Judge: Ronald F. Frank, Case: 22TRCV01192, Date: 2023-08-15 Tentative Ruling
Case Number: 22TRCV01192 Hearing Date: November 17, 2023 Dept: 8
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HEARING DATE: November 17, 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¿ to Second Amended Complaint
(2)
Motion to Strike
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Tentative Rulings: (1) is SUSTAINED, without leave
to amend.
(2)
Motion to Strike is MOOTED.
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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. On June 7, 2023, Plaintiff
filed a First Amended Complaint. On September 6, 2023, Plaintiff filed a Second
Amended Complaint (“SAC”) alleging causes of action for: (1) Negligence; and
(2) Negligent Entrustment. Plaintiff based his SAC on the fact that he, a
29-year-old male with no past experience in riding motorcycles, bought and rode
a motor cycle but suffered a serious accident when riding it. 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 wrongfully sold
the motorcycle to Plaintiff without 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 SAC.
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B. Procedural¿¿
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On October 6, 2023, Defendant filed
its Demurrer and Motion to Strike. On November 3, 2023, Plaintiff filed
oppositions. On November 9, 2023, Defendant filed reply briefs to both.
II. REQUEST FOR JUDICIAL
NOTICE
Defendant
has requested this Court take Judicial Notice of the following documents:
1. Defendant’s
EXHIBIT A: Plaintiff’s original Complaint.
2. Defendant’s
EXHIBIT B: The Court’s May 5, 2023 minute order sustaining Defendant’s demurrer
to the original complaint, with leave to amend.
3. Defendant’s
EXHIBIT C: Plaintiff’s First Amended Complaint.
4. Defendant’s
EXHIBIT D: The Court’s August 15, 2023 minute order sustaining Defendant’s
demurrer to the First Amended Complaint, with leave to amend.
5. Defendant’s
EXHIBIT E: Plaintiff’s Second Amended Complaint.
The Court GRANTS Defendant’s request and takes
judicial notice of the above.
III. ANALYSIS¿¿
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A. Demurrer
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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.)¿¿¿¿
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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
Here, Defendant again
argues that Plaintiff has not alleged sufficient facts to state a cause of
action for 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.) As the Court has provided two previous detailed minute
orders addressing Plaintiff’s previous arguments, the Court will not repeat its
prior analysis. Instead, the Court’s analysis addresses Plaintiff’s new
argument involving the alleged “warning”.
Previously, this Court
has held that that Plaintiff had provided no legal support for his contention
that the purchasing of a vehicle created a special relationship between himself
and Defendant. The Court further held that because no facts in the original
complaint suggested that a duty was owed by Defendant to Plaintiff as a matter
of law, the demurrer as to negligence was sustained. In an attempt to remedy
the deficiencies in Plaintiff’s former pleadings, Plaintiff has added to the
SAC that on Defendant’s website, there is a “warning” which reads: “What do
I need to Start Riding Motorcycles? Other than a motorcycle to ride, full
gear to protect you while riding in case you fall, the most important thing you
need to start riding motorcycles is good training. Specifically, from a
professional because, whatever habits you acquire while learning, stays with
you for the rest of your life. So, good training that will teach you the dos
and don’ts is a must. Here is a short
list of local (to SoCal) motorcycle (and ATV) training courses you can try.
These are professional, government approved courses that you can trust. If you
know how to ride and just looking for tracks to ride then check out our Where
To Ride in SoCal page to find your local street or motocross track.
*DISCLAIMER: This page is for information purposes only and Del Amo Motorsports
has no affiliation with any of these training schools and course.”
Plaintiff, in its
opposition, argues that this “warning” or information page made Defendant
undertake a duty to act, and by issuing this to its online purchasers, created
an assumed duty to warn all of its customers of the need to obtain proper
training prior to operating a motorcycle, including in-person customers at
Defendant’s storefront. The Court disagrees with this line of reasoning for the
reasons detailed below. The Court finds as a matter of law that Defendant Del
Amo Motorsports owed no duty to Plaintiff as a matter of law to warn Plaintiff
of the dangers of riding a motorcycle without obtaining proper training and
licensure. Nor did any duty arise from
Defendants’ posting of motorcycle safety information on its website.
In making this flawed
argument, Plaintiff relies on the case of FNS Mortg. Serv. Corp v. Pac. Gen.
Grp. Inc. (1994) 24 Cal.App.4th 1564 (“FNS”). There, a suit was
brought against the International Association of Plumbing and Mechanical
Officials (“IAPMO”), a trade association that promoted uniformity in the
plumbing trade through its Uniform Plumbing Code, which as been adopted by
virtually all public entities. IAPMO listed plumbing products that had been
found to meet UPC standards in its plumbing research directory. IAPMO mistakenly
and negligently listed a plastic pipe manufactured by another company as being
approved, when it fact it was defective.
The allegations and facts in that case established that IAPMO itself had
found that the mistakenly listed manufacturer’s pipes were defective because
they used recycled materials and failed to meet thickness standards. The Court
in FNS found IAPMO had undertaken “the service of inspecting pipe
manufacturers and delisting those who are unwilling or unable to adhere to
standards it has promulgated” for the protection of third parties (consumers
who would buy and install the pipe). The Court found IAPMO should have
recognized its services were necessary for protection of consumers. (FNS,
supra, 24 Cal.App.4th at 1572.) The Court further found IAPMO had arguably undertaken to perform a duty owed
by local building officials to consumers. (Ibid.) The Court concluded
consumers “suffered harm because of the reliance of local building officials
upon IAPMO’s undertakings,” and IAPMO was “subject to liability to consumers
under the principles of section 324A for physical harm resulting from failure
to exercise reasonable care in its undertakings.” (Ibid.)
FNS is inherently distinguishable from the case at
bar. There are no facts to suggest that Del Amo Motorsport is the leader in
publishing motorcycle safety facts on their website. There are no facts alleged
here to show that Del Amo Motorsports had undertaken any duty or responsibility
to train prospective purchasers in motorcycle safety. There are no facts alleged here that Del Amo mistakenly
posted inaccurate information on its website that a reasonably consumer might
detrimentally rely upon in selecting a promoted product. In fact, one might argue that Del Amo
Motorsports’ website encouraging proper training before driving a motorcycle is
merely a statement of what Plaintiff admittedly had already learned before his
brother made the purchase. The instant
lawsuit does not concern the sufficiency of certain components or systems in motorcycles
or the conformity of a component or system with a specified industry standard, as
was the case for the plumbing pipes in FNS. Even if Del Amo Motorsports’
informational blurb could amount to be a “warning” (which the Court does not
believe it can be), there was nothing negligent or careless about the content
of the posted message as there was in FNS. Plaintiff provides no legal support to
suggest that an informational blurb on Defendant’s website requires every
consumer to be “warned”.
Further, Plaintiff was
not the actual purchaser of the motorcycle at issue; his brother was. The purported special relationship between
seller and consumer is even more attenuated where the plaintiff and alleged
tort victim is not the actual purchaser. The Court in sustaining the demurrer to the
original complaint referenced Dodge Center v. Superior Court (1988) 199
Cal.App.3d 332, 338-339, which stated there is no statute that imposes a duty on
a motor vehicle seller to inquire as to the purchaser’s license status. Nor has
any prior California appellate court recognized such a duty in the common
law. As noted in its May 5, 2023
Tentative Ruling sustaining the original demurrer, the creation of new duties
is generally the province of the policy making branches of the government, not
the judiciary. As to any hoped-for judicial
policy making here, the parties’ briefing as to the SAC has not embraced the
multi-factor duty analysis contained in Rowland v. Christian (1968) 69
Cal.2d 108, 113 and its progeny so the Court will not re-raise a Rowland analysis
here.
This attempted last
bite at the apple illustrates to the Court that Plaintiff is unable to maintain
a cause of action for negligence against Defendant. Based on the Court’s
previous minute orders addressing Plaintiff’s previous arguments, along with
the current ruling on Plaintiff’s new argument, this Court SUSTAINS the demurrer
without leave to amend.
B. Motion to Strike¿¿
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Because
Dealership Defendant’s arguments in the motion to strike hinge on the same
arguments in the demurrer, the Court’s above sustaining of the demurrer without
leave to amend effectively moots the Motion to Strike.
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