Judge Steven A. Ellis, Case Number: 23CMCV00836, Date: 2024-01-10 Tentative Ruling

Judge: Steven A. Ellis, Case: 23CMCV00836, Date: 2024-01-10 Tentative Ruling

Case Number: 23CMCV00836 Hearing Date: February 8, 2024 Dept: 29

Demurrer filed by Defendant Artemio Reyes Huertas.

Tentative

The Demurrer is OVERRULED.

Background

This case arises out of an alleged motor vehicle accident on June 7, 2021, near the intersection of Alameda Street and 110th Street in Los Angeles.

In Case No. 22STCV23900 (subsequently deemed related to this action) (the “Rios Action”), on July 25, 2022, Plaintiffs Jose E. Ayala Rios and Ruben Jimenez Baltazar filed a complaint asserting causes of action for motor vehicle negligence and general negligence against Sergio Antonio Vega Campos (“Campos”), Artemio Reyes Huertas (“Huertas”), and Does 1 through 20.

On November 9, 2022, Campos filed an answer and a cross-complaint for indemnity against Huertas and Roes 1 through 20. On December 9, 2022, Huertas filed an answer and a cross-complaint for indemnity against Campos and Roes 1 through 100.

On January 3, 2024, the Court in the Rios Action, at the request of plaintiffs and Campos, dismissed, with prejudice, all claims by plaintiffs in the complaint against Campos and the cross-complaint filed by Campos.

On January 24, 2024, the Court in the Rios Action, at the request of Huertas, dismissed, with prejudice, the cross-complaint filed by Huertas.

Accordingly, it appears that the only remaining claims in the Rios Action are the claims of the plaintiffs against Huertas (and against the Doe defendants).

In this action, Case No. 23CMCV00836 (the “Campos Action”), on June 7, 2023, Campos filed a complaint asserting causes of action for motor vehicle negligence and general negligence arising out of the same accident against Huertas and Does 1 through 25.

On June 23, 2023, the two cases were related by order of the Court.

On November 21, 2023, Huertas filed a demurrer to the complaint, asserting that there is (or was at the time of filing) another action pending between the same parties arising out of the same transaction (the Rios Action). On January 22, 2024, Campos filed an opposition. Huertas has not filed a reply.

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. (Zadoorian Decl., ¶ 11.)

Request for Judicial Notice

Huertas requests Judicial Notice of the Complaint in the Rios Action and Campos’s Cross-Complaint in the Rios action. The Court GRANTS Judicial Notice for these two documents.

Discussion

Huertas demurs solely under Code of Civil Procedure section 430.10, subdivision (c). As Huertas states in the Demurrer, “there is another action pending between the same parties, arising out of the same transaction, for the same and similar causes of action,” namely the Rios Action. (Demurrer, at p. 3:5-8.)

When a demurrer is sustained on this basis (another action pending), the court in the second action will generally stay the second action and wait for the first suit to be resolved, rather than dismissing the second action immediately. (See 1 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (2023), ¶ 7:77; Branson v. SunDiamond Growers (1994) 24 Cal.App.4th 327, 335 fn. 2.) In an earlier day, this was sometimes referred to as a “plea in abatement.”

Here, however, subsequent to the filing of the demurrer, the Rios Action has been resolved in part: Campos has dismissed his cross-complaint against Huertas in the Rios Action, and Huertas has dismissed his cross-complaint against Campos in the Rios Action. At this time, Huertas can therefore no longer assert that there is another action pending between the parties arising out of the same transaction.

Accordingly, Huertas’s Demurrer under section 430.10, subdivision (c), is OVERRULED.

In this procedural posture, the Court need not reach, and does not reach, the issue of whether the claims asserted by Campos against Huertas in this action were within the scope of a compulsory cross-claim in the Rios Action. The Court expresses no view on that issue, and this ruling is without prejudice as to any party’s contentions on that issue.

Conclusion

The Court OVERRULES the demurrer.

Moving Party is to give notice.