Judge Salvatore Sirna, Case Number: 22PSCV03023, Date: 2023-09-27 Tentative Ruling

Judge: Salvatore Sirna, Case: 22PSCV03023, Date: 2023-09-27 Tentative Ruling

Case Number: 22PSCV03023 Hearing Date: September 27, 2023 Dept: G

Defendants United Towing & Transport Inc. and Henry Hernandez’s Demurrer to Plaintiff’s First Amended Complaint

Respondent: Plaintiff Hiram Muro

Defendants United Towing & Transport Inc. and Henry Hernandez’s Motion to Strike Portions of Plaintiff’s First Amended Complaint

Respondent: Plaintiff Hiram Muro

TENTATIVE RULING

Defendants United Towing & Transport Inc. and Henry Hernandez’s Demurrer to Plaintiff’s First Amended Complaint is OVERRULED. Defendants to answer the First Amended Complaint in ten (10) days.

Defendants United Towing & Transport Inc. and Henry Hernandez’s Motion to Strike Portions of Plaintiff’s First Amended Complaint is DENIED.

BACKGROUND

This is a personal injury action. On April 12, 2022, Defendants United Towing & Transport, Inc. (United) and Henry Hernandez responded to a call for service by Plaintiff Hiram Muro in West Covina. After Hernandez placed Muro’s vehicle on a flatbed truck, Hernandez allegedly had Muro exit the vehicle while the truck’s bed was raised at a high angle. As a result, Muro fell from the raised bed and sustained severe injury.

On December 12, 2022, Muro filed a complaint against United, Hernandez, and Does 1-20, alleging (1) motor vehicle negligence, (2) general negligence, and (3) common carrier liability.

On April 6, 2023, Muro filed a First Amended Complaint (FAC) against the same Defendants alleging the same causes of action, with the exception of the third cause of action for common carrier liability.

On May 5, 2023, United and Hernandez filed the present demurrer and motion to strike. On July 3, the court continued a hearing on United and Hernandez’s motions in order for parties to further meet and confer. On July 10, United and Hernandez’s counsel telephonically met and conferred with Muro’s counsel. (Mate Suppl. Decl., ¶ 7.)

A hearing on the demurrer and motion to strike is set for September 27, 2023, along with a case management conference.

ANALYSIS

Demurrer

United and Hernandez demur to Muro’s first cause of action for motor vehicle negligence on the grounds that Muro (1) fails to allege the injuries were caused by Hernandez’s negligent operation of the flat bed and (2) fails to establish United and Hernandez are subject to the common carrier standard of care. For the following reasons, the court OVERRULES United and Hernandez’s demurrer.

Legal Standard

A party may demur to a complaint on the grounds that it “does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “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, supra, at p. 747.)

The basic elements of a negligence claim are (1) duty, (2) breach, (3) causation, and (4) damages. (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 480.) An operator of a motor vehicle is “under a duty, both by statute and common law, to operate his vehicle without negligence so as to abstain from injuring any other person or his property.” (Bewley v. Riggs (1968) 262 Cal.App.2d 188, 194.)

Discussion

In this case, United and Hernandez argue Hernandez’s alleged instructions and Muro’s actions were the cause of Muro’s injury. But Muro also alleges that Hernandez raised the flat bed to a dangerously high level which caused Muro to fall when Muro attempted to exit the vehicle on the flat bed. (FAC, ¶ 3-4.) Because Hernandez allegedly operated the flatbed in a manner that caused Muro to fall and become injured, the court finds Muro sufficiently pled a cause of action for motor vehicle negligence.

To the extent United and Hernandez argue United is not a common carrier, the court finds this argument an inappropriate ground for demurrer. Even if United and Hernandez are not subject to the heightened standard of care for common carriers, they are still governed by the standard of care for operating a motor vehicle as noted above and a demurrer cannot “lie to a part of a cause of action.” (Cornejo v. Lightbourne (2013) 220 Cal.App.4th 932, 944.)

Accordingly, United and Hernandez’s demurrer to Muro’s first cause of action is OVERRULED.

Motion to Strike

United and Hernandez move to strike Muro’s allegations regarding common carrier liability from the FAC. For the following reasons, the court DENIES their motion.

Legal Standard

Upon a party’s motion or the court’s own motion, the court may strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also “[s]trike out 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.” (Code Civ. Proc., § 436, subd. (b).) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)

Common carriers have a heightened duty of “utmost care” that requires them “to do all that human care, vigilance, and foresight reasonably can do under all the circumstances.” (Acosta v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 19, 27.) To determine whether one qualifies as a common carrier, “a court may properly consider whether (1) the defendant maintains a regular place of business for the purpose of transportation; (2) the defendant advertises its services to the general public; and (3) the defendant charges standard fees for its services.” (Martine v. Heavenly Valley Limited Partnership (2018) 27 Cal.App.5th 715, 725.)

Discussion

In this case, United and Hernandez argue Muro makes the conclusory allegation that they were common carriers without any supporting facts. But United and Hernandez fail to identify any authority that requires such specificity as the pleading of ultimate facts is appropriate. (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1019.) Accordingly, their motion to strike is DENIED.

CONCLUSION

Based on the foregoing, United and Hernandez’s demurrer to Muro’s FAC is OVERRULED. Furthermore, their motion to strike portions of Muro’s FAC is also DENIED.

Defendants to answer the First Amended Complaint in ten (10) days.