Judge: Michael E. Whitaker, Case: 20STCV12006, Date: 2022-08-15 Tentative Ruling

Case Number: 20STCV12006    Hearing Date: August 15, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiffs Gustavo Garcia Rodriguez and Ellyn Brizzo (collectively, “Plaintiffs”) sued defendant Dennis Jaffee based on a motor vehicle collision.  Defendant demurs to Plaintiffs’ sole cause of action for negligence. Plaintiffs oppose the demurrer.

Plaintiffs object to the demurrer on two grounds concerning notice.  First, Plaintiffs assert Defendant failed to provide adequate notice because he did not file and serve the demurrer at least 16 court days before the date scheduled for hearing.  The Court agrees. 

Defendant’s proof of service filed in connection with the demurrer indicates service on Plaintiffs on July 26, 2022, by mail.  Accordingly, the Court finds the demurrer to be procedurally defective per Code of Civil Procedure section 1005.  (See Code Civ. Proc., §§ 1005, subd. (b) [all moving and supporting papers shall be served and filed at least 16 court days before the hearing, plus 5 calendar days for service by mail within California].) 

Second, Plaintiffs object to Defendant’s notice of the demurrer, or perhaps more accurately, the demurrer itself, for failing to state the cause of action to which Defendant demurs.  Again, the Court agrees. 

Per California Rules of Court rule 3.1320, “[e]ach ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.”  (Cal. Rules of Court, rule 3.1320, subd. (a).)  Here, Defendant’s demurrer demurs to the “First Cause of Action for Breach of Written Contract.”  Plaintiffs’ complaint contains no such cause of action.  The Court notes, however, that Defendant’s memorandum of points and authorities pertains to the correct cause of action for negligence in Plaintiffs’ complaint.  

Despite the procedural deficiencies, the Court notes that Plaintiffs have nevertheless filed an opposition to the demurrer with full briefing on the merits.  The Court therefore finds that Plaintiffs will not be prejudiced by the Court’s consideration of the merits of Defendant’s demurrer, and exercises its discretion to do so.

ANALYSIS

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her. (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.)

Here, Defendant argues that the first cause of action fails to allege negligent conduct on the part of Defendant and is unclear because paragraph 10 of the complaint attributes the alleged negligent conduct to multiple defendants, i.e., “defendants and DOE Defendants 1 through 50.”  (See Complaint, ¶ 10.)  In opposition, Plaintiffs contend the complaint alleges facts sufficient to constitute a cause of action for negligence against Defendant and is not so bad that Defendant cannot reasonably respond.  The Court agrees.

“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 834 [cleaned up].) “Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are limits to the generality with which a plaintiff is permitted to state his cause of action, and the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.” (Guilliams v. Hollywood Hospital (1941) 18 Cal.2d 97, 1010 [cleaned up].)

No matter how unlikely or improbable, the Court must accept a plaintiff’s allegations as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.)  When a pleader is in doubt about what actually occurred or what can be established by the evidence, he or she may plead in the alternative and make inconsistent factual allegations. (Mendoza v. Rast Produce, Inc. (2006) 140 Cal.App.4th 1395, 1402.)

For pleading purposes, Plaintiffs’ allegations are sufficient to attribute liability for the alleged negligent conduct to Defendant and any other defendants to whom liability may be attributed either directly or vicariously as such facts may arise during the course of the litigation.

CONCLUSION AND ORDER

Therefore, the Court overrules Defendant’s demurrer to Plaintiffs’ complaint.  The Court orders Defendant to file and serve and answer to the complaint within 20 days of the hearing.  

Defendant shall provide notice of the Court’s orders and file a proof of service of such.