Judge: Cherol J. Nellon, Case: 23STCV04669, Date: 2023-12-12 Tentative Ruling


Case Number: 23STCV04669    Hearing Date: December 12, 2023    Dept: 14

(1)        Demurrer

 

            Defendant Manhattan Loft now demurs to the eighth cause of action in the complaint on the grounds that the facts alleged are insufficient to support that cause of action and are uncertain.

 

Decision

 

            The demurrer is SUSTAINED, with 10 days leave to amend. Plaintiff is directed to combine the allegations of the fifth and eighth causes of action into a single claim for “negligence.” Defendant Manhattan Loft is to file an Answer within 10 days of being served with the amended complaint.

 

Discussion

 

            This matter first came on for hearing on October 23, 2023. It was continued to the instant date to give Defendant a chance to file a reply. Per Code of Civil Procedure § 1005, Defendant Manhattan Loft’s Reply was due to be filed on December 5, 2023. No reply was filed that date. Therefore, the only papers considered by the court are the demurrer and the opposition.

 

            The opposition correctly points out that Defendant Manhattan Loft has improperly cited an unpublished trial court decision, identified as Laguerre. See Budrow v. Dave & Buster’s of California, Inc. (2009) 171 Cal.App.4th 875, 884-885. This court has not reviewed that case and does not rely upon it in reaching the decision here.

 

            Plaintiff’s fifth cause of action is for negligence, and her eighth cause of action is for “negligence per se.” But “negligence per se” is not a cause of action; it is an evidentiary doctrine that courts may apply in negligence cases. See Evidence Code § 669. When parties attempt to plead “negligence per se” separately from ordinary negligence, the proper approach is to combine the two into a single cause of action. See Turner v. Seterus, Inc. (2018) 27 Cal.App.5th 516, 534.

 

            Therefore, the demurrer is SUSTAINED, with 10 days leave to amend. Plaintiff is directed to combine the allegations of the fifth and eighth causes of action into a single claim for “negligence.” Defendant Manhattan Loft is to file an Answer within 10 days of being served with the amended complaint.

 

(2)        Motion to Strike Complaint

 

            Defendant now moves this court for an order striking paragraph 6 from the Prayer in the Complaint.

 

Decision

 

The motion is DENIED.

 

            Defendant Manhattan Loft has failed to meet its burden to support the motion. The motion asks the court to strike a request for restitution. The supporting memorandum contains a single paragraph which offers no real discussion of the issue and cites only to the Laguerre case, which this court cannot consider.

 

            This matter first came on for hearing on October 23, 2023. It was continued to the instant date to give Defendant a chance to file a reply. Per Code of Civil Procedure § 1005, Defendant Manhattan Loft’s Reply was due to be filed on December 5, 2023. No reply was filed that date. Therefore, the only papers considered by the court are the motion to strike and the opposition.