Judge: Mark E. Windham, Case: 24STLC00500, Date: 2024-05-15 Tentative Ruling
Case Number: 24STLC00500 Hearing Date: May 15, 2024 Dept: 26
Jenkins v. Ju, et al.
DEMURRER;
MOTION TO STRIKE
(CCP §§ 430.31, et seq., 435, et seq.)
TENTATIVE RULING:
Defendants
Rebecca Ju and Paul Ju’s Demurrer to the Second Amended Complaint is SUSTAINED
WITHOUT LEAVE TO AMEND.
Defendants
Rebecca Ju and Paul Ju’s Motion to Strike Portions of the Second Amended Complaint
is PLACED OFF CALENDAR AS MOOT.
ANALYSIS:
Plaintiff John
Jenkins (“Plaintiff”), in pro per, filed the instant action against Defendants
Rebecca Ju and Paul Ju (“Defendants”) on January 25, 2024. The Complaint
alleged causes of action for motor vehicle negligence, negligence, and
negligent entrustment. On February 1, 2024, the Complaint was superseded by the
First Amended Complaint, which alleged “Senior Citizen Rights BPC § 13742” and
“Elder Abuse § 1780.” Finally, Plaintiff filed a Second Amended Complaint on
February 27, 2024 that alleges a violation of Insurance Code section 2695.7,
subdivision (b)(3).
Defendants filed
the instant Demurrer to, and Motion to Strike Portions of, the Second Amended
Complaint on April 17, 2024. No opposition has been filed to date.
Discussion
Demurrer to Second Amended Complaint
Defendants demur to the elder abuse and violation of Insurance Code
section 2695.7 causes of action on grounds of failure to allege facts
sufficient to state a cause of action. (Citing Code Civ. Proc., § 430.10, subd.
(e).) The Demurrer is accompanied by a
meet and confer declaration that complies with Code of Civil Procedure section
430.41. (Declaration of Demurring Party, ¶¶3-7.)
The Second Amended
Complaint simply alleges Defendants violated Insurance Code section 2695.7
through their insurance company by not paying the cost of total repairs for
damage caused when Defendant Rebecca Ju rear-ended Plaintiff. (SAC, p. 4.)
As pointed out in
the Demurrer, these allegations do not support either cause of action. There is
no allegation of how this conduct meets the definition of elder abuse, which “occurs
when any person or entity takes, secretes, appropriates, or retains real or
personal property of an elder adult to a wrongful use or with an intent to
defraud, or both.” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156,
174 [citing Welf. & Inst. Code, § 15610.30].) There are no facts alleged to
show that this conduct amounts to a taking, secreting, appropriating, or
retention of property, that Defendants did so for wrongful use or with
fraudulent intent, or even that Plaintiff is an elder adult. Nor is there a
private right of action under 10 Code of Regulations section 2695.7,
subdivision (b)(3), which only provides a process for an insured to give notice
to the Department of Insurance if a claim has been wrongfully denied.
Therefore, the Second Amended Complaint fails to allege any
cause of action against Defendants, whose Demurrer is sustained.
Motion to Strike Portions of Second Amended Complaint
Defendants’ Motion to Strike is deemed moot in light of the ruling on the
Demurrer.
Leave to Amend
Leave to amend must be allowed
where there is a reasonable possibility of successful amendment, however, the
burden is on the complainant to show the Court that a pleading can be amended
successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Plaintiff
has not filed an opposition to the Demurrer or Motion to Strike demonstrating a
possibility of successful amendment. Therefore, leave to amend is denied.
Conclusion
Defendants Rebecca
Ju and Paul Ju’s Demurrer to the Second Amended Complaint is SUSTAINED WITHOUT LEAVE
TO AMEND.
Defendants Rebecca Ju and Paul
Ju’s Motion to Strike Portions of the Second Amended Complaint is PLACED OFF
CALENDAR AS MOOT.
Moving party to give notice.