Pena v. Sita World Travel, Inc. (1978)

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[Civ. No. 53054. Second Dist., Div. Two. Dec. 28, 1978.]

GRACE PENA, Plaintiff and Appellant, v. SITA WORLD TRAVEL, INC., et al., Defendants and Respondents.

(Opinion by Fleming, J., with Roth P. J., and Compton, J., concurring.)

COUNSEL

Renzi & Kilbride and Fred Kilbride for Plaintiff and Appellant.

Hiestand & Bower, Robert B. Reagan, Dryden, Harrington & Swartz, Victoria G. Chaney and Dale B. Goldfarb for Defendants and Respondents.

OPINION

FLEMING, J.

Plaintiff Grace Pena appeals an order dismissing her 19th and 20th causes of action pursuant to the sustaining of defendants' demurrers thereto. We affirm the dismissal order. [88 Cal. App. 3d 644]

In the summer of 1975, plaintiff went on a 10-day prepaid tour of Mexico. The tour had been arranged by Sita World Travel, Inc. (Sita) and sold to plaintiff by United Associated Tour and Travel Service (United), which allegedly remitted some of the payment to Sita. While traveling through Mexico, plaintiff was injured when a bus in which she was riding overturned. As a result of said injury, plaintiff and three other injured passengers filed suit against Sita, United, and the Automobile Club of Southern California, which had sold the tour to some of the other plaintiffs. The complaint in its second amended form set forth twenty causes of action, five per plaintiff, with plaintiff Grace Pena alleging: (16) negligence in the selection of the transportation to be used in Mexico, and in defendants' failure to warn of a Mexican law limiting recovery of damages in accidents such as the one at bench; (17) and (18) intentional misrepresentations as to the safety of the transportation selected; (19) strict liability in tort; and (20) indemnification from United for failure to warn of Sita's disclaimer clause. General demurrers were sustained as to the 19th and 20th causes of action and plaintiff then voluntarily dismissed the 16th, 17th, and 18th causes of action. This appeal is taken from the ensuing dismissal of plaintiff's 19th and 20th causes of action.

Discussion

[1] The function of a demurrer is to test the sufficiency of a complaint as a matter of law and absent clear error or abuse of discretion by the trial court, the order of dismissal following the sustaining of the demurrer will be affirmed on appeal. (Banerian v. O'Malley (1974) 42 Cal. App. 3d 604, 610-11 [116 Cal. Rptr. 919].)

[88 Cal. App. 3d 645] in the form of a "package tour" does not change the nature of defendants' activities.

The order is affirmed.

Roth, P. J., and Compton, J., concurred.