SYDNEY NACHOR; ET AL. vs. JEFFCO PAINTING & COATING, INC.; ET AL.

Case No. CU25-04265

JEFFCO PAINTING & COATING, INC’s Demurrer

Defendant JEFFCO PAINTING & COATING, INC. (“JEFFCO”) demurs to Plaintiffs SYDNEY NACHOR and TRACY NACHOR’s first amended complaint in case CU25- 04265 and Plaintiff RAYMUNDO CAMARENA’s first amended complaint in case CU25- 05331. The two complaints are essentially identical; both allege that Defendant RAYMUNDO DANIEL CAMARENA (a distinct person from Plaintiff RAYMUNDO CAMARENA) negligently caused Plaintiffs injury by driving a vehicle off the road while intoxicated. SYDNEY NACHOR and RAYMUNDO CAMARENA were passengers in the vehicle and directly injured; TRACY NACHOR is SYDNEY NACHOR’s wife and alleges loss of consortium (her added cause of action being the sole significant difference between the two first amended complaints). Plaintiffs allege that JEFFCO negligently entrusted the vehicle to RAYMUNDO DANIEL CAMARENA.

Notice of Tentative Ruling. JEFFCO’s notices of demurrer do not advise the recipients that the Solano County Superior Court uses a tentative ruling system, as is required under Local Rule 3.9, subdivision (d). JEFFCO is cautioned to observe local rules going forward.

Legal Standard on Demurrer. “The function of a demurrer is to test the sufficiency of the complaint as a matter of law.” (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420.) A complaint is sufficient if it alleges ultimate rather than evidentiary facts, but the plaintiff must set forth the essential facts of his or her case “with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source and extent” of the plaintiff’s claim. (Doheny Park Terrace Homeowners Assn., Inc. v.

Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099.) Legal conclusions are insufficient. (Id. at 1098–1099; Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 551, fn. 5 [ultimate facts sufficient].) The Court “assume[s] the truth of the allegations in the complaint, but do[es] not assume the truth of contentions, deductions, or conclusions of law.” (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.)

Sham Pleading Doctrine. Under the sham pleading doctrine, plaintiffs are forbidden to amend complaints to omit harmful allegations from previous complaints or add allegations inconsistent with those of earlier complaints, unless a satisfactory explanation for the changes is made. (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425 (Deveny).) If a party attempts to avoid the defects of an earlier complaint by filing an amended complaint with such unexplained omissions or additions the court may take judicial notice of the earlier pleading and disregard inconsistent allegations. (Colapinto v. County of Riverside (1991) 230 Cal.App.3d 147, 151.)

The CU25-04265 1AC and CU25-05331 1AC alike reverse allegations from their original versions that indicate that the incident occurred while they and RAYMUNDO DANIEL CAMARENA was in the course and scope of employment with JEFFCO, which raised a question of worker’s compensation exclusivity. Plaintiffs have not supported admissible evidence explaining the change in allegations, instead only offering an explanation in opposition to demurrer. (See Deveny, supra, 139 Cal.App.4th at pp. 425- 426 [evidence applied to satisfactorily rebut sham accusation].) On the current state of the evidence before the court the sham pleading doctrine applies to invalidate the first amended complaints in both cases.

Worker’s Compensation Exclusivity. As a general rule, an employee who suffers an industrial injury arising out of and in the course of employment is limited to recovery under the worker’s compensation system. (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1001.) The worker’s compensation system exists as a “presumed compensation bargain” whereby employers assume liability without fault in exchange for limits on the extent of that liability and employees enjoy swift compensation that requires no proof of fault in exchange for giving up the potentially wide range of damages in tort. (Ibid.)

Where worker’s compensation applies as a remedy civil courts have no jurisdiction. (Rowland v. County of Sonoma (1990) 220 Cal.App.3d 331, 333 (Rowland).) Generally, a defendant must raise exclusivity as an affirmative defense or waive the protection of the statute. (Doney, supra, 23 Cal.3d at p. 98-99.) However, exceptions to this rule (which, in my opinion, near swallow the rule) exist where the allegations of a complaint directly or indirectly state facts indicating an employment relationship and do not state additional facts negating exclusivity or where post-pleading motions indicate that conditions of employment might exist. (Rowland at p. 335 [exceptions to rule]; Iverson v.

Atlas Pacific Engineering (1983) 143 Cal.App.3d 219, 224 [additional facts can negate application].) When such a situation arises the trial court’s jurisdiction is limited to determining the jurisdictional issue. (Rowland at p. 335.)

Putting aside the sham pleading issue for the moment, the court finds that the CU25- 04265 and CU25-05331 first amended complaints do not show worker’s compensation exclusivity bars on their faces. The complaints particularly allege that the incident specifically occurred outside of the course and scope of Plaintiffs’ employment. (CU25- 04265 1AC at ¶ 21; CU25-05331 1AC at ¶ 21.) The complaints do not allege inconsistent facts defeating the allegation that the incident occurred outside of the course and scope of employment.

Negligent Entrustment. The elements of negligent entrustment are that (1) a vehicle driver was negligent, (2) the defendant owned the vehicle in question, (3) the defendant knew or should have known that the driver was unfit to operate the vehicle, (4) the defendant permitted the driver to operate the vehicle, and (5) the driver’s unfitness was a substantial factor in causing harm to the plaintiff. (Jeld-Wen Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 863-864 [citing CACI No. 724].) Neither first amended complaint contains allegations of JEFFCO’s actual or constructive knowledge of RAYMUNDO DANIEL CAMARENA’s unfitness to operate the vehicle JEFFCO entrusted to him.

Vehicle Code Section 17150. Vehicle Code section 17150 imposes liability on any motor vehicle owner for injury caused by a person using the vehicle with the owner’s express or implied permission. The first amended complaints do not presently state causes of action pursuant to section 17150. Though the first amended complaints contain boilerplate allegations that JEFFCO permitted RAYMUNDO DANIEL CAMARENA to use its vehicle their stated causes of action are for negligence, not statutory liability. Negligent entrustment and section 17150 liability are distinct causes of action. (McKenna v. Beesley (2021) 67 Cal.App.5th 552, 563 at fn. 14.)

Leave to Amend. Leave to amend is proper where identified defects are amenable to cure. (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.) It is the pleading party’s burden to show the trial court that a reasonable possibility exists that amendment can cure identified defects in that party’s pleading. (Murphy v. Twitter, Inc. (2018) 60 Cal.App.5th 12, 42.) The court finds that Plaintiffs have demonstrated a reasonable possibility that amendment could cure identified defects in both first amended complaints.

Conclusion. JEFFCO’s demurrers are sustained with leave to amend. Plaintiffs are to file amended pleadings, if any, within thirty days of the date of this order.

PAUL M. BERSON vs. FCA US LLC; ET AL.