Opinions differ on preparing a complaint in a personal injury case from a motor vehicle collision. Some attorneys prefer to draft the entire complaint, often from an internal office model they have developed over the years. Others prefer to utilize the current version of Form-PLDPD-001, the form of complaint for personal injury and property damage claims approved for “optional use” by the Judicial Council of California. The choice is usually of little consequence. Most often, in either event, litigation quickly moves on to the defendant’s answer and into discovery. For this article, assume that an attorney has chosen to use the Judicial Council form complaint to allege the plaintiff’s injuries arising from a collision where defendant Woodrow Worker negligently operated a company vehicle owned by his employer, Widget Co. At the same time, in the scope of his employment, the Worker struck the plaintiff’s vehicle and injured the plaintiff.
As completed, the allegations of the Judicial Council form complaint would show (referring to the numbering on the form approved for use in 2024): Worker is a competent adult (¶ 3); Widget Co. is a corporation (¶ 5a); plaintiff sustained injury within this venue (¶ 8); and plaintiff seeks compensatory damages, according to proof, for personal injury and property damages incurred in the incident (¶¶ 11, 14). In this complaint, assume the plaintiff attaches the First Cause of Action – Motor Vehicle (also a Judicial Council form), and by the placement of “x” marks in the appropriate boxes, alleges: “the acts of defendants were negligent; the acts were the legal (proximate) cause of injuries and damages to plaintiff; the acts occurred on [date] at [location].” (MV-1.) Plaintiff also alleges that the defendants operating the motor vehicle were Worker, and any named fictitious defendants (MV2a) and defendants “who employed the persons who operated a motor vehicle in the course of their employment,” who
“owned the vehicle which was operated with their permission,” and who entrusted their vehicle to Worker, are Widget Co.
and the fictitious defendants (MV-2b, 2c, 2d). Defendants “who were the agents and employees of the other defendants
and acted within the scope of the agency” would be noted as Workers and fictitious defendants. (MV-2e.) After the service of process, assume that the plaintiff’s counsel receives the required “meet and confer” call (Code Civ. Proc. § 430.41(a))1, during which the defendant’s counsel states an intention to file a general and special demurrer to your complaint.
This scenario seldom occurs. Why would it? What motivates the defendants’ counsel to take this procedural course, which will likely have little ultimate effect on the outcome of the case? Engaging in such speculation is beyond the scope of this article. But it happens. Perhaps the defendants’ counsel seeks to seize a tactical advantage by making you fight what they perceive to be every step of the way. Perhaps they are looking for the pleading of some factual detail to seize on in commencing discovery. Perhaps they are just obstinate.
Presented with this scenario, you face two choices. Under Section 472(a), you may amend the complaint after that demurrer has been filed but before the opposition is due, thereby rendering moot the filed demurrer. This may be the right call where the defendants’ demurrer identifies a remediable omission that can be readily cured. If that option is selected, you may file a First Amended Complaint without further court order correcting the omission and hopefully move on.
But where the demurrer is multi-faceted, challenges the heart of the allegations, or lacks merit on its face, an amendment may
not be the right course. Defendants may choose to attack an amended complaint filed in a similar manner, and an amended pleading might merely postpone an inevitable judicial dispute. In such cases, opposition to the demurrer is necessary so the trial court can determine whether the Judicial Council’s form complaint, as pleaded, can withstand the demurrer. The remainder of this article deals with the nature of the defendants’ likely arguments supporting such a demurrer and your potential arguments in opposition.
At first glance, you may conclude that since it bears the imprimatur of the Judicial Council, the form pleading must be sufficient as a matter of law. After all, using such form complaints is pursuant to statutory authorization. Section 425.12(a) states: “The Judicial Council shall develop and approve official forms for use in trial courts of this state for any complaint, cross-complaint or answer in any action based upon personal injury, property damage, wrongful death, unlawful detainer, breach of contract or fraud.” California Rule of Court, 1.35 also states: “Forms approved by the Judicial Council for optional use, wherever applicable, may be used by parties….”
But such a conclusion would be in error. That you chose to use the Judicial Council form complaint is not determinative of a demurrer. (See, Esparza v. Kaweah Delta Dist. Hospital (2016) 3 Cal.App.5th 547, 555 [“Judicial Council form complaints are not invulnerable to a demurrer. Conversely, Judicial Council form complaints do not always fail to state a cause of action and, thus, they are not necessarily susceptible to demurrer.”].) So, an effective opposition memorandum is necessary. What should that include? To determine that, first consider the stated basis for the demurrer.
The main thrust of the defendant’s argument that the complaint fails to state a cause of action (i.e., their “general demurrer,” pursuant to Section 430.10(e)) might be like this: The complaint is insufficient because, as pleaded it merely makes legal conclusions alleging that the defendants were negligent, and legal conclusions as to causation. The complaint does not state any facts in support of any of these legal elements.
Citation to applicable principals of construction can get your opposition off to a good start. When ruling on a demurrer, the court should draw reasonable inferences in favor of the complaint. (Kruss v. Booth (2010) 185 Cal.App.4th 699, 727.) The court should liberally construe the complaint to bring substantial justice between the parties. (Addiego v. Hill (1965) 238 Cal.App.2d 842, 845.)
Next, your opposition should note the elements that must be pleaded to support a negligence action. “To succeed in a
negligence action, the plaintiff must show that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the
duty, and (3) the breach proximately or legally caused (4) the plaintiff’s damages or injuries.” (Thomas v. Stenberg (2012)
206 Cal.App.4th 654, 662.)
You should then note that the defendants’ contention of insufficiency ignores applicable case law, which permits you to
do what was done, i.e., allege negligence and causation generally, in this case, by use of the Judicial Council’s form complaint.
Several authorities are supportive. In Taylor v. Oakland High School Dist. of Alameda County (1938) 12 Cal.2d 310, a high school student sued his school district for negligently allowing the garbage truck that struck him to proceed onto school grounds. The defendant district filed both general and special demurrers, alleging that the plaintiff failed to provide in the complaint a factual description of the school premises and the safety measures that should have been taken. On review, the California Supreme Court held: “It is elementary that negligence may be pleaded generally. This means that after what was done has been stated, it is sufficient to allege that it was negligently done, without stating the omission that rendered the act negligent.” (Id. at 316.) The
opinion explains why: “These are matters to be developed by the evidence. It is not contemplated under our system of pleading that evidentiary facts should be alleged.” (Id. at 317.)
In Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, a medical malpractice case, the court considered similar issues in a motion for judgment on the pleadings. It held: “Under the authorities, it is sufficient to allege that the defendant negligently did an act and that it caused damage to the plaintiff.” (Id. at 154.) The court went on specifically to make a critical point: “Thus, in cases involving automobiles or other vehicles, it is sufficient to aver that the defendant negligently operated the vehicle without alleging how or in what respect it was done.” (Id. at 157.) The court explained the basis for the rule: “[T]he rule permitting the pleading of negligence in general terms find justification in the fact that the person charged with negligence may ordinarily be assumed to possess at least equal, if not superior, knowledge of the affair to that possessed by the injured party.” (Id.)
In accord, see McCoy v. Gustafson (2009) 180 Cal.App.4th 56, 102 (“Allegations of negligence have long been exempted from the code pleading requirement to state the facts constituting the cause of action…. Negligence may be generally pleaded….”). See also Karl v. C. A. Reed Lumber Co. (1969) 275 Cal. App.2d 358, 361 (“[N]egligence may be alleged in general terms, which means that it is sufficient to state that an act was negligently done without stating the particular omission which rendered it negligent.”).
Your opposition should conclude that the complaint is sufficient to state a cause of action because the plaintiff did what these
cases permit: Used the Judicial Council’s form complaint to plead negligence generally “without stating the particular omission which rendered it negligent.” (Ibid.)
You should also urge that the same rule applies to pleading causation. That is what the California Supreme Court held in Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 78 (“In the ordinary personal injury lawsuit, in which the complaint’s factual recitations show plainly the connection between cause and effect, it suffices to plead causation succinctly and generally.”). The form of complaint is, therefore, also sufficient to state a cause of action as to that element.
You can also argue a second, separate ground of opposition to the employer’s (Widget Co’s) general demurrer based on the following principle. “A trial court should not sustain a general demurrer ‘unless the complaint liberally construed fails
to state a cause of action on any theory.’” (Kramer v. Intuit Inc. (2004) 121 Cal. App.4th 574, 578, internal citation omitted. See also, Gutierrez v. CarMax Auto Superstores California (2018) 19 Cal. App.5th 1234, 1242.)
You should argue that irrespective of the court’s resolution of the defendant’s claim, negligence and causation are pleaded, too
generally, the complaint states a viable claim on “any theory,” which is sufficient. The basis for this argument is that the Judicial Council form complaints, when completed as it was here, contains allegations that Widget Co. “owned the motor vehicle which was operated with their permission.” (MV-2c.) That allegation, taken with the rest of the form complaint, constitutes a sufficient claim for damages for negligence against Widget Co. under Vehicle Code Section 17150, which states: Every owner of a motor vehicle is liable and responsible for death or injury to person or property resulting from a negligent or wrongful act or omission
in the operation of the motor vehicle, in the business of the owner or otherwise, by any person using or operating the same with the permission, express or implied, of the owner.
Additionally, your completed version of the form complaint states a cause of action on a third theory. By completing the Judicial Council’s form complaint, you alleged that “the acts of defendants were negligent.” (MV-1.) Among the acts alleged is that Widget Co. “entrusted the motor vehicle” to Worker. (MV-2d.) Those allegations are sufficient to state a cause of action for negligent entrustment against Widget Co. (See Ghezavat v. Harris (2019) 40 Cal.App.5th 555, 559, internal citation omitted, [“‘Liability for the negligence of the incompetent driver to whom an automobile is entrusted does not arise out of the relationship of the parties, but from the act of entrustment of the motor vehicle, with permission to operate the same, to one whose incompetency, inexperience, or recklessness is known or should have been known by the owner.’”])
Since the complaint twice states a cause of action against Widget Co. “on any theory,” the demurrer under Section 410.30(e)
must be overruled. Defendants might also file a “special demurrer” on the grounds of uncertainty (Section 430.10(f)), claiming something like: On the face of the complaint, it is uncertain and ambiguous as to whether defendants owed a legal duty of care
to the plaintiff at the time of the alleged motor vehicle incident because the complaint states no fact to impose such duty on the defendant. It merely alleges an employment relationship between the two defendants without connecting the employment relationship to any negligent act of any defendant. Here, citations of applicable rules of construction can also be helpful. “Demurrers for uncertainty under Code of Civil Procedure section 430.10, subdivision (e) are disfavored. [Citation omitted.] A demurrer for uncertainty 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.)
Moreover, as noted more recently in Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822, “A demurrer for uncertainty should be overruled when the facts as to which the complaint is uncertain are presumptively within the defendant’s knowledge.” In the present case, the facts the defendants assert to be uncertain (likely concerning the allegations of Worker’s employment relationship) are presumptively within the defendants’ knowledge, so the demurrer for uncertainty should be
overruled.
Looking at these hypothetical contentions more closely, the form of complaint is sufficient to allege that the driver (Worker)
owed a legal duty to the plaintiff. “[A driver is] under a duty, both by statute and common law, to operate his vehicle without
negligence so as to abstain from injuring any other person or his property.” (Bewley v. Riggs (1968) 262 Cal.App.2d 188.) It is
unnecessary for the plaintiff expressly to plead the legal conclusion of duty. (See, Rosales v. Stewart (1980) 113 Cal.App.3d 130,
133 [“the legal conclusion that ‘a duty’ exists is neither necessary nor proper in a complaint”].) Since the form complaint
sets out the underlying facts supporting a finding of duty for the driver (Worker), there is no uncertainty as to the allegations
against him.
If the demurrer asserts that allegations of Widget Co.’s legal duties are uncertain, you should point out that the form complaint alleges Worker was Widget Co.’s employee. (MV-2b.) It also alleges that Worker negligently operated his vehicle at the location of the incident while “in the course of their employment” with Widget Co. (MV-1, MV-2a.). Taken together, these allegations set out the requisite connection between that employment relationship and Worker’s negligent acts. The pleaded allegations show that a legal duty of Widget Co. to the plaintiff is imposed as a matter of law because of an employer’s vicarious liability for the acts of a negligent employee. (See, Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296 [“The rule of respondeat superior is familiar and simply stated: an employer is vicariously liable for the torts of its employees committed within the scope
of the employment.”].) There is thus no uncertainty or ambiguity.
You may never understand why defendants’ counsel filed a demurrer opposing an ordinary set of allegations
like this one pleaded by completing the Judicial Council’s form complaint. Filing an opposition negating those contentions and
prevailing on the demurrer after the hearing is hopefully a first step to restoring meaningful progress to the litigation.
Ralph Jacobson, a Stanford Law alumnus, has focused on personal injury law for over 30 years. With numerous articles in the CEB Civil Litigation Reporter, one of which was cited by the California Supreme Court, his expertise is well-recognized. Ralph has consulted for Bancroft Whitney on its California Civil Practice Series and lectured extensively on personal injury law. He’s a co-author of California Government Tort Liability Practice and a member of both the Alameda and Contra Costa County Bar Associations, now serving as counsel to the firm.