Judge: Michael E. Whitaker, Case: 21STCV32595, Date: 2022-07-28 Tentative Ruling

Case Number: 21STCV32595    Hearing Date: July 28, 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

MOTIONS

Plaintiff Rosio Lus Mena sued defendants Richard Sena, Lindsay Celeste, and Allstate Insurance Company (“Allstate”) based on a motor vehicle collision.  Allstate demurs to Plaintiff’s entire first amended complaint as well as the first through third causes of actions individually.  Plaintiff opposes the demurrer.

ANALYSIS

1. DEMURRER

    

   “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.)  

1. Misjoinder

    

   Anyone who has a “claim, right, or interest adverse to them in the property or controversy which is the subject of the action” may be joined as defendant.  (Code Civ. Proc., § 379, subd. (a)(2).)  A demurrer for misjoinder will lie only where it appears from the face of the complaint or matters judicially noticeable that either plaintiffs lack sufficient unity of interest (Code Civ. Proc., § 378) or there is no common question of law or fact as to the defendants (Code Civ. Proc., § 379).  (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 7:78.)

    

   Here, Allstate demurs to the first amended complaint for misjoinder of Allstate as a party to the action.  Specifically, Allstate argues Plaintiff has improperly named Allstate as a party because negligence is not generally a cognizable cause of action against Allstate as an insurer.  Allstate therefore asserts that it must be dismissed from the action.  In essence, Allstate’s argument speaks more to whether Plaintiff has alleged facts sufficient to constitute a cause of action against Allstate rather than misjoinder.  In other words, Allstate has neither argued nor shown that, from the face of the complaint, there is no common question of law or fact as to Allstate and the other defendants in the action. Accordingly, the Court overrules the demurrer on the basis of misjoinder.

    

2. Uncertainty

    

   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, Allstate next argues that Plaintiff’s allegations in the first amended complaint are so ambiguous as to Allstate and the other named defendants that the difficulty in deciphering the pleadings hinders their ability to defend the action.  The Court agrees. The Court finds Plaintiff’s allegations in the first amended complaint are so unclear that Allstate cannot reasonably determine what issues must be admitted or denied, or what claims are directed against it.  The Court therefore sustains the demurrer as uncertain. 

    

3. Legal Capacity to Sue

    

   When a person who lacks legal capacity to make decisions has been appointed as a party in a pending action or proceeding, “that person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court[.]”  (Code Civ. Proc., § 372, subd. (a)(1).)  A guardian ad litem may be appointed for an adult lacking the legal capacity to make decisions only if (i) he or she consents to the appointment or (ii) upon notice and hearing.  (In re Jessica G. (2001) 93 Cal.App.4th 1180, 1187-1188.)  “At a minimum, the court should make an inquiry sufficient to satisfy it that the [party] is, or is not, competent, i.e., whether the [party] understands the nature of the proceedings and can assist the attorney in protecting his/her rights.  The court’s decisions on the issue should be stated on the record.”  (Ibid.)

    

   Here, Plaintiff identifies herself as an incompetent adult in Section 3a of the first amended complaint and raises further issues as to her competency in the remainder of her pleadings.  (See First Amended Complaint, pp. 2, 6.)  Thus, from the face of the complaint, Plaintiff’s allegations would show that she lacks legal capacity to sue and must be appointed a guardian ad litem through which she can maintain the action.

CONCLUSION AND ORDER

Therefore, the Court sustains Allstate’s demurrer to the first amended complaint with leave to amend.  The Court orders Plaintiff to file and serve an amended complaint within 60 days of notice of the Court’s orders which will provide Plaintiff with ample time to seek the appointment of a guardian ad litem if she holds one is warranted. 

Allstate shall provide notice of the Court’s ruling and file a proof of service of such.