Judge: Peter A. Hernandez, Case: 23PSCV03472, Date: 2024-04-04 Tentative Ruling

Case Number: 23PSCV03472    Hearing Date: April 4, 2024    Dept: K

Defendant Jesus Camacho’s Demurrer to Plaintiff Brandy Camacho’s Complaint for Damages is SUSTAINED. The court will hear from counsel for Plaintiff as to whether leave to amend is requested, and as to which cause(s) of action, and will require an offer of proof if so.

Background   

Plaintiff Brandy Camacho (“Plaintiff”) alleges that her father, Jesus Camacho (“Defendant”), neglected and abused her while she was a minor.

On November 8, 2023, Plaintiff filed a complaint, asserting a cause of action against Defendant and Does 1-10 for:

1.      Negligent Child Abuse

A Case Management Conference is set for April 4, 2024.

Legal Standard

A demurrer may be made on the grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action and/or is uncertain. (Code Civ. Proc., § 430.10, subds. (e) and (f).) A demurrer may also be made on the basis that there is a defect or misjoinder of parties. (Code Civ. Proc., § 430.10, subd. (d).)

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].)

Discussion

Defendant demurs to Plaintiff’s complaint, per Code of Civil Procedure § 430.10, subdivisions (d)-(f), on the basis that it fails to join a mandatory party, fails to state facts sufficient to constitute a cause of action and is uncertain.

Defendant first asserts that Plaintiff has failed to join her mother, Gabriela Camacho (“Gabriela”), and that Gabriela is a mandatory party. A demurrer made on this ground, however, lies only where it appears from the face of the complaint or judicially noticed matters that a third person is a “necessary” or “indispensable” party to the action and must be joined before the action may proceed. This is not the case here. Defendant’s references to Gabriela are extrinsic to the face of the complaint and are not the subject of judicial notice. Defendant’s demurrer made on the basis of subdivision (d) is overruled.

“The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages.” (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5^th 680, 687.) It does not appear to the court that Plaintiff has pled the elements of duty, breach or causation.

Defendant’s demurrer is sustained on the basis of subdivision (e).