Case Number: BC534707 Hearing Date: February 13, 2015 Dept: 93
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES, STANLEY MOSK COURTHOUSE
DEPARTMENT 93

DONALD WILLIAM BELL, et al.,

Plaintiff(s),

v.

DONALD BOSS, M.D., et al.,

Defendant(s).

Case No.: BC534707

Hearing Date: February 13, 2015

[TENTATIVE] ORDER RE:
DEMURRER OF DEFENDANT, DONALD BOSS, M.D., TO THE FIRST AMENDED COMPLAINT OF DONALD WILLIAM BELL AND CAROLYN SUE BELL; MOTION TO STRIKE PUNITIVE DAMAGES FROM FIRST AMENDED COMPLAINT

The Demurrer of defendant, DONALD BOSS, M.D., to THE FIRST AMENDED COMPLAINT OF DONALD WILLIAM BELL and CAROLYN SUE BELL is OVERRULED.

The Motion of defendant, DONALD BOSS, M.D., to STRIKE PUNITIVE DAMAGES FROM FIRST AMENDED COMPLAINT is DENIED.

Department 93 will not be in session for the 1:30 PM law and motion calendar on February 13, 2015. Please use Court Call to notify the judicial assistant in Department 93, at 1:30 PM on February 13, 2015, whether you are submitting on the tentative ruling or wish to be heard. If either party would like to be heard, the judicial assistant will provide you with the date on which you may be heard.

BACKGROUND

This cause of action arises out of a motor vehicle accident that occurred on October 31, 2013 (“Subject Incident”). Donald William Bell and Carolyn Sue Bell (collectively “Plaintiffs”) filed a complaint (“Complaint”) on January 30, 2014 asserting causes of action for: (1) Negligence; (2) Intentional Infliction of Emotional Distress; and (3) Battery; and requesting punitive damages against Donald Boss, M.D. (“Defendant”). On March 21, 2014, Plaintiffs filed a first amended complaint (“FAC”) asserting the same causes of action as the Complaint, and again seeking punitive damages.

Defendant served the instant demurrer and motion to strike punitive damages on June 6, 2014, and filed them on June 9, 2014. Plaintiffs filed oppositions to the demurrer and motion to strike on January 30, 2015. No reply was filed.

DEMURRER

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 via proper judicial notice. Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994. A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. Code Civ. Proc. §§430.30, 430.70. “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, supra, 147 Cal.App.4th at p. 747 (citation omitted).

Plaintiffs contend the demurrer must be overruled because it was untimely and was not filed concurrently with the motion to strike. As an initial matter, if a motion to strike and demurrer are filed, they must be noticed and filed concurrently. CCP §435(b)(3); CRC Rule 3.1322(b). Here, Defendant filed and served the instant demurrer and motion to strike concurrently. Thus, this is not a proper basis for overruling Defendant’s demurrer.

Turning to the issue of timeliness, “[a] person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.” CCP §430.40(a). Additionally, the time to respond may be extended by court order or stipulation. CCP §1054. Courts may extend the time to respond so long as the substantial rights of the parties are not affected. McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 282.

In this case, Plaintiffs filed and served the FAC on March 21, 2014. Plaintiffs did not initially extend the time to respond to the FAC, thus, any response was due by April 25, 2014. On May 23, 2014, Plaintiffs wrote to Defense Counsel to make an inquiry before taking Defendant’s default. Plaintiffs gave Defendant until May 27, 2014 to file a responsive pleading. Defendant failed to meet this deadline and filed the instant demurrer and motion to strike punitive damages nearly two weeks later, on June 9, 2014.

In light of the fact that Defendant was given an extra month to file a responsive pleading, yet missed this deadline by almost two weeks, the Court declines to further extend the time to respond. Accordingly, Defendant’s demurrer is OVERRULED and Defendant is ordered to file and serve an Answer within twenty (20) days.

MOTION TO STRIKE

Plaintiffs also contend the motion to strike must be overruled because it was untimely. A motion to strike must be filed “within the time allowed to respond to a pleading.” CCP §435(b)(1); CRC Rule 3.1322(b). As discussed above, a responsive pleading was due by April 25, 2014. Defendant failed to file the instant motion to strike punitive damages until June 9, 2014. Accordingly, Defendant’s motion to strike is DENIED.

DONALD WILLIAM BELL is ordered to give notice of this ruling.

Dated: February 13, 2015

_______________________
Howard L. Halm
Judge, Los Angeles Superior Court