Judge: Robert B. Broadbelt, Case: 24STCV04181, Date: 2024-10-29 Tentative Ruling
Case Number: 24STCV04181 Hearing Date: October 29, 2024 Dept: 53
Superior Court of California
County of Los Angeles – Central District
Department
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October
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[tentative]
Order RE: defendant’s demurrer to complaint |
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MOVING PARTY: Defendant CarMax Auto
Superstores, Inc. (erroneously sued and served as CarMax)
RESPONDING PARTY: Plaintiff Ernest Hernandez
Demurrer to Complaint
The court considered the moving and reply papers filed in connection
with this demurrer.
The court did not consider the opposition papers, filed and served by
plaintiff Ernest Hernandez on October 21, 2024, because they were not filed and
served at least nine court days before the October 29, 2024 hearing on this
demurrer. (Opp., pp. 23-24 [proof of
service on October 21, 2024]; Code Civ. Proc., § 1005, subd. (b).)
DISCUSSION
Plaintiff Ernest Hernandez (“Plaintiff”) filed this action on February
20, 2024 against defendant Trevor Richard Mullins and Doe defendants 1-50,
alleging two causes of action for (1)
motor vehicle negligence, and (2) general negligence. Thereafter, on May 15, 2024, Plaintiff filed
an “Amendment to Complaint” in which Plaintiff identified the true name of
fictitious Doe 1 to be CarMax.
Defendant CarMax Auto Superstores, Inc. (erroneously sued as CarMax)
(“Defendant”) now moves the court for an order sustaining its demurrer to each
cause of action alleged in Plaintiff’s Complaint.
The court sustains Defendant’s demurrer to Plaintiff’s first
and second causes of action because they are ambiguous and unintelligible and
therefore uncertain as to Defendant since
(1) in the general background
portion of the form Complaint, Plaintiff alleges that Doe defendants 1-25 are
the agents or employees of other named defendants and they acted within the
scope of such agency or employment, but (2) Plaintiff also alleges, in
connection with the first and second causes of action, that Defendant (sued as
Doe defendant 1) employed the person who operated a motor vehicle, owned the
motor vehicle, entrusted the motor vehicle, or designed, manufactured,
constructed, built, owned, sold, transferred, managed, maintained, controlled,
used, operated, supervised, inspected, and/or repaired the motor vehicle, such
that it is unclear as to what theory of liability that Plaintiff alleges
against Defendant. (Code Civ. Proc., §
430.10, subd. (f); Compl., pp. PLD-PI-001, ¶ 6, subd. (a), PLD-PI-001(1), ¶ 2
and Attachment MV2f, PLD-PI-001(2), Attachment GN-1.)
The court acknowledges that Plaintiff filed the Complaint before
identifying Defendant to be Doe defendant 1, and thus did not have an
opportunity to allege specific facts against Defendant. The court therefore grants Plaintiff leave to
amend.
ORDER
The court sustains defendant CarMax
Auto Superstores, Inc. (erroneously sued as CarMax)’s demurrer to plaintiff
Ernest Hernandez’s Complaint.
The court grants plaintiff Ernest
Hernandez 20 days leave to file a First Amended Complaint that cures the
defects in the first and second causes of action against defendant CarMax Auto
Superstores, Inc. (erroneously sued as CarMax) set forth in this ruling.
The court orders defendant CarMax
Auto Superstores, Inc. (erroneously sued as CarMax) to give notice of this
ruling.
IT IS SO ORDERED.
DATED:
_____________________________
Robert
B. Broadbelt III
Judge
of the Superior Court