Judge Kerry Bensinger, Case Number: 24STCV30969, Date: 2025-06-03 Tentative Ruling

Plaintiff, Dennis J. Stankie, a self-represented litigant, brings this action against Defendant, Pro Tow & Transport Inc., among other defendants, arising from Plaintiff being threatened with assault by Defendant’s tow truck driver and being charged $60 to have his vehicle towed when it broke down.

Before the court are three motions: (1) Defendant’s Demurrer to the Complaint, (2) Plaintiff’s Motion to Compel Disclosure, and (3) Defendant’s Motion for Protective Order. The court addresses each in turn.

On November 25, 2024, Plaintiff filed a Complaint against Defendant for (1) breach of the covenant of good faith and fair dealing, (2) negligent hiring, supervision and retention of employee, (3) elder financial abuse, (4) negligence, and (5) intentional infliction of emotional distress. The fifth cause of action is not asserted against Defendant.

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, accepting the alleged facts as true.¿ (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)¿ “Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice.”¿ (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 556.)¿

Plaintiff challenges the sufficiency of Defendant’s meet and confer efforts. Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41(a).) “The parties shall meet and confer at least 5 days before the date the responsive pleading is due.” (Code Civ. Proc., § 430.41(a)(2).) The court has reviewed Defendant’s declaration and finds the meet and confer requirement has been satisfied. (See Lewis Decl., ¶¶ 3-4.)

Defendant demurs to the first, second, third, and fourth causes of action. The court addresses each demurrer in turn.

Defendant argues the first cause of action fails because Plaintiff does not allege a contractual relationship between the parties to sustain this claim. The court agrees.¿¿ “The prerequisite for any action for breach of the implied covenant of good faith and fair dealing is the existence of a contractual relationship between the parties, since the covenant is an implied term in the contract.” (Smith v. City and County of San Francisco (1990) 225Cal.App.3d 38, 49.) Here, Plaintiff alleges that he and the American Automobile Association (“AAA”) had a contract, and that Defendant and AAA had a contract. (See Complaint, ¶ 14.) There is no allegation establishing a contractual relationship between Plaintiff and Defendant.

In opposition, Plaintiff cites Dyer v. Superior Court (1997) 56 Cal.App.4th 61, 68-69 for the proposition that Defendant had a contract-based obligation to Plaintiff. However, Plaintiff completely misstates the facts of Dyer. In that case the plaintiff, a tow truck driver, was injured while responding to Dyer’s call for assistance when his vehicle experienced mechanical problems. The plaintiff alleged that Dyer owed him a duty to maintain his vehicle in good mechanical order so that Dyer would not need his assistance on a freeway. Unlike Dyer, Plaintiff’s claims do not arise from any injury sustained in a motor vehicle accident. Further, Plaintiff brings an implied covenant claim that is not addressed at all in Dyer. Defendant’s demurrer is meritorious.

Accordingly, the demurrer to the first cause of action is SUSTAINED. Leave to amend is DENIED.

b. Negligent Hiring, Supervision and Retention of Employee (2^nd Cause of Action)

Defendant argues the second cause of action fails because there are no factual allegations establishing Defendant was on notice of any misconduct by the employee. The court disagrees.

The elements of negligent hiring, supervision, or retention claim are: (1) that the defendant hired the employee; (2) that the employee was/became unfit to perform the work for which they were hired; (3) that the employer knew or should have known that the employee was/became unfit and that they created a particular risk to others; (4) that the employee’s unfitness harmed the plaintiff; and (5) that the employer’s negligence in hiring or retaining the employee was a substantial factor in causing plaintiff’s harm.¿ (CACI No. 426.) “Negligence liability will be imposed on an employer if it ‘knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.’ ”¿ (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.)¿¿¿

Here, Plaintiff alleges that Defendant’s tow truck driver (Defendant 2) threatened to assault Plaintiff when Plaintiff questioned the route Defendant 2 was taking and to take Plaintiff’s vehicle to Defendant’s yard (which was far from Plaintiff’s residence) unless Plaintiff paid $60. (Complaint, ¶¶ 9-10.) Plaintiff alleges the conduct of Defendant 2 constituted assault and financial elder abuse. (Complaint, ¶ 24.) Plaintiff further alleges Defendant 2 was unfit and incompetent to perform the work for which he was hired and that Defendant knew or should have known that Defendant 2 was unfit and created a risk to others. (Complaint, ¶¶ 24-25.) The claim is sufficiently pled.

Defendant argues the third cause of action is fatally deficient because there are no factual allegations suggesting that Defendant took an action with an “intent to defraud” or “for wrongful use” as required for a financial abuse claim.

To establish financial abuse of a dependent adult, the plaintiff must allege that the defendant took or retained the plaintiff’s property; that the plaintiff was a dependent adult; that the defendant took or retained the property for a wrongful use or with the intent to defraud; that the plaintiff was harmed; and that the defendant’s conduct was a substantial factor in causing the plaintiff’s harm. (See CACI No. 3100.)¿ Financial abuse of a dependent adult occurs when a person takes the property of a dependent adult for a wrongful use or with intent to defraud or by undue influence. (Welf. & Inst. Code, §¿15610.30, subd. (a).) A person is deemed to have taken the property when he or she has deprived a dependent adult of any property right. (Welf. & Inst. Code, §¿15610.30, subd. (c).) Although bad faith or intent to defraud is no longer required, wrongful use of property must still be alleged. (Stebley¿v. Litton Loan Servicing, LLP¿(2011) 202 Cal.App.4th 522, 527-28.) “A person . . . shall be deemed to have taken . . . property for a wrongful use if . . . the person¿. . . takes¿. . . the property and the person . . . knew or should have known that this conduct is likely to be harmful to the … dependent adult.” (Welf. & Inst. Code, §¿15610.30, subd. (b).) “Dependent adult” means a person, regardless of whether the person lives independently, between the ages of 18 and 64 years who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age. (Welf. & Inst. Code,¿§¿15610.23.)

Here, Plaintiff alleges that he was over 65 years of age when Defendant 2 appropriated Plaintiff’s property (the $60) with the intent to defraud Plaintiff. (Complaint, ¶ 30.) However, there are no allegations showing that Defendant appropriated Plaintiff’s property for a wrongful use. (See Complaint, ¶¶ 27-32.)

Accordingly, the demurrer to the third cause of action is SUSTAINED. Leave to amend is GRANTED.

Defendant argues there are no allegations supporting any element for fourth cause of action. The argument has merit. “‘The elements for 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.)¿

Here, the allegations supporting the fourth cause of action do not indicate what duty Defendant owed to Plaintiff, how Defendant breached that duty, or whether such a breach resulted in injury to Plaintiff. Instead, the allegations appear to restate the elements of a financial elder abuse claim or the elements for assault. (See Complaint, ¶¶ 33-44.) The fourth cause of action is uncertain.

Accordingly, the demurrer to the fourth cause of action is SUSTAINED. Leave to amend is GRANTED.

The demurrers to the first, third and fourth causes of action are Sustained. Leave to amend is Granted. The demurrer to the second cause of action is Overruled.

Plaintiff is ordered to serve and file the First Amended Complaint within 20 days of this order.

Plaintiff commenced this action on November 25, 2024 and served the Complaint on Defendant on December 12, 2024.

On January 13, 2025, Plaintiff filed a “Motion to Compel Disclosure”. Plaintiff seeks to compel Defendant’s responses to interrogatories and inspection demands. Plaintiff also requests sanctions against Defendant.

On May 20, 2025, Defendant filed an opposition. Defendant requests sanctions against Plaintiff.

On May 22 and 23, 2025, Plaintiff filed two “Meet and Confer Letter” and ‘Meet and confer letter #2.”

Defendant argues the motion should be denied because (1) Plaintiff never served Defendant with the discovery requests, and (2) even if Plaintiff had served the discovery, Plaintiff must have done so, improperly, within 10 days of serving the complaint.[1] The arguments have merit.

First, a review of Plaintiff’s motion reveals there is no proof of service of the discovery requests. There is likewise no proof of service of the discovery requests attached to Plaintiff’s “meet and confer letters” filed with the court.

Second, even if Plaintiff had served the discovery, the timing of the motion indicates Plaintiff ran afoul of the 10 day stay on discovery. A plaintiff may propound interrogatories or inspection demands to a party without leave of court at any time that is 10 days after the service of the summons on, or appearance by, that party, whichever occurs first. (Code Civ. Proc., §§ 2030.020(b); 2031.020(b).) Here, the motion was filed on January 13, 2025. This would place the purported service of the discovery at December 13, 2024, which is just one day after Defendant was served with the summons and complaint. The motion is therefore premature. Plaintiff is not entitled to an order compelling Defendant to respond to written discovery.

Defendant requests sanctions against Plaintiff. Given the court’s ruling, the court finds sanctions are warranted. Accordingly, the court imposes sanctions against Plaintiff in the sum of $250 to be paid to Defendant, by and through Defendant’s counsel, within 30 days of this order.

Defendant’s request for sanctions is GRANTED. Plaintiff is ordered to pay sanctions in the sum of $250 to Defendant, by and through Defendant’s counsel, within 30 days of this order.

On May 5 and 15, 2025, Plaintiff filed an opposition and supplemental opposition. Plaintiff requests sanctions against Defendant.

Code of Civil Procedure section 2017.020 provides that “[t]he court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.020(a).) “The court may make this determination pursuant to a motion for protective order by a party or other affected person.” (Id.) “This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Id.)

A responding party may move for a protective order with respect to interrogatories, requests for production of documents, requests for admissions, and depositions and a court may make any order that justice requires to protect a party from “unwanted annoyance, embarrassment or oppression or undue burden and expense.” (Code Civ. Proc., §§ 2025.420, 2030.090, 2031.060, 2033.080.) The burden of proof is on the party seeking the protective order to show “good cause” for the order he or she seeks. (Fairmont Insurance Co. v. Superior Court (2000) 22 Cal.4th 245, 255.)

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion for protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., §§ 2017.020(b), 2025.420(h), 2030.090(d), 2031.060(h), 2033.080(d).)

Defendant seeks a protective order (1) requiring all parties to participate in informal discovery conferences prior to filing any motions to compel; and (2) requiring all parties to meet and confer prior to seeking informal discovery conferences. Defendant argues the protective order is warranted because Plaintiff filed prematurely the “Motion to Compel Disclosure” without substantial justification and failed to serve the underlying discovery.[2]

After consideration of the issues and the facts presented, the court finds a protective order is not unwarranted. Although Defendant is correct that Plaintiff filed a premature motion to compel, the 10-day-stay on discovery has ended. The court also notes Plaintiff has not filed any other motions to compel. Given the foregoing, the court is hard-pressed to find the filing of one premature motion to compel in violation of the temporary discovery stay constitutes “unwanted annoyance, embarrassment or oppression or undue burden and expense” requiring a protective order. Further, Plaintiff may cure any future service defects with properly serving discovery requests.[3]

1. The demurrer to the second cause of action is Overruled. The demurrers to the first, third, and fourth causes of action are Sustained. Leave to amend is Granted. Plaintiff is ordered to serve and file the First Amended Complaint within 20 days of this order.

2. The motion to compel disclosure is Denied. Defendant’s request for sanction is Granted. Plaintiff is ordered to pay sanctions in the sum of $250 to Defendant, by and through Defendant’s counsel, within 30 days of this order.

3. The motion for protective order is Denied without prejudice. The requests for sanctions are Denied.

¿¿¿

¿ Kerry Bensinger¿¿

¿ Judge of the Superior Court¿

[1] Defendant also argues the motion to compel should be denied because Plaintiff did not meet and confer prior to filing the motion. However, there is no requirement to meet and confer prior to filing a motion to compel initial discovery responses. (See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411 [noting that “meet and confer” requirement “did not apply when propounding party sought order compelling responses to interrogatories and sanctions for responding party's failure to respond ‘within the statutorily permitted time’”].)¿¿¿¿¿¿

[2] Defendant also argues the protective order is necessary because Plaintiff failed to meet and confer before and after the filing of the motion to compel. However, as discussed above, there is no requirement to meet and confer before (or after) filing a motion to compel initial discovery responses.

[3] Because Defendant is represented by counsel, Plaintiff must serve Defendant via defense counsel.