TENTATIVE RULING

Calendar:    9

Date:          4/7/2023 

Case No: 22 GDCV00995 Trial Date: None Set 

Case Name: Khobiarian v. Jamalpanah, et al.

DEMURRER

MOTION TO STRIKE

 

Moving Party:            Defendant Saba Jamalpanah      

Responding Party: Plaintiff Sahak Khobarian (No Opposition)      

RELIEF REQUESTED:

Sustain demurrer to Second Amended Complaint 

Strike punitive damages   

CAUSES OF ACTION: from Second Amended (Form) Complaint   

1) Motor Vehicle 

2) General Negligence 

SUMMARY OF FACTS:

Plaintiff Sahak Khobiarian alleges that on December 23, 2020, on State Route 134, the Ventura Freeway on the 5 North ramp in Glendale, defendant Saba Jamalpanah was negligent in the operation of a motor vehicle, causing injuries and damages to plaintiff. 

The complaint alleges that plaintiff was lawfully travelling westbound in lane number 5 of the SR-134, and came to a slow stop for traffic ahead and was then rear ended by defendant Antons Kizialo, keeping an unsafe speed.  The SAC alleges that defendant Jamalpanah’s unsafe speed for the traffic condition caused a chain of impacts between Kizialo and plaintiff, and that defendant Jamalpanah operated her vehicle without caution and in such an unsafe manner that she caused a violent collision into Kizialo and plaintiff. 

Defendant Estate of Antons Kizialo has filed a cross-complaint for indemnity and contribution against co-defendant Saba Jamalpanah, as cross-defendant, alleging that if plaintiff sustained injuries, it was the direct result of the negligence or comparative negligence of cross-defendant. 

ANALYSIS:

Demurrer

Defendant Saba Jamalpanah argues that the second amended complaint is improper, as there is a defect or misjoinder of parties, and the pleading is uncertain. 

CCP § 430.10 states in pertinent part:

“The party against whom a complaint...has been filed may object, by demurrer...to the pleading on any one or more of the following grounds:…

(d) There is a defect or misjoinder of parties….

(f) The pleading is uncertain.  As used in this subdivision, “uncertain” includes a ambiguous or unintelligible.

CCP section 379 provides:

“(a) All persons may be joined in one action as defendants if there is asserted against them:

(1)  Any right to relief jointly, severally, or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action; or 

(2)  A claim, right or interest adverse to them in the property or controversy which is the subject of the action.”   

Here, moving defendant Jamalpanah argues that there is a defect with respect to the parties, as there is only one motor vehicle accident alleged in the SAC, but in the motor vehicle cause of action plaintiff has only referred to defendant Jamalpanah, and made allegations only against Jamalpanah, without mentioning defendant Kizialo or the Estate.  In the general negligence cause of action, plaintiff has made allegations against both defendants Jamalpanah and Kizialo, alleging that plaintiff was rear ended by Kizialo, and that both defendants improperly operated their motor vehicles. 

This procedural posture does not appear to support a demurrer on the part of moving defendant on the ground of misjoinder of parties, as there is no argument that moving party has not been properly joined in this action.  It does not appear that moving defendant would have standing to object to the joinder of defendant Kizialo or Estate of Kizialo, when it appears that Kizialo was involved in the same accident, and that defendant Estate has in fact answered the complaint and filed a cross-complaint. 

In Anya v. Superior Court (1984) 160 Cal.App.3d 228, the court of appeal noted that in making a determination of misjoinder of parties on a demurrer a trial court should generally require a showing of some prejudice:

“In answering this question, we cannot ignore Witkin's observation that "[although] the code seems to authorize the sustaining of a demurrer solely [for misjoinder of parties], the authorities indicate that the defendant is entitled to a favorable ruling only when he can show some prejudice suffered or some interests affected by the misjoinder. In practical effect this means that such a demurrer can be successfully used only by the persons improperly joined. A proper defendant is seldom injured by the joinder of unnecessary or improper parties, plaintiff or defendant, and his demurrer ought to be overruled. [Citations.]" (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 823, p. 2432.”

Anya, at 231, n. 1

Here, moving defendant does not argue that it is improperly joined, but that a co-defendant has somehow been improperly joined only in one cause of action.  There is no argument that moving defendant will suffer any prejudice from the purported misjoinder, and the co-defendant is evidently making no objection to the purported misjoinder as it has answered the SAC and filed a cross-complaint with respect to its participation in the subject accident. 

There would appear to be no prejudice to moving defendant from the co-defendant being named a party to this matter, as it would appear that the pleading alleges in at least one cause of action that the negligence of that co-defendant was a factor in causing the accident, which could potentially reduce the liability of moving defendant.  The demurrer on this ground is overruled. 

The demurrer also argues that the allegations in one cause of action that moving defendant was responsible for the accident and that the allegations in the second cause of action that both defendants were responsible create ambiguities as it is not clear whether plaintiff is making such allegations against all or some of the defendants. 

As set forth above, a party may demur to a complaint where the pleading is uncertain. CCP 430.10(f).   “Uncertain” is defined to include ambiguous or unintelligible.  Id.  

Permitting demurrer for uncertainty is based on the policy which favors parties having notice of the liability alleged, and the pleading must be sufficiently certain to apprise the defendant of the basis upon which the plaintiff is seeking relief.   Perkins v. Superior Court (1981, 2nd Dist.) 117 Cal.App.3d 1, 6.  It is generally held, “demurrers for uncertainty are disfavored.  We strictly construe such demurrers because ambiguities can reasonably be clarified under modern rules of discovery.”  Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135. 

The pleading here does not appear to give rise to any uncertainty with respect to whether moving defendant is being alleged to be responsible under both causes of action, as Jamalpanah is clearly named in both causes of action.  [SAC, paras. MV, MV-2 (a), (c), (d) and (f) and  GN-1].  It does not appear that moving defendant would have standing to object that the pleading is uncertain as to a co-defendant.   There is no uncertainty or ambiguity with respect to what is being alleged against the moving defendant, and the demurrer is overruled. 

Motion to Strike

Defendant seeks to strike the phrase included in the SAC that defendants “maliciously, willfully, oppressively and despicably” entrusted or operated a vehicle.  [SAC, para. GN-1, para. 2].

Defendant argues that these allegations constitute irrelevant, false or improper matter and items of non-recoverable damages and are not supported by the facts. 

  

Under CCP section 435, a party may serve and file a motion to strike a part of a pleading.  Upon such a motion, a court may “strike out any irrelevant, false, or improper matter inserted in any pleading.”  CCP section 436(a).  

Under CCP section 431.10(c), an “immaterial allegation,” as defined in that section, “means ‘irrelevant matter’ as that term is used in Section 436.”

CCP Section 431.10(b) defines an immaterial allegation as follows:

“(b) An immaterial allegation in a pleading is any of the following:

(1) An allegation that is not essential to the statement of a claim or defense.

(2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense.

(3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.”  

Defendant argues that the subject allegations are improper, as they reference conduct associated with intentional tort and punitive damages, when the SAC does not seek punitive damages and does not state facts to support any prayer for punitive damages.   Defendant argues that the SAC alleges only general negligence and motor vehicle liability arising from a rear-end motor vehicle accident, and there is no intentional tort alleged. 

The Form SAC does not check the box seeking punitive damages, but seeks only “compensatory damages.”  [SAC, para. 14 (1) and (2)].   

The SAC does not include any factual allegations which would support a claim for punitive damages in this matter, such as that defendant was driving under the influence.  The allegations which appear to consist of boilerplate allegations to support a claim for punitive damages appear to be immaterial and are appropriately stricken. 

There is no opposition to this motion, so no request for leave to amend.  The pleading is not the original pleading, but the Second Amended pleading by plaintiff.  However, this is the first pleading to which a challenge has been made on this ground.  The court will hear argument with respect to whether leave to amend should be permitted, or if plaintiff has no intention to pursue punitive damages, so that permitting leave to amend would be unnecessary.  

  

RULING:

[No Opposition]

Demurrer to Second Amended Complaint is OVERRULED. 

Defendant’s Motion to Strike is GRANTED WITH LEAVE TO AMEND.  

Ten days leave to amend, if possible. 

The parties are ordered to meet and confer in full compliance with CCP § 435.5 before any further motion to strike may be filed.  

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