Jesse Trafton v. Jose Rivas Barillas

(Chatsworth Courthouse: Dept. F46) August 25, 2026 DEPARTMENT F46 LAW AND MOTION RULINGS Call the Courtroom Assistant at 818-576-8430 prior to 4:30 p.m. on the date prior to the hearing, or inform the Courtroom Assistant upon checking in.

Hearing Date: August 25, 2026 Case Number: 25CHCV01728 DEFENDANT JOSE RIVAS BARILLAS' DEMURRER TO PLAINTIFF'S COMPLAINT AND MOTION TO STRIKE Motions filed on October 22, 2025. MOVING PARTY: Jose Rivas Barillas (Defendant) RESPONDING PARTY: Jesse Trafton (Plaintiff) NOTICE: OK. RELIEF REQUESTED: Defendant demurs to the first cause of action for battery, second cause of action for assault, third cause of action for negligent operation of a firearm, and fifth cause of action for intentional infliction of emotional distress. Defendant also moves to strike Plaintiff's request for attorney's fees under Code of Civil Procedure section 1021.4. RULING: Demurrer overruled. Motion to strike granted with 20 days' leave to amend as to paragraph 5 of the prayer for relief.

BACKGROUND On May 16, 2025, Plaintiff filed the Complaint against Defendant and Does 1 through 20 asserting causes of action for battery, assault, negligent operation of a firearm, negligent entrustment/supervision/storage of a firearm, and intentional infliction of emotional distress.

On October 22, 2025, Defendant filed the instant demurrer and motion to strike, supported by a memorandum of points and authorities, the declaration of Robert Ruano, and Exhibit A. Plaintiff filed separate oppositions to the demurrer and motion to strike on December 19, 2025. Defendant filed separate replies on August 18, 2026.

LEGAL STANDARD "[A] demurrer tests the legal sufficiency of the allegations in a complaint." (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the Court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

"Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e)." (Code Civ. Proc., Sec. 435, subd. (b)(2).) "The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court." (Id., Sec. 436.)

DEMURRER First Cause of Action: Battery "The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant's conduct; and (4) a reasonable person in plaintiff's position would have been offended by the touching." (So v. Shin (2013) 212 Cal.App.4th 652, 668-669.)

Here, Plaintiff alleges Defendant intentionally caused harmful and offensive contact by shooting him with a firearm without justification or provocation. (Compl. P. 9.) Plaintiff alleges he did not consent to being shot. (Compl. P. 10.) Plaintiff alleges the shooting caused severe injuries, including partial paralysis requiring ongoing medical care and treatment. (Compl. P. 11.) The alleged touching was a gunshot, which sufficiently alleges contact that a reasonable person in Plaintiff's position would find offensive. Plaintiff sufficiently alleges each element of battery. The demurrer to the first cause of action is overruled.

Second Cause of Action: Assault "The essential elements of a cause of action for assault are: (1) defendant acted with intent to cause harmful or offensive contact, or threatened to touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably believed [he or] she was about to be touched in a harmful or offensive manner or it reasonably appeared to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not consent to defendant's conduct; (4) plaintiff was harmed; and (5) defendant's conduct was a substantial factor in causing plaintiff's harm." (So v. Shin (2013) 212 Cal.App.4th 652, 668-669.)

Here, Plaintiff alleges Defendant brandished a firearm in a threatening manner while verbally threatening him with imminent bodily harm and acted with the intent to cause harmful or offensive contact or the imminent apprehension of such contact. (Compl. P.P. 15-16.) Plaintiff alleges he reasonably feared Defendant was about to shoot or otherwise physically harm him. (Compl. P. 17.) Plaintiff alleges he did not consent to Defendant's conduct. (Compl. P. 18.) Plaintiff alleges he suffered severe emotional distress, fright, shock, terror, anxiety, mental anguish, loss of enjoyment of life, medical expenses, and lost wages. (Compl. P. 20.) Plaintiff alleges Defendant's conduct was a substantial factor in causing his harm. (Compl. P. 19.) Plaintiff sufficiently alleges each element of assault. The demurrer to the second cause of action is overruled.

Third Cause of Action: Negligent Operation of a Firearm Negligence requires duty, breach, causation, and damages. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1077.) A general demurrer must be overruled if the facts alleged state a valid cause of action under any legal theory, regardless of the label placed on the claim. (Quelimane Co., Inc. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39; Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) A general demurrer also does not lie to only part of a cause of action. (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1167.) A plaintiff may plead and proceed on inconsistent intentional and negligent tort theories. (Grudt v. City of Los Angeles (1970) 2 Cal.3d 575, 586.)

Here, Plaintiff alleges Defendant owed him a duty to exercise care in the handling, operation, and discharge of the firearm to prevent foreseeable harm. (Compl. P. 23.) Plaintiff alleges Defendant breached that duty by, among other things, discharging the firearm in Plaintiff's direction without a safe backstop, pointing the firearm at or near Plaintiff, failing to properly handle the firearm so that it accidentally discharged, and negligently placing his finger on the trigger when he did not intend to fire. (Compl.

P. 24.) Plaintiff alleges that, as a direct and proximate result of Defendant's negligent operation of the firearm, a projectile discharged from the firearm and struck him in the abdomen. (Compl. P. 25.) Plaintiff alleges the gunshot caused serious injury and incorporates allegations that he sustained severe and permanent injuries, including partial paralysis. (Compl. P.P. 3, 22, 25.) Plaintiff sufficiently alleges negligence.

Defendant argues that "negligent operation of a firearm" is not an independent tort and that Plaintiff's negligence allegations conflict with his intentional tort allegations. Neither argument warrants sustaining the demurrer. The label Plaintiff placed on the third cause of action does not control because the facts alleged state a negligence claim. (Quelimane, supra, 19 Cal.4th at pp. 38-39; Saunders, supra, 224 Cal.App.3d at p. 908.) To the extent Defendant challenges particular allegations as inconsistent with negligence, a general demurrer does not lie to only part of a cause of action, and Plaintiff may plead inconsistent intentional and negligent theories. (Daniels, supra, 246 Cal.App.4th at p. 1167; Grudt, supra, 2 Cal.3d at p. 586.) The demurrer to the third cause of action is overruled.

Fifth Cause of Action: Intentional Infliction of Emotional Distress The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.)

Here, Plaintiff alleges Defendant intentionally shot him without lawful justification or excuse and did so with the intent to cause severe emotional distress or with reckless disregard of the probability of causing such distress. (Compl. P.P. 48-50.) Plaintiff alleges he suffered severe emotional distress, including fear, anxiety, grief, and psychological trauma, and that the distress was directly and proximately caused by Defendant's conduct. (Compl. P. 51.) The alleged intentional and unjustified shooting sufficiently alleges extreme and outrageous conduct. Plaintiff sufficiently alleges intentional infliction of emotional distress. The demurrer to the fifth cause of action is overruled.

Uncertainty A demurrer for uncertainty is sustained only when the pleading is so incomprehensible that the defendant cannot reasonably determine what issues must be admitted or denied. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Here, Plaintiff identifies Defendant as the person who allegedly shot him. (Compl. P. 2.) The challenged causes of action identify the conduct attributed to Defendant and the theories under which Plaintiff seeks recovery. (Compl. P.P. 9-11, 14-20, 23-26, 48-51.) The references to Doe defendants do not prevent Defendant from determining the allegations directed against him. Nor do the incorporation of prior allegations or the pleading of intentional and negligent theories render the Complaint so incomprehensible that Defendant cannot reasonably respond. The demurrer for uncertainty is overruled.

MOTION TO STRIKE Defendant's notice identifies and quotes only Plaintiff's request for attorney's fees under Code of Civil Procedure section 1021.4 as the matter sought to be stricken. California Rules of Court, rule 3.1322(a) requires a notice of motion to strike a portion of a pleading to quote in full the portions sought to be stricken, except where the motion is directed to an entire paragraph, cause of action, count, or defense. Although Defendant's memorandum also challenges punitive damages, those allegations are not identified in the notice as matter sought to be stricken. The Court therefore addresses only the attorney's fee request.

Code of Civil Procedure section 1021.4 provides: "In an action for damages against a defendant based upon that defendant's commission of a felony offense for which that defendant has been convicted, the court may, upon motion, award reasonable attorney's fees to a prevailing plaintiff against the defendant who has been convicted of the felony."

Here, Plaintiff requests attorney's fees under section 1021.4. (Compl., Prayer P. 5.) Plaintiff does not allege that Defendant has been convicted of a felony. The statutory predicate supporting the requested relief is therefore not alleged. Paragraph 5 of the prayer is stricken. This ruling does not preclude Plaintiff from seeking attorney's fees by motion if the requirements of section 1021.4 are later established. The motion to strike paragraph 5 of the prayer for relief is granted with 20 days' leave to amend.

CONCLUSION The demurrer to the first cause of action for battery, second cause of action for assault, third cause of action for negligent operation of a firearm, and fifth cause of action for intentional infliction of emotional distress is overruled. The demurrer for uncertainty is overruled. The motion to strike is granted with 20 days' leave to amend as to paragraph 5 of the prayer for relief requesting attorney's fees under Code of Civil Procedure section 1021.4. If Plaintiff does not amend within that time, Defendant shall file and serve his answer within 20 days thereafter. Defendant shall give notice.