Pending - Other Pending
Personal Injury - Uninsured Motor Vehicle
PAVAN FRANCISCO ANTONIO
POLLACK JASON A.
9/7/2022: Unknown - ALTERNATE DISPUTE RESOLUTION PACKET
9/7/2022: Voluntary Efficient Litigation Stipulation Packet
9/7/2022: Unknown - SEVENTH AMENDED STANDING ORDER FOR PROCEDURES IN THE PERSONAL INJURY HUB COURTS
9/7/2022: Unknown - NOTICE OF CASE ASSIGNMENT - UNLIMITED CIVIL PERSONAL INJURY CASE
9/7/2022: Summons - SUMMONS ON COMPLAINT
9/7/2022: Civil Case Cover Sheet
10/17/2022: Motion to Strike (not initial pleading)
10/17/2022: Demurrer - with Motion to Strike (CCP 430.10) - DEMURRER - WITH MOTION TO STRIKE (CCP 430.10) TO COMPLAINT;
10/17/2022: Declaration - DECLARATION OF NICOLE FASSONAKI ISO DEMURRER
10/17/2022: Request for Judicial Notice
10/17/2022: Request for Judicial Notice
10/17/2022: Declaration - DECLARATION OF NICOLE FASSONAKI ISO MTS
10/28/2022: Amended Complaint - AMENDED COMPLAINT (1ST)
11/4/2022: Declaration - DECLARATION OF PLAINTIFF DEBBIE PHIPPS IN SUPPORT OF HER COMPLAINT FOR DAMAGES FOR WRONGFUL DEATH [CAL CODE CIV PROC SECTION 377.60]
Hearing09/04/2024 at 08:30 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Dismissal[+] Read More [-] Read Less
Hearing03/06/2024 at 08:30 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial[+] Read More [-] Read Less
Hearing02/21/2024 at 10:00 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference[+] Read More [-] Read Less
DocketPursuant to the request of moving party, Hearing on Demurrer - with Motion to Strike (CCP 430.10) scheduled for 11/10/2022 at 01:30 PM in Spring Street Courthouse at Department 28 Not Held - Taken Off Calendar by Party on 11/10/2022[+] Read More [-] Read Less
DocketDeclaration OF PLAINTIFF DEBBIE PHIPPS IN SUPPORT OF HER COMPLAINT FOR DAMAGES FOR WRONGFUL DEATH [CAL CODE CIV PROC SECTION 377.60]; Filed by: DEBBIE PHIPPS (Plaintiff)[+] Read More [-] Read Less
DocketAmended Complaint (1st); Filed by: DEBBIE PHIPPS (Plaintiff); As to: FRANCISCO ANTONIO PAVAN (Defendant)[+] Read More [-] Read Less
DocketDemurrer - with Motion to Strike (CCP 430.10); Filed by: FRANCISCO ANTONIO PAVAN (Defendant)[+] Read More [-] Read Less
DocketDeclaration of Nicole Fassonaki iso Demurrer; Filed by: FRANCISCO ANTONIO PAVAN (Defendant)[+] Read More [-] Read Less
DocketRequest for Judicial Notice; Filed by: FRANCISCO ANTONIO PAVAN (Defendant)[+] Read More [-] Read Less
DocketUpdated -- Demurrer - with Motion to Strike (CCP 430.10) TO COMPLAINT;: Name Extension: TO COMPLAINT;; As To Parties: removed[+] Read More [-] Read Less
DocketFinal Status Conference scheduled for 02/21/2024 at 10:00 AM in Spring Street Courthouse at Department 28[+] Read More [-] Read Less
DocketNon-Jury Trial scheduled for 03/06/2024 at 08:30 AM in Spring Street Courthouse at Department 28[+] Read More [-] Read Less
DocketCase assigned to Hon. Daniel M. Crowley in Department 28 Spring Street Courthouse[+] Read More [-] Read Less
DocketComplaint; Filed by: DEBBIE PHIPPS (Plaintiff); As to: FRANCISCO ANTONIO PAVAN (Defendant)[+] Read More [-] Read Less
DocketCivil Case Cover Sheet; Filed by: DEBBIE PHIPPS (Plaintiff); As to: FRANCISCO ANTONIO PAVAN (Defendant)[+] Read More [-] Read Less
DocketSummons on Complaint; Issued and Filed by: DEBBIE PHIPPS (Plaintiff); As to: FRANCISCO ANTONIO PAVAN (Defendant)[+] Read More [-] Read Less
DocketAlternate Dispute Resolution Packet; Filed by: Clerk[+] Read More [-] Read Less
DocketVoluntary Efficient Litigation Stipulation Packet; Filed by: Clerk[+] Read More [-] Read Less
DocketSeventh Amended Standing Order for Procedures in the Personal Injury Hub Courts; Filed by: Clerk[+] Read More [-] Read Less
DocketNotice of Case Assignment - Unlimited Civil Personal Injury Case; Filed by: Clerk[+] Read More [-] Read Less
Case Number: *******9134 Hearing Date: December 20, 2022 Dept: 28
Defendants Francisco Antonio Pavan’s Demurrer with Motion to Strike.
Having considered the moving, opposing and reply papers, the Court rules as follows.
On September 7, 2022, Plaintiff Debbie Phipps (“Plaintiff”) filed this action against Defendant Francisco Antonio Pavan (“Defendant”) for wrongful death.
On October 28, 2022, Plaintiff filed the First Amended Complaint.
On November 23, 2022, Defendant filed a Demurrer with Motion to Strike to be heard on December 20, 2022.
Trial is scheduled for March 6, 2024.
Defendant requests the Court sustain the demurrer on the basis that Plaintiff failed to state sufficient facts to constitute a cause of action. Defendant also requests the Court strike references to speeding, malice, punitive damages, special damages and damage to personal property.
Plaintiff requests the Court overrule the demurrer and deny the motion to strike.
CCP 430.10 states: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have the legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible; and (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”
A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, 147 Cal.App.4th at 747.)
Under CCP 377.60, a cause of action for wrongful act may only be brought by the following persons:
“(a) The decedent’s surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession. If the parents of the decedent would be entitled to bring an action under this subdivision, and the parents are deceased, then the legal guardians of the decedent, if any, may bring an action under this subdivision as if they were the decedent’s parents.
(b) (1) Whether or not qualified under subdivision (a), if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, parents, or the legal guardians of the decedent if the parents are deceased.
(2) As used in this subdivision, “putative spouse” means the surviving spouse of a void or voidable marriage who is found by the court to have believed in good faith that the marriage to the decedent was valid.
(c) A minor, whether or not qualified under subdivision (a) or (b), if, at the time of the decedent’s death, the minor resided for the previous 180 days in the decedent’s household and was dependent on the decedent for one-half or more of the minor’s support.”
“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).” (CCP 435(b)(1).) “A notice of motion to strike must be given within the time allowed to plead, and if a demurrer is interposed, concurrently therewith, and must be noticed for hearing and heard at the same time as the demurrer.” (CRC 3.1322(b), italic added.) “The defendant shall answer the amendments, or the complaint as amended, within 30 days after service thereof, or such other time as the court may direct, and judgment by default may be entered upon failure to answer, as in other cases.” (CCP 471.5(a).)
“The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (CCP 437(a).) The court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.” (Ivanoff, supra, 9 Cal.App.5th p. 725.) The court “assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.” (Id.) “The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)
Under CCP 377.34, “in an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable may include damages for pain, suffering, or disfigurement if the action or proceeding was granted a preference pursuant to Section 36 before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026.”
Plaintiff alleges that Defendant was negligently operating his vehicle when he struck Decedent, causing injury and death of Decedent. Plaintiff specifically notes that Defendant was driving at an excessive rate of speed in violation of the law.
Plaintiff claims that she is the successor in interest for Decedent. Plaintiff is Decedent’s sister; he was unmarried at the time of his death. Plaintiff does not state whether Decedent has living parents, both of whom would have superior claim to this action. Plaintiff’s complaint does not clearly state that Decedent’s parents are deceased, and thus it is not clear that Plaintiff has standing to bring forward this claim. The Court sustains the demurrer.
As the demurrer is sustained, the motion to strike is moot.
Defendants Francisco Antonio Pavan’s Demurrer is SUSTAINED, with 30 days leave to amend.
Moving party is ordered to give notice of this ruling.
Moving Party is ordered to file the proof of service of this ruling with the Court within five days.
The parties are directed to the header of this tentative ruling for further instructions.
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