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Ruling
KARI ACOSTA VS HOSSEIN NOURI, ET AL.
Aug 29, 2024 |21STCV02758
Case Number: 21STCV02758 Hearing Date: August 29, 2024 Dept: B KARI ACOSTA V. HOSSEIN NOURI, ET AL. DEMURRER TO COMPLAINT Date of Hearing: August 29, 2024 Trial Date: N/A Department: B Case No.: 21STCV02758 Moving Party: Defendant The Hertz Corporation (Moving Defendant) Responding Party: Unopposed BACKGROUND This action arises from an automobile accident which occurred on January 23, 2019. On January 22, 2021, Plaintiff Kari Acosta (Plaintiff) filed a Complaint for Negligence against Defendants Hossein Nouri, Hertz Corporation, Hertz Vehicle LLC (collectively, the Defendants), and Does 1-50, inclusive. On July 8, 2022, the Court held the Final Status Conference (FSC), but none of the parties appeared at the hearing. Therefore, the Court placed the FSC off-calendar and kept the non-jury trial date of July 22, 2022. On July 22, 2022, the Court held the non-jury trial, but Plaintiff did not make an appearance. Only defense counsel made a special appearance. Therefore, the Court ordered the Complaint dismissed without prejudice. The Court also vacated the Order to Show Cause Re: Dismissal set for January 19, 2024. On September 15, 2023, the Court granted Plaintiffs motion to set aside the July 22, 2022 dismissal and the Court reinstated the action. On February 9, 2024, default was entered against Defendants Hertz Vehicle LLC and Hertz Corporation. On February 15, 2024, Defendant The Hertz Corporation (erroneously named as both Hertz Corporation and Hertz Vehicle LLC) (Moving Defendant) filed a Demurrer to the Complaint. On March 18, 2024, after hearing oral argument and taking the matter under submission, the Court overruled the demurrer without prejudice on the grounds that the entry of default against Moving Defendant cut off its right to appear in the action until the default is set aside. (03/18/24 Minute Order.) On April 18, 2024, Moving Defendant filed a motion to set aside default, which was granted by the Court on July 3, 2024. (07/03/24 Minute Order.) On July 8, 2024, Moving Defendant filed and served the instant demurrer to the Complaint. As of August 28, 2024, the demurrer is unopposed. Any opposition to the demurrer was required to have been filed and served at least nine court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).) Given that the demurrer is unopposed, an inference is created that the demurrer is meritorious. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) [Tentative] Ruling The demurrer filed by Defendant The Hertz Corporation (Moving Defendant) is SUSTAINED with 20 days leave to amend. DISCUSSION In reviewing the legal sufficiency of a complaint against a demurrer, a court will treat the demurrer as admitting all material facts properly pleaded. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; C & H Foods Co. v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062.) It is well settled that a demurrer lies only for defects appearing on the face of the complaint[.] (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Guclimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (internal quotes omitted).) For purposes of ruling on a demurrer, the complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.) When ruling on a demurrer, the Court may only consider the complaints allegations or matters which may be judicially noticed. (Blank, supra, 39 Cal.3d at p. 318.) The Court may not consider any other extrinsic evidence or judge the credibility of the allegations plead or the difficulty a plaintiff may have in proving his allegations. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) A demurrer is properly sustained only when the complaint, liberally construed, fails to state facts sufficient to constitute any cause of action. (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574, 578.) Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on the party who filed the pleading subject to demurrer to show the court that a pleading can be amended successfully. (Ibid.) Meet and Confer Before filing a demurrer, the moving party must meet and confer in person, by video conference, or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (Code Civ. Proc., § 430.41, subd. (a).) Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer. (Code Civ. Proc., § 430.41, subd. (a)(4).) Here, the Court finds that the meet and confer requirement has not been met. Moving Defendants counsel only sent meet and confer e-mails to Plaintiffs counsel and left one voicemail for Plaintiffs counsel. (Feasel Decl., ¶ 2.) Counsel did not meet in person, by telephone, or by video conference. Although the meet and confer requirement has not been satisfied, the Court will still consider the demurrer on the merits. The Court, however, reminds the parties of the need to comply with the requirements of the Code of Civil Procedure and will not rule on the merits of any further motion, including further challenges to the Complaint without such compliance. Judicial Notice The Court GRANTS Moving Defendants request for judicial notice. (Evid. Code §§ 452, 453.) Sufficiency of the First Cause of Action Plaintiffs Complaint alleges a sole cause of action for negligence. Plaintiff alleges the following: On or about January 23, 2019, Defendants, and each of them, so negligently entrusted, managed, maintained, drove, and operated said Defendants vehicle so as to cause Defendants vehicle to collide with Plaintiffs vehicle. (Complaint, ¶ 9.) Plaintiff alleges that all Defendants were owners and operators of the vehicle. (Complaint, ¶ 6.) Vehicle Code section 17150 makes an owner of a motor vehicle liable for injuries caused by anothers negligent operation of that vehicle if the person so operating the vehicle is operating it with the owners express or implied permission. (Rashtian v. BRAC-BH, Inc. (1992) 9 Cal.App.4th 1847, 1852.) The Graves Amendment [preempts] state law in the area of vicarious liability for owners engaged in the business of renting or leasing motor vehicles, absent a showing of negligence or criminal wrongdoing on the part of the owner. (Cates v. Hertz Corp. (2009) 347 Fed.Appx. 2, 6.) Under the Graves Amendment, an owner of a motor vehicle who rents or leases the vehicle to another shall not be liable under the law of any State . . ., by reason of being the owner of the vehicle . . ., for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if: (1) the owner . . . is engaged in the trade or business of renting or leasing motor vehicles; and (2) there is no negligence or criminal wrongdoing on the part of the owner . . . . (McGill v. Ford Motor Company (N.D. Cal. 2024) 2024 WL 2941632 at *2.) Decisions of federal trial courts are citable but are not binding authority. (Markow v. Rosner (2016) 3 Cal.App.5th 1027, 1043, fn. 8.) While the Court takes judicial notice that Moving Defendant is in the business of renting motor vehicles and that a rental agreement was executed between Moving Defendant and Defendant Hossein Nouri (Moving Defendants RJN at Exs. 2, 3), the Court rejects Moving Defendants argument that it cannot be held vicariously liable under the Graves Amendment. There is no dispute that Moving Defendant is the owner of the motor vehicle that was involved in the alleged incident giving rise to Plaintiffs injuries. However, Moving Defendant may be held vicariously liable if Plaintiff makes a showing of negligence or criminal wrongdoing attributed to Moving Defendant. The Court, however, does find that Plaintiff has not stated a sufficient factual basis for negligent entrustment. The tort of negligent entrustment requires a showing of actual knowledge by the [owner] that the driver is incompetent or knowledge of circ*mstances which should indicate to the [owner] that the driver is incompetent. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 966.) Here, Plaintiff has not articulated sufficient factual allegations that Moving Defendant knew of Defendant Hossein Mouris incompetence. The Complaint only sets forth conclusory allegations. The Court therefore finds that the first cause of action for negligence in the Complaint is insufficiently alleged. CONCLUSION Based on the foregoing, the demurrer filed by Defendant The Hertz Corporation is SUSTAINED with 20 days leave to amend. The Court does not find that there exists no reasonable possibility of successful amendment and the Court therefore allows leave to amend. Moving party is ordered to give notice.
Ruling
MARIO LOPEZ, ET AL. VS GRANDWAY CONSTRUCTION, LLC, ET AL.
Aug 26, 2024 |23STCV30154
Case Number: 23STCV30154 Hearing Date: August 26, 2024 Dept: 47 Tentative Ruling Judge Theresa M. Traber, Department 47 HEARING DATE: August 26, 2024 TRIAL DATE: NOT SET CASE: Mario A. Lopez, et al. v. Grandway Construction, LLC, et al. CASE NO.: 23STCV30154 DEMURRER TO COMPLAINT MOVING PARTY: Defendants Grandway Construction LLC; Grandway Asset Management, Inc.; Lawrence Chichung Wang, Frederick Chi-Shan Wang, and Shadowcreek Development, LLC RESPONDING PARTY(S): Plaintiffs Mario Lopez, Trustee of the Lopez Family Revocable Trust Dated February 15, 2011 and Courtney Lopez STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: This is a construction defect action that was filed on December 11, 2023. Plaintiff alleges that Defendants constructed a residential property with substantial structural defects and induced Plaintiff to purchase the property by concealing those defects. Defendants demur to the Complaint in its entirety. TENTATIVE RULING: Defendants Demurrer to the Complaint is SUSTAINED with leave to amend as to misjoinder of parties only and otherwise OVERRULED. Plaintiffs shall have 30 days leave to file a First Amended Complaint naming Grandway I-F, LLC as a Defendant. DISCUSSION: Defendants demur to the Complaint in its entirety. // Legal Standard A demurrer 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 via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) 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 p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, [o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true].) This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.) Meet and Confer Before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the demurrer and file a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a).) However, an insufficient meet and confer process is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., § 430.41(a)(4).) The Declaration of Emily Kromke in support of the motion states defense counsel attempted to meet and confer with Plaintiffs attorney on February 6 and February 14, 2024, via email regarding Defendants challenges to the Complaint. (Declaration of Emily A. Kromke ISO Demurrer. ¶¶ 2-3, Exh. A-B.) Defendants counsel attempted to follow up via email and telephone on February 20, 2024. (Id. ¶ 4, Exh. C.) Plaintiffs counsel represented that he would call Defendants counsel back that same day, but did not do so. (Id. ¶ 5.) Defendants counsel states that Plaintiffs counsel instead sent a written response, but does not describe that response nor present a copy of it to the Court. (¶ 6.) Defendants counsel then explains that the parties did not reach an agreement resolving the objections raised in the demurrer. (¶ 7.) Defendants conclusory assertion is not sufficient to demonstrate a proper effort to meet and confer with Plaintiffs counsel to informally resolve this dispute. However, as an insufficient meet and confer process is not grounds to overrule or sustain the demurrer, the Court shall address the demurrer on its merits. // Defendants Overlength Motion Plaintiffs object to Defendants demurrer as improper because it exceeds the maximum length permitted under the Rules of Court. Defendants memorandum of points and authorities in support of their demurrer is 23 substantive pages in length, discounting the caption page, notice of motion and motion, the tables of contents and authorities, and the proof of service. Pursuant to California Rule of Court 3.1113(d), an opening or responding memorandum on any motion other than a motion for summary judgment or adjudication may not exceed 15 substantive pages. (Cal Rule of Court 3.1113(d).) A party may seek leave to file an overlength memorandum. (Rule of Court 3.1113(e).) However, an overlength memorandum which is filed without leave must be considered in the same manner as a late-filed paper. (Rule of Court 3.1113(g).) The Court has discretion to refuse to consider late-filed papers. (Rule of Court 3.1300(d).) Defendants did not seek leave of Court before filing their overlength brief. In response, Defendants contend that the length of the brief was necessitated by the number of parties involved and the effects of Plaintiffs claimed failure to join an indispensable party. Defendants argue that they should not be penalized for attempting to streamline the demurrer process for the Court by filing a single demurrer rather than several. The Court is not persuaded. The Rules of Court reflect the Judicial Councils determination that the procedures it has chosen reflect the best method to ensure the just and speedy determination of these proceedings. (Cal. Rules of Court 1.5.) Although the Court appreciates Defendants professed desire to facilitate a speedy determination of this issue, Defendants may not substitute their own decision-making for that of the Judicial Council as to how that desire should be given effect. Moreover, in the context of a dispositive motion such as this, a failure to comply with the procedural requirements risks prejudice to Plaintiffs due process rights. For that reason, the Court refuses to consider the portions of Defendants memorandum which exceed the page limits of Rule 3.1113(d), which encompasses Defendants individual challenges to the third cause of action for negligent misrepresentation, fourth cause of action for suppression of fact, and fifth cause of action for negligence for failure to state facts sufficient to constitute a cause of action. Plaintiffs Absent Table of Contents and Authorities Defendants object to Plaintiffs Opposition for failing to include a table of contents and authorities despite that opposition exceeding ten pages in length. As Defendants state, Rule of Court 3.1113(f) requires both a table of contents and a table of authorities for any brief which is greater than ten substantive pages in length. Although Defendants are correct that the opposition is defective in this respect, the failure to include these materials does not disadvantage the opposing party in the same manner as a substantially overlength brief seeking a dispositive ruling. // // Failure to Join Indispensable Party Defendants demur to the Complaint under Code of Civil Procedure section 410.30(d) for failure to join an indispensable party. An indispensable party is a party who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter, and whom (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. (Code Civ. Proc. § 389.) Defendants argue that this case is grounded in the construction and sale of a residential property by Grandway USDEV I-F, LLC which Plaintiffs allege was defective. As Defendants state, the Complaint expressly states that Grandway I-F was listed as the owner on the certificate of occupancy obtained October 14, 2021 (Complaint ¶ 16), that Plaintiffs entered into Residential Purchase Agreement for the property with Grandway I-F on May 4, 2022 (¶ 17), that the Defendants, through Grandway I-F, executed a Real Estate Transfer Disclosure Statement (¶ 18), and that, after the close of escrow, heavy rainfall revealed a severe water leakage problem with the patio. (¶ 20.) Defendants contend that there is a defect of parties in that Plaintiffs have failed to name the entity which entered into the underlying contract. Although Defendants characterize the Complaint as improperly pleading breach of contract, the Complaint is more properly described as asserting a claim for fraudulent inducement to contract through a series of alter egos, including the alleged contracting entity, alongside other related tort claims. (See Complaint ¶¶ 9, 36-44.) Regardless, Defendants argue with considerable force that the entity that signed the underlying contract is a party in whose absence complete relief cannot be accorded, as Defendants contend that Grandway I-F was, in fact, an independent entity with divergent interests and potentially separate liability, and not an alter ego of the named parties. Defendants also argue that the failure to join the entity which executed the sale of the property exposes them to potentially inconsistent obligations and multiple liability. In opposition, Plaintiffs dismiss Defendants contentions as mere speculation and argue that service of process on Grandway I-F is impossible because it is a terminated LLC. Not so. A cancelled limited liability company continues to exist for the purpose of winding up its affairs, prosecuting and defending actions to collect and discharge obligations, and disposition of its property and assets. (Corp Code § 17707.06.) Nor is the Court persuaded that Defendants are merely speculating that Grandway I-Fs absence makes complete relief impossible where, as here, there is a dispute as to the independence or lack thereof of the various entities involved in this dispute, Grandway I-F included. The Court therefore finds that the Complaint is defective because it fails to join a necessary party. For that reason alone, Defendants demurrer to the Complaint must be sustained. Alter Ego Allegations Defendants contend that the Complaint is also subject to demurrer for misjoinder of parties because it does not allege alter ego liability with sufficient factual detail. This contention goes to the failure to allege sufficient facts, not a defect of parties. The Court therefore rejects this challenge to the Complaint as improper. Second Cause of Action: Intentional Misrepresentation/Fraudulent Concealment Defendants demur to the second cause of action for intentional misrepresentation for failure to state facts sufficient to constitute a cause of action. Although the second cause of action is titled intentional misrepresentation, the Complaint claims that Defendants concealed the defects identified in the Complaint. (Complaint ¶¶ 19-23, 37.) Thus, the second cause of action is more properly construed as a claim for fraudulent concealment. The elements of fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) intent to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) the plaintiff sustained damage as a result of the concealment or suppression of fact. (Hambridge v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162.) Defendants first argue that Plaintiffs fraud claim is barred by the economic loss rule. Under the economic loss rule, [w]here a purchasers expectations in a sale are frustrated because the product he bought is not working properly, his remedy is in contract alone, for he has suffered only economic losses. (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988.) The economic loss rule hinges on a distinction drawn between transactions involving the sale of goods for commercial purposes where economic expectations are protected by commercial and contract law, and those involving the sale of defective products to individual consumers who are injured in a manner which has traditionally been remedied by resort to the law of torts. (Id.) Simply stated, the economic loss rule prevents the law of contract and the law of tort from dissolving one into the other. (Id.) The restrictions on contract remedies serve purposes not found in tort lawthey protect the parties freedom to bargain over special risks, and they promote contract formation by limiting liability to the value of the promise. (Harris v. Atlantic Richfield (1993) 14 Cal.App.4th 70, 77.) This encourages efficient breaches, resulting in increased production of goods and services at a lower cost to society. (Id.) Because of these overriding policy considerations, the California Supreme Court has proceeded with caution in carving out exceptions to the traditional contract remedy restrictions. (Id.) Nevertheless, the most widely recognized exception to the economic loss rule is when a defendants conduct constitutes a tort as well as a breach of contract. (Id. at 78.) When one party commits fraud during the contract formation or performance, the injured party may recover in both contract and tort. (Id.) Thus, under express authority and well-settled precedent, Plaintiffs claim for fraudulent concealment in the inducement of the sale is not barred by the economic loss rule. Defendants also argue that the Complaint does not plead intentional misrepresentation with the requisite specificity. However, as stated above, the second cause of action is more properly considered a claim for fraudulent concealment, not express misrepresentation. Defendants argument in this respect therefore misses the mark. Defendants demurrer to the second cause of action for failure to state facts sufficient to constitute a cause of action is without merit. Leave to Amend When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318). When a plaintiff has pleaded the general set of facts upon which his cause of action is based, the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars. (Reed v. Norman (1957) 152 Cal.App.2d 892, 900.) Accordingly, California law imposes the burden on the plaintiffs to demonstrate the manner in which they can amend their pleadings to state their claims against a defendant. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Denial of leave to amend constitutes an abuse of discretion unless the complaint shows on its face it is incapable of amendment. [Citation.] Liberality 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.) Here, although Plaintiffs have not shown how the Complaint might be amended to cure the defect in joinder, the solution of naming that entity and serving process upon it is readily apparent. The Court will therefore permit Plaintiffs to amend the Complaint to cure this deficiency. CONCLUSION: Accordingly, Defendants Demurrer to the Complaint is SUSTAINED with leave to amend as to misjoinder of parties only and otherwise OVERRULED. Plaintiffs shall have 30 days leave to file a First Amended Complaint naming Grandway I-F, LLC as a Defendant. Moving Parties to give notice. // IT IS SO ORDERED. Dated: August 26, 2024 ___________________________________ Theresa M. Traber Judge of the Superior Court Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.
Ruling
DIANE SHEFFIELD vs. JOHN MUIR HEALTH CONCORD MEDICAL CENTER
Aug 21, 2024 |C23-03165
C23-03165CASE NAME: DIANE SHEFFIELD VS. DOES 1-100 INCLUSIVEHEARING ON DEMURRER TO: FIRST AMENDED COMPLAINTFILED BY:*TENTATIVE RULING:*Defendant John Muir Health [Defendant] brings this demurrer to the First Amended Complaint [FAC]of Plaintiff Diane Sheffield [Plaintiff]. The demurrer is opposed by Plaintiff.For the following reasons, the demurrer is sustained with leave to amend.BackgroundDefendant John Muir Health demurs to the FAC in its entirety for failure to state a claim, and as toeach of the causes of action for failure to state a claim and uncertainty. The parties met andconferred as required prior to filing of the Demurrer. (CCP §430.41.) Plaintiff belatedly filed anopposition and the original hearing date was continued to allow Defendant time to file its reply brief.The FAC alleges seven causes of action against Defendant for (1) sexual battery (Civ. Code §1708.5),(2) battery, (3) false imprisonment, (4) intentional infliction of emotional distress, (5) negligentinfliction of emotional distress, (6) negligent hiring and retention, and (7) negligent supervision, which SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 27 JUDICIAL OFFICER: TERRI MOCKLER HEARING DATE: 08/21/2024arise from an alleged sexual assault by an employee of Defendant while Plaintiff was a patient atDefendant’s facility. Plaintiff alleges she had a grand mal seizure and was taken to John Muir HealthConcord Medical on November 20, 1979. (FAC ¶ 31.) In her post-ictal state, Plaintiff alleges she wasunable to respond but could comprehend her surroundings. (FAC ¶ 32.) Plaintiff alleges anunnamed/unknown Doe Registered Nurse (“Registered Nurse”) and the nurse’s aide, Clarence Jones,were responsible for her care. She alleges that the Registered Nurse flipped her hair off her eye andstated, “She is kinda pretty, isn’t she?” (FAC ¶ 33.) Thereafter, Clarence Jones took Plaintiff’s gurneyinto a secluded room and sexually assaulted her. (FAC ¶¶ 35–36.)Within 2 weeks of the sexual assault, Plaintiff reported the incident to John Muir, and Sacramento’sRape Crisis Center. The Sacramento Rape Crisis counselors accompanied plaintiff to John Muir toreport the conduct. Plaintiff alleges she had to recount her experience in front of Registered Nurseand Clarence Jones. (FAC ¶¶ 38–40.) Plaintiff states Registered Nurse told her that “Your allegationswould ruin his [Clarence’s] career.” Registered Nurse told her not to report the incident to the policebecause there was no evidence, and both Nurse and Jones told her she must have “dreamt” thesexual assault. (FAC ¶ 41.)Plaintiff further alleges that Defendant did not report Plaintiff’s sexual assault to the police orotherwise. (FAC, ¶ 42.) On these allegations, Plaintiff asserts that Defendant ratified its employeesbehavior by its intentional failure to investigate Plaintiff’s sexual assault allegations and thatDefendant, through its employees’ conduct, was a substantial factor in causing Plaintiff physical andemotional harm, that such conduct was willful, wanton and malicious, and that Plaintiff has sufferedand will continue to suffer emotional distress as a result of such conduct. (FAC, ¶¶ 56-61.)Standard“The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” (HolidayMatinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) A demurrer lies only for defectsappearing on the face of the complaint or from matters of which the court must or may take judicialnotice. (CCP 430.40; see Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)Code of Civil Procedure § 473(a)(1) provides the Court discretion to permit a party to amend itspleadings. There is “a policy of great liberality in permitting amendments to the complaint.” (Magpaliv. Farmers Group (1996) 48 Cal.App.4th 471, 487.)AnalysisDemurrer to FAC in its EntiretyDefendant demurs to the FAC in its entirety for failure to state a claim based on the statute oflimitation and the doctrine of laches. 1. Failure to State a Claim based on Statute of Limitations SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 27 JUDICIAL OFFICER: TERRI MOCKLER HEARING DATE: 08/21/2024Code of Civil Procedure section 340.16 [CCP 340.16], at subpart (e) allows a plaintiff, whose claimwould otherwise be barred by the statute of limitations to bring a claim for damages suffered as aresult of a sexual assault, if such claim is filed between January 1, 2023 and December 31, 2023, asPlaintiff’s claim was, when a plaintiff alleges that (A) the plaintiff was sexually assaulted, (B) One ormore entities are legally responsible for damages arising out of the sexual assault, and (C) The entityor entities, including, but not limited to, their officers, directors, representatives, employees, oragents, engaged in a cover up or attempted a cover up of a previous instance or allegations of sexualassault by an alleged perpetrator of such abuse.” The statute defines the terms cover up, entity andlegally responsible. (CCP 436 (e)(4).)The parties disagree as to interpretation of the language in CCP Section 340.16(e)(1), specifically“engaged in a cover up or attempted a cover up of a previous instance or allegations of sexual assaultby an alleged perpetrator of such abuse.” Plaintiff alleges that Clarence Jones “had a previouscomplaint of sexual assault.” (FAC ¶ 54.)Defendant argues that Plaintiff has not alleged John Muir was aware of Clarence Jones’ allegedprevious complaint of sexual assault. Defendant continues this line of argument, stating that Plaintiffhas not alleged any facts suggesting John Muir engaged in a cover up or attempted cover up of aprevious instance or allegations of sexual assault. Defendant cites to legislative history that supportthat the Legislature’s intent was to revive only actions where there is a previous cover up of sexualassault:“Moreover, when these data are combined with widespread news reports of major companies beingaccused of covering up sexual assaults by their employees it is self-evident that statutes of limitationfor sexual assault need to be crafted in a way that does not cause the covering-up company to enjoythe fruits of their cover-up solely because our statutes of limitation permit, and thus motivate, suchbehavior.” (Assembly Bill Policy Committee Analysis, Pg. 3, (2)(i).)Plaintiff argues that through its use of the word “or,” the Legislature intended to describe two distinctscenarios in the revival provisions set forth in Code Civ. Proc., § 340.16, subd. (e)(2)(C): including (2)where a plaintiff alleges that a defendant “entity engaged in a cover up,” OR (2) where a plaintiffalleges that a defendant entity “attempted a cover up of a previous instance or allegations of sexualassault by an alleged perpetrator of such abuse.”Defendants rely on the court’s discussion in Jane Doe #21 (S.H.) v. CFR Enterprises, Inc. (2023) 93Cal.App.5th 1199 interpreting CCP 340.16 and finding that the plaintiff must allege a cover up orattempted cover up of a prior instance or allegations of sexual assault, not that the plaintiff wasassaulted by the same perpetrator whose acts were covered up by the entity previously. The holdingassumes that the statute requires an allegation of a previous incident or previous allegations thatwere subject to a cover up. This assumption and the plain language of the statute guides the analysisbelow. SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 27 JUDICIAL OFFICER: TERRI MOCKLER HEARING DATE: 08/21/2024Pursuant to the plain language of CCP 340.16 (e)(2)(C), it is clear that the phase “engaged in a coverup or attempted a cover up of a previous instance or allegations of sexual assault” must be readtogether as each part is dependent upon the prior and the following section. As such, the term“previous” is integral to the language of this condition. Based on the plain language of the statute, inorder to satisfy the third prong for a claim under CCP 340.16 (e), there must have been either (1) acover up of a previous instance of sexual assault, (2) an attempted cover up of a previous instance ofsexual assault, (3) a cover up of previous allegations of sexual assault, or (4) an attempted cover up ofprevious allegations of sexual assault. Where a plaintiff does not allege one of these fourcombinations of facts, the case does not fall under the exception to the statute of limitations of CCP340.16.Here, Plaintiff alleges that the person who sexually assaulted her, Clarence Jones, had previouslycommitted sexual assaulted, but she does not allege that Defendant had previously engaged in acover up of a prior sexual assault. (FAC, ¶ 54.) Thus, as alleged, Plaintiff’s FAC does not allegesufficient facts to state a cause of action under CCP Section 340.16(e)(1).For such reasons, demurrer to the entire complaint based on statute of limitations is sustained withleave to amend. 2. Failure to State a Claim based on LachesThe doctrine of laches is generally equivalent to a statute of limitations. (Unilogic, Inc v. BurroughsCorp. (1992) 10 Cal. App. 4th 612, 619.) To allow a laches defense in a legal action where a statute oflimitations exists would be to override a time limit mandated by the Legislature. (Ibid.) Thus, becauseof the existence of a legislative mandated statute of limitations, the equitable doctrine of laches doesnot apply here. As such, demurrer as to the doctrine of laches claim is overruled.First Cause of Action – Sexual Battery 1. Failure to State a Cause of ActionTo establish a cause of action for sexual battery, plaintiff must plead that the defendant: (1) Actedwith the intent to cause a harmful or offensive contact with an intimate part of another, and asexually offensive contact with that person directly or indirectly resulted; or (2) acted with the intentto cause a harmful or offensive contact with another by use of the person's intimate part, and asexually offensive contact with that person directly or indirectly resulted; or (3) acted to cause animminent apprehension of the conduct described in paragraph (1) or (2), and a sexually offensivecontact with that person directly or indirectly resulted; or (4) caused contact between a sexual organ,from which a condom has been removed, and the intimate part of another who did not verballyconsent to the condom being removed; or (5) caused contact between an intimate part of the personand a sexual organ of another from which the person removed a condom without verbal consent.(CCP §1708.5(a).) SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 27 JUDICIAL OFFICER: TERRI MOCKLER HEARING DATE: 08/21/2024Plaintiff alleges facts that state Clarence Jones sexually assaulted her. (FAC ¶¶ 35–36.) The CaliforniaSupreme Court held that a hospital was not responsible for its’ employee’s sexual assault on anotherunless the employee committed the sexual assault within the scope of their employment and because“an intentional tort gives rise to respondeat superior liability only if it was engendered by theemployment.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal. 4th 291, 298.)The plaintiff in Lisa M. was sexually molested by an ultrasound technician under the pretense ofconducting an ultrasound imaging examination. (Id. at 294.) The court in Lisa M. held “that theemployment brought tortfeasor and victim together in time and place is not enough . . . the risk oftortious injury must be ‘inherent in the working environment’.” (Id. at 298, citing Carr v. Wm. C.Crowell Co. (1946) 28 Cal.2d 652, 656.) Additionally, the court specifically noted that “to hold medicalcare providers strictly liable for deliberate sexual assaults by every employee whose duties includeexamining or touching patients’ . . . would be to remove scope of employment as a limitation onproviders’ vicarious liability.” (Id. at 302.)Plaintiff cites to the holding in Samantha B. v. Aurora Vista Del Mar, LLC, to distinguish her case fromthe holding in Lisa M., because cognitively impaired (in Plaintiff’s case, post-ictal) patients areespecially vulnerable. (Samantha B. v. Aurora Vista Del Mar, LLC (2022) 77 Cal. App. 5th 85, 93.) InSamantha B., a mental health employee sexually assaulted three patients in active psychosis while hewas working in a mental health facility. (Ibid.) The court in Samantha B. held a hospital may bevicariously liable for an employee’s sexual assault because mental health workers’ scope ofemployment is broad, and the specific hospital’s policies exponentially increased the hazard of sexualexploitation. (Id. at 108.) The court in Samantha B. contrasted their case to Lisa M., stating that “Butthis case is not like Lisa M. . . . the employee’s interaction with the victim was brief and theemployee’s duties were technical . . . In contrast, here there is sufficient evidence for the jury toconclude [Defendant] was acting within the scope of his employment.” (Ibid.)The evidence is critical to the issue of whether the assault occurred within the scope of employmentof Clarence Jones. The authorities cited by the parties had the advantage of evidence-based motions.As such, the Court declines to sustain the demurrer on the basis that Clarence Jones was actingoutside the scope of employment. In Lisa M., the court specifically eschewed a broad holding thatwould lead to sex crimes never being foreseeable outgrowths of employment. (Lisa M., supra, 12 Cal.4th at 300.) Instead, the court determined, based on the evidence presented, that the personalmotivations of the perpetrator were “not generated by or an outgrowth of workplace responsibilities,conditions or events.” (Id. at 301-302.) Ordinarily, the determination whether an employee has actedwithin the scope of employment presents a question of fact; it becomes a question of law only when“the facts are undisputed and no conflicting inferences are possible.” (Id. at 299.)Such a determination is best left for the evidentiary phases of the litigation. For such reason, thedemurrer as to the first cause of action based on failure to state a claim, on grounds other than thestatute of limitations issue discussed above, is overruled. SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 27 JUDICIAL OFFICER: TERRI MOCKLER HEARING DATE: 08/21/2024 2. UncertaintyUncertainty is a disfavored ground for sustaining a demurrer, and a demurrer for uncertainty will besustained only when the pleading is such that the responding party cannot even discern what it mustrespond to. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139.)Typically, any lingering issues can be illuminated through discovery. (Khoury v. Maly’s of Calif., Inc.(1993) 14 Cal.App.4th 612, 616 (“demurrer for uncertainty is strictly construed, even where acomplaint is in some respects uncertain, because ambiguities can be clarified under modern discoveryprocedures”).)Defendant’s confusion about whether Jones is a defendant does not make the pleading uncertain asto the moving defendant, particularly since Plaintiff clearly alleges Jones was the employee of JohnMuir.Accordingly, demurrer as to the first cause of action based on uncertainty is overruled. For similarreasons, demurrer to the second, third, fourth, sixth, and seventh causes of action based onuncertainty are overruled as well.Second Cause of Action - BatteryThe essential elements of a cause of action for battery are: (1) Defendant touched plaintiff, or causedplaintiff to be touched, with the intent to harm or offend plaintiff; (2) Plaintiff did not consent to thetouching; (3) Plaintiff was harmed or offended by defendant’s conduct; and (4) A reasonable personin plaintiff’s position would be offended by the touching. (CACI No. 1300; So v. Shin (2013) 212 Cal.App. 4th 652, 669.)Plaintiff alleges that (1) Clarence Jones did touch her, with the intent to harm her (2) Plaintiff did notconsent (she was unable to); (3) Plaintiff was harmed and offended by Clarence Jones’ conduct; and(4) a reasonable person in plaintiff’s position would be highly offended by the touching. (FAC ¶ 63–69.) Plaintiff has alleged all essential elements for a cause of action for battery against ClarenceJones.As such, apart from the issues with pleading of the exception under CCP 340.16, discussed above,demurrer to the second cause of action for battery is overruled.Third Cause of Action - False ImprisonmentThe essential elements of a cause of action for false imprisonment are: (1) Defendant intentionallydeprived plaintiff of their freedom of movement by use of [physical barriers/force/threats offorce/menace/fraud/deceit/unreasonable duress]; (2) plaintiff did not consent; and (3) defendant’sconduct was a substantial factor in causing harm to plaintiff. (CACI VF-1400. False Imprisonment - NoArrest Involved.) SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 27 JUDICIAL OFFICER: TERRI MOCKLER HEARING DATE: 08/21/2024Plaintiff alleges that (1) Clarence Jones intentionally deprived her of her freedom of movement by theuse of physical barriers (she was also unable to move on her own in her post-ictal state); (2) she didnot consent (she could not speak or move); and (3) Clarence Jones’ conduct was a substantial factorin causing harm to plaintiff. (FAC ¶ 71–75.) Plaintiff has alleged all essential elements for a cause ofaction for false imprisonment against Clarence Jones.As such, apart from the issues with pleading of the exception under CCP 340.16, discussed above,demurrer to the third cause of action for false imprisonment is overruled.Fourth Cause of Action - Intentional Infliction of Emotional DistressPlaintiff alleges Clarence Jones and Registered Nurse intentionally inflicted emotional distress onPlaintiff as a result of the alleged sexual assault and subsequent cover-up, and that Defendant isvicariously liable as their employer. Defendant demurs to this cause of action on the basis thatPlaintiff failed to allege facts amounting to a cause of action and based on uncertainty.The essential elements of a cause of action intentional infliction of emotional distress are: (1) Thatdefendant’s conduct was outrageous; (2) that defendant intended to cause plaintiff emotionaldistress OR that defendant acted with reckless disregard of the probability that plaintiff would sufferemotional distress, knowing that plaintiff was present when the conduct occurred; (3) that plaintiffsuffered severe emotional distress; and (4) that defendant’s conduct was a substantial factor incausing plaintiff’s severe emotional distress. (CACI 1600. Intentional Infliction of Emotional Distress –Essential Factual Elements.)Plaintiff alleges with particularity that (1) the outrageous conduct of Clarence Jones; (2) ClarenceJones both intended to cause emotional distress and/or acted with reckless disregard of theprobability that she would suffer emotional distress when the conduct occurred; (3) that she didsuffer severe emotional distress; and (4) that Clarence Jones’ conduct was a substantial factor incausing Plaintiff’s severe emotional distress. (FAC ¶ 78–84.) While Plaintiff may not use the wordsevere, she alleges specific matters, including dropping out of school and changing her name, amongother matters, that can support a finding of the severe emotional distress she suffered. (FAC, ¶¶ 44-45.) Plaintiff also alleges facts to support the allegation that Defendant ratified such conduct includingthat Defendant did not investigate or report the assault and, instead, engaged in a cover-up thesexual assault.Plaintiff alleged the essential elements for a cause of action of intentional infliction of emotionaldistress against Clarence Jones. As such, apart from the issues with pleading of the exception underCCP 340.16, discussed above, demurrer to the fourth cause of action for intentional infliction ofemotional distress is overrruled.Fifth Cause of Action - Negligent Infliction of Emotional Distress SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 27 JUDICIAL OFFICER: TERRI MOCKLER HEARING DATE: 08/21/2024The essential elements to alleged negligent infliction of emotional distress are: (1) That defendantwas negligent; (2) That plaintiff suffered serious emotional distress; and (3) That defendant’snegligence was a substantial factor in causing plaintiff’s serious emotional distress. (CACI 1620.Negligence – Recovery of Damages for Emotional Distress – No Physical Injury – Direct Victim –Essential Factual Elements.) “A claim of negligent infliction of emotional distress is not anindependent tort but the tort of negligence to which the traditional elements of duty, breach of duty,causation, and damages apply.” (Belen v. Ryan Seacrest Productions, LLC (2021) 65 Cal.App.5th 1145,1165 [citation and internal quotes omitted].)Plaintiff alleges Defendant negligently inflicted emotional distress upon her by improperly allowingClarence Jones, an unlicensed nurse’s aide, to gain access to plaintiff’s medical records and personalinformation. (FAC ¶ 88.) This cause of action rests on different factual basis than the other claims.Defendant argues that Clarence Jones had access to her records based upon his employment andduties. Plaintiff asserts, but does not allege the basis for such assertion, that categorically ClarenceJones should not have had access to her records or that Defendant had a duty to prevent ClarenceJones from having access to her medical records. Plaintiff alleges and argues in her opposition thatDefendant had a duty to protect Plaintiff from foreseeable sexual assault by its employee, ClarenceJones. (FAC, ¶ 89.) This alleged duty (to protect against assault) does not correlate to the acts(improper access to medical records) on which the fifth cause of action is explicitly based. (FAC, ¶ 88.)Thus, there are also insufficient facts alleged to support the contention that Defendant was negligentwhen it allowed Clarence Jones to view Plaintiff’s medical records.Here, for the reasons discussed above, in the context of this cause of action, which is based upon theallegation that Defendant improperly allowed Clarence Jones access to her medical records, Plaintiffdoes not allege sufficient facts to state a claim. Moreover, the pleading is uncertain as to the dutythat forms the basis of Plaintiff’s allegation of negligence in the context of this cause of action.As such, in addition to the issues with pleading of the exception under CCP 340.16, discussed above,demurrer to the fifth cause of action for negligent infliction of emotional distress based on failure tostate a claim and uncertainty is sustained with leave to amend.Sixth and Seventh Causes of Action – Negligent Hiring and Retention and Negligent SupervisionPlaintiff alleges that Defendant negligently hired, retained, and supervised Clarence Jones. Defendantdemurs to such claims of action on the basis that Plaintiff failed to allege facts sufficient to state to acause of action, for uncertainty, and on the basis that improper screening of medical personnel is anissue covered by the Medical Injury Compensation Reform Act of 1975 (“MICRA”). 1. Failure to State a Cause of ActionWhile the sixth and seventh causes of action are alleged separately, California case law and juryinstructions treat them as the same offense. (C.A. v. William S. Hart Union High School Dist. (2012) 53 SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 27 JUDICIAL OFFICER: TERRI MOCKLER HEARING DATE: 08/21/2024Cal. 4th 861, 875 [referring to negligent hiring, supervision, and retention as the same cause ofaction].)The essential elements of a cause of action for negligent hiring, retention, and supervision are: (1)That defendant hired employee, (2) that employee was unfit or incompetent to perform the work forwhich they were hired; (3) that defendant knew or should have known that employee was unfit orincompetent and that this created a particular risk to others; (4) that employee’s unfitness orincompetence harmed plaintiff; and (5) that defendant’s negligence in hiring/supervising/retainingemployee was a substantial factor in causing plaintiff’s harm. (CACI 426. Negligent Hiring,Supervision, or Retention of Employee.)Plaintiff has alleged that (1) John Muir hired Clarence Jones; (2) that Clarence Jones was unfit orincompetent to perform the work for which they were hired; (3) that Defendant should have knownthat employee was unfit or incompetent and that this created a particular risk for others; (4) thatClarence Jones’ unfitness and incompetency harmed plaintiff; and (5) Defendant’s negligence inhiring/supervising/retaining Clarence Jones was a substantial factor in causing her pain.For a plaintiff to establish negligent supervision, they must allege that “a person in a supervisorialposition over the actor had prior knowledge of the actor’s propensity to do the bad act.” (Z.V. v.County of Riverside (2015) 238 Cal. App. 4th 889.) Here, Plaintiff does allege facts that stateDefendant had prior knowledge of Clarence Jones’ propensity to do a bad act, such as sexually assaulta patient. (FAC, ¶ 54.) Plaintiff also alleges that Defendant “should have taken steps to preventPlaintiff’s assault by proper supervision of its employees.” (FAC, ¶ 108.)As such, Plaintiff alleged facts to withstand the standard of demurrer as to negligent hiring, retention,and supervision. Accordingly, demurrer for failure to state a claim, apart from the statute oflimitations issue discussed above, is overruled. 2. MICRADefendant also demurs alleging that instead of suing under negligent hiring, retention, andsupervision, the correct remedy for claims of improper screening of medical personnel is an issuecovered by the Medical Injury Compensation Reform Act of 1975 (“MICRA”). Code of Civil Proceduresection 340.5 [CCP 340.5], a statute established by MICRA, imposes a statute of limitations for“professional negligence of healthcare providers” of one-year from discovery of the injury or threeyears after the date of injury, whichever comes first.Pursuant to CCP 340.5, “Health care provider” means any person licensed or certified pursuant toDivision 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuantto the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5(commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 27 JUDICIAL OFFICER: TERRI MOCKLER HEARING DATE: 08/21/2024dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of theHealth and Safety Code, this includes the legal representatives of a health care provider.CCP 340.5 further provides that: “Professional negligence” means a negligent act or omission to actby a health care provider in the rendering of professional services, which act or omission is theproximate cause of a personal injury or wrongful death, provided that such services are within thescope of services for which the provider is licensed and which are not within any restriction imposedby the licensing agency or licensed hospital.Defendant contends that CCP 340.5 is the correct vehicle for Plaintiff to sue for negligence under, andthat Plaintiff erred by suing on a theory of negligent hiring, retention, and supervision. Defendantrests their argument on So v. Shin (2013) 212 Cal.App.4th 652 but does not discuss a reason that theprofessional negligence claim could not proceed in the alternative, apart from the statute oflimitations argument discussed above. Plaintiff’s opposition papers thus focus on rebutting theargument that this matter is barred by the statute of limitations. On reply, Defendant does notfurther argue that MICRA would bar this claim. Thus, the parties’ briefs do not discuss the particulardifferences between the causes of action, if any, and whether Plaintiff can maintain a separate claimfor negligent hiring, supervision and retention in the context of this action.Furthermore, the court is not limited to plaintiff’s stated theory of recovery in testing the sufficiencyof their complaint against a demurrer, but instead must determine if the factual allegations of thecomplaint are adequate to state a cause of action under any legal theory. (Quelimane Co. v. StewartTitle Guar. Co. (1998) 19 Cal. 4th 26, 38-39.) As such, this court can also evaluate Plaintiff’s claims fornegligent hiring, supervision and retention as a claim for professional negligence in its review ondemurrer. Apart from the label, the key difference Defendant raises between a claim for negligencehiring, supervision and retention and a claim for professional negligence, appears to be the shorterstatute of limitations that applies under CCP 340.5. Defendant’s argument in this regard again restson the contention that the FAC does not plead sufficient facts to fall within the exception to thestatute of limitations as provided by CCP 340.16.Accordingly, for the reasons discussed above with respect to pleading of the exception to the statuteof limitations under CCP 340.16, demurrer to the sixth and seventh causes of action is sustained withleave to amend. SUPERIOR COURT OF CALIFORNIA, CONTRA COSTA COUNTY MARTINEZ, CA DEPARTMENT 27 JUDICIAL OFFICER: TERRI MOCKLER HEARING DATE: 08/21/2024
Ruling
RONI S. SHEVICK VS CITY OF LONG BEACH
Aug 27, 2024 |Renee C. Reyna |21STCV42224
Case Number: 21STCV42224 Hearing Date: August 27, 2024 Dept: 29 Shevick v. City of Long Beach 21STCV42224 Defendants motion for summary judgment. Tentative Ruling The motion for summary judgment is DENIED. Background On November 16, 2021, Roni S. Shevick (Plaintiff) filed a complaint against City of Long Beach (City) and Does 1 through 25 for premises liability/dangerous condition of public property arising out of a trip and fall occurring on January 16, 2021. On December 29, 2021, City filed an answer. On October 5, 2023, City filed this motion for summary judgment. On July 24, 2024, Plaintiff filed an opposition. City filed a reply, along with objections to some of Plaintiffs evidence, on July 29. The hearing on this motion was initially set for August 1, 2024. On the stipulation of the parties, the hearing was continued to August 27. Legal Standard The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) As to each cause of action as framed by the complaint, a defendant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851; Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851.) A plaintiff or cross-complainant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. (Code Civ. Proc., § 437c, subd. (p)(1).) Once the plaintiff or cross-complainant has met that burden, the burden shift to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Ibid.) The party opposing a motion for summary judgment or summary adjudication may not simply rely upon the allegations or denials of its pleadings but must instead set forth the specific facts showing that a triable issue of material fact exists. (Code Civ. Proc., § 437c, subds. (p)(1) & (p)(2). To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) Objections to Evidence City asserts 14 objections to the Declaration of Brad Avrit. Evidence presented in support of, or in opposition to, a motion for summary judgment must be admissible. (Code Civ. Proc., § 437c, subd. (d); Perry v. Bakewell Hawthorne LLC (2017) 2 Cal.5th 536, 541-43.) The court must consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained. (Code Civ. Proc., § 437c, subd. (c).) The Court SUSTAINS Objections Nos. 1-4. The photographs are not properly authenticated, and the declarant does not have personal knowledge sufficient to provide information regarding the physical condition of the accident site. The Court OVERRULES Citys other objections. The Court finds that Mr. Avritt has appropriate credentials and his testimony relates to a subject that is sufficiently beyond common experience that the opinion of an expert witness would assist the trier of act; is based on information of the type on which an expert may reasonably rely; is based on reasons supported by the information on which the expert relies; and is not speculative. (Evid. Code, §§ 801-802; Sargon Enterprises v. USC (2012) 55 Cal.4th 747, 771-21.) The Court recognizes that Mr. Avrit opines that there was a dangerous condition present at the scene of the accident. This testimony is not binding on the Court and does not in itself create a disputed issue of material fact on a motion for summary judgment. The fact that a witness can be found to opine that & a condition constitutes a significant risk and a dangerous condition does not eliminate this courts statutory task pursuant to Government Code section 830.2, of independently evaluating the circ*mstances. (Thimon v. City of Newark (2020) 44 Cal.App.5th 745, 755; accord Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1189; Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 705.) But expert opinion may be admissible, relevant, and helpful to the Court, even if it is not determinative. The Court will consider all of the admissible evidence (including the expert opinion evidence as to which no objection is sustained) in conducting its independent obligation (in which expert opinion evidence is not determinative) to evaluate whether the existence of a dangerous condition may be resolved on this record as a matter of law. Discussion As a preliminary matter, the Court notes that near the end of her opposition, Plaintiff requests a continuance under Code of Civil Procedure section 437c, subdivision (h), if the Court is included to grant any part of Defendants motion. (Opp. at p. 19.) Thats not how it works. Plaintiff cannot ask for a continuance only if she is losing. Either Plaintiff is requesting a continuance or she is not; the Court construes her opposition as requesting a continuance. The request for a continuance is denied. A request for a statutory continuance under section 437c, subdivision (h), must be supported by a declaration or declarations setting forth the basis for the request. No such declaration has been filed, and Plaintiff does not explain why any necessary discovery was not conducted and completed in the ten months since this motion was filed. Nor does the Court find good cause on this record for non-statutory continuance. (See Chavez v. 24 Hour Fitness USA (2015) 238 Cal.App.4th 632, 643-644; Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 716.) Turning to the merits, Plaintiff asserts a cause of action against City for a dangerous condition of public property under Government Code section 835. As set forth in the statute, there are four elements of such a claim: [A] public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes [1] that the property was in a dangerous condition at the time of the injury, [2] that the injury was proximately caused by the dangerous condition, [3] that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and [4] either: (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or¿(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. (Govt Code, § 835; see also, e.g., Tansavatdi v. City of Rancho Palos Verdes (2023) 14 Cal.5th 639, 653; Thimon, supra, 44 Cal.App.5th at p. 753.) Here, City moves for summary judgment on the grounds (1) that the defect with the sidewalk was not a dangerous condition but rather was a trivial defect, and (2) that City did not have actual or constructive notice of the defect. Dangerous Condition/Trivial Defect The term dangerous condition means a condition of property that creates a substantial (as distinguished from a minor,¿trivial¿or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it¿will be used.¿(Gov. Code, § 830, subd. (a); see also Thimon, supra, 44 Cal.App.5th at p. 754.)¿Public property is in a dangerous condition within the meaning of section 835 if it is physically damages, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself. (Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105.) The existence of a dangerous condition ordinarily is a question of fact, but the issue may be resolved as a matter of law if reasonable minds can come to only one conclusion. (Peterson v. San Francisco Comm. College Dist.¿(1984) 36 Cal.3d 799, 810; accord Stack v. City of Lemoore (2023) 91 Cal.App.5th 102, 110; Nunez v. City of Redondo Beach (2022) 81 Cal.App.5th 749, 757.) Plaintiff has the burden of proving the existence of a dangerous condition and each element of a cause of action under Government Code 835. A court may not presume that there was a dangerous condition merely because the plaintiff was injured. (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 241 [describing such an argument as reason[ing] backwards].) A condition is not dangerous within the meaning of the statute unless it creates a hazard to those who foreseeably will use the property ... with due care. Thus, even though it is foreseeable that persons may use public property without due care, a public entity may not be held liable for failing to take precautions to protect such persons.¿(Matthews v. City of Cerritos¿(1992) 2 Cal.App.4th 1380, 1384.) The condition of the property involved should create a substantial risk of injury, for an undue burden would be placed upon public entities if they were responsible for the repair of all conditions creating any possibility of injury however remote that possibility might be.¿(Fredette¿v. City of Long Beach¿(1986) 187 Cal.App.3d 122, 130, fn.5; accord Nunez, supra, 81 Cal.App.5th at p. 758.) Government Code section 830.2 provides that a condition is not a dangerous condition under the Government Claims Act: if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circ*mstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used. (Gov. Code, § 830.2; accord Cordova, supra, 61 Cal.4th at p. 1105.).) This statutory principle is sometimes referred to as the trivial defect doctrine. It is impossible to maintain public walkways in perfect condition. (Stack, supra, 91 Cal.App.5th at pp. 109-110; Nunez, supra, 81 Cal.App.5th at p. 758; Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 26.) The Government Claims Act is not intended to make public entities insurers against injuries arising from trivial defects. (Stack, supra, 91 Cal.App.5th at p. 109; Thimon, supra, 44 Cal.App.5th at p. 757.) Rather, the trivial defect doctrine shields public entities from liability for minor, trivial, or insignificant defects. (Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1104; Kasparian, supra, 156 Cal.App.4th at p. 27.) This is not to say that it is impossible for a member of the public to trip, fall, and sustain injuries as a result of a defect that is trivial. (See Nunez, supra, 81 Cal.App.5th at pp. 759-760.) But the duty of care of a public entity (or a private landowner) does not extend to protecting pedestrians or other members of the public from minor or trivial defects. (Id. at pp. 757, 759.) The trivial defect doctrine is not an affirmative defense. It is an aspect of duty that a plaintiff must plead and prove. (Huckey, supra, 37 Cal.App.5th at p. 1104; accord Nunez, supra, 81 Cal.App.5th at p. 757.) In appropriate cases, the trial court may determine ... whether a given walkway defect was trivial as a matter of law. (Huckey, supra, 37 Cal.App.5th at p. 1104.) Where reasonable minds can reach only one conclusionthat there was no substantial risk of injurythe issue is a question of law, properly resolved by way of summary judgment. (Id. at pp. 1104-1105 (quoting Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 929).) If, however, the court determines that sufficient evidence has been presented so that reasonable minds may differ as to whether the defect presents a substantial risk of injury, the court may not conclude that the defect is trivial as a matter of law. (Huckey, supra, 37 Cal.App.5th at p. 1105.) In cases involving allegedly dangerous conditions on a sidewalk or other walkway, courts generally begin their analysis by considering the size of the defect. The size of the height differential, rise, or other defect is in many cases the most important factor. (Stack, supra, 91 Cal.App.5th at p. 111; see also, e.g., Huckey, supra, 37 Cal.App.5th at p. 1105 [stating that size of defect may be one of the most relevant factors].) As the Court of Appeal has explained, however, [i]n determining whether a given walkway defect is trivial as a matter of law, the court should not rely solely upon the size of the defect. (Huckey, supra, 37 Cal.App.5th at p. 1105 [emphasis in original].) [A] tape measure alone cannot be used to determine whether the defect was trivial. (Caloroso, supra, 122 Cal.App.4th at p. 927.) Rather, a court should consider other circ*mstances which might have rendered the defect a dangerous condition at the time of the accident. (Huckey, supra, 37 Cal.App.5th at p. 1105.) These other circ*mstances or factors include whether there were any broken pieces or jagged edges in the area of the defect, whether any dirt, debris or other material obscured a pedestrians view of the defect, the plaintiffs knowledge of the area, whether the accident occurred at night or in an unlighted area, the weather at the time of the accident, and whether the defect has caused any other accidents. (Ibid.) In addition, the Court may also take into account, as part of its consideration of the totality of the circ*mstances, whether the defect was open and obvious to a person exercising due care and whether there were signs warning a person acting with due care about the danger. (Fredette, supra, 187 Cal.App.3d at pp. 131-132.) In sum, [a] court should decide whether a defect may be dangerous only after considering all of the circ*mstances surrounding the accident that might make the defect more [or less] dangerous than its size alone would suggest. (Huckey, supra, 37 Cal.App.5th at p. 1105 [quoting Caloroso, supra, 122 Cal.App.4th at p. 927]; accord Nunez, supra, 81 Cal.App.5th at p. 757.) Here, Plaintiff tripped and fell on a sidewalk on January 6, 2021, at approximately 7:30 am, near the corner of Marina Drive and North Marina Drive in the City of Long Beach. (Defendants Statement of Undisputed Material Facts [DSUMF], Nos. 1-4; Plaintiffs Statement of Additional Material Facts [PSAMF], Nos. 1-8.] The sun was out, but it was early and Plaintiff testified that it was a little murky by the water, where the accident occurred. (DSUMF, Nos. 4, 6; Beloryan Decl., Exh. 1 [Plaintiffs Depo.], at 31:19-25.) Plaintiff testified that although she did recall exactly where she was looking right before the accident, she did not recall any distractions or anything & that may have drawn your attention away from looking down in front of you. (Plaintiffs Depo., at 43:1-7.) Plaintiff testified, I took a step, my toe hit into something and I flipped up and the last thing I remembered was hitting down on my left side. (Id., at 37:15-21.) She immediately told her walking partner, David Phillips, I tripped on the crack and I fell. (Id., at 43:13-22; see also Diao Decl., Exh. D [Plaintiffs response to Citys interrogatories].) There is a defect in the sidewalk at the location of the accident: there is some cracking in the sidewalk, and the second panel (in the direction of travel) of the sidewalk is raised or offset as compared to the first panel. (Beloryan Decl., Exhs. 1A, 4B; Diao Decl., Exh. F [Alonso Decl.] ¶ 14 & Exh. G.) The height differential runs from 3/4 of an inch to 1-5/16 of an inch. (PSAMF, No. 15; Diao Decl., Exhs. D & H.) The edge of the uplift is uneven and jagged. (Diao Decl., Exhs. G-H.) The Court has considered all of the facts in the record, as well as the arguments of both sides, and has evaluated the totality of the circ*mstances. On this record, the Court finds that reasonable minds can differ minds as to whether the defect at issue presented a substantial risk of injury presents a substantial risk of injury when the sidewalk was used with due care in a manner in which it was reasonably foreseeable that it would be used. In making this determination, the Court gives significant weight to the size of the defect, the cracking in the pavement, the jagged edge of the defect, and the Plaintiffs testimony that it was murky in the early morning at the time of the accident. Accordingly, the Court cannot conclude that the defect was trivial as a matter of law. Actual or Constructive Notice Separately, and independently, City argues that Plaintiff cannot establish the essential element of actual or constructive notice. As to actual notice, City presents extensive evidence to show that it did not have actual knowledge of this particular sidewalk defect prior to Plaintiffs accident. (Alonso Decl., ¶¶ 11-13, 15; Diao Decl., Exh. I [Woodson Decl.], ¶¶ 5-8; id., Exh. J [Fiege Decl.], ¶¶ 5-8.) It appears that Plaintiff concedes the point, as her opposition focuses on constructive notice, rather than actual notice. Turning to constructive notice, Government Code section 835.2, subdivision (b), provides: A public entity had constructive notice of a dangerous condition & only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. On the issue of due care, admissible evidence includes but is not limited to evidence as to: (1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property. (2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition. (Gov. Code, § 835.2, subd. (b).) A claim for constructive notice has two threshold elements. (Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 320.) First, a plaintiff must establish that the dangerous condition has existed for a sufficient period of time. (Ibid.) Second, a plaintiff must show that the dangerous condition was obvious. (Ibid.; see also, e.g., Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508, 514, 519.) Constructive notice may be imputed if it can be shown that an obvious danger existed for an adequate period of time before the accident to have permitted the state employees, in the exercise of due care, to discover and remedy the situation had they been operating under a reasonable plan of inspection. (State v. Superior Ct. (1968) 263 Cal.App.2d 396, 400.) The primary and indispensable element of constructive notice is a showing that the obvious condition existed a sufficient period of time before the accident, and the secondary element is the method of inspection. (Ibid.) In Strongman v. Kern County (1967) 255 Cal.App.2d 308, the court held that the critical test for constructive notice is whether the condition has existed long enough that it may be inferred that a reasonable inspection would have ascertained its existence. (Id. at p. 313.) A plaintiff can meet this burden with circ*mstantial evidence. (Id.) City presents evidence that it addresses concerns about the condition of public walkways in the City on a call for service basis that relies on reports from members of the public or City employees. (Alonso Decl., ¶ 12; Woodson Decl., ¶ 5; Fiege Decl., ¶ 5.) Plaintiff responds, however, with evidence that the defect was in existence and visible by at least February 2015. (Beloryan Decl., Exh. 5.) The Court has considered all of the facts in the record, as well as the arguments of both sides. On this record, the Court finds that reasonable minds can differ minds as to whether the dangerous condition on the sidewalk was in existence for a sufficient period of time, and was sufficiently visible, as to charge City with constructive notice of the defect. On this record, the Court concludes, this issue cannot be resolved in Citys favor as a matter of law. Additional Issues In its reply, City addresses issues of statutory immunity and a potential summary adjudication of issues. As these matters were not raised in the notice of motion and motion (or elsewhere in the moving papers), the Court declines to reach these issues. Conclusion The Court DENIES City of Long Beachs motion for summary judgment. Moving party is to give notice.
Ruling
Gaige vs. Greyhound Lines, Inc,; A Delawre Corporation
Aug 26, 2024 |23CV-0203891
GAIGE VS. GREYHOUND LINES, INC, ET AL.Case Number: 23CV-0203891This matter is on calendar for review regarding status of removal. The matter was removed to Federal Court andon February 23, 2024, the Court found this matter to be exempt from case disposition goals under CRC3.714(c)(1). Due to the removal to Federal Court, the Court removes this matter from the Court’s control. TheCourt continues this Review Hearing to Monday, August 25, 2025 at 9:00 a.m. in Department 63 for reviewregarding status of removal. No appearance is necessary on today’s calendar.
Ruling
GALEN HARRILL VS OKHUNDZHON KOMILOV, ET AL.
Aug 26, 2024 |24NNCV01784
Case Number: 24NNCV01784 Hearing Date: August 26, 2024 Dept: X Tentative Ruling Judge Joel L. Lofton, Department X HEARING DATE: August 26, 2024 TRIAL DATE: No date set. CASE: GALEN HARRILL vs OKHUNDZHON KOMILOV, et al. CASE NO.: 24NNCV01784 MOTION TO STRIKE MOVING PARTY: Defendant Okhundzhon Komilov RESPONDING PARTY: Plaintiff Galen Harrill SERVICE: Filed July 9, 2024 OPPOSITION: None filed. REPLY: Filed August 19, 2024 RELIEF REQUESTED Defendant moves to strike the punitive damages allegation and prayer for relief in Plaintiffs complaint pursuant to Code of Civil Procedure sections 435 and 436. BACKGROUND This is a personal injury action arising from a semi-truck-versus-automobile accident on June 16, 2023. The complaint alleges Defendant Komilov operated a semi-truck at an unsafe speed, and entered Plaintiffs lane unsafely, and as a result collided with Plaintiffs vehicle which caused significant and debilitating injuries to Plaintiff. TENTATIVE RULING Defendants motion to strike the punitive damages allegation and prayer for relief is GRANTED. LEGAL STANDARD A judge may, on a motion to strike made under Code of Civil Procedure section 435 or at any time at the judges discretion, strike out any irrelevant, false, or improper matter in a pleading, on terms the judge deems proper. (Code Civ. Proc. § 436, subd. (a).) A motion to strike may be used to remove a claim for punitive damages that is not adequately supported by the facts alleged in the complaint. (Cryolife, Inc. v. Superior Court (2003) 110 Cal.App.4th 1145; Kaiser Foundation Health Plan, Inc. v. Superior Court (2012) 203 Cal.App.4th 696.) In ruling on a motion to strike punitive damages, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294. (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) As set forth in the Civil Code, (1) Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (2) Oppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (3) Fraud means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civ. Code, § 3294, subd. (c)(1)-(3), emphasis added.) Further, a plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud or malice. To wit, there is a heightened pleading requirement regarding a claim for punitive damages. (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.) When nondeliberate injury is charged, allegations that the defendant's conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice. (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.) Punitive damages are not ordinarily recoverable in actions for negligence. (Ibid.) Punitive damages are only recoverable if the plaintiff establishes oppression, fraud, or malice, as defined by Civil Code section 3294(c). In Lackner v. North (2006) 135 Cal.App.4th 1188, 1212-1213, the court noted that an award of punitive damages in cases involving unintentional torts is rare, and that no California case had found despicable conduct in the context of an unintentional collission. [O]rdinarily, routine negligent or even reckless disobedience of traffic laws would not justify an award of punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 899-900.) To properly allege punitive damages in a motor vehicle accident action, a plaintiff needs to "establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully and deliberately failed to avoid those consequences." (Id. at 896; see also Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 90.) DISCUSSION Defendant moves to strike portions of Plaintiffs complaint pertaining to punitive and exemplary damages and related references. Defendant argues Plaintiffs complaint has not alleged sufficient facts to support the recovery of punitive damages. Specifically, Defendant attests that Plaintiffs allegation of Defendant fleeing the scene of the accident is insufficient to support a prayer for punitive damages. The complaint alleges Plaintiffs suffering was exacerbated by the sight of defendant fleeing the scene, deepening his emotional distress and compounding his injuries in paragraph 26. Defendant argues the allegations failed to meet the statutory and pleading requirements so punitive and exemplary damages allegations and prayer are subject to a motion to strike. There is no opposition. Because there is no opposition, Plaintiff cites to no authority supporting an award of punitive damages where an auto accident was negligently caused, but the at-fault driver left the scene in violation of the hit-and-run law. Taylor, cited by plaintiffs, involved a claim that the at-fault driver was intoxicated, a situation very different from an accident caused by inattentiveness. Constitutional restrictions permit recovery of punitive damages only for conduct that harms the plaintiff. (See Holdgrafer v. Unocal Corp. (2008) 160 Cal.App.4th 907, 928, quoting State Farm Mut. Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408, 422-433.) Punitive damages must focus on the reprehensibility of the type of conduct that harmed plaintiff. (Haning, et al., Cal. Pract. Guide: Personal Injury (Rutter Group 2021) ¶ 3:1455.) In the Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1176 the Court of Appeal determined that the defendants post-tort conduct failed to demonstrate that defendant acted with malice. Violation of the hit-and-run statute, Vehicle Code section 20001 et seq., involves post-accident conduct. In a hit-and-run situation, it punishes the running (fleeing the scene), not the hitting (causing the accident). [T]he conduct made criminal by Vehicle Code section 20001, subdivision (b) is fleeing the scene of an injury accident without providing the required information or rendering assistance, rather than causing or being involved in the accident itself. (Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1340.) The occurrence of an injury accident is a condition precedent to the imposition of duties upon the driver under Vehicle Code sections 20001, subdivision (a) and 20003, but is not an element of the crime under Vehicle Code section 20001, subdivision (b). (Ibid.) The damages recoverable in a civil action for violation of the statute are limited to those caused by fleeing rather than damages caused by the accident itself. (Ibid., citing People v. Corners (1985) 176 Cal.App.3d 139, 148.) Here, looking only at allegations of the complaint, Defendants conduct does not rise to the level of despicable conduct sufficient to support the award of punitive damages. The complaint states Defendants fleeing the scene immediately after collision demonstrated a malicious and willful disregard for the consequences of his actions, and necessitates punitive damages in the case. But Plaintiff only asserts minimal facts: that, having collided with Plaintiffs vehicle, Komilov left the scene of an accident involving both personal injury and property damage. Fleeing the scene of the incident does not necessarily amount to despicable conduct. Paragraph 26 of the complaint further alleges Plaintiff suffering was exacerbated by the sight of the defendant fleeing the scene, deepening his emotional distress and compounding his injuries. These allegations are not specific enough to establish that the post-accident conduct caused any damage or injury to Plaintiff. The Court agrees with Defendants contention that the complaint lacks specific facts to substantiate the allegations. None of the facts alleged indicate he knew Plaintiff was injured and then left the scene, or that Defendant increased the risk or damage to Plaintiff by leaving. Komilovs violations of the Vehicle Code, while illegal, do not automatically mean punitive damages are appropriate. The complaint has not established Plaintiffs contention that Defendant acted with malice by willfully and consciously disregarding the rights or safety of Plaintiff. The complaints allegations are conclusory and do not show the requisite degree of malice, oppression, or fraud. Malice requires intent to injury or despicable conduct carried on with willful and conscious disregard for the rights or safety of others. A simple hit and run does not qualify as such. Evidence showing a possible violation of Vehicle Code section 20001 does not show that Defendant acted with malice in causing the accident and injury in the first place. The alleged post-accident conduct does not provide a basis for recovering punitive damages against Defendant. In the absence of aggravating allegations, there is no basis for punitive damages. Accordingly, sufficient grounds exist to grant the motion to strike references to punitive damages allegations. Conclusory allegations that defendants conduct was malicious are insufficient and subject to being stricken. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1036.) The proper standard for determination of a motion to strike punitive damages is whether plaintiff has alleged ultimate facts showing an entitlement to exemplary damages. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) The court GRANTS Defendants motion to strike the punitive damages allegation and prayer for relief in items 1 and 2 of the notice of motion, because nothing in the complaint indicates that Defendants conduct arose to the level of malice, oppression, or fraud as those terms are defined in Civil Code section 3294. CONCLUSION Accordingly, Defendants motion to strike portions of the complaint pertaining to Plaintiffs claim for exemplary/punitive damages is GRANTED with leave to amend. Plaintiff has 30 days from the date of this order to amend the complaint. The Court notes that unless a subsequent amendment cures the above defects in the pleading, the Court would consider granting a motion to strike filed thereto without leave to amend. Moving Party to provide notice. Dated: August 26, 2024 ___________________________________ Joel L. Lofton Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the court indicating their intention to submit. alhdeptx@lacourt.org
Ruling
- ROCHA, FERNANDO vs TRUJILLO, DIANA LISBBETH HERNANDEZ
Aug 26, 2024 |CV-22-002302
CV-22-002302 - ROCHA, FERNANDO vs TRUJILLO, DIANA LISBBETH HERNANDEZ – a) Plaintiff's Motion for Order Compelling Further Verified Responses From Defendant Ontrac to Plaintiff's Request for Production of Documents, Set Two; Request for Sanctions- CONTINUED, on the Court’s own motion.; b) Plaintiff's Motion for Order Compelling Further Verified Responses From Defendant Ontrac to Plaintiff's Request for Admissions, Set One; Request for Sanctions - CONTINUED, on the Court’s own motion.; c) Plaintiff's Motion for Order Compelling Further Verified Responses From Defendant Ontrac to Plaintiff's Form Interrogatories, Set Three; Request for Sanctions – CONTINUED, on the Court’s own motion.a)-c) - The Court requires additional time to review the pleadings herein. Accordingly, this matter is continued to September 24, 2024, at 8:30 am in Department 24.
Ruling
JAIME BLANCO MACIEL, ET AL. VS ALPHA TILE AND STONE, INC., ET AL.
Aug 27, 2024 |23STCV12007
Case Number: 23STCV12007 Hearing Date: August 27, 2024 Dept: 55 Proceedings: Defendant Spectrum Quartz LLC's Motion to Quash Service for Lack of Jurisdiction Specially Appearing Defendant Spectrum Quartz LLC moves to quash service of the Summons and Complaint based on lack of personal jurisdiction. Plaintiffs filed an opposition to the motion, in which they request that the Court deny the motion, or, alternatively, they request an opportunity to conduct jurisdictional discovery. Plaintiffs opposition was filed late. The Court will discuss with counsel Plaintiffs request for jurisdictional discovery and also a schedule to continue the motion so that the parties can submit further briefing.
Document
Loren Nicolosi v. Fairfield Terrace, Llc
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Nicoletta M Broskett AS EXECUTOR OF THE ESTATE OF RICHARD BROSKETT, DECEASED v. St. Catherine Of Siena Nursing And Rehabilitation Care Center
Jun 17, 2020 |David T. Reilly |Torts - Other Negligence (NEGLIGENCE) |Torts - Other Negligence (NEGLIGENCE) |607256/2020
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Roxann D. Villano a/k/a ROXANN D. NELSON v. Wdp Enterprises At East Islip, Inc.
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Darren Duryee v. Barbara J Fiorentino, Lg Fleet, Llc, Montauk Bus Service, Inc
Jun 22, 2023 |Alison J. Napolitano |Torts - Motor Vehicle |Torts - Motor Vehicle |615576/2023
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Reuven Cohen v. Jody L Banaszak
Mar 13, 2019 |William J. Condon |Torts - Motor Vehicle |Torts - Motor Vehicle |604903/2019
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Randolph J. Taylor v. Eric M. Castillo-Wilson, Jace Castillo-Wilson
Sep 21, 2023 |Alison J. Napolitano |Torts - Motor Vehicle |Torts - Motor Vehicle |623588/2023
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Maxina Turcotte v. Charles Javier Craig, Nissan Of Huntington, Carlos Raul Marquez Rivas, Nissan Of Huntington
Mar 20, 2024 |Stephen Hackeling |Torts - Motor Vehicle |Torts - Motor Vehicle |607055/2024
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Dec 15, 2023 |_ DCM JUSTICE |Torts - Medical, Dental, or Podiatrist Malpractice |Torts - Medical, Dental, or Podiatrist Malpractice |631059/2023
