Judge: William A. Crowfoot, Case: 20STCV41794, Date: 2022-12-12 Tentative Ruling


Case Number: 20STCV41794    Hearing Date: December 12, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

 

DEEANNA LINSMAIER,

                   Plaintiff(s),

          vs.

 

WAIL BUSHARA, et al.,

 

                   Defendant(s),

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      CASE NO.: 20STCV41794 (c/w 20STCV41916)

 

[TENTATIVE] ORDER RE: DEFENDANT WAIL BUSHARA’S DEMURRER TO PLAINTIFF DEEANNA LINSMAIER’S FIRST AMENDED COMPLAINT (FILED 9/24/2021)

 

Dept. 27

1:30 p.m.

December 12, 2022

 

I.       INTRODUCTION

          On November 2, 2020, plaintiff Deeanna Linsmaier (“Plaintiff”) filed an action against defendant Wail Bushara (“Defendant”) arising from a car accident that occurred on November 4, 2018.  Plaintiff was a passenger in Defendant’s car at the time of the accident.

          On November 3, 2020, Plaintiff filed a second action against Matthew Muldoon (“Muldoon”) and Esurance Property and Casualty Insurance Company (“Esurance”, erroneously sued as “Esurance Insurance Service”) arising from the same accident.  Plaintiff also named Defendant in this second complaint.  On September 24, 2021, Plaintiff filed the First Amended Complaint (“FAC”). 

          On November 2, 2022, Defendant filed a demurrer to Plaintiff’s FAC in the second action on the grounds that it fails to state facts sufficient to constitute a cause of action and because another action was pending. 

          On December 6, 2022, the Court consolidated the two actions. 

          The demurrer is unopposed.

II.     LEGAL STANDARDS

Code of Civil Procedure § 430.10(c) provides that a party against whom a complaint is filed may object by demurrer to the pleading on the ground that “[t]here is another action pending between the same parties on the same cause of action.”   This plea in abatement may be made by demurrer or answer when there is another action pending between the same parties on the same cause of action.  (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 789.) The later-filed suit is “abated” (stayed) pending resolution of the earlier action which, if concluded on the merits will be res judicata; if not, the later action can proceed.  (Id. at 788-89.)  The court can take judicial notice of the court files in determining the basis for this ground. (See Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 191-192.)  Further, it is “universal rule that a plea in abatement may be maintained only where the claim sued upon the second action is such that a final judgment in the first one could be pleaded in bar as a former adjudication.  (Lord v. Garland (1946) 27 Cal.2d 840, 848.)

“In order to sustain the plea of another action pending it is essential that it shall appear: (1) That both suits are predicated upon the same cause of action; (2) that both suits are pending in the same jurisdiction; and (3) that both suits are contested by the same parties. [Citation.] . . . The only relief to which a litigant is entitled upon the plea, whether by demurrer or answer, is that the second action abate.”  (Colvig v. RKO General, Inc. (1965) 232 Cal.App.2d 56, 70-71.)  

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.)  “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.  We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.  [Citation.]”  (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) 

III.    DISCUSSION

Before filing a demurrer, the demurring shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., § 430.41, subd. (a).)  

          Defense counsel, Sara Young, declares that she spoke with Plaintiff’s counsel on October 24, 2022, and sent correspondence on October 26, 2022 setting forth the legal basis for a demurrer and motion to strike.  The meet and confer requirement is satisfied.

          At the time Defendant filed this demurrer, there were two separate actions filed by Plaintiff arising from the same automobile collision and a plea in abatement would have been appropriate.  However, as of December 6, 2022, the actions have been consolidated.  Therefore, a plea abatement no longer appears necessary.  Further, although Defendant claims that Plaintiff fails to allege any facts which state a cause of action against him, this is not accurate.  Plaintiff alleges that Defendant negligently operated a motor vehicle.  (Compl., MV-2(a); GN-1, .)

IV.    CONCLUSION

Accordingly, Defendant’s demurrer is OVERRULED.

Moving party to give notice.

 

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.