Artin Nazaryan, et al. v. Racing Operations, LLC, et al.

S. Shore Land Co. v. Petersen (1964) 226 Cal. App.2d 725, 732.

Initially, Defendant contends, “Plaintiffs’ Complaint is so uncertain as to make it impossible to determine the factual allegation related to each Defendant” and requests in the body of the Demurrer “the entire Complaint is thus subject to demurrer.” However, as pointed

out in the Opposition, if the defendants are named collectively, then plaintiffs are alleging that all defendants are responsible. Thus, the demurrer to the entire Complaint on this basis is OVERRULED.

Second (Premises Liability) and Third (Negligent Hiring) Causes of Action: Defendants’ posit that causes of action for negligence and premises liability are redundant citing to Rowland v. Christian (1968) 69 Cal.2d 108 (“Rowland”) and Flowers v. Torrence Mem’l Hosp. Med Ctr., 8 Cal. 4th 992 (“Flowers”) Rowland and Flowers, however, are cases discussing summary judgment and not a demurrer, a very different standard and analysis. Defendants’ further cite to Shoemaker v. Myers (1990) 52 Cal.3d 1, a case related to workers compensation exclusivity provisions.

Again, not related to the instant matter. The court finds the allegations for premises liability and negligent hiring breaches of duty are sufficiently different, expressing alternate theories of liability from those in the 1st cause of action for negligence. Further, these causes of action serve the intended purpose of a complaint, to put the defendant on notice regarding the spectrum of negligence being pursued. Thus, they are not “duplicative”. Further the court does not find the Second and Third causes of action uncertain as noted above.

The Demurrer is OVERRULED as to the Second and Third Causes of Action.

Fourth (Vicarious Liability/Respondeat Superior) Cause of Action: Defendants’ posit the cause of action for negligence and vicarious liability/respondeat superior are redundant. On review of the Complaint, in Paragraph 19, plaintiffs allege that the telehandler was operated by an on-duty track employee/operator (sued as Doe 1) acting within the course and scope of assigned responsibilities for the benefit of defendants. Paragraph 46 of the 1st cause of action for Negligence alleges that Doe 1 “was an employee, agent, and/or representative of one or more of the remaining defendants, and was acting within the course and scope of such employment and/or agency and for the benefit of said defendants.

Accordingly, said Defendants are responsible for the negligent acts and omissions of DOE 1.” (¶46) This language in the cause of action for negligence is duplicative of the legal theory and facts alleged in the 1st cause of action for Negligence. The Demurrer is SUSTAINED as to the Fourth Cause of Action, without leave to amend. Fifth (Neglegence per se) Cause of Action – Defendant correctly notes “the doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.”

Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1353, fn.

2. As a result, it is appropriate to treat causes of action for negligence and negligence per se as alleging a single cause of action for negligence. Turner v. Seterus, Inc. (2018) 27 Cal.App.5th 516, 534. Accordingly the Demurrer is SUSTAINED as to the Fifth cause of action for Negligence Per Se. The court will grant leave to amend the 1st cause of action for Negligence to include violation of statutes. Sixth (Negligent Entrustment) Cause of Action – Defendant posits the Sixth Cause of Action for Negligent Entrustment is duplicative of the general negligence cause of action and the claim for negligent hiring and supervision.

For the reasons discussed above, regarding duplicative claims as to the Second and Third Causes of Action, the court also OVERRULES the demurrer as to the Sixth Cause of Action.

Seventh (Gross Negligence) Cause of Action – Defendant correctly point out that "Gross negligence is a subspecies of negligence; it is not a separate tort." (Joshi v. Fitness International, LLC (2022) 80 Cal.App.5th 814, 825.) “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.

As a result, the Demurrer is SUSTAINED as to the Seventh Cause of Action for Gross Negligence. The court will allow leave to amend the 1st cause of action for Negligence to include any additional allegations for gross negligence.

MOTION (2): Defendant Friends of Laguna Sece, Inc’s Motion to Strike Portions of Complaint

Pursuant to Code of Civil Procedure Section 435 and 436, Defendant moves for an order striking the punitive damages and prejudgment interest language from Plaintiffs Complaint contained in Paragraph 113 and 115. Defendant claims the exemplary or punitive damages are improper and not in conformity due to the Complaint not stating facts sufficient to support and award for exemplary damages under Civil Code section 3294. Discussion. When alleging exemplary damages Civil Code section 3294 specifically requires proof of oppression, fraud, or malice.

These statutory elements must be included in the complaint. “ ‘Malice’ ” is defined in the statute as conduct “intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others.” (Civ.Code, § 3294, subd. (c)(1); College Hospital (1994) 8 Cal.4th 709, 725.

Courts have found that conduct which warrants punitive damages must be of “such severity or shocking character [as] warrants the same treatment as accorded to willful misconduct—conduct in which defendant intends to cause harm.” Nolin v. National Convenience Stores, Inc., (1979) 95 Cal.App.3d 279, at p. 286; italics added.

The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice." Code Civ. Proc., § 437(a) Here, plaintiffs’ key allegations are contained in the Gross Negligence cause of action.

Plaintiffs contend that what is alleged here is not a routine highway rear-end collision involving a momentary lapse, but a case involving a series of affirmative decisions, each one of which independently violated mandatory federal and state safety regulations specifically designed to prevent the catastrophic outcome which occurred here. The operator chose to proceed forward with a load obstructing his vision rather than traveling in reverse per 29 CFR 1917.178(n)(4). The operator chose not to use a spotter per OSHA’s eTool guidance and the

JLG manual. The operator chose not to raise the forks to improve visibility and chose to travel at speed that didn’t permit a safe stop. The track staff who had sole discretion over track access and flag conditions chose to dispatch the telehandler onto the racing surface when they knew vehicles were stopped ahead. A defendant employee drove past plaintiffs’ stopped vehicles before collision showing actual knowledge of vehicles in the telehandlers path. (Kohanim Dec. ¶15)

The Complaint alleges actions by staff allowed the telehandler to enter during a red flag condition and foreseeable probability that vehicles would be stopped (¶104a, 104b), operating the telehandler at unsafe speed and without a clear sight line (¶104c, 104d), failing to use basic, readily available safeguards and failing to implement adequate procedures (¶104e, 104f), allowing the operator to proceed without ensuring unobstructed view or alternative methods (¶104g), and creating a high likelihood of catastrophic injury or death by operating the telehandler in close proximity to stopped vehicles (¶104h).

However, the legislature has imposed further conditions for a corporate employer like the Defendant to be held liable for punitive damages. Civil Code §3294(b) states:

"An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation."

However, Plaintiff’s argument fails to show allegations regarding track staff being managing agents of the corporation. "The managing agent must be someone who exercises substantial discretionary authority over decisions that ultimately determine corporate policy. Thus, by selecting the term “managing agent,” and placing it in the same category as “officer” and “director,” the Legislature intended to limit the class of employees whose exercise of discretion could result in a corporate employer's liability for punitive damages." White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 573.

Plaintiff has not alleged, nor does it appear they have sufficient facts to allege, the necessary facts supporting Civil Code section 3492(b).

The Motion to Strike is GRANTED without prejudice should additional facts be discovered to support a punitive damages claim.

NOTE RE: TENTATIVE RULING This tentative ruling becomes the court’s order, and no hearing shall be held unless one of the parties contests it by complying with Rule 3.1308 of the California Rules of Court and Monterey County Local Rule 7.9. Those parties wishing to present an oral argument must notify all other parties and the Court no later than 4:00 p.m. on the court day before the hearing; otherwise, NO ORAL ARGUMENT WILL BE PERMITTED, AND THE TENTATIVE RULING WILL BECOME THE ORDER OF THE COURT AND THE HEARING VACATED. You must notify the court by emailing TentativeRulings@monterey.courts.ca.gov or by telephoning the Calendar Department at (831) 647-5800, extension 3040, before 4:00 p.m. on the court day before the hearing.