Jose Lopez Mendez v. Heriberto Mote Ponce

The original and still operative complaint, a form complaint, alleges three causes of action: (1) motor vehicle negligence; (2) general negligence; and (3) “Intentional Tort.” (The third cause of action is a category of cause of action, not a cause of action in itself.) The only intentional conduct alleged in the third cause of action (apart from the allegedly negligent motor vehicle accident) is that Ponce “gave false information to Plaintiff, and failed to complete the required report, which caused Plaintiff further damage in having to locate the Defendant.” There are no exhibits attached to the complaint.

Ponce previously brought a motion to set aside default and to dismiss the complaint. The court (Judge Chung) granted the motion to set aside default and denied the motion to dismiss in September 2025. The court directed Ponce to file a response to the complaint.

Now at issue is Ponce’s demurrer to the complaint, which Mendez opposes.

LEGAL STANDARDS—DEMURRER

In ruling on a demurrer, the court accepts as true all properly pleaded material factual allegations but does not accept as true contentions, deductions or conclusions of fact or law. (Valero v. Spread Your Wings, LLC (2023) 88 Cal.App.5th 243, 253.) Allegations are not accepted as true on demurrer if they contradict or are inconsistent with facts judicially noticed. (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1474 [rejecting allegation contradicted by judicially noticed facts].) Code of Civil Procedure section 430.60 states that “[a] demurrer shall distinctly specify the grounds upon which any of the objections to the complaint, cross-complaint, or answer are taken.

Unless it does so, it may be disregarded.” The California Rules of Court also require that the demurrer itself (distinct from a supporting memorandum) specify the target of any objection and the grounds. (Cal. Rules of Court, rules 3.1103(c), 3.1112(a), 3.1320(a) [“Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.”].)

The court cannot consider extrinsic evidence in ruling on a demurrer. The court has considered the declaration from Ponce’s counsel David Hirshik only to the extent it authenticates documents submitted for judicial notice with the demurrer. Finally, “points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.” (Proctor v. Vishay Intertechnology, Inc. (2013) 213 Cal.App.4th 1258, 1273.) The court has not considered the second request for judicial notice submitted with Ponce’s reply.

DISCUSSION

Code of Civil Procedure section 430.41, subdivision (a) requires the parties to meet and confer “in person, by telephone, or by video conference” before filing a demurrer. The demurring party must file a declaration with the demurrer describing the meet and confer efforts. It does not appear any meet and confer occurred. But because a failure to meet and confer is not a basis for overruling a demurrer, the court will consider Ponce’s demurrer. (Code Civ. Proc., § 430.41, subd. (a)(4).)

Request for Judicial Notice

Ponce requests judicial notice of five documents (attached to the demurrer rather than the request as exhibits A-E). Exhibits A through D are copies of court records from two small claims actions Mendez previously brought against Ponce. Judicial notice of those records is granted. (Evid. Code, § 452, subd. (d).) Factual findings in a judgment are generally not the proper subject of judicial notice. But “ ‘ “[w]hether a factual finding is true is a different question than whether the truth of that factual finding may or may not be subsequently litigated a second time.

The doctrines of res judicata and collateral estoppel will, when they apply, serve to bar relitigation of a factual dispute even in those instances where the factual dispute was erroneously decided in favor of a party who did not testify truthfully.” [Citation.] In other words, even though a factual finding in a prior judicial decision may not establish the truth of that fact for purposes of judicial notice, the finding itself may be a proper subject of judicial notice if it has a res judicata or collateral estoppel effect in a subsequent action.’ ” (Hawkins v.

SunTrust Bank (2016) 246 Cal.App.4th 1387, 1393.) The request for judicial notice of a copy of the complaint in this action (exhibit E) is denied. (Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn.1 [denying as unnecessary a request for judicial notice of pleading under review on demurrer].)

The Demurrer Must Be Sustained

Ponce demurs to the entire complaint on the basis that it “is barred by res judicata, collateral estoppel and claim preclusion.” (See Notice of Demurrer, labeled a Notice of Motion.)

A general demurrer lies where the facts alleged in the complaint or matters judicially noticed show that a plaintiff’s claim is barred by res judicata (also known as claim preclusion) or collateral estoppel (also known as issue preclusion). (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 792.) Res judicata and collateral estoppel because have different requirements. (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 823-824 (DKN).) Res judicata “prevents relitigation of the same cause of action in a second suit between the same parties” and “arises if a second suit involves: (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit.” (Id. at p. 824.)

Collateral estoppel bars relitigation of issues that were argued and decided in the first suit, not entire causes of action. (Ibid.) Collateral estoppel applies “(1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party.” (Id. at p. 825.)

Res judicata and collateral estoppel can be a basis for a demurrer. The preclusive effect of a small claims judgment depends on whether the judgment is against a small claims defendant or a small claims plaintiff. Small claims judgments are generally not considered to have res judicata or collateral estoppel effect on regular civil cases where there is a judgment 5

against the small claims defendant. (Sanders v. Walsh (2013) 219 Cal.App.4th 855, 865-870 (Sanders); Sanderson v. Niemann (1941) 17 Cal.2d 563, 573-574 (Sanderson); Pitzen v. Superior Court (2004) 120 Cal.App.4th 1374, 1386 (Pitzen).) But small claims judgments can have collateral estoppel effect against a small claims plaintiff.

In Sanders and Pitzen, the Courts of Appeal came to different conclusions as to whether collateral estoppel could apply in instances where the doctrine was being used against a small claims plaintiff. In Pitzen, the Court determined that it “could perceive of no rationale for refusing to afford collateral estoppel effect to claims litigated and decided against a small claims plaintiff. Fundamental fairness dictates that such a plaintiff, having chosen to litigate in an informal setting by bringing an action in small claims court, cannot cite the informality of that forum to gain a second chance to litigate a previously decided issue in a related matter.

Allowing a small claims plaintiff to relitigate an issue already decided against him in the forum of his choice is inconsistent with the public policy that a plaintiff electing to proceed in a small claims court is to be finally bound by an adverse judgment.” (Pitzen, supra, 120 Cal.App.4th at p. 1386, internal citation and quotation marks omitted; see also Bailey v. Brewer (2011) 197 Cal.App.4th 781, 791 (Bailey) [“A small claims plaintiff is collaterally estopped from relitigating the same issue in superior court where the record is sufficiently clear to determine that the issue was litigated and decided against the plaintiff in the small claims action.”].)

In Sanders, by contrast, the court concluded that “Pitzen was wrongly decided . . . [n]o formal pleading, other than the claim described in Section 116.320 or 116.360, is necessary to initiate a small claims action. The pretrial discovery procedures described in Section 2019.010 are not permitted in small claims actions. The discovery methods listed in Code of Civil Procedure section 2019.010, which are not available in a small claims action, are (a) Oral and written depositions; (b) Interrogatories to a party; (c) Inspections of documents, things, and places; (d) Physical and mental examinations; (e) Requests for admissions; and (f) Simultaneous exchanges of expert trial witness information.

The hearing and disposition of the small claims action shall be informal, the object being to dispense justice promptly, fairly, and inexpensively.” (Sanders, supra, 219 Cal.App.4th at p. 865-867, internal citations and quotation marks omitted.)

“When there is a division in Court of Appeal opinions, a trial court chooses which line of authority to follow.” (The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993, 1002, citations omitted.) The court finds Pitzen more persuasive than Sanders.

In addition, in Allstate Insurance Co. v. Mel Rapton, Inc. (2000) 77 Cal.App.4th 901, 913-914 (Allstate), the Court of Appeal determined that res judicata—as opposed to collateral estoppel—could, and should, be applied in instances where a small claims plaintiff appeared to be “splitting” causes of action against the same defendant. The Allstate case involved a plaintiff (Gallagher) who obtained a judgment in small claims court for property damage to her car, and then a subrogation action was brought in regular civil court by her insurer for further damages against the same defendant.

The Court determined that the civil action was barred by res judicata, because Gallagher and her insurer could have brought all of her damages claims in a single venue, rather than in multiple: “A plaintiff cannot split a single cause of action and make it the basis of several suits in order to take advantage of small claims court jurisdiction and procedure.” (Id. at p. 914.) Here, Mendez also appears to be splitting causes of action against the same defendant.

The small claims court records establish that Mendez brought two small claims actions against Ponce. Both of them were explicitly based on a car accident that allegedly occurred on October 20, 2020. The second action, case No. 21SC085637, proceeded to a judgment. After hearing testimony and viewing video provided by Mendez, the small claims court determined in October 2021 that “[s]ince it cannot be determined that Defendant hit Plaintiff’s car, Plaintiff’s claim for property damages and personal injury damages is denied.” The resulting notice of entry of judgment states, “Defendant does not owe plaintiff any money on plaintiff’s claim.” (See exhibits A-D to Ponce’s request for judicial notice.) Mendez filed his complaint in this limited civil action a few months later.

Both of Mendez’s prior small claims actions and the current civil lawsuit are based entirely on the alleged October 20, 2020 auto accident. The same primary right is involved. The court finds that the judicially noticed material shows that this lawsuit is barred by the collateral estoppel effect of the small claims judgment under the Pitzen and Bailey decisions and the claim preclusion effect of the small claims judgment under the Allstate decision.

A plaintiff bears the burden of demonstrating that an amendment would cure the defect identified on demurrer. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Shaeffer v. Califia Farms, LLC (2020) 44 Cal.App.5th 1125, 1145.) Mendez has not met this burden. He has filed two separate opposition briefs. The first, filed on March 17, argues that Ponce has failed to show that the small claims actions resulted in a final adjudication that would bar this action. Contrary to Mendez’s argument, case no. 21SC085637 proceeded to a judgment against Mendez.

The first opposition does not seek leave to amend; it simply argues that the demurrer should be overruled and demands that the default judgment be reinstated. The second opposition, filed on March 18, does not address the demurrer but instead attempts to reargue the motion to set aside default and motion to dismiss that was already decided in September 2025.

Because Mendez has not demonstrated a reasonable possibility of amending the complaint to overcome the preclusive effect of the small claims judgment against him in case No. 21SC085637, leave to amend is denied.

CONCLUSION

Ponce’s request for judicial notice is granted in part and denied in part.

Ponce’s demurrer to the complaint is sustained without leave to amend.

The case management conference scheduled for May 26, 2026 is vacated.

The court will prepare the order.

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