Judge Timothy B. Taylor, Case 37-2022-00044823-CU-PA-CTL 2023-10-13 Tentative Ruling

Judge: Timothy B. Taylor, Case: 37-2022-00044823-CU-PA-CTL, Date: 2023-10-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 12, 2023

10/13/2023 01:30:00 PM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

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Civil - Unlimited PI/PD/WD - Auto Demurrer / Motion to Strike 37-2022-00044823-CU-PA-CTL WALTER VS SHOAF [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 06/16/2023

Tentative Rulings on Demurrer to FAC, and Motion to Strike Portions of Same

Walter v. Shoaf, Case No. 2022-44823 Oct. 13, 2023, 1:30 p.m., Dept 72 1. Overview and Procedural Posture.

This is a wrongful death case arising out of an accident on June 7, 2022 in Kearny Mesa. Plaintiffs are the surviving children of Cassandra May, who was killed when defendant Shoaf ran a red light while driving a new Tesla. The three count complaint was filed in November of 2022. A GAL has been appointed. ROA 4-5.

Defendants Hertz and Shoaf demurred to one count of the complaint, and sought orders striking certain portions thereof. ROA 27-30. Plaintiffs decided to amend rather than oppose the demurrer. ROA 40.

Uber and Rasier have answered the FAC (ROA 48-50), but Hertz and Shoaf once again challenge the FAC by demurrer and motion to strike.* ROA 46-47. Plaintiff agreed to the striking of some allegations of the FAC (ROA 51), but otherwise opposed the pleading challenges. ROA 55-57. Hertz and Shoaf filed reply. ROA 53-54. The court has reviewed the papers, and no further submissions are authorized in connection with these pleading challenges.

The case is set for trial in April of 2024. ROA 35-39.

2. Applicable Law.

A. A general demurrer may only be sustained if the complaint fails to state a cause of action under any possible legal theory. Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 810. Properly pleaded facts must be accepted as true, but not contentions or conclusions of law or fact. Czajkowski v. Haskell & White, LLP (2012) 208 Cal.App.4th 166, 173. The court's function is limited to testing the legal sufficiency of the complaint, which must be construed with a view to substantial justice between the parties. Fremont Indemnity Co. v. Fremont General Crop. (2007) 148 Cal.App.4th 97, 113; Code Civ.

Proc. § 452.

B. 'The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages.' Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.

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2986502 67 CASE NUMBER: CASE TITLE: WALTER VS SHOAF [IMAGED] 37-2022-00044823-CU-PA-CTL C. 'A rental car company may be held liable for negligently entrusting one of its cars to a customer.' Osborn v. Hertz Corp. (1988) 205 Cal.App.3d 703, 709. CACI 724 outlines the elements of the tort of negligent entrustment of a motor vehicle.

D. Code of Civil Procedure section 436 authorizes a court to strike allegations from a pleading in two situations. Under subdivision (a), the court may strike 'any irrelevant, false, or improper matter inserted in any pleading.' This provision does not authorize striking an entire cause of action, but permits the court to excise 'superfluous or abusive allegations.' Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528. Subdivision (b) provides that a court may strike 'all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.' This provision 'authorizes the striking of a pleading due to improprieties in its form or in the procedures pursuant to which it was filed' and 'is commonly invoked to challenge pleadings filed in violation of a deadline, court order, or requirement of prior leave of court.' Ferraro, 161 Cal.App.4th at 528. In either situation, the motion is addressed to the sound discretion of the trial court. Clements v. T.R. Bechtel Co. (1954) 43 Cal.2d 227, 242.

E. Motions to strike are often used to challenge portions of causes of action seeking punitive damages.

PH II, Inc. Superior Court (1995) 33 Cal.App.4th 1680, 1683. In Taylor v. Superior Court (1979) 24 Cal.3d 890, the California Supreme Court held that punitive damages may be recoverable in personal injury action brought against the intoxicated driver 'who willfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.' Taylor, 24 Cal.3d at 897.

3. Discussion and Rulings.

A. The demurrer to the FAC is overruled.

The demurrer to counts 1 and 2 are overruled. 'A joint venture is defined as an undertaking by two or more persons, or entities, jointly to carry out a single business enterprise for profit.' Ramirez v. Long Beach Unified School Dist. (2002) 105 Cal.App.4th 182, 193. 'The elements necessary for its creation are: (1) joint interest in a common business; (2) with an understanding to share profits and losses; and (3) a right to joint control.' April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 819. In this case, liberally construing the allegations in the FAC, the court finds that sufficient facts have been pled showing the existence of a joint venture between Hertz and the other defendants. (FAC at ¶¶ 15-19.) Whether plaintiffs can prove these facts – and thus impute Shoaf's negligence to Hertz – remains to be determined. See CACI 3712 ('Each of the members of a joint venture, and the joint venture itself, are responsible for the wrongful conduct of a member acting in furtherance of the venture'); see also Kaljian v. Menezes (1995) 36 Cal.App.4th 573, 586 ('The existence or nonexistence of a joint venture is a fact question for resolution by the jury.').

The demurrer to count 3 is overruled. Plaintiffs allege that Hertz, as the owner of the subject vehicle, knew or should have known that Shoaf was unfit or incompetent to drive the subject vehicle. (FAC at ¶¶ 4, 56-59.) These facts – which the court must accept this fact as true – are sufficient to state a claim for negligent entrustment. See CACI 724; see also C. W. Johnson & Sons, Inc. v. Carpenter (2020) 53 Cal.App.5th 165, 169 ('The plaintiff is required to plead only ultimate facts, not evidentiary facts.').

B. The motion to strike portions of the FAC is granted in part and denied in part.

The motion is granted with leave to amend as to the request to strike the prayer for punitive damages and the allegations supporting the prayer (paragraphs 29 and 31) directed at Shoaf. Insufficient facts have been pled pursuant to Taylor. Plaintiffs have not alleged that Shoaf knew, when the 'huffing' began, that he was going to operate a motor vehicle and was aware from the outset of the probable consequences of such conduct. See Taylor, supra, 24 Cal.3d at 897; see also Busboom v. Superior Calendar No.: Event ID: TENTATIVE RULINGS

2986502 67 CASE NUMBER: CASE TITLE: WALTER VS SHOAF [IMAGED] 37-2022-00044823-CU-PA-CTL Court (1980) 113 Cal.App.3d 550, 553 (finding allegations sufficient under Taylor where it was alleged that the defendant 'voluntarily consumed alcohol, knowing he would then operate a motor vehicle, and drove while drunk, knowing the safety hazard he created and aware of the probable dangerous consequences of his conduct, which he willfully and deliberately failed to avoid').

The motion is granted without leave to amend as to the request to strike the prayer for prejudgment interest. Plaintiffs do not oppose striking this item.

The motion is granted without leave to amend as to the request to strike paragraphs 39 and 41.

Plaintiffs have stipulated that they are not asserting punitive damages in connection with the wrongful death count. See ROA 51.

The motion is denied as to the request to strike the allegations in paragraphs 45 and 53. The court is unable to conclude on this limited record that the challenged allegations are improper under Code of Civil Procedure sections 377.34 and/or 377.61. Moreover, the court has discretion to grant or deny a motion to strike and, even where an allegation may be unwarranted, the court is not required to strike the allegation at the pleading stage and may instead simply deny the request on the merits at a later stage of the case or ignore the allegation. See Clements, supra, 43 Cal.2d at 242. Here, the court declines to edit or re-write the FAC and will address possible unmeritorious allegations, if necessary, at a later stage of the case. See PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1683 ('[U]se of the motion to strike should be cautious and sparing. We have no intention of creating a procedural 'line item veto' for the civil defendant.').

The motion is denied as moot as to the request to strike paragraphs 46, 47, and 49. These allegations were stricken pursuant to the parties' stipulation. See ROA 51.

C. It is ordinarily an abuse of discretion to deny leave to amend unless the inability to state a valid cause of action is clear. In this respect, plaintiffs have the burden to show in what manner they can amend the FAC and how the amendment will change the legal effect of the pleading. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (regarding demurrers). Plaintiffs have not done so. However, '[l]iberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.' Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227. Accordingly, plaintiffs are granted leave to amend the punitive damages claim as to Shoaf.

Plaintiffs must file and serve the second amended complaint by October 23, 2023.

___________________________ *Although the moving papers were filed on behalf of Hertz and Shoaf, only Hertz has demurred; Shoaf raised no grounds for demurrer.

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2986502 67