Case Number: BC641751??? Hearing Date: April 11, 2017??? Dept: 98
REYNA ABARCA, et al.,
WILLIAM ROGER KATCHMAR, et al.,
CASE NO: BC641751
[TENTATIVE] ORDER RE: DEFENDANTS? DEMURRER TO COMPLAINT
April 11, 2017
Plaintiffs allege that on February 24, 2016, Defendant William Roger Katchmar (?Katchmar?) rear-ended Jorge Abarca, causing his death at the scene of the collision. (Complaint ? 17.) On November 23, 2016, Plaintiffs filed this wrongful death survival action against Defendants Katchmar and Advanced Inverter SVC Inc. (?Defendants?) for: (1) Motor Vehicle Negligence; (2) Negligence Per Se ? Vehicle Code ?22350; and (3) Negligence Per Se ? Vehicle Code ? 27103. On March 8, 2017, Defendants filed the instant demurrer. No opposition has been filed.
II. LEGAL STANDARD
A general demurrer challenges the sufficiency of the pleading as a matter of law and must not be sustained if the facts show an entitlement to some relief. (Collier v. Superior Court (1991) 228 Cal.App.3d 1117, 1120.) ?To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff?s proof need not be alleged.? (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)
Defendants demur to Plaintiffs? second and third causes of action on the grounds that they fail to state facts sufficient to constitute a cause of action, are redundant, and are uncertain. (CCP ? 430.10(e), (f).)
Defendants have not established that they have complied with CCP ? 430.41(a), which requires that, before filing a demurrer, the demurring party shall meet and confer with ?the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.? But CCP ? 430.41(a)(4) provides that ?[a]ny determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.? Here, in light of the nature of the demurrer and lack of opposition by plaintiffs, the court exercises its discretion to dispense with the meet and confer requirement for this demurrer. The court does caution counsel for Defendants, however, that they should not neglect this requirement in the future.
Plaintiffs? second cause of action is for Negligence Per Se ? Vehicle Code ?22350. Plaintiffs? third cause of action is for Negligence Per Se ? Vehicle Code ? 27103. The court finds that negligence per se is not a separate cause of action, but is a separate theory of negligence upon which recovery may be based. (See Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285?negligence per se is not an independent cause of action and does not provide a private right of action for violation of a statute.)
Accordingly, Defendants? Demurrer to Plaintiffs? Complaint is SUSTAINED without leave to amend.
Defendants are ordered to provide notice of this ruling.
Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org as directed by the instructions provided on the Court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 11th day of April, 2017
Hon. Holly J. Fujie
Judge of the Superior Court