Case Number: BC546380??? Hearing Date: February 21, 2017??? Dept: 92




Case No.: BC546380


Defendant, AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA?s Demurrer to Complaint is SUSTAINED WITH LEAVE TO AMEND. Plaintiff is ordered to file an amended complaint within ten days.

1. Background Facts

On May 21, 2014, Plaintiffs Reinaldo Mier Alaniz, Michael Mier, Monica Mirdanda Mier, and Richard Marin, Jr. (?Plaintiffs?) filed a complaint against Defendants Tammy Haggerty (?Haggerty?), Automobile Club of Southern California (?Defendant?), and Does 1 to 50 for motor vehicle and general negligence.

On July 13, 2015, dismissal without prejudice was entered as to Defendant. On September 13, 2016, Plaintiffs filed an amendment to complaint, substituting Defendant for Doe 1.

2. Demurrer Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) ?A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., ?? 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A ?demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.? (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (See Code Civ. Proc. ? 430.41.)

The Court notes Defendant has satisfied the meet and confer requirement. (See Drew Decl., ?? 4-5, 7-8.)

3. Demurrer to Complaint

Defendant demurs to the complaint on grounds that Plaintiffs fail to state facts sufficient to constitute a cause of action against it. Defendant contends the complaint fails to set forth allegations of duty, breach, causation, or damages against Defendant, the necessary elements to establish a motor vehicle negligence cause of action.

Plaintiffs have not filed an opposition.

As an initial matter, the Court notes Plaintiffs? complaint purports to be for both motor vehicle and general negligence causes of action. (See Complaint, p. 3, No. 10.) However, the Court finds only the motor vehicle cause of action is attached. (See id., p. 4.) As such, the Court finds the ?general negligence? cause of action appears to have been marked in error and the complaint is only for a motor vehicle cause of action based upon negligence. To this extent, the Court will consider the demurrer as a demurrer to the entire complaint based upon a single cause of action for motor vehicle negligence.

The Court finds Plaintiffs have failed to plead sufficient allegations to establish a motor vehicle negligence cause of action against Defendant. The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) In terms of motor vehicles, there is a general duty to operate a vehicle without negligence so as to prevent injuries to other people or property. (See Bewley v. Riggs (1968) 262 Cal.App.2d 188, 194.) Here, Plaintiffs allege Defendants were negligent and were the cause of injuries and damages occurring on May 21, 2012 at or near Lankershim Avenue and Arminta Street in North Hollywood, California. (See Complaint, p. 4, MV-1.) Plaintiffs allege Defendants Haggerty and Does 13 through 42 are the defendants who operated, employed the persons who operated, owned the motor vehicle which was operated, entrusted the motor vehicle, and/or were agents and employees of the other defendants acting within the scope of their agency. (See id., p. 4, MV-2(a)-(e).) Plaintiffs? allegations against Defendant are that they are liable for other reasons. (See id., MV-2(f).) However, Plaintiffs fail to allege what those ?other reasons? are to establish how Defendant is liable in this action. In terms of allegations against Defendant as Doe 1, the Court finds Plaintiffs have also failed to allege facts regarding Defendant?s liability. The only allegation against Doe 1 is that Doe 1 was the agent or employee of other named defendants and acted within the scope of that agency or employment. (See id., p. 2, No. 6(a).) There no specific allegations as to what Defendant?s negligent act was nor any mention of Defendant?s duty or breach of duty.

Accordingly, Defendant?s demurrer to complaint is SUSTAINED WITH LEAVE TO AMEND.