Francisco Nuevo Moreno v. Airline Coach Service, Inc., et al.

Code of Civil Procedure section 430.10 sets forth eight possible grounds for demurrer, including that “[t]he pleading does not state facts sufficient to constitute a cause of action” (Code Civ. Proc., § 430.30, subd. (e)).

A demurrer founded on section 430.10, subdivision (e), is called a “general demurrer.” (McKenney v. Purepac Pharm. Co. (2008) 167 Cal.App.4th 72, 77.)

“A ruling on a general demurrer is thus a method of deciding the merits of a cause of action on assumed facts without a trial.” (Ibid. (internal quotations omitted) (emphasis added).)

Since a general demurrer “admits the truth of all material factual allegations in the complaint,” a plaintiff’s ability to prove these allegations “does not concern the reviewing court. The plaintiffs need only plead facts showing that they may be entitled to some relief.” (Fisher v. San Pedro

June 2, 2026 Law and Motion Calendar PAGE 14 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ Peninsula Hosp. (1989) 214 Cal.App.3d 590, 604 (Fisher) (internal quotations omitted) (superseded by statute on other grounds).)

In addition, a court reviewing a demurrer does not “assume the truth of contentions, deductions or conclusions of law.” (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.)

Nonetheless: If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.

“[W]e are not limited to plaintiffs’ theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. The courts of this state have ... long since departed from holding a plaintiff strictly to the ‘form of action’ he has pleaded and instead have adopted the more flexible approach of examining the facts alleged to determine if a demurrer should be sustained.” (Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38–39 (citations omitted) (italics retained).)

Moreover, when a plaintiff “has stated a cause of action under any possible legal theory,” it is error to sustain a demurrer. (Bush v. California Conservation Corps (1982) 136 Cal.App.3d 194, 200 (emphasis added).)

Further: the court is required to look at the existing pleading and hazard its best judgment whether behind the words of the pleading anything of legal substance lies, whether on further revision the pleading can honestly state a cause of action. (Tovar v. S. Cal. Edison Co. (1988) 201 Cal.App.3d 606, 615 (Tovar).)

Uncertainty (section 430.10, subdivision (f)) is generally a difficult ground on which to sustain a demurrer: Even though the complaint is in some respects uncertain, the courts often hold it good against demurrer on the theory that, “though not a model of pleading,” its allegations, liberally construed, are sufficient to apprise the defendant of the issues that he or she is to meet. (3 Witkin, Cal. Proc. 6th Plead. § 975 When Demurrer Will Be Overruled (Mar. 2026 update) (citations omitted).)

Demurrers for uncertainty are disfavored. (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822 (and citations therein).)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616 (Khoury) (citations omitted).)

A special demurrer for uncertainty should not be sustained when the allegations of the complaint “are sufficiently clear to apprise the defendant of the issues” which must be met. (Bacon v. Wahrhaftig (1950) 97 Cal.App.2d 599, 605 (citations omitted).)

Such a demurrer should be “granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292 (Morris) (citations omitted).)

Finally, leave to amend should be granted if it is reasonably possible for defects in pleading to be cured. As explained by the Supreme Court of California, it is well settled that “Generally, it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable

June 2, 2026 Law and Motion Calendar PAGE 15 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Legal Standards for Motion to Strike

The governing statute provides that: The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: Strike out any irrelevant, false, or improper matter inserted in any pleading. Strike out all or any part of any 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., § 436.)

The General Demurrer Is Overruled.

Defendant asserts that Plaintiff does not plead enough facts to establish that Defendant owed him a duty of care. This is unpersuasive.

For instance, Defendant argues that Plaintiff did not allege “the type of bus, the make or model of the bus, the color of the bus, the license plate number of the bus, or other identification or description about the bus.” (Defendant’s Memorandum of Points and Authorities (“MPA”), 7:11-13.)

However, this is counterfactual. The Complaint sufficiently alleges that, “Plaintiff Francisco Nuevo Moreno was crossing the street in a marked crosswalk when he was struck and seriously injured by an Airline Coach Service, Inc. bus” (Complaint, p.4, ¶ MV-1 (emphasis added).)

Further, the general duty of a motor-vehicle driver to a pedestrian to exercise reasonable care is established by law: The general duty owed by a driver of a motor vehicle is explained ... as follows: [T]he duty to exercise reasonable care in driving an automobile down the highway is established for the protection of the persons or property of others against all of the unreasonable possibilities of harm which may be expected to result from collisions with other vehicles, or with pedestrians, or from the driver’s own automobile leaving the highway, or from narrowly averted collisions or other accidents.

When harm of a kind normally to be expected as a consequence of the negligent driving results from the realization of any one of these hazards, it is within the scope of the defendant’s duty of protection. (Bryant v. Glastetter (1995) 32 Cal.App. 4th 770, 779 (internal quotations and citations omitted).)

Defendant argues insufficient particularity, as if a heightened pleading standard were to apply. However, negligence may be pled generally: It is settled by a long line of decisions in this state, beginning with the leading case of Smith v. Buttner, 90 Cal. 95 [27 Pac. 29], that “negligence may be charged in general terms; that is, what was done being stated, it is sufficient to say it was negligently done, without stating the particular omission which rendered the act negligent.” It seems to us that the allegations of the complaint last quoted meet and comply with these requirements.

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It is, of course, conceded that this rule is always subject to the qualification and condition that “it must appear from the facts averred that the negligence caused or contributed to the injury.” (Dunn v. Dufficy (1924) 194 Cal. 383, 386 (Dunn) (citations omitted).)

Also, “[I]t is sufficient to allege the negligence in general terms, specifying, however, the particular act alleged to have been negligently done.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 155 (internal quotations omitted).)

Here, the allegation that Defendant’s bus struck Plaintiff suffices to allege Defendant’s breach of the duty of care owed by the driver of a motor vehicle to a pedestrian.

Defendant further asserts that: Here, Plaintiff fails to allege a factual link between Defendant and the alleged incident that occurred on an autumn [sic] day on Thursday, August 10, 2023. (Plaintiff fails to allege the time when the alleged incident occurred.) The Complaint is devoid of any factual allegation concerning ownership or anyone with a property interest in a bus that was allegedly involved in a collision with Plaintiff at SFO on that day. (Defendant’s MPA, 7:3-7.)

As shown supra, this assertion is incorrect. The allegation that Defendant’s bus struck Plaintiff also sufficiently supports Plaintiff’s claim that his injuries flowed from that collision, as “from the facts averred it ... appear[s] that the negligence caused or contributed to the injury.” (Dunn, supra, 194 Cal. 383, 388.)

The determination of Defendant’s negligence depends on disputed facts, and must be left for the factfinder: The negligence of the defendant in the present case was not attempted to be shown by any single act or omission whose import or character was in no respect uncertain, but was an ultimate fact resulting from other facts and circumstances in the case, and was to be ascertained upon a consideration of these facts and circumstances viewed in connection with the respective relations of the parties. In such a case the issue of negligence is so much a question of fact, or is so dependent upon the determination of controverted facts, that its existence must be left to the jury. (Raub v. Los Angeles Terminal Ry. Co. (1894) 103 Cal. 474, 475.)

The Special Demurrer Is Overruled.

Defendant asserts that the allegation that Plaintiff was struck by “an Airline Coach Service, Inc. bus” is supported by no facts and is therefore speculative, and subject to special demurrer. The Court disagrees.

The allegations of the Complaint, liberally construed, are sufficient to apprise Defendant of the issues that it must meet, and are not so incomprehensible that a defendant cannot reasonably respond. (Morris, supra, 78 Cal.App.5th 279, 292.)

Moreover, any additional clarification that Defendant seeks can be provided through discovery. (Khoury, supra, 14 Cal.App.4th 612, 616.)

Plaintiff asserts (Opp., 9:10-14) and Defendant does not contradict that Plaintiff repeatedly has asked Defendant to file an Answer so that basic

June 2, 2026 Law and Motion Calendar PAGE 17 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________ written discovery could begin.

Plaintiff points out that Defendant has critical information that Plaintiff lacks, such as the name of the driver and whether Defendant properly documented the incident. (Ibid.)

It appears that such information is further unavailable to Plaintiff because the alleged incident was a hit-and-run. (See Opp., 3:1-2, & 9-12.)

The Motion to Strike Is Denied.

Defendant asserts that the allegation of “an Airline Coach Service, Inc. bus” is speculative, and subject to a motion to strike. This assertion is unpersuasive, for the reasons discussed supra.

The allegation that: “Plaintiff Francisco Nuevo Moreno was crossing the street in a marked crosswalk when he was struck and seriously injured by an Airline Coach Service, Inc. bus” (Complaint, p.4, ¶ MV-1) is not speculative. It is intelligible to a reasonable defendant, and facially shows no substantive defect.

Defendant’s Request for Judicial Notice

Defendant’s Request for Judicial Notice (“RJN”) is granted as to the Complaint filed in the instant action. (Evid. Code, § 452, subd. (d) & § 453.)

However, judicial notice of this document is limited to its existence, content, and authenticity, and does not extend to the truth of the factual matters contained therein. (Dominguez v. Bonta (2022) 87 Cal.App.5th 389, 400.)

The RJN is otherwise denied.

The RJN is made under subdivision (f) of Evidence Code section 451 as to the propositions that: “the San Francisco International Airport (‘SFO’) is an extremely busy airport with hundreds of vehicles traveling through the departure and arrival zones daily. Thousands of travelers and other people pass through SFO daily. SFO is heavily policed 24/7.” (RJN, ¶ 1.)

The cited statute provides that: “Judicial notice shall be taken of ... [f]acts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute.” (Evid. Code, § 451, subd. (f).)

Plaintiff challenges the relevance of this RJN, which is irrelevant in that Plaintiff sufficiently alleges that he was struck and injured “by an Airline Coach Service, Inc. bus” (Complaint, p.4, ¶ MV-1). The number of people and vehicles passing through the airport on a daily basis does not affect this allegation.

Moreover, though Defendant argues that Plaintiff did not allege the time of day when the bus struck him, the RJN does not specify how the transit of people and vehicles through the airport varies across the times of day. Also, the meaning of “heavily” and the level of policing at the airport is not so universally known that it cannot be disputed.

The RJN is further made pursuant to subdivisions (g) and (f) of Evidence Code section 452 as to the contents of two websites, printouts from which Defendant describes as being appended to the RJN. (RJN, ¶¶ 3-4, & Exhs. C & D.)

The Court declines to take judicial notice of Exhibits C and D. (G. Chem, Ltd. v. Superior Court (2022) 80 Cal.App.5th 348, 362, n.7 (“We may not take judicial notice of the truth of the contents of a website.” (citations omitted)).)

In addition, “A court ruling on a demurrer ... cannot take judicial notice of the proper interpretation of a document submitted in support of the demurrer.” (Fremont Indemnity Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97, 115 (citations omitted).)

June 2, 2026 Law and Motion Calendar PAGE 18 Judge: HONORABLE NANCY L. FINEMAN, Department 04 ________________________________________________________________________

Defendant has ten (10) days from service of written notice of entry of order to answer. (Cal. Rules of Court, rule 3.1320(g); Code Civ. Proc., § 472b.)

If the tentative ruling is uncontested, it shall become the order of the Court.

Thereafter, counsel for Plaintiff shall prepare for the Court’s signature a written order consistent with the Court’s ruling, pursuant to California Rules of Court, rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and by the California Rules of Court.