Case Number: BC701967 Hearing Date: October 30, 2018 Dept: 3

JILL FAXON,

Plaintiff(s),

vs.

ARTHUR JUON KIM et al.,

Defendant(s).

Case No.: BC701967

[TENTATIVE] ORDER SUSTAINING THE DEMURRER TO THE FIRST CAUSE OF ACTION AND THE SECOND CAUSE OF ACTION

Dept. 3

1:30 p.m.

October 30, 2018

The Demurrer is SUSTAINED as to the to the First Cause of Action for Negligence and the second cause of action for negligence per se. Plaintiff is granted twenty days’ leave to amend the first cause of action, however, since negligence per se is not an independent cause of action, no leave to amend will be granted as to the second cause of action.

I. Background

On April 16, 2018, plaintiff Jill Faxon (“Plaintiff”) filed this action against defendants Arthur Juoh Kim and Does 1 to 10 alleging causes of action for (1) negligence and (2) negligent per se. On June 18, 2018, Plaintiff named Juan Ricondo as Doe 1, Enterprise Rent-A-Car (“Enterprise”) as Doe 2, and EAN Holdings LLC (“Ean”) by amendments to complaint.

The complaint in relevant part alleges that on July 6, 2016, the defendants negligently, carelessly and unlawfully drove, operated, controlled, maintained and/or entrusted a motor vehicle thereby causing it to strike Plaintiff as she was crossing the street. (Complaint ¶ 5.) The complaint also alleges that the defendants were agents, servants and/or employees of each other (Id. ¶ 4) and that the defendants violated various provisions of the Vehicle Code. (Id. ¶ 10.)

On September 18, 2018, Enterprise and Ean (jointly Moving Party”) filed a demurrer. On October 17, 2018, Plaintiff filed an opposition.

II. Request for Judicial Notice

Moving Party requests that the Court take judicial notice of (1): Exhibit B, Enterprise’s most recent statement of information filed with the California Secretary of State; (2) Exhibit C, Ean’s most recent statement of information filed with the California Secretary of State; (3) that Enterprise is in the business of renting and/or leasing vehicles; (4) that Ean is in the business of renting and/or leasing vehicles and (5) that Ean is an affiliate of Enterprise.

Plaintiff objects to Moving Party’s request for judicial notice on the ground that while the Court may take judicial notice of official acts and public records, it may not take judicial notice of the truth of the matter stated in such documents. Plaintiff further argues that there is no authority for the proposition that documents that are prepared by private parties and filed with a state agency are judicially noticeable for the truth of their contents.

The Court takes judicial notice of the existence of Exhibits B and C; however, it is improper for the Court to take judicial notice of the truth of the matter asserted in Exhibits B and C especially since these documents were prepared by the defendants and not the secretary of state. (See Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114–115 [“For a court to take judicial notice of the meaning of a document submitted by a demurring party based on the document alone, without allowing the parties an opportunity to present extrinsic evidence of the meaning of the document, would be improper.”]

Accordingly, Moving Party’s request for judicial notice is granted as to requests (1) and (2) and denied as to (3) and (4). The Court also denies request (5) because the fact that Ean is an affiliate of Enterprise is not a matter of common knowledge such that the Court can take judicial notice of it.

III. 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.)

IV. 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 Moving Party has complied with the meet and confer requirement. (Decl. Miller.)

b. Failure to State Facts Sufficient: Negligence

Moving Party contends that except for conclusory allegations, both the first and second causes of action fail to allege facts demonstrating how Moving Party is responsible for Plaintiff’s injuries. Plaintiff opposes on the ground that the complaint sufficiently alleges a claim for negligent entrustment against Moving Party. (Opp. at 2:20-23 and 3:20-25.)

The elements of negligent entrustment are 1) the driver was negligent in operating the vehicle, 2) the defendant was the owner of the vehicle, 3) the defendant knew or should have known the driver was incompetent or unfit to drive the vehicle, 4) the defendant permitted the driver to use the vehicle and 5) the driver’s incompetence was a substantial factor in causing harm to the plaintiff. (Jeld–Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 863, citing CACI No. 724.)

Here, the complaint alleges that on July 6, 2016, the defendants, and each of them, negligently, carelessly and unlawfully drove, operated, controlled, maintained and/or entrusted a motor vehicle thereby causing it to strike Plaintiff as she was crossing the street. (Complaint ¶ 5.) Notably, since Enterprise and Ean were named as Doe defendants, the allegations referring to “defendants” refers to Enterprise and Ean.

The Court finds that these allegations are insufficient to state a claim for negligent entrustment. Notably, the complaint fails to allege facts which establish that Enterprise and Ean entrusted a vehicle to a driver who Enterprise and Ean knew or should have known was incompetent or unfit to drive and that this incompetence was a substantial factor in causing harm to Plaintiff.

The Court acknowledges that “[o]rdinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and … the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) Here, the conclusory allegation that the defendants negligently entrusted a motor vehicle are insufficient to state a claim for negligent entrustment.

Accordingly, the Court SUSTAINS Moving Party’s demurrer to the first cause of action with twenty days’ leave to amend.

c. Negligence Per Se

Moving Party further contends that the second cause of action improperly alleges a theory for negligence per se because the complaint fails to identify what specific Vehicle Code provision was violated and negligence per se is not a recognizable cause of action. The opposition does not address the challenge to the negligence per se claim.

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. Since negligence per se is not an independent cause of action, the demurrer is sustained without leave to amend the second cause of action.

d. Graves Amendment

Moving Party contends that 49 U.S.C. § 30106 (the “Graves Amendment”) bars this action because (1) judicial notice judicial establishes that Enterprise and Ean are in the business of renting and leasing vehicles and (2) the complaint fails to allege facts which would support a claim for direct negligence against Moving Party. Plaintiff opposes on the ground that the Graves Amendment does not bar Plaintiff’s claim because the complaint sufficiently alleges a claim for direct negligence based on negligent entrustment against Moving Party. Plaintiff further argues that the Graves Amendment does not supersede Vehicle Code section 17150 and 17151 which impose liability against an owner of a motor vehicle.

49 U.S.C. § 30106 (the “Graves Amendment) precludes vicarious liability against the owner of a motor vehicle if the owner is in the trade or business of renting, the owner rented the vehicle to a person, the harm arises out of the use, operation, or possession of the vehicle during the rental period and the owner is not independently negligent or engaged in criminal wrongdoing.

Here, (1) the Court denied Moving Party’s request to take judicial notice of the fact that Enterprise and Ean are in the business of selling and leasing vehicles and (2) the complaint does not allege that Enterprise and Ean are in the business of renting or selling vehicles or that a motor vehicle was leased, sold or rented in this matter. However, the opposition papers concede that the vehicle involved in this action was leased by Enterprise and owned by Ean. (Opp. at 2:7-11; see Buckland v. Threshold Enterprises, Ltd. (2007) 155 Cal.App.4th 798, 806 [“When a party opposing a demurrer admits that it does not dispute facts extrinsic to the complaint, the trial court may properly treat these facts as judicial admissions for the purpose of testing the sufficiency of the complaint.”].)

The Graves Amendment preempts state law liability for owners of vehicles who rent or lease vehicles, as long as there is no negligence or criminal wrongdoing on the part of the owner. (49 U.S.C. § 30106(b).) The Graves Amendment further provides that it does not supersede the law of any state imposing liability on business entities engaged in the trade or business of renting or leasing motor vehicles for failure to meet the financial responsibility or liability insurance requirements under state law. (49 U.S.C. § 30106(b).) This savings clause refers to “state laws which impose insurance-like requirements on owners or operators of motor vehicles, but permit them to carry, in lieu of liability insurance per se, its financial equivalent, such as a bond or self-insurance.” (Garcia v. Vanguard Car Rental USA, Inc. (11th Cir. 2008) 540 F.3d 1242, 1247.) Construing the savings clause as applicable to vicarious liability would render the preemption clause a nullity. (Id., at 1248.) “Every vicarious liability suit would be rescued because it could result in favor of an accident victim, even though judgment is premised on the very vicarious liability the Amendment seeks to eliminate.” (Id.) Furthermore, section 17150 and 17151 of the Vehicle Code is not part of this state’s Financial Responsibility Laws. (Goodson v. Perfect Fit Enterprises, Inc. (1998) 67 Cal.App.4th 508, 514.)

Thus, if Enterprise and Ean are in the business of selling and leasing vehicles, they cannot be liable pursuant to Vehicle Code sections 17150 and 17151 simply for owning or leasing a vehicle that was involved in a motor vehicle accident.

Since the complaint failed to allege sufficient facts to state a claim for direct liability based on negligent entrustment, Plaintiff is barred by the Graves Amendment from bringing a claim based on Vehicle Code sections 17150 and 17151.

Therefore, the demurrer based on the Graves Amendment is SUSTAINED.

e. Uncertainty

The Court notes that Moving Party also contends that the complaint is uncertain because it is unclear which allegations are asserted against each defendant. The Court OVERRULES Moving Party’s demurrer for uncertainty on the grounds that (a) demurrers for uncertainty are disfavored and should only be sustained where the complaint is so uncertain that the demurring defendant cannot reasonably respond thereto (see, e.g., Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616); and (b) here, Plaintiff’s complaint is not so uncertain that Moving Party cannot reasonably respond thereto.

Moving Party is ordered to give notice.