Judge: Mark A. Young, Case: 19STCV40585, Date: 2022-10-04 Tentative Ruling
Case Number: 19STCV40585 Hearing Date: October 4, 2022 Dept: M
CASE NAME: Duran v. Uber
Jump Scooters, et al.
CASE NO.: 19STCV40585
MOTION: Demurrer
to the First Amended Complaint
HEARING DATE: 10/4/2022
Legal
Standard
A
demurrer for sufficiency tests whether the complaint states a cause of action.
(Hahn v. Mirda (2007)
147 Cal.App.4th 740, 747.) When considering demurrers, courts read the
allegations liberally and in context. In a demurrer proceeding, the defects
must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co.
(2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not
the evidence or other extrinsic matters. Therefore, it lies only where the
defects appear on the face of the pleading or are judicially noticed. (CCP §§
430.30, 430.70.) 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.) A “demurrer does not, however, admit contentions,
deductions or conclusions of fact or law alleged in the pleading, or the
construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen
(1964) 226 Cal.App.2d 725, 732, internal citations omitted.)
A
special demurrer for uncertainty is disfavored and will only be sustained where
the pleading is so bad that defendant cannot reasonably respond—i.e., cannot
reasonably determine what issues must be admitted or denied, or what counts or
claims are directed against him/her. (CCP § 430.10(f); Khoury v. Maly’s
of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if
the pleading is somewhat vague, “ambiguities can be clarified under modern
discovery procedures.” (Ibid.)
Any party, within the time allowed
to respond to a pleading may serve and file a notice of motion to strike the
whole or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule
3.1322(b).) The court may, upon a motion or at any time in its discretion and
upon terms it deems proper: (1) strike out any irrelevant, false, or improper
matter inserted in any pleading; or (2) strike out all or any part of any
pleading not drawn or filed in conformity with the laws of California, a court
rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a
pleading which is not essential to the claim is surplusage; probative facts are
surplusage and may be stricken out or disregarded”].)
“Liberality in permitting amendment
is the rule, if a fair opportunity to correct any defect has not been given.” (Angie
M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of
discretion for the court to deny leave to amend where there is any reasonable
possibility that plaintiff can state a good cause of action. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to
show in what manner plaintiff can amend the complaint,
and how that amendment will change the legal effect of the
pleading. (Id.)
MEET
AND CONFER
Before filing a demurrer or motion to strike, the moving party must meet
and confer in person or by telephone with the party who filed the pleading to
attempt to reach an agreement that would resolve the objections to the
pleading. (CCP §§ 430.41, 435.5.) Counsel’s declaration regarding a single
email sent to Plaintiff’s counsel does not satisfy CCP § 430.41(a)’s
requirement that the parties meet and confer in person or by telephone.
(Ferrante-Alan Decl. ¶¶ 2-3.) On this occasion, the Court will proceed to address
the merits of the demurrer despite the insufficiency of the meet and confer.
The Court cautions the parties that a code-compliant meet and confer effort is
required for each demurrer and motion to strike on subsequent pleadings.
Analysis
Statute of
Limitations
Defendant
argues that the FAC is barred by the statute of limitations since more
than two years has passed since the alleged incident and her claim in the FAC
against Defendant does not relate back to the original complaint named against
a different defendant.
Under Code of Civil Procedure
section 335.1, the statute of limitations on personal injury actions is two
years. “A
complaint showing on its face the cause of action is barred by the statute of
limitations is subject to general demurrer.” (Basin Construction Corp. v.
Department of Water & Power (1988) 199 Cal.App.3d 819, 823.) When
a complaint “merely shows that the action may have been barred,”
however, no demurrer will lie. (Los Angeles County v. Security First
National Bank of Los Angeles (1948) 84 Cal.App.2d 575, 580.)
Thus, when it is unclear on the face of a complaint whether the cause of action
pleaded is barred by the statute of limitations, the ambiguity is to be resolved
in favor of the non-demurring party.
Generally, an amended complaint that
adds a new defendant does not relate back to the date of filing the original
complaint and the statute of limitations is applied as of the date the amended
complaint is filed, not the date the original complaint is filed. CCP
section 474 provides an exception where a fictitious defendant named in the
original complaint as to whom a cause of action was stated in the original
complaint. If the requirements of CCP section 474 are satisfied, the
amended complaint substituting a new defendant for a fictitious defendant filed
after the statute of limitations has expired is deemed filed as of the date the
original complaint was filed.” (Woo v. Superior Court (1999) 75
Cal.App.4th 169, 176.) For an amended complaint to relate back to the
original complaint as to parties named therein by their true names, it must:
(1) rest on the same general set of facts as the original complaint; and (2)
refer to the same accident and same injuries as the original complaint. (CCP §
474; Barrington v. A. H. Robins Co. (1985) 39 Cal.3d 146, 150.) “The
test is whether the two complaints relate to the same general set of facts. If
they do, the relation back doctrine applies.” (Lamont v.
Wolfe (1983) 142 Cal.App.3d 375, 381 [citation omitted].)
Here, there is no reasonable dispute
that the relation back doctrine would apply. First, it is undisputed that the
two complaints relate to the same set of facts, accident and injuries. Second,
the first complaint did provide an incorrect/fictitious name for Defendant.
Defendant claims that it was initially not named in this lawsuit. This is
only technically true. On October 25, 2021, Defendant specially
appeared, and moved to quash service of summons. The Court granted Defendant’s
unopposed motion. In part, the Court noted that Defendant was not named by his
its name, and thus not a proper party to the action. (Fireman’s Fund Ins.
Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135; see McClatchy
v. Coblentz, Patch, Duffy & Bass, LLP (2016) 247 Cal.App.368, 375 [“… A
service upon one not named in a complaint does not confer jurisdiction to
proceed upon the complaint against him, and a motion to quash is proper.”].) On
December 8, 2021, Plaintiff filed an “incorrect name” amendment, amending “Uber
Jump Scooters” to be designated “Uber Technologies, Inc.” Plaintiff followed
with the FAC on December 21, 2021. Thus,
Defendant was named under a fictitious name in the original complaint.
Defendant’s
cited case does not support their position. (Ingram v. Superior Court
(1979) 98 Cal.App.3d 483, 491-492.) Ingram
highlights that in the case of substitution of a named defendant for a
fictitiously named and charged defendant, great liberality is allowed. (Id.
at 492) Critically, it “unequivocally” appeared that plaintiff had not intended
to direct the action against the decedent or his estate until his discovery
that the liability of defendant owner of the vehicle driven by the decedent was
limited statute. (Id.) The plaintiff had alleged negligence on the part
of the decedent in the original complaint, and plaintiff's pretrial statement
defined decedent’s negligence as an issue, thus showing the plaintiff’s clear
intention not to pursue a claim against the newly-added party.
Here,
on the other hand, Plaintiff named an “Uber” entity and served Defendant based
on that incorrect name. While that name was incorrect, Plaintiff showed a clear
intention to pursue a claim against Defendant throughout this suit. Simply put,
Plaintiff's proposed amendment sought to correct an honest and non-prejudicial mistake
of fact in the naming of a party. Under liberal amendment policies, the Court
is not inclined to sustain the demurrer on these grounds.
Uncertainty
CRC, rule 2.112 requires each cause
of action be numbered separately and the nature of the claim asserted. The “failure
to comply with rule 2.112 presumably renders a complaint subject to a motion to
strike, or a special demurrer for uncertainty.” (Grappo v. McMills
(2017) 11 Cal.App.5th 996, 1014.)
Plaintiff did not follow rule 2.112.
Plaintiff claims a number of causes of action, but does not separately plead
them. Thus, Defendant cannot reasonably respond to the complaint, and the
demurrer for uncertainty must be sustained.
The
motion to strike is moot by ruling on demurrer. That said, the Court will
require that Plaintiff not include irrelevant or extraneous material. The
complaint must contain “a statement of the facts constituting the cause of
action, in ordinary and concise language.” (CCP § 425.10.) As stated above,
Plaintiff need only state the facts constituting the cause of action, or the
“ultimate facts.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531,
550.) “It is both improper and insufficient for a plaintiff to simply plead the
evidence by which he hopes to prove such ultimate facts.” (Careau & Co.
v. Security Pac. Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1390.) Plaintiff’s
Attachment includes improper allegations of rhetorical questions regarding unrelated
grievances, opinions on the e-scooter business, facts about litigation in other
cases, irrelevant matters such as Amazon’s “analytics-based philosophy.”
Accordingly,
Defendants’ demurrer is SUSTAINED with leave to amend as to all causes of
action.