Judge: Stephen Morgan, Case: 22AVCV00548, Date: 2023-08-22 Tentative Ruling
Department A14 Tentative Rulings
If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at ATPDeptA14@LACOURT.ORG.
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Case Number: 22AVCV00548 Hearing Date: August 22, 2023 Dept: A14
Background
This is a motor vehicle personal
injury action. Plaintiffs Jonathan Arevalo (“Arevalo”) and Kevin Arevalo
Castillo (“Castillo” and collectively “Plaintiffs”) allege that on or about
November 16, 2020, they were passengers in a truck loaned/leased/rented by
Defendant DTLA Trucks Center, Inc. (“DTLA Trucks”) operated by Defendant Duane
Shawndell Butts (“Butts”) who worked for Defendant Hermes Moving and Storage
dba CalState Moving and Storage (“Hermes”) when Driver fell asleep and collided
with the guardrail located to the east of the highway twice. Plaintiffs present
that Castillo was ejected thorough the front windshield and Averalo was
partially ejected, causing both Plaintiffs injury to their body and emotional
pain and suffering.
On August 01, 2022, Plaintiffs
filed their Complaint, alleging four causes of action for: (1)
Negligence/Negligence Per Se (CCR § 1214; VC §§ 14601.1 and 21702) against
Butts; (2) Negligent Hiring/Retention/Supervision/Training against Hermes; (3)
Vicarious Liability against Hermes; and (4) Negligent Entrustment against DTLA
Trucks.
On September 12, 2022, Butts
filed his Answer.
On October 11, 2022, Plaintiffs
amended the fictious name of Doe 1 to LA Moving Centre Inc., a California
Corporation dba Calstate Moving and Storage (“LA Moving”). The causes of action
against Doe 1 are: Negligence/Negligence
Per Se (CCR § 1214; VC §§ 14601.1 and 21702), Negligent
Hiring/Retention/Supervision/Training, Vicarious Liability, and Negligent
Entrustment.
On October 28, 2022, Hermes filed
its Answer.
On July 13, 2023, Plaintiffs
amended the ficticious name of Doe 2 to Jamoliddin Sharifovich Yuldashev dba
Calstate Moving & Storage (“Yuldashev”). The causes of action against Doe 2
are: Negligence/Negligence Per Se (CCR §
1214; VC §§ 14601.1 and 21702), Negligent
Hiring/Retention/Supervision/Training, Vicarious Liability, and Negligent
Entrustment.
On July 28, 2023, Yuldashev filed
this Demurrer.
On August 09, 2023, Plaintiffs
filed their Opposition.
On August 17, 2023, Yuldashev
filed his Reply. “. . . [a]ll reply papers [shall be filed with the court and a
copy served on each party at least] at least five court days before the
hearing.” (Cal. Code Civ. Proc. § 1005(b).) “Section 1013, which extends the
time within which a right may be exercised or an act may be done, does not
apply to a notice of motion, papers opposing a motion, or reply papers governed
by this section.” (Ibid.) The hearing is set for August 22, 2023.
Accordingly, a Reply was to be filed by August 15, 2023. “No paper may be
rejected for filing on the ground that it was untimely submitted for filing. If
the court, in its discretion, refuses to consider a late filed paper, the
minutes or order must so indicate.” (Cal. Rules of Court, Rule 3.1300(d).) The
Court, in its discretion, does not consider the late-filed Reply.
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Legal Standard
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.¿¿(Ibid.)¿¿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 v. Kirwan (1985)
39 Cal.3d 311, 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 without leave to amend 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).)¿
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Discussion
Application – As an
initial matter, it appears Yuldashev is requesting judicial notice of two
documents, The Plaintiffs’ 12/12/22 Responses to Defendants’ Request for
Admissions, Set One (RFAs) and Correspondence dated July 18, 3023 from Dennis
Timbre, State Compensation Insurance Fund to Plaintiffs. Plaintiffs argue that
judicial notice is proper under Cal. Evid. Code §452(h) ) (“Facts 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.”)
Del E. Webb Corp. v.
Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-05 provides insight
to judicial notice of attached documents:
As a general rule in
testing a pleading against a demurrer the facts alleged in the pleading are
deemed to be true, however improbable they may be. (Griffith v. Department
of Public Works (1956) 141 Cal.App.2d 376 [296 P.2d 838].) The courts,
however, will not close their eyes to situations where a complaint contains
allegations of fact inconsistent with attached documents, or allegations
contrary to facts which are judicially noticed. ( Alphonzo E. Bell Corp. v.
Bell View Oil Syndicate (1941) 46 Cal.App.2d 684 [116 P.2d 786]; Chavez v.
Times-Mirror Co. (1921) 185 Cal. 20 [195 P. 666].) Thus, a pleading valid on
its face may nevertheless be subject to demurrer when matters judicially
noticed by the court render the complaint meritless. In this regard the court
passing upon the question of the demurrer may look to affidavits filed on
behalf of plaintiff, and the plaintiff's answers to interrogatories ( Dwan
v. Dixon (1963) 216 Cal.App.2d 260 [30 Cal.Rptr. 749]), as well as to the
plaintiff's response to request for admissions. ( Stencel Aero Engineering
Corp. v. Superior Court (1976) 56 Cal.App.3d 978 [128 Cal.Rptr. 691]; Able
v. Van Der Zee (1967) 256 Cal.App.2d 728 [64 Cal.Rptr. 481].)
CA(3a) (3a) The
court will take judicial notice of records such as admissions, answers to
interrogatories, affidavits, and the like, when considering a demurrer, only
where they contain statements of the plaintiff or his agent which are
inconsistent with the allegations of the pleading before the court. (See fn.
7.) The hearing on demurrer may not be turned into a contested evidentiary
hearing through the guise of having the court take judicial notice of
affidavits, declarations, depositions, and other such material which was filed
on behalf of the adverse party and which purports to contradict the allegations
and contentions of the plaintiff. ( Tyree v. Epstein (1950) 99
Cal.App.2d 361 [221 P.2d 1002].)
Yuldashev’s Demurrer hinges on
the presentation of attached documents which Yuldashev believes show that
Plaintiffs were employees of defendants and, as such, their remedy is with
worker’s compensation. However, Yuldashev does not specify which defendants
Plaintiff works for. The declaration of Yuldashev’s counsel, Miles L. Kavaller,
does not distinguish which defendants Plaintiff are employed with either. The
notice, however, states that Plaintiffs are employed with “Defendants HERMES
MOVING AND STORAGE, a California Corporation dba CALSTATE MOVING AND STORAGE
and LA MOVING CENTRE INC., a California corporation dba Calstate Moving and
Storage.” (Demurrer 2:5-7.) As a matter of semantics, such a statement leaves
Yuldashev’s presentation open to ambiguity as it combines a plural,
“defendants,” with a single company.
The Court notes that Yuldashev’s
cites to an unpublished opinion. These arguments are inappropriate. “Except as
provided in (b), an opinion of a California Court of Appeal or superior court
appellate division that is not certified for publication or ordered published
must not be cited or relied on by a court or a party in any other action.”
(Cal. Rules of Court, Rule 8.1115.)
The Court turns to the RFAs. The
RFAs admit that Plaintiffs were employees of LA Moving only. (See Exh. 1.)
Yuldashev’s next argument is that
the correspondence shows that Plaintiffs are covered by Defendants,’ again
unspecified, State Compensation Insurance Fund (“SCIF”). As Yuldashev cited,
“[a]lthough the existence of a document may be judicially noticeable, the truth
of statements contained in the document and its proper interpretation are not
subject to judicial notice if those matters are reasonably disputable. . . [t]his
includes the existence of a document. When judicial notice is taken of a
document, however, the truthfulness and proper interpretation of the document
are disputable.” (Demurrer 5:7-15 [citing Fremont Indemnity Co. v. Fremont
General Corp. (2007) 148 Cal.App.4th 97, 113-114].) Thus, Exh. 2 shows only
that there was communication between SCIF and Plaintiffs.
Taking the Complaint and the
judicially noticed documents into consideration, it appears that Plaintiffs
were at the time of the injury, performing service growing out of and incidental
to his or her employment and is acting within the course of his or her
employment; both LA Movers and Plaintiffs are subject to provisions under Cal.
Labor Code’s Worker’s Compensation and Insurance; the injury was not caused by
intoxication, he injury does not arise out of an altercation in which the
injured employee is the initial physical aggressor; the injury was not caused
by the commission of a felony or crime, and that the injury did not arise out
of voluntary participation in any off-duty recreational, social, or athletic
activity not constituting part of the employee’s work-related duties, except
where these activities are a reasonable expectancy of, or are expressly or
impliedly required by, the employment. (See Cal. Labor Code § 3600.) However,
when reading the Complaint liberally, it is unclear whether the injury is
proximately caused by the employment, either with or without negligence. (See ibid.)
The Complaint clearly alleges that the accident was cause by Butts falling
asleep while driving. (See Complaint, First Cause of Action.) Butts is alleged
to work for Hermes, not LA Moving. “. . . [The] Labor Code does not purport to
alter the correlative rights and liabilities of persons who do not occupy the
reciprocal statuses of employer and employee. Our workmen's compensation laws
were not designed to relieve one other than the employer from any liability
imposed by statute or by common law.” (Pacific Employers Ins. Co. v.
Hartford Steam Boiler Inspection & Ins. Co. (1956) 143 Cal.App.2d 646,
648.) In enacting amendment to Cal. Labor Code § 3601, making Workmen’s
Compensation Act exclusive remedy for injuries resulting from co-employee’s
negligence while “acting within the scope of his employment,” Legislature did
not intend to exempt from common-law liability retained in Cal. Labor Code
§ 3852, reserving to employee right of action for injuries against any person
other than employer, all employee actions causing harm to co-employees to
identical extent that common employer is exempted by Cal. Labor Code § 3600,
from civil liability for any injury sustained by employee “arising out of and
in the course of his employment.” (See SAALA v. MCFARLAND (1965) 63 Cal.2d 124
[generally].) It appears that common-law liability may exist as to all defendants
other than LA Moving.
Plaintiffs’ Opposition echoes
that California law does not limit the liability of a tortfeasor who does not
occupy he reciprocal status of employer-employee.
Plaintiffs’ Opposition presents
an argument related to Hermes, and not Yuldashev. (See Opposition at VI.) The
Court disregards this argument as it does not pertain to Yuldashev, the party
demurring.
As to Yuldashev, individually, it
is alleged that liability stems from ownership of the truck (i.e., Negligence
and Negligent Entrustment), Negligent Hiring/Retention/ Supervision/Training
and Vicarious Liability. (See Complaint [generally as to causes of actions
directed to Doe defendants].) There is no presentation as to Yuldashev’s status
(i.e., co-employee, separate entity, etc.). Rather, he is only addressed as Doe
2, a separate party from others in this action. Further, Yuldashev has been
served as a defendant who is separate and distinct from other parties.
Yuldashev’s argument that he is a
co-employee attempts to argue the material
allegations of the Complaint and, as such, is not appropriate for this
Demurrer. (Demurrer 11:21-22.)
At this stage, a general demurrer admits the truth of all
factual, material allegations properly pled in the challenged pleading,
regardless of possible difficulties of proof, see Legal Standard, and, as
presented, it appears that common-law liability may exist as to Yuldashev.
Accordingly, the Demurrer is OVERRULED.
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Conclusion
Defendant Jamoliddin Sharifovich
Yldashev’s Demurrer is OVERRULED.