Judge: Melissa R. Mccormick, Case: Chavarria v. Kieu, Date: 2022-09-15 Tentative Ruling

Defendant KN Kieu & AM Tran Living Trust’s Demurrer to First Amended Complaint

Defendant KN Kieu & AM Tran Living Trust (the “Trust”) demurs to plaintiff Renee Chavarria’s first amended complaint.  For the following reasons, the Trust’s demurrer is sustained.

In ruling on a demurrer, a court must accept as true all allegations of fact contained in the complaint.  Blank v. Kirwan (1985) 39 Cal.3d 311, 318.  A demurrer challenges only the legal sufficiency of the affected pleading, not the truth of the factual allegations in the pleading or the pleader’s ability to prove those allegations.  Cundiff v. GTE Cal., Inc. (2002) 101 Cal.App.4th 1395, 1404-05.  Questions of fact cannot be decided on demurrer.  Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.  Because a demurrer tests only the sufficiency of the complaint, a court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice.  Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 n.7.

Plaintiff sued the Trust, not its trustee.  A trust itself can neither sue nor be sued in its own name.  Instead, the real party in interest in litigation involving a trust is always the trustee.  Powers v. Ashton (1975) 45 Cal.App.3d 783, 787-88; see also Estate of Bowles (2008) 169 Cal.App.4th 684, 691 (“As a general rule, the trustee is the real party in interest with standing to sue and defend on the trust's behalf.”). 

The Trust demurred to plaintiff’s original complaint on this same ground.  The court sustained the Trust’s demurrer with leave to amend to enable plaintiff to name the trustee should plaintiff desire to do so.  See 5/12/22 Order.  The court’s order stated:  “Should plaintiff desire to file an amended complaint naming the trustee, plaintiff must file and serve it by May 23, 2022.”  Id.

Plaintiff filed its first amended complaint on May 24, 2022.  Plaintiff did not name the trustee, but rather again sued the Trust.  The court thus concludes plaintiff did not desire to file an amended complaint naming the trustee.  The Trust’s demurrer to the first amended complaint is therefore sustained without leave to amend.

Defendant KN Kieu & AM Tran Living Trust to give notice.

Defendants Viet Kieu, Kevin Kieu, and KN Kieu & AM Tran Living Trust’s Motion to Strike

Defendants Viet Kieu, Kevin Kieu, and KN Kieu & AM Tran Living Trust (the “Trust”) move to strike portions of plaintiff Renee Chavarria’s first amended complaint.  In its concurrent ruling, the court sustained the Trust’s demurrer to the complaint.  The Trust’s motion to strike is therefore moot.  For the following reasons, Viet Kieu and Kevin Kieu’s motion to strike is granted.

Defendants move to strike plaintiff’s allegations of willful and conscious disregard and demands for exemplary damages (First Amended Complaint, Premises Liability ¶ L-1 (last paragraph); First Amended Complaint, General Negligence ¶ 6).  To withstand a motion to strike exemplary damages, a plaintiff must plead ultimate facts showing the plaintiff is entitled to such relief.  Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166; see also Smith v. Superior Ct. (1992) 10 Cal.App.4th 1033, 1042 (complaint “devoid of any factual assertions supporting a conclusion petitioners acted with oppression, fraud or malice” subject to motion to strike punitive damages allegations).

Plaintiff’s first amended complaint does not allege any facts supporting a conclusion defendants acted with oppression, fraud, or malice, or with willful or conscious disregard.  Defendants’ motion to strike is granted.

The court granted defendants’ prior motion to strike the same allegations from plaintiff’s original complaint with leave to amend.  See 5/12/22 Order.  Plaintiff’s first amended complaint has not remedied the deficiencies in the punitive damages allegations nor has plaintiff demonstrated that it could do so.  Defendants’ motion to strike is therefore granted without leave to amend.

Defendants Viet Kieu and Kevin Kieu are ordered to file and serve answers to the first amended complaint by September 26, 2022.

Defendants Viet Kieu and Kevin Kieu to give notice.