Judge: William A. Crowfoot, Case: 21STCV35252, Date: 2022-12-12 Tentative Ruling

Case Number: 21STCV35252    Hearing Date: December 12, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On April 14, 2022, plaintiff Henry Wang filed this action against Defendant David Paul Martinez, Jr. (“Defendant”) (erroneously sued as “David Paul Martinez”), Clarence Sanders, Paul Bonomolo, and State Farm Mutual Automobile Insurance Company.  Only Defendant remains in this action and on November 2, 2022, Defendant filed a demurrer and motion to strike.  The demurrer and motion to strike are unopposed.  

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).) 

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1).)  The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)  The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (b).)  An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.  (Code Civ. Proc., § 431.10, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Code Civ. Proc., § 437.)

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 or motion to strike, the demurring or moving 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); 435.5, subd. (a).)  

          Defense counsel Russell D. Grandy declares that he sent an email on October 14, 2022 requesting to meet and confer with Plaintiff, who is self-represented, but never received a response.  The meet and confer requirement is satisfied. 

          A Judicial Council form complaint is not immune to demurrer.  (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1484.)  A plaintiff must still plead ultimate facts that are essential to state a cause of action.  (Ibid.)  

Plaintiff purports to allege causes of action for Motor Vehicle, General Negligence, and Intentional Tort.  (Compl., Item 10.)  However, Plaintiff’s Complaint does not include the mandatory attachments for each cause of action.  The Complaint also does not allege any facts that would apprise Defendant of his claims.  Accordingly, Defendant is correct that the Complaint fails to state sufficient facts to constitute a cause of action.   

IV.    CONCLUSION

Defendant’s demurrer is SUSTAINED.  As Plaintiff did not oppose the demurrer and show how leave to amend is possible, no leave to amend is granted.  The action is hereby dismissed. 

Defendant’s motion to strike is moot and taken off calendar.

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.