Judge: Stephen Morgan, Case: 20AVCV00492, Date: 2022-07-28 Tentative Ruling
Case Number: 20AVCV00492 Hearing Date: July 28, 2022 Dept: A14
Background
This is a personal injury action premised on motor vehicle negligence. Plaintiff Vincent Martinez (“Plaintiff”), individually and as successor in interest for Lucille Olivas (“Decedent”), alleges that on or about August 12, 2018, Decedent was riding her bicycle, crossing Sierra Highway at the intersection of Pillsbury Street. Plaintiff further alleges that, at the same time, Defendant Debbie Collins DBA Extreme Clean (“Defendant”) was heading northbound on Sierra Highway at an unreasonably high speed and collided with Decedent. Plaintiff alleges damages as a result of this incident in the form of special damages such as wage loss, funeral expenses, burial expenses, medical expenses, general damages and general damages.
On July 20, 2021, Plaintiff filed his Complaint alleging causes of action for Motor Vehicle and General Negligence.
On November 23, 2021, Defendant filed a Demurrer to the Complaint that was subsequently sustained with leave to amend.
On January 25, 2022, Plaintiff filed his First Amended Complaint (“FAC”). The First Amended Complaint alleges two causes of action for Motor Vehicle and General Negligence.
On March 28, 2022, Defendant filed her Demurrer to the FAC.
No Opposition was filed. Oppositions are due nine (9) court days prior to the scheduled hearing on the motion. (See Cal. Code Civ. Proc. § 1005(b).) As such, the Opposition was due on December 20, 2021.
On June 14, 2022, the Court held a hearing on the Demurrer to the FAC. The Court continued the hearing to July 28, 2022, to allow for a meet and confer pursuant to Cal. Code. Civ. Proc. § 430.41 as between the filing of the Demurrer to the FAC and the hearing, Plaintiff’s attorney was relieved as counsel.
On July 07, 2022, counsel for Defendant, Marjorie E. Motooka (“Motooka”), filed her declaration.
No Opposition has been field to the Demurrer to the FAC’s July 28, 2022 hearing. As mentioned, ante, Oppositions are due nine (9) court days prior to the scheduled hearing on the motion. (See Cal. Code Civ. Proc. § 1005(b).) An Opposition was due July 15, 2022.
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Analysis
Standard for Demurrer – 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. (Cal. Code Civ. Proc. § 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, supra, 147 Cal.App.4th at 747.)
A general demurrer admits the truth of all factual, material allegations properly pled in the challenged pleading, regardless of possible difficulties of proof. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken. (Vance v. Villa Park Mobilehome Estates (1995) 36 Cal.App.4th 698, 709.) A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice. (Blank, supra, 39 Cal.3d at p. 318.)
¿
Pursuant to¿Code Civ. Proc.¿§430.10(e), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action.¿ It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment.¿¿(Schifando¿v. City of Los Angeles¿(2003) 31 Cal.4th 1074, 1082,¿as modified (Dec. 23, 2003).)¿
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Meet and Confer Requirement – Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Cal. Code Civ. Proc. § 430.41(a).) Cal. Code Civ. Proc. § 430.41(a) requires that the parties to meet and confer in person or by telephone.
Initially, Defense counsel’s meet and confer attempt included an e-mail sent on February 14, 2022, attached as Exh. A, to Plaintiff’s former counsel, (Decl. Marjorie E. Motooka, ¶ 3.) On March 03, 2022, Plaintiff’s counsel withdrew. Plaintiff, individually has not responded to Defense counsel’s email. (Id., ¶ 5.) The Court continued the hearing so that Motooka could contact Plaintiff directly now that he is proceeding in pro per as it was unclear whether Plaintiff received notice of the Demurrer.
Motooka attempted to call Plaintiff on six occasions using different telephones. (Decl. Motooka ¶ 5.) Each time, Motooka would receive a busy signal. (Ibid.) On June 27, 2022, Motooka sent Plaintiff a letter requesting a response by July 05, 2022. (Id. at ¶ 6; Exh. A.)
The Court finds this a good faith meet and confer attempt under Cal. Code Civ. Proc. § 430.41(a)(2). Motooka’s declaration is the corresponding declaration stating that the parties could not meet and confer. (See ibid.)
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Discussion
Defendant demurs to the FAC as (1) Plaintiff identifies himself as “a wrongful death heir and a successor in interest to Lucille Olivas” while the FAC only has causes of actions for Motor Vehicle and General Negligence; (2) Plaintiff alleges he has suffered general damage, wage loss, loss of earning capacity, property damage, loss of use of property, and hospital and medical expenses for the Motor Vehicle cause of action, and special damages, including funeral, burial and incidental damages, lost past and future wages and general damages for the General Negligence cause of action while no damages are alleged on behalf of Decedent; (3) Plaintiff is attempting to recover damages that are not recoverable in a Wrongful Death action; (4) all Decedent’s necessary parties must be joined in a Wrongful Death action (i.e., any surviving spouse and Decedent’s other heirs); and (5) no Survivor action is alleged.
Standing
Under Cal. Code Civ. Proc. § 430.10, uncertain is defined as ambiguous and unintelligible. (Cal. Code Civ. Proc. § 430.10(f).) “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.) Moreover, "[a] special demurrer should be overruled where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet." (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643.)
The Court cannot determine Plaintiff’s standing as the FAC is uncertain. Defendant has amended the FAC to read that he is “a wrongful death heir and successor in interest to Lucille O [sic].” (FAC No. 1.) Plaintiff consciously edited his title as previously he was acting both “individually and as the successor in interest to Lucille Olivas.” (Complaint No. 1.) Despite this, Plaintiff’s only causes of action are Motor Vehicle and General Negligence. (FAC No. 10.) Additionally, Plaintiff seeks damages as to what he has suffered. (See FAC No. 11.) Under damages claimed for wrongful death and the relationships of plaintiff to decedent, the FAC states only: “Vincent Carlos Martinez is the son of the deceased and a successor in interest.” (FAC No. 12.)
The Court notes that, for a wrongful death action, all heirs must join in suing. (See Adams v. Superior Court (2011) 196 Cal.App.4th 71, 75 [“California courts interpret the wrongful death statutes to ‘authorize only a single action, in which all the decedent's heirs must join’ [Citations.]”]; Salmon v. Rathjens (1907) 152 Cal. 290, 294; Robinson v. Western States Gas & Electric Co. (1920),184 Cal. 401, 410.) There is no mention in the FAC if Decedent has any other children or a surviving spouse or domestic partner.
The Court believes that the FAC is uncertain as it is not sufficiently clear to apprise Defendant of the issues to which she is to meet. Additionally, it is unclear in what capacity Plaintiff is suing and, thus, unclear whether Plaintiff has standing. Should Plaintiff be proceeding individually, Plaintiff does not have standing to bring a claim based in Negligence as or Motor vehicle as (1) he was not the party injured and (2) while wrongful death has been checked off in the form complaint header, no wrongful death or survivorship claim on behalf of Decedent’s Estate has been asserted. On the other hand, should Plaintiff be proceeding solely as an heir, (1) no wrongful death or survivorship claim on behalf of Decedent’s Estate has been asserted (see ante), (2) no damages have been claimed for Decedent, and (3) the necessary parties are not joined.
Damages
The wrongful death claim is based on the damages that the survivors suffer, not damages suffered by the decedent. (See Lattimore v. Dickey (2015) 239Cal.App.4th 959, 968 [“The elements of the cause of action for wrongful death are the tort (negligence or other wrongful act), the resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs.”].) “Under Code of Civil Procedure section 377.61, damages for wrongful death ‘are measured by the financial benefits the heirs were receiving at the time of death, those reasonably to be expected in the future, and the monetary equivalent of loss of comfort, society, and protection. [Citation.]’ [Citation.]” (Boeken v. Philip Morris USA Inc. (2013) 217 Cal.App.4th 992, 997.) Additionally, “Code of Civil Procedure section 377 has long allowed the recovery of funeral expenses in California wrongful death actions.” (Vander Lind v. Superior Court (1983) 146 Cal.App.3d 358, 364.)
Here, Plaintiff requests wage loss, loss of use of property, hospital and medical expenses, general damages, property damage, loss of earning capacity for himself. (See FAC No. 11.) Later, Plaintiff seeks special damages, “including funeral, burial, and incidental damages, lost past and future wages and general damages.” (FAC, Cause of Action – General Negligence Attachment.) It appears that the some of the damages sought are not those provided for under California law.
Survivor Action
A Survivor Alaim is “a separate and distinct cause of action which belonged to the decedent before death but, by statute, survives [the death of decedent]” and “the decedent's personal representative or successor in interest may commence that action.” (See Adams, supra, at 78-79 [discussion of wrongful death v. survivor cause of action; citing to §§ 377.10, 377.30; Grant v. McAuliffe (1953) 41 Cal.2d 859, 864; Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1264; San Diego Gas & Electric Co. v. Superior Court (2007) 146 Cal.App.4th 1545. 1553].) Thus, if Plaintiff is seeking recovery of damages sustained by Decedent prior to death due to the incident with Defendant, the pleadings must allege (1) Decedent survived the incident, at least briefly, and (2) the damages that were suffered by Decedent from the incident.
The Court highlights that the incident took place in 2018. The statute of limitations for a Survivor Action is the latter of either six months after the person’s death or the limitations period that would have been applicable if the person had not died. (Cal. Code Civ. Proc. § 366.1.) In this case, the applicable standard is the limitations period that would have been applicable if the person had not died. In California, the statute of limitations for personal injury is two years from the date of the underlying incident. (Cal. Code Civ. Proc. § 335.1.) Two years from August 12, 2018 is August 12, 2020. With the rise of the COVID-19 pandemic, the Judicial Counsel implemented Emergency Rule 9 which tolled the statutes of limitation for civil causes of action that exceed 180 days from April 6, 2020 until October 01, 2020 and for those 180 days or less from April 6, 2020 until August 03, 2020. (Judicial Council Appendix I, Emergency Rule 9 [sunset June 30, 2022].) Accordingly, the survivorship claim could have been brought until February 12, 2021. It is now July 28, 2022, over one year past the statute of limitations.
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Leave to Amend
Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy¿(1976), 18 Cal.3d 335, 348.) While under California law leave to amend is liberally granted, “leave to amend should not be granted where, in all probability, amendment would be futile.” (Vaillette v. Fireman's Fund Ins. Co. (1993), 18 Cal. App. 4th 680, 685). “A trial court does not abuse its discretion when it sustains a demurrer without¿leave to amend¿if either (a) the facts and the nature of the claims are clear and no liability exists, or (b) it is probable from the nature of the defects and previous unsuccessful attempts to plead that the plaintiff cannot state a claim.” (Cantu v. Resolution Trust Corp.¿(1992)¿4 Cal.App.4th 857, 889.)¿¿¿¿
The Court has granted leave to amend once previously. Despite this, the issues that were present in the Complaint remain in the FAC: standing, joinder of parties, failure to bring either a Wrongful Death Cause of Action or Survivorship Action. The Court takes into consideration that the issues persist despite the fact that Plaintiff retained counsel to file the FAC. The Court believes that it is probable from the nature of the defects and previous unsuccessful attempts to plead that the plaintiff cannot state a claim.
The Court declines to grant leave to amend.
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Conclusion
The Court does not rule on Defendant Debbie Collins DBA Extremely Clean’s Demurrer is SUSTAINED.