Judge: William A. Crowfoot, Case: 21STCV19611, Date: 2023-01-06 Tentative Ruling

Case Number: 21STCV19611    Hearing Date: January 6, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On May 25, 2021, plaintiff Maria Cristina Lopez (“Plaintiff’) filed this action against defendants Carlos Edmundo Lopez dba Carlos Lopez Hauling (“Lopez”) (erroneously sued as “Carlos Lopez Demolition and Hauling” and “Lopez Hauling”) and Jerry Caesar Franco (‘Franco”) (erroneously sued as “Jerry Ceasar Franco”) (collectively, “Defendants’).  Plaintiff filed the operative First Amended Complaint on October 10, 2022. 

          On November 14, 2022, Defendants filed this demurrer.  Defendants argue that Plaintiff’s first cause of action for “Negligence/Negligence Per Se” is uncertain, ambiguous, and unintelligible, and fails to state sufficient facts to constitute a cause of action. 

II.      LEGAL STANDARDS

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  “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”].)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.)  A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Ibid.)

III.     DISCUSSION

Before filing a demurrer, the demurring party 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).)

          David H. Lieberthal , counsel for Defendants, declares that he discussed the grounds for this demurrer with Plaintiff’s counsel through email correspondence.  This is not compliant with CCP 430.41.  However, the Court proceeds to analyze the merits of this demurrer.

          Defendants argue that Plaintiff’s first cause of action for “negligence/negligence per se” is uncertain, ambiguous, and unintelligible because it “attempts to combine a cause of action with an evidentiary presumption”, making it unclear whether prevailing against the evidentiary presumption constitutes prevailing on the cause of action.  (Demurrer, 6:6-11.)  Defendants also claim that the first cause of action fails to state sufficient facts because “negligence per se” is not a cause of action. 

          “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.)  “The objection of uncertainty does not go to the failure to allege sufficient facts.” (Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459.) “It goes to the doubt as to what the pleader means by the facts alleged.” (Ibid.) “Such a demurrer should not be sustained where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.”  (People v. Lim (1941) 18 Cal.2d 872, 882.) 

          Plaintiff’s first cause of action adequately informs Defendants of the claims she is asserting.  Plaintiff includes a description of the various duties owed to her in Paragraph 17 (duty to keep a lookout, control the speed/movement of their vehicle, not crossing over double yellow lines, or driving at unsafe speeds) and identifies one of the statutes she claims Defendants violated, namely, Vehicle Code section 22350.  The Court does not see any ambiguity and, in any event, ambiguities, such as the particular acts of each defendant, may be solved through discovery. 

          The first cause of action also states sufficient facts.  Even if negligence per se is not a cause of action, Plaintiff’s first cause of action survives demurrer if it states a cause of action on any legal theory.  Here, Plaintiff adequately pleads a claim for negligence.  (Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 572.) 

IV.     CONCLUSION

Defendants’ 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.