Judge Peter A. Hernandez, Case 19STCV46265 2022-09-08 Tentative Ruling

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Defendant Steve Melnick’s Demurrer to Plaintiff’s Complaint is OVERRULED.

Plaintiff Abel Chavez (“Plaintiff”) alleges as follows: On or about February 1, 2019, Plaintiff was a customer of S&J Pomona, LLC dba Krazy J’s Grill (erroneously sued as Krazy J’s) (“Krazy J’s Grill”) when he was attacked.

On December 26, 2019, Plaintiff filed a complaint, asserting causes of action against Krazy J’s Grill and Does 1-100 for:

On July 2, 2020, Plaintiff filed an “Amendment to Complaint,” wherein “S&J Pomona, LLC” was named in lieu of Doe 1. On August 13, 2021, Plaintiff filed two “Amendment[s] to Complaint,” wherein Steve Melnick (“Melnick”) was named in lieu of Doe 2 and Pomona Fox Theater Master Tenant, LLC (“Pomona Fox Theater”) was named in lieu of Doe 3.

On October 29, 2021, Pomona Fox Theater filed a cross-complaint, asserting causes of action against Krazy J’s Grill and Roes 1-50 for:

On February 28, 2022, this case was transferred from Department 29 of the Personal Injury Court to this instant department.

A demurrer may be made on grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subds. (e).)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Melnick demurs, pursuant to Code of Civil Procedure § 430.10, subsection (e), to the first through fourth causes of action in Plaintiff’s complaint, on the basis that they each fail to state facts sufficient to constitute causes of action.

Melnick asserts that Plaintiff has not adequately pled that Melnick is the alter ego of Krazy J.s Grill. Plaintiff’s complaint, however, does not contain any alter ego allegations. Melnick does not otherwise attack the sufficiency of the causes of action asserted against him.

[1] The demurrer was filed (and electronically served) on January 7, 2022 and set for hearing on February 28, 2022. Again, on February 28, 2022, this case was transferred from Department 29 of the Personal Injury Court to this instant department. On July 18, 2022, the court set the demurrer for hearing on September 8, 2022; notice was waived.