Judge Thomas D. Long, Case Number: 22STCV27209, Date: 2024-11-19 Tentative Ruling

On August 22, 2022, Plaintiffs filed this action against Defendants Gloria Corrales, Pilot Travel Centers LLC (erroneously sued as Pilot Corporation dba Pilot Flying J Travel Center) (“Pilot”), Tandy Motley (formerly Driver No. 1), and others.

On March 25, 2024, Corrales and Motley each filed a demurrer. On April 16, 2024, Pilot also filed a demurrer. On June 26, 2024, Corrales filed an amended 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, accepting the alleged facts as true. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)

Corrales’s request for judicial notice is denied. The documents are either irrelevant or not proper subjects of judicial notice. Corrales appears to rely on the truth of the deposition testimony in another action, and the Court cannot take judicial notice of the truth of the contents. (See Amended Demurrer at pp. 14-17.)

The 4AC’s second (negligence), seventh (fraudulent concealment), eighth (intentional misrepresentation), and ninth (negligent misrepresentation) causes of action are alleged against Gloria Corrales.

A. Plaintiffs Do Not Sufficiently Allege a Duty Owed to Them (Negligence – Second Cause of Action).

A cause of action for negligence requires (1) a legal duty owed to the plaintiff to use due care, (2) breach of that duty, (3) causation, and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)

Corrales argues that Plaintiffs again fail to allege an actionable duty. (Amended Demurrer at p. 12.) Plaintiffs allege that Corrales, a Sales and Show Support Specialist for Brinks, advised them to understate the value of their property on the Pickup Manifests and “sold Plaintiffs on the high level of protection that Brinks’ armed transport services would provide.” (4AC ¶¶ 29, 40.) Corrales therefore “had a duty to fully inform Plaintiffs of the consequences of understating their Property value under the terms of contract, to the extent they apply, and had a duty to fully inform Plaintiffs of the lax security that would be exercised by the Brinks drivers in handling Plaintiffs’ property.” (4AC ¶ 40.)

“[T]he complaint must allege facts sufficient to show a legal duty on the part of the defendant to use due care . . . . The duty of care is always related to some circumstance of time, place and person.” (Bellah v. Greenson (1978) 81 Cal.App.3d 614, 619.) Allegations about Corrales advising, or failing to advise, Plaintiffs of the consequences of the contract do not state facts establishing a legal duty.

Plaintiffs argue that there was a special duty owed because “Corrales in this case undertook voluntarily to tell customers what they should or could fill in on the Pickup Manifest” and “Corrales voluntarily assumed a duty to instruct Plaintiffs concerning the Pickup Manifest when she did not have to do so, and Plaintiffs relied on her. Having undertaken that duty, she had a responsibility to perform it in a non-negligent manner.” (Opposition at pp. 9-10.) Like Plaintiffs’ opposition to Corrales’s prior demurrer, the argument about Corrales’s agency is premised on cases involving the duty of disclosure by insurance agents. (Opposition at pp. 6-13; see Bock v. Hansen (2014) 225 Cal.App.4th 215, 230; Desai v. Farmers Ins. Exchange (1996) 47 Cal.App.4th 1110, 1114-15, 1119; Paper Savers, Inc. v. Nacsa (1996) 51 Cal.App.4th 1090, 1096-1098.) Corrales is a Sales and Show Support Specialist for Brinks, not an insurance agent. (4AC ¶ 37.)

B. Plaintiffs Do Not Allege Fraud with Particularity (Seventh, Eighth, Ninth Causes of Action).

Corrales argues that Plaintiffs do not allege that her statements were material to inducement or that Plaintiffs justifiably relied on any statements. (Amended Demurrer at pp. 18-21.)

“The essential elements of a count for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage. [Citations.] The essential elements of a count for negligent misrepresentation are the same except that it does not require knowledge of falsity but instead requires a misrepresentation of fact by a person who has no reasonable grounds for believing it to be true. [Citations.]” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-231.) “Causes of action for intentional and negligent misrepresentation sound in fraud and, therefore, each element must be pleaded with specificity.” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166.) “‘This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.’ [Citation.]” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

Fraud based on concealment requires that “(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 310-311.)

Plaintiffs allege that Corrales “advised multiple Plaintiffs to understate their value on the Pickup Manifests in order to save money, because the cost of shipping would be too expensive if they declared the full value of their goods.” (4AC ¶ 29.) This does not allege a false statement. The allegations that Corrales “represented to certain Plaintiffs that they should claim the minimum insurance value, [and] it would be less expensive and the protection was the same” does not allege the substance and manner of the misrepresentation with particularity. (4AC ¶ 95.) Allegations about Corrales’s intent to induce and Plaintiffs’ reliance are also conclusory. (See 4AC ¶¶ 96, 104-105.) Additionally, a party cannot justifiably rely on representations that are contradicted by the governing contract. (See Hadland v. NN Investors Life Ins. Co. (1994) 24 Cal.App.4th 1578, 1588-1589.) For the reasons discussed with the negligence claim, Plaintiffs also do not sufficiently allege a duty to disclose for fraudulent concealment (seventh cause of action).

The demurrer is sustained. Because Plaintiffs have not shown how they can amend the complaint to remedy the deficiencies, no further leave to amend is granted.

Tandy Motley (formerly Driver No. 1) demurs to the second (negligence) and fourth (conversion) causes of action.

A. Plaintiffs Do Not Sufficiently Allege a Duty Owed to Them (Negligence – Second Cause of Action).

Motley, an employee of Brinks, argues that Plaintiffs do not plead facts showing a statutory duty. (Demurrer at pp. 9-11.) An employee or agent of a corporation does not owe a duty to a third-party plaintiff with whom the corporation enters a business contract. (See Sanchez v. Lindsey Morden Claims Services, Inc. (1999) 72 Cal.App.4th 249, 251-255; Gay v. Broder (1980) 109 Cal.App.3d 66, 75.)

Plaintiffs argue that Motley owed them a duty of care as a bailee. (Opposition at pp. 6-7.) “A depositary for hire must use at least ordinary care for the preservation of the thing deposited.” (Civ. Code, § 1852.) Here, however, Plaintiffs contracted with Brinks as a bailee, not Motley.

Motley also argues that the damages alleged in this cause of action should be barred by the economic loss rule. (Demurrer at pp. 7-8.) “Quite simply, the economic loss rule ‘prevent[s] the law of contract and the law of tort from dissolving one into the other.’” (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988 (Robinson Helicopter).) However, tort damages may be permitted when the breach of contract is accompanied by a tort. (Id. at pp. 989-990.) To plead around the economic loss rule, a party must plead the existence of a duty that arises independent of any contractual duty and independent injury, other than economic loss, that arises from the breach of that duty. (Id. at pp. 988-991.)

The 4AC does not contain facts establishing any duty owed by Motley individually. Plaintiffs allege that as a result of Motley’s negligence, “Plaintiffs have suffered losses collectively in the amount of approximately $100 million” and lost profits due to “the physical loss of Plaintiffs’ jewelry and gemstones.” (4AC ¶¶ 41-42.) The 4AC does not distinguish between the harms caused by Motley’s alleged negligence and the harms caused by Brinks breaching the contract to securely transport the items. (See 4AC ¶¶ 41-42.) Because Plaintiffs are seeking tort damages from Motley based on another party’s breach of contract, the demurrer is sustained.

Motley argues that Plaintiffs never allege that Motley specifically intended to dispose of Plaintiffs’ property. (Demurrer at pp. 12-13.) Conversion requires (1) plaintiff’s ownership or right to possession of personal property, (2) defendant’s disposition of the property inconsistent with plaintiff’s rights; and (3) resulting damages. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “To prove a cause of action for conversion, the plaintiff must show the defendant acted intentionally to wrongfully dispose of the property of another.” (Duke v. Superior Court (2017) 18 Cal.App.5th 490, 508.)

Plaintiffs allege that Brinks “substantially interfered with Plaintiffs’ ownership and right to possession of that property by failing to deliver the property back to Plaintiffs at the Pasadena jewelry show and by failing to return that property to Plaintiffs in response to their demands for its return.” (4AC ¶ 54.) There are no specific allegations about Motley’s intentional interference.

“Plaintiffs concede that their allegations of intentional or wrongful dispossession of property against Motley are wanting,” but they contend that they can satisfactorily amend. (Opposition at pp. 8-9.) According to Plaintiffs, “Motley passed up the chance to stop 15 miles earlier at a truck stop with roving security in order to drive to the Flying J,” “parked there, at 2:00 a.m., without backing up to a lightpost, or a fence, or another truck so as to prevent access to the rear door of the trailer,” “stopped to take the half-hour break mandated every eight hours, even though his entire trip was less than seven hours, “did not wake up his co-driver,” and “ate his meal in the truck stop, out of sight of his truck, when he could have brought his food back to the truck.” (Ibid.) Plaintiffs argue that these facts “point to the very reasonable inference that Motley had a part in intentionally depriving Plaintiffs of their property, and was not a mere negligent bailee.” (Id. at p. 9.)

These additional facts do not show that Motley acted intentionally to wrongfully dispose of Plaintiffs’ property. “Not every failure to deliver property to the rightful owner constitutes a conversion. [Citation.] ‘To establish a conversion, it is incumbent upon the plaintiff to show an intention or purpose to convert the goods and to exercise ownership over them, or to prevent the owner from taking possession of the property.’ [Citation.]” (Spates v. Dameron Hospital Assn. (2003) 114 Cal.App.4th 208, 222.)

The demurrer is sustained. Because Plaintiffs have not shown how they can amend the complaint to remedy the deficiencies, no further leave to amend is granted.

Pilot demurs to the sixth cause of action for premises liability, the only cause of action alleged against it.

California law requires landowners to maintain land in their possession and control in a reasonably safe condition. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 (Ann M.).) The liability of landowners for injuries to people on their property is governed by general negligence principles. (Pineda v. Ennabe (1998) 61 Cal.App.4th 1403, 1407 (Pineda).) A cause of action for negligence requires (1) a legal duty owed to the plaintiff to use due care, (2) breach of that duty, (3) causation, and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) The existence of a legal duty is a question for the court to determine, and “foreseeability is a ‘crucial factor’ in determining the existence and scope of a legal duty.” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 237, citing Ann M., supra, 6 Cal.4th at pp. 674, 676 (Delgado).)

Like with its prior demurrers, Pilot argues that it is not liable for third parties’ unforeseeable criminal conduct. (Demurrer at pp. 3-11.) “[A] high degree of foreseeability is required in order to find that the scope of a landlord’s duty of care includes the hiring of security guards. . . . [T]he requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents of violent crime on the landowner’s premises. To hold otherwise would be to impose an unfair burden upon landlords and, in effect, would force landlords to become the insurers of public safety, contrary to well established policy in this state.” (Ann M., supra, 6 Cal.4th at p. 679, footnote omitted.) “Heightened foreseeability is satisfied by a showing of prior similar criminal incidents (or other indications of a reasonably foreseeable risk of violent criminal assaults in that location) and does not require a showing of prior nearly identical criminal incidents. (Delgado, supra, 36 Cal.4th at p. 245.)

Like the prior complaints, the 4AC alleges that “[t]he immediate area of the Flying J Truck Stop has a known history of property thefts, and there have been prior incidents of thefts of personal property, including from vehicles. In just the four months immediately preceding the theft from this Brinks vehicle, there were at least four known thefts of property in the area and four known instances of physical assault.” (TAC ¶ 71.)

Plaintiffs allegations of other criminal activity do not allege “prior similar incidents of violent crime on the landowner’s premises.” (Ann M., supra, 6 Cal.4th at p. 679.) Plaintiffs allege theft of a golf cart in 2019; a bomb threat in April 2020; theft of an iPod, a necklace, cash kept in a center console, and credit card information from a vehicle; a stolen truck; stolen catalytic converters; a tractor-trailer cargo theft five years ago; money stolen from a vehicle; stolen debit and credit card information; shoplifting; grand theft of a vehicle; violations of weapons laws; assault; and trespass. (4AC ¶¶ 72-74.)

Plaintiffs also allege that “another large truck stop in the same geographical area, Lebec, California, that also has hundreds of parking spots, employs security guard patrols to discourage crime at their locations, as well as such other security measures as adequate lighting.” (4AC ¶ 71.) This relates to a non-party location and does not allege Pilot’s knowledge of those incidents at the other location.

The demurrer is sustained. Plaintiffs have had several prior opportunities to amend, and they have failed to cure the deficiencies. Accordingly, no further leave to amend is granted.

Gloria Corrales’s demurrer is SUSTAINED without leave to amend. The Court orders Gloria Corrales DISMISSED from this action.

Tandy Motley’s demurrer is SUSTAINED without leave to amend. The Court orders Tandy Motley DISMISSED from this action.

Pilot Travel Centers LLC’s demurrer is SUSTAINED without leave to amend. The Court orders Pilot Travel Centers LLC DISMISSED from this action.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court