Case Number: BC688913 Hearing Date: April 03, 2018 Dept: 92

MARIA VICTORIA WHITFIELD,

Plaintiff(s),

vs.

MARC SEAN LAPSLEY SR et al.,

Defendant(s).

Case No.: BC688913

[TENTATIVE] ORDER SUSTAINING THE DEMURRER IN ENTIRETY AND GRANTING THE MOTION TO STRIKE

Dept. 92

1:30 p.m.

April 3, 2018

Defendant Perris Valley Auto Center Inc’s Demurrer is SUSTAINED in entirety and the Motion to Strike is GRANTED. Plaintiff is granted fifteen days’ leave to amend the first cause of action to include allegations of negligence per se and gross negligence or willful misconduct. The Court is inclined to sustain the demurrer to the fourth and fifth causes of action without leave to amend unless Plaintiff can make an offer of proof at the hearing on how the complaint can be amended to state a claim under Vehicle Code sections 14606 and 14604. The Court is also inclined to grant the motion to strike the prayer for punitive damages without leave to amend unless Plaintiff can make an offer of proof at the hearing on how the complaint can be amended to warrant punitive damages.

I. Background Facts

On January 2, 2018, plaintiff Maria Victoria Whitfield (“Plaintiff”) filed a complaint against defendants Marc Sean Lapsley Sr (“Lapsley”), Perris Valley Kia Inc (“KIA”) and does 1 to 25 alleging causes of action for (1) negligence, (2) negligence per se, (3) motor vehicle owner liability, (4) violation of Vehicle Code section 14606, (5) violation of Vehicle Code section 14604, (6) negligent entrustment of motor vehicle and (7) recklessness.

The complaint in relevant part alleges the following: 1) on August 9, 2017, Lapsley rear ended Plaintiff’s vehicle on the freeway thereby causing Plaintiff injury. (Complaint ¶¶ 9-10); 2) Lapsley’s driver’s license was suspended at the time of the collision and he did not have personal auto insurance. (Id. ¶ 12); and 3) Lapsley was driving his vehicle under the coverage and authorization of KIA. (Id. ¶ 13)

On February 28, 2018, KIA filed a demurrer to the second, fourth, fifth and seventh causes of action on the grounds that they fail to state facts sufficient to support a cause of action and that they are uncertain. KIA also filed a motion to strike allegations of and the prayer for punitive damages. On March 21, 2018, Plaintiff filed oppositions and on March 26, 2018, KIA filed replies.

The Court notes that since the hearing on the demurrer is set for April 3, 2018, any opposition was due by March 20, 2018. (CCP § 1005(b).) Since the opposition was not filed until March 21, 2018, the opposition is untimely. However, since the opposition was only one day late and since KIA was able to file a timely reply, the Court finds that the KIA is not substantially prejudiced by the opposition. Thus, the Court exercises its discretion to consider the opposition.

II. Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (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, 147 Cal.App.4th at 747.)

A motion to strike lies either (1) to strike any irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court. (CCP § 436.)

III. Discussion

A. Meet and Confer

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (CCP §§ 430.41 and 435.5.)

The Court notes that KIA provides a declaration by Michelle M. Lambre which states that on February 26, 2018, she contacted Plaintiff’s counsel to meet and confer and that she was requested to put her reasons for the demurrer and motion to strike in writing. (See, Decl. Lambre ¶ 5.) Michelle M. Lambre declares that on February 27, 2018, she emailed Plaintiff’s counsel reasons for the demurrer and the motion to strike and that on February 28, 2018, Plaintiff’s counsel informed her that he disagreed with her position. (Id.)

The opposition contends that KIA failed to properly meet and confer in a timely manner. Plaintiff contends that pursuant to an extension, KIA had until February 26, 2018 to file a responsive pleading. (See Decl. Wright ¶ 5.) Plaintiff argues that pursuant to CCP § 430.41(a)(2), KIA was supposed to meet and confer at least five days before a responsive pleading was due, which in this case means that meet and confer was due by February 21, 2018. Plaintiff however contends that KIA did not meet and confer until February 27, 2018 and KIA failed to file a declaration regarding its failed meet and confer efforts such that a thirty-day extension would be provided by CCP 430.41(a)(2). In reply, KIA provides a second declaration by Michelle M. Lambre in which counsel declares that she was not able to reach Plaintiff’s counsel until February 27, 2018 even though she attempted to contact Plaintiff’s counsel both on and before February 26, 2018. (Second Decl. Lambre ¶¶ 4-6.)

The Court notes that it seems that KIA failed to meet and confer at least five days before KIA’s responsive pleading was due as required by CCP 430.41(a)(2) and 435.5(a)(2). However, CCP §§ 430.41(a)(4) and 435.5(a)(4) provide that any determination by the Court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer or grant or deny a motion to strike. Additionally, it is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697; CCP §475.)

Here, since the moving papers were filed only a few days after a responsive pleading was due and because Plaintiff was able to file an opposition on the merits, the Court exercises its discretion to consider the demurrer and motion to strike on the merits. The Court does caution counsel for both parties however that they should take care to abide by statutory requirements in the future.

B. Second Cause of Action: Negligence Per Se

KIA contends that Plaintiff cannot maintain a cause of action for negligence per se because negligence per se is not a cognizable cause of action. The opposition does not address the issue of whether Plaintiff can allege an independent negligence per se claim, rather the opposition contends that Plaintiff is able to establish her cause of action for negligence per se.

Negligence per se claim is not a separate cause of action (see Johnson v. Honeywell International, Inc. (2009) 179 Cal.App.4th 549, 555; Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285), rather, it is a separate theory of negligence upon which recovery may be based. (See e.g., Randi W. v. Muroc Joint Unified School Dist. (1997) 14 Cal.4th 1066, 1086-87.)

Since negligence per se is not an independent cause of action, and since the first cause of action already pleads negligence, the Court finds that the second cause of action for negligence per se is improper. Thus, the demurrer to the second cause of action is SUSTAINED.

C. Seventh Cause of Action: Recklessness

KIA contends that Plaintiff cannot maintain a cause of action for recklessness because such a cause of action is not recognized as an independent cause of action. The opposition does not address the issue of whether Plaintiff can allege an independent recklessness claim, rather the opposition contends that Plaintiff is able to establish her cause of action for recklessness.

California does not recognize a distinct common law cause of action for gross negligence apart from negligence. (Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 552 fn. 3.) Rather, gross negligence is pleaded by alleging the traditional elements of negligence: duty, breach, causation, and damages. (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640.) To set forth a claim for “gross negligence” the plaintiff must also allege conduct by the defendant involving either “want of even scant care” or “an extreme departure from the ordinary standard of conduct.” (Id.) Gross negligence connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results. (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640 [quotations and citation omitted].) However, “[i]n reality, California does not recognize a distinct cause of action for ‘gross negligence’ independent of a statutory basis.” (Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 856, fn. 18 [quotations and citations omitted].) Numerous cases discuss the doctrine of gross negligence, however, these cases have invariably involved a statute containing the words “gross negligence” in the text. (Cont’l Ins. Co. v. Am. Prot. Indus. (1987) 197 Cal.App.3d 322, 329.)

“Willful misconduct” is not a separate tort from negligence, but rather an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care. (Doe v. United States Youth Soccer Association, Inc. (2017) 8 Cal.App.5th 1118, 1140.) In order to establish willful misconduct, a plaintiff must prove not only the elements of a negligence cause of action, that is, duty, breach of duty, causation, and damage, but also (1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril. (Id.) Willful misconduct is not marked by a mere absence of care, rather, it involves a more positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences. (Id.)

Here, though not clear, it seems that Plaintiff is attempting to allege a cause of action for either gross negligence or willful misconduct. However, since both gross negligence and willful misconduct are not independent of negligence, the Court finds that absent statutory authority providing otherwise, the seventh cause of action is improper.

Therefore, the demurrer to the seventh cause of action is SUSTAINED.

D. Fourth Cause of Action: Violation of California Vehicle Code section 14606

KIA contends that Plaintiff cannot maintain a cause of action for violation of Vehicle Code section 14606 because KIA did not own the vehicle that Lapsley drove at the time of the accident. Plaintiff opposes on the ground that KIA still possessed an ownership interest in the vehicle because it was solely insured by KIA, thus, the vehicle was under KIA’s control.

Vehicle Code section 14606 (“section 14606”) in relevant part provides that “a person shall not employ, hire, knowingly permit, or authorize any person to drive a motor vehicle owned by him or her or under his or her control upon the highways unless that person is licensed for the appropriate class of vehicle to be driven. (Veh. Code, § 14606(a).)

Section 14606 makes a motor vehicle owner who knowingly entrusts his vehicle to an unlicensed driver liable for a third party’s injuries caused by the driver’s negligence. (Dodge Center v. Superior Court (1988) 199 Cal.App.3d 332, 338.) A cause of action based on this statute parallels a cause of action at common law for negligent entrustment, resting on a demonstration of knowing entrustment to an incompetent or dangerous driver with actual or constructive knowledge of his incompetence. (Id.) Section 14606, like the common-law cause of action for entrustment, requires a showing of knowledge of the incapacitating condition, which under the statute is lack of a license. (Id.) Notably, no liability may be imposed on an automobile dealer for merely selling a car to an unlicensed driver, since the dealer is entitled to presume that the driver is either legally entitled to drive or, if not, that he will have somebody else drive. (Id. at 338 and 341-342.)

Here, the complaint alleges that KIA authorized and permitted Lapsley to operate a vehicle that KIA sold to Lapsley despite knowing that Lapsley did not have a valid driver’s license. (Complaint ¶¶ 13, 40 and 57.) However, section 14606 refers only to the act of allowing another to drive a vehicle owned by the entrustor or under his control; it does not refer to a sales transaction in which ownership and control pass from the seller to the purchaser. (Dodge Center v. Superior Court (1988) 199 Cal.App.3d 332, 339.) Such a transaction does not result in any form of an entrustment, because the dealership retains no control. (Id.) Section 17156 specifically provides that retaining an ownership interest in a vehicle under a conditional sales contract does not make the seller an owner for purposes of the imputed liability statutes. (Id.) Thus, even if the vehicle was insured by KIA, this does not mean that KIA retained an ownership interest in the vehicle after the car was sold to Lapsley.

Thus, the Court finds that KIA cannot be considered an owner or a party in control of the vehicle that Lapsley was driving. The Court notes that the complaint also alleges that KIA knew that Lapsley had no automobile insurance coverage and that Lapsley had a horrific driving history. (Complaint ¶ 40.) However, the only incompetence that section 14606 is concerned with is the lack of a license. (Dodge at 338.) Thus, since the complaint fails to allege that KIA owned or controlled the vehicle that Lapsley was driving, the complaint fails to state a claim under section 14606. (See Dodge Center, 199 Cal.App.3d at 341-42.)

Accordingly, the demurrer to the fourth cause of action is SUSTAINED.

E. Fifth Cause of Action: Violation of California Vehicle Code section 14604

KIA contends that Plaintiff cannot maintain a cause of action for violation of Vehicle Code section 14604 because KIA did not own the vehicle that Lapsley drove at the time of the accident. Plaintiff opposes on the same ground as above, namely that KIA possessed an ownership interest in the vehicle since it was insured by KIA.

Vehicle Code section 14604 in relevant part provides that:

No owner of a motor vehicle may knowingly allow another person to drive the vehicle upon a highway unless the owner determines that the person possesses a valid driver’s license that authorizes the person to operate the vehicle. For the purposes of this section, an owner is required only to make a reasonable effort or inquiry to determine whether the prospective driver possesses a valid driver’s license before allowing him or her to operate the owner’s vehicle. An owner is not required to inquire of the department whether the prospective driver possesses a valid driver’s license. (Veh. Code, § 14604(a).)

The Court finds as discussed above, since the complaint alleges that KIA sold the vehicle to Lapsley, KIA cannot be considered an owner of the vehicle for purposes of Vehicle Code section 14604.

Accordingly, the demurrer to the fifth cause of action is SUSTAINED.

F. Motion to Strike Punitive Damages

KIA moves to strike the following from the complaint: (1) paragraph 66 on page 11; and prayer for relief number 3 on page 11. The Court notes that since the demurrer to the seventh cause of action was sustained, the motion to strike paragraph 66 is MOOT.

KIA moves the Court to strike Plaintiff’s allegations of and prayer for punitive damages on the ground that the complaint fails to plead facts sufficient to support a claim for punitive damages. Plaintiff opposes and argues that the complaint sufficiently alleges facts to show that KIA’s conduct in allowing Lapsley to drive a vehicle despite knowing that he was incompetent to do so was despicable therefore warranting punitive damages.

A motion to strike punitive damages allegations, specifically, may lie where the facts alleged do not rise to the level of “malice, fraud or oppression” required to support a punitive damages award. (See e.g., Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.)

Civil Code § 3294 authorizes the recovery of punitive damages in non-contract cases where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civil Code § 3294(a).)

Malice is defined as either 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. (Civil Code § 3294(c)(1).) Despicable conduct is conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal. App. 4th 306, 331, [citation omitted].) Specific facts must be pled in support of punitive damages. (See Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-92.)

The Court finds that the allegations in the complaint are insufficient to support a prayer for punitive damages. Plaintiff has not sufficiently pled specific facts to establish oppression, fraud, or malice for punitive damage purposes. (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643.) Rather, this is a basic negligence action based on KIA negligently entrusting a vehicle to Lapsley and Lapsley causing a motor vehicle collision due to his negligence while driving. Thus, the allegations in the complaint are insufficient to justify an award of punitive damages for a basic negligent entrustment of a vehicle. (See Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894.)

Accordingly, the motion to strike is GRANTED.

Moving Party is ordered to give notice.