Judge: Kevin C. Brazile, Case: 21STCV19426, Date: 2023-05-31 Tentative Ruling

Hearing Date: May 31, 2023

Case Name: Valdes v. Good Brother’s LLC, et al.

Case No.: 20STCV36549

Matter: (1) Demurrer; Motion to Strike

(2) Motion to Strike

(3) Motion for Protective Order

Moving Party: (1) Defendant Greenify

(2)-(3) Defendant Amazon Logistics, Inc.

Responding Party: Plaintiff Luis Angel Valdes

Notice: OK

Ruling: The Demurrer is overruled.

Greenify’s Motion to Strike is granted in part, without leave to 

amend.

Amazon’s Motion to Strike is granted in part, without leave to amend.

The Motion for Protective Order is denied.  

Plaintiff to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

On January 12, 2023, Plaintiff Luis Angel Valdes filed the operative First Amended Complaint (“FAC”) against Defendants Good Brother’s LLC, Greenify, Estate of Calvin Everhart, and Amazon Logistics, Inc. for negligence, with counts for negligence per se, negligence, negligent hiring and retention, and peculiar risk.  Plaintiff alleges that both he and Calvin Everhart were driving trucks on a highway when Everhart collided head-on with Plaintiff.  Plaintiff was injured and Everhart died.  The remaining Defendants are alleged to be Everhart’s employers or the like. 

1. Demurrer

Greenify demurs to the FAC for uncertainty and failure to state sufficient facts.  Greenify contends that “the FAC is ambiguous, uncertain and unintelligible because it is pled under the umbrella of a single cause of action for Negligence, where actually Plaintiff pleads four causes of action under lettered subheadings for (A) Negligence per se; (B) Negligence; (C) Negligent Hiring, Supervision, and/or Retention; and (D) Peculiar Risk. The FAC is also ambiguous, uncertain, and unintelligible in its entirety because the single cause of action for Negligence is alleged against all defendants, yet under the separate lettered causes of action, it is not clear which defendant the cause of action is actually being plead against. Additionally, there is no recognized independent cause of action for Negligence per se.” 

When considering demurrers, courts read the allegations liberally and in context, and “treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn v. Mirda¿(2007) 147 Cal.App.4th 740, 747.)  It is error “to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.”  (Aubry v. Tri-City Hospital Dist.¿(1992) 2 Cal.4th 962, 967.)

Defendant’s arguments are without merit.  The FAC reasonably apprises Defendant of the allegations against it and any perceived ambiguity can be dealt with via discovery.  (See Khoury v. Maly's of California Inc. (1993) 14 Cal.App.4th 612, 616.)

Further, the FAC makes clear that it only asserts one cause of action for negligence and the references to negligence per se, negligent hiring, and peculiar risk appear to be counts or different theories under which Plaintiff seeks recovery for negligence.  (See Bay Cities Paving & Grading, Inc. v. Lawyers' Mut. Ins. Co. (1993) 5 Cal.4th 854, 860 [“Apparently, the Court of Appeal confused the concept of a ‘cause of action’ with that of pleading ‘counts,’ which are merely ways of stating the same cause of action differently.”].)

Therefore, the Demurrer is overruled.  

2. Greenify’s Motion to Strike

Greenify seeks to strike the FAC’s (1) request for punitive damages and (2) counts for negligence per se and peculiar risk. 

Motions to strike are used to challenge defects in the pleadings not subject to demurrer.  Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading.  (Code Civ. Proc. § 435(b)(1).)  The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the Court is required to take judicial notice.  (Id. § 437(a).)  The Court may strike out any irrelevant, false, or improper matter inserted in any pleading, and strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.  (Id. § 436.)  An “irrelevant” matter includes any “demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.”  (Id. § 431.10(b)(3), (c); see also Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1036-1042.)

With respect to the allegations of peculiar risk, Plaintiff contends that “Mr. Valdes has considered the applicability of the peculiar risk doctrine as to Greenify (FAC ¶¶ 79-84), and agrees not to pursue liability against Greenify on that theory. However, because Mr. Valdes intends to pursue peculiar risk liability against Defendant AMAZON LOGISTICS, INC. and since some of those factual allegations are pertinent to his other claims, Mr. Valdes cannot agree to strike those allegations.”

The Motion is granted as to the allegations of peculiar risk with respect to Greenify only.  Leave to amend is denied.  The point is Greenify itself cannot be liable under this theory.

As to negligence per se, Greenify contends that this count lacks merit because it is premised on 49 U.S.C. § 14916, but Greenify (1) was not involved in interstate transportation and (2) was not a broker, but rather a motor carrier.  Greenify also contends that the FAC lacks allegations that Greenify violated 49 U.S.C. § 14916 on the day of the subject incident.  

The FAC sufficiently states that § 14916 was violated on the day of the incident (FAC ¶  65); further, the issues as to interstate transportation and broker/carrier distinction appear to be factual and are better addressed on a motion for summary adjudication.  

In its reply, Greenify raises a new argument that § 14916 is irrelevant because it does not provide for any duty under the circumstances of this case.  The Court will not address this argument.  The Motion is denied as to the allegations as to negligence per se.   

Next, punitive damages are available when the plaintiff establishes oppression, fraud, or malice by clear and convincing evidence.  (Civ. Code § 3294(a).)  

Malice means “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”  (Civ. Code § 3294(c)(1).)  In this context, despicable conduct is conduct considered “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.”  (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715, internal quotation marks omitted.)  Oppression means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.”  (Civ. Code § 3294(c)(2).)  Fraud means “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”  (Id. § 3294(c)(3).)

“As nonintentional torts support punitive damages when the defendant's conduct ‘involves conscious disregard of the rights or safety of others,’ our focus is on malice and oppression.”  (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.)

“[M]alice does not require actual intent to harm. (Id. at p. 895, 157 Cal.Rptr. 693, 598 P.2d 854.) Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences. (Id. at pp. 895–896, 157 Cal.Rptr. 693, 598 P.2d 854.) Malice may be proved either expressly through direct evidence or by implication through indirect evidence from which the jury draws inferences.”  (Angie M. v. Superior Ct. (1995) 37 Cal.App.4th 1217, 1228.)

Plaintiff argues the allegations are sufficient to the extent the FAC pleads that Greenify was engaging in unlicensed brokering under § 14916.  However, Plaintiff cites no authority in which punitive damages were available simply because § 14916 was violated.  

In sum, the Motion to Strike is granted as to punitive damages and the allegations as to peculiar risk, but is otherwise denied.  Leave to amend is denied.  An answer is to be filed within twenty days.  

3. Amazon’s Motion to Strike

Amazon Logistics, Inc. also seeks to strike the FAC’s references to peculiar risk, negligence per se, and punitive damages.  

As discussed above, the Motion is granted as to punitive damages and denied as to negligence per se.

With respect to peculiar risk, Amazon argues that “Plaintiff fails to identify any peculiar risk inherent in the work other than the ordinary risk that the driver of a motor carrier may not use due care. . . . Plaintiff fails to allege a peculiar risk inherent with the load itself, such as the specific type of the goods being transported, or the weight of the load, that had some casual effect to the accident.” 

“Under the peculiar risk doctrine, a person who hires an independent contractor to perform work that is inherently dangerous can be held liable for tort damages when the contractor's negligent performance of the work causes injuries to others. By imposing such liability without fault on the person who hires the independent contractor, the doctrine seeks to ensure that injuries caused by inherently dangerous work will be compensated, that the person for whose benefit the contracted work is done bears responsibility for any risks of injury to others, and that adequate safeguards are taken to prevent such injuries.”  (Privette v. Superior Ct. (1993) 5 Cal.4th 689, 691.) 

The Court agrees with Amazon’s argument that Plaintiff has pleaded no peculiar risk other than trucking in general.  Plaintiff again relies on violations of § 14916, but Plaintiff seems to be conflating concepts.  

In sum, the Motion to Strike is granted as to peculiar risk and punitive damages, but is otherwise denied.  Leave to amend is denied.

4. Motion for Protective Order 

Defendant Amazon Logistics, Inc. seeks a protective order precluding Plaintiff “from deposing Amazon’s Person Most Knowledgeable about issues of fact and law that do not apply to Amazon in this litigation, the illegal brokering statute (49 U.S.C. § 14196) set forth in the 2012 Moving Ahead for Progress in the 21st Century Act (‘MAP-21’).” 

Good cause must be shown for the protective order, and the issuance and formulation of the protective order are within the Court’s discretion.  (See, e.g., Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 106-7; Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal.App.4th 584, 588.)

The instant Motion merely reiterates that § 14916 does not apply such that there should be no deposition on this topic.  This has been rejected and § 14916 remains at issue.  If § 14916 doesn’t apply, then Amazon should show up for discovery and provide its evidence on that point.  Amazon cannot summarily adjudicate that count within a discovery motion.  The Motion is denied.

Plaintiff to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.