Judge Kerry Bensinger, Case Number: 20STCV42307, Date: 2023-08-11 Tentative Ruling

This is a consolidated action arising out of a multi-vehicle collision that occurred on May 4, 2019. On that day, Carlos Mosqueda Romero (“Romero”) was driving a semi-truck owned by 400 Transport Inc. and Alma Rosa Castillo Romero when he rear-ended Plaintiff Jay Zink’s vehicle. Zink’s vehicle, in turn, rear-ended Plaintiff Kaeloni Sims’s vehicle. Romero was hauling a trailer register to Mt. Shasta Bottling and Distributing Company (“Mt. Shasta”).

On December 2, 2020, Plaintiff Zink filed this action on a Judicial Council form against 400 Transport Inc., Carlos Mosqueda Romero, Alma Castillo Romero, and Does 1 to 20, for injuries arising from the collision. Plaintiff later named Mt. Shasta as Doe 1. Plaintiff asserts causes of action for General Negligence and Motor Vehicle.

On Juy 14, 2023, Mt. Shasta filed this demurrer to the Complaint. Plaintiff opposes and Mt. Shasta replies.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) Judicial Council forms are not immune to demurrer. (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1486.)

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) 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 complainant to show the Court that a pleading can be amended successfully. (Ibid.)

Defense counsel has complied with the meet and confer requirement.¿ (See Declaration of Ann C. Hall.)

“The elements of a cause of action for negligence are well established.¿ They are (a) a legal duty to use due care; (b) a breach of such legal duty; and (c) the breach as the proximate or legal cause of the resulting injury.”¿ (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917; CACI No. 400.) (Quotations omitted.)¿¿ The elements are the same for a Motor Vehicle cause of action. (See Judicial Council Form, Cause of Action-Motor Vehicle.)

Mt. Shasta argues the allegations of the Complaint are uncertain and fail to state facts sufficient to constitute a cause of action against Mt. Shasta. Not so. The Complaint alleges, in relevant part, that Romero and Does 1 to 20 were “acting in the course and scope of his employment, agency, joint enterprise, and/or independent contractor relationship with Defendant 400 Transport Inc. and Does 1 to 20, so that Defendants are vicariously liable or the negligence of one another.” The Complaint further alleges that Does 1 to 20 negligently hired, trained, supervised, managed, and/or controlled Defendant Carlos Mosqueda Romero”; that Does 1 to 20 “owned the motor vehicle which was operated with their permission”; and that Romero and Does 1 to 20 were the agents and employees of the other defendants and acted within the scope of the agency”. Importantly, Plaintiff amended the Complaint to name Mt. Shasta as Doe 1. The sum of these allegations show that vicarious liability is the basis for holding Mt. Shasta liable for Romero’s negligent operation of the semi-truck. These allegations are sufficient to state causes of action for General Negligence and Motor Vehicle against Mt. Shasta.[1]

Mt. Shasta further argues that it did not employ Romero nor own the semi-truck involved in the incident. However, these are facts extrinsic to the Complaint. When ruling on a demurrer, the Court accepts as true the well-pleaded allegations in the complaint. (Del E. Webb Corp., supra, 123 Cal.App.3d at p. 604.) Mt. Shasta fails to show that there is a defect on the face of the pleading.

Mt. Shasta is to file and serve their Answer to the Complaint within 10 days of this order.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

[1] In their reply, Mt. Shasta argues that the Complaint fails to state a cause of action for negligent entrustment. The Court does not address this argument given that Mt. Shasta raises it for the first time in its reply and because the Court finds that the form Complaint alleges facts sufficient to state causes of action for Motor Vehicle and General Negligence under a vicarious liability theory.