SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

 

 

 

I. INTRODUCTION 

Andrea Solorzano (“Plaintiff”) filed this action on May 17, 2021 against the City of Los Angeles (“City”), the County of Los Angeles (“County”), Kaiser Foundation Hospitals (“Kaiser”) (erroneously named “Kaiser Permanente” in the complaint), and DOES 1-50 (together, “Defendants”) after she tripped and fell on a public sidewalk. Kaiser is the owner of the premises abutting the portion of the sidewalk where Plaintiff fell. Plaintiff alleges four causes of action against Kaiser: premises liability (the second cause of action in the complaint), negligence (the third cause of action), negligence per se for violating Los Angeles Ordinance 713 § 1 (the fourth cause of action), and negligence per se for violating Los Angeles Ordinance 713 § 2 (the fifth cause of action).  

On December 27, 2022, Kaiser filed this demurrer to the fourth and fifth causes of action for negligence per se brought under sections one and two of Los Angeles Ordinance 713. Plaintiff filed an opposition on January 19, 2023. Kaiser filed a reply on January 25, 2023. 

 

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).)   

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1).)  The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)  The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subd. (b).)  An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.  (Code Civ. Proc., § 431.10, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Code Civ. Proc., § 437.) 

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 

Defendant Kaiser Foundation Hospitals (“Kaiser”) demurs to the fourth and fifth causes of action, which are based on Los Angeles Ordinance 713 sections one and two. 

Meet and Confer 

Before filing a demurrer or motion to strike, the demurring or moving party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., §§ 430.41, subd. (a); 435.5, subd. (a).)  Here, this requirement is satisfied as Kaiser’s counsel attempted to meet and confer with Plaintiff prior to filing this motion. (Decl. Kevin Miller, para. 4.) Kevin Miller, co-counsel for Kaiser, called Plaintiff’s counsel on December 13, 2022 and informed a paralegal for Plaintiff, Ken Newman, that Kaiser intended to file a demurrer. (Decl. Kevin Miller, para. 5.) Miller later emailed Newman and Plaintiff’s counsel of record, Jonathon Farahi, about the issues in the demurrer. (Decl. Kevin Miller, para. 5.) Miller did not receive a response from Farahi and therefore was forced to file this motion. (Decl. Kevin Miller, para. 5.) 

Analysis  

Kaiser argues that the fourth and fifth causes of action for negligence per se cannot stand on their own as independent causes of action because the ordinances they are based on do not create duties owed to third persons such as Plaintiff. Kaiser argues these ordinances merely create the duty to reimburse the County for sidewalk repairs.  

In opposition, Plaintiff does not contest Kaiser’s position that Ord. 713 §§ 1 and 2 do not create a duty to third persons. Instead, it argues that even if the negligence per se claims cannot stand on their own as independent causes of action, Kaiser had duties pursuant to Ord. 713 §§ 1 and 2 that it breached. Therefore, Plaintiff argues that at the very least, Ord. 713 §§ 1 and 2, create additional grounds for negligence. Plaintiff requests that if the Court sustains the demurrer to the fourth and fifth causes of action then it should grant Plaintiff leave to amend the complaint to add the allegations contained in those causes of action to the negligence cause of action. 

Kaiser is correct that negligence per se is not a separate tort cause of action, but an evidentiary doctrine through which negligence may be presumed if the 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. 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 with leave to amend to allow Plaintiff the opportunity to include its negligence per se allegations to in its Third Cause of Action for negligence.¿  

 

IV. CONCLUSION 

Kaiser’s demurrer as to the fourth and fifth causes of action for negligence per se is SUSTAINED with leave to amend.  Plaintiff shall have twenty days to file the amended complaint.  

 

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 1st day of  

February 2023