Judge: Steven A. Ellis, Case: 23STCV01537, Date: 2023-08-03 Tentative Ruling
Case Number: 23STCV01537 Hearing Date: October 17, 2023 Dept: 29
TENTATIVE
The Demurrer of Defendant Tikero
Group Inc. to the Fourth Cause of Action in the SAC is SUSTAINED without leave
to amend.
The Motion of Defendant Tikero
Group Inc. to Strike the Fourth Cause of Action in the SAC is GRANTED without
leave to amend.
The Motion of Defendant Tikero
Group Inc. to Strike the Sixth Cause of Action in the SAC is DENIED.
The Motion of Defendant Tikero
Group Inc. to Strike the punitive damages allegation in the prayer for relief
in the SAC (item 6) is GRANTED as to Defendant Tikero Group Inc. with LEAVE TO
AMEND.
Background
This action
arises out of an alleged automobile accident on July 5, 2021. Plaintiff Okito
Pole (“Plaintiff”) filed the complaint in this action on January 24, 2023, and
the First Amended Complaint (“FAC”) two days later, on January 26, 2023. In the
FAC, Plaintiffs asserted a total of six causes of action against 11 named
defendants and 100 Doe defendants.
On June 30,
2023, Defendant Tikero Group Inc. (“Defendant”) filed a demurrer and motion to
strike. On August 3, 2023, the Court granted the motion to strike in part, ruling
(among other things) that in the first, third, fourth, and fifth sixth causes of
the FAC, Plaintiff had not properly identified which cause(s) of action were
being asserted against which defendant(s). The Court granted leave to amend and,
in light of the ruling on the motion to strike, deemed Defendant’s demurrer moot.
On August 15,
2023, Plaintiff filed a Second Amended Complaint (“SAC”). In the SAC,
Plaintiffs again asserts six causes of action (for negligence; negligent
infliction of emotional distress; negligence; negligence per se; strict
products liability; and negligent hiring retention and supervision negligence
per se) against the same defendants (Nitin Khanna; Tikero Group Inc.; Uber USA,
LLC; Uber Technologies, Inc.; Rasier, LLC; Rasier-CA, LLC; Raiser; Portier,
LLC; Uber Freight, LLC; Uber Black; Uber; and Does 1 through 100.) Defendant is
named as a defendant in the First, Second, Fourth, and Sixth causes of action.
Defendant
filed a Demurrer and Motion to Strike on September 19 and September 20, 2023.
In the Demurrer, Defendant challenges the Fourth Cause of Action (for
negligence per se). In the Motion to Strike, Defendant challenges the entirety
of the Fourth Cause of Action (for negligence per se) and the Sixth Causes of
Action (for negligent hiring, retention, and supervision), as well as the
punitive damages allegations against Defendant in the SAC.
Plaintiff has
filed no opposition to the Demurrer or the Motion to Strike.
On October
10, 2023, the Court granted the motion of Defendants Uber Technologies, Inc.
and Uber USA, LLC to compel arbitration.
Preliminary
Matters
Defendant requests that the Court
take judicial notice of the FAC, the SAC, and the Court’s order of August 3,
2023. The request is GRANTED.
Defendant has presented
sufficient evidence of compliance with the statutory meet-and-confer
requirements for a demurrer and motion to strike.
Legal
Standard
A demurrer may be brought when a party contends that a
“pleading does not state facts sufficient to constitute a cause of action.” (Code
Civ. Proc., § 430.10, subd. (e).) The “demurrer tests the legal sufficiency of the
allegations in a complaint.” (Lewis v.
Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) The asserted defects in the
pleading must appear
on the face of the complaint or in matters outside the pleading that are
judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)
In ruling on a demurrer, the court accepts the truth of all
material facts properly pleaded but not contentions or conclusions of law. (Aubry
v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967; Daar v. Yellow
Cab Co. (1967) 67 Cal.2d 695, 713; Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)¿The court must
also read the allegations in a complaint liberally and in context. (Taylor
v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.)
With regard to a motion to strike, any party, within the
time allowed to respond to a pleading may serve and file a notice of motion to
strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1).)
The court may, upon a motion or at any time in its discretion and upon terms it
deems proper: (1) strike out any irrelevant, false, or improper matter
inserted in any pleading; or (2) strike out all or any part of any pleading not
drawn or filed in conformity with the laws of California, a court rule, or an
order of the court. (Code Civ. Proc., § 436; Stafford v. Shultz (1954)
42 Cal.2d 767, 782.)
Discussion
Demurrer
In the SAC, Plaintiff asserts a cause of action against
Defendant for negligence (First Cause of Action) and for negligence per se
(Fourth Cause of Action). Defendant demurs on the ground that negligence per se
is not an independent cause of action.
“The essential elements of a cause of action for
negligence are: (1) the defendant's legal duty of care toward the plaintiff;
(2) the defendant's breach of duty—the negligent act or omission; (3)¿injury to
the plaintiff as a result of the breach—proximate or legal cause; and (4)
damage to the plaintiff.” (Leyva v. Garcia (2018) 20 Cal.App.5th 1095,
1103.) Owing a duty of care to the plaintiff is an indispensable prerequisite
to the imposition of liability for negligence. (Richards v. Stanley
(1954) 43 Cal.2d 60, 63.) A duty is an “obligation, recognized by the law,
requiring the actor to conform to certain standard of conduct, for the
protection of others against unreasonable risks.” (Hilyar v. Union Ice Co.
(1955) 45 Cal. 2d 30, 36-37.)
“[T]he
doctrine of negligence per se is not a separate cause of action.” (Turner v.
Seterus, Inc. (2018) 27 Cal.App.5th 516, 534; accord Jones v. Awad (2019) 39
Cal.App.5th 1200, 1210; Millard v.
Biosources, Inc. (2007) 156
Cal.App.4th 1338, 1353, fn.2; Quiroz v. Seventh Ave. Center (2006)
140¿Cal.App.4th 1256, 1285.) Rather, the doctrine “creates an evidentiary
presumption that affects the standard of care in a cause of action for
negligence.” (Turner, supra, 27 Cal.App.5th at p. 534.) It “codifies the
rule that a presumption of negligence arises from the violation of a statute
which was enacted to protect a class of persons of which the plaintiff is a
member against the type of harm that the plaintiff suffered as a result of the
violation. (Quiroz, supra, 140¿Cal.App.4th at p. 1285.)
Accordingly, Defendant’s Demurrer to the Fourth Cause of Action in the
SAC is SUSTAINED. As Plaintiff has offered no basis for the Court to conclude
that the defect in this cause of action may be cured, the Demurrer is sustained
WITHOUT LEAVE TO AMEND.
Motion
to Strike
Defendant
makes three arguments in its Motion to Strike.
First,
Defendant argues that the Fourth Cause of Action (for negligence per se) is duplicative
of the First Cause of Action (for negligence) and is therefore redundant and
improper. As the Court has already sustained Defendant’s Demurrer to the Fourth
Cause of Action, without leave to amend, based on a similar or identical legal
argument, the Court GRANTS the motion to strike the Fourth Cause of Action.
As Plaintiff has offered no basis for the Court to conclude that the
defect in the Fourth Cause of Action may be cured, the Motion to Strike the
Fourth Cause of Action is granted WITHOUT LEAVE TO AMEND.
Second,
Defendant argues that the Sixth Cause of Action (for negligent hiring,
retention, and supervision) is also duplicative of the First Cause of Action
(for negligence) and is therefore redundant and improper. In contrast to
negligence per se, however, negligent hiring, retention, or supervision is a
separate tort. (See Doe v. Capital Cities (1996) 50 Cal.App.4th 1038,
1054.) It is of course within the same family of torts as general negligence,
but it has unique and independent elements: (1) that defendant hired an employee;
(2) that the employee was or became unfit to perform the work for which the
employee was hired; (3) that the employer knew or should have known of the
unfitness and that the unfitness created a particular risk of harm to others;
that the employee’s unfitness harmed plaintiff; and (5) that the defendant’s
negligence in hiring, supervision, or retaining the employee was a substantial
factor in causing plaintiff’s harm. (See D.Z. v. Los Angeles Unified Sch.
Dist. (2019) 35 Cal.App.5th 210, 229-230; Lopez v. Watchtower Bible
& Tract Society of New York (2016) 246 Cal.App.4th 566, 591; Phillips
v. TLC Plumbing, Inc. (2009) 172
Cal.App.4th 1133, 1139-1140; CACI No. 426.) Accordingly, Defendant’s motion to
strike the Sixth Cause of Action for redundancy is DENIED.
Third,
Defendant argues that there are no allegations in the SAC sufficient to support
a claim for punitive damages against Defendant. To plead a claim for punitive damages under Civil Code section 3294, a
plaintiff must allege specific facts showing that the defendant
has been guilty of malice, oppression or fraud. (College Hosp., Inc. v.
Super. Ct. (1994) 8 Cal.4th 704, 721; Smith v. Super. Ct. (1992) 10
Cal.App.4th 1033, 1042.) The basis for punitive damages must be pleaded with particularity;
conclusory allegations devoid of any factual assertions are insufficient. (Ibid.;
see also Anschutz Entertainment Group, Inc. v. Snepp (2009) 171
Cal.App.4th 598, 643.) A motion to strike may lie where the facts alleged, if
proven, would not support a finding that the defendant acted with malice, fraud
or oppression. (Turman v. Turning Point of Central California (2010) 191
Cal. App. 4th 53, 63.)
“Malice” is defined in
section 3294, subdivision (c)(1) as “conduct which is intended by the defendant
to cause injury” or “despicable conduct which is carried on by the defendant
with a willful and conscious disregard of the rights or safety of others.”
“Oppression” is defined in section 3294(c)(2) as “despicable conduct subjecting
a person to cruel and unjust hardship in conscious disregard of that person’s
rights.” The term “despicable” has been defined in the case law as actions that are “base,”
“vile,” or “contemptible.” (See, e.g., Shade Foods, Inc. v. Innovative
Products Sales & Marketing, Inc. (2000) 78 Cal. App. 4th 847, 891.)
To show that a defendant acted
with “willful and conscious disregard of the rights or safety of others,” it is
not enough to establish negligence, gross negligence or even recklessness. (Dawes
v. Super. Ct. (1980) 111 Cal. App. 3d 82, 87.) Rather, a plaintiff must
allege facts demonstrating that “the defendant acted in such an outrageous and
reprehensible manner that the jury could infer that he [or she] knowingly
disregarded the substantial certainty of injury to others.” (Id. at p. 90).
Further, the allegations must be sufficient for a reasonable jury to conclude
that defendant’s conduct was “despicable,” defined as “base, vile or
contemptible.” (College Hosp., supra, 8 Cal. 4th at p. 725.)
In addition, where, as appears
to be the case here, a plaintiff alleges a punitive damages claim against a corporate
entity defendant based on the acts of one or more of its employees, the claim is
governed by Civil Code section 3294, subdivision (b). That subdivision
provides: “An employer shall not be liable for [punitive] damages … based upon
acts of an employee of the employer, unless the employer had advance knowledge
of the unfitness of the employee and employed him or her with a conscious
disregard of the rights or safety of others or authorized or ratified the
wrongful conduct for which the damages are awarded or was personally guilty of
oppression, fraud, or malice. With respect to a corporate employer, the advance
knowledge and conscious disregard, authorization, ratification or act of
oppression, fraud, or malice must be on the part of an officer, director, or
managing agent of the corporation.”
Plaintiff’s
allegations in support of the punitive damages claim against Defendant in the
SAC do not meet these standards. At most, Plaintiff alleges claims based on
negligence, and then adds conclusory and general allegations of oppression,
fraud, or malice. (See, e.g., SAC, ¶¶ 168, 214.) This is not sufficient.
Accordingly, the motion to strike the claim for punitive damages against
Defendant in the prayer for relief is GRANTED.
The
Court will, with some hesitation, grant Plaintiff LEAVE TO AMEND as to the
punitive damages allegations against Defendant. Weighing against the grant of
leave to amend are the facts that Plaintiff has had three opportunities to
plead a claim for punitive damages against Defendant and has not yet done so;
that Plaintiff has not requested leave to amend; and that Plaintiff has not filed
an opposition or otherwise shown how Plaintiff would meet the applicable
pleading standard for a punitive damages claim. Weighing in favor of leave to
amend are that the deficiency is one of specificity, not any barrier or
applicable defense otherwise appearing on the face of the pleading. (Cf. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not
“sustain a demurrer without leave to amend if there is any reasonable
possibility that the defect can be cured by amendment”].)
Plaintiff is advised that this may be the last opportunity Plaintiff
receives to amend the complaint to state a claim for punitive damages against
Defendant Tikero Group Inc. Plaintiff should not assume that any further request
for leave to amend will be granted.
Conclusion
The Demurrer of Defendant Tikero
Group Inc. to the Fourth Cause of Action in the SAC is SUSTAINED without leave
to amend.
The Motion of Defendant Tikero
Group Inc. to Strike the Fourth Cause of Action in the SAC is GRANTED without
leave to amend.
The Motion of Defendant Tikero
Group Inc. to Strike the Sixth Cause of Action in the SAC is DENIED.
The Motion of Defendant Tikero
Group Inc. to Strike the punitive damages allegation in the prayer for relief
in the SAC (item 6) is GRANTED as to Defendant Tikero Group Inc. Plaintiff is GRANTED
LEAVE TO AMEND within 21 days of notice of this order.
If Plaintiff does not amend,
Defendant Tikero Group Inc. is ORDERED to respond to the SAC within 21 days after
the expiration of the period in which Plaintiff is permitted to amend.
Moving party to give notice.