The Court orders counsel for defendant Eric Mahan to correct its records for plaintiff Taylor Manahan’s mailing address. The proof of service for the demurrer lists the address as “1032 Andres St.” when it should be “1032 Andrews” Street. Because copies were also sent to plaintiff’s representative, Timothy Manahan, at the correct address, the Court will consider the merits.

Defendant Mahan’s demurrer is overruled. First, the demurrer appears to be untimely. Moving party was served with the summons and complaint on 11/19/13 by substitute service, followed by mailing on 11/22 (POS filed 1/14/14). A responsive pleading was due on the 40th day after mailing, on or about 1/2/14. (See CCP §415.20, §412.20(a)(3)). However, defendant Mahan filed the within demurrer on 3/18/14 which is late.

On the merits, the demurrer is not well-taken. Regarding the first count, Defendant cites to well-known decisions discussing the standards for pleading fraud in California, including Committee on Children’s Television Inc. v. General Goods Corp. (1983) 35 Cal.3d 197, Lazar v. Sup. Ct. (1996) 12 Cal.4th 631, and Wilhelm v. Pray, Price, Williams &Russell (1986) 186 Cal.App.3d 1324. It is clear from the allegations of the FAC that Plaintiff has not filed suit for fraud. Therefore, the heightened pleading standards cited on pp. 2-3 of the demurrer, do not apply.

The intentional tort that is described in the FAC is an assault or battery. This claim is adequately plead. Battery consists of an intent to cause an offensive contact to another person and harmful or offensive contact with the person. See Dem. at 3:1; accord 5 Witkin, Summary Cal. 10th (2005) Torts, § 383, p. 599 (“Harmful or offensive contact, intentionally done, is the essence of battery.”). The allegations on page 4 of the FAC are sufficient. The argument about consent is not well-taken. (Dem. at 3:7). It is true that for a battery to arise, the plaintiff cannot have consented to the offensive touching. But the FAC shows a lack of consent for pleading purposes. On demurrer, the Court construes the complaint liberally, and draws reasonable inferences from the allegations in favor of the pleader. Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238. Here, Plaintiff alleges that Defendants lay in wait for him, ambushed him, and assaulted him with a baseball bat. The reasonable inference from these allegations is that he did not consent to the alleged assault.

With respect to the second count, the cited portion of the Rutter Guide states:

“Normally, plaintiff must allege that each named defendant caused his or her injuries. But plaintiff may be able to proceed on either of the following theories without identifying which defendant caused the injury:

—“Alternative liability” (plaintiff unable to ascertain which of several defendants acting concurrently caused the injury). [See Summers v. Tice (1948) 33 C2d 80, 86, 199 P2d 1, 3]

Cal. Prac. Guide Civ. Pro. Before Trial ¶ 6:129.15 (Rutter Guide 2013).

This principle does not apply. Unlike in Summers v. Tice and the situation described supra, Plaintiff is not uncertain in the FAC about whether demurring defendant Mahan caused him injury. He expressly alleges that all defendants ambushed and assaulted him, causing injury. (FAC p. 4). That allegation must be accepted as true on demurrer.

In contrast, in Summers v. Tice, the plaintiff conceded in his complaint that he did not know which of two defendants caused him injury where both fired guns simultaneously and one of the bullets – though he was not sure whose – injured him. Summers v. Tice (1948) 33 Cal.2d 80, 84. That uncertainty is not present in the FAC here, which alleges the defendants lay in wait and assaulted plaintiff.

Summers is also distinguishable in that the court there decided each defendant’s responsibility following a bench trial. Summers v. Tice (1948) 33 Cal.2d 80, 82. Summers did not hold that a plaintiff must at the pleading stage allege with particularity each defendant’s specific role in the tort. Such details are better left for discovery.

The special demurrer for uncertainty is also overruled. This type of demurrer 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.

Defendant is ordered to give notice of this ruling.