Valenzuela v. H-Mart Los Angeles CA2/1 ( 2023 )

Filed 4/26/23 Valenzuela v. H-Mart Los Angeles CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
JAIME VALENZUELA et al., B314209
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 19STCV10467)
v.
H-MART LOS ANGELES, LLC,
et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Gloria L. White-Brown, Judge. Reversed
and remanded with directions.
Law Office of Otto L. Haselhoff and Otto L. Haselhoff for
Plaintiffs and Appellants.
Daniels, Fine, Israel, Schonbuch & Lebovits and
Bernadette Castillo Brouses for Defendants and Respondents.
____________________________
Appellants Jaime Valenzuela and Tammy Martinez
(collectively, plaintiffs) sued multiple defendants, asserting
causes of action arising out of an automobile accident that
resulted in the death of their son. Plaintiffs allege that a truck
driver, who was hauling produce, caused the accident by
obstructing all lanes of traffic on State Route 74 while attempting
to make a left turn onto the highway.
According to plaintiffs, respondents H-Mart Los Angeles,
LLC (H-Mart) and Grand Supercenter, Inc. (GSI) are engaged in
the business of selling, delivering, and distributing produce.1
Plaintiffs claim H-Mart and GSI are vicariously liable for the
truck driver’s negligence under the doctrine of respondeat
superior. In particular, they allege H-Mart and GSI employed
the truck driver through an agent—a logistics company that had
the right to control the manner in which the truck driver
transported the produce.
The trial court sustained H-Mart’s and GSI’s demurrer to
the operative complaint without leave to amend because
plaintiffs failed to aver specific facts establishing that H-Mart
and GSI had a relationship to the truck driver or any of the other
persons involved in the transportation of the produce on the
truck. Plaintiffs appeal from the ensuing judgment dismissing
H-Mart and GSI from the action.
We conclude that although the operative complaint’s
allegations of employment and agency are general in certain
respects, plaintiffs have averred sufficient facts under our state’s
liberal pleading rules to demonstrate that the truck driver was
1The only parties to this appeal are plaintiffs, H-Mart,
and GSI.
2
an employee of H-Mart and GSI, and that his alleged negligence
fell within the scope of his employment. We thus reverse the
judgment of dismissal, and direct the trial court to overrule
H-Mart’s and GSI’s demurrer upon remand. Our decision is
predicated in part upon Skopp v. Weaver (1976) 16 Cal.3d 432(Skopp), which held that a general averment of agency, in and of
itself, is sufficient to establish the existence of that relationship
at the pleading stage. (See id. at pp. 437, 439.) Even though
Skopp is pertinent binding Supreme Court authority2 on which
plaintiffs rely in their opening and reply briefs, H-Mart and GSI
fail to discuss the case at all in their respondents’ brief.
Our holding is limited to the issue of whether plaintiffs
adequately pled that H-Mart and GSI are vicariously liable for
the truck driver’s alleged negligence. We express no opinion on
whether plaintiffs’ causes of action against H-Mart and GSI
would survive an evidentiary dispositive motion or whether
plaintiffs would prevail at trial.
FACTUAL AND PROCEDURAL BACKGROUND3
We summarize only those facts pertinent to our disposition
of this appeal.
2 (See People v. Perez (2020) 9 Cal.5th 1, 13 [“ ‘The
decisions of [the state supreme court] are binding upon and must
be followed by all the state courts of California.’ ”].)
3 Our Factual and Procedural Background is based in part
on undisputed aspects of the trial court’s ruling on H-Mart’s and
GSI’s demurrer, along with admissions made by the parties in
their briefing. (See Baxter v. State Teachers’ Retirement System
(2017) 18 Cal.App.5th 340, 349, fn. 2 [utilizing the summary of
facts provided in the trial court’s ruling]; Artal v. Allen (2003)
111 Cal.App.4th 273, 275, fn. 2 [“ ‘[B]riefs and argument . . . are
3
1. The third amended complaint
On February 24, 2021, plaintiffs filed the operative third
amended complaint against various defendants, including
H-Mart; GSI; Martin Andaluz Abarca; Erick’s Transportation,
Inc.; Humberto Mazariegos; and C.H. Robinson Worldwide, Inc.
(C.H. Robinson). The third amended complaint alleges the
following eight causes of action: (1) negligence/reckless conduct;
(2) products liability-negligence; (3) products liability-failure to
warn; (4) products liability-strict liability; (5) products liability-
breach of warranties; (6) products liability-misrepresentation
& concealment; (7) survival action; and (8) declaratory relief.
Plaintiffs named GSI as a defendant on the first, second, third,
fourth, fifth, sixth, and seventh causes of action, and H-Mart as a
defendant on the first and seventh causes of action.
According to the third amended complaint, plaintiffs are
the parents of Irving Valenzuela, an individual who died
following a motor vehicle accident that occurred “[o]n or about
July 9, 2017, at approximately 10:10 p.m.” on State Route 74 in
Riverside County.4 Just before the collision, Irving was driving
along State Route 74 and defendant Abarca, the driver of a truck
with an attached trailer, was turning left onto the highway from
reliable indications of a party’s position on the facts as well as the
law, and a reviewing court may make use of statements therein
as admissions against the party.’ ”].)
4 The remainder of this part summarizes certain
allegations from the third amended complaint. We express no
opinion as to the veracity of these averments.
Furthermore, for the sake of clarity and consistency, and
meaning no disrespect, we refer to Irving Valenzuela by his first
name.
4
a truck yard/storage facility. By turning left onto State Route 74,
Abarca caused the truck to “block[ ] all lanes of travel on the
adjacent roadway, State Route 74, creating a hazard for
oncoming traffic.” “Faced with a completely blocked roadway, . . .
IRVING . . . was unable to bring the vehicle he was operating . . .
to rest prior to the collision with the underside of the tractor
trailer combination being operated by” Abarca. “[A] major impact
occurred between [Irving’s] head, upper body, and the trailer,
which ultimately resulted in [his] . . . death[,] . . . although [he]
briefly survived the impact before succumbing” to his injuries.
At the time of the collision, Abarca was employed by Erick’s
Transportation, Inc., and Abarca “drove as he did due to the
desire to deliver on time and in good condition fruit and other
items subject to spoilage.”5 Erick’s Transportation, Inc.;
Mazariegos; “and/or one or more” doe defendants “are believed to
have owned the tractor trailer combination,” which “ABARCA
was operating with their permission . . . .”
5 H-Mart and GSI claim that, “[a]t the time of this
accident, Abarca allegedly hauled Fuji apples,” and that “[t]he
apples were being shipped from a company in Yakima,
Washington to their ultimate destination, i.e., allegedly [H-Mart
and GSI] in or near Whittier, California.” They provide no record
citations for these assertions, and our review of the 85-page third
amended complaint does not reveal any support for them. (See
Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th
574, 590 [“[A]rguments not supported by adequate citations to
[the] record need not be considered on appeal.”]; Fierro v.
Landry’s Restaurant Inc. (2019) 32 Cal.App.5th 276, 281, fn. 5
[holding that “we are unable to accept counsel’s argument on
appeal as facts”].)
5
As we explain in greater detail in Discussion, part B.1,
post, C.H. Robinson directly hired and contracted with Abarca to
operate the truck, and it regularly monitored and controlled the
manner in which he drove the truck. H-Mart and GSI, which are
in the business of “produce delivery, sale and distribution,” had
retained C.H. Robinson as their agent, thereby securing the right
to control the manner in which Abarca transported the goods on
the truck. (See Discussion, part B.1, post.) Abarca was H-Mart’s
and GSI’s employee, and he was acting in the course and scope of
his employment when he caused the motor vehicle accident that
resulted in Irving’s death. (See Discussion, part B.1, post.)
2. H-Mart’s and GSI’s demurrer, plaintiffs’ dismissal of
certain causes of action against H-Mart and GSI, the
trial court’s ruling on the demurrer, the ensuing
judgment of dismissal, and plaintiffs’ notice of
appeal
H-Mart and GSI demurred to the third amended
complaint’s first, second, third, fourth, fifth, sixth, and seventh
causes of action, arguing that plaintiffs failed to allege facts
sufficient to constitute these causes of action and that the claims
were uncertain.
Plaintiffs then dismissed the second, third, fourth, fifth,
and sixth causes of action against H-Mart and GSI without
prejudice. We observe that H-Mart was not named as a
defendant on those causes of action. (Factual & Procedural
Background, part 1, ante.) Plaintiffs opposed the demurrer, and
H-Mart and GSI filed a reply.
Following a hearing on H-Mart’s and GSI’s demurrer, the
trial court overruled as moot H-Mart’s and GSI’s demurrer to the
second, third, fourth, fifth, and sixth causes of action, and
6
sustained the demurrer without leave to amend as to the first
and seventh causes of action against them. In sustaining the
demurrer to the first cause of action for negligence/reckless
conduct, the court found, “There are no specific factual
allegations that H Mart and/or GSI have any relationship with
Abarca or his employers or that H Mart and/or GSI, in any
capacity, transported the produce freight/load on the date of the
accident.” The court also remarked, “There are no specific
allegations that H Mart and/or GSI directly selected or directly
contracted with Abarca or his employers to carry any of its
product, nor that H Mart and/or GSI controlled or instructed
Abarca or his employers in any fashion with respect to the
delivery and transportation of any products.” The court
sustained the demurrer to the seventh cause of action (i.e., the
survival cause of action) “on the basis that it is derivative of the
first cause of action.”
The trial court entered judgment dismissing H-Mart and
GSI from the action. Plaintiffs filed a timely appeal from the
judgment of dismissal.6
6 Although the judgment did not resolve plaintiffs’ claims
against the other defendants, we have jurisdiction because the
judgment left no issue to be determined as to H-Mart and GSI.
(See Ram v. OneWest Bank, FSB (2015) 234 Cal.App.4th 1, 9
[“ ‘Under the “one final judgment” rule, an order or judgment that
fails to dispose of all claims between the litigants is not
appealable under Code of Civil Procedure section 904.1,
subdivision (a).’ [Citation.] This rule does not apply, however,
‘ “when the case involves multiple parties and a judgment is
entered which leaves no issue to be determined as to one
party.” ’ ”].)
7
STANDARDS OF REVIEW
“The party against whom a complaint . . . has been filed
may object, by demurrer . . . to the pleading on any one or more of
the following grounds: [¶] . . . [¶] . . . The pleading does not state
facts sufficient to constitute a cause of action[; and] . . . [¶] . . .
The pleading is uncertain. . . . ‘[U]ncertain’ includes ambiguous
and unintelligible.” (See Code Civ. Proc., § 430.10, subds. (e) &
(f).)
“We independently review the ruling on a demurrer and
determine de novo whether the pleading alleges facts sufficient to
state a cause of action. [Citation.] We assume the truth of the
properly pleaded factual allegations, facts that reasonably can be
inferred from those expressly pleaded, and matters of which
judicial notice can and has been taken. [Citation.] We construe
the pleading in a reasonable manner and read the allegations in
context.” (Santa Ana Police Officers Assn. v. City of Santa Ana
(2017) 13 Cal.App.5th 317, 323–324 (Santa Ana Police Officers
Assn.).) “A complaint’s allegations are construed liberally in
favor of the pleader.” (Ferrick v. Santa Clara University (2014)
231 Cal.App.4th 1337, 1341; accord, Code Civ. Proc., § 452.)
“ ‘[I]t is error for a trial court to sustain a demurrer when
the plaintiff has stated a cause of action under any possible legal
theory. [Citation.]’ [Citations.]” (Franklin v. The Monadnock Co.
(2007) 151 Cal.App.4th 252, 257 (Franklin I).) Furthermore, “[a]
demurrer does not lie to a portion of a cause of action.
[Citations.] . . . [¶] . . . [W]hen a substantive defect [in part of a
cause of action] is clear from the face of a complaint, . . . a
defendant may attack that portion of the cause of action by filing
8
a motion to strike.”7 (See PH II, Inc. v. Superior Court (1995)
33 Cal.App.4th 1680, 1682–1683 (PH II, Inc.); see also Code Civ.
Proc., § 430.50, subd. (a) [“A demurrer to a complaint . . . may be
taken to the whole complaint . . . or to any of the causes of action
stated therein,” italics added].)
“We review the denial of leave to amend for abuse of
discretion, asking whether there is ‘a reasonable possibility that
the complaint can be cured by amendment.’ [Citation.]” (Nede
Mgmt., Inc. v. Aspen American Ins. Co. (2021) 68 Cal.App.5th
1121, 1129.)
DISCUSSION
For the reasons discussed below, we conclude that the trial
court erred in sustaining H-Mart’s and GSI’s demurrer to the
first and seventh causes of action. Our resolution of this appeal
moots plaintiffs’ contention that the trial court erred in denying
them leave to amend their pleading.
A. Law Governing Pleadings, Negligence, and Vicarious
Liability
Before turning to the substance of the demurrer, we
address general principles applicable to this appeal.
“ ‘The elements of a cause of action for negligence are (1) a
legal duty to use reasonable care, (2) breach of that duty, and
(3) proximate [or legal] cause between the breach and (4) the
plaintiff’s injury. [Citation.]’ [Citation.]” (Phillips v. TLC
Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139 (Phillips).)
7 H-Mart’s and GSI’s demurrer was not accompanied by a
motion to strike.
9
“ ‘Under the doctrine of respondeat superior, an employer is
vicariously liable for his employee’s torts committed within the
scope of the employment.’ [Citation.] . . . ‘It is . . . settled that an
employer’s vicarious liability may extend to willful and malicious
torts of an employee as well as negligence.[8] [Citations.]’
[Citation.] [¶] . . . [¶] ‘The primary test of an employment
relationship is whether the “ ‘person to whom service is rendered
has the right to control the manner and means of accomplishing
the result desired. . . .’ ” [Citation.]’ ” (Jackson v. AEG Live, LLC
(2015) 233 Cal.App.4th 1156, 1178–1179 (Jackson).)
“ ‘An agent is one who represents another, called the
principal, in dealings with third persons. Such representation is
called agency.’ [Citation.] ‘An agency is either actual or
ostensible.’ [Citation.] . . . [¶] ‘An agency is actual when the
agent is really employed by the principal.’ [Citation.] For an
actual agency to exist, ‘ “[t]he principal must in some manner
indicate that the agent is to act for him, and the agent must act
or agree to act on his behalf and subject to his control.”
8 H-Mart and GSI argue the trial court did not err in
sustaining the demurrer to the first cause of action insofar as it
avers they “acted recklessly with deliberate disregard for others.”
It appears that H-Mart and GSI raise this contention because the
first cause of action is titled “Negligence/Reckless Conduct,”
although the allegations in the section of the pleading concerning
that cause of action seem to be premised solely on a negligence
theory. We do not reach this issue because we conclude plaintiffs
aver adequately that H-Mart and GSI are vicariously liable for
Abarca’s alleged negligence. (See Discussion, part B, post; PH II,
Inc., supra, 33 Cal.App.4th at pp. 1682–1683 [holding that a trial
court may not sustain a demurrer to only part of a cause of
action].)
10
[Citation.] In the absence of the essential characteristic of the
right of control, there is no true agency and, therefore, no
“imputation” of the [alleged agent’s] negligence to the [alleged
principal]. [Citations.]’ . . . [Citation.]” (Franklin v. Santa
Barbara Cottage Hospital (2022) 82 Cal.App.5th 395, 403–404
(Franklin II).)
Ordinarily, “a pleading alleges facts sufficient to state a
cause of action” “ ‘if it alleges ultimate rather than evidentiary
facts’ constituting the cause of action.” (See Foster v. Sexton
(2021) 61 Cal.App.5th 998, 1019 (Foster).) “However,
distinguishing ‘ “[u]ltimate facts” ’ from ‘ “legal conclusion[s]” ’
can be difficult. [Citations.] Generally, court[s] and litigants are
guided in making these distinctions by the principle that a
plaintiff is required only to set forth the essential facts with
‘ “ ‘ “particularity sufficient to acquaint a defendant with the
nature, source and extent of [the plaintiff’s] cause of action.” ’ ” ’
[Citation.]” (Id. at pp. 1027–1028.) “In permitting allegations to
be made in general terms the courts have said that the
particularity of pleading required depends upon the extent to
which the defendant in fairness needs detailed information that
can be conveniently provided by the plaintiff, and that less
particularity is required when the defendant may be assumed to
possess knowledge of the facts at least equal, if not superior, to
that possessed by the plaintiff.” (Burks v. Poppy Construction Co.
(1962) 57 Cal.2d 463, 474 (Burks).)
“For policy reasons, some causes of action, such as fraud
and negligent misrepresentation, must be pleaded with
particularity—that is, the pleading must set forth how, when,
where, to whom, and by what means the representations were
made.” (Foster, supra, 61 Cal.App.5th at p. 1028.) Conversely, as
11
a general rule, a negligence cause of action is not subject to a
heightened pleading standard. (See Hoyem v. Manhattan Beach
City Sch. Dist. (1978) 22 Cal.3d 508, 514 [“Under well established
principles, . . . general allegations of negligence, proximate
causation and resulting injury and damages suffice to state a
cause of action.”]; 4 Witkin, Cal. Procedure (6th ed. 2021)
Pleading, § 601 [“Negligence may be pleaded in general
terms . . . . This rule is established by a long line of decisions.”].)
“In some cases, ultimate facts . . . may be alleged by a
straightforward allegation without underlying evidentiary facts.”
(1 Cal. Affirmative Def. (2d ed. 2022) § 10:2.) For instance, our
high court has held “that an allegation of agency as such is a
statement of ultimate fact.” (See Skopp, supra, 16 Cal.3d at
p. 439; see also id. at p. 437 [observing that “numerous cases
have held a pleading of agency an averment of ultimate fact”].)
The Supreme Court explained that after a plaintiff has alleged
the existence of an agency relationship, “further allegations
explaining how this fact of agency originated become
unnecessary.” (See id. at p. 439.)
Similarly, allegations that a tortfeasor is an employee of
the defendant and committed the tort within the course or scope
of employment are ultimate facts. May v. Farrell (1928)
94 Cal.App. 703, is instructive on this point. There, a personal
injury plaintiff secured a judgment after a jury trial against the
driver of a vehicle who caused the accident in question, and
against an automobile dealer that the plaintiff alleged had been
the driver’s employer. (See id. at pp. 706–707.) The automobile
dealer, which had “denied the employment” and claimed the
driver was an independent contractor, appealed the judgment,
arguing, inter alia, that “the complaint failed to state a cause of
12
action against the [dealer] in that no facts are pleaded showing
that [the driver] was acting within the scope of any contract of
employment.” (See id. at p. 707.) The complaint had alleged that
the driver “ ‘was in the employment of [the dealer],’ ” and that,
“ ‘while [the driver] was acting in the scope of said employment,’ ”
he “ ‘negligently drove and operated [an] automobile[,]’ ” thereby
colliding with the vehicle in which the plaintiff was a passenger.
(See ibid.)
The Court of Appeal rejected the automobile dealer’s
challenge to the plaintiff’s complaint, remarking: “We think the
allegations were sufficient.” (See May, supra, 94 Cal.App. at
p. 707.) The court reasoned that “the terms ‘scope of employment’
and ‘course of employment,’ like negligence, are now generally
regarded as conclusions of fact, and under liberal rules of
pleading a complaint containing such allegations is sufficient to
justify the admission of evidence in support thereof.” (Id. at
pp. 707–708.) The May court further explained that “less
particularity is required where the defendant, from the nature of
and his relation to the facts, has full information concerning
them,” and that “ ‘the particular duties with which the servant is
charged’ ” is a “ ‘matter[ ] lying peculiarly within the knowledge
of the defendant and often beyond that of the plaintiff.’ ” (See id.
at p. 708.)
Subsequent Court of Appeal decisions likewise have held
that such general averments are sufficient at the pleading stage.
(See Shields v. Oxnard Harbor Dist. (1941) 46 Cal.App.2d 477,
481–482, 485–486 (Shields) [holding that a complaint’s averment
that the driver of a vehicle was “ ‘employed by’ ” defendant-
governmental agency and was acting “ ‘within the course and
scope of his employment’ ” at the time of the collision was “a
13
sufficient allegation that [the driver] at the time of the accident
was the servant” of the defendant-governmental agency and
“acting within the course and scope of his employment”]; Garton
v. Title Ins. & Trust Co. (1980) 106 Cal.App.3d 365, 371–372,
375–377 (Garton) [indicating that a complaint alleging that “the
defendants were the agents and employees of each other and
were acting in the course and scope of their agency, employment
and authority” had sufficiently pled that one of the defendants
“was acting as an agent or employee” of another defendant]; see
also 2B Cal.Jur.3d (2023) Agency, § 6 [“There is substantial
overlap in the factors for determining whether one is an employee
or an agent. . . . [T]hese categories are not mutually exclusive;
one can be both an agent and employee,” fn. omitted].)
Additionally, B.E. Witkin’s leading treatise on California
law observes that “allegations concerning ‘employment’ and
‘scope of employment’ ” constitute “ultimate facts.” (See 4 Witkin,
Cal. Procedure (6th ed. 2021) Pleading, § 401 [boldface &
capitalization omitted]; 5 Witkin, Cal. Procedure (6th ed. 2021)
Pleading, at § 918 [“The courts have approved a general
statement to the effect that the wrongdoer was the agent or
employee of the defendant principal, and ‘was acting in the
scope of his employment.’ ”]; see also Taylor v. Bell (1971)
21 Cal.App.3d 1002, 1007 [describing Mr. Witkin as “the leading
text writer on California law”].)
B. Plaintiffs Adequately Pled Ultimate Facts
Establishing H-Mart’s and GSI’s Vicarious Liability
for Abarca’s Alleged Negligence
H-Mart and GSI assert, “There are no specific factual
allegations in the Third Amended Complaint supporting that
[H-Mart and GSI] controlled Abarca; directed Abarca; instructed
14
Abarca; paid Abarca; and/or had any rights or duties in
connection with Abarca’s means and method of transporting the
produce.” H-Mart and GSI maintain “[t]here are no specific
factual allegations supporting that [they] had any special
relationship with Abarca or Abarca’s employers, or that [H-Mart
and GSI] selected or contracted with any of them with respect to
the delivery and transportation of the produce.” H-Mart and GSI
further contend plaintiffs have alleged that “Erick’s
Transportation, Mazariegos, and/or Does 1-100 gave Abarca
permission to operate the tractor-trailer,” and plaintiffs’ counsel
represented at the demurrer hearing “discovery revealed that
CH Robinson, which contracted with Erick’s Transportation for
motor carrier services, was involved in the trucking and hauling
process by requiring check-ins, posing fines, and dictating
trucking routes.”9 According to H-Mart and GSI, “[a]t best,
Abarca hauled apples that may have been ultimately intended for
delivery or sale to consumers at” H-Mart’s and GSI’s grocery
stores.
These arguments fail because plaintiffs pled facts sufficient
to establish that H-Mart and GSI employed Abarca through their
agent, co-defendant C.H. Robinson.
9 H-Mart and GSI also intimate plaintiffs’ counsel stated
at the demurrer hearing that “discovery revealed that
CH Robinson, not the Food Stores [(i.e., H-Mart and GSI)],
exuded control of commercial truck drivers . . . .” (Italics added.)
Any claim that plaintiffs’ counsel somehow exculpated H-Mart
and GSI at the hearing is belied by the record. Fairly read, the
record reveals that counsel merely represented he had obtained
evidence showing that C.H. Robinson exercised control over
drivers.
15
1. Plaintiffs alleged that H-Mart and GSI employed
Abarca through their agent, C.H. Robinson
Regarding C.H. Robinson’s relationship with Abarca,
plaintiffs allege that C.H. Robinson “directly hired and contracted
with the driver ABARCA to operate the tractor trailer truck” and
“directly employed that driver for [its] benefit and controlled
him.” Plaintiffs further aver that C.H. Robinson “regularly
monitors and controls all of its drivers” through its “ ‘logistics
division[,]’ ” and that C.H. Robinson “provided maps and driving
directions” to Abarca “through its dispatcher.” In the order
sustaining H-Mart’s and GSI’s demurrer, the trial court
overruled C.H. Robinson’s demurrer to the first and seventh
causes of action because these allegations “adequately pled” that
C.H. Robinson “ ‘controlled Abarca’s conduct, including the
manner in which he drove the tractor-trailer.’ ” Because H-Mart
and GSI do not challenge this ruling, we presume that it is
correct.10
Notably, in paragraph 113 of the pleading, which is titled
“Additional Liability Facts Applicable to H-Mart, and Grand
Super Center Defendants” (italics & underscoring omitted),
10 (See Tokio Marine & Fire Ins. Corp. v. Western Pacific
Roofing Corp. (1999) 75 Cal.App.4th 110, 118 [“[T]he general rule
[is] that trial court rulings are presumed correct.”]; In re D.N.
(2020) 56 Cal.App.5th 741, 767 (D.N.) [“ ‘ “[I]t is as much the duty
of the respondent to assist the [appellate] court upon the appeal
as it is to properly present a case in the first instance, in the
court below.” ’ ”]; Code Civ. Proc., § 906 [providing that the
respondent may, “without appealing from [the] judgment, request
the reviewing court to . . . review” an “intermediate ruling . . .
which . . . necessarily affects the judgment”].)
16
plaintiffs aver, inter alia, that Abarca “was a de-facto employee
of” H-Mart and GSI; H-Mart and GSI “retained and exercised a
right of control over the truck driver through their agent,
defendant C.H. ROBINSON[,] . . . including but not limited to,
the manner in which the goods would be transported;” and
H-Mart and GSI, “through their agent, defendant
C.H. ROBINSON[,] . . . agreed that shipments would be sent to
their specified destination ‘without delay’ unless a specified
delivery date and time was communicated in which case delivery
shall be performed in accordance with that date and time.”
Additionally, plaintiffs allege in paragraph 88 of their pleading
that Abarca “was acting as an agent for, and employee of,” among
other defendants, H-Mart and GSI.11 At the outset of the
pleading, plaintiffs also aver that “[a]t all times hereinafter
mentioned, . . . defendants were the agents, servants, [and]
employees . . . of[ ] . . . each other, and were as such, acting
within the scope and authority of said agency[ and]
employment . . . .”
Pursuant to the Skopp decision, plaintiffs’ allegation that
C.H. Robinson was H-Mart’s and GSI’s agent is an ultimate fact
11 This paragraph of the third amended complaint also
alleges that Abarca was a “partner of, and in a joint venture
with,” H-Mart, GSI, and other defendants. These allegations are
not pertinent to our resolution of this appeal. (See Domino v.
Mobley (1956) 144 Cal.App.2d 24, 27–28 [“Surplusage is to be
disregarded. If upon a consideration of all the facts stated it
appears the plaintiff is entitled to any relief at the hands of the
court against the defendant, the complaint will be held good
although the facts may not be clearly stated or may be
intermingled with a statement of other facts irrelevant to the
cause of action shown . . . .”].)
17
that is accepted as true in ruling upon a demurrer.12
Accordingly, we infer that H-Mart and GSI had the right to
control C.H. Robinson in connection with the transportation of
the goods on the truck.13 Further, as explained above, the trial
court made the presumptively correct ruling that plaintiffs pled
facts sufficient to establish that C.H. Robinson had the right to
control the manner in which the goods were to be transported by
Abarca. That undisputed ruling and C.H. Robinson’s status as
H-Mart’s and GSI’s agent support plaintiffs’ express allegations
that Abarca was H-Mart’s and GSI’s employee and that the
collision occurred within the scope of that employment,14 express
allegations that are, in and of themselves, ultimate facts.15
12 (See Skopp, supra, 16 Cal.3d at pp. 437, 439; see also
Foster, supra, 61 Cal.App.5th at p. 1019 [“Ordinarily, a pleading
‘is sufficient if it alleges ultimate rather than evidentiary facts’
constituting the cause of action.”].)
13 (See Franklin II, supra, 82 Cal.App.5th at pp. 403–404
[holding that a principal’s right to control an agent is an
“essential characteristic” of an actual agency relationship]; Santa
Ana Police Officers Assn., supra, 13 Cal.App.5th at pp. 323–324
[holding that on demurrer, a court assumes the truth of “facts
that reasonably can be inferred from those expressly pleaded”].)
14 (See Jackson, supra, 233 Cal.App.4th at pp. 1178–1179
[“ ‘The primary test of an employment relationship is whether the
“ ‘person to whom service is rendered has the right to control the
manner and means of accomplishing the result desired.’ ” ’ ”].)
15 (Garton, supra, 106 Cal.App.3d at pp. 371–372, 375–
377; Shields, supra, 46 Cal.App.2d at pp. 481–482, 485–486; May,
supra, 94 Cal.App. at pp. 706–708.)
Additionally, as we explain in Discussion, part B.2, post,
the fact that a pleading alleges that more than one entity had the
18
Under these circumstances, we conclude plaintiffs averred
sufficient facts to hold H-Mart and GSI vicariously liable for
Abarca’s alleged negligence under the doctrine of respondeat
superior.16 Because H-Mart and GSI are presumably aware of
the precise nature and extent of their relationships with
C.H. Robinson and Abarca, the law does not require plaintiffs to
allege facts concerning those relationships with greater
specificity.17 Our conclusion that H-Mart and GSI allegedly
possessed the right to control Abarca also rebuts their contention
that overruling the demurrer “would be tantamount to holding a
right to control an employee’s conduct does not defeat vicarious
liability as a matter of law, given that an employee’s torts may be
imputed to more than one employer.
16 H-Mart and GSI do not argue plaintiffs failed to aver
sufficient facts to state a negligence cause of action against
Abarca. Regardless, plaintiffs’ allegations that Abarca, in
“block[ing] all lanes of travel on . . . State Route 74,” “negligently
killed [their] son, . . . thereby causing damages to . . . plaintiffs,”
are sufficient to state a negligence cause of action against Abarca.
(See Phillips, supra, 172 Cal.App.4th at p. 1139; [identifying the
essential elements of a negligence claim]; 4 Witkin, Cal.
Procedure (6th ed. 2021) Pleading, § 601 [indicating that
negligence causes of action are typically not subject to a
heightened pleading standard].)
17 (See Burks, supra, 57 Cal.2d at p. 474 [“[L]ess
particularity is required where the defendant may be assumed to
possess knowledge of the facts at least equal, if not superior, to
that possessed by the plaintiff.”]; May, supra, 94 Cal.App. at
p. 708 [stating that “ ‘the particular duties with which the
[defendant’s] servant is charged’ ” is a “ ‘matter[ ] lying peculiarly
within the knowledge of the defendant and often beyond that of
the plaintiff’ ”].)
19
consumer liable for his Amazon delivery driver’s motor vehicle
accident while en route to deliver his Amazon package . . . .”
2. Plaintiffs’ allegations that other defendants also had
the right to control Abarca’s conduct are not fatal to
the causes of action against H-Mart and GSI
H-Mart and GSI suggest the trial court correctly sustained
their demurrer to the third amended complaint because
averments appearing in the paragraph titled “Additional
Liability Facts Applicable to H-Mart[ ] and Grand Super Center
Defendants” (i.e., paragraph 113) “are not, in fact, unique to
[H-Mart and GSI] at all.” (Italics & underscoring omitted from
the first quotation.) Likewise, the trial court apparently
discounted allegations appearing in paragraph 113 because they
“are not unique to H Mart and GSI but instead are repeated
verbatim as to other defendants.”
We acknowledge that plaintiffs leveled the averments from
paragraph 113 quoted in Discussion, part B.1, ante (i.e.,
allegations of an agency relationship with C.H. Robinson and an
employment relationship with Abarca) against co-defendant
Trout-Blue Chelan-Magi, Inc.; four co-defendants collectively
identified as “the Chelean Entities” (italics & underscoring
omitted); two co-defendants collectively identified as “the
Columbia Reach Entities” (italics & underscoring omitted); and
co-defendants Oneta Trading Corporation and Custom Apple
Packers, Inc.
Yet, H-Mart, GSI, and the trial court did not cite any
authority for the proposition that a court may disregard a
pleading’s assertions if they are made against multiple
defendants, nor has our research revealed any such authority.
Indeed, that approach is difficult to reconcile with the “basic
20
rule . . . to construe the allegations of a complaint liberally in
favor of the pleader.” (See Skopp, supra, 16 Cal.3d at p. 438.)
Further, it is not apparent that plaintiffs’ allegations that
these other co-defendants also had the right to control Abarca
necessarily undermines plaintiffs’ theory of liability against
H-Mart and GSI. For instance, according to the third amended
complaint, defendant Trout-Blue Chelan-Magi, Inc. “had produce
on the truck driven by . . . ABARCA . . . .” If, as H-Mart and GSI
suggest in their briefing, H-Mart’s and GSI’s grocery stores were
the “ultimate destination[s]” of the produce, then all three
defendants arguably had a financial interest in controlling the
manner in which the goods were transported.
We also note that under certain circumstances, multiple
persons can employ an individual and be vicariously liable for the
employee’s torts. For example, our high court has observed,
“Under the common law, a special employment relationship
arises when a ‘ “general” employer . . . lends an employee to
another employer . . . .’ [Citation.] . . . ‘Where general and
special employers share control of an employee’s work, a “dual
employment” arises, and the general employer remains
concurrently and simultaneously, jointly and severally liable for
the employee’s torts. [Citations.]’ [Citation.]” (State ex rel. Dept.
of California Highway Patrol v. Superior Court (2015) 60 Cal.4th
1002, 1008; see also Garton, supra, 106 Cal.App.3d at p. 376
[stating the fact that a defendant was employed by one entity
“does not preclude the possibility that, for the particular
transactions in question, [the defendant] was acting as an agent
or employee of [another entity] as well”].)
Thus, notwithstanding H-Mart’s and GSI’s apparent
contention to the contrary, the pleading’s allegations against
21
other defendants—liberally construed—do not “contradict”
plaintiffs’ claim that H-Mart and GSI employed Abarca.
Moreover, a court typically does not assess the plausibility of a
pleading’s factual allegations on a demurrer,18 and we see no
reason to depart from that general rule here.
3. H-Mart’s and GSI’s argument that they are not
identified in a motor carrier contract does not salvage
their demurrer
H-Mart and GSI contend that pursuant to plaintiffs’
request, the trial court took judicial notice of a contract entered
into by Erick’s Transportation, Inc. and C.H. Robinson, whereby
the former agreed to provide motor carrier transportation
services to the latter. H-Mart and GSI seem to argue that
plaintiffs failed to state causes of action against them because
H-Mart and GSI “are not identified by name in the . . . [c]ontract
to any extent . . . .” We acknowledge “ ‘ “[a] complaint otherwise
good on its face is subject to demurrer when facts judicially
noticed render it defective.” [Citation.]’ [Citations.]” (Evans v.
City of Berkeley (2006) 38 Cal.4th 1, 6.) We fail to discern why
the purported absence here of a reference to H-Mart and GSI in a
contract between Erick’s Transportation, Inc. and C.H. Robinson
would, as a matter of law, controvert plaintiffs’ vicarious liability
18 (See Franceschi v. Franchise Tax Bd. (2016)
1 Cal.App.5th 247, 256 [“ ‘It is not the ordinary function of a
demurrer to test the truth of the plaintiff’s allegations or the
accuracy with which he describes the defendant’s conduct. . . .’
[Citation.] Accordingly, in considering the merits of a demurrer,
‘the facts alleged in the pleading are deemed to be true, however
improbable they may be.’ ”].)
22
theory against respondents. Because H-Mart and GSI do not
address this matter further, neither do we. (See D.N., supra,
56 Cal.App.5th at p. 767 [noting that the respondent is obligated
to assist the reviewing court in sustaining the judgment].)
In sum, plaintiffs have adequately pled a cause of action for
negligence against H-Mart and GSI via the doctrine of
respondeat superior. In light of this conclusion, we do not discuss
plaintiffs’ other theories for imposing liability on H-Mart and GSI
(e.g., H-Mart and GSI negligently hired and supervised Abarca,
and a contract for indemnity establishes they are vicariously
liable for Abarca’s negligence). (See Franklin I, supra,
151 Cal.App.4th at p. 257 [“ ‘[I]t is error for a trial court to
sustain a demurrer when the plaintiff has stated a cause of action
under any possible legal theory.’ ”].) Furthermore, because
H-Mart’s and GSI’s demurrer to the seventh cause of action (i.e.,
the survival cause of action) is predicated solely on their
challenge to the negligence cause of action, the trial court erred
in concluding that plaintiffs failed to allege sufficient facts to
state the seventh cause of action as well.
C. The Trial Court Erred Insofar as It Sustained the
Demurrer for Uncertainty
Although H-Mart and GSI demurred on the grounds that
the first and seventh causes of action (1) failed to state facts
sufficient to constitute causes of action and (2) were uncertain,
the trial court did not clarify in its ruling whether it was
sustaining the demurrer on just one of those grounds or on both.
On appeal, the parties apparently proceed on the assumption the
trial court ruled only that plaintiffs failed to allege facts sufficient
to constitute causes of action against H-Mart and GSI.
23
To the extent the trial court’s ruling could be interpreted as
sustaining a demurrer for uncertainty, the trial court erred. We
assume that H-Mart and GSI are aware of the nature and extent
of any relationships they had with C.H. Robinson and Abarca.
(See Discussion, part B.1, ante.) It thus follows that the trial
court should have overruled H-Mart’s and GSI’s demurrer for
uncertainty. (See Chen v. Berenjian (2019) 33 Cal.App.5th 811,
822 [“Demurrers for uncertainty . . . are disfavored.
[Citation.] . . . A demurrer for uncertainty should be overruled
when the facts as to which the complaint is uncertain are
presumptively within the defendant’s knowledge.”].)
DISPOSITION
We reverse the judgment dismissing respondents H-Mart
Los Angeles, LLC and Grand Supercenter, Inc. from the action.
We remand this matter to the trial court with directions to:
(1) vacate its order sustaining the demurrer as to the third
amended complaint’s first and seventh causes of action against
respondents; (2) issue a new order that overrules respondents’
demurrer as to those two causes of action; and (3) conduct further
proceedings consistent with this opinion. Appellants Jaime
Valenzuela and Tammy Martinez are awarded their costs on
appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J. CHANEY, J.
24