Judge: Michael Shultz, Case: 24CMCV00579, Date: 2024-10-10 Tentative Ruling
Case Number: 24CMCV00579 Hearing Date: October 10, 2024 Dept: A
24CMCV00579 Angel
Zaragoza, et al. v. Juan Barriga, et al.
[TENTATIVE] ORDER SUSTAINING
I.
BACKGROUND
The
first amendment complaint alleges claims for negligence and negligence per se
arising from an automobile accident involving a vehicle driven by Defendant, Juan
Eliseo Pardo Barriga (“Barriga”), in a vehicle owned by Barriga’s employer The
Salvation Army (“TSA”).
Defendants
demur to all claims based on uncertainty and argues that the first cause of
action conflates a claim for negligent entrustment with a claim for negligent
hiring/supervision/ training/retention. Plaintiffs did not allege all facts to
support either claim. Defendants also argue that the second cause of action for
negligence per se is improper as it is not a cause of action. Defendants
separately move to strike the claim for prejudgment interest which is not recoverable.
In
opposition, Plaintiffs argue that the Judicial Council Form complaint shows all
the elements that need to be alleged for both negligent entrustment and negligent
hiring/supervision/ training/retention. Defendants are on notice of the claims Plaintiffs
have alleged.
In
reply, Defendants argue that notice pleading is not sufficient. Plaintiffs have
to allege facts to support each claim.
II.
LEGAL STANDARDS
The
bases for demurrer are limited by statute and may be sustained for reasons including
failure to state facts to state a cause of action and uncertainty. (Code
Civ. Proc., § 430.10.) A demurrer “tests the sufficiency of a complaint as
a matter of law and raises only questions of law.” (Schmidt
v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) The court must
assume the truth of (1) the properly pleaded factual allegations; (2) facts
that can be reasonably inferred from those expressly pleaded; and (3)
judicially noticed matters. (Blank
v. Kirwan (1985) 39 Cal.3d 311, 318.) The court may not consider
contentions, deductions, or conclusions of fact or law. (Moore
v. Conliffe (1994) 7 Cal.4th 634, 638.)
A
motion to strike is limited to matters that appear on the face of the pleading
or on any matter of which the court can take judicial notice. (Code
Civ. Proc., § 437.) The court may
strike out any irrelevant, false, or improper matter inserted in any pleading;
or strike 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 subd. (a)-(b).)
III.
DISCUSSION
A.
The claim for negligent entrustment is not
supported by facts.
Plaintiffs’
references to the Judicial Council Form Complaint are irrelevant as it has been
superseded by the First Amended Complaint to which Defendants demur. The FAC refers
collectively to Defendants and allege negligence, negligent entrustment, and
negligent hiring, supervision, and retention.
Under
the theory of negligent entrustment, liability is imposed on the
vehicle owner or permitter because of the owner’s
independent negligence and not the negligence of the
driver. (Safeco
Ins. Co. v. Gilstrap (1983) 141 Cal.App.3d 524, 530.) A person who places or entrusts his motor vehicle in the hands of another “whom
he knows, or from circumstances is charged with knowing, is incompetent or
unfit to drive, may be held liable for an injury inflicted by the use made
thereof by that driver, provided the plaintiff can establish that the injury
complained of was proximately caused by the driver's disqualification,
incompetency, inexperience or recklessness.” (Flores
v. Enterprise Rent-A-Car Co. (2010) 188 Cal.App.4th 1055, 1063.)
Plaintiffs’
allegations are conclusory and devoid of facts to establish that the employer
knew or should have known that their employee was unfit or incompetent to
drive. (SAC ¶¶ 11, 13.)
B.
The claim for negligent
hiring/supervision/training/retention is equally unsupported by any facts of
the employer’s knowledge of unfitness.
An employer may be held liable for an incompetent or unfit employee’s
negligence. (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133,
1139.) Liability is established if the employer “knew or should have known that
hiring the employee created a particular risk or hazard and that particular
harm materializes. (Id.) Plaintiffs have
not alleged facts supporting the employer’s knowledge of unfitness.
Defendants correctly assert that
negligence per se is not an independent right of action. Rather, it is an
evidentiary doctrine that presumes negligence based on the violation of a
statute. (Quiroz
v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285.) As it
is not an independent cause of action, it is not required to be alleged
separately. (Id.)
However, Plaintiffs’ inclusion of the
second cause of action does not render the FAC fatally defective or uncertain.
Its inclusion as a separate cause of action places Defendants on notice of
Plaintiffs’ theory of the case. Defendants do not suffer any prejudice because the
principle is separately alleged. (Code
Civ. Proc., § 475.)
Defendants argue the court should strike the prayer for
prejudgment interest because Plaintiffs are not entitled to such interest in a
tort case. However, a plaintiff may be entitled to prejudgment interest under
Civil Code § 3288 for damages resulting from the loss of money or
property. (Greater Westchester Homeowners
Assn. v. City of Los Angeles
(1979) 26 Cal.3d 86, 102–103.) Moreover, whether awarding prejudgment interest would ultimately
be proper is not a basis for a motion to strike. Such a prayer need not even be
alleged. (Newby v. Vroman (1992) 11 Cal.App.4th 283,
286 ["It has long been settled that, in a contested action,
prejudgment interest may be awarded even though the complaint contains no
prayer for interest.”].)
IV.
CONCLUSION
Based on the foregoing, the demurrer to
the complaint is SUSTAINED as to the claims for negligent entrustment and
negligent hiring/supervision/ training/retention with leave to amend. The demurrer
to the second cause of action for negligence per se is OVERRULED. The motion to
strike is DENIED.