Judge Christian R. Gullon, Case Number: 24PSCV01689, Date: 2024-11-14 Tentative Ruling

Judge: Christian R. Gullon, Case: 24PSCV01689, Date: 2024-11-14 Tentative Ruling

DEFENDANT GALLOP TRUCKING, INC.’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT is SUSTAINED with leave to amend, namely as Plaintiff has not addressed the Bryant and Dyer cases.

This case arises from a motor vehicle accident. Plaintiff Rodolfo Evaro alleges the following against Defendants Victor Vidal (“Driver”) and Gallop Trucking Inc. (“Defendant” or the “Towing Company”): On 2/16/23, Plaintiff, a heavy-duty tow operator, was called by Defendant to tow one of their trailer trucks that had broken down on the freeway; the trailer was parked on the gore point of the highway. While Plaintiff was securing Defendant’s trailer to his towing truck, the Driver suddenly headed towards Plaintiff and struck Plaintiff from behind, causing Plaintiff serious and permanent injuries, including amputation above the knee. Plaintiff alleges that Defendant breached a duty of care by (i) not stopping/parking the trailer in a safe spot on the highway; (ii) failing to maintain their trailer (i.e., preventative maintenance); and (iii) failing to start off a roadside flare to alert and prompt any nearby emergency responders for assistance, including CHP. (See generally First Amended Complaint (FAC).)[1]

On July 24, 2024, the Driver filed his answer and that same day filed a cross-complaint against Defendant asserting the following causes of action (COAs):

Defendant demurs to both COAs on the grounds that the COAs fail to state facts sufficient to constitute a COA and the COAs are uncertain. (Demurrer p. 2, citing Code Civ. Proc. § 430.10(e), (f).) More specifically, Defendant argues that under Bryant v. Glastetter (1995) 32 Cal.App.4th 770 (Bryant) and Dyer v. Sup. Ct. (1997) 56 Cal.App.4th 61 (Dyer)

stranded motorists do not owe a duty of care to tow truck operators who are injured performing their job duties. The court turns to Bryant as it is an instructive case.

In Bryant, the decedent was a tow truck driver who was struck and killed by a third party as he attempted to remove the defendant’s car from the side of the freeway after he was arrested for driving under the influence. (Bryant, supra, 32 Cal.App.4th at p. 774.) The complaint alleged that the defendant had a duty to avoid driving under the influence of alcohol because she knew or should have known that doing so could lead to impoundment of her vehicle, “thereby affecting the safety of others including decedent at the scene of the traffic stop; and that the failure of Glastetter to avoid driving under the influence of alcohol was a proximate cause of the fatal injuries to decedent and the consequent harm to plaintiffs.” (Id. at p. 775.) On appeal, the court confronted the issue of duty. (Id. at p. 777.) In determining that there was no duty, the appellate court analyzed the factors set forth in Rowland v. Christian (1968) 69 Cal.2d 108. (Id. at p. 778.) One of the factors examined was the ‘foreseeability of harm.’ (Id. at p. 778.) “In order to limit the otherwise potentially infinite liability which would follow every negligent act, the law of torts holds defendant amenable only for injuries to others which to defendant at the time were reasonably foreseeable.” (Ibid.) In determining that the harm suffered by decedent in the present case was not a “harm of a kind normally to be expected” as a consequence of negligent driving, the court provided the following reasoning:

Even without being intoxicated, however, Glastetter might well have ended up by the side of the road and in need of a tow truck for any number of reasons which might have involved varying degrees of negligence. Other than making it more probable that decedent would be in the place in which the accident happened, Glastetter's consumption of alcohol did not make more probable the accident that occurred, which was the result of independent negligence by a third party. (Id. at pp. 779-780, emphasis added.)

Related to the question of foreseeability is the question of “the closeness of the connection between the defendant's conduct and the injury suffered.” (Id. at p. 781.) As to this factor, the court determined that the “there is no logical cause and effect relationship between [driving under the influence of alcohol] and the harm suffered by decedent except for the fact that it placed decedent in a position to be acted upon by the negligent third party.” (Id. at p. 782.)

In Dyer,[3] the court relied upon Bryant in holding that a motorist did not owe duty of care to tow truck driver to keep car in good mechanical order so that motorist would not need towing assistance on freeway, facts which are nearly identical to this case. “ As in Bryant, Hasou's injuries were not a foreseeable result of Dyer's negligence (if any) in maintaining his car because this negligence only brought Hasou to the freeway shoulder, but did not make it more probable that a negligent third party would harm him at that location.” (Dyer, supra, 56 Cal.App.4th at p. 72.)

Here, however, the opposition does not address any of the foregoing cases, and/or, in the alternative, provide an analysis of the Rowland factors. To the extent that Plaintiff cites authority, some cases do not have a proper citation for the court to review (see e.g., Opp. p. 10, citing Esparza v. Win Distrib., 2021 Cal. App. Unpub; see also Opp. p. 10 citing Malyszek v. Martinez-Vieyra 2022 Cal. Super.), some cases reference non-binding nor persuasive authority (Opp. p. 11 citing Silvia v. Pennock (1962) 253 Iowa 779 [ 113 N.W.2d 749), and some do not involve motor vehicle accidents (see e.g., Hass v. Rhodyco Prods. (2018) 26 Cal.App.5th 11, 236 [cardiac arrest after marathon].)

The court is not bound to develop a party’s argument for them, arguments which are to be supported by authority. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956. Therefore, as Plaintiff has not squarely addressed Defendant’s arguments and authority, the court SUSTAINS the demurrer with leave to amend.

[1] The FAC uses a judicial council form.

[2] According to Defense Counsel Hunter’s declaration, the parties met and conferred on at least five occasions. The court appreciates the attorneys’ respectful and professional communications.

[3] Dyer involved a summary judgment motion. Notwithstanding, as the case did not involve disputed material facts but legal issues (id. at p. 65), the case is instructive as on a demurrer the court does not address factual disputes.