Laura Gutierrez Rodriguez, et al. vs Sabino Escobedo, et al.

26CV-00544 Laura Gutierrez Rodriguez, et al. vs Sabino Escobedo, et al.

Demurrer to Complaint

Defendant’s demurrer is OVERRULED IN PART and SUSTAINED IN PART WITH LEAVE TO AMEND.

Defendant’s general demurrer to the complaint is OVERRULED.

The special demurrer to the entire complaint for defect or misjoinder of parties is OVERRULED. An analysis of Code of Civil Procedure section 389 does not show that the minor children must be named in the complaint as a necessary party.

The special demurrer to the entire complaint for uncertainty is OVERRULED. Specifically, as to the issue of whether the contract was written or oral, the complaint states it is a written lease and further attaches the written document as Exhibit A. (Complaint ¶ 11, Exhibit A.)

Defendant’s demurrer to the First Cause of Action is OVERRULED.

Defendant’s demurrer to the Second Cause of Action is OVERRULED.

Defendant’s demurrer to the Third Cause of Action is SUSTAINED WITH LEAVE TO AMEND, on the basis of uncertainty. See Defendant’s Memo, 8:3-7.

Defendant’s demurrer to the Fourth Cause of Action is OVERRULED.

Defendant’s demurrer to the Fifth Cause of Action is SUSTAINED WITH LEAVE TO AMEND, on the basis of uncertainty. See Defendant’s Memo, 8:12-15.

Defendant’s demurrer to the Sixth Cause of Action is SUSTAINED WITH LEAVE TO AMEND, on the basis of uncertainty. See Defendant’s Memo, 8:16-19.

Defendant’s demurrer to the Seventh Cause of Action is OVERRULED.

Plaintiff is ordered to file an amended complaint within ten (10) days of this court’s order.

Motion to Strike Complaint

Defendant’s motion to strike is DENIED IN PART and GRANTED IN PART WITH LEAVE TO AMEND.

The motion to strike Paragraph 72 is GRANTED WITH LEAVE TO AMEND. Plaintiff does not sufficiently allege oppression, fraud, or malice, and fails to add a prayer for punitive damages. Plaintiff further fails to indicate whether the request for punitive damages is only as to the Fifth Cause of Action or is applicable to other causes of action.

Defendant’s motion to strike the Prayer at Nos. 3-7 is GRANTED WITH LEAVE TO AMEND. Here, Plaintiff fails to state with sufficient detail which causes of action apply to each prayer.

Defendant’s motion to strike the Prayer at No. 8 is DENIED.

Defendant’s motion to strike any remaining portion of the complaint as to any reference to punitive damages is DENIED. Defendant failed to specify the additional portions of the complaint subject to the motion to strike.

Plaintiff is ordered to file an amended complaint within ten (10) days of this court’s order.