Judge: Cherol J. Nellon, Case: 21STCV45976, Date: 2023-05-09 Tentative Ruling

Case Number: 21STCV45976    Hearing Date: May 9, 2023    Dept: 28

Cross-Defendant Ignacio Rosario Pompa’s Demurrer

Having considered the moving, opposing and reply papers, the Court rules as follows.

BACKGROUND

On December 16, 2021, Plaintiff Dulce Mora (“Plaintiff”) filed this action against Defendants National Cement Company, Inc. (“NCC”) and Jesus Mejia (“Mejia”) for motor vehicle.

On January 20, 2022, Defendants filed separate answers. On August 12, 2022, Defendants filed a Cross-Complaint against Cross-Defendant Ignacio Rosario Pompa (“Pompa”) for indemnity, apportionment of fault, contribution and negligent entrustment.

On April 13, 2023, Pompa filed a Demurrer to be heard on May 9, 2023. On April 26, 2023, Defendants filed an opposition. On May 2, 2023, Pompa filed a reply.

Trial is scheduled for September 21, 2023.

PARTY’S REQUESTS

Pompa request the Court sustain the demurrer for failure to state facts sufficient to allege any cause of action.

Defendants request the Court overrule the demurrer.

LEGAL STANDARD

CCP § 430.10 states: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any

one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have the legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible; and (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”

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 by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) 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, 147 Cal.App.4th at 747.)

“ [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, inexperience or recklessness...” (Flores v. Enterprise Rent-A-Car Co. (2010) 188 Cal.App.4th 1055, 1063

DISCUSSION

Defendants’ Cross-Complaint is a form Cross-Complaint, with two causes of action not specifically provided by the form. The first is for contribution, indicating that cross-defendants are liable to Defendants for any liability assessed to be attributable to cross-defendants. The second is for negligent entrustment, which alleges that Pompa owned and entrusted the subject vehicle, knowing that Plaintiff did not have a valid driver’s license.

The Court finds that the first three causes of action—indemnification, apportionment of fault, and contribution—are sufficiently pled. They clearly assert that Pompa is liable for any contribution to the subject incident that may otherwise have been attributed to Defendants. Defendants, as the party being sued, have the right to seek out contribution from other parties. Additional facts are not necessary in order for Pompa to understand what action being asserted against him. The Court overrules the demurrer as to the first three causes of action.

However, the cause of action for negligent entrustment is insufficiently pled. A cause of action for negligent entrustment requires more than a mere assertion that a party negligent entrusted a vehicle to a third party. The party asserting the claim must assert some sort of injury inflicted upon said party that was proximately caused by the driver. Here, Defendants make no such claim. They do not allege that their vehicle or any individual was damaged by Plaintiff’s driving. There are no expressly alleged facts that would provide a basis for personal injury to Defendants, as suggested in Defendants’ opposition. Damages stemming from litigation are not a proper basis for a negligent entrustment claim—indemnification, apportionment of fault and contribution are the proper causes of action for said damages. Therefore, Defendants have provided no facts that suggest actionable damages in regard to this cause of action. The Court sustains the demurrer as to negligent entrustment.

CONCLUSION

Cross-Defendant Ignacio Rosario Pompa’s Demurrer is OVERRULED, in part, and SUSTAINED, in part, with 30 days leave to amend. The demurrer is overruled as to the first three causes of action. The demurrer is sustained, with leave to amend, as to the fourth cause of action for negligent entrustment.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.