Case Name: Maria Dolora Patrimonio Lopez, et al. v. Deacon Corp., et al.

Case No.: 16CV299547

Motion to Strike Portions of Plaintiffs’ Complaint

Factual and Procedural Background

Defendant Deacon Corp. (“Deacon”) was the general contractor working on a four-story construction project located at 900 Kiely Boulevard in Santa Clara. (Complaint, ¶5.) Raul Ramada Lopez (“Decedent”) was employed by M.D.E. Electric Company (“MDE”) as an electrician. (Complaint, ¶6.) Deacon hired MDE as a subcontractor to do electrical work at the project. (Id.) Deacon retained control over the whole project and property and was responsible for ensuring safety procedures were done. (Id.) The applicable Code of California Regulations require that when there are wall openings with a certain amount of drop, safety precautions should be installed on the wall openings to prevent the danger of falling. (Complaint, ¶7.) Deacon failed to install the necessary safety protections. (Complaint, ¶8.)

On September 3, 2015, Decedent fell through an unguarded/ unprotected wall opening while working in Unite 405 of the project located on the fourth floor of the property. (Complaint, ¶9.) Decedent fell 40 feet to the ground. (Id.) Decedent died on September 5, 2015. (Complaint, ¶11.)

On September 2, 2016, plaintiffs Maria Dolora Patrimonio Lopez, Glenn Anthony Lopez, and Chester Josh Lopez (collectively, “Plaintiffs”) filed a complaint against Deacon asserting causes of action for:

  • Wrongful Death: Negligence
  • Wrongful Death: Negligence Per Se
  • Survival Action: Negligence
  • Survival Action: Negligence Per Se

On March 14, 2017, defendant Deacon filed the motion now before the court, a motion to strike portions of Plaintiffs’ complaint.

Discussion

  1. Defendant Deacon’s motion to strike the second and fourth causes of action are unopposed and GRANTED.

Defendant Deacon moves to strike the second and fourth causes of action entitled, “negligence per se.” “Section 669 of the Evidence Code sets forth the doctrine commonly called negligence per se. It provides that negligence of a person is presumed if he violated a statute or regulation of a public entity, if the injury resulted from an occurrence that the regulation was designed to prevent, and if the person injured was within the class for whose protection the regulation was adopted. This presumption may be rebutted by proof that the violator did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law.” (Klein v. BIA Hotel Corp. (1996) 41 Cal.App.4th 1133, 1140.) Negligence per se is not a cause of action. “The negligence per se doctrine actually relates to the burden of proof.” (Cade v. Mid-City Hospital Corp. (1975) 45 Cal.App.3d 589, 596.) If the elements are met, the doctrine merely creates an evidentiary presumption in support of a claim for negligence.

“ ‘[T]he doctrine of 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.’ [Citation.] [¶] The doctrine of negligence per se does not provide a private right of action for violation of a statute. [Citation.]” (Johnson v. Honeywell Intern. Inc. (2009) 179 Cal.App.4th 549, 555–56.)

Plaintiffs do not oppose defendant Deacon’s motion to strike the second and fourth causes of action. Accordingly, defendant Deacon’s motion to strike the second and fourth causes of action is GRANTED.

  1. Defendant Deacon’s motion to strike the third cause of action is DENIED.

Defendant Deacon moves to strike the third cause of action on the basis that Plaintiffs have not complied with Code of Civil Procedure section 377.32 which states, in pertinent part:

The person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent’s successor in interest under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following:

(1) The decedent’s name.

(2) The date and place of the decedent’s death.

(3) “No proceeding is now pending in California for administration of the decedent’s estate.”

(4) If the decedent’s estate was administered, a copy of the final order showing the distribution of the decedent’s cause of action to the successor in interest.

(5) Either of the following, as appropriate, with facts in support thereof:

(A) “The affiant or declarant is the decedent’s successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) and succeeds to the decedent’s interest in the action or proceeding.”

(B) “The affiant or declarant is authorized to act on behalf of the decedent’s successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) with respect to the decedent’s interest in the action or proceeding.”

(6) “No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding.”

(7) “The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct.”

In conjunction with the opposition, Plaintiffs filed a declaration in compliance with Code of Civil Procedure section 377.32. As such, defendant Deacon’s motion to strike the third cause of action is DENIED as moot.

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