Judge Randolph M. Hammock, Case Number: 21STCV25349, Date: 2023-10-17 Tentative Ruling

Judge: Randolph M. Hammock, Case: 21STCV25349, Date: 2023-10-17 Tentative Ruling

Plaintiff Duke Kim brings this action against Defendants Hyeon Joo Park, D.C. and Yonsei Chiropractic Clinic for professional negligence. Plaintiff alleges he sustained a rib fracture while receiving treatment from Defendants.

Defendant has not addressed compliance with the meet and confer obligation. (See CCP 430.41(a).) To conserve judicial resources, the court will consider the demurrer absent a meet and confer, assuming none occurred. The parties are admonished to comply with all meet and confers as required by law going forward.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, 147 Cal.App.4th at 747.)

As an initial note, Defendant Hyeon Joo Park answered the complaint on November 3, 2022. The time to demurrer has expired. (See CCP 430.40(a).) Be that as it may, because a demurrer is functionally equivalent to a motion for judgment on the pleadings, the court will exercise its discretion to consider the demurrer as a motion for judgment on the pleadings. (See Templo v. State of Calif. (2018) 24 Cal. App. 5th 730, 735; see also Jackson v. Doe (2011) 192 Cal. App. 4th 742, 750 [an untimely demurrer may be considered by the court in its discretion].)

Defendant argues there is a defect or misjoinder of parties because named Defendant Yonsei Chiropractice clinic is merely a “dba” of Defendant Hyeon Joo Park, D.C. “Use of a fictitious business name does not create a separate legal entity.” (Pinkerton's, Inc. v. Superior Ct. (1996) 49 Cal. App. 4th 1342, 1348.) Use of dba “is merely descriptive of the person or corporation who does business under some other name.” (Id.) “The business name is a fiction, and so too is any implication that the business is a legal entity separate from its owner.” (Id.)

A “defect” of parties has been interpreted to mean the failure to join a necessary Plaintiff or Defendant. (Miller v. McKinnon (1942) 20 Cal. 2d 83, 99.) The standard for joinder of defendants is set out in Code of Civil Procedure 379(a).) It provides: “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.” (CCP 379(a).) Any alleged defect or misjoinder must appear on the face of the complaint. (See Nava v. McMillan (1981) 123 Cal. App. 3d 262, 264 [“demurrer reaches only those defects which appear on the face of the complaint or which are judicially noticeable”].)

Although the court agrees that attempting to maintain suit against a “dba” is improper, Defendant provides no authority that a demurrer based on a defect or misjoinder of parties can be utilized to resolve the issue. Moreover, the purported defect or misjoinder is not apparent on the face of the complaint. Therefore, Defendant’s demurrer based on a defect or misjoinder of parties fails. (See Fox v. JAMDAT Mobile, Inc., 185 Cal. App. 4th 1068, 1078 [ “A demurrer accepts as true all well pleaded facts” in the Complaint].)

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.