Judge: Joseph Lipner, Case: 24STCV06204, Date: 2024-07-29 Tentative Ruling

Case Number: 24STCV06204    Hearing Date: July 29, 2024    Dept: 72

ASUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant Igor Pasternak (“Pasternak”) demurs to the Complaint filed by Plaintiff Ralph Biase (“Plaintiff”).

The Court OVERRULES the demurrer to Plaintiff’s first claim.

The Court SUSTAINS the demurrer to Plaintiff’s second claim WITHOUT LEAVE TO AMEND.

Background

This case relates to an automobile collision between Defendant Josefina Perez-Inigo Morales (“Perez-Inigo”) and Plaintiff. The following facts are taken from the allegations of the Complaint, which the Court accepts as true for the purposes of the demurrer.

On My 19, 2023, Plaintiff was driving northbound on Robertson Boulevard in the number one furthest left-hand turn lane. Plaintiff had stopped behind another vehicle at a red arrow for between 30 and 60 seconds. At that time, Perez-Inigo was driving a vehicle behind Plaintiff in the same direction and struck Plaintiff’s vehicle from behind while the arrow was still red.

At the time of the collision, Perez-Inigo was driving a vehicle owned by Defendant Ean Holdings, LLC (“Ean Holdings”).

Defendant Worldwide Aeros Corp. (“Worldwide”) was Perez Inigo’s employer at the time of the collision. Pasternak was the founder and CEO of Worldwide at the time of the collision.

Plaintiff filed this action against Perez-Inigo, Ean Holdings, Worldwide, and Pasternak on March 13, 2024, raising claims for (1) negligence; and (2) negligent entrustment.

Pasternak demurred to the Complaint on July 3, 2024. Plaintiff filed an opposition and Pasternak filed a reply.

Legal Standard

As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) The court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Discussion

Negligence – First Claim

In order to state a claim for negligence, a plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

“Under Respondeat superior, an employer is vicariously liable for the torts of his employees committed within the scope of the employment.” (Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 617.)

Plaintiff alleges that Perez-Inigo was acting within the scope of her employment with Worldwide and Pasternak. Pasternak argues that Plaintiff does not plead any facts with specificity in support of this allegation. However, “an allegation is one of ultimate fact and good against a general demurrer[.]” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 737.) Plaintiff is generally not required to plead evidentiary facts. Plaintiff’s allegation that Perez-Inigo acted within the scope of her employment is sufficient to put Pasternak on notice of the claim against him.

The Court overrules the demurrer to this claim.

Negligent Entrustment – Second Claim

The elements of negligent entrustment of a vehicle are as follows: (1) that the driver was negligent in operating the vehicle; (2) that the defendant owner owned the vehicle operated by the driver or had possession of that vehicle with the owner’s permission; (3) that the defendant owner knew, or should have known, the driver was incompetent or unfit to drive the vehicle; (4) that defendant owner permitted the driver to operate the vehicle regardless; and (5) that the driver’s incompetence or unfitness to drive was a substantial factor in causing harm to the plaintiff. (McKenna v. Beesley (2021) 67 Cal.App.5th 552, 565-66.)

Plaintiff alleges that the vehicle driven by Perez-Inigo at the time of the collision was owned by Ean Holdings – not by Pasternak. Plaintiff does not allege that Pasternak owned the vehicle or had possession of the vehicle. Plaintiff also does not allege that Pasternak entrusted the vehicle to Perez-Inigo. Plaintiff therefore has not alleged the second element.

Plaintiff has stated that he can amend the Complaint to provide additional details about Pasternak’s role as an employer and Pasternak’s knowledge of Perez-Inigo’s driving capabilities. These details would not cure the failure to allege ownership and entrustment. Amendment would therefore be futile as to Pasternak.

The Court sustains the demurrer to this claim without leave to amend.