Judge: Kerry Bensinger, Case: 21STCV03101, Date: 2023-02-28 Tentative Ruling

Case Number: 21STCV03101    Hearing Date: February 28, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On January 26, 2021, Plaintiff Sophia Childs (“Plaintiff”) filed this action against Defendants Gerardo Rangel, OCLA Express, OCLAEXPRESS.COM LLC, Jesus Velasquez, and Perla Velasquez (“Defendants”) for damages arising from a motor vehicle accident that occurred on February 1, 2019.

          The complaint alleges causes of action for (1) motor vehicle negligence; (2) negligence per se; and (3) intentional infliction of emotional distress.

          On January 24, 2023, Defendants filed the instant demurrer as to the second cause of action for negligence per se.

          No opposition has been filed.

II.      LEGAL STANDARDS

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.  We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.  [Citation.]”  (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.)  A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Ibid.)

III.     DISCUSSION

Defendants demur to the second cause of action arguing that negligence per se is an evidentiary presumption and not a separate cause of action.

Negligence per se is not a separate tort cause of action, but an evidentiary doctrine through which negligence may be presumed if requirements are met. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285) “Accordingly, to apply negligence per se is not to state an independent cause of action. The doctrine does not provide a private right of action for violation of a statute. [Citation.] Instead, it operates to establish a presumption of negligence for which the statute serves the subsidiary function of providing evidence of an element of a preexisting common law cause of action.” (Id at pp. 1285-86.) 

To the extent that the Complaint alleges negligence per se as a separate cause of action, the Court sustains the demurrer without leave to amend. The allegations supporting the negligence per se claim may remain in the Complaint to the extent that they support the underlying negligence cause of action. 

IV.     CONCLUSION

Defendants’ demurrer to the second cause of action is SUSTAINED without leave to amend.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

        Dated this 28^th day of February 2023