Judge Audra Mori, Case 21STCV46024 2022-08-04 Tentative Ruling

Plaintiff Jose Junior Alvarenga (“Plaintiff”) filed this action against defendants Grant Auto, LLC, Ali Braidy, Grant Fought, and John Doe for injuries Plaintiff sustained while at an auto shop when an employee allegedly reversed a motor vehicle at a high rate of speed and collided with Plaintiff. The First Amended Complaint (“FAC”) asserts causes of action for (1) negligence and (2) negligent entrustment.

Defendants Grant Auto, LLC and Ali Braidy (collectively, “Defendants”) now demur to the FAC arguing it fails to state sufficient facts to constitute any cause of action against them. Plaintiff opposes the demurrer, and Defendants filed a reply.

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (CCP §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Donabedian, 116 Cal.App.4th at 994.)

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. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP § 430.41(a).)

The court finds Defendant has fulfilled this requirement prior to filing the demurrer. (Demurrer Kashfian Decl. ¶¶ 3-6.)

The elements of a cause of action for negligence are duty, breach, causation, and damages. (Orey v. Superior Court (2013) 213 Cal.App.4th 1241, 1255; Johnson v. Prasad (2014) 224 Cal.App.4th 74, 78.) “Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and ... the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) There is no requirement that plaintiff identify and allege the precise moment of the injury or the exact nature of the wrongful act. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Further, “[t]he 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.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.)

Here, Defendants contend the first cause of action for negligence insufficiently pleads a claim for negligent hiring and retention, and that the respondeat superior allegations are insufficient.

11. On or about January 31, 2020, PLAINTIFF was a pedestrian at an auto shop located at 12902 W. Washington Blvd., Los Angeles, CA 90066, a location owned, operated, managed, and maintained by DEFENDANTS GRANT AUTO, LLC, a California Limited Liability Company; ALI BRAIDY, an individual; GRANT FOUGHT, an individual and DOES 1 to 50, inclusive.

12. On said date and time, JOHN DOE, an individual, was an employee of DEFENDANTS GRANT AUTO, LLC, a California Limited Liability Company; ALI BRAIDY, an individual; GRANT FOUGHT, an individual, and DOES 1 to 50, inclusive, and reversed a motor vehicle at a high rate and unsafe speed, failed to keep a look-out for surrounding pedestrians, including PLAINTIFF, and as a result caused the motor vehicle to collide with PLAINTIFF thereby causing severe and debilitating injuries to PLAINTIFF.

17. DEFENDANTS GRANT AUTO, LLC, a California Limited Liability Company; ALI BRAIDY, an individual; GRANT FOUGHT, an individual and DOES 1 to 50, inclusive, are the employers, supervisors, managers, and instructors of DEFENDANTS JOHN DOE, an individual, and

knew, or should have known through proper review, background search, instruction, and supervision, that DEFENDANT JOHN DOE was unfit to operate vehicles and likely to cause an auto collision resulting in injury yet continued to allow DEFENDANT JOHN DOE to operate vehicles in the course and scope of his employment, and as a result DEFENDANTS GRANT AUTO, LLC, a California Limited Liability Company; ALI BRAIDY, an individual; GRANT FOUGHT, an individual; and DOES 1 to 50, inclusive, are vicariously liable for the negligence of their employee DEFENDANT JOHN DOE, an individual.

(FAC ¶¶ 11-12.) The FAC, thus, alleges that Defendants were the employers of John Doe, and that Defendants allowed John Doe to operate vehicles in the course and scope of his employment.

However, there are no allegations stating that at the time of the incident, John Doe was acting in the course and scope of his employment. While Plaintiff contends in opposition that paragraph 12 alleges that John Doe negligently caused the injuries to Plaintiff in the course and scope of his employment, paragraph 12 merely provides that John Doe was Defendants’ employee and caused a motor vehicle to collide with Plaintiff. There are no allegations stating that John Doe was in fact acting within the course and scope of his employment at the time.

To the extent Plaintiff alleges Defendants are liable for negligently supervising John Doe, as Defendants argue, “[t]o prevail on his negligent hiring/retention claim, [plaintiff] will be required to prove [the employee] was [the employer’s] agent and [the employer] knew or had reason to believe [the employee] was likely to engage in [the alleged misconduct].” (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 591.) The FAC merely alleges that Defendants through proper supervision knew or should have known that John Doe was unfit to operate vehicles. This is insufficient. (See Id.)

Therefore, the demurrer to the first cause of action for negligence is sustained.

“‘“[I]t is generally recognized that one who places or entrusts his [or her] motor vehicle in the hands of one whom he [or she] knows, or from the circumstances is charged with knowing, is incompetent or unfit to drive, may be held liable for an injury inflicted by the use made thereof by that driver, provided the plaintiff can establish that the injury complained of was proximately caused by the driver’s disqualification, incompetency, in experience or recklessness . . . .”’” (Flores v. Enterprise Rent-A-Car Co. (2010) 188Cal.App.4th 1055, 1063.)

“CACI No. 724 outlines the elements of the tort of negligent entrustment of a motor vehicle: ¶ ‘1. That [name of driver] was negligent in operating the vehicle; ¶ ‘2. That [name of defendant] [owned the vehicle operated by [name of driver]/had possession of the vehicle operated by [name of driver] with the owner's permission]; ¶ ‘3. That [name of defendant] knew, or should have known, that [name of driver] was incompetent or unfit to drive the vehicle; ¶ ‘4. That [name of defendant] permitted [name of driver] to drive the vehicle; and ¶ ‘5. That [name of driver]'s incompetence or unfitness to drive was a substantial factor in causing harm to [name of plaintiff].’ [Footnote omitted.]” (McKenna v. Beesley (2021) 67 Cal.App.5th 552, 565–566.)

In this case, the FAC alleges that “DEFENDANTS knew or should have known that DEFENDANT JOHN DOE was unfit and/or incompetent to drive the vehicle on the date of the incident. JOHN DOE was an employee of DEFENDANTS GRANT AUTO, LLC; ALI BRAIDY; GRANT FOUGHT; and DOES 1 to 50, inclusive,” and that “DEFENDANT JOHN DOE’s incompetence and/or unfitness to drive was a substantial factor in causing harm to the PLAINTIFF.” (FAC at ¶¶ 23-24.)

As Defendants argue, the FAC fails to assert any factual allegations showing that Defendants knew or should have known that John Doe was incompetent or unfit to drive the vehicle. The complaint merely alleges legal conclusions, such as that Defendants entrusted vehicles to John Doe, and that Defendants knew or should have known John Doe was unfit and incompetent to drive. There are no facts alleged regarding what qualities or factors made John Doe unfit and incompetent to drive, and why Defendants would know or had reason to know of any unfitness. Negligent entrustment “requires demonstration of actual knowledge of facts showing or suggesting the driver’s incompetence - not merely his lack of a license. . . . For liability to exist, knowledge must be shown of the user’s incompetence or inability safely to use the [vehicle].” (Dodge Center v. Superior Court (1988)199 Cal.App.3d 332, 341, internal citations omitted.)

Similarly, the FAC alleges in conclusory fashion that John Doe’s incompetence and unfitness was a substantial factor in causing harm to Plaintiff. However, because there are no facts support the claim John Doe was unfit or incompetent to drive the vehicle, the FAC fails to sufficiently plead that John Doe’s unfitness or incompetence was a factor in causing Plaintiff’s injuries. Therefore, the FAC fails to state a claim for negligent entrustment against Defendants.

The demurrer is sustained as to the second cause of action for negligent entrustment.

The burden is on Plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.)

In this case, Plaintiff requests leave to amend the FAC. Based on Plaintiff’s arguments concerning the incident, the court finds there is a reasonable possibility the FAC can be cured to state a claim against Defendants.

Defendants’ demurrer is sustained to the first and second causes of action as to Defendants with twenty (20) leave to amend.

Hon. Audra Mori

Judge of the Superior Court