| Case | County / Judge | Motion | Ruling | Indexed | Hearing |
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Defendants’ Demurrer to the Third Amended Complaint
(37) Tentative Ruling
Re: Gonzales v. City of Fresno Superior Court Case No. 23CECG05172
Hearing Date: May 21, 2026 (Dept. 503)
Motion: Defendants’ Demurrer to the Third Amended Complaint
Tentative Ruling:
To sustain defendants’ demurrer as to the second cause of action, with leave to amend. To sustain defendants’ demurrer as to the first and third causes of action, without leave to amend. Plaintiff is granted 10 days’ leave to file the Fourth Amended Complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type.
Explanation:
The function of a demurrer is to test the sufficiency of a pleading by raising questions of law. (Plumlee v. Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether a plaintiff has succeeded in stating a cause of action; the court does not concern itself with the issue of a plaintiff’s possible difficulty or inability in proving the allegations of the complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) In assessing the sufficiency of the complaint against the demurrer, we treat the demurrer as admitting all material facts properly pleaded, bearing in mind the appellate courts’ well established policy of liberality in reviewing a demurrer sustained without leave to amend, liberally construing the allegations with a view to attaining substantial justice among the parties. (Glaire v. LaLanne-Paris Health Spa, Inc. (1974) 12 Cal.3d 915, 918.)
Government Claim
Failure to present a timely government tort claim acts as a bar from a lawsuit against a government entity. (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 374.) Where a claim is deficient, the doctrine of substantial compliance may act to validate the claim. (
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In Nelson v. County of Los Angeles (2003) 113 Cal.App.4th 783, 797-798, the appellate court considered whether there was substantial compliance where the lawsuit alleged survival and wrongful death claims, but the government claim focused on the wrongful death. There, the court noted that the estate did not file a claim and there was nothing in the claim suggesting it was filed in anything but the plaintiff’s individual capacity. (Id. at p. 797.) The appellate court found the survivorship claims were properly 12
resolved. (Ibid.) Where more than one person “suffer[s] separate and distinct injuries from the same act or omission, each person must submit a claim, and one cannot rely on a claim presented by another.” (Id. at p. 796.)
Here, on further review, the court notes that the amended claim only lists Megan Gonzales, as Guardian Ad Litem, for Victor Cardenas III, decedent’s son. Thus, there was no claim brought on behalf of the estate of Victor Cardenas II, the decedent. As such, the survival claim is subject to demurrer. The court sustains the demurrer to the third cause of action, without leave to amend.
Uncertainty
A party may object by demurrer to any pleading on the ground that it is uncertain. (Code Civ. Proc., § 430.10, subd. (f).) As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible.” Demurrers for uncertainty are disfavored. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty may be sustained when the complaint is drafted in a manner that is so vague or uncertain that the defendant cannot reasonably respond, e.g., the defendant cannot determine what issues must be admitted or denied, or what causes of action are directed against the defendant. (Ibid.) Demurrers for uncertainty are appropriately overruled where “ambiguities can reasonably be clarified under modern rules of discovery.” (Ibid.)
First Cause of Action
Here, the intended plaintiff is uncertain for the motor vehicle cause of action. Plaintiff is named “Megan Gonzales GAL for Victor Cardenas, III” on the form attachment. Plaintiff is named as “Megan Gonzales GAL for Victor Cardenas, III, a minor and as a successor in interest to Decedent Victor Cardenas” on the first page of the complaint. To the extent that the motor vehicle cause of action is raised in connection with the decedent’s potential survivor claim, as noted above, demurrer is sustained without leave to amend.
To the extent that the motor vehicle cause of action is raised on behalf of the minor, it is apparent throughout the Third Amended Complaint that the minor was not involved in the motor vehicle accident. As the first cause of action is either subject to demurrer without leave to amend or attempts to assert an injury which, on the face of the pleadings, did not occur, the court sustains the demurrer as to the first cause of action, without leave to amend.
Second Cause of Action
The second cause of action attachment is for general negligence. Plaintiff clarifies in this attachment that it is made pursuant to Code of Civil Procedure section 377.60 and Government Code section 815.2. Code of Civil Procedure section 377.60 is meant for individuals to bring for an alleged wrongful death and may be brought, as it is here, by a child of the decedent. Plaintiff does also refer to Code of Civil Procedure section 377.30. Code of Civil Procedure section 377.30 is intended as a decedent’s cause of action for a survival claim.
A demurrer is appropriately sustained where two distinct causes of action are not separately stated. (Campbell v. Rayburn (1954) 129 Cal.App.2d 232, 235.) Survival actions 13
and wrongful death claims are two distinct causes of action. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1264.) The court sustains the demurrer as to the second cause of action, with leave to amend, such that only a wrongful death claim is alleged.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: JS on 5/19/2026. (Judge’s initials) (Date)
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