Judge: Michael E. Whitaker, Case: 22STCV16893, Date: 2023-03-07 Tentative Ruling

Case Number: 22STCV16893    Hearing Date: March 7, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Martinique Latrell Brown (Plaintiff) sued Defendants Kimberly Alicia Areas, Bertha Alicia Arevalo, Joan Arevalo Gutierrez, Angelo Montay Industrious, and Sixt Rent A Car, LLC (collectively, Defendants) based on injuries Plaintiff alleges she sustained in a motor vehicle collision.  Plaintiff alleges all four causes of action in her Complaint against Defendant Angelo-Montay Industrious (AMI). 

AMI demurs to Plaintiff’s third cause of action for negligence per se.  Plaintiff has not filed an opposition.

ANALYSIS

1. Demurrer

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

Plaintiff asserts a cause of action for “Negligence Per Se” against AMI as the third cause of action in the complaint.  “Negligence per se is an evidentiary doctrine, rather than an independent cause of action.  It can be applied generally to establish a breach of due care under any negligence-related cause of action.  Therefore, the doctrine of negligence per se is within the scope of pleadings that allege general negligence, as proof of a breach of duty is not limited to common law standards of care.”  (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1210–1211, citations omitted; see also Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285–1286 [“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”].)  Thus, as both Jones and Quiroz held, Plaintiff’s third cause of action for negligence per se is not cognizable.  The Court therefore sustains the demurrer to the third cause of action for failure to allege facts sufficient to constitute a cause of action.

2. Leave to Amend

Plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) The plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.)  Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, Plaintiff has failed to meet her burden as she has not filed a motion in opposition.

CONCLUSION AND ORDER

Therefore, the Court sustains AMI’s demurrer to the third cause of action in Plaintiff’s complaint without leave to amend.    

AMI shall provide notice of the Court’s ruling and file a proof of service of such.