Judge Kerry Bensinger, Case 21STCV45245 2023-03-14 Tentative Ruling

On December 13, 2021, plaintiff Merie Mesa (“Plaintiff”) filed this action against defendants Reuben Diego Gonzalez, Enterprise Rent-A-Car Company of Los Angeles, LLC (erroneously sued as “Enterprise Rent-A-Car Company”) (“Enterprise”), EAN Holdings, LLC, (“EAN”), and Does 1 through 50, inclusive (collectively, “Defendants”) for bodily injury and property damage arising from a December 18, 2019 motor vehicle collision at or near Olive Street and 9th Street in the City and County of Los Angeles.

On February 9, 2023, Enterprise and EAN (hereinafter, “Moving Parties”) filed this demurrer, arguing that (1) the complaint fails to state a cause of action against Moving Parties, (2) the Graves Amendment forecloses Plaintiff’s claims against Moving parties, and (3) the complaint fails for uncertainty.

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.)

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.)

A failure to oppose a motion may be deemed a consent to the granting of the motion. (Cal. Rules of Court, rule 8.54, subd. (c).)

Moving Parties request that the Court take judicial notice of the fact proposition that Enterprise and EAN are in the business of renting and/or leasing vehicles. The requests are based upon copies of Statements of Information filed with the California Secretary of State and attached as Exhibits B and C to the Declaration of Adam I. Miller. The Court takes judicial notice of the Statements of Information to the extent that the Statements of Information were filed with the California Secretary of State and not for the truth of the matters asserted therein. (Evid. Code, § 452, subd. (h).)

Before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a).) Counsel for Moving Parties has not satisfied this requirement. (Declaration of Adam I. Miller, ¶ 8.) However, a failure to comply with the requirement shall not be grounds to overrule or sustain a demurrer. (Code Civ. Proc., § 430.41, subd. (a)(4).)¿ Therefore, the Court considers the merits of Moving Parties’ demurrer.[1]

The complaint alleges, in relevant part, as follows: “[O]n or about December 18, 2019 at or near Olive Street and 9th Street in the City of Los Angeles, County of Los Angeles, a motor vehicle or vehicles … owned, … negligently operated, maintained, controlled, and permissively used by defendants … cause[d] an accident involving … plaintiff and causing damage.” (Complaint, ¶ 3.) “[D]efendants are responsible in some manner” for the motor vehicle collision, and “[a]t all times mentioned herein, each defendant was the agent and employee of each of the remaining defendants and was acting within the course and scope of such agency and employment.” (Complaint, ¶¶ 1-2.)

Moving Parties argue the demurrer should be sustained because Plaintiff’s complaint does not allege sufficient facts to state a claim against Moving Parties. Specifically, Moving Parties argue the complaint does not allege any material facts to support the agency, permissive use, and negligent operation, control, and maintenance theories.

A review of Plaintiff’s complaint supports Moving Parties’ argument. The complaint sets forth conclusory allegations that Moving Parties owned, permitted the use of, and/or negligently operated, controlled, and maintained the vehicle that collided with Plaintiff’s property on December 18, 2019. (See Complaint, ¶ 3.) The Complaint further alleges that “each defendant was the agent and employee of each of the remaining defendants and was acting within the course and scope of such agency and employment.” (Complaint, ¶ 2.) These boilerplate allegations are insufficient to put Moving Parties on notice of the factual basis of Plaintiff’s claims against Moving Parties. The complaint does not set forth any facts to show that Moving Parties was a principal giving rise to agent liability. (See Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, 85.) Nor are Plaintiff’s negligent operation or control theories of liability viably alleged against Moving Parties because, as corporate entities, Moving Parties are unable to operate a vehicle.

In sum, Moving Parties demonstrate that Plaintiff’s complaint is factually deficient. Accordingly, the demurrer based on failure to allege sufficient facts is sustained.

Moving Parties next argue that the Graves Amendment forecloses Plaintiff’s claims as to Moving Parties. The Graves Amendment provides in pertinent part:

(a) In general.--An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if--

(1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and

(2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner). (49 U.S.C. § 30106.)[1]

(b) Financial responsibility laws. Nothing in this section supersedes the law of any State or political subdivision thereof—

(1) imposing financial responsibility or insurance standards on the owner of a motor vehicle for the privilege of registering and operating a motor vehicle; or

(2) imposing liability on business entities engaged in the trade or business of renting or leasing motor vehicles for failure to meet the financial responsibility or liability insurance requirements under State law.

No published California appellate court decision has addressed whether the Graves Amendment preempts California tort law Vehicle Code sections 17150 and 17151, while other jurisdictions have already adopted the federal law and concluded that it preempts their own state vicarious liability statutes for lessors or renters of vehicles. (See Garcia v. Vanguard Car Rental USA, Inc. (11th Cir. 2008) 540 F.3d 1242; see also Carton v. General Motors Acceptance Corp. (8th Cir. 2010) 611 F.3d 451.)

Traditionally, California courts have applied California Vehicle Code sections 17150 and 17151 in allowing plaintiff’s recovery from lessors based on vicarious liability. Section 17150 provides that “[e]very owner of a motor vehicle is liable and responsible for death or injury to person or property resulting from a negligent or wrongful act or omission in the operation of the motor vehicle … by any person using or operating the same with the permission, express or implied, of the owner.” However, under Section 17151, where the basis for liability is permissive use and the relationship between the owner and the driver is not that of principal and agent or master and servant, the owner’s liability is limited by statute to $15,000 per person, not to exceed $30,000 per accident.

Here, if Moving Parties were the titleholder of the subject rental vehicle, or if Moving Parties could be deemed an owner through its affiliation with the titleholder, the Graves Amendment would bar Moving Parties from being liable. (See, e.g., Fabrice Benezit v. Federal Express Corporation, et al. (Cal. Super. Feb. 17, 2023) Case No. 22STCV06821.) However, the Court has found that Plaintiff’s complaint is insufficiently pled as to Moving Parties. Accordingly, the Court cannot ascertain the relationship between Plaintiff and Moving Parties (i.e., whether Moving Parties rented or owned the subject vehicle), and the demurrer must be overruled on this ground at this time.

Moving Parties further argue that Plaintiff’s claims fail for lack of certainty. The Court sustains the demurrer on this ground for the same reasons described above. Plaintiff’s complaint does not sufficiently apprise Moving Parties of the basis for liability.

The unopposed demurrer to Plaintiff’s complaint is SUSTAINED with leave to amend.

Plaintiff is ordered to file and serve a First Amended Complaint within 30 days of this ruling.

Defendant is ordered to file and serve their responsive pleading within 30 days of service of the First Amended Complaint.

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.

Hon. Kerry Bensinger

Judge of the Superior Court

[1] Failure to meet and confer may result in the continuance of the hearing.