SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Plaintiff Steffi Pool (“Pool”) filed this action against defendant Jacklin Kevorkova (“Kevorkova”) for damages arising from an automobile collision.  The complaint alleges a single cause of action for general negligence.  On October 13, 2023, Kevorkova filed a cross-complaint against Pool, alleging causes of action for motor vehicle and general negligence.   

Pool now demurs to Kevorkova’s cross-complaint, arguing the cross-complaint lacks sufficient facts to constitute a claim. The motion is unopposed. 

 

II. Demurrer 

A. Meet and Confer 

Under Code of Civil Procedure section 430.41, subdivision (a), before filing a demurrer, the objecting party shall meet and confer with the opposing party for the purpose of determining whether an agreement can be reached to resolve the objections to the pleading. 

The Court finds Pool has failed to meet and confer, because there is no declaration filed with the motion, nor any reference to any meet and confer efforts in the moving papers. However, an insufficient meet and confer process is not grounds to overrule or sustain a demurrer.  (Code Civ. Proc., § 430.41(a)(4).) Therefore, the Court will address Pool’s brief motion on the merits. 

 

B. Discussion 

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].) 

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery.  (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.)  The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action.  (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]). 

A demurrer can only be sustained when it disposes of an entire cause of action.  (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.) 

Here, Pool’s Notice provides that he will demur to “each and every cause of action” contained in the cross-complaint. The moving papers states he is demurring to a claim for indemnity, and copies and pastes paragraphs identified as (a)-(c). Kevorkova utilized judicial form cross-complaint JPLD-PI-002 [Rev. January 1, 2007], in which the referenced (a)-(c) paragraphs by Pool is part of the form. Kevorkova’s cross-complaint alleges two causes of action, for motor vehicle and general negligence. On its face, these two causes of action plead sufficient facts. However, Pool appears to be demurring to the indemnification language contained in JPLD-PI-002 [Rev. January 1, 2007] that was not marked by Kevorkova. Because Kevorkova is not alleging any cause of action for indemnification, Pool has no grounds to demur for a cause of action not actually pled. The mere fact that JPLD-PI-002 [Rev. January 1, 2007] contains an option for indemnification is immaterial when Kevorkova has not utilized this option, and Kevorkova is not bringing any cause of action for indemnification.  

 

Based on the foregoing, Pool’s demurrer to Kevorkova’s cross-complaint is OVERRULED.  

 

Moving party is ordered to give notice.