Case Name: Lauriana Topbjerg, et al. v. EAN Holdings, LLC, et al.
Case No.: 18CV335779

This action arises from a vehicular collision that allegedly took place on northbound interstate 101 in Gilroy, California on December 8, 2016. (See Complaint at ¶¶ 7-8.) The Complaint filed by Plaintiffs Alana Simpson-Hogan, Klaus Topbjerg, Lauriana Topbjerg and Ariana Topbjerg (“Plaintiffs”) on October 3, 2018 states a single cause of action for Negligence against Defendants Leonardo Kyrillos, EAN Holdings, LLC (“EAN”) and various Does (“Defendants”). Currently before the Court is Defendant EAN’s demurrer to the Complaint, opposed by Plaintiffs.

As an initial matter the Court notes that Defendant has not complied with Code of Civil Procedure (“CCP”) §430.41, which requires the parties to meet and confer “in person or by telephone” before the filing of a demurrer. The mere exchange of emails, as described in the declaration of Defense Counsel Gene Stone (submitted as part of the Demurrer rather than filed as a separate document), does not comply with the express terms of the statute. As the failure to comply with §430.41 is not by itself grounds for overruling a demurrer (see §430.41(a)(4)), the Court will proceed with the demurrer despite this technical noncompliance. Counsel are expected to fully comply with §430.41 in the future. Also, any requests for judicial notice that do not comply with Rule of Court 3.1113(l) (requiring such requests to be made in separately filed documents) are denied.

In ruling on a demurrer the Court treats it “as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Piccinini v. Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.) In ruling on a demurrer or motion to strike the Court also considers only the pleading under attack, any attached exhibits (part of the “face of the pleading”) and any facts or documents for which judicial notice is properly requested and may be granted.

The Court cannot consider extrinsic evidence in ruling on a demurrer. Accordingly the Court has not, apart from the reference to required meet and confer efforts, considered the declaration of Defense Counsel Gene Stone, and it has also not considered the declaration of Plaintiffs’ Counsel Ross McKissick (submitted as part of the opposition rather than filed as a separate document).

Demurrer to Negligence cause of action
“In order to establish negligence, a plaintiff must demonstrate a duty on the part of defendant, breach of that duty, causation and damages.” (Strong v. State of Cal. (2011) 201 Cal.App.4th 1439, 1449.) Whether a duty of care exists is a question of law for the Court. (Id.)

Defendant EAN’s demurrer to the Complaint’s sole cause of action for negligence on uncertainty grounds is OVERRULED. “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135; see also Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616 [“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”]) Here, while the Complaint certainly lacks clarity (as will be addressed below) it is apparent from Defendant EAN’s other arguments that it understands what the Complaint attempts to allege and there is no true “uncertainty” in the sense that EAN is clearly capable of responding.

Defendant EAN’s demurrer to the first cause of action for Negligence on the ground that it fails to state sufficient facts against EAN is SUSTAINED with 10 days’ leave to amend.

The Complaint at ¶ 10 states that the term “Defendants” refers to Leonardo Kyrillos, EAN Holdings, LLC, and Does 1 through 20. Thereafter, the Complaint’s allegations against “Defendants” consist almost entirely of “contentions, deductions or conclusions of fact and law” which the Court does not accept as true on demurrer and which are so nonspecific as to any actual Defendant as to border on uncertain. The Complaint’s general allegations assert that “[a]t all times . . . Defendants operated a certain vehicle owned by Defendants . . . Defendants were the operator and/or permissive user of that certain vehicle owned by Defendants . . . Defendants were acting within the course and scope of their employment with Defendants . . . Defendants owed Plaintiffs a duty of care.” (Complaint at ¶¶ 11-14.)

The first cause of action incorporates these allegations by reference and further alleges that “Defendants operated Defendants’ vehicle in such a negligent manner as to cause a collision between Defendants’ vehicle and Plaintiff’s vehicle,” and that “Defendants negligently, carelessly and without due care . . . did so own, entrust, maintain, operate and/or failed to maintain the vehicle driven by Defendants in a safe manner . . . Defendants were employees of Defendants, caused the aforementioned collision while in the course and scope of their employment with, and while acting as an agent for them. Therefore, Defendants are fully responsible for Defendants’ conduct through the doctrine of respondeat superior.” (Complaint at ¶¶ 16-18.)

These conclusory and vague allegations fail to state sufficient facts to support an intelligible negligence claim against any particular Defendant. In particular, such secondary liability allegations have been described by the Supreme Court as “egregious examples of generic boilerplate.” (Moore v. Regents of the Univ. of Cal. (1990) 51 Cal.3d 120, 134, fn. 12.) Where, as here, the operative pleading “does not allege any conduct on [the specific defendant’s] part caused any harm, loss or damage on the plaintiff[’]s[] part,” the inclusion of boilerplate agency allegations “do not result in the complaint stating a cause of action against” that defendant. (Falahati v. Kondo (2005) 127 Cal.App.4th 823, 829.)

As this is a challenge to the original pleading in this matter, leave to amend is appropriate despite the opposition’s failure to demonstrate how the Complaint can be amended to state sufficient facts. (See Medina v. Safe-Guard Products (2008) 164 Cal.App.4th 105, 112 fn. 8 [“As the Rutter practice guide states: ‘It is not up to the judge to figure out how the complaint can be amended to state a cause of action. Rather, the burden is on the plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading.’”] See also Drum v. San Fernando Valley Bar Ass’n. (2010) 182 Cal.App.4th 247, 253 [citing Medina].)

Plaintiffs are reminded that when a demurrer is sustained with leave to amend, the leave must be construed as permission to the pleader to amend the causes of action to which the demurrer has been sustained, not add entirely new causes of action. (See Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023 [“Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court’s order. The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.”])

Defendant EAN’s demurrer to the Complaint on the ground that the negligence claim as alleged against it is barred by federal law is OVERRULED as MOOT in light of the Court’s ruling that the Complaint in its current form fails to state sufficient facts to support a negligence cause of action against EAN.

Defendant EAN argues that 49 U.S.C. § 30106, known as the “Graves Amendment,” immunizes car rental companies from liability based on the alleged negligence of its renter. That statute provides that a car owner who “is engaged in the trade or business of renting or leasing motor vehicles…shall not be liable under the law of any State…if there is no negligence or criminal wrongdoing on the part of the owner.” (49 U.S.C. § 30106, subd. (a).) EAN contends that the Graves Amendment preempts California Vehicle Code section 17150 and bars Plaintiffs’ negligence claim. As EAN is likely aware, no California Court of Appeal has adopted this position in a published decision and there is currently no citable California authority supporting the argument. It is also not apparent from the face of the Complaint or any material submitted with a proper request for judicial notice that Defendant EAN is engaged in the business of leasing or renting motor vehicles. Furthermore the plain language of the statute does not immunize a car rental company from its own negligence. (See 49 U.S.C. § 30106, subd. (a) [a car owner is immune from liability if “there is no negligence or criminal wrongdoing on the part of the owner”].) Assuming Plaintiffs can amend to state sufficient facts in support of a negligence claim against Defendant EAN in particular (rather than conclusory and vague allegations against “Defendants” in general), the Graves Amendment would not be basis for sustaining a further demurrer even if it is assumed to apply.