Judge: Stephen Morgan, Case: 23AVCV00746, Date: 2023-12-12 Tentative Ruling
Case Number: 23AVCV00746 Hearing Date: December 12, 2023 Dept: A14
Background
This is a motor vehicle –
personal injury action. Plaintiff Alicia Lee (“Plaintiff”) alleges that on or
about July 23, 2021 at approximately 1:00 pm in the City of Palmdale, County of
Los Angeles, California, she was a passenger in Defendant Aischa Barnes
(“Barnes”)’s vehicle when an accident occurred, causing Plaintiff to sustain
injuries. Barnes is presented as an agent and/or employee of Defendant Uber
Technologies, Inc. (“Uber” and collectively “Defendants”) and was operating the
vehicle during the scope of her employment. Plaintiff alleges that the accident
was the result of Barnes’ negligent operation, control, ownership, and
maintenance of the vehicle and Uber is liable under the doctrine of respondeat
superior.
On July 17, 2023, Plaintiff filed
her Complaint, alleging two causes of action for: (1) Negligence against all
defendants; and (2) Employer Liability, Respondeat Superior as to Uber
only.
On August 23, 2023, Plaintiff
filed a Proof of Service of the Complaint on Uber. At this time, Barnes has not
been served.
On September 26, 2023,
Plaintiff’s counsel Carol D. Kellogg was relieved via a Motion to be Relieved
as Counsel.
On November 09, 2023, Uber filed
its Demurrer to the Complaint.
No Opposition has been filed. “All
papers opposing a motion so noticed shall be filed with the court and a copy served
on each party at least nine 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 scheduled for December 12, 2023. Accordingly, an Opposition was
due by November 29, 2023. Should an Opposition be filed, it is now untimely.
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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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Meet and Confer Requirement – Before filing a demurrer or a motion to strike, the demurring or
moving party is required to meet and confer with the party who filed the
pleading demurred to or the pleading that is subject to the motion to strike
for the purposes of determining whether an agreement can be reached through a
filing of an amended pleading that would resolve the objections to be raised in
the demurrer.¿ (Cal. Code Civ. Proc. §§ 430.41 and 435.5.)¿The Court notes that
this requirement has not been satisfied. Uber’s counsel, Molly H. Teas (“Teas”)
declares that (1) she sent a letter to Plaintiff via certified mail, but the
letter was undeliverable; and (2) she attempted to call Plaintiff, but
Plaintiff’s phone number is no longer in service. (Decl. Teas ¶¶ 4-8.) “A
determination by the court that the meet and confer process was insufficient
shall not be grounds to overrule or sustain a demurrer.” (Cal. Code Civ. Proc.
§ 430.41(a)(4).) Accordingly, the Court determines the Demurrer on its merits.
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Discussion
Application – Uber
demurs to both actions within the Complaint.
As to the First Cause of Action
(Negligence), Uber argues that the cause of action is uncertain as there is no
description of the accident location, the collision, and whether other vehicles
are involved and, as such, Uber cannot identify the existence of the incident
and whether Uber caused the incident. Uber also presents that there is no
information as to Plaintiff’s injuries, monetary damages claimed, and the
extent of Plaintiff’s treatment(s).
“ ‘The elements of a cause of
action for negligence are well established. They are “(a) a legal duty to use
due care; (b) a breach of such legal duty; [and] (c) the breach as the
proximate or legal cause of the resulting injury.” ’ ” (Ladd v. County of
San Mateo (1996) 12 Cal.4th 913, 917.)
As alleged, the First Cause of
Action (Negligence) states, as to Uber, (1) that Uber connects riders to
drivers, controls all aspects of the monetary relationship between the two, and
solicits and retains thousands of drivers (Complaint ¶ 9); (2) Uber holds
insurance for its agents, including Barnes (Complaint ¶ 11); (3) Uber employed
Barnes (Complaint ¶ 12); and the accident occurred during Barnes’ scope of
employment with Uber (Complaint ¶¶ 10, 12-13). Paragraphs 15 to 18 broadly
discuss Plaintiff’s injuries in the contest of the “direct and proximate result
of the conduct of defendants.” (See Complaint ¶¶ 15-17.)
Notably missing is a discussing
of a legal duty to use due care as to either defendant. Further, without a
description of the incident, all allegations discussing injuries as a “direct
and proximate result of the conduct of defendants” are conclusory as no
reasonable inference can be drawn for the pleadings which simply allege that an
accident occurred. (See Complaint ¶¶ 1-18.)
With regard to Uber’s damages
argument, language alleging that Plaintiff has been injured is sufficient for
the pleadings stage. The specifics of damages can be resolved through the
discovery process.
As to the Second Cause of Action
(Employer Liability, Respondeat Superior), Uber argues that the
Complaint lacks specificity and essential supporting facts. Specifically, Uber
believes that the Complaint: (1) uses conclusory statements to allege fault on
the part of Uber, (2) there is no description or identification of any
procedure or protocol allegedly instituted by Uber, (3) there are no
allegations as to what violations occurred, (4) there are no facts to support
the claim that Uber negligently hired any employee, (5) no employee is
identified in this cause of action, and (6) no company vehicle is identified in
this cause of action.
“The doctrine of respondeat
superior imposes vicarious liability on an employer for the torts of an
employee acting within the scope of his or her employment, whether or not the
employer is negligent or has control over the employee.” (Jeewarat v. Warner
Bros. Entertainment Inc. (2009) 177 Cal.App.4th 427, 434.) Under respondeat
superior an employer is not vicariously liable for an employee’s malicious
or tortious conduct if the employee “substantially deviates from the employment
duties for personal purposes.” (Id. at 435.) A causal nexus or
reasonable relationship between an employee’s employment duties and the injury-inducing
conduct is essential to respondeat superior; the injury-causing incident
must be an outgrowth of the employment such that the tort was foreseeable from
the employee’s duties. (Ibid.)
While the Second Cause of Action
is labeled as Employer Liability, Respondeat Superior, the content of
the Second Cause of Action is such that it is unclear whether Plaintiff is
pursuing a cause of action based on the doctrine of respondeat surperior
or negligence, such as negligent hiring, retention, etc. Specifically,
Plaintiff alleges that (1) “[t]he wrongful conduct described above was directly
attributable wholly or in substantial part to the negligent or wrongful acts of
Defendant Employers as set forth herein” (Complaint ¶ 20), (2) “[t]he incident
was a result of a violation of safety procedures, and defective protocol
standards, instituted by Defendant, UBER TECHNOLOGIES, INC., a ‘Delaware
Corporation, and Does 1 through 100, inclusive, who engaged in negligent
hiring, management, training, supervision and retention of their employee(s)”
(Complaint ¶ 21), (3) “[i]t was entirely foreseeable that the Defendants’
employees operating company| vehicles, who were improperly trained and failed
to follow standard safety protocols when operating company vehicles , created a
dangerous condition so as to cause injury to Plaintiff” (Complaint ¶ 22). This
type of language, which mixes the doctrine respondeat surperior and the
principles of negligence continues throughout the Second Cause of Action making
it impossible for the Court to discern which standard to apply for the purposes
of this Demurrer. (See Complaint ¶¶ 23-27.) Thus, as pled, the second cause of
action is uncertain as defined in Cal. Civ. Code § 430.10 as Uber cannot reasonably
determine what issues must be admitted or denied, or what counts or claims are
directed against him or her. (See Weil & Brown, Civil Procedure Before
Trial (The Rutter Group) § 7:85.)
The Court notes that Plaintiff
includes the same conclusory language describing causation as in the First
Cause of Action.
Accordingly, the Demurrer to the
Complaint is SUSTAINED.
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Leave to Amend – Leave to amend
must be allowed where there is a reasonable possibility of successful
amendment. (Goodman v. Kennedy¿(1976), 18 Cal.3d 335, 348.) While under
California law leave to amend is liberally granted, “leave to amend should not
be granted where, in all
probability, amendment would be futile.” (Vaillette v. Fireman's Fund Ins.
Co. (1993), 18 Cal. App. 4th 680, 685).¿ “A trial court does not abuse its
discretion when it sustains a demurrer without¿leave to amend¿if either (a) the
facts and the nature of the claims are clear and no liability exists, or (b) it
is probable from the nature of the defects and previous unsuccessful attempts
to plead that the plaintiff cannot state a claim.” (Cantu v. Resolution
Trust Corp.¿(1992)¿4 Cal.App.4th 857, 889.)¿¿¿¿
While Uber provides the legal standard for
leave to amend, there is no argument related to the legal standard. Rather,
Uber states in its conclusion: “Based on the foregoing, Defendant
Uber respectfully requests the Court sustain this Demurrer to Plaintiff’s
complaint for negligence and respondeat superior, without leave to
amend.” (Demurrer 7:5-7.)
The Court declines to do so as
there is a reasonable possibility that an amendment will successfully rectify
the deficiencies within the Complaint.
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Conclusion
Defendant Uber Technologies,
Inc.’s Demurrer is SUSTAINED with leave to amend.
Plaintiff Alicia Lee is to file
an amended pleading within 30 days of this Court Order.