Judge: Lee W. Tsao, Case: 23NWCV00061, Date: 2023-09-05 Tentative Ruling

Case Number: 23NWCV00061    Hearing Date: April 2, 2024    Dept: C

Irvin Aguilar vs International Forklift Company

Case No.: 23NWCV00061

Hearing Date: April 2, 2024 @ 9:30 AM

#4

Tentative Ruling

Defendant International Forklift Company’s Demurrer is Ruled on as follows:

     I.        Defendant’s Demurrer to the Fourth Cause of Action is OVERRULED.

    II.        Defendant’s Demurrer to the Fifth Cause of Action is OVERRULED.

  III.        Defendant’s Demurrer to the Sixth Cause of Action is SUSTAINED.

 IV.        Defendant’s Demurrer to the Seventh Cause of Action is SUSTAINED.

   V.        Defendant’s Demurrer to the Eighth Cause of Action is OVERRULED.

 VI.        Defendant’s Demurrer to the Ninth Cause of Action is OVERRULED.

Defendant to give notice.

Background

Defendants, International Forklift Company and Brian Challoner Demurrer on the punitive damage allegations in the First Amended Complaint (FAC) on the grounds that the FAC does not state facts sufficient to constitute a cause of action against Defendants. Defendants also seeks Demurrer on the allegations for intentional infliction of emotional distress, negligent inflection of emotional distress, assault, battery, statutory negligent entrustment of a vehicle and business and professions code §17200, et seq. against Defendants in that there are no facts whatsoever stated regarding this cause of action.

Meet and Confer  

CCP §430.41(a) states that, before filing a demurrer, the moving party must engage in a specified meet and confer process with the party who filed the pleading at issue for the purpose of determining whether an agreement can be reached as to the filing of an amended pleading that would resolve the objections to be raised in the demurrer/motion to strike. “[T]he demurring party shall meet and confer in person or by telephone 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. If an amended complaint…is filed, the responding party shall meet and confer again with the party who filed the amended pleading before a demurrer to the amended pleading.” (emphasis added.) (CCP §430.41(a).) A declaration setting forth such meet and confer efforts must accompany the demurrer. (CCP § 430.41(a)(3).)   

Legal Standard

The party against whom a complaint has been filed may object to the pleading, by demurrer, on several grounds, including the ground that the pleading does not state facts sufficient to constitute a cause of action. (CCP § 430.10(e).) A party may demur to an entire complaint, or to any causes of action stated therein. (CCP § 430.50(a).)

Analysis

Defendant International Forklift Company (IFC) generally demurrers to the following causes of action.

Fourth Cause of Action: Intentional Infliction of Emotional Distress

“The elements of the tort of intentional infliction of emotional distress are: '(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. ...' Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community." (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)

Defendant IFC contends that the conclusory remarks are not sufficient to constitute a cause of action for intentional infliction of emotional distress.

Plaintiff argues that it has properly pleaded the IIED claim.

The Court finds that Plaintiff properly pleads his claim for IIED. Plaintiff pleads extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard in FAC ¶ 59, Plaintiff properly pleads suffering element through ¶ 60-61, Plaintiff properly pleads actual or proximate causation in ¶ 62.

Accordingly, the Demurrer is OVERRULED as to the Fourth Cause of Action.

Fifth Cause of Action: Negligent Infliction of Emotional Distress

“ ‘[The] negligent causing of emotional distress is not an independent tort but the tort of negligence . . . .’ ‘The traditional elements of duty, breach of duty, causation, and damages apply. Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against imposition of liability.’” (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588.)

Defendant IFC contends that the conclusory remarks are not sufficient to constitute a cause of action for negligent infliction of emotional distress.

In opposition, Plaintiff states that it properly pleads a claim for negligent infliction of emotional distress.

The Court finds that Plaintiff properly pleads his claim for NIED. Plaintiff in the FAC properly claims duty in ¶  74, properly alleges breach in ¶ 75, properly alleges causation in ¶¶ 76-78, and damages in ¶ 80.

Accordingly, the Court finds that the Demurrer as to the Fifth Cause of Action is OVERRULED.

Sixth Cause of Action: Assault

The elements of assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner, (2) the plaintiff reasonably believed he was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat, (3) the plaintiff did not consent to the defendant's conduct, (4) the plaintiff was harmed, and (5) the defendant's conduct was a substantial factor in causing the plaintiff's harm. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879.)

Defendant IFC argues that Plaintiff failed to state facts sufficiently to allege liability for the assault claim.

Plaintiff argues it properly alleges the elements of Assault.

The Court finds that Plaintiff does not properly pleads his claim for assault. Plaintiff in the FAC makes claims regarding the assault was initiated by Defendant Challoner, not by Defendant International Forklift Company. The Complaint does not make any references as to Defendant International Forklift Company liability as to the Sixth Cause of Action.

Accordingly, the Demurrer as to the Sixth Cause of Action is SUSTAINED, with leave to amend.

Seventh Cause of Action: Battery

The elements of Battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff, (2) the plaintiff did not consent to the touching, (3) the plaintiff was harmed or offended by the defendant's conduct, and (4) a reasonable person in the plaintiff's position would have been offended by the touching. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879.)

Defendant IFC argues that Plaintiff failed to state facts sufficiently to allege liability for the battery claim.

Plaintiff argues they properly plead the battery cause of action.

The Court finds that Plaintiff does not properly pleads its claim for battery. Plaintiff in the FAC makes claims regarding the battery was initiated by Defendant Challoner, not by Defendant International Forklift Company. The Complaint does not make any references as to Defendant International Forklift Company liability as to the Seventh Cause of Action.

Accordingly, the Demurrer as to the Seventh Cause of Actions is SUSTAINED, with leave to amend.

Eight Cause of Action: Statutory Negligent Entrustment of a Vehicle

The Legislature enacted Vehicle Code section 17150 as a financial responsibility provision “to protect innocent injured third parties” from losses that occur when a vehicle owner permissibly lends his or her car to another person. (Hitchcock v. Mercury Ins. Co. (1997) 54 Cal.App.4th 303, 305-306, emphasis added.) Additionally, the liability of the owner is secondary to that of the operator under §17150. (Rashtian v. BRAC-BH (1992) 9 Cal.App.4th 1847.)

Defendant IFC argues that Plaintiff failed to state facts sufficiently to allege liability for the negligent entrustment of a vehicle claim.

Plaintiff argues an employer or owner of a vehicle is liable for its negligent entrustment of the vehicle to the employee driver.

The Court finds that Plaintiff properly plead his claim for Negligent Entrustment of a Vehicle in ¶¶ 113-117 of the FAC.

Ninth Cause of Action: Business and Profession Code Section 17200, et Seq.

“[A]n action based on [the UCL] to redress an unlawful business practice ‘borrows’ violations of other laws and treats these violations … as unlawful practices, independently actionable under § 17200, et seq. and subject to the distinct remedies provided thereunder.” (Farmers Ins. Exch. v. Super. Court, (1992) 2 Cal.4th 377, 383.) “One line defines ‘unfair’ as prohibiting conduct that is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers and requires the court to weigh the utility of the defendant’s conduct against the gravity of the harm to the alleged victim.” (Smith v. State Farm Mut. Auto. Ins. Co., (2001) 93 Cal.App.4th 700.)

Defendant IFC argues that Plaintiff failed to state facts sufficiently to allege liability under Business and Professions Code Section 17200, et seq. 

Plaintiff states that they properly allege a claim under Business and Profession Code Section 17200, et. seq.

The Court finds that Plaintiff properly pled his claim under Business and Profession Code Section 17200, et. Seq in ¶¶ 129-135.

Accordingly, the Court Overrules the Demurrer as to Ninth Cause of Action.