Judge Serena R. Murillo, Case 22STCV03302 2022-10-26 Tentative Ruling

Judge: Serena R. Murillo, Case: 22STCV03302, Date: 2022-10-26 Tentative Ruling

Case Number: 22STCV03302 Hearing Date: October 26, 2022 Dept: 29

Farhood Mazloumi v. Mehdi Ghorbani

Demurrer filed by Defendant Mehdi Ghorbani

TENTATIVE

Defendant Mehdi Ghorbani’s demurrer is OVERRULED.

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.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)

A demurrer to a complaint may also be brought on the ground the pleading is uncertain, ambiguous, or unintelligible. (Code of Civ. Proc., § 430.10, subd. (f); Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1191.) 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.) A demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. (Code Civ. Proc., § 430.10, subd. (f).)

Meet and Confer

The demurrer is not accompanied by a declaration of Defendant’s counsel. Thus, the statute’s meet and confer requirements have not been met. (Code Civ. Proc. § 430.41.) Nevertheless, the Court will overlook this defect, as this is not a ground to overrule the demurrer.

Discussion

Defendant demurs to the complaint, arguing it fails to state sufficient facts to constitute a cause of action because the entire complaint is only on information and belief that the Plaintiff was beaten up in a parking lot. Defendant does not dispute the fact that Plaintiff was beaten up. What is disputed is that it was this defendant who was the perpetrator in the first place. Defendant argues that there are no predicate connecting allegations to justify the failure to have any personal knowledge or competent allegation that it was the defendant that was the perpetrator. Defendant also demurs on the ground that the complaint is uncertain.

The complaint alleges on information and belief that as Plaintiff attempted to drive away in his vehicle, Defendant Ghorbani and DOES, stopped his vehicle inside the parking lot, began an altercation, and as Plaintiff stepped out of his vehicle, Defendant Ghorbani grabbed him and began to viciously attack him. (Compl. ¶¶ 7-8.) Based upon information and belief, Defendant Ghorbani struck Plaintiff in the face, eyes, nose and head as DOES, restrained him and refused to release him. (Id., ¶ 9.) Based upon information and belief, Plaintiff attempted to break free and get away, however, he was thrown to the ground and continually beaten in the head and face, resulting in a nasal fracture, and concussion, among other injuries. (Id., ¶ 10.) Based upon information and belief, after viciously beating Plaintiff, Ghorbani and DOES, left the scene. (Id., ¶ 11.)

Complainants may state allegations on information and belief, where matters are not within their personal knowledge, and information leads them to believe the allegations are true, including the information that leads them to have the belief. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “[A]llegations on information and belief are proper where the allegations involve matters peculiarly within the knowledge of the defendants.” (Id. at 542; see 35 Cal.3d 197)

Here, the issue of whether this defendant was the perpetrator is solely within the knowledge of Defendant. As to Defendant’s argument that these allegations are conclusory, Plaintiff was required to allege only “ultimate rather than evidentiary facts.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) Moreover, the “less particularity [of pleading] is required where the defendant may be assumed to possess knowledge of the facts at least equal, if not superior, to that possessed by the plaintiff,” which certainly is the case here.

At this stage of the proceedings, allegations of ultimate fact are sufficient. At a later stage of the litigation, Plaintiff will need to prove his allegations with substantial evidence, but for the purposes of the subject demurrer, these allegations are enough. (See Doe, supra, 42 Cal.4th at p. 550.) Further, the complaint is not uncertain as ultimate facts have been pled.

Conclusion

Accordingly, Defendant’s demurrer is OVERRULED.