Judge Michelle C. Kim, Case 22STCV19081 2023-04-10 Tentative Ruling

Plaintiff Richard William McKechnie (“Plaintiff”) filed this action against defendants Uber Inc. and Raymond Aghajani (“Aghajani”) for damages relating to an incident where Aghajani’s vehicle collided with Plaintiff’s scooter. Plaintiff alleges that Aghajani was operating his vehicle as Uber’s agent or employee at the time of the incident. The complaint alleges a single cause of action for negligence against all defendants. On November 4, 2022, Plaintiff filed an Amendment to Complaint naming Superpedestrian, Inc. (“Superpedestrian”) as Doe 1.

Superpedestrian now demurs to the complaint arguing the complaint fails to plead any allegations against Superpedestrian to state a cause of action for negligence against it. Superpedestrian contends that the Plaintiff merely relies on allegations against Aghajani and Uber, but there are no facts as to how Superpedestrian is liable for the incident. Superpedestrian argues that the complaint contains only conclusory allegations against the Doe defendants that are insufficient to state a cause of action.

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (CCP §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Donabedian, 116 Cal.App.4th at 994.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP § 430.41(a).)

The Court finds Defendant has fulfilled this requirement prior to filing the demurrer. (Demurrer Alexandra Decl. ¶¶ 2-4.)

The elements of a cause of action for negligence are duty, breach, causation, and damages. (Orey v. Superior Court (2013) 213 Cal.App.4th 1241, 1255; Johnson v. Prasad (2014) 224 Cal.App.4th 74, 78.) “Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and ... the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) Additionally, a party may object to a pleading by demurrer if “The pleading is uncertain.” Uncertain includes ambiguous and unintelligible. (CCP §430.10(f).)

In this case, concerning the Doe defendants, the complaint alleges in relevant part:

Plaintiff is informed and believes, and based upon such information and belief alleges that at all times relevant hereto, each Defendant, including DOES 1 through 50, was the owner, servant, agent, joint-venturer, employee or employer of each of its co-Defendants, and in doing the acts hereinafter mentioned, each Defendant was acting within the scope of its authority and with the permission and consent of its co-Defendants,…

Plaintiff is informed and believes, and based upon such information and belief alleges that on the above date and time, Defendants RAYMOND AGHAJANI and DOES 1 to 50, inclusive and each of them, failed to operate their vehicle in a safe or reasonable manner by failing to yield the right of way to a bicyclist in a crosswalk.

Moreover, Plaintiff is informed and believes, and based upon such information and belief alleges that Defendants RAYMOND AGHAJANI and DOES 1 to 50, inclusive and each of them, negligently failed to approach the crosswalk with due care, failed to perceive and/or take into consideration the existence of pedestrians and bicyclists in the crosswalk, and was inattentive at the time of the collision.

Further, Plaintiff is informed and believes, and based upon such information and belief alleges that Defendant RAYMOND AGHAJANI was operating the subject vehicle with the express or implied authority and permission of Defendant UBER INC., as an agent or employee of Defendant UBER INC., and within the course and scope of his agency or employment with Defendant UBER INC.. Further, Defendant UBER INC. knew or should have known that Defendant RAYMOND AGHAJANI was unfit to operate the subject vehicle and was therefore negligent in hiring, retaining, training, and entrusting the subject vehicle to Defendant RAYMOND AGHAJANI.

As a direct, legal, and proximate result of the negligent acts and/or omissions of Defendants RAYMOND AGHAJANI, UBER INC., and DOES 1 through 50, inclusive and each of them, Plaintiff suffered severe injuries and attendant damages.

The complaint, thus, alleges that Aghajani was the defendant operating the vehicle, and that he did so within the course and scope of his agency or employment with Uber. Although a party is permitted to plead alternative theories in a complaint, the allegations against Doe 1 are unclear as to how Superpedestrian can be liable for the accident. Based on its name, Superpedestrian would appear to be a corporation, so it would not have been the defendant operating the motor vehicle. Furthermore, while the complaint alleges that Aghajani was acting as Uber’s agent or employee at the time of the accident, there are no such allegations concerning Superpedestrian. The complaint merely alleges that Superpedestrian’s negligent acts caused him harm, which is insufficient to state a cause of action for negligence against it.

Based on the foregoing, Superpedestrian’s demurrer to the complaint is sustained. Because this is the first challenge to the complaint, and the allegations against Superpedestrian can be clarified through amendment, Plaintiff will be given leave to amend.

Superpedestrian’s demurrer is sustained to the complaint with 20 days leave to amend.

Hon. Michelle C. Kim

Judge of the Superior Court