Case Number: BC638490 Hearing Date: January 17, 2018 Dept: 91

Motion for Judgment on the Pleadings by Defendants, EAN Holdings, LLC and Enterprise Rent-A-Car Company of Los Angeles, LLC, filed on 11/16/17, is DENIED.

Plaintiff has adequately stated a claim for negligence. Negligence claims can be alleged in general terms by stating the acts or omissions that were negligently performed. Greninger v. Fischer (1947) 81 Cal. App. 2d 549, 552.

Defendants rely on People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1484 for the contention that the complaint must be alleged with specificity. That case is inapposite, as it involved a statutory claim against a governmental entity, which does require that the complaint be pled with specificity. People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1484.

Defendants also rely on Esparza v. Kaweah Delta District Hospital (2016) 3 Cal.App.5th 547, 555, which is equally inapposite, as it involved a claim against a public entity and held that the conclusory allegation that Plaintiff complied with the applicable claims statute was sufficient. Esparza v. Kaweah Delta District Hospital (2016) 3 Cal.App.5th 547, 555.

Additionally, Plaintiff need only allege ultimate facts. Evidentiary facts are not required. Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal. 4th 26, 47; Lim v. The.TV Corp. Internat. (2002) 99 Cal. App. 4th 684, 690. General rules of pleading do not require that the plaintiff plead evidentiary facts supporting the allegation of ultimate fact. Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 212.

Defendants have not established that the complaint is preempted by the Graves Amendment. 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. 49 USCS § 30106.

The complaint does not allege that Defendants rented the vehicle to Defendant Floyd or that the harm occurred during the period of rental or lease. It says only that Defendants own the vehicle. Complaint, MV-2.c.

Additionally, vicariously liability is also based on the allegation that Defendants employed the persons operating the motor vehicle and Defendants were agents and employees of other Defendants, and acted within the course and scope of the agency. Complaint, MV-2e. This supports vicarious liability arising from the employment and/or agency relationship which is a separate basis for liability that does not arise out of the rental relationship.

The Graves Amendment also applies to preclude liability if there are no independent acts of negligence on the part of the owner. Section 30106(a)(2). Here, Plaintiff alleges that Defendants negligently entrusted the motor vehicle, supporting an independent act of negligence. Complaint, ¶ MV-2.d. Such negligence does not arise out of the relationship between the driver and owner of an automobile. Osborn v. Hertz Corp. (1988) 205 Cal.App.3d 703, 708–09.

Moving party is ordered to give notice.