Judge Stephen Morgan, Case 21AVCV00807 2022-08-30 Tentative Ruling

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This is a motor vehicle action. Plaintiffs Sarah B. Martinez (“Martinez”), Lucrecia Monterroso (“Monterroso”), and Devin Varner, a minor by and through his Guardian ad Litem Sarah B. Martinez (“Varner” and collectively “Plaintiffs”), allege that on or about October 15, 2020, Plaintiffs were proceeding in Vehicle 2 in a southernly direction on 6th Street East, at or near the intersection with Avenure R, in or near the city of Palmdale, in the County of Los Angeles, state of California when Defendants Mediterranean Shipping Company (USA) Inc. (“MSC”), Ean Holdings, Inc. (“Ean”), and Wilbert L. Bailey, Jr. (“Bailey, Jr.”) negligently entrusted, managed, maintained, drove, and operated their motor vehicle, Vehicle 1, so as to directly and proximately cause a collision with Vehicle 2. Plaintiffs further allege injuries and damages.

On October 08, 2021, Plaintiffs filed their Complaint, alleging five (5) causes of action: (1) Negligence brought by Martinez, (2) Negligent Hiring, Training, and/or Retention of Unfit Employee as to MSC and Ean, (3) Negligent Entrustment as to MSC, (4) Negligence brought by Moterroso, and (5) Negligence brought by Varner.

Standard for Demurrer – 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.¿ (Cal. Code Civ. Proc. § 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,¿supra,¿147 Cal.App.4th at 747.)¿¿¿

A general demurrer admits the truth of all factual, material allegations properly pled in the challenged pleading, regardless of possible difficulties of proof.¿¿(Blank,¿supra, 39 Cal.3d at p. 318.)¿ Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer.¿¿(Del E. Webb Corp. v. Structural Materials Co.¿(1981) 123 Cal.App.3d 593, 604.)¿ Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken.¿¿(Vance v. Villa Park¿Mobilehome¿Estates¿(1995) 36 Cal.App.4th 698, 709.)¿ A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.¿¿(Blank,¿supra, 39 Cal.3d at p. 318.)¿¿¿¿

Pursuant to¿Code Civ. Proc.¿§430.10(e), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action.¿ It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment.¿¿(Schifando¿v. City of Los Angeles¿(2003) 31 Cal.4th 1074, 1082,¿as modified (Dec. 23, 2003).)¿¿¿¿

Application – MSC demurs to the Complaint and presents a document for judicial notice to show that MSC was not involved in this matter. MSC further presents that the Court has authority to dismiss MSC from this matter under Cal. Code Civ. Proc. § 430.30(d)-(e) and Cuadros v. Superior Ct. (1992) 6 Cal.App.4th 671, 676 (reasoning that a misidentified party is a “defendant with a shatter-proof alibi” and should have no need to continue participating in the lawsuit).

Plaintiffs first argue that that they have presented sufficient facts to constitute a cause of action against MSC as they have alleged (1) each of the defendants were the “agent, servant, and employee” of the other defendants and were acting as such in the time of the subject crash (Complaint ¶ 6), (2) all defendants, including MSC, were the owner of Vehicle 2[1] (Complaint ¶ 10), and (3) that all defendants negligently entrusted, managed, and maintained Vehicle 2. Plaintiff also presents that they have alleged that MSC is liable for the negligent hiring and retention of Bailey to transport its container via ¶ 14 in the Complaint and that ¶ 19 of the Complaint alleges that MSC entrusted the vehicle to Bailey, Jr. and the entrustment was negligent. Paragraph 14 reads:

As a direct and proximate result of said negligence of each of the defendants, Plaintiff has sustained and incurred and is certain in the future to sustain and incur losses, injuries and damages itemized as follows:

On or about October 15, 2020, defendants, Mediterranean Shipping Company (USA) 27 Inc., EAN Holdings, LLC aka EAN Holdings, Inc. and DOES 1 through 10, inclusive, did provide to and entrust the use of a certain 2019 Dodge Ram 3500, California License No. 27947S2 to defendant Wilbert L. Bailey, Jr. and DOES 11 through 15, inclusive, for the purpose of operating the vehicle on the public streets and highways of California, and thereafter defendant Wilbert L. Bailey, Jr. and DOES 11 through 15, inclusive, did operate that vehicle with the knowledge, consent, and permission of defendants Mediterranean Shipping Company (USA) Inc., EAN Holdings, LLC aka EAN Holdings, Inc. 5 DOES 1 through 10, inclusive.

There are no allegations in the Complaint, and specifically the paragraphs cited by Plaintiff, regarding a “container.”

Plaintiffs next argue that MSC’s counsel, James A. Marissen (“Marissen”), attempts to rely on impermissible hearsay via (1) Marissen’s declaration, and (2) a request for judicial notice of DMV records. Plaintiffs believe that the Court may not accept the contents of the DMV records as true without authentication (no citation provided).

MSC argues that the Court is allowed to (1) take judicial notice of the DMV documents, and (2) judicially notice that MSC had no role in this alleged accident. MSC rebuts Plaintiff’s argument that the DMV records cannot be accepted as true absent authentication as authentication is inherent in the documents and Marissen’s declaration and that Cal. Evid. Code § 452 authorizes judicial notice of the fact that the subject vehicle does not belong to MSC and that MSC has no relationship with Bailey whatsoever. Finally, MSC argues that the Complaint fails to state a claim against MSC as there is no claim alleged against MSC regarding MSC independently and the Complaint is devoid of any allegations regarding MSC’s alleged ownership of the shipping container.

The document provided is a DMV Vehicle Registration Information printout with a seal from the State of California Department of Motor Vehicle stating that it is a certified document. The seal is stamped in a different color, indicating that the stamp was done by the agency. The document is for a 2019 Ram BTM, License No. 27947S2. The record was listed on July 07, 2022 and states that the date for the information is as of October 15, 2020. The printout reflects that registration is valid from May 31, 2019 to May 31, 2020 and the owner, issued on May 03, 2019, is Ean Holdings LLC. There are no other owners evidenced by the DMV record.

Plaintiffs’ evidentiary objections are only to Marissen’s declaration. However, the Court addresses the concerns Plaintiffs have voiced in their opposing papers.

Cal. Evid. Code § 452 allows the Court to take judicial notice of “[f]acts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute[]” (subdiv. (g)) and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (subdiv. (h)). In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.¿ (Cal. Code Civ. Proc. § 430.30(a).) Marissen evidences that the DMV Vehicle Registration Information printout was obtained via an Attorney’s Information Request to the DMV on June 15, 2022. (Decl. Marissen ¶ 4, Exh. A.) Thus, with Marissen’s declaration and the seal (likely a stamp) on the DMV Vehicle Information printout, the document is properly authenticated.

Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. (See Middlebrook-Anderson Co. v. Southwest Sav. & Loan Assn. (1971) 18 Cal.App.3d 1023, 1038 [96 Cal.Rptr. 338].) On a demurrer a court's function is limited to testing the legal sufficiency of the complaint. (Marina Tenants Assn. v. Deauville Marina Development Co. (1986) 181 Cal.App.3d 122, 127 [226 Cal.Rptr. 321].) “A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.” (Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879 [138 Cal.Rptr. 426].) The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. (See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 605 [176 Cal.Rptr. 824].)

Various tests or rules have been suggested to determine whether a court which has taken judicial notice of a document may take the further step of accepting its truth or adopting a proposed interpretation of its meaning.

When the court takes judicial notice of a document in its own files, or in those of another court, it has been said the court will not consider the truth of the document's contents unless it is an order, statement of decision, or judgment. (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 22 [221 [*375] Cal.Rptr. 349]; Ramsden v. Western Union, supra, 71 Cal.App.3d at p. 879.) Other cases have suggested the court may accept the truth of statements made by the party whose pleadings are being challenged but not statements of an opponent or third party. (Del E. Webb Corp. v. Structural Materials Co., supra, 123 Cal.App.3d at pp. 604-605. See also Able v. Van Der Zee (1967) 256 Cal.App.2d 728, 734 [64 Cal.Rptr. 481].)

A third approach, which provides maximum flexibility while still insisting disputed factual issues cannot be resolved on demurrer, proposes “judicial notice of matters upon demurrer will be dispositive only in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed.” (Cruz v. County of Los Angeles (1985) 173 Cal.App.3d 1131, 1134 [219 Cal.Rptr. 661].)

Correct results will be reached in most cases by application of either of the first two rules, but there may be occasional cases which can only be resolved properly by using the third approach. Although more subtle and for this reason requiring greater skill in its use, the third approach is in our opinion the most reliable in all cases. For example, there is a rule that a plaintiff is bound by an allegation in an earlier version of the complaint even though the allegation is omitted from later versions, but this rule is subject to the exception that a party will be allowed to correct a pleading by omitting an allegation made as a result of mistake or inadvertence. (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 836 [69 Cal.Rptr. 321, 442 P.2d 377].) The third approach accommodates both the rule and its exception.

This interpretation remains case precedent to this day. (See Williams v. Southern California Gas Co. (2009) 176 Cal.App.4th 591.) As such, the Court takes judicial notice of the DMV Vehicle Information printout and its contents as the information provided in the document is not subject to a factual dispute.

1. The fact that MSC was never the owner of the vehicle subject to this litigation, a

First, the DMV Vehicle Information Printout is concerning October 15, 2020. The Court cannot state that MSC was never the owner of the vehicle in question (Vehicle 2). Second, the Court cannot determine that MSC had no role in this alleged incident from the DMV document alone. All the Court can determine is that the judicially noticed record evidences that on October 15, 2020, MSC was not the owner of the Vehicle 2 as Ean is the recorded owner.

These types of phrases are repeated in Marissen’s declaration and Plaintiffs have objected to them:

Objection No. 1: Marissen Declaration ¶3 – “Neither MSC nor its affiliate companies were or are the owner of the subject vehicle, a 2019 Dodge Ram 3500 with a California License No. 27947S2.”

Objection No. 2: Marissen Declaration ¶5 – “Neither MSC nor its affiliate companies were involved with the hiring, training, employing, or entrustment of a vehicle for co-Defendant Wilbert L. Bailey, Jr.”

Objection No. 3: Marissen Declaration ¶6 – “Neither MSC nor its affiliate companies had any role in this alleged accident.”

These objections are sustained as, mentioned ante, the Court can only determine from the judicially noticed record that on October 15, 2020, MSC was not the owner of the Vehicle 2 as Ean is the recorded owner.

In the Opposition, Plaintiffs present that there is some sort of container owned by MSC involved in the incident. This is not alleged in the Complaint. Despite this, liability remains to MSC as there is a claim that Bailey, Jr. and Ean are agents, servants, or employees of MSC or vice versa.

As it appears new information has been amassed since the filing of the Complaint and liability for MSC remains, the Court believes that it is in the interests of justice to grant leave to amend to allow Plaintiffs to file a Complaint that reflects the Court’s order as well as provide clarification to MSC liability via the new information now available to both parties.

Defendant MSC Mediterranean Shipping Company (USA) Inc.’s Demurrer is SUSTAINED with leave to amend.

[1] Plaintiffs use the terms “rig” in their Opposition. The Complaint does not mention that Vehicle 2 is a “rig” and, as such, the Court does not take this term into consideration.