Judge: Steven A. Ellis, Case: 23STCV11941, Date: 2024-08-05 Tentative Ruling

Case Number: 23STCV11941    Hearing Date: August 5, 2024    Dept: 29

Demurrer to Complaint filed by DM Property Group LLC. 

Tentative

The demurrer is overruled.

Background

This action arises out of a motor vehicle accident in which on November 22, 2022.  According to the complaint, Defendant Yuri Araceli Serrano Ramirez “(Serrano Ramirez”) was driving negligently and under the influence of alcohol and struck the car driven by Marcos Tulio Carranza-Rivas (“Carranza-Rivas”), causing him to suffer injuries that subsequently led to his death.

On May 25, 2023, Carranza-Rivas, deceased by and through his successor in interest, Karla Alfaro; Karlo Alfaro in her own capacity; Marcos Carranza; Jonathan Carranza, a minor by and through his guardian ad litem Karla Alfaro; and Michelle Carranza, a minor by and through her guardian ad litem Karla Alfaro (collectively “Plaintiffs”) filed the complaint in this action asserting motor vehicle negligence, general negligence, and a survival cause of action against Defendants Serrano Ramirez; Restaurant Las Islas Marias Montebello (“RLIMM”); Las Islas Marias Restaurant, Inc. (“LIMRI”); and Does 1 through 25.

On October 3, 2023, the default of LIMRI was entered.

On October 13, 2023, RLIMM filed an answer.

On November 1, 2023, the default of Serrano Ramirez was entered.

On April 23, 2024, Plaintiffs amended their complaint to name Jorge A. Ramirez as Doe 1, Alejandro Ramirez as Doe 2, and DM Property Group, LLC (“DM”) as Doe 3.

On July 8, 2024, DM filed this demurrer to Plaintiffs’ complaint. No opposition has been filed.

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 be sustained only 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

The parties satisfied the meet and confer requirement of Code of Civil Procedure section 430.41.  (Perez Decl., ¶ 3.)

Request for Judicial Notice

DM requests judicial notice of (1) Plaintiffs’ complaint, (2) the amendment to the complaint adding DM as defendant, (3) the California Secretary of State Corporation Statement of Information, (4) Quitclaim Deed, and (5) Grant Deed. The Court GRANTS the request.

Discussion

DM demurs on the ground that it was not the employer of Serrano Ramirez (the allegedly negligent and drunk driver) but merely the entity that owns the land on which the restaurant that (allegedly) employed Serrano Ramirez operated.

There is nothing inconsistent about being both the landowner and the employer.  Plaintiff could allege, if there is a good faith basis to do so, that (for example) DM was both the owner of the land on which the restaurant operated and also the entity that operated the restaurant and/or employed Serrano Ramirez. 

That is what Plaintiffs have alleged here.  Plaintiffs allege that Serrano was the employee of RLIMM, LIMRI, and Does 1 through 25.  (Complaint, p. 6, at ¶ GN-1.)  DM is Doe 3.  Plaintiff further allege that numerous defendants, including Doe 3, provided alcohol to Serrano Ramirez as part of her employment.  (Ibid.)

On demurrer, the Court must accept these factual allegations as true.  Accordingly, the demurrer is OVERRULED.

Conclusion

The Court OVERULES DM’s demurrer to Plaintiffs’ complaint.

Moving Party is to give notice.