This case was last updated from Los Angeles County Superior Courts on 10/09/2020 at 07:32:07 (UTC).

MARCUS CAZARES VS MARIAM MALYAN

Case Summary

On 03/11/2019 MARCUS CAZARES filed a Personal Injury - Motor Vehicle lawsuit against MARIAM MALYAN. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******2446

  • Filing Date:

    03/11/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Motor Vehicle

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiff

CAZARES MARCUS

Los Angeles, CA 90041

Defendant

MALYAN MARIAM

Attorney/Law Firm Details

Defendant Attorneys

FERRARIS J. PAT

DOLLAR EDWARD E.

 

Court Documents

Motion to Strike (not initial pleading) - Motion to Strike (not initial pleading)

7/11/2019: Motion to Strike (not initial pleading) - Motion to Strike (not initial pleading)

Reply (name extension) - Reply TO OPPOSITION TO MOTION TO STRIKE

8/5/2019: Reply (name extension) - Reply TO OPPOSITION TO MOTION TO STRIKE

Reply (name extension) - Reply TO OPPOSITION TO DEMURRER TO COMPLAINT

8/5/2019: Reply (name extension) - Reply TO OPPOSITION TO DEMURRER TO COMPLAINT

Notice of Ruling - Notice of Ruling

8/12/2019: Notice of Ruling - Notice of Ruling

Reply (name extension) - Reply Sur Reply to Motion to Strike

8/12/2019: Reply (name extension) - Reply Sur Reply to Motion to Strike

Summons - Summons on Amended Complaint (1st)

9/11/2019: Summons - Summons on Amended Complaint (1st)

Demurrer - with Motion to Strike (CCP 430.10) - Demurrer - with Motion to Strike (CCP 430.10)

10/23/2019: Demurrer - with Motion to Strike (CCP 430.10) - Demurrer - with Motion to Strike (CCP 430.10)

Motion re: (name extension) - Motion re: NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF EDWARD E. DOLLAR REGARDING COMP

10/23/2019: Motion re: (name extension) - Motion re: NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF EDWARD E. DOLLAR REGARDING COMP

Proof of Service by Mail - Proof of Service by Mail

11/15/2019: Proof of Service by Mail - Proof of Service by Mail

Reply (name extension) - Reply DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION TO DEMURRER TO FIRST AMENDED COMPLAINT

11/27/2019: Reply (name extension) - Reply DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION TO DEMURRER TO FIRST AMENDED COMPLAINT

Reply (name extension) - Reply DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO STRIKE PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT

11/27/2019: Reply (name extension) - Reply DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO STRIKE PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT

Certificate of Mailing for - Certificate of Mailing for (Hearing on Demurrer - with Motion to Strike (CCP 430.10)) of 12/05/2019

12/5/2019: Certificate of Mailing for - Certificate of Mailing for (Hearing on Demurrer - with Motion to Strike (CCP 430.10)) of 12/05/2019

Notice of Posting of Jury Fees - Notice of Posting of Jury Fees

7/7/2020: Notice of Posting of Jury Fees - Notice of Posting of Jury Fees

Demand for Jury Trial - Demand for Jury Trial

7/7/2020: Demand for Jury Trial - Demand for Jury Trial

Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

6/11/2019: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Proof of Personal Service - Proof of Personal Service by Sheriff's Department

6/11/2019: Proof of Personal Service - Proof of Personal Service by Sheriff's Department

Summons - Summons on Complaint

3/11/2019: Summons - Summons on Complaint

Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

3/11/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

21 More Documents Available

 

Docket Entries

  • 03/14/2022
  • Hearing03/14/2022 at 10:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 01/04/2021
  • Hearing01/04/2021 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 07/07/2020
  • DocketAnswer; Filed by: Mariam Malyan (Defendant)

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  • 07/07/2020
  • DocketDemand for Jury Trial; Filed by: Mariam Malyan (Defendant)

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  • 07/07/2020
  • DocketNotice of Posting of Jury Fees; Filed by: Mariam Malyan (Defendant)

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  • 07/07/2020
  • DocketUpdated -- EDWARD E. DOLLAR (Attorney): First Name changed from Edward to EDWARD; Last Name changed from Dollar to DOLLAR; Middle Name changed from Earlton to E.

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  • 07/07/2020
  • DocketPursuant to written stipulation, Non-Jury Trial scheduled for 09/08/2020 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Advanced and Continued - by Party was rescheduled to 01/04/2021 08:30 AM

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  • 12/05/2019
  • DocketMinute Order (Hearing on Demurrer - with Motion to Strike (CCP 430.10))

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  • 12/05/2019
  • DocketCertificate of Mailing for (Hearing on Demurrer - with Motion to Strike (CCP 430.10)) of 12/05/2019; Filed by: Clerk

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  • 12/05/2019
  • DocketHearing on Demurrer - with Motion to Strike (CCP 430.10) scheduled for 12/05/2019 at 10:30 AM in Stanley Mosk Courthouse at Department 94 updated: Result Date to 12/05/2019; Result Type to Held

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29 More Docket Entries
  • 03/11/2019
  • DocketComplaint; Filed by: Marcus Cazares (Plaintiff); As to: Mariam Malyan (Defendant)

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  • 03/11/2019
  • DocketUpdated -- Amended Complaint (1st): Status Date changed from 09/11/2019 to 03/11/2019

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  • 03/11/2019
  • DocketOrder on Court Fee Waiver (Superior Court); Filed by: Clerk

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  • 03/11/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 03/14/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 03/11/2019
  • DocketNon-Jury Trial scheduled for 09/08/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 03/11/2019
  • DocketCase assigned to Hon. James E. Blancarte in Department 94 Stanley Mosk Courthouse

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  • 03/11/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 03/11/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 03/11/2019
  • DocketSummons on Complaint; Issued and Filed by: Clerk

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  • 03/11/2019
  • DocketCivil Case Cover Sheet; Filed by: Marcus Cazares (Plaintiff)

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Tentative Rulings

Case Number: 19STLC02446    Hearing Date: December 05, 2019    Dept: 94

DEMURRER; MOTION TO STRIKE

(CCP §§ 430.31, et seq., 435-436)

TENTATIVE RULING:

Defendant Marian Malyan’s Demurrer to the Complaint is SUSTAINED AS TO THE THIRD AND FOURTH CAUSES OF ACTION WITHOUT LEAVE TO AMEND.

Defendant Marian Malyan’s Motion to Strike Portions of the Complaint is GRANTED AS TO THE REQUEST FOR EXEMPLARY DAMAGES WITHOUT LEAVE TO AMEND.

REQUEST FOR RELIEF: Sustain demurrer to third cause of action for intentional tort and fourth cause of action for fraud in the First Amended Complaint for failure to allege facts sufficient to state a cause of action and uncertainty. There are no facts alleged that Defendant intentionally violated the law, and the fraud cause of action is not alleged with the requisite specificity. Strike the request for punitive damages because it is unsupported by the facts alleged.

OPPOSITION: [Untimely filed on November 22, 2019; due by November 20, 2019.]

REPLY: None filed as of December 2, 2019.

ANALYSIS:

Legal Standard

Demurrer

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party’s pleading. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purpose of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true, however improbable they may be.

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”). A demurrer is brought under CCP § 430.10 [grounds], § 430.30 [as to any matter on its face or from which judicial notice may be taken], and § 430.50(a) [can be taken to the entire complaint or any cause of action within]. Specifically, a demurrer may be brought per CCP § 430.10(e) if insufficient facts are stated to support the cause of action asserted. Per CCP §430.10(a) a demurrer may be brought where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. Furthermore, demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. CCP § 430.10(f).

However, in construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) And, if the facts pled in the complaint are inconsistent with facts which are incorporated by reference from exhibits attached to the complaint, the facts in the incorporated exhibits control. Further, irrespective of the name or label given to a cause of action by the plaintiff, a general demurrer must be overruled if the facts as pled in the body of the complaint state some valid claim for relief. Special demurrers are not allowed in limited jurisdiction courts. (CCP § 92(c).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, CCP section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (CCP § 430.41(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (CCP § 430.41(a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (CCP § 430.41(a)(3).)

Motion to Strike

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (CCP §§ 435; 436(a).) Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders. (CCP § 436(b).) Motions to strike in limited jurisdiction courts may only challenge pleadings on the basis that “the damages or relief sought are not supported by the allegations of the complaint.” (CCP § 92(d).) A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer. (Pierson v. Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v. Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).) In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers. (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.) California’s policy of liberal construction applies to motions to strike. (CCP § 452; see also Duffy v. Campbell (1967) 250 Cal.App.2d 662, 666 (noting that courts must resolve all reasonable doubts in favor of the pleading when considering a motion to strike).) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (CCP § 436.)

Finally, CCP section 435.5 requires that “[b]efore filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that resolves the objections to be raised in the motion to strike.” (CCP § 435.5(a).)

Discussion

On March 8, 2019, Plaintiff Marcus Cazares (“Plaintiff”) filed the instant action for motor vehicle negligence, general negligence, intentional tort and fraud against Defendant Mariam Malyan (“Defendant”). On August 12, 2019, the Court overruled Defendant’s demurrer to the first and second causes of action in the Complaint, and sustained the demurrer to the third and fourth causes of action in the Complaint with leave to amend. The Court also denied Defendant’s motion to strike portions of the Complaint except as to the request for exemplary damages, which the Court granted with leave to amend.

Plaintiff filed the First Amended Complaint on September 11, 2019. Defendant filed the instant demurrer to, and motion to strike portions of, the First Amended Complaint on October 23, 2019. The demurrer and motion to strike are accompanied by a meet and confer declaration pursuant to Code of Civil Procedure section 430.41. (See Demurrer, Dollar Decl., ¶¶3-6) Plaintiff untimely filed his opposition to the demurrer and motion to strike on November 22, 2019.

Demurrer to Complaint

Defendant demurs to the First Amended Complaint for failure to allege sufficient facts and uncertainty. As an initial matter, special demurrers are not permitted in courts of limited jurisdiction. (Code Civ. Proc., § 92, subd. (c).) The court, therefore, will not consider the demurrer for uncertainty. As to failure to allege sufficient facts, the court will consider each cause of action in turn.

As in the Complaint, the third cause of action in the First Amended Complaint is titled “Intentional Tort.” As noted in the ruling on the demurrer to the Complaint, there is no cause of action simply for “intentional tort.” As before, the First Amended Complaint alleges that Defendant intentionally refused to exchange drivers license and insurance information as required by law, but the relevant statute is not cited. (FAC, ¶IT-1.) Nor does Plaintiff allege facts as to how Defendant’s failure to exchange information caused him harm. (Ibid.) Similarly, Plaintiff alleges that Defendant “intentionally drove her vehicle while using her cellphone” but does not allege why this is the basis of a civil cause of action. (Ibid.) Also as noted before, the cause of action does not indicate any statutory basis to this cause of action. The demurrer to the third cause of action, therefore, is sustained without leave to amend.

The fourth cause of action again attempts to allege fraud, the elements of which are “(1) misrepresentation; (2) knowledge of falsity; (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage.” (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 86.) While the Complaint alleged that Defendant denied that her vehicle struck Plaintiff to both Plaintiff and the Glendale Police Department (Compl., ¶FR-2), the First Amended Complaint now alleges that Plaintiff justifiably relied on Defendant’s duty to drive without her cellphone and to pull over out of way of traffic. (FAC, ¶FR-5.) This shift in allegations demonstrates that there were no alleged misrepresentations made by Defendant to Plaintiff. A fraud cause of action cannot be premised on breach of a duty; that is the essence of negligence. Therefore, the demurrer to the fourth cause of action is also sustained without leave to amend.

Motion to Strike Portions of Complaint

Defendant also moves to strike the allegations in support of, and the request for, exemplary damages. Punitive damages are authorized by Civil Code section 3294 in non-contract cases “where the defendant has been guilty of oppression, fraud, or malice, express or implied . . . .” (Civil Code, § 3294, subd. (a).) Malice means 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. (Civil Code, § 3294, subd. (c)(1).) Oppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Civil Code, § 3294, subd. (c)(2).) Finally, fraud means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the party of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civil Code, § 3294, subd. (c)(3).)

Accordingly, the negligence causes of action cannot support the request for punitive damages, which can only be sought in connection with the third and fourth causes of action. As the court has already determined the demurrer to the third and fourth causes of action should be sustained, the motion to strike is correspondingly granted without leave to amend.

Conclusion

Defendant Marian Malyan’s Demurrer to the Complaint is SUSTAINED AS TO THE THIRD AND FOURTH CAUSES OF ACTION WITHOUT LEAVE TO AMEND.

Defendant Marian Malyan’s Motion to Strike Portions of the Complaint is GRANTED AS TO THE REQUEST FOR EXEMPLARY DAMAGES WITHOUT LEAVE TO AMEND.

Moving party to give notice.