Judge: Ronald F. Frank, Case: 22TRCV01192, Date: 2023-05-05 Tentative Ruling
Case Number: 22TRCV01192 Hearing Date: May 5, 2023 Dept: 8
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HEARING DATE: May 5, 2023¿¿
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CASE NUMBER: 22TRCV01192
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CASE NAME: Luis Hernandez, Jr. v. Del Amo Motorsports, et al.
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MOVING PARTY: Defendant, Del Amo Motorsports
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RESPONDING PARTY: Plaintiff, Luis Hernandez Jr.
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TRIAL DATE: None
set.¿
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MOTION:¿ (1) Demurrer¿
(2)
Motion to Strike
(3)
CMC
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Tentative Rulings: (1) Defendants’ Demurrer is Sustained. The Court will entertain argument as to
whether leave to amend should be permitted.
Plaintiff’s counsel will need to discuss what a proposed amendment would
entail
(2)
Motion to Strike is mooted by the sustaining of the Demurrer
(3)
The CMC will be re-scheduled if leave to amend the Complaint is granted
¿
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A. Factual¿¿
On November 9, 2022, Plaintiff, Luis
Hernandez, Jr. (“Plaintiff”) filed a complaint against Defendant, Del Amo
Motorsports (“Defendant”), and DOES 1 through 50. The Complaint alleges causes
of action for: (1) Negligence; (2) Negligent Entrustment; and (3) Strict
Liability for Failure to Warn. Plaintiff based its Complaint on the fact that
he, a 29-year-old male with no past experience in riding motorcycles, bought
and rode a motorcycle. Plaintiff admits
he had done no investigation or research into the purchase of motorcycles, nor
of the dangers associated with riding motorcycles, before he bought one at
Defendant’s store. Plaintiff alleges that Defendant was well aware of
Plaintiff’s inexperience, and lack of license, but pressured Plaintiff to
purchase the motorcycle. Plaintiff contends that Defendant’s knowledge of
Plaintiff's inexperience included Defendant nearly crashing the motorcycle in
Defendant's parking lot during a test drive. However, Plaintiff submits that
despite this knowledge, Defendant sold the motorcycle to Plaintiff, despite
providing any express written or oral warnings about the potentially fatal
dangers associated with riding motorcycles. Plaintiff then crashed approximately
two hours after purchasing the motorcycle.
Defendant now demurs and files a
Motion to Strike Plaintiff’s Complaint.
¿
B. Procedural¿¿
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On March 16, 2023, Defendant filed its
Demurrer and Motion to Strike. On April 24, 2023, Plaintiff filed oppositions.
On April 28, 2023, Defendant filed reply briefs to both.
¿II. MOVING PARTY’S GROUNDS
FOR THE DEMURRER¿& MOTION TO STRIKE¿
¿
Defendant demurs to the Complaint on the grounds
Defendant argues all causes of action alleged in Plaintiff’s Complaint fails to
state facts sufficient to constitute causes of action against Defendant.
Defendant’s filed a Motion to Strike the following from
Plaintiff’s Complaint:
1. The
prayer for “punitive and exemplary damages as may be provided by law.” Prayer
for Relief ¶ 2.
2.
The prayer for “reasonable attorneys’ fees as
may be provided by law or contract.” Prayer for Relief ¶ 3.
3.
The prayer for “restitution.” Prayer for
Relief ¶ 5.
III. ANALYSIS¿¿
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A. Demurrer
¿¿
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.) “To survive a demurrer, the complaint
need only allege facts sufficient to state a cause of action; each evidentiary
fact that might eventually form part of the plaintiff’s proof need not be
alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53
Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of
action, the demurrer admits the truth of all material facts properly pleaded. (Aubry
v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does
not admit contentions, deductions or conclusions of fact or law.” (Daar v.
Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿¿¿
¿¿¿
A pleading is uncertain if
it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A
demurrer for uncertainty may lie if the failure to label the parties and claims
renders the complaint so confusing defendant cannot tell what he or she is
supposed to respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986)
185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for uncertainty is
strictly construed, even where a complaint is in some respects uncertain,
because ambiguities can be clarified under modern discovery procedures.” (Khoury
v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿¿¿
Negligence
In order to state a
claim for negligence, Plaintiff must allege the elements of (1) “the existence
of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause
resulting in an injury.” (McIntyre v.
Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) Here, Plaintiff’s Complaint alleges that
Defendants were negligent in selling Plaintiff a motorcycle knowing he did not
know how to operate a motorcycle, did not have the proper driver’s license to
operate a motorcycle, and witnessed Plaintiff nearly crash the motorcycle
outside of the Defendant’s store. (Complaint, ¶ 27.) Plaintiff further alleges
that he was harmed, and that Defendant’s negligence was a substantial factor in
causing Plaintiff’s harm. (Complaint, ¶¶ 28-29.)
Defendant’s Demurrer
contends that the Complaint fails to allege what duty Defendant owed to
Plaintiff. Plaintiff seems to be alleging that Defendant owed a duty not to
sell the motorcycle to Plaintiff because Plaintiff was not licensed nor had
experience with motorcycles. Defendant cites to Dodge Center v. Superior
Court (1988) 199 Cal.App.3d 332, 338-339, which doubted that a sales transaction
could give rise to civil liability for statutory or common law negligent
entrustment. It stated: “No statute makes it unlawful for a
motor vehicle retailer to sell to an unlicensed driver. Similarly, no statute
imposes on such a retailer a duty to inquire as to the purchaser’s license
status. In contrast, a specific statute imposes such a duty on one who rents a
motor vehicle, requiring inspection of the driver’s license of the person to
whom the vehicle is to be rented and comparison of the signature on the license
with that of the person seeking to rent.”
Anticipating the Opposition’s argument, the Dodge Center Court recognized
as follows:
“Although
it has been suggested that the sale of an automobile to an unlicensed and
inexperienced person with actual or presumptive knowledge that the incompetent
person is going to drive it may form a basis for imposing tort liability for
negligent entrustment under some circumstances (see Rest.2d Torts, supra,
§ 390; Perez v. G & W Chevrolet, Inc. (1969) 274 Cal.App.2d 766,
768, 79 Cal.Rptr. 287; Drake v. Morris Plan Co. (1975) 53 Cal.App.3d
208, 211, 125 Cal.Rptr. 667), no California decision actually appears to
have based such liability upon an automobile sales transaction.”
Dodge Center, supra, 199 Cal.App.3d at p. 339 (emphasis added).
In opposition, Plaintiff
argues that Defendant owed Plaintiff a general duty of care under California
Code of Civil Procedure section 1714. Plaintiff also attempts to draw an
analogy to the case of Wilks v. Hom (1994) 2 Cal.App.4th 388
noting that under the standard set in Wilks, Defendant had a duty not to
sell Plaintiff the motorcycle because Defendant was well aware, or should have
been well aware of Plaintiff’s inexperience, as Plaintiff expressly informed
Defendant he was inexperienced and unlicensed, but also because Defendant witnessed
Plaintiff nearly crash the motorcycle outside of Defendant’s store. However, Wilks
is inherently different from the case at bar. In Wilks, a mother sued
her landlord following an explosion and fire at her residence that killed one
daughter and injured her other daughters. (Id. at 1267.) The Court in Wilks
held that although the mother did not see the injury happen to her daughters,
she could still recover for emotional distress on a bystander theory because
she could hear the explosion and her daughters, and knew they were in the other
room. As noted by Defendant, Wilks does not have anything to do with
motorcycles, sales, or duties of care.
Plaintiff also asserts
that Defendant has a “special relationship” with Plaintiff. California courts
have found, however, that special relationships exist in limited situations
where the plaintiff is particularly vulnerable and dependent upon the defendant
who, correspondingly, has some control over the plaintiff’s welfare. (Brown
v. USA Taekwondo (2021) 11 Cal.5th 204, 215.) Examples of special
relationships that give rise to a duty to protect an individual include
children and their caregivers, doctors and patients, colleges and students,
common carrier and passengers, and innkeepers and guests. Defendant also
included that “a special relationship has been found to exist between business
proprietors such as shopping centers, restaurants, and bars, and their tenants,
patrons, or invitees, and also between common carriers and passengers,
innkeepers and their guests, and mental health professionals and their
patients.” (Giraldo v. Dept. of Corrections & Rehabilitation (2008)
168 Cal.App.4th 231, 246 (citation omitted).)
Here, Plaintiff
provides no legal support for his contention that the purchasing of a vehicle
created a special relationship between himself and Defendant. Plaintiff’s main
argument is that Defendant should not have sold the motorcycle to because they
had knowledge of his lack of a license, experience, and the near accident he
caused outside of the store. However, the Opposition notes that as a 29-year
old adult, Plaintiff also had knowledge of all of the aforementioned facts and
still chose to drive it without obtaining training, instruction, or off-road
experience. Plaintiff’s assertion that Defendant had a duty to warn Plaintiff
of the dangers that come with riding a motorcycle are not particularly
persuasive to the Court. If this Court were to follow that line of reasoning,
it would require every seller of any potentially dangerous purchase to assess
how qualified the buyer is in skill in order to make that purchase, which the
Court will not do on the facts alleged here. By Plaintiff’s reasoning, Home Depot could be
held liable for failing to warn a a first-time paint purchaser that paint fumes
can be hazardous; a hardware store could be required to warn an apparently clumsy
customer that he or she should take a class on how to hammer a nail . . . . Such policy decisions are best placed with the
Legislature
Additionally, the fact
that Plaintiff did not have a license to drive a motorcycle is of no moment. Many individuals, especially in California,
purchase vehicles for others to drive them around. Even the Complaint alleges
that Plaintiff’s brother – not Plaintiff – purchased the motorcycle and drove
the motorcycle off the lot. (Complaint, ¶¶ 19-20.) The motorcycle was already
off the lot when Plaintiff drove it and crashed. Plaintiff even admits in its
opposition that two hours after purchasing the Motorcycle, Plaintiff drove the
motorcycle to a convenience store across the street from his home to purchase
some drinks. It alleges the crash occurred when exiting the convenience store
parking lot, when Luis put on too much throttle on the Motorcycle.
Because no facts in the Complaint suggest that
a duty was owed by Defendant to Plaintiff as a matter of law, the demurrer as
to the negligence cause of action is sustained.
Negligent
Entrustment
“ ‘California is one of the several
states [that] recognizes the liability of an automobile owner who has entrusted
a car to an incompetent, reckless, or inexperienced driver’…through the tort of
negligent entrustment. [Citation.]” (McKenna v. Beesley (2021) 67
Cal.App.5th 552, 565-66.) “ ‘Negligent entrustment is a common law liability
doctrine, which arises in numerous factual contexts. [Citation.] In cases
involving negligent entrustment of a vehicle, liability “ ‘is imposed on [a]
vehicle owner or permitter because of his own independent negligence and not the
negligence of the driver.’ ” [Citations.] ‘ “Liability for the negligence of
the incompetent driver to whom an automobile is entrusted does not arise out of
the relationship of the parties, but from the act of entrustment of the motor
vehicle, with permission to operate the same, to one whose incompetency,
inexperience, or recklessness is known or should have been known by the owner.”
’ [Citations.]” (Id.) McKenna held there was a jury
issue as to whether an owner (not a seller) of a motor vehicle who breaches its
Vehicle Code § 14604 duty and permits an unlicensed driver to drive the owner's
vehicle had constructive knowledge of the driver's incompetence to drive. In that case the vehicle owner defendant Beesley
entrusted his vehicle to a home improvement contractor (Wells) who had driven
his own car to Beesley’s home, the construction site. Beesley entrusted his car to Wells, who
allegedly ran a red light and injured plaintiff.
The elements of negligent
entrustment of a vehicle are as follows: (1) that the driver was negligent in
operating the vehicle; (2) that the defendant owner owned the vehicle operated
by the driver or had possession of that vehicle with the defendant owner’s
permission; (3) that the defendant owner knew, or should have known, the driver
was incompetent or unfit to drive the vehicle; (4) that defendant owner
permitted the driver to operate the vehicle regardless; and (5) that the
driver’s incompetence or unfitness to drive was a substantial factor in causing
harm to the plaintiff. (Id.) See
CACI 724. Element 4 of the jury instruction
requires plaintiff to prove that the defendant permitted the driver “to drive”
the vehicle.
Here, Plaintiff argues that
Defendant entrusted and sold a dangerous as well as high powered motorcycle to
Plaintiff, even though Plaintiff was not licensed, and was not experienced in
riding and owning a motorcycle. (Complaint, ¶¶ 31-32.) Plaintiff also contends
that Defendant knew Plaintiff was unlicensed and completely inexperienced in either
buying or riding any motorcycle as evidenced by the conversation between sales
agent and Plaintiff in addition to the near accident when Plaintiff test drove
the bike on the lot. (Complaint, ¶ 33.)
But the Complaint alleges that the motorcycle was NOT entrusted to
Plaintiff, and does not allege that Del Amo Motorsports permitted plaintiff “to
drive” the motorcycle at the time of the collision. Instead, the Complaint alleges that the
vehicle was entrusted to Plaintiff’s brother, so as alleged the negligent
entrustment claim fails to fit within Vehicle Code § 17150. “This tort requires actual knowledge by the
seller that the driver is incompetent or knowledge of
circumstances which should indicate to the seller that the driver is
incompetent.” (Krawitz v. Rusch
(1989) 209 Cal.App.3d 957, 966, emphasis added.) The is no allegation in the Complaint that
Plaintiff drove the motorcycle off the lot, that Plaintiff was permitted “to
drive” the vehicle at the time of the collision, or that the motorcycle was
entrusted to Plaintiff as distinct from Plaintiff’s brother when the motorcycle
was sold.
The Opposition cites to a case of Quintero
v. Jim Walter Homes, Inc., but the citation is incomplete, and research
reveals only 3 reported decisions involving those two parties, all of which are
from Texas state courts and none of which involve a motorcycle or a negligent
entrustment claim. Research does reveal several cases in which
California court have ruled on the question of law as to whether duty arose
from circumstances where the owner knows or should have known that the driver
as distinct from the purchaser is incompetent to handle it. See,
e.g., Richards v. Stanley (1954) 43 Cal.2d 60 (no duty to protect
members of general public from risk of motoring activities of thief); Osborn
v. Hertz Corp. (1988) 205 Cal.App.3d 703 (no duty owed by owner [rental
care agency] who entrusted car to sober customer who had valid driver's license
despite proof that the customer had prior DUI convictions). A Court of Appeal noted that the creation of
a duty owed to a class of persons is one for the Legislature, not the
judiciary, in a suit where the retailer was held to owe not duty for selling
toy slingshots to the class of persons for whom they were intended—the young. (Bojorquez v. House of Toys, Inc.
(1976) 62 Cal.App.3d 930, 933.) In the
Court’s view, the duty Plaintiff seems to seek here is one where a vehicle
seller should have a duty to a user of a vehicle sold to member of the user’s
family when the seller has actual or constructive knowledge that the user in an
inexperienced driver. That is not the
law as it currently exists, until the Legislature creates such a duty.
As a general rule, “one owes no
duty to control the conduct of another, nor to warn those endangered by such
conduct.” (Regents of University of California v. Superior Court (2018)
4 Cal.5th 607, 619.) “An exception to
this no-duty-to-protect rule exists for cases in which the defendant has a
special relationship with either the dangerous third party or with the
victim.” (Brown v. USA Taekwondo (2021)
11 Cal.5th 204, 211.) Even when a
special relationship exception applies, the policy considerations described
in Rowland v. Christian (1968) 69 Cal.2d 108, may weigh against
imposing a duty to protect in a given case.
The special relationship doctrine recognizes that the existence of a
nexus between plaintiff and defendant that puts the defendant in a unique
position to protect the plaintiff from injury. The law requires the defendant
to use this position accordingly. (Brown,
supra, 11 Cal.5th at p. 216.) Here, the
relationship of motorcycle seller and brother of motorcycle purchaser has not
been adopted as a “special relationship” such that a duty to warn or a duty to
protect the user of a product form himself arises. “Where the defendant has neither performed an
act that increases the risk of injury to the plaintiff nor sits in a relation
to the parties that creates an affirmative duty to protect the plaintiff from
harm, however, our cases have uniformly held the defendant owes no legal duty
to the plaintiff.” (Brown, supra,
11 Cal.5th at p. 216.)
Here, for similar reasons listed
above these alleged facts are insufficient for a cause of action based in
negligence. Additionally, the claim for negligent entrustment fails because the
Defendant was not the owner of the vehicle when Plaintiff chose to drive it,
unlicensed, and crashed. The brother was
the owner. As such, the demurrer to the
cause of action for negligent entrustment is sustained.
Strict
Liability – Failure to Warn
A plaintiff can recover on a products liability claim on a
theory of strict liability or negligence. (Merrill v. Navegar, Inc.
(2001) 26 Cal.4th 465, 478.) The plaintiff needs to show that a defect in the
product caused plaintiff’s injury. Usually, a plaintiff can recover for
three types of defects: manufacturing, design, and/or warning, as in,
inadequate warning or failure to warn. (Anderson v. Owens-Corning
Fiberglas Corp. (1991) 53 Cal.3d 987, 995.)
Products liability involves “the
liability of those who supply goods or products for the use of others to
purchasers, users, and bystanders for losses of various kinds resulting from
so-called defects in those products” or devices. (Khan v. Shiley Inc.
(1990) 217 CA3d 848, 855, 266 CR 106, 110.) “Possible theories of recovery
include strict liability in tort, negligence (i.e., in creating or failing to
discover a flaw, in failing to warn or failing adequately to warn, or in the
sale of a defectively designed product), and breach of warranty (express and
implied).” (Id.)
Strict Liability is imposed on all
those directly in the marketing chain, including manufacturers, wholesalers,
distributors and retailers. “Regardless of the identity of a particular
defendant or his position in the commercial chain, the basis for his liability
remains that he has marketed or distributed a defective product.” (Daly v.
General Motors Corp. (1978) 20 C3d 725, 739, 144 CR 380, 388; see also,
Peterson v. Sup. Ct. (1995) 10 C4th 1185, 1199-1202, 43 CR2d 836,
844-846.)
Here, Plaintiff alleges in his
Complaint that Defendant sold the motorcycle where the potential risk was known
at the time of sale which presented a substantial clear and present danger that
was reasonably foreseeable. (Complaint, ¶ 37.) Plaintiff also contends that
inexperienced, first-time purchasers would have not recognized the serious
risks and Defendant’s failure to adequately warn of the clear and likely danger
resulted in Plaintiff suffering harm. (Complaint, ¶ 38.) Lastly, Plaintiff
asserts that Defendants failure to warn was a substantial factor in causing
Plaintiff’s injury which rises to the level of strict liability, both
statutorily and by way of common law. (Complaint, ¶ 39.)
Defendant’s Demurrer asserts that that
it is unclear what “risk” Plaintiff is alleging Defendant should have warned
him of, and it is unclear that the alleged failure to warn Plaintiff generally
about the dangers of motorcycles rendered this motorcycle defect for purposes
of strict liability. As noted by Defendant, “Generally speaking, manufacturers
have a duty to warn consumers about the hazards inherent in their products. The
requirement’s purpose is to inform consumers about a product’s hazards and
faults of which they are unaware, so that they can refrain from using the
product altogether or evade the danger by careful use. … [¶] There is no duty
to warn of known risks or obvious dangers.” (Chavez v. Glock, Inc.
(2012) 207 Cal.App.4th 1283, 1304 (citations omitted).) However, Judges are
also allowed to consider their own or common experience with the activity
involved when deciding the inherent risk in question. (Nalwa v. Cedar Fair,
LP (2012) 55 Cal.4th 1148, 1158.)
This Court agrees that common sense
puts individuals on notice that a motor vehicle, let alone a motorcycle, is
dangerous and can cause serious injury to both the driver and to the public if
driven carelessly. Defendant also notes that Plaintiff should have been on
notice of the danger when Plaintiff alleges that, during his test drive, he
triggered the throttle in such a fashion that, but for the salesperson’s
intervention, he would have crashed. (Complaint, ¶ 17.) Such a close encounter
with an accident should have placed Plaintiff on notice that his inexperience
could lead to an accident or injury. Lastly, Defendant notes that Plaintiff
alleges that Defendant “must have knowingly and intelligently obtained a
signature of Plaintiff signifying that he understood and [would] be held
responsible for any risks or injuries to himself or others because of his total
inexperience that are [sic] associated with Motorcycles.” (Complaint, ¶ 35.) The law regarding motor vehicle sales and
leasing is highly regulated and many notification duties have been imposed by
the Legislature. The policy-making
branches of the government, not the judiciary, are the ones responsible for enlarging
on the notices required at point of sale.
The Court agrees that the facts alleged are not sufficient to maintain a
cause of action for Strict Liability – Failure to Warn. As such, the demurrer is sustained.
B. Motion to Strike¿¿
¿
The court may, upon a motion, or at any time in its
discretion, and upon terms it deems proper, strike any irrelevant, false, or
improper matter inserted in any pleading.¿ (Code Civ. Proc., § 436(a).)¿ The
court may also strike all or any part of any pleading not drawn or filed in
conformity with the laws of this state, a court rule, or an order of the
court.¿ (Id., § 436(b).)¿ The grounds for a motion to strike are that
the pleading has irrelevant, false improper matter, or has not been drawn or
filed in conformity with laws.¿ (Id., § 436.)¿ The grounds for moving to
strike must appear on the face of the pleading or by way of judicial notice.¿ (Id.,
§ 437.)¿ “When the defect which justifies striking a complaint is capable of
cure, the court should allow leave to amend.”¿ (Vaccaro v. Kaiman (1998)
63 Cal.App.4th 761, 768.)¿ ¿
The Court sustained the entire
demurrer. As such, the Motion to Strike is mooted.