Judge: Maurice A. Leiter, Case: 24STCV01150, Date: 2024-10-22 Tentative Ruling

Case Number: 24STCV01150    Hearing Date: October 22, 2024    Dept: 54

Hearing Date: October 22, 2024

Department 54, Judge Maurice Leiter

Demurrer to Complaint and Motion to Strike

Moving Party: Defendant Ebonie Fong

Responding Party: Plaintiff Leslie Pleitez

T/R:     DEFENDANT’S DEMURRER IS OVERRULED.

THE MOTION TO STRIKE IS GRANTED AS TO THE PRAYERS FOR ATTORNEY’S FEES AND PUNITIVE DAMAGES.

DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

On January 16, 2024, Plaintiff Leslie Pleitez filed a complaint against Defendants Ebonie Fong and William Harrison Kelly asserting one cause of action for negligence. Plaintiff alleges Defendants owned or operated a vehicle while under the influence and collided with Plaintiff’s vehicle, causing Plaintiff personal injury.

ANALYSIS

A. Demurrer to Complaint

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

Defendant Ebonie Fong demurs to the complaint on the grounds that it fails to state sufficient facts and is uncertain.

To plead a cause of action for negligence, one must allege (1) a legal duty owed to plaintiffs to use due care; (2) breach of duty; (3) causation; and (4) damage to plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal. App. 4th 292, 318.) Plaintiff alleges Defendant Fong “and/or” Defendant Kelly owned the vehicle “and/or” operated the vehicle under the influence that collided with Plaintiff’s vehicle. Defendant Fong asserts that the complaint is uncertain because it does not state which Defendant owned the vehicle and which Defendant operated the vehicle. The Court declines to sustain the demurrer on these grounds. Plaintiff may allege ultimate and alternative facts.

Defendant’s demurrer is OVERRULED.

B. Motion to Strike

“Any party, within the time allowed to response to a pleading, may serve and file a notice of motion to strike the whole or any part" of that pleading. (CCP § 435(b)(1).) “The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false or improper matter asserted in any pleading; (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the Court." (CCP § 436.)

Defendant moves to strike the cause of action for negligence, the prayer for attorney’s fees and prayer for punitive damages. The Court will not strike the cause of action for negligence for the reasons stated. The Court agrees, however, that Plaintiff has not alleged entitlement to attorney’s fees or punitive damages. Plaintiff does not allege statutory or contractual entitlement to attorney’s fees, and punitive damages must be alleged with specificity.

The motion to strike is GRANTED as to the prayers for attorney’s fees and punitive damages only.