Although the second cause of action is asserted only against Afshin, the Court treats the demurrer as brought jointly by both Defendants, consistent with the moving papers.

“Negligent entrustment is a common law liability doctrine, which arises in numerous factual contexts. In cases involving negligent entrustment of a vehicle, liability is imposed on [a] vehicle owner or permitter because of his own independent negligence and not the negligence of the driver. Liability for the negligence of the incompetent driver to whom an automobile is entrusted does not arise out of the relationship of the parties, but from the act of entrustment of the motor vehicle, with permission to operate the same, to one whose incompetency, inexperience, or recklessness is known or should have been known by the owner.” (McKenna v. Beesley (2021) 67 Cal.App.5th 552, 565 [cleaned up]; accord, Ghezavat v. Harris (2019) 40 Cal.App.5th 555, 559.)

The threshold issue is whether defendant had knowledge that the driver was incompetent or unfit to operate a motor vehicle. (Dodge Ctr. v. Sup.Ct. (Anderson) (1988) 199 Cal.App.3d 332, 341.)

To establish negligent entrustment, the plaintiff must prove all of the following: (1) That the driver was negligent in operating the vehicle; (2) That the defendant owned the vehicle operated by the driver or had possession of the vehicle operated by the driver with the owner’s permission; (3) That the defendant owner knew, or should have known, that the entrusted driver was incompetent or unfit to drive the vehicle; (4) That the defendant permitted the driver to drive the vehicle; and (5) That the driver’s incompetence or unfitness to drive was a substantial factor in causing harm to the plaintiff. (CACI No. 724.)

The FAC fails to adequately allege facts to support a cause of action for negligent entrustment. (FAC, ¶¶ 16-24.)

Other than Nima’s inexperience and the alleged passenger-restriction violation, the FAC fails to allege nonconclusory facts demonstrating that Nima was incompetent or unfit to drive or that Afshin knew or should have known of such incompetence or unfitness. (See Richards v. Stanley (1954) 43 Cal.2d 60, 63

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[car owner owes no duty not to entrust car to third party in absence of facts giving owner notice that third person is “incompetent to handle it”];

[negligent entrustment requires knowledge that driver is incompetent or knowledge of circumstances indicating that fact].)

Inexperience alone, however, does not necessarily indicate incompetency. (Krawitz v. Rusch, supra, 209 Cal.App.3d at p. 966.) Further, although the FAC alleges that Nima violated a passenger

restriction, it does not allege facts showing that Afshin knew of any prior violations or knew, before entrusting the vehicle, that Nima intended to transport an unauthorized passenger. Nor does the FAC allege facts showing that Nima’s inexperience, incompetence, or unfitness, as opposed to ordinary driving negligence, was a substantial factor in causing the collision.

Accordingly, the demurrer to the second cause of action is SUSTAINED with leave to amend.

Should Plaintiff desire to file an amended complaint that addresses the issues in this ruling, Plaintiff must file and serve it within 15 days of service of notice of ruling.

Moving parties to give notice.

52 Robert Fernandez Construction Inc. vs. Scott S. Brody, as Trustee of the Bruin Trust dated December 30, 2013

25-01512433 Demurrer to Cross-Complaint

Cross-Defendants Robert Fernandez Construction, Inc. and Robert Fernandez’s demurrer to the Cross-Complaint is SUSTAINED with leave to amend as to the Tenth and Twelfth Causes of Action; and OVERRULED as to all remaining grounds and challenged causes of action.

Cross-Defendants Robert Fernandez Construction, Inc. (“RFC”) and Robert Fernandez (“Fernandez”) (collectively, “Cross-Defendants”) demur to the Cross-Complaint by Scott Brody, individually and as Trustee of the Bruin Trust Dated December 30, 2023 (“Scott”), and David E. Brody (“David”).

*Because Cross-Complainants share the same last name, the court refers to them by their first names; no disrespect is intended.

a. Demurrer Based on Uncertainty and Lack of Legal Capacity, and to the First Through Seventh and Ninth Causes of Action— OVERRULED

California Rules of Court, rule 3.1113(a) provides that, in the case of a demurrer, the court may treat grounds not supported by a memorandum as waived. Rule 3.1113(b) further requires the supporting memorandum to contain a statement of facts, a concise statement of the governing law and arguments relied upon, and a discussion of the supporting authorities.

Here, the demurrer identifies the asserted deficiencies concerning uncertainty, lack of legal capacity, and the First through Tenth and Twelfth Causes of Action. (Demurrer, pp. 3–5.) The supporting memorandum, however, substantively addresses only the alter ego allegations and the Eighth, Tenth, and Twelfth Causes of Action; it does not provide legal analysis or supporting authority concerning uncertainty, lack of legal capacity, or the First through Seventh and Ninth Causes of Action. (Demurrer, pp. 6–8.) The Eleventh Cause of Action is not at issue because the demurrer does not separately challenge that claim.

Accordingly, the Court exercises its discretion under rule 3.1113(a) and (b) to deem these grounds waived and declines to consider them.

b. Alter Ego Allegations Against Fernandez – OVERRULED

Cross-Defendants contend that all causes of action against Robert Fernandez individually fail because the Cross-Complaint does not adequately plead an alter ego theory of liability.

Detailed pleading is not required to allege an alter ego theory of liability. Indeed, “[i]t is not even essential, apparently, that . . . the alter ego doctrine always be specifically pleaded in the complaint in order for it to be applied in appropriate circumstances. [¶] . . . [Citation.] . . . [C]ourts have followed a liberal policy of applying the alter ego doctrine where the equities and justice of the situation appear to call for it rather than restricting it to the technical niceties depending upon pleading and procedure.

It is essential principally that a showing be made that both requirements, i.e., unity of interest and ownership, and the promotion of injustice by the fiction of corporate separate existence, exist in a given situation.” (First Western Bank & Trust Co. v. Bookasta (1968) 267 Cal.App.2d 910, 915, italics omitted; see Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th 221, 236 [“only ‘ultimate rather than evidentiary facts’” necessary to support alter ego theory].)

The Cross-Complaint alleges that Fernandez was RFC’s responsible managing officer, chief executive officer, and president. (Cross- Complaint, ¶ 4.) It further alleges that Fernandez failed to observe corporate formalities, disregarded the distinction between himself and RFC, operated RFC as a shell and conduit for his personal affairs, and shared a unity of interest and ownership with RFC such that respecting the corporate form would sanction fraud or promote injustice. (Id., ¶ 5.) These allegations state the ultimate facts necessary to support an alter ego theory and provide Fernandez with sufficient notice of the basis on which personal liability is sought.

Accordingly, the demurrer on this ground is overruled.