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.

Thursday, October 10, 2024, at 8:30 a.m.

 

[TENTATIVE] ORDER SUSTAINING DEMURRER WITH LEAVE TO AMEND AND DENYING THE MOTION TO STRIKE FIRST AMENDED COMPLAINT

 

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.

 

  1. The inclusion of a claim for negligence per se is not a fatal defect.

      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.)

 

  1. The motion to strike is DENIED.

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.