to overrule the instant demurrer based on its untimeliness.

Demurrer

Notwithstanding, the Court notes, if it had reached the merits of the demurrer, it would have found the facts plead in Plaintiff’s Complaint sufficient to support a cause of action for motor vehicle negligence against Defendant. The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.) Plaintiff alleges the following in her first cause of action:

The defendants and each of them, did so negligently, recklessly, carelessly and unlawfully own, maintain, entrust, borrow, control, supervise and operate their respective vehicles, so that as a direct and proximate result thereof, Defendants' vehicles collided with each other causing a tire from the FORD to strike plaintiff, causing her to sustain the injuries and damages hereinafter set forth.

(Complaint, ¶ 11.) Plaintiff has plead Defendant was negligent in their control or ownership over its respective vehicle and thus breached its duty to Plaintiff as a pedestrian. Plaintiff further pleads that Defendant’s negligence caused a collision which resulted in a tire striking and injuring Plaintiff. The foregoing facts establish Defendant’s duty, breach of duty, and Plaintiff’s resulting injuries from said breach and thus constitute sufficient ultimate facts to allege a cause of action for motor vehicle negligence against Defendant in her Complaint.