Case Name:    Michael Lazarin v. Sheila Pott, et al.

Case No.:        1-14-CV-264176

Defendants Michael Penuen and Sheila Penuen (“Penuens”) demurred to the First Amended Complaint of plaintiff Michael Lazarin (“Plaintiff”). The demurrer and supporting papers were timely and properly served.  The demurrer was joined in by Defendants Lawrence Pott, Sheila Pott, John G., and Does 7 and 8 (all demurring Defendants are collectively referred to as “Defendants”).

Defendants’ request for judicial notice of the document attached to the request as Exhibit A is GRANTED. See Evid. Code, § 452, subds. (c), (d), (h).)  However, the Court takes judicial notice only of the existence and contents of the documents subject to the parties’ requests, and not of the truth of the matters asserted therein.  (See Unruh-Haxton v. Regents of Univ. of Calif. (2008) 162 Cal.App.4th 343, 364-365.)  Defendants’ requests for judicial notice of the entirety of two other court files are DENIED.  Defendants have not provided the Court with sufficient information to enable it to take judicial notice of any other specific pleadings found in the other named court files. See Evid. Code §453(b).

Plaintiff did not file any opposition to the demurrers, but cited several cases at the first hearing on the demurrers on June 24, 2014, the cases of Lozano v. Scalier (1996) 51 Cal.App.4^th 843 and Frazier v. Velkura (2001) 91 Cal.App.4^th 942.  The Court continued the hearing to July 8, 2014 and granted leave to the Defendants to file a supplemental reply in support of the demurrers.

Plaintiff has the burden to show a reasonable possibility that amendment could cure the defects in the pleading.  Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.  Plaintiff has not provided the Court with any explanation of how he would modify the complaint to address the defects, except to argue that the judgment that determined he was not a parent of Audrie Pott was wrongly decided.

Defendants argue that the Court should not consider the cases cited by Plaintiff for the first time at the hearing because he filed no opposition to the demurrers.  The Court has reviewed the two cases Plaintiff cited, but the authority does not change the outcome.  Neither case involves an earlier binding determination that the party in question was not a parent and had no parental rights.  Defendants have established that the claims alleged are barred by a final decision in a Family Law case that determined that Plaintiff is not a parent of Audrie Pott.  Plaintiff did not appeal the decision in that case, and cannot attack it collaterally in this case.  Plaintiff has not explained how he will avoid the final decision in the Family Law case where findings were made that defeat his ability to bring a lawsuit claiming wrongful death of Audrie Pott.  Plaintiff does not have standing to bring an action for wrongful death or negligence. Accordingly, the Court is unable to discern how the defects in the complaint could be cured by amendment, and leave to amend is denied.

The demurrers to the First Amended Complaint are SUSTAINED WITHOUT LEAVE TO AMEND.

Prevailing party is to prepare the order.  After Defendants have served notice of entry of the order sustaining the demurrer, Defendants shall prepare a judgment of dismissal of the action as to the demurring Defendants.