GUADALUPE ALVAREZ v. ALBERTO JOSEPH SANCHEZ AND CATHY DORADO

Based on the foregoing, as much of the COAs are barred by the SOL (1-4) and no facts have been proffered in the opposition as the fraud COA, the court is inclined to grant the entirety of the MJOP without leave to amend. [1] The opposition does not address the statute of repose. With that, the court will focus on the SOL.

(1) NOTICE OF DEFENDANT ALBERTO JOSEPH SANCHEZ' DEMURRER AND DEMURRER TO THE FIFTH CAUSE OF ACTION OF PLAINTIFF'S FIRST AMENDED COMPLAINT [CCP Sec.430.10] is SUSTAINED without leave to amend but only insofar as gross negligence is not a COA. (2) NOTICE OF DEFENDANT ALBERT JOSEPH SANCHEZ' MOTION AND MOTION TO STRIKE PUNITIVE AND EXEMPLARY DAMAGES FROM PLAINTIFF'S FIRST AMENDED COMPLAINT [CCP Sec.Sec. 435 and 436] is DENIED.

Background

This case arises from the death of a minor who was riding his bicycle to school and got struck by a car. On May 15, 2026, Plaintiff GUADALUPE ALVAREZ, an Individual, and as Successor-in- interest to ALEXANDER LOPEZ, deceased filed suit against Defendants ALBERTO JOSEPH SANCHEZ (driver) and CATHY DORADO (pled to negligently entrust the vehicle to Sanchez). On July 23, 2026, Plaintiffs filed their first amended complaint (FAC) for: 1. WRONGFUL DEATH; 2. SURVIVAL ACTION; 3. NEGLIGENCE; 4. NEGLIGENCE PER SE; 5. GROSS NEGLIGENCE; and 6. NEGLIGENT ENTRUSTMENT On July 31, 2026, the instant demurrer and motion to strike (MTS) were filed. That same day, Dorado filed her answer. On August 14, 2026, oppositions were filed. On August 19, 2026, replies were filed.

Discussion

Defendant argues that the fifth COA for gross negligence is conclusively pled/uncertain and in turn seeks that the punitive damages be struck. The court disagrees. The FAC alleges, in pertinent part and taken verbatim, the following: The collision occurred adjacent to a high school campus and in an area marked with a prominently posted " 25 MPH - SLOW CHILDREN ARE PRESENT " warning sign during the morning hours when students were reasonably expected to be traveling to school on foot and by bicycle; September 30, 2024, was a Monday and school day; despite these obvious circumstances, Defendant SANCHEZ operated the SUBJECT VEHICLE at approximately 45 to 50 miles per hour and accelerated around and passed slower-moving vehicles immediately before striking Decedent; Defendant SANCHEZ knew, or reasonably should have known, that children, minors, students, bicyclists, and pedestrians were likely to be traveling to school at that time and location--especially at approximately 7:23 a.m. on a school day; Defendant SANCHEZ knowingly operated the SUBJECT VEHICLE at approximately 45 to 50 miles per hour during the morning school commute in an area adjacent to a high school campus and marked with a prominently posted "25 MPH - SLOW CHILDREN ARE PRESENT" warning sign.

Defendant SANCHEZ knew, or reasonably should have known, that children, bicyclists, and pedestrians were likely to be traveling to school at that time and location and that operating a massive, full-size pickup truck at an unsafe and excessive speed while accelerating around and passing slower-moving vehicles created a substantial and foreseeable risk of causing catastrophic injury or death. Yet, against these facts--that Defendant was speeding and driving unsafely in a school zone on a school day and in a massive car--Defendant argues these are mere "conclusions" of gross negligence. (See e.g., Demurrer p. 7:18-21 ["However, PLAINTIFF'S FAC is silent with regard to specific conduct or facts that SANCHEZ did or failed to do to establish such an extreme departure."]; see also Reply p. 4:3-6 ["[P]led no specific facts to support the allegation that SANCHEZ demonstrated want of even scant care or that he acted consciously and voluntarily to "kill" Decedent."].)

But conclusively arguing gross negligence would mean but regurgitating the principles governing the theory: i.e., that a plaintiff alleges the traditional elements of negligence and then adds a conclusive allegation that defendant engaged in extreme conduct. (Demurrer p. 5, citing Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4 th 1072, 1082.) But Plaintiff has not done that. Rather, Plaintiff alleges the ways in which Defendant drove in a want of even scant care under the circumstance (i.e., fast, recklessly in a school zone on a school day). It is unclear how that want of care does not raise a presumption of the conscious indifference to consequences. (Demurrer p. 6, citing Cooper v. Kellogg, (1935) 2 Cal.2d 504, 510-11.)

To the extent that Defendant argues that he stopped to render aid or that the morning sun inhibited his ability to see, as noted in opposition, Defendant Sanchez' Demurrer relies on facts that are not within the four corners of the FAC. This a demurrer wherein the sufficiency of the allegations is solely made as against the complaint, not a defendant's recitation of events.

Notwithstanding, Defendant correctly argues gross negligence is not a COA. (See Joshi v. Fitness International, LLC (2022) 80 Cal.App.5th 814, 825 [" Gross negligence is a subspecies of negligence; it is not a separate tort. As the Supreme Court held, its conclusion that an agreement purporting to release a claim for future gross negligence was expressly not a recognition of "a cause of action for gross negligence."]; see also Epochal Enterprises, Inc. v. LF Encinitas Properties, LLC (2024) 99 Cal.App.5th 44, 55 [" California does not recognize a distinct common law cause of action for gross negligence apart from negligence."].)

The opposition does not meaningfully address this point but perhaps tacitly concedes it by arguing the California Supreme Court has expressly recognized gross negligence as a distinct degree of negligence, suggesting it is but a negligence tort. (Opp. p. 4:21-22.)

Additionally, Defendant argues that Plaintiff's FAC "proffers no proof that SANCHEZ had a history of dangerous driving, or that he deliberately drove his vehicle in a dangerous manner." (Demurrer pp. 7-8.) As to the latter point, that inference can be drawn in favor of Plaintiffs, and inferences are permissible to determine the sufficiency of the facts. [1] As to the former, the opposition does not address that point. Regardless, enough has been pled for gross negligence. With that, the court sustains the demurrer without leave to amend but only because gross negligence is not a COA.

That said, for the reasons set forth above, the court DENIES the motion to strike punitive damages. Plaintiff has sufficiently pled the ultimate facts as to malice, which is defined as "conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others." (Civ. Code Sec. 3294(c)(1); see also Motion citing Dawes v. Superior Court (1980) 111 Cal.App.3d 82.) While Defendant attempts to use Dawes to demonstrate how punitive damages are not supported, Dawes undermines Defendant's position.

In Dawes, the defendant driver ran a stop sign, zigzagged in and out of traffic at speeds in excess of 65 m.p.h. in 35 m.p.h. zone in a beach recreational area at 1:30 p.m. on a weekend during the summer while drunk. Defendant focuses how in that case the driver was drunk, that is irrelevant. Driving drunk is not the only way to show malice or despicable conduct. Just like how the risk of injury to others from ordinary driving while intoxicated is certainly foreseeable, so too is the risk to minors when one drives in the manner Defendant did where he did.

To the extent that Defendant uses the criminal case wherein he was charged with vehicular manslaughter rather than murder to show that no probable cause existed to charge Defendant Sanchez with a crime of malice and therefore Plaintiff cannot establish civil malice by clear and convincing evidence, Defendant has not explained how that case has a bearing on this case (notably with different legal standards). [2] All in all, the crux of Defendant's demurrer and MTS are that Plaintiff conclusively makes allegations of malice and/or that Defendant consciously and voluntarily continued his dangerous course of conduct in reckless disregard of the rights and safety of others but the FAC does plead the requisite facts. This is but a demurrer whereby questions of fact (i.e., whether a SANCHEZ putting students at risk, and ultimately killing a student, rises to the level of "an extreme departure from the ordinary standard of conduct") cannot be resolved. (See e.g., Joshi, supra.)

Conclusion

Based thereon the demurrer is SUSTAINED without leave to amend but only to remove the gross negligence COA but the allegations supporting gross negligence may remain; the motion to strike is denied.

On a demurrer the court treats a demurrer as admitting "all reasonable inferences which can be drawn therefrom." (Trustees of Capital Wholesale Electric etc. Fund v. Shearson Lehman Brothers, Inc. (1990) 221 Cal.App.3d 617, 621.) [2] And as noted in opposition, Defendant's citation to Iram Enterprises v. Veditz (1981) 126 Cal.App.3d 603, 608 stands for the proposition that a complaint "otherwise good on its face" may be defective when facts judicially noticed render it so, not about a prosecutor's charging discretion controlling a civil malice determination. | Home -->)" -->