Case Name: Alfaro v. Schlindwein

Case No.: 16-CV-303884

Defendant Eugene Schlindwein (?Defendant?) demurs to the first amended complaint (?FAC?) filed by plaintiff Charisse Alfaro (?Plaintiff?) and moves to strike portions contained therein.

This is a personal injury action arising out of a motor vehicle accident. According to the allegations of the FAC, on December 20, 2014, Plaintiff was a properly restrained driver waiting at the traffic signal on Curtner Avenue at Unified Way in San Jose to make a left turn.? Once the light turned green and Plaintiff was in the process of turning, Defendant drove into the passenger side of her vehicle, causing her to suffer serious injury.? Plaintiff alleges that Defendant ran a red light and was intoxicated at the time of the collision.? On June 26, 2017, Plaintiff filed the FAC asserting claims for (1) motor vehicle, (2) general negligence and (3) intentional tort.

Defendant previously moved to strike the third cause of action in the original complaint as well as Plaintiff?s request for punitive damages.? The Court denied the motion to the extent that it sought to strike the third cause of action, concluding that utilizing a motion to strike to accomplish such a result was procedurally improper.? (See Quiroz v. Seventh Ave. Ctr. (2006) 140 Cal.App.4th 1256, 1281 [stating that a pleading challenge to an entire cause of action is by a demurrer rather than a motion to strike].)? However, the Court granted the motion with leave to amend as to Plaintiff?s request for punitive damages, finding that Plaintiff had failed to plead facts sufficient to demonstrate the malice or oppression on the part of Defendant necessary to support such damages.

 

On July 26, 2017, subsequent to the filing of the FAC, Defendant filed the instant demurrer to the FAC and motion to strike portions contained therein.? (Code Civ. Proc., ?? 430.10, 435 and 436.)? Plaintiff opposes both motions.

 

Defendant?s request for judicial notice of the FAC is GRANTED.? (Evid. Code, ? 452, subd. (d).)

 

  1. Demurrer

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With this motion, Defendant demurs to the third cause of action on the grounds of uncertainty and failure to state facts sufficient to constitute a cause of action.? (Code Civ. Proc., ? 430.10, subds. (e) and (f).)? With respect to the first ground, Defendant maintains that the nature of the claim pleaded is unclear because while titled ?intentional tort,? the specific factual allegations only support a claim for negligence per se based on Defendant purportedly driving while intoxicated.

 

While a demurrer for uncertainty is disfavored and is to be sustained only where allegations of the pleading are so unintelligible that the defendant cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him and her (Khoury v. Maly?s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616), the Court finds that it is appropriate in this instance.? Here, not only is the exact nature of the third cause of action unclear, but no intent to harm is alleged by Plaintiff and the factual allegations support negligent, rather than intentional, conduct.? Negligence is an unintentional tort and thus there is a clear conflict within the claim itself as to what type of conduct is being alleged.? (See Donnelly v. Southern Pacific (1941) 18 Cal.2d 863, 869.)? Consequently, Defendant?s demurrer to the third cause of action on the ground on uncertainty is SUSTAINED WITH 10 DAYS? LEAVE TO AMEND.

 

As for the failure to state facts argument, Plaintiff has, as stated above, failed to plead intent on the part of Defendant, which is a necessary element of any claim for intentional conduct.? Moreover, as Defendant asserts in his supporting memorandum, Plaintiff?s factual allegations of confusion and mental disorientation on the part of Defendant subsequent to the vehicle accident run directly contrary to any claim of intentional conduct on his part.? Therefore, Defendant?s demurrer to the third cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 10 DAYS? LEAVE TO AMEND.

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  1. Motion to Strike

 

As stated above, the Court previously granted Defendant?s motion to strike in the original complaint after concluding that Plaintiff had failed to plead facts sufficient to demonstrate malice or oppression on the part of Defendant.? Plaintiff maintains that she has now, in the third cause of action of the FAC, pleaded sufficient facts to support her request for punitive damages.? However, given the ruling on the demurrer, the Court concludes that Defendant?s motion to strike is MOOT.