Judge: Malcolm Mackey, Case: 22STCV23972, Date: 2023-02-07 Tentative Ruling

Case Number: 22STCV23972    Hearing Date: February 7, 2023    Dept: 55

LOPEZ v. SERNA                                                    22STCV23972

Hearing Date:  2/7/23,  Dept. 55

#8:   DEMURRER TO PLAINTIFFS RICHARD LOPEZ AND MIRANDA RODRIGUEZ’S VERIFIED COMPLAINT.

Notice:  Okay

Opposition

MP:  Defendants  PATRICIA SERNA, GROUP X ROSEMEAD PROPERTIES, LP, PAMA MANAGEMENT, INC., and REGENCY MANAGEMENT, INC.

RP:  Plaintiffs

Summary

On 10/13/22, plaintiffs filed a Complaint alleging that defendants own and manage 4622 Rosemead Boulevard, Apartment #15. Pico Rivera, which has habitability violations, including cockroach infestation, spider infestation, mold contamination, dysfunctional plumbing systems, disrupted utility access to plumbing and electrical, dysfunctional electrical system, improper weatherproofing, improper ventilation, structural deficiencies, and improper construction practices posing health and safety hazards.

The causes of action are:

1. VIOLATION OF CALIFORNIA CIVIL CODE § 1942.4

2. TORTIOUS BREACH OF THE WARRANTY OF HABITABILITY

3. PRIVATE NUISANCE

4. BUSINESS AND PROFESSIONS CODE § 17200, ET SEQ.

5. NEGLIGENCE

6. BREACH OF COVENANT OF QUIET ENJOYMENT

7. INTENTIONAL INFLUENCE TO VACATE

8. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

9. NEGLIGENT HIRING, RETENTION, AND SUPERVISION

10. NEGLIGENCE PER SE

11. VIOLATION OF RETALIATORY EVICTION AND ANTI-HARASSMENT ORDINANCE

12. TERMINATION OF ESTATE, CIVIL CODE § 789.3.

MP Positions

Moving parties request an order sustaining a demurrer to the Complaint’s claim for Negligence Per Se, on grounds including the following:

·         Negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.” Johnson v. Honeywell Intemat., Inc. (2009) 179 Cal.App.4th 549, 555.

·         Plaintiffs’ complaint already pleads negligence as its fifth purported cause of action. Thus, plaintiffs cannot additionally plead negligence per se as a separate cause of action.

RP Positions

Opposing parties advocate overruling, or leave to amend, for reasons including the following:

·         Plaintiffs are allowed to plead Negligence Per Se under various cases, as an alternative theory, arising out of the same facts the fifth cause of action for Negligence.

·         The titling of the tenth cause of action does not prevent it from standing as a separate cause of action,  because negligence per se is an evidentiary standard upon which the tenth cause of action establishes a presumption for negligence.

·         Defendants violated laws to protect people such as Plaintiffs from the kind of damages sustained.

·         A presumption of negligence based on these legal violations is created and established in the tenth cause of action and the additional paragraphs incorporated by reference.

Tentative Ruling

The demurrer is overruled.  Twenty days to answer.

There is a split of authority as to whether Negligence Per Se is an independent cause of action, having elements as follows:

1. Defendant violated a statute, ordinance, or regulation of a public entity;
2. that violation caused an injury or death;
3. death or injury resulted from occurrence which the law was designed to prevent;  and
4. person suffering the injury or death was one of the class of persons for whose protection the law was adopted.

Urhausen v. Longs Drug Stores Cal., Inc.  (2007) 155 Cal.App.4th 254, 267 (quoting Ev. C. §669); Gilmer v. Ellington  (2008) 159 Cal.App.4th 190, 202-03;  Capolungo v. Bondi  (1986) 179 Cal.App.3d 346, 349 (“In order for a claim of negligence per se to succeed, all four elements must be met.”).  See also  Michael R. v. Jeffrey B. (1984) 158 Cal. App. 3d 1059, 1066-67 (“it is not necessary to plead the statute where the alleged cause of action is not a violation of the statute, but rather negligence of the defendant, and the ordinance is merely evidence offered to show such negligence….  Additionally, the statute need not provide specifically for civil damages or liability. Violation of a statute embodying a public policy is generally actionable even though no specific civil remedy is provided in the statute itself.”);  Williams v. Southern Pacific Co. (1916) 173 Cal. 525, 540 (Cal. 1916) (“ violation of these penal statutes constitutes negligence per se....”);  White v. Cox Bros. Constr. Co. (1958) 162 Cal. App. 2d 491, 499 (based on criminal statute);  Michael v. Key System Transit Co. (1929) 98 Cal. App. 189, 194 (“the violation of a penal statute constitutes negligence per se....”);  Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466  (triable dispute existed whether noncompliance with statutory and related regulatory provisions was a substantial factor re causation of plaintiffs' injuries).  Cf.,  Wawanesa Mutual Ins. Co. v. Matlock (1997) 60 Cal. App. 4th 583, 587 (disallowing application of Penal Code section only because it was not designed to protect against the type of harm which occurred);  Bradshaw v. City of Los Angeles (1990) 221 Cal. App. 3d 908, 918 (disallowing application of Penal Code section because Legislature did not intend for the particular provisions to be the basis of a claim of negligence per se), disapproved on other grounds by  Copley Press, Inc. v. Sup. Ct.  (2006) 39 Cal.4th 1272, 1284.  But see  Johnson v. Honeywell Intern. Inc. (2009) 179 Cal.App.4th 549, 555 (“‘negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.’”);  Peart v. Ferro (2004) 119 Cal.App.4th 60, 80 (“This statute … does not establish tort liability. Rather, it merely ‘codifie[s]’ the rule that ‘a presumption of negligence arises from the violation of a statute….’”);  Quiroz v. Seventh Ave. Center (2006) 140 Cal. App. 4th 1256, 1285 (“negligence per se is not to state an independent cause of action….”);  California Service Station and Auto. Repair Ass'n v. Amer. Home Assur. Co. (1998) 62 Cal.App.4th 1166, 1180 (“the Evidence Code section 669 presumption of negligence applies only after determining that the defendant owes the plaintiff an independent duty of care.”). 

Where there is a split of authority, trial courts have discretion to choose between the decisions.  Auto Equity Sales, Inc.  v.  Sup.  Ct.  (1962) 57 Cal.2d 450, 456.  Where there is a split of authority, “[a]s a practical matter, a superior court ordinarily will follow an appellate opinion emanating from its own district even though it is not bound to do so.”  McCallum v. McCallum  (1987) 190 Cal.App.3d 308, 316 n.4.