Judge Randolph M. Hammock, Case Number: 24STCV27234, Date: 2025-04-07 Tentative Ruling

Plaintiff Mike Rodriguez was driving on the 210 freeway [FN 2] with Plaintiff Alexis Martinez in the passenger seat when they were involved in a motor vehicle accident with Defendant Juan Francisco Heredia Fernandez. Defendant, who was driving a 16-wheel freight truck, allegedly merged into Plaintiffs’ lane and struck the driver’s side passenger door of the Plaintiffs’ vehicle. Plaintiff Rodriguez maintained control of the vehicle, however, each Plaintiff sustained physical injuries from the impact. Plaintiffs assert causes of action for (1) negligence, (2) intentional infliction of emotional distress, (3) negligent infliction of emotional distress, (4) negligence per se, (5) assault and battery, and (6) negligent hiring, retention, and supervision.

The Declaration of attorney John O’Meara reflects that counsel for Defendant sent a meet and confer letter to Plaintiff’s counsel (Jacob O., Partiyeli, Esq.) and requested a telephone conference. (O’Meara Decl. ¶ 2.) Plaintiff’s counsel did not respond. [See, footnote 1, infra.]

While this demonstrates the absence of any substantive meet and confer, in the interests of judicial economy, the court will consider the demurrer and motion to strike on their merits. The parties are admonished to comply with all meet and confer obligations going forward.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, 147 Cal.App.4th at 747.)

Plaintiffs allege they were riding in a 2023 Kia Forte on the 210 freeway in the far-right lane when they were “struck by a 16-wheel freight truck driven by Defendant Juan Francisco Heredia Fernandez.” (Compl. ¶¶ 16, 17.) Plaintiffs allege that Defendant “merged into the Plaintiffs' lane without properly checking for surrounding vehicles, causing his truck to collide with the driver’s side passenger door of the Plaintiffs’ vehicle. The impact forced the Plaintiffs’ vehicle to veer rightward, but Plaintiff Mike Rodriguez managed to maintain control, preventing the vehicle from flying off the road.” (Id. ¶ 18.) Plaintiffs allege Defendant admitted “he had recently obtained his trucking license and did not see the Plaintiffs' vehicle before merging into their lane.” (Id. ¶ 19.) They allege “[t]his admission underscores his inexperience and lack of attention, which directly contributed to the collision.” (Id.) Plaintiffs further allege that Defendant was driving “at above normal speeds, and likely exceeding the speed limit.” (Id. ¶ 22.)

“A cause of action for intentional infliction of emotional distress exists when there is ‘(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. A defendant's conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community. And the defendant's conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51, quoting Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001) (internal citations omitted). “Liability for intentional infliction of emotional distress ‘ “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Bock v. Hansen (2014) 225 Cal. App. 4th 215, 233.) Severe emotional distress means “ ‘emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.’” (Id.)

Although a claim for IIED will generally present multiple questions of fact, a court may sustain a demurrer to the claim when “the facts alleged do not amount to outrageous conduct as a matter of law.” (Bock, supra, 225 Cal. App. 4th at 235.) The process has been described as “more intuitive than analytical.” (So v. Shin (2013) 212 Cal.App.4th 652, 671–672.)

Here, Plaintiff’s allegations do not amount to outrageous conduct as a matter of law. Plaintiffs allege only a general failure by Defendant to operate his vehicle in a safe manner. There are no allegations that Defendant intentionally caused the accident, nor that he acted with a reckless disregard. Rather, Defendant allegedly failed to exercise due care and caused a collision. This is an action for negligence. Nothing more, nothing less.

Accordingly, Defendant’s Demurrer to the Second Cause of Action is SUSTAINED. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) Because it appears unlikely that Plaintiffs can allege facts beyond mere negligence, no leave to amend is given.

“[T]here is no independent tort of negligent infliction of emotional distress”— it is merely “a species of negligence.” (Delfino v. Agilent Techs., Inc. (2006) 145 Cal. App. 4th 790, 818.) Likewise, negligence per se “is an evidentiary doctrine, rather than an independent cause of action.” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1210 (citing Quiroz v. Seventh Ave. Ctr. (2006) 140 Cal.App.4th 1256, 1285-86)). It can be applied to establish a breach of due care under a cause of action sounding in negligence. (Id.)

Next, Defendant argues Plaintiffs have not alleged facts to support assault and battery. “The elements of a cause of action for 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. [Citation]. The elements of a cause of action for 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, 890.)

Thus, both assault and battery require an intent to harm. Plaintiffs allege here that “Defendant acted with the intent to cause harmful contact to Plaintiffs.” (Compl. ¶ 82.) However, there are no facts alleged to support that position. The actual allegations are that the collision was unintentional. (See id. ¶ 50 [“Defendant Fernandez failed to check his surroundings and did not ensure that the lane was clear before merging”]; [“Defendant Fernandez, who had recently obtained his trucking license, admitted at the scene that he did not see the Plaintiffs' vehicle before merging”].)

Finally, Defendants argue the Sixth Cause of Action does not apply to Defendant, the employee. “An employer may be liable to a third person for the employer's negligence in hiring or retaining an employee who is incompetent or unfit. [Citation.]” (Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1564–1565, 50 Cal.Rptr.2d 399.) But there is no liability against the employee.

Here, Plaintiffs allege that “Defendant Jackie DOE negligently hired and retained Defendant Juan Francisco Heredia Fernandez as a driver, despite knowing or reasonably should have known of his inexperience and lack of qualification to safely operate a 16-wheel freight truck.” (Compl. ¶ 90.) In other words, Jackie Doe was Plaintiff’s employer. To the extent this cause of action applies in this case, it can only be asserted against the employer, not the moving Defendant employee.

A motion to strike lies either (1) to strike any irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court. (CCP § 436.)

Civil Code § 3294 provides that “[i]n an action for the breach of an obligation not arising from contract where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

Here, Plaintiffs have failed to allege ultimate facts to show the requisite malice, oppression, or fraud necessary to seek punitive damages. Plaintiffs have alleged negligence. But “[m]ere negligence, even gross negligence, is not sufficient to justify an award” of punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.)

“Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any…”

The cases interpreting section 1021.5 have established a three-prong test for determining whether an award of attorney fees may be entered in favor of a “successful party.” “Under that test, we must inquire whether: ‘(1) the action has resulted in the enforcement of an important right affecting the public interest, (2) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, and (3) the necessity and financial burden of private enforcement make the award appropriate’.” (Fam. Plan. Specialists Med. Grp., Inc. v. Powers (1995) 39 Cal. App. 4th 1561, 1567.) In deciding whether to award fees, the court “must realistically assess the litigation and determine, from a practical perspective, whether or not the action served to vindicate an important right so as to justify an attorney fee award under a private attorney general theory.” (Vasquez v. State of California (2008) 45 Cal. 4th 243, 251.)

In support of attorney’s fees, Plaintiffs argue their “claims involve substantial public safety concerns regarding the safe operation of commercial vehicles and the duty of trucking companies to properly vet and train their drivers” (Opp. 8: 13-16), and that they “advance a public interest in commercial driver safety.” (Opp. 9: 8-10.) This court is not convinced.

If Plaintiffs succeed in this action, it will not result in the enforcement of an “important right” affecting the public interest, nor any “significant benefit” on the general public or a large class of persons. By this litigation, Plaintiffs seek compensation for injuries suffered at the hands of Defendant’s alleged negligence. This action is limited to only “advanc[ing] or vindicat[ing] [their] personal economic interests.” (Flannery v. California Highway Patrol (1998) 61 Cal. App. 4th 629, 635.) Therefore, Plaintiffs cannot recover attorney’s fees under section 1021.5.

Last, but not least, this Court is continuingly frustrated by the constant over-pleading of lawsuits by plaintiffs’ lawyers. While this Court understands that a lawyer is to “zealously” represent his or her client, that lawyer still must be reasonable in doing so. Why assert six causes of action in this particular case when one will suffice? Suffice it to state, the additional causes of action pled in this case after the first cause of action for negligence are either frivolous, duplicative and/or plainly inapplicable on the facts. [FN 2 ]

This unfortunate type of over-pleading causes a needless pleading battle, wastes judicial resources, and delays justice for the clients. Perhaps in the future Plaintiff’s counsel should consider the use of a form complaint approved by the judicial counsel and narrow it down a bit. At the very least, it is respectfully suggested that he significantly modify his standard cut-and-paste motor vehicle negligence complaints accordingly.

Judge of the Superior Court

FN 1 - This raises a potentially troubling issue: The Complaint expressly states that the subject accident occurred “on the 210 freeway, located within this county.” Para 10. However, the Case Cover Sheet indicates that the subject accident occurred at “650 S. Spring Street, LA CA 90014,” the latter of which allows this action to be filed within the Central District. This Court can take judicial notice that the 210 freeway does not come anywhere near that specific address. Plaintiff’s counsel must explain this apparent discrepancy at the Case Management Conference, which shall occur at the same time on the hearing of the instant demurrer and motion to strike.

FN 2 - Moreover, these are the types of issues which should have been conceded by Mr. Partiyeli in a meaningful “meet and confer,’ as required by CCP § 430.41. Instead, Mr. Partiyeli apparently chose not to participate at all in that mandatory meet and confer. Indeed, adding insult to injury, Mr. Partiyeli essentially “doubled down” and asserted a meritless opposition. This Court would be well justified in issuing monetary sanctions against Mr. Partiyeli for these above-stated violations. He should consider himself so forewarned.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.