Case Name: Nicholas Herriot v. Diep Wilson, et al.
Case No.: 17-CV-308646

Currently before the Court is the demurrer by defendant Jeannette D. Kennedy (“Kennedy”), as trustee of the Jeannette D. Kennedy Trust dated April 14, 2004, to the first amended complaint (“FAC”) of plaintiff Nicholas Herriot (“Plaintiff”).

Factual and Procedural Background

This is a personal injury action. On or about April 24, 2015, Plaintiff was riding his bicycle northbound on Middlefield Road near the intersection of Lowell Avenue in Palo Alto. (FAC, ¶ 8.) As Plaintiff was riding his bicycle, he was struck by a 2005 Gray Acura TL that was “owned, controlled, maintained, entrusted, handled, managed, supervised, operated and/or possessed” by defendants Diep Wilson (“Wilson”) and Ching-Pei Hu (“Hu”). (Id. at ¶¶ 4 & 8.) As a result of the accident, Plaintiff suffered serious and permanent injuries. (Id. at ¶ 8.)

Plaintiff alleges that Wilson and Hu caused his injuries by “negligently and carelessly driving, owning, operating, controlling, entrusting, handling, possessing, managing and maintaining” the 2005 Gray Acura TL. (FAC, ¶¶ 10-12.)

Plaintiff further alleges that Kennedy “owned, leased, rented, occupied, possessed, designed, constructed, developed, landscaped, operated, inspected, repaired, maintained, modified, managed, controlled, failed to adequately landscape and/or supervised” real property located at the intersection of Middlefield Road and Lowell Avenue. (FAC, ¶¶ 5-6 & 16.) At the time of the accident, the subject property “contained trees, shrubs, plants, hedges and the like that either partially or completely obstructed the view of motor-vehicle traffic that was merging onto Middlefield Road from Lowell Avenue.” (Id. at ¶¶ 7 & 17.) Kennedy “negligently and carelessly owned, leased, rented, occupied, possessed, designed, constructed, developed, landscaped, operated, inspected, repaired, maintained, modified, managed, controlled and/or supervised the [property], permitted or created the dangerous condition, increased the risk of harm or created a false sense of safety (i.e., reliance on the undertaking) at or near the [property] so as to cause Plaintiff to encounter a dangerous and deceptive condition, and thereby directly causing the injuries and damages to [Plaintiff].” (Id. at ¶ 19.) More specifically, Kennedy “failed to adequately landscape … bushes, plants, trees and hedges located in the front portion of the property … .” (Id. at ¶ 5.)

Lastly, Plaintiff alleges that Kennedy was “subject to and violated … Section 8.04.050(a)(3) and (6) of Chapter 8.04, Section 9.56.030(a)(5), (8) and (21) of Chapter 9.56 and Sections 1624.020, 16.24.040, 16.24.080 of Chapter 16.24 of the Palo Alto Municipal Code,” regarding “sight visibility at intersections and public safety.” (FAC, ¶ 24.) These violations allegedly “caused Plaintiff’s injury, the occurrence resulting in the injury was of a nature that the regulations were designed to prevent[,] and Plaintiff was among the class of persons for whose protection the regulations were adopted.” (Id. at ¶ 24.)

Based on the foregoing allegations, Plaintiff filed the operative FAC against Wilson, Hu, and Kennedy, alleging causes of action for: (1) negligence; (2) premises liability/negligence; and (3) negligence per se.

On March 7, 2019, Kennedy filed the instant demurrer. Plaintiff filed papers in opposition to the demurrer on April 16, 2019. On April 24, 2019, Kennedy filed a reply.

Discussion

Kennedy demurs to the third cause of action of the FAC on the grounds of lack of subject matter jurisdiction, failure to allege facts sufficient to constitute a cause of action, and uncertainty. (See Ntc. Dem. & Dem., p. 1:24-2:3 [stating that Kennedy demurs to the third cause of action “pursuant to California Code of Civil Procedure[ ] section 430.10(a), (e) and (f)”]; see also Code Civ. Proc., 430.10, subds. (a) [lack of subject matter jurisdiction], (e) [failure to allege sufficient facts to constitute a cause of action], & (f) [uncertainty].)

I. Meet and Confer

As an initial matter, Plaintiff persuasively argues that Kennedy failed to comply with Code of Civil Procedure section 430.41.

Code of Civil Procedure section 430.41 requires a demurring party to meet and confer with the party who filed the challenged pleading to seek informal resolution of the demurring party’s objections. (Code Civ. Proc., § 430.41, subd. (a) [“Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone 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.”].) The meet and confer must be conducted in person or by telephone, and must address each cause of action or defense to be included in the demurrer. (Ibid.) If these efforts fail, the demurring party must file and serve a declaration regarding the meet and confer process with the demurrer. (Code Civ. Proc., § 430.41, subd. (a)(3).)

Here, Kennedy did not file a meet and confer declaration with her demurrer and the record does not otherwise indicate that Kennedy attempted to meet and confer before filing her demurrer. Thus, Kennedy failed to comply with Code of Civil Procedure section 430.41.

Nonetheless, the Court may not overrule Kennedy’s demurrer for insufficient meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(4).) In furtherance of judicial economy, the Court will overlook Kennedy’s failure to comply with Code of Civil Procedure section 430.41 in this instance only. Kennedy is admonished that all future filings should comply with the Code of Civil Procedure.

II. Legal Standard

The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, “ ‘[a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine of judicial notice’ [citation].” (Hilltop, supra, 233 Cal.App.2d at p. 353; see also Code Civ. Proc., § 430.30, subd. (a).) “ ‘It is not the ordinary function of a demurrer to test the truth of the … allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant’s conduct. … .’ [Citation.] Thus, … ‘the facts alleged in the pleading are deemed to be true, however improbable they may be. [Citation.]’ [Citations.]” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958.)

III. Lack of Subject Matter Jurisdiction

In her notice of demurrer, Kennedy states that she demurs to the third cause of action pursuant to Code of Civil Procedure section 430.10, subdivision (a), which authorizes demurrers on the ground of lack of subject matter jurisdiction.

But Kennedy’s memorandum of points and authorities is devoid of any argument or citation to legal authority regarding the issue of subject matter jurisdiction. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [“When [a party] fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.”]; see also Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2 [“[A] point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”].)

Accordingly, Kennedy’s demurrer to the third cause of action on the ground of lack of subject matter jurisdiction is OVERRULED.

IV. Uncertainty

Kennedy demurs to the third cause of action on the ground of uncertainty, arguing that the claim is uncertain “because Plaintiff purports to bring a cause of action that does not exist.” (Mem. Ps. & As., p. 2:9-10.)

“[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Reg. Authority (2012) 208 Cal.App.4th 1125, 1135; Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616 [“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”].)
Kennedy’s argument regarding uncertainty actually pertains to Plaintiff’s purported failure to allege sufficient facts to state a legally cognizable cause of action. It appears that Kennedy misunderstands the nature of uncertainty as a ground for demurrer. The law is settled that “[a] special demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading but is directed at the uncertainty existing in the allegations already made.” (Butler v. Sequiera (1950) 100 Cal.App.2d 143, 145-146.)

Accordingly, Kennedy’s demurrer to the third cause of action on the ground of uncertainty is OVERRULED.

VI. Failure to Allege Facts Sufficient to Constitute a Cause of Action

Kennedy persuasively argues, among other things, that the third cause of action fails to allege facts sufficient to state a claim because negligence per se is not a cause of action, but an evidentiary presumption.

“ ‘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.” [Citation.]” (Klein v. BIA Hotel Corp. (1996) 41 Cal.App.4th 1133, 1140.)

Negligence per se is not a cause of action; rather, “[t]he 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. (See Johnson v. Honeywell Intern. Inc. (2009) 179 Cal.App.4th 549, 555-556 [“ ‘[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.]”]; see also Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285-1286 [“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. [Citation.] 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. [Citation.]”].)

Accordingly, Kennedy’s demurrer to the third cause of action on the ground of failure to allege facts sufficient to constitute a cause of action is SUSTAINED, without leave to amend.