Judge: Michael E. Whitaker, Case: 20STCV33743, Date: 2022-08-10 Tentative Ruling

Case Number: 20STCV33743    Hearing Date: August 10, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

 

TENTATIVE RULING

 

DEPARTMENT

32

HEARING DATE

August 10, 2022

CASE NUMBER

20STCV33743

MOTIONS

Demurrer to Complaint; Motion to Portions of Complaint

MOVING PARTY

Defendant EAN Holdings, LLC

OPPOSING PARTIES

Plaintiffs Misty Lynn Newton, Patrick Joseph Frasier, and Cindy Carvel

 

MOTION

 

Plaintiffs Misty Lynn Newton (“Newton”), Patrick Joseph Frasier, and Cindy Carvel sued defendant EAN Holdings, LLC (“EAN”) based on a motor vehicle collision between Newton and defendant Christopher Reeves (“Reeves”).  EAN demurs to Plaintiffs’ entire complaint, and the first through fourth causes of action, individually. EAN also moves to strike Plaintiffs’ claim for punitive damages, compensatory damages, attorney’s fees, and prejudgment interest.  Plaintiffs oppose the motion and demurrer.

 

Plaintiffs object to the demurrer and motion to strike as untimely.  Plaintiffs argue EAN failed to attempt to timely meet and confer in good faith at least five days prior to the date EAN’s responsive pleading was due. Plaintiffs thus assert EAN was not entitled to the 30-day extension under Code of Civil Procedure section 430.41, subdivision (a)(2).

 

Under Code of Civil Procedure section 430.41, before filing a demurrer or motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the subject pleading at least five days before the responsive pleading is due. (Code Civ. Proc. §§ 430.41, subd. (a); 435.5, subd. (a).) If the parties are not able to meet and confer at least five days prior to the date demurrer or motion to strike must be filed, the demurring/moving party shall be granted an automatic 30-day extension of time within which to file a demurrer or motion to strike, by filing and serving, on or before the date on which a demurrer or motion to strike would be due, “a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc. §§ 430.41, subd. (a)(2); 435.5, subd. (a)(2).)

 

Here, Plaintiffs served the complaint on EAN by personal service on May 3, 2022. EAN’s demurrer and motion to strike were thus due by June 2, 2022. (See Code Civ. Proc., §§ 430.40, subd. (b), 435, subd. (b).)  On June 3, 2022, EAN filed the Declaration of David R. Ruiz pursuant to Code of Civil Procedure section 430.41 (“Ruiz Declaration”) in support of its claim for a 30-day extension. According to the Ruiz Declaration, counsel for EAN was unable to meet and confer with counsel for Plaintiffs by the statutory deadline because counsel had recently been appointed counsel of record for EAN.  (Ruiz Declaration, p. 1.)  The Court notes that the proof of service filed in connection with the Ruiz Declaration indicates service on Plaintiffs by electronic transmission and mail on June 2, 2022.  Thus, the Ruiz Declaration was filed one day late and would rightly be considered untimely – and by extension, so too the demurrer and motion to strike.  Notwithstanding, the Court finds (1) that counsel for EAN timely served the declaration on Plaintiffs and (2) despite the procedural deficiency, Plaintiffs have nevertheless submitted oppositions to both the demurrer and motion to strike with full briefing on the merits.  The Court therefore concludes that Plaintiffs will not be prejudiced by the Court’s consideration of the demurrer and motion to strike on the merits, and exercises its discretion to do so.  (See Jackson v. Doe (2011) 192 Cal.App.4th 742, 750 [the Court may exercise its discretion to consider a demurrer and motion to strike despite being untimely filed].)  

 

REQUEST FOR JUDICIAL NOTICE

 

Under Evidence Code section 451, “[j]udicial notice shall be taken of the following: (a) The decisional, constitutional, and public statutory law of this state and of the United States and the provisions of any charter described in Section 3, 4, or 5 of Article XI of the California Constitution…(f) Facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute. ” (Evid. Code, § 451, subds. (a), (f).)

 

Under Evidence Code section 452, “[j]udicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: (a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state. (b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States (d) Record of (1) any court of this state or (2) any court of record of the United States or of any state of the United States…(g) Facts and propositions that are of such common knowledge within the territorial jurisdictions of the court that they cannot reasonably be the subject of dispute. (h) Facts and propositions that are not reasonably subject to dispute and are capably of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subds. (a)-(d), (g), (h).)

 

The Court “shall take notice of any matter specified in Section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.” (Evid. Code, § 453.)

 

Here, the Court grants EAN’s request for judicial notice Nos. 1 and 2 per Evidence Code section 452, subdivision (c).  The Court denies EAN’s request for judicial notice No. 3.  The Court also notes that Plaintiffs filed untimely objections to EAN’s request for judicial notice on August 4, 2022, rather than in connection with their timely opposition to both the demurrer and motion to strike.  Because Plaintiffs have offered no reasonable basis for their untimely filing and because EAN has not been an opportunity to review and respond to them, the Court declines to consider Plaintiffs’ objections to EAN’s request for judicial notice.  But the Court does take note of Plaintiffs’ argument in its opposition to the demurrer concerning the truth of the matters included in the documents to be noticed.  Specifically, taking judicial notice of “official acts” of a governmental entity does not require the Court to accept the truth of factual matters which might be deduced therefrom. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 (disapproved on other grounds by In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276).)

 

ANALYSIS

 

  1. DEMURRER

 

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

 

A demurrer for uncertainty[1] will be sustained only where the pleading is so bad that the responding party cannot reasonably respond, i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her. (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.)

 

  1. Second and Third Causes of Action: “Negligence Per Se”

     

    Plaintiffs assert two causes of action for “Negligence Per Se” against EAN as the second and third causes of action in the complaint.  “Negligence per se is an evidentiary doctrine, rather than an independent cause of action. It can be applied generally to establish a breach of due care under any negligence-related cause of action. Therefore, the doctrine of negligence per se is within the scope of pleadings that allege general negligence, as proof of a breach of duty is not limited to common law standards of care.” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1210–1211, citations omitted; see also Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285–1286 [“negligence per se is not to state an independent cause of action. The doctrine does not provide a private right of action for violation of a statute”].) Thus, as both Jones and Quiroz held, Plaintiffs’ third and fourth causes of action for negligence per se are not cognizable.  The Court therefore sustains the demurrer to the second and third causes of action for failure to allege facts sufficient to constitute a cause of action.

     

  2. First Cause of Action: “Negligence-Motor Vehicle”

     

    EAN contends Plaintiffs’ first cause of action fails to state a cause of action against EAN because the Graves Amendment precludes its vicarious liability to Plaintiffs based on Reeves’ negligence.  In opposition, Plaintiffs assert that the Graves Amendment does not apply because the complaint does not allege that EAN is engaged in the business of renting or leasing motor vehicles.

     

    The Graves Amendment, which is set forth at section 30106 of title 49 of the United States Code, preempts state law liability for motor vehicle rental and leasing companies if there is no negligence or criminal wrongdoing on the part of the companies. (49 U.S.C., § 30106, subd. (a).)  The Graves Amendment does not supersede any state law that imposes liability for failure to maintain specified insurance minimums.  (See 49 U.S.C., § 30106, subd. (b).) 

     

    Here, paragraphs 32 and 33 in the first cause of action allege,

     

    “At all relevant times, all Defendants owed a duty of care to drive prudently, safely and within the bounds of the law, including a duty to exercise reasonable car, reasonable and prudent under the circumstances, while driving a motor vehicle on a roadway including controlling the location and speed of the vehicle as necessary to avoid colliding with any object, person or vehicle.

     

    Defendants breached their duty of care owed to Plaintiffs when Defendants operated their vehicle in such a negligent manner so as to cause the accident, as described in this Complaint, in which Plaintiffs suffered wage loss, loss of use of property, hospital and medical expenses, general damage, property damage, loss of earning capacity, and pain and suffering damages.”

     

    (Complaint, ¶¶ 32-33.) 

     

    Paragraphs 3 and 4 of the complaint allege, “The SUV being driven by Defendant REEVES was owned by defendant HOLDINGS LLC EAN, and DOES 1-250[;]” and “The SUV was leased or rented from Defendant HOLDINGS LLC EAN by Defendant REEVES and/or DOES 1-250.”  (Complaint, ¶¶ 3-4.)  Additionally, EAN’s Statements of Information filed with the California Secretary of State declare that EAN’s type of business or services is motor vehicle rental and related service.  (Request for Judicial Notice, Exhibits A, B.)  Plaintiffs’ allegations in the complaint, when viewed in connection with the EAN’s Statements of Information filed with the California Secretary of State, lead to the conclusion that the Graves Amendment would preclude any vicarious liability on the part of EAN for Reeves’ negligence while driving a vehicle owned by EAN and leased or rented to him.  The Court therefore sustains the demurrer to the first cause of action as precluded by the Graves Amendment.

     

  3. Fourth Cause of Action: “Negligent Entrustment”

     

    Finally, EAN demurs to the fourth cause of action for negligent entrustment for failure to allege facts sufficient to constitute a cause of action and, again, as being precluded by the Graves Amendment.  In opposition, Plaintiffs argue that the complaint alleges sufficient facts to constitute the cause of action and that the Graves Amendment does not apply.  The Court notes that the Graves Amendment would not preclude a properly stated cause of action for negligent entrustment against EAN as it would be predicated upon EAN’s own negligence rather than a theory of vicarious liability for Reeves’ negligence.  (See 49 U.S.C., § 30106, subd. (a).) 

     

To state a cause of action for negligent entrustment against EAN, Plaintiffs must prove (1) that Reeves negligently operated a vehicle owned by EAN; (2) that EAN knew or should have known that Reeves was incompetent or unfit to drive; (3) that EAN permitted Reeves to use that vehicle; and (4) that Reeves’ incompetence or unfitness harmed Plaintiffs. (Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 863-864.)

 

Here, the complaint alleges, in relevant part:

 

“At all relevant times herein, Defendants HOLDINGS LLC EAN and DOES 1 to 250, were the owners, lessors and/or lessees of a 2017 Dodge Journey, California license plate number 7UJN540.

 

Defendants HOLDINGS LLC EAN and DOES 1 to 250, gave their permission and consent to Defendant REEVES to use and operate said vehicle on public streets and highways of California, and thereafter Defendant REEVES did operate that vehicle with the knowledge, consent, and permission of Defendants HOLDINGS LLC EAN and DOES 1 TO 250.

 

At all times herein alleged Defendant REEVES was a careless and reckless driver of automobiles. Although Defendants HOLDINGS LLC EAN and DOES 1 TO 250 knew or should have known that Defendant REEVES was a careless and reckless driver and would create an unreasonable risk of danger to persons and property on the public streets and highways, Defendants HOLDINGS LLC EAN and DOES 1 to 250, nevertheless negligently permitted Defendant REEVES to operate their 2017 Dodge Journey SUV on the public streets and highways.

 

 

At that time and place, Defendant REEVES negligently and carelessly drove and operated the 2017 Dodge Journey SUV in violation of California Vehicle Code sections 22350 and 23123.5(a) by colliding into the vehicle that Plaintiff NEWTON was driving.

 

At that time and place, Defendant REEVES negligently and carelessly drove and operated the 2017 Dodge Journey SUV along on I-110 so as to proximately cause it to strike the vehicle that Plaintiff NEWTON was driving.”

 

(Complaint, ¶¶ 44-46, 48-49.) 

 

            The Court finds Plaintiffs’ allegations in the fourth cause of action to be conclusory with respect to (1) EAN’s knowledge of Reeves’ unfitness to drive the subject vehicle and (2) Reeves’ unfitness, of which EAN was aware, having been the cause of Plaintiffs’ harm.  Accordingly, the Court sustains the demurrer to the fourth cause of action for failure to allege facts sufficient to constitute a claim for negligent entrustment against EAN.

 

  1. MOTION TO STRIKE

 

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any 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)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

 

  1. Punitive Damages

     

    In ruling on a motion to strike punitive damages, “judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294.  (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)  Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a).)   As set forth in the Civil Code,

     

    (1) “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.  (2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.  (3) “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.

     

    (Civ. Code, § 3294, subd. (c)(1)-(3), emphasis added.) 

     

    Further, a plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud or malice.  To wit, there is a heightened pleading requirement regarding a claim for punitive damages.  (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)  “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.  When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him.” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].)  In Anschutz Entertainment Group, Inc. v. Snepp, the Court of Appeal noted that the plaintiffs’ assertions related to their claim for punitive damages were “insufficient to meet the specific pleading requirement.”  (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [plaintiffs alleged “the conduct of Defendants was intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiff's rights. Plaintiff's injuries were exacerbated by the malicious conduct of Defendants. Defendants' conduct justifies an award of exemplary and punitive damages”]; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.  Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim”].) 

     

    EAN argues the complaint fails to allege facts sufficient to establish malice on the part of EAN.  In opposition, Plaintiffs assert that the complaint alleges that EAN acted with a conscious disregard for the safety of others by failing to adequately screen Reeves’ propensity for reckless driving, including failure to screen for citations and past accidents caused by Reeves’ negligence.  Plaintiffs do not point to the paragraphs or lines in the complaint containing these allegations.  Upon review, the Court finds no such allegations to be pleaded in the complaint.

               

    The Court finds the complaint fails to allege “malice” on the part of EAN in which it is alleged to have engaged in “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”  Consequently, Plaintiff’s allegations are insufficient to withstand the motion to strike.   

     

  2. Compensatory Damages

     

    EAN next moves to strike Plaintiffs’ prayer for “[c]ompensatory and general damages in a sum in excess of $300,000, according to proof[.]”  Plaintiffs do not offer any argument in opposition.

     

    Per Code of Civil Procedure section 425.10, “where an action is brought to recover actual or punitive damages for personal injury or wrongful death, the amount demanded shall not be stated, but the complaint shall comply with Section 422.30[.]”  (Code Civ. Proc., § 425.10, subd. (b).)  The Court therefore grants the motion to strike Plaintiffs prayer for “[c]ompensatory and general damages in a sum in excess of $300,000, according to proof[.]”

     

  3. Attorney’s Fees

     

    EAN next moves to strike Plaintiffs’ prayer for attorney fees. Plaintiffs do not offer any argument in opposition.

     

    Per Code of Civil Procedure section 1033.5, attorneys’ fees are only allowable as costs under Section 1032 “when authorized by any of the following: (A) Contract. (B) Statute. (C) Law.” (Code of Civ. Proc., § 1033.5, subd. (a)(4)(D)(10).)  Here, Plaintiffs’ complaint does not allege a contractual, statutory, or legal basis for an award of attorney’s fees. (See Complaint.)  Accordingly, the Court grants the motion to strike the prayer for attorney’s fees.

     

  4. Prejudgment Interest

     

    Finally, EAN next moves to strike Plaintiffs’ prayer for prejudgment interest as improper under Civil Code section 3288. Plaintiffs do not offer any argument in opposition.

     

Civil Code section 3288 provides: “In an action for the breach of an obligation not arising from contract, and in every case of oppression, fraud, or malice, interest may be given, in the discretion of the jury.” (Civ. Code, § 3288.)  The Court notes that Plaintiffs have an absolute right to recovery of prejudgment interest as part of their damages award under Civil Code section 3287. That section provides:

 

A person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day, except when the debtor is prevented by law, or by the act of the creditor from paying the debt. This section is applicable to recovery of damages and interest from any debtor, including the state or any county, city, city and county, municipal corporation, public district, public agency, or any political subdivision of the state.”

 

(Civ. Code, § 3287, subd. (a).) Accordingly, the Court denies the motion to strike Plaintiffs’ prayer for prejudgment interest.

 

CONCLUSION AND ORDER

 

Therefore, the Court sustains EAN’s demurrer to the first through third causes of action in the complaint without leave to amend, and sustains the demurrer to the fourth cause of action with leave to amend.

 

The Court grants EAN’s motion to strike Plaintiffs’ claim for punitive damages and prayer for compensatory damages and attorney’s fees with leave to amend, and denies the motion to strike Plaintiffs’ prayer for prejudgment interest.   

 

The Court orders Plaintiffs to file and serve an amended complaint in accordance with this ruling within 20 days of notice of the Court’s orders.  

 

EAN shall provide notice of the Court’s orders and file a proof of service of such.

 



[1] The Court notes that Plaintiffs have objected to EAN’s demurrer for uncertainty based on insufficient notice but have, nevertheless, offered full briefing in opposition on the merits.  Thus, once again, the Court finds Plaintiffs will not be prejudiced by the Court’s consideration of EAN’s demurrer for uncertainty on its merits, and exercises its discretion to do so.