Judge Steven A. Ellis, Case Number: 20STCV34696, Date: 2024-02-09 Tentative Ruling

Judge: Steven A. Ellis, Case: 20STCV34696, Date: 2024-02-09 Tentative Ruling

Case Number: 20STCV34696 Hearing Date: February 9, 2024 Dept: 29

Demurrer filed by Defendant JR Johnnys Limo Services Inc.

Tentative

The Demurrer is overruled without prejudice.

Background

This case arises out of an alleged motor vehicle accident on July 9, 2019. On September 11, 2020, Plaintiffs Garush Manukyan and Oleh Yatsyshyn filed the Complaint in this action asserting causes of action for motor vehicle negligence against Ruben Petrosyan and Does 1 through 10.

On November 18, 2020, Defendant Ruben Petrosyan filed his answer.

On June 27, 2022, the Court approved a stipulation submitted by the parties granting leave to Plaintiff to file a First Amended Complaint (the “FAC”). According to the stipulation, among other things, Defendant Ruben Petrosyan had died a “few months ago.”

Plaintiffs filed the FAC on May 10, 2023. In the FAC, Plaintiffs name as defendants JR Johnnys Limo Services, Inc. (“JR”) and Does 1 through 10.

On January 3, 2024, default was entered against JR.

On January 10, 2024, JR filed this demurrer. Plaintiffs filed an opposition on January 25, and JR filed a reply on February 2.

Legal Standard

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id.)

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; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

Meet and Confer Requirement

"Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41(a).)

This requirement is satisfied here. (Tabrisky Decl., ¶ 4.)

Discussion

Defendant is in default. A party in default cannot “file pleadings” or take any other “affirmative steps in the litigation until either its default is set aside or a default judgment is entered.” (Devlin v. Kearny Mesa AMC/Jeep/Renault (1984) 155 Cal.App.3d 381, 385-386; see also 1 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (2003), ¶ 5:116 [“The only motion [a defendant in default] can file is a motion to be relieved from default or to set aside the default judgment if judgment has been entered.”].)

Accordingly, the Court overrules the demurrer without prejudice.

Conclusion

The Court OVERRULES the demurrer without prejudice.

Plaintiffs are to give notice.