Case Name: Susan Estes, et al. v. Sondra Arostigui, et al.
Case No.: 16-CV-303950

Currently before the Court is the demurrer by defendant Geico Indemnity Company to the complaint of plaintiffs Susan Estes (“Susan”) and Kelly Estes (collectively, “Plaintiffs”).

Factual and Procedural Background

This action is for personal injury and property damage arising out of two motor vehicle accidents. On December 19, 2014, defendant Maria Rodriguez (“Rodriguez”) and “Does 1 to 20” negligently operated a motor vehicle at the intersection of Hostetter Road and Four Oaks Road causing injuries and damages Plaintiffs. (Complaint, p. 4, ¶¶ MV-1 and MV-2.) Rodriguez and “Does 1 to 20” were allegedly “the agents and employees of the other defendants and acted within the scope of the agency.” (Id. at ¶ MV-2.) Furthermore, “Does 1 to 20” allegedly “employed the persons who operated a motor vehicle in the course of their employment.” (Ibid.) In addition, defendant Sondra Arostigui (“Arostigui”) and “Does 1 to 20” allegedly owned the subject motor vehicle and entrusted it to Rodriguez and “Does 1 to 20.” (Ibid.)

Thereafter, on August 7, 2015, defendant Alfredo Cunha (“Cunha”) and “Does 1 to 20” negligently operated a motor vehicle at Junction Avenue, near Charcot Avenue, causing injuries and damages to Plaintiffs. (Complaint, p. 5, ¶¶ MV-1 and MV-2.) Cunha and “Does 1 to 20” also “owned the motor vehicle which was operated with their permission” and “were the agents and employees of the other defendants and acted within the scope of the agency.” (Id. at ¶ MV-2.) Finally, “Does 1 to 20” allegedly “employed the persons who operated a motor vehicle in the course of their employment” and “entrusted the motor vehicle.” (Ibid.)

Based on the foregoing allegations, Plaintiffs filed a complaint against Rodriguez, Arostigui, Cunha, and Does 1 through 20, alleging two causes of action for negligence. Plaintiffs’ amended Doe amendment to the complaint, which substituted Geico Indemnity Company for Doe 1, was deemed filed and served on October 18, 2018.

On November 16, 2018, Geico Indemnity Company filed the instant demurrer. Plaintiffs filed papers in opposition to the demurrer on March 18, 2019.

Discussion

Geico Indemnity Company demurs to the complaint, in its entirety, on the grounds that there is a defect or misjoinder of parties and the pleading does not allege facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subds. (d) and (e).)

I. Legal Standard

The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, “ ‘[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice’ [citation].” (Hilltop Properties, Inc. v. State (1965) 233 Cal.App.2d 349, 353 (Hilltop); see also Code Civ. Proc., § 430.30, subd. (a).) “ ‘It is not the ordinary function of a demurrer to test the truth of the … allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant’s conduct. … .’ [Citation.] Thus, … ‘the facts alleged in the pleading are deemed to be true, however improbable they may be. [Citation.]’ [Citations.]” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958 (Align).)

II. Procedural Issue

Preliminarily, the Court notes that Geico Indemnity Company submitted a copy of an indemnity policy that it purportedly has with Susan in support of its demurrer. As explained above, the Court only considers the contents of the challenged pleading and such matters as may be considered under the doctrine of judicial notice in ruling on a demurrer. (See Hilltop, supra, 233 Cal.App.2d at p. 353; see also E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315 (E-Fab) [“ ‘A demurrer tests the pleading alone, and not the evidence or the facts alleged.’ ”].) Here, the indemnity policy is neither referenced in the complaint nor an exhibit to the complaint. Furthermore, Geico Indemnity Company has not asked the Court to take judicial notice of the indemnity policy. Consequently, the Court declines to consider the indemnity policy on demurrer.

III. Substantive Merits of Demurrer

A. Failure to Allege Sufficient Facts to State a Claim

Geico Indemnity Company argues that the complaint fails to state a cause of action because “[n]owhere in the [c]omplaint is there any allegation that [it] caused this motor vehicle accident and/or that Plaintiffs’ alleged injuries and damages occurred as the result of any negligence on” its part. (Geico’s Mem. Ps. & As., p. 5:10-13.)

This argument is belied by the allegations of the complaint. In the complaint, Plaintiffs expressly allege that Doe 1—Geico Indemnity Company—negligently operated the motor vehicles on the dates in question, causing them injuries. (Complaint, pp. 4-5, ¶¶ MV-1 & MV-2.) Plaintiffs further allege that Doe 1 owned the motor vehicles, negligently entrusted the motor vehicles, and employed the persons who operated the motor vehicles. (Ibid.) For purposes of demurrer, these allegations “ ‘are deemed to be true, however improbable they may be. [Citation.]’ [Citations.]” (Align, supra, 179 Cal.App.4th at p. 958; see also E-Fab, supra, 153 Cal.App.4th at p. 1315.)

Accordingly, the demurrer to the complaint on the ground of failure to allege facts sufficient to constitute a cause of action is OVERRULED.

B. Defect or Misjoinder of Parties

Geico Indemnity Company argues there is a defect or misjoinder of parties because “Plaintiffs cannot join an insurance carrier as a party to [the] [c]omplaint as an alleged tortfeasor.” (Geico’s Mem. Ps. & As., p. 5:14-15.) Geico Indemnity Company states, “[P]laintiffs have a potential underinsured motorist claim which the[y] attempt to make through identifying [it] as [Doe 1].” (Id. at pp. 5:15-17 & 6:6-9 [stating that Plaintiffs “seek to pursue an Underinsured claim against [it]”].) Geico Indemnity Company concludes that Plaintiffs, therefore, improperly named it as a defendant in this action. (Id. at p. 5:17-19.) Geico Indemnity Company further argues that Plaintiffs “contracted with [it] to resolve any disputes by arbitration and [it] will be prejudiced as an insurance company if forced to defend the Underinsured Motorist claim in front of a jury.” (Id. at p. 6:10-13 & 6:22-25 [stating that Susan “entered into a contract with [it] agreeing to resolve any underinsured motorist claim by way of arbitration” and Plaintiffs “waived their right to a jury trial when she entered into a written contract with [it]”].)

It is well-established that “[d]emurrers on the ground of misjoinder lie only when the defect appears on the face of the complaint or matters judicially noticeable.” (Royal Surplus Lines, Inc. v. Ranger Ins. Co. (2002) 100 Cal.App.4th 193, 198.)

Here, the purported defect does not appear on the face of the pleading or from any judicially noticeable matter. First, there are no allegations in the complaint providing that Plaintiffs are asserting a claim for underinsured motorist benefits against Geico Indemnity Company. Second, there are no allegations in the complaint demonstrating that Geico Indemnity Company had a written contract with Susan or provided insurance to Plaintiffs. Furthermore, the Court has not taken judicial notice of any such matter. Consequently, Geico Indemnity Company’s arguments are based on matters that cannot be considered by the Court on demurrer. (See Hilltop, supra, 233 Cal.App.2d at p. 353.)

For these reasons, the demurrer to the complaint on the ground that there is a defect or misjoinder of parties is OVERRULED.