Judge: Cherol J. Nellon, Case: 22STCV06078, Date: 2023-04-20 Tentative Ruling

Case Number: 22STCV06078    Hearing Date: April 20, 2023    Dept: 28

Plaintiff Judi Oestreicher’s Motion for Leave to Amend the Pleadings

Having considered the moving, opposing and reply papers, the Court rules as follows.

BACKGROUND

On February 17, 2022, Plaintiff Judi Oestreicher (“Plaintiff”) filed this action against Defendants Sandro Hernandez Cruz (“Cruz”) and Apolinar Vasquez Morales (“Morales”) for motor vehicle and general negligence. Plaintiff later amended the complaint to include Defendant Michael’s Pizza (“Pizza”).

On May 5, 2022, Cruz and Morales filed an answer. On July 28, 2022, Pizza filed an answer.

On February 27, 2023, Plaintiff filed a Motion for Leave to Amend the Complaint to be heard on March 29, 2023. The Court continued the hearing on the motion to April 20, 2023. On April 6, 2023, Pizza filed an opposition. On April 10, 2023, Plaintiff filed a reply.

Trial is currently scheduled for August 17, 2023.

PARTY’S REQUESTS

Plaintiff requests leave to amend the pleading to add a cause of action for negligence per se.

Pizza requests the Court deny leave on the basis that negligence per se is not a separate cause of action.

LEGAL STANDARD

CCP 472(a)provides “Any pleading may be amended once by the party of course, and without costs, at any time before the answer or demurrer is filed, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party, and the time in which the adverse party must respond thereto shall be computed from the date of notice of the amendment.”

CCP §473(a) states “(1) The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.

(2) When it appears to the satisfaction of the court that the amendment renders it necessary, the court may postpone the trial, and may, when the postponement will by the amendment be rendered necessary, require, as a condition to the amendment, the payment to the adverse party of any costs as may be just.”

CCP §576 provides: “Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.”

DISCUSSION

Plaintiff’s original complaint alleged that Morales was backing out of a parking spot and collided with the front of Plaintiff’s vehicle.

Plaintiff requests leave to amend the complaint to include a claim for negligence per se, based on Morales’s deposition. At Morales deposition, he stated he did not have a valid driver’s license when the accident occurred. Plaintiff claims this provides a basis for negligence per se, as negligence is presumed when a party “violated a statute,” resulting in injury to a party. (Evid. Code § 669(a).) A violation of the vehicle code may only be potentially considered a basis for negligence per se if a statute was intended to protect against traffic accidents. Gilmer v. Ellington (2008) 159 Cal.App.4th 190, 203. Vehicle Code § 12500, which mandates that a person must have a valid driver’s license, was designed for the purpose of keeping people off the road who do

not have the skill to drive a vehicle. In re A.M (2009) 173 Cal.App.4th 668, 671-672. Violation of VC § 12500 could provide a basis for a claim based in negligence per se.

However, negligence per se is not a separate cause of action from negligence, but instead “creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.” (Turner v. Seterus, Inc. (2018) 27 Cal.App.5th 516, 534.) It is effectively a new legal theory under which a plaintiff can prove negligence. Thus, any allowance to add it as a separate cause of action would be immediately subject to demurrer for cumulative causes of action. Instead, the Court grants leave for Plaintiff to add the negligence per se theory and facts to the already existing cause of action for general negligence.

Defendants are not unduly prejudiced by this amendment, as it simply adds additional facts to explain potential theories of liability based in the allegations already presented.

CONCLUSION

Plaintiff Judi Oestreicher’s Motion for Leave to Amend the Pleadings is GRANTED. Plaintiff is ordered to file and serve the First Amended Complaint within 30 days of the hearing on the motion.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.