Judge: Lee S. Arian, Case: 23STCV09795, Date: 2024-02-26 Tentative Ruling

Case Number: 23STCV09795    Hearing Date: February 26, 2024    Dept: 27

Complaint Filed:         05/02/2023

Hon. Lee Arian

Department 27

Tentative Ruling

Hearing Date:                         2/26/2024 at 1:30 p.m.

Case Name:                             PETE MARTNEZ, an individual vs. BHUPENDRA SINGH VIRK; UBER USA, LLC; UBER TECHNOLOGIES, INC.; RAISER, LLC; RAISER-CA, LLC; RAISER; PORTIER, LLC; UBER FREIGHT, LLC; UBER; and DOES 1-100, inclusive,

Case No.:                                23STCV09795

Motion:                                   DEMURRER AND MOTION TO STRIKE PORTIONS OF THE PLAINTIFF’S COMPLAINT

Moving Party:                         Defendant BHUPENDRA SINGH VIRK

Responding Party:                   Plaintiff PETE MARTNEZ

Notice:                                    Sufficient

Ruling:                                    DEFENDANT’s MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT IS GRANTED IN PART AND DENIED IN PART

DEFENDANT’s DEMURRER IS GRANTED

BACKGROUND 

On May 2, 2023, Plaintiff Pete Martinez initiated this action against Defendants Bhupendra Singh Virk ("Virk"), Uber USA, LLC, Uber Technologies, Inc., Rasier, LLC, Rasier-CA, LLC, Rasier, Portier, LLC, Uber Freight, LLC, and Uber, for injuries arising from a motor vehicle collision. Plaintiff alleges that, at the time of the collision, Virk was driving for Uber when Virk made an unsafe left turn and struck Plaintiff’s oncoming vehicle. The initial Complaint asserts causes of action for (1) Negligence-Motor Vehicle, (2) Negligent Infliction of Emotional Distress, (3) Negligence, (4) Negligence Per Se, (5) Strict Products Liability, and (6) Negligent Hiring, Retention, and Supervision. A demurrer was filed as to Plaintiff’s 5th cause of action for strict products liability and was sustained. The complaint was then amended twice, and Defendant Bhupendra Singh Virk filed the present demurrer and motion to strike the second amended complaint (SAC) regarding Plaintiff’s second cause of action for negligent infliction of emotional distress.

JUDICIAL NOTICE

Defendants request judicial notice of Minute Order Re: PETE MARTINEZ vs BHUPENDRA SINGH VIRK, et al. dated October 3, 2023. (See Request for Judicial Notice, Exhibit A) The unopposed request is GRANTED. (Evid. Code, § 452, subds. (c), (d).)

DEMURRER

A.    LEGAL STANDARD 

I. LEGAL STANDARD FOR DEMURRER

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.)

II. DISCUSSION

The law of negligent infliction of emotional distress (NIED) in California is typically analyzed by reference to two "theories" of recovery: the "bystander" theory and the "direct victim" theory. (Fluharty v. Fluharty (1997) 59 Cal.App.4th 484, 490.) A bystander theory allows for a Plaintiff to recover emotional damages although they are not otherwise injured. Typically, in a bystander case, the victim either witnesses a close family member, or loved one, be seriously injured by the negligent actions of another and as a result, suffers severe emotional distress. (Thing v. La Chusa (1989) 48 Cal.3d 644.) Here, Plaintiff is not a bystander.

The California Supreme Court has allowed Plaintiffs to recover damages as “direct victims” in only three types of factual situations: (1) the negligent mishandling of corpses (Christensen v. Superior Court (1991) 54 Cal.3d 868, 879.) (2) the negligent misdiagnosis of a disease that could potentially harm another (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 923); and (3) the negligent breach of a duty arising out of a preexisting relationship (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1076.) A preexisting relationship typically consists of relationships like physician-patient and goes beyond the duty of care owed to the public in general. (Id. at 1075)

Plaintiff alleges an auto accident claim wherein no special relationship exists, and Defendant does not owe Plaintiff any duty of care beyond the duty of care owed to the public at large. Thus, there is no reasonable possibility the 5th cause of action can be cured by amendment. Consequently, the Court grants Defendant’s Demurrer to Plaintiff’s claim for Negligent Infliction of Emotional Distress without leave to amend as to the Second Amended Complaint (SAC).

MOTION TO STRIKE

A.    LEGAL STANDARD 

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part of the pleading. (Code Civ. Proc., § 435, subd. (b)(1).) The moving party is required to meet and confer before filing the motion. (Code Civ. Proc., § 435.5(a).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of the pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subds. (a) and (b); Stafford v. Schultz (1954) 42 Cal.2d 767, 782.) Grounds for a motion to strike are limited to matters that appear on the face of the pleading or on any matter of which the court shall or may take judicial notice. (Code Civ. Proc., §437, subd. (a).)   

In considering a motion to strike, the court considers the complaint as a whole and assumes the allegations are true. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)   Courts do not read allegations in isolation. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.)

A.    ANALYSIS

Request To Strike The Entire Fifth Cause Of Action

This request is moot because the demurrer has been granted as to Plaintiff's fifth cause of action in the Second Amended Complaint.

Request To Strike The Phrase “Severe Shock And Injuries To Their Nervous System”

Regarding Defendant’s request to strike the phrase “severe shock and injuries to their nervous system” on Page 32, Line 3 of Paragraph 162 of the SAC, it is important to note the court assumes the truth of the allegations when considering a motion to strike. It is not the role of the court to assess the veracity of factual allegations at this stage. Thus, it is improper for the court on a motion to strike to determine whether Plaintiff suffered severe shock and injuries to his nervous system or any injuries at all.

Accordingly, Defendant’s request to strike the phrase “severe shock and injuries to their nervous system” on Page 32, Line 3 of Paragraph 162 of the SAC is also DENIED.

Request To Strike The Phrase “Despicable Conduct”

Regarding the phrase “despicable conduct” on Page 32, Line 3 of Paragraph 159 and Page 32, Line 3 of Paragraph 160, a motion to strike can be used to attack conclusory or legal allegations in a pleading. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2015) ¶ 7:179, pp. 7l–72; Perkins v. Sup.Ct. (General Tel. Directory Co.) (1981) 117 CA3d 1, 6, 172 CR 427, 430.) The Second Amended Complaint does not provide factual allegations sufficient to support the conclusory allegation of "despicable conduct," except for the claim that Defendant was driving while under the influence of a substance, which the court has already deemed conclusory in its October 3, 2023 Minute Order. Therefore, Defendant’s motion to strike Page 32, Line 3 of Paragraph 159 “(despicable conduct)” and Page 32, Line 3 of Paragraph 160 “(despicable conduct)” is GRANTED.

CONCLUSION

Defenant’s motion to strike portions of the plaintiff’s complaint is GRANTED in part and DENIED in part as discussed in detail above. Defendant’s demurrer is SUSTAINED without leave to amend.