Judge Matthew C. Braner, Case Number: 37-2022-00045764-CU-PO-CTL, Date: 2024-06-28 Tentative Ruling

Judge: Matthew C. Braner, Case: 37-2022-00045764-CU-PO-CTL, Date: 2024-06-28 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 27, 2024

06/28/2024 09:00:00 AM C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited PI/PD/WD - Other Demurrer / Motion to Strike 37-2022-00045764-CU-PO-CTL VALENCIA VS HEREDIA [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant Michael Hughes's demurrer to the second amended complaint is OVERRULED.

Defendant Hughes's motion to strike is DENIED.

Defendant Lisbeth Heredia's demurrer is OFF CALENDAR, as it was filed without a reserved hearing date. (San Diego Superior Court Local Rules, Rule 2.1.19.A ['Failure to reserve a date for hearing will result in the demurrer, motion, ex parte application, or order to show cause hearing not being heard.'].) The court will set a hearing date for Defendant Herrera's demurrer for August 9, 2024, at 9:00 a.m. in this department.

A demurrer shall be sustained if the complaint 'does not state facts sufficient to constitute a cause of action.' (Code Civ. Proc., � 430.10(e).) To test the sufficiency of a cause of action, the court treats as true 'all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.' (Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010.) The court may also consider matters that have been judicially noticed. (Id.) The court shall give the complaint a 'reasonable interpretation, reading it as a whole and its parts in their context.' (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 'The complaint must be liberally construed and survives a general demurrer insofar as it state, however inartfully, facts disclosing some right to relief.' (Longshore v. County of Ventura (1979) 25 Cal.3d 14, 22.)

Defendant Hughes demurs to the second amended complaint, and moves to strike portions of SAC related to survivorship allegations, on the grounds that Plaintiffs' survivorship claim for negligence (now brought by the daughter of Decedent Mario Cardoso Velazques as the representative of his estate) is barred by the two-year statute of limitations. Defendant Hughes argues the original complaint filed on October 25, 2022 did not contain a survivor claim, as it included a single cause of action for 'Negligence -Wrongful Death and Negligent Infliction of Emotional Distress.' Defendant Hughes further argues the original complaint alleged Plaintiff Sylvia Valencia had standing to represent Decedent's estate, but in fact she did not, and the first amended complaint (at which time Decedent's daughter was alleged to represent his estate) was filed after expiration of the statute of limitations. The court rejects these arguments.

First, the court has little trouble construing the change in representative from Plaintiff Valencia to Plaintiff Abigail Romero as a permissible substitution, as Ms. Romero has always been a party to this case as a plaintiff. Moreover, had Defendant Hughes demurred to the original complaint on the grounds that Plaintiff Valencia lacked capacity to sue on behalf of Decedent, it likely would have been sustained, but Calendar No.: Event ID: TENTATIVE RULINGS

3113653 36 CASE NUMBER: CASE TITLE: VALENCIA VS HEREDIA [IMAGED] 37-2022-00045764-CU-PO-CTL leave to amend to substitute a proper representative would have been permitted. (See, e.g., Klopstock v. Superior Court in and for City and County of San Francisco (1941) 17 Cal.2d 13, 19 [amendment permitted to substitute wrong representative for derivative claim with correct representative, because the claim was held by and for the benefit of the corporation 'to enforce against the defendants exactly the same liability'].) Second, both the first amended complaint and the second amended complaint relate back to the original complaint. The court agrees the original complaint was poorly pleaded and somewhat confusing, as it conflated separate and distinct claims, and failed to include allegations related to a survivor claim under the cause of action heading. However, it unequivocally included allegations related to a survivor claim, and in fact titled such allegations under the heading 'SURVIVORSHIP ACTION.' (Complaint, �� 5-7.) Of particular note, the complaint includes an allegation that on November 5, 2020, and prior to his death, Decedent 'suffered damages, including pre-death pain, suffering, and distress from physical injuries inflicted on him by Defendants including, and without limitation, a gunshot wound to the abdomen.' (Complaint, � 6.) These allegations readily distinguish this case from the facts in Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256. In that case, the plaintiffs filed their original complaint 'in propia persona' and completely absent from that complaint were any allegations related to a potential survivor claim. (Id. at pp. 1266-67 ['Most notably, while the pleading alleged that defendants had proximately caused the 'wrongful death' of Gilbert Quiroz, an element of plaintiff's wrongful death claim, it did not allege damages for any injury to him or seek any relief on his behalf.'].) Thus, the first amended complaint and second amended complaint rest on the same general facts as the original complaint, involve the same injuries, and refer to the same instrumentality, and Plaintiff Romero, as the substituted representative of Decedent's estate, does not seek to 'enforce an independent right or to impose greater liability upon the defendant.' (Id. at p. 1278.) Accordingly, Defendant Hughes' demurrer is overruled.

As to the motion to strike, the majority of the allegations sought to be stricken are bundled up in the arguments concerning survivorship. Thus, the motion is denied as to those portions of the SAC. The motion is also denied as to the allegations concerning Defendant Hughes's conduct leading up to the death of Decedent on November 5, 2020, which the court, like Plaintiffs, considers relevant contextual facts related to an ongoing pattern of purportedly unlawful conduct that culminated in Decedent's death.

The motion is further denied as to the negligence claim made by Plaintiff Valencia; although she lacks standing to represent Decedent's estate or bring a wrongful death claim, the first cause of action for negligence includes a direct claim of negligence by Defendants against Plaintiff Valencia.

However, Plaintiffs concede they have not alleged a statutory or contractual basis to seek attorneys' fees. Accordingly, the motion is granted as to the prayer for attorneys' fees and costs.

If the tentative is confirmed, the minute order is the order of the court.

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