I. BACKGROUND 

Plaintiff Peter Dang (“Plaintiff”) filed this action against defendants City of Los Angeles, NTI-CA, Inc., Marriot International, Inc. dba Los Angeles Airport Marriot, Naville Andrew McGlover, and and Does 1 to 100 for injuries arising from a motor vehicle incident on March 3, 2020 at Terminal 5 of 400 World Way, Los Angeles, CA 90045. (Compl. at p. 4.) The complaint sets forth two causes of action for (1) motor vehicle negligence and (2) breach of statutory duty (Motor Vehicle Code 17001, 17002, 17150) against all named defendants and Does 1 to 100.  

Plaintiff filed an amendment to complaint naming Alejandra Nevarez (“Nevarez”) as Doe 2.  

Nevarez (Doe 2) now demurs to Plaintiff’s complaint in its entirety on the grounds that she was improperly joined as a defendant in this action. Nevarez further brings a motion to strike Plaintiff’s prayer for prejudgment interest. Plaintiff opposes the motion, and Nevarez filed a reply.  

II. DEMURRER 

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP § 430.41(a).)   

The Court finds Nevarez fulfilled this requirement prior to filing its demurrer. (Boyd. Decl. ¶ 4). 

A demurrer is a pleading used to test the legal sufficiency of other pleadings.  It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer, or cross-complaint).  (CCP §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Donabedian, 116 Cal.App.4th at 994.) 

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.)  No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].) 

The first cause of action of the complaint alleges that the named defendants and Does 1 to 100 negligently operated, controlled, entrusted, managed, maintained, inspected and repaired the motor vehicle, such that it caused Plaintiff’s injuries on March 3, 2020 at or near Terminal 5 at 500 World Way, Los Angeles, CA 90045. (Compl. at p. 4.) The second cause of action re-alleges and incorporates the factual allegations, and alleges a breach of statutory duty under Motor Vehicle Codes 17001, 17002, and 17150. (Compl. at p. 6.)  

Nevaraz argues that she is not a proper defendant in this action, because she was merely a passenger of Plaintiff’s vehicle at the time of the incident. Nevaraz argues she has been prejudiced by having to defend herself in this action. However, the Court’s review on demurrer is limited to the face of the pleading and all matters judicially noticeable. (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1144 [“‘[D]efendants cannot set forth allegations of fact in their demurrers which, if true, would defeat plaintiff's complaint.’”].) The function of a demurrer is to test the legal sufficiency of a complaint, not the truthfulness of the allegations. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) Thus, for the purposes of this demurrer, “No matter how unlikely or improbable, plaintiff's allegations must be accepted as true for the purpose of ruling on the demurrer.” (Kerivan v. Title Ins. & Trust Co. (1983) 147 Cal.App.3d 225, 229.)  

Here, the complaint alleges generally that each defendant, including Does 1 to 100, negligently operated, controlled, and managed the motor vehicle involved in the incident. Alleging conduct of defendants and each of them was sufficient to charge each with liability. (Lee v. Escrow Consultants, Inc. (1989) 210 Cal. App. 3d 915, 925.) Further, Nevarez’s moving papers is able to articulate that Plaintiff is alleging he was in the loading zone of one of the terminals when his vehicle was struck by an airport shuttle bus owned and operated by entity defendants, and driven by Naville Andrew McGlover. (Mot. 4:4-8) Nevarez is apparently aware of the dispute underlying this action, such that she is challenging the truth of the allegations and applicability of the motor vehicle codes against her on a demurrer. In terms of the complaint not specifying her involvement in the incident, despite the parties’ awareness outside the pleading, any ambiguities can be clarified in discovery and there is no requirement that all factual allegations known to the plaintiff must be specifically pled for a general negligence claim. (See Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822.) 

In terms of the contention that the pleading is uncertain, "A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures." (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)  "The objection of uncertainty does not go to the failure to allege sufficient facts." (Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459). "A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond –i.e., he or she cannot reasonable determine what issues must be admitted or denied, or what counts or claims are directed against him or her."  (Weil & Brown, Civil Procedure Before Trial (The Rutter Group) § 7:85 (emphasis in original).) As previously provided, Nevaraz is aware of the basis of the complaint, such that she is able to reasonably respond to the allegations. A demurrer should not be sustained on the ground of uncertainty regarding which defendant committed the alleged conduct, where the pleading alleged that all defendants were responsible. (Dillard v. County of Kern (1943) 23 Cal. 2d 271, 279.) 

Accordingly, the demurrer is OVERRULED.  

III. MOTION TO STRIKE 

Cal. Civ. Code § 3288 provides: “In an action for the breach of an obligation not arising from contract, and in every case of oppression, fraud, or malice, interest may be given, in the discretion of the jury.” Prejudgment interest is not permitted in terms of Plaintiff’s general damages, since such damages are not readily subject to precise calculation. However, to the extent that Plaintiff claims special/economic damages, prejudgment interest is permitted in the discretion of the factfinder.  (See Civ. Code § 3288; see also Greater Westchester Homeowners Ass'n v. City of Los Angeles (1979) 26 Cal.3d 86, 102-03 [“Using recognized and established techniques a fact finder can usually compute with fair accuracy the interest on a specific sum of money, or on property subject to specific valuation… However, damages for the intangible, noneconomic aspects of mental and emotional injury are of a different nature.”]; In re Pago Pago Aircrash of January 30, 1974 (C.D. Cal. 1981) 525 F.Supp. 1007, 1018 [“The Greater Westchester Court, therefore, made it clear that the trier of fact, in its discretion, may award prejudgment interest on those portions of the verdict that constitute recovery for paid medical expenses, paid funeral expenses, and lost property.”].) In relevant part, the complaint alleges Plaintiff suffered medical expenses, property damages, wage loss, and loss of use of property. As such, Plaintiff may potentially recover prejudgment interest.  

Accordingly, the motion to strike prejudgment interest is DENIED. 

III. CONCLUSION 

Nevarez’s demurrer to the complaint is OVERRULED.  

Nevarez’s motion to strike prejudgment interest from the complaint is DENIED. 

 Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 15th day of May 2024