Judge: Melvin D. Sandvig, Case: 22CHCV00871, Date: 2023-01-03 Tentative Ruling

Case Number: 22CHCV00871    Hearing Date: January 3, 2023    Dept: F47

Dept. F47

Date: 1/3/23

Case #22CHCV00871

DEMURRER & MOTION TO STRIKE TO THE ORIGINAL COMPLAINT

Demurrer filed on 11/18/22.

MOVING PARTY: Defendant State Farm Mutual Automobile Insurance Company

RESPONDING PARTY: Plaintiff Biron Gallardo Cerrilla

NOTICE: ok

Demurrer is to the entire complaint which does not set forth any specific cause of action.

RELIEF REQUESTED IN MOTION TO STRIKE: An order striking Plaintiff’s complaint in its entirety.

RULING: The demurrer is sustained without leave to amend. 

On 10/13/22, Plaintiff Biron Gallardo Cerrilla (Plaintiff), representing himself, filed a document titled “Complaint Form” which consists of two unnumbered paragraphs that do not set forth any specific cause(s) of action.  Based on the allegations in the “Complaint Form,” it appears that Plaintiff was involved in an automobile accident which resulted in a claim being made to Defendant State Farm Mutual Automobile Insurance Company (Defendant).  However, it cannot be discerned from the “Complaint Form” whether Plaintiff is alleging that he had a policy of insurance with Defendant under which he is making a claim or whether another driver involved in the accident was insured by Defendant.  Based on the allegations, it can only be determined that Plaintiff made a claim for damages to Defendant and Plaintiff was not satisfied with the settlement offered by Defendant. 

As a result, on 11/18/22, Defendant filed and served a demurrer and motion to strike the complaint.  Plaintiff has not opposed or otherwise responded to the demurrer or motion to strike.

The complaint is subject to demurrer because it fails to allege sufficient facts to state a cause of action and because it is uncertain.  CCP 430.10(e), (f).  Based on the allegations in the “Complaint Form,”  it cannot be determined what cause of action (i.e., negligence, breach of contract, fraud, etc.) Plaintiff is attempting to assert.  Additionally, Plaintiff has failed to follow any of the basic pleading requirements such as: setting forth the facts underlying his claims in “ordinary and concise language” (CCP 425.10(a)(1)); identifying the character or nature of the action (CRC 2.111(6)); separating, numbering and/or describing each cause of action (CRC 2.111(6), CRC 2.1112) and/or including a prayer for relief (CCP 425.10(a)(2)).

The fact that Plaintiff is representing himself does not excuse him from the requirements to properly plead a cause of action.  See Rappleyea (1994) 8 C4th 975, 984-985.  Further, it is Plaintiff’s burden to show the manner in which he can amend the complaint and how such amendment will cure the defects therein.  See Goodman (1976) 18 C3d 335,349.  If Plaintiff fails to make such a showing, the Court may sustain the demurrer without leave to amend.  See Lawrence (1985) 163 CA3d 431, 436; Schonfeldt (1998) 61 CA4th 1462, 1465.

As noted above, Plaintiff has failed to oppose the demurrer and/or motion to strike or give any indication as to how he can cure the defects in his pleading.  Therefore, the demurrer is sustained without leave to amend. 

The motion to strike is placed off calendar as moot due to the ruling on the demurrer.