Defendant's Demurrer; Motion to Strike
Case No.: PCU322290 Date: June 30, 2026 Time: 8:30 A.M. Dept. 19 - The Honorable Russell P. Burke Motion: Defendant's (1) Demurrer and (2) Motion to Strike Tentative Ruling: (1) To overrule the demurrer; (2) To deny the motion to strike; to order Defendant to answer the complaint no later than ten (10) days from the date of this hearing.
Facts Common to (1) and (2) In this matter, Plaintiff sues Defendant Robert Jimenez for two causes of action for motor vehicle negligence and general negligence, alleging the following: "Robert Jimenez was the owner of the cow that was in the middle of Road 248, City of Porterville, County of Tulare, which Plaintiff struck on June 11, 2023, causing damages and injuries in an amount to be determined at trial."
Defendant demurrers to the entirety of the complaint on grounds that it fails to allege a cause of action and that it is uncertain, ambiguous and unintelligible. Further, Defendant moves to strike: "The Second Cause of Action for General Negligence as duplicative; Any and all allegations referring to DOES 1-10 to the extent they are used to improperly attribute liability without factual basis; Any conclusory allegations lacking supporting facts regarding ownership or control of the animal."
In opposition, Plaintiff argues the complaint sufficiently pleads negligence theories to place Defendant on notice of the theory, that is, that Defendant owned a cow that Plaintiff's vehicle struck. Further, that the complaint is not uncertain based on the same, sufficient allegations. Finally, that the two causes of action do not completely overlap and, in any event, duplicative causes of action are not a basis for demurrer or a motion to strike.
(1) Demurrer - Authority and Analysis The purpose of a demurrer is to test whether a complaint "states facts sufficient to constitute a cause of action upon which relief may be based." (Young v. Gannon (2002) 97 Cal.App.4 th 209, 220.
To state a cause of action, a plaintiff must allege facts to support his or her claims, and it is improper and insufficient for a plaintiff to simply plead general conclusions. (Careau v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 11371, 1390.)
The complaint must contain facts sufficient to establish every element of that cause of action, and thus a court should sustain the demurrer if "the defendants negate any essential element of a particular cause of action." (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4 th 857, 879-80)
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To determine whether the complaint states facts sufficient to constitute a cause of action, the trial court may consider all material facts pleaded in the complaint and those that arise by reasonable implication therefrom; it may not consider contentions, deductions, or conclusion of fact or law (Moore v. Conliffe (1994) 7 Cal.4 th 634, 638.)
It is well-settled that all well-pled material facts in the complaint are assumed to be true for the purpose of the demurer. (C & H Foods v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062)
But "doubt in the complaint may be resolved against plaintiff and facts not alleged are presumed not to exist. (Id.)
A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)
No other extrinsic evidence can be considered (i.e., no "speaking demurrers"). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)
Judicial Form Complaint for Negligence To start, the Court recognizes that "A Judicial Council form complaint may be subject to demurrer." (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1483.)
That court also noted "In some cases, merely checking a box on a Judicial Council form complaint will be sufficient. In other cases, such as this one, where specific allegations need be alleged, the form complaint is like a partially completed painting. It is up to the pleader to add the details that complete the picture." (Id. at 1486.)
The elements of a negligence claim are: (1) a duty on the part of defendant toward plaintiff; (2) defendant's breach of that duty; (3) and harm to the plaintiff caused by the breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.)
Here, the Court agrees that the allegations of the complaint that Defendant owned the cow that was in the road that was struck by Plaintiff's vehicle are sufficient to allege causes of action for negligence.
Further, the Court agrees that "[a]ll that is required of a plaintiff, as a matter of pleading, even as against a special demurrer, is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action." (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)
Further, "demurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond." (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3, citing Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.)
In addition, even where a complaint is in some respects uncertain, courts strictly construe a demurrer for uncertainty "because ambiguities can be clarified under modern discovery procedures." (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)
Finally, the Court agrees that the general negligence claim, at least at the pleading stage, has a broader scope than the motor vehicle negligence claim and therefore the claims are not wholly duplicative. Therefore, the Court overrules the demurrer.
(2) Motion to Strike - Authority and Analysis Any party may file a timely notice of a motion to strike the whole or any part of a pleading. (Code Civ. Proc., Sec. 435, subd. (b).)
The motion may seek to strike any "irrelevant, false or improper matter inserted in any pleading" or any part of the pleading "not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court." (Code Civ. Proc., Sec. 436.)
Irrelevant allegations include allegations that are not essential to the statement of a claim, allegations that are not pertinent to or supported by the claim and demands for judgment requesting relief not supported by the allegations. (Code Civ. Proc., Sec. 431.10, subds. (b), (c).)
The Court, for the same reasons noted above, denies the motion to strike the second cause of action as duplicative or that the allegations are insufficient, noting the finding above on demurrer with respect to the sufficiency of the pleading.
The Court, therefore, orders Defendant to answer the complaint no later than ten (10) days from the date of this hearing.
If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.
Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings. Re: Schuler, Dillon vs. Schuler, Terry