Judge: Ronald F. Frank, Case: 23TRCV04190, Date: 2024-03-08 Tentative Ruling

Case Number: 23TRCV04190    Hearing Date: March 8, 2024    Dept: 8

Tentative Ruling 

HEARING DATE:                 March 8, 2024
 

CASE NUMBER:                  23TRCV04190

CASE NAME:                        Collin J. Burt v. US Bank, Clarisa Espinoza, et al.

MOVING PARTY:                (1) Defendant, U.S. Bank National Association (erroneously sued as US Bank), and Clarisa Espinoza  

RESPONDING PARTY:       (1) Plaintiff, Collin J. Burt (No Opposition)

TRIAL DATE:                        None set.  

MOTION:                              (1) Defendants’ U.S. Bank and Clarisa Espinoza’s Demurrer¿ 

Tentative Rulings:                  (1) SUSTAINED.

I. BACKGROUND

A. Factual 

On December 20, 2023, Plaintiff, Collin J. Burt (“Plaintiff”) filed a Complaint against Defendants, U.S. Bank National Association (erroneously sued as US Bank), and Clarisa Espinoza. The Complaint alleges causes of action for: (1) Common Counts; (2) Intentional Tort- Grand Larceny; and (3) Motor Vehicle Negligence.

Now, Defendants, U.S. Bank National Association and Clarisa Espinoza (collectively, “Defendants”) file a Demurrer to the Complaint.

B. Procedural 

On January 22, 2024, Defendants filed their demurrer to Plaintiff’s Complaint. On January 31, 2024, Defendants filed their amended notice of demurrer to Plaintiff’s Complaint. To date, no opposition has been filed.

II. ANALYSIS 

A. Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

A pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616. 

B. Discussion

Defendants demur to Plaintiff’s Complaint on the grounds that they argue Plaintiff fails to state sufficient facts to maintain his First, Second, Third, and Fourth causes of action, and that Plaintiff’s Complaint is uncertain within the meaning of Code of Civil Procedure § 430.10(f).

Common Counts

Defendants argue that there are no facts alleged to support a cause of action for common counts. The required elements of a common count claim are “(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment. A cause of action for money had and received is stated if it is alleged the defendant is indebted to the plaintiff in a certain sum for money had and received by the defendant for the use of the plaintiff.” (Farmers Insurance Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460, citation and quotation marks omitted.)

Defendants note that Plaintiff’s Complaint fails to allege any facts, reasonable inferences, or anything to successfully allege a cause of action for common counts. This Court agrees. Plaintiff may not merely state conclusory allegations in a pleading, and must – at minimum – plead facts to meet the elements required for a cause of action. Here, Plaintiff uses the form pleading as his Complaint, and checks off the required boxes, but nothing in the Complaint helps this Court, or Defendants, ascertain what it is that Plaintiff is alleging indebtedness for. Plaintiff places the figure of $100,000 in the form pleading, but there is no indication for what such a sum is owed for, e.g. goods or services provided, an open book account, or any other facts alleged for consideration. Without reasonably particularized facts to instruct Defendants what Plaintiff is alleging against them, Plaintiff’s complaint may not stand. As such, the Demurrer is SUSTAINED with twenty (20) days leave to amend.

Intentional Tort - Grand Theft

            Next, Defendants argue that Plaintiff’s cause of action fails to state any facts to base its cause of action on. This Court also agrees. Plaintiff merely states under the “DOES” section, which is actually referencing how many “DOE Defendants” Plaintiff is alleging the causes of action against, that he is alleging the intentional tort of Grand Larceny. Further down the same page, Plaintiff also merely states that he is alleging, as a description of reasons for liability, California Penal Code § 487. Penal Code § 487 states: “Grand theft is theft committed in any of the following cases: (a) When the money, labor, real property, or personal property taken is of a value exceeding nine hundred fifty dollars ($950), except as provided in subdivision (b)…” Here, there are no allegations alleging which part of the statute Plaintiff is alleging defendants violated or what conduct was committed by Defendants such as the personal property or other thing Plaintiff is alleging Defendants took to amount to grand theft, etc. Without more, Plaintiff cannot maintain a cause of action for Intentional Tort – Grand Theft. As such, the Demurrer is SUSTAINED with twenty (20) days leave to amend.

Motor Vehicle Negligence

Defendants argue that that Plaintiff’s Complaint fails to allege sufficient facts to support a cause of action for Motor Vehicle Negligence. In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Here, Defendants contend that there no facts alleged in the complaint at all, no facts or allegations demonstrating that Defendants were involved in any motor vehicle accident with Plaintiff, and no description of the vehicles allegedly in the car accident. This Court also notes that there are no actual facts alleged to each cause of action for negligence. Plaintiff’s Complaint alleges that “the acts of defendants were negligent; the acts were the legal (proximate) cause of injuries and damages to plaintiff; [and that] the acts occurred.” This Court instructs that Plaintiff may not merely state conclusory elements of a cause of action for negligence. Plaintiff must allege facts that speak to the existence of a legal duty of care, a breach of that duty, proximate cause, and damages  In the typical motor vehicle cause of action, in addition to checking boxes, the typical plaintiff states the date and location of the collision, a general description of the vehicles or other objects involved if any, and a succinct statement of the nature of the breach of duty of ordinary care. Here, Plaintiff’s current complaint, fails to do this. As such, the Demurrer is SUSTAINED with twenty (20) days leave to amend.

III. CONCLUSION

For the foregoing reasons, the Defendants’ demurrer is SUSTAINED in full. Plaintiff is granted twenty (20) days leave to amend.  Defendants are ordered to give written notice of the ruling.