Jeffrey Heath vs. Rent R Toyz

Demurrer to Complaint

Cal. Super. - 4th Dist.August 28, 2018

O © 0 0 ~ N O o U 1 BH A W w W N D R N O N N N N N D N D N N N F P FP F F P F P F P F P F P RE , R = c o N N O O U 1 B A W N F P O O V U 0 0 N N o O U l B A W N N + H O o Rex P. Sofonio, SBN 190761 Maribel B. Ullrich, SBN 246970 SOFONIO & ASSOCIATES, APLC 2112 N. Main Street, Suite #205 Santa Ana, Ca 92706 Telephone: (657) 232-3600 / Facsimile: (657) 203-2116 Attorneys for Defendant, RentR Toyz, Sand & Sea Toyz Rentals SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE J effrey Heath, Case No.: 30-2018-01015174-CU-PA-C)C Plaintiff, ASSIGNED TO FOR ALL PURPOSES: JUDGE: Hon. David Chaffee V. DEPARTMENT : RentR Toyz, Sand & Sea Toyz Rentals; and DEFENDANT, SAND & SEATOYZ DOES 1-50, RENTALS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF Defendants. JEFFREY HEATH’S COMPLAINT FOR DAMAGES [Concurrently filed with Defendants’ Request for Judicial Notice and Declaration of Rex Sofonio] Date: December 7, 2018 Time: 9:30AM Dept. C20 Reservation No.: 72915007 Complaint filed: August 28, 2018 TO PLAINTIFF AND HER ATTORNEY OF RECORD HEREIN: PLEASE TAKE NOTICE that on December 71 2018 at 9:30 a.m., or as soon thereafter as counsel may be heard in Department C20 of the above-entitled Court located at 700 -1- DEFENDANT, SAND & SEA TOYZ RENTALS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF JEFFREY HEATH'S COMPLAINT FOR DAMAGES O © 0 0 ~ N O o U 1 BH A W w W N D R N O N N N N N D N D N N N F P FP F F P F P F P F P F P RE , R = c o N N O O U 1 B A W N F P O O V U 0 0 N N o O U l B A W N N + H O o Civic Center Drive West, Santa Ana, CA 92701. Defendant Sand & Sea Toyz Rentals will and hereby does move this Court for an Order sustaining its Demurrer to the one, motor vehicle, cause of action in Jeffrey Heath’s Complaint herein without leave to amend. This demurrer is made pursuant to Code of Civil Procedure section 430.10(e) and 430.10(f) as a general and special demurrer on the basis that the single cause of action alleged against Sand & Sea Toyz Rentals in the Complaint fails to state facts sufficient to constitute any cause of action against Sand & Sea Toyz Rentals and are uncertain. This demurrer is based on this notice, the attached memorandum of points and authorities, the attached Declaration of Rex P. Sofonio, Esq. concerning filing parties’ meet-and- confer efforts pursuant to Code of Civil Procedure section 430. 41, the records and pleadings on file herein, and on such other and further oral and documentary evidence as may be presented at the hearing on this matter. OPPOSITION TO DEMURRER TO MOTOR VEHICLE CAUSE OF ACTION The single cause of action in this complaint, M otor Vehicle Negligence, fails to allege facts sufficient to constitute a cause of action in that Plaintiff holds a commercial lease and a hold harmless agreementfor the property in which he alleges he was injured. (Code Civ. Proc., § 430.10(e)). Further, the cause of action is uncertain and so ambiguous that Defendant is unable to answer. (Code Civ. Proc., § 430.10(f)). Dated: October 22, 2018 SOFONIO & ASSOCIATES, APLC By: Rex P. Sofonio, Esq. Attorneys for Defendant, Sand & Sea Toyz Rentals 22. DEFENDANT, SAND & SEA TOYZ RENTALS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF JEFFREY HEATH'S COMPLAINT FOR DAMAGES © 0 0 ~ N O O U 1 B A W w W N D R N O N N N N D N D N D N N N F P F P F F P FP F F P FR E F R P P c o ~ N o o u i A W w W N N F P O O V U 0 0 N N o o U l B A W w W N N + H O o MEMORANDUM OF POINTSAND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFF’S COMPLAINT I INTRODUCTION AND STATEMENT OF FACTS “1300 S. Anaheim Blvd., Anaheim, CA 92805. Defendant’s mechanic took Plaintiff J effrey Heath on a test drive in a dune buggy. The buggy did not have seat belts, and Defendants’ mechanic floored the accelerator and attempted to make a sharp left turn throwing Plaintiff out of the buggy ontl the asphalt. Plaintiff sustained serious injuries as a result.” These are all of the pertinent facts of the complaint. No other allegations provide any further notice or information regarding the alleged injury to Plaintiff. I ARGUMENT L egal Standard For Demurrer Objection to a complaint via demurrer is sustainable if “[t]he pleading does not state facts sufficient to constitute a cause of action.” Code Civ. Proc. § 430.10(e). A demurrer can be made to an entire complaint or individual causes of action therein. (§ 430.50 (a).) A cause of action is subject to demurrer for failure to state a claim if the complaint discloses an affirmative defense on its face, and the plaintiff has not “pleaded around” that defense. See Gentry v. eBay, Inc., 99 Cal. 22 App. 4" 816, 824-25 (2002) (citations omitted). The question to be determined is whether the complaintstates facts sufficient to constitute a cause of action. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurreris appropriate where, as in this case, there can be shown a complete defense and/or the complaint is so ambiguous and unintelligible that Defendant cannot determine what issues must be admitted or denied, or what claim is directed againstit. III SPECIAL DEMURRER TO THE COMPLAINT FOR UNCERTAINTY A special demurrer to a complaintin California is authorized by Code of Civil Procedure § 430.10 which states, in pertinent part: “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 -3- DEFENDANT, SAND & SEA TOYZ RENTALS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF JEFFREY HEATH'S COMPLAINT FOR DAMAGES © 0 0 ~ N O O U 1 B A W w W N D R N O N N N N D N D N D N N N F P F P F F P FP F F P FR E F R P P c o ~ N o o u i A W w W N N F P O O V U 0 0 N N o o U l B A W w W N N + H O o on any one or more of the following grounds... (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.” Before filing any special demurer to a complaint in California the moving party must comply with the requirements of Code of Civil Procedure section 430.41. Code of Civil Procedure § 430.41 states in pertinent part that, “(a) Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party whofiled 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. If an amended complaint, cross- complaint, or answeris filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading. On October 12, 2018 Defendant’s attorney, Rex Sofonio, phoned and left a voicemail with Stacey Cutting, Esq. attorney for Plaintiff regarding the issues raised in this immediate demurrer. On Monday, October 15, 2018 Rex Sofonio e-mailed to Stacey Cutting, Esq. that Defendant intended to demurrer and the reasons why. In response she indicated that her complaint was on ajudicially approved form complaint. A copy of the e-mail communications are attached to the Declaration of Rex Sofonio, Esq. filed concurrently with these moving papers. A California Court of Appeal has stated in a published decision that a demurrer for uncertainty should be sustained if the complaint is so poorly written that the defendant cannot reasonably respond as they cannot determine what issues must be admitted or denied or what causes of action are directed against them. A California Court of Appeal has ruled that if a defendant negates any essential element of a particular cause of action, a judge should sustain the demurrer as to that cause of action. See Cantu v. Resolution Trust Corp. (1992) 4 Cal.A pp.4™ 857, 880. A demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond; i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him. Khoury v. Maly ’s “4 - DEFENDANT, SAND & SEA TOYZ RENTALS’ NOTICE OF DEMURRER ANDDEMURRER TO PLAINTIFF JEFFREY HEATH'S COMPLAINT FOR DAMAGES O © 0 0 ~ N O o U 1 BH A W w W N D R N O N N N N N D N D N N N F P FP F F P F P F P F P F P RE , R = c o N N O O U 1 B A W N F P O O V U 0 0 N N o O U l B A W N N + H O o of Calif., Inc. (1993) 14 Cal.App.4™ 612, 616 (citing text). And the “uncertainties” must be specified. Where a demurrer is made upon this ground, it must directly specify exactly how or why the pleading is uncertain, and where such uncertainty appears (by reference to page and line number of the complaint). Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809. In the case at bar Plaintiff identifies the driver of the vehicle as Defendant’s mechanic. Y et Defendant does not have a mechanic and does not have any idea who Plaintiff is referring to. Without the name of the driver of the vehicle it is impossible for Defendant to reasonably determine what issue must be admitted or denied and does not understand the claim against it. In addition the vehicle in question is simply described as the “Dune Buggy.” Defendant does not own a Dune Buggy. Defendant has no idea what vehicle Plaintiff is referring to. Without any identification of the subject vehicle itis not possible for Defendant to reasonable determine what issues must be admitted or denied, or what claims are directed at it. An "automobile" is a passenger vehicle that does not transport persons for hire. This includes station wagons, sedans, vans, and sport utility vehicles. California Vehicle Code § 465. An "off highway vehicle" is a vehicle operated exclusively off public roads and highways on lands that are open and accessible to the public, and includes racing motorcycles,trail bikes, mini bikes, dune buggies, all-terrain vehicles, jeeps, and snowmobiles. Off highway vehicles are operated exclusively off public roads and highways on lands that are open and accessible to the public. They do not require regular registration, but must display an identification plate or device issued by DMV. Itis not necessary to register a vehicle for both on-highway and off-highway use. Valid on--highway registration allows the vehicle to be operated on and off the highway. In order for Defendant to respond to Plaintiff’s complaint the driver of the vehicle must be identified and the vehicle itself must be identified so that Defendant can reasonably determine what issue it must admit or deny and what claim is directed againstit. IV. GENERAL DEMURRER FOR FAILURE TO STATE A CAUSE OF ACTION -5- DEFENDANT, SAND & SEA TOYZ RENTALS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF JEFFREY HEATH'S COMPLAINT FOR DAMAGES O © 0 0 ~ N O o U 1 BH A W w W N D R N O N N N N N D N D N N N F P FP F F P F P F P F P F P RE , R = c o N N O O U 1 B A W N F P O O V U 0 0 N N o O U l B A W N N + H O o “Where written documents are the foundation of an action and are attached to the complaint and incorporated therein by reference, they become a part of the complaint and may be considered on demurrer.” Qualcomm, Inc. v. Certain Underwriters at Lloyd's, London (2008) 161 Cal. 6 App. 4th 184, 191. (citation omitted) (internal quotation marks omitted). Additionally, “When a dispute arises over the meaning of contract language, the first question to be decided is whether the language is ‘reasonably susceptible’ to the interpretation urged by the party. Ifit is not, the case is over.” S. Cal. Edison Co. v. Super. Ct. (1995) 37 Cal. App. 4th 839, 847-48. (citation omitted). Underthe doctrine of truthful pleading, the courts ‘will not close their eyes to situations where a complaint contains allegations of fact inconsistent with attached documents, or allegations contrary to facts that are judicially noticed.” [Citation.] ‘False allegations offact, inconsistent with annexed documentary exhibits [citation] or contrary to facts judicially noticed [citation], may be disregarded...” Trinity Park; L.P. v. City of Sunnyvale (2011) 193 Cal. App. 4th 1014, 1027. A demurrer reaches not only the contents of the pleading itself, but also such matters as may be considered under the doctrine of judicial notice. The complaint is to be read as if it contains all matters of which the court can take Cal Evid Code § 452 judicial notice even in the face of allegations to the contrary. Saltares v. Kristovich (1970, Cal App 2d Dist) 6 Cal.A pp3d 504, 85. Civil Code section 1644 states “[t]he words of a contract are to be understood in their ordinary and popular sense. . . .“ Civil Code section 1638 states “[t]he language of a contractis to govern its interpretation,if the language is clear and explicit, and does not involve an absurdity.” Attached to this demurrer and the declaration of Rex Sofonio, Esq. in support of this demurrer, and as requested from this Court to take judicial notice; Plaintiff and Defendant entered into a Commercial L ease agreement on October 1, 2012 that was in full force and effect on January 27, 2017. In addition to and agreed at the same time, Plaintiff signed a hold harmless -6- DEFENDANT, SAND & SEA TOYZ RENTALS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF JEFFREY HEATH'S COMPLAINT FOR DAMAGES O © 0 0 ~ N O o U 1 BH A W w W N D R N O N N N N N D N D N N N F P FP F F P F P F P F P F P RE , R = c o N N O O U 1 B A W N F P O O V U 0 0 N N o O U l B A W N N + H O o agreement with Defendant on October 1, 2012 which was in full force and effect on January 27, 2017. As part of the terms of the hold harmless agreement: “WHEREAS, HEATH desires to hold harmless [Sand & Sea Toyz Rentals] from any claims and/or litigation arising out of HEATH’s actions in connection with ANY AND ALL ACTIVITIES WORK RELATED, HOBBY RELATED, CHARITY RELATED, PERFOREMED, PARTICIPATED, ASSISTED, STARTED, COMPLETED, IN PROGRESS AT THE ABOVE ADDRESS BY HEATH WHILE ON THE ABOVE PROPERTY AT ANY TIME, DAY OR NIGHT, WITH OR WITHOUT KNOWLEDGE OF PROPERTY OWNERS, LESSOR OR OTHER PERSONS ON PROPERTY. HEATH ISPHYSICALLY HANDICAPPED AND HAS A VARIETY OF SCRIPTED MEDICATIONS IN/ON HIS PERSON AT ANY TIME...” Hold Harmless Agreement, pg. 1 of 3, paragraph 2. The parties’ intent here was both clear and obvious. Heath agreed to hold harmless from any claims and/orlitigation arising out of any of Plaintiff’s actions on the subject property at any time for any reason. If a “contractis not reasonably susceptible to the meaning alleged in the complaint,it is proper to sustain a demurrer without leave to amend.” See George v. Auto. Club of S. Cal., Case No. B229287, 2011 WL 6144927, at 10 (Cal. App. Dec. 12, 2011). There can be no doubt that Heath intended to hold harmless the defendant from any acts that occurred on the subject property. “He who consentsto an act is not wronged by it.” Civ. Code § 3515. This general rule applies to negligence. Damon v. Waldteufel (1893) 99 Cal. 234, 235 (citing section 3515). The failure of the pleading to state a cause of action results from the fact that the complaint appears deficient on the face of the pleading or from judicially noticed matter. Hall vs. Chamberlin (1948) 31 Cal.2d 673, 679-680. A California Court of Appeal has ruled that if a defendant negates any essential element of a particular cause of action, a judge should sustain the demurrer as to that cause of action. See -7- DEFENDANT, SAND & SEA TOYZ RENTALS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF JEFFREY HEATH'S COMPLAINT FOR DAMAGES O © 0 0 ~ N O o U 1 BH A W w W N D R N O N N N N N D N D N N N F P FP F F P F P F P F P F P RE , R = c o N N O O U 1 B A W N F P O O V U 0 0 N N o O U l B A W N N + H O o Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4™ 857, 880. In this case Plaintiff has signed a Hold Harmless A greementto the benefit of Defendant for any litigation that may be involved with the land that he commercially leased from Defendant. As such his Hold Harmless A greement is a complete defense to his one cause of action for Motor Vehicle Negligence. There is nothing that Plaintiff can add to this complaint that would change the fact that he agreed to hold Defendant harmless to this litigation. IIT CONCLUSION For all of the foregoing reasons Defendant respectfully requests that this Court sustain this demurrer without leave to amend with regard to Plaintiff’s single cause of action for Motor Vehicle Negligence. Dated: October 22, 2018 SOFONIO & ASSOCIATES, APLC By: Rex P. Sofonio, Esq. Attorneys for Plaintiff, Sand & Sea Toyz Rentals -8- DEFENDANT, SAND & SEA TOYZ RENTALS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF JEFFREY HEATH'S COMPLAINT FOR DAMAGES © 0 0 d N o O U l BH A W w W N O P N D N N N N N N D M N F P FP F FP F FP F F P F P F P E R c o N N o o u l A W w W O N F P O O V U 0 0 N N o O U U BA A W w W N N + P O o PROOF OF SERVICE SUPERIOR COURT OF THE STATE OF J effrey Heath, CALIFORNIA Plaintiff, FOR THE COUNTY OF ORANGE CENTRAL JUSTICE CENTER Vv. Rent R Toyz, Sand & Sea Toyz Rentals; and DOES 1-50, Defendants. | am employed in the County of Orange, State of California. | am overthe age of 18 and not a partyto tre within action; my business address is 2112 N. Main Street, Suite 205, Santa Ana, CA 7 On October 23, 2018 | served the foregoing document described as, DEFENDANT, SAND & SEA TOYZ RENTALS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF JEFFREY HEATH’S COMPLAINT FOR DAMAGES On InterestedParties by placing atrueand correct copy enclosed in a sealed envelope addressed as follows: BISH LAW STACY R.CUTTING 22505 MARKET STREET, STE. 104 NEWHALL, CA 91321 By mailing as follows: I am “readily familiar” with this firm’s practice of collection and processing correspondence for mailing. Under the practice it would be deposited with the U.S. Postal Service on the same day with postage thereon fully prepaid at Irvine, California in the ordinary course of business. | am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing. Executed on October 23, 2018 at Santa A na, California. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. i OnLen-ConXemporSotomo& eoomolawcom, CE bate 2018.10.23 11:51:00 -07'00" CORY KEMP