Judge: Serena R. Murillo, Case: 19STCV32637, Date: 2023-03-13 Tentative Ruling

DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT  (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)

Communicating with the Court Staff re the Tentative Ruling 1. Please notify the courtroom staff by email not later than 9:30 a.m. on the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SSCDEPT29@lacourt.org. Please do not use any other email address. 2. You must include the other parties on the email by "cc." 3. Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. THE COURT WILL HEAR ARGUMENT UNLESS BOTH SIDES SUBMIT ON THE TENTATIVE.  4. Include the words "SUBMISSION BUT WILL APPEAR" if you submit, but one or both parties will nevertheless appear. 5. For other communications with Court Staff a. OFF-CALENDAR should appear in all caps in the Subject line where all parties have agreed to have a matter placed off-calendar. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) date of proceeding. b. CASE SETTLED should appear in all caps in the Subject line where all parties have agreed that the case has settled for all purposes. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) whether notice of settlement/dismissal documents have been filed; (c) if (b) has not been done, a date one year from the date of your email which will be a date set by the court for an OSC for dismissal of the case. c. STIPULATION should appear in all caps in the Subject line where all parties have stipulated that a matter before the court can be postponed. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) what proceeding is agreed to be postponed e.g. Trial, FSC; (c) the agreed-upon future date; (d) whether all parties waive notice if the Court informs all counsel/parties that the agreed-upon date is satisfactory. This communication should be used only for matters that are agreed to be postponed and not for orders shortening time. 6. PLEASE MAKE SURE THAT ALL COMMUNICATIONS WITH COURT STAFF DEAL ONLY WITH SCHEDULING AND ADMINISTRATIVE MATTERS AND DO NOT DISCUSS THE MERITS OF ANY CASE. (UPDATED 6/17/2020) 

IMPORTANT:  In light of the COVID-19 emergency, the Court encourages all parties to appear remotely.  The capacity in the courtroom is extremely limited.  The Court appreciates the cooperation of counsel and the litigants. 

ALSO NOTE:  If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar.  THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 19STCV32637    Hearing Date: March 13, 2023    Dept: 29

TENTATIVE

Defendants’ demurrer is SUSTAINED with 30 days leave to amend as to the causes of action for negligence and motor vehicle negligence, but OVERRULED as to the claim for general damages. Defendants’ motion to strike is GRANTED without leave to amend.

Legal Standard 

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.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525).) 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. (Code Civ. Proc., §§ 430.30, 430.70.) 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, supra, 147 Cal.App.4th at 747.) 

Demurrers for uncertainty are strictly construed, because discovery can be used for clarification, and apply where defendants cannot reasonably determine what issues or claims are stated. (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2011) ¶¶7:85-7:86.) “A demurrer for uncertainty will not lie where the ambiguous facts alleged are presumptively within the knowledge of the demurring party.” (Bacon v. Wahrhaftig (1950) 97 Cal.App.2d 599, 605.)

Meet and Confer 

The demurrer and motion to strike are accompanied by the declaration of Michael J. Partos, which satisfies the meet and confer requirements. (Code of Civil Procedure sections 430.41(a) and 435.5(a).)

Discussion

              Failure to Allege Sufficient Facts and Uncertainty

Defendant demurs to the FAC, arguing that the causes of action for negligence and motor vehicle negligence do not state facts sufficient to constitute causes of action and are uncertain. While the boxes for “Motor Vehicle” and “General Negligence” were checked at Paragraph 10 on page 3 of the FAC, the FAC failed to attach completed Judicial Council Form: PLD-PI-001(1) (Motor Vehicle); and the FAC failed to attach completed Judicial Council Form: PLD-PI-001(2) (General Negligence).

              Negligence and Motor Vehicle Negligence

The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)  In California, negligence may be pleaded in general terms. (Landeros v. Flood (1976) 17 Cal.3d 399, 407-408.) 

“Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and . . . the plaintiff must indicate the acts or omissions which are said to have been negligently performed.  He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].”  (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.)

The Court agrees with Defendant. There are no facts pled whatsoever. Only the boxes for general negligence and motor vehicle negligence are checked. It appears the attachments to the FAC are missing. As such, the demurrer is SUSTAINED with 30 days leave to amend for failure to allege sufficient facts to constitute causes of actions.

Defendant also demurs to the claim for general damages. However, general damages are not a cause of action and thus, not subject to demurrer. The Court will address this argument in the motion to strike.

Motion to Strike Legal Standard 

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435(b)(1).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436; Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) 

Discussion

Defendant also moves to strike the prayer for general damages, and argues that as this is now a survival action, Plaintiff’s estate cannot be awarded damages pursuant to Code of Civil Procedure section 377.34 for Decedent's pain and suffering.

As the California Supreme Court has held, there are two civil claims that may be brought in consequence of a person’s death: a survival claim under Code Civ. Proc. § 377.30, or a wrongful death claim under Code Civ. Proc. § 377.60.  The first “may be commenced, or continued, by the decedent's personal representative, or, if none, by the decedent's successor in interest. (Code Civ. Proc., §§ 377.20, subd. (a), 377.30, 377.31.) However, a personal injury claim “surviving” to the estate does not have the same value it would have had if decedent had lived. All decedent's¿special damages¿incurred prior to death (e.g., medical expenses and lost earnings), as well as¿punitive damages,¿are¿recoverable by the estate; but the estate is¿not¿entitled to an award for decedent's¿pain and suffering or disfigurement¿(i.e., decedent's “general damages”). (Code Civ. Proc., § 377.34;¿Estate of Lowrie¿(2004) 118 CA4th 220, 226;¿Berkley v. Dowds¿(2007) 152 CA4th 518, 530.) The damages recoverable under Code of Civil Procedure section 377.34 “are limited to the loss or damage that the decedent sustained or incurred before his death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.” (Code Civ. Proc., § 377.34, sub. (a).) Notwithstanding Code of Civil Procedure section 377.34 subdivision (a), in an action or proceeding by a decedent's personal representative or successor in interest on the decedent's cause of action, the damages recoverable may include damages for pain, suffering, or disfigurement if the action or proceeding was granted a preference pursuant to Section 36 before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026. (Code Civ. Proc., § 377.34, sub. (b).)

As Jonah is now continuing Decedent’s causes of action as the personal representative of Decedent’s estate for injuries Decedent suffered, general damages are not available to the estate under Code of Civil Procedure section 377.34. Moreover, the action was not granted a preference and was not filed on or after January 1, 2022, but rather was filed on September 13, 2019. Thus, subdivision (b) of Code of Civil Procedure section 377.34 does not apply. As such, the motion to strike is GRANTED without leave to amend as to general damages.

Conclusion

Based on the foregoing, Defendants’ demurrer is SUSTAINED with 30 days leave to amend as to the causes of action for negligence and motor vehicle negligence, but OVERRULED as to the claim for general damages. Defendants’ motion to strike is GRANTED without leave to amend.