(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this vehicle accident/medical malpractice case and its proceedings.)
To plead a cause of action for negligence per se, plaintiff must allege: defendant violated a statute, ordinance or regulation; violation proximately caused death or injury to plaintiff; such death or injury was the kind that the statute, ordinance or regulation was designed to prevent; and plaintiff belonged to the class of persons for whose protection the statute, ordinance or regulation was adopted. (The Rutter Group, California Practice Guide, Civil Procedure Before Trial, Section 6:129.1; also citing Randi W v. Muroc Joint Unified School District (1997) 14 Cal.App.4th 1066, 1087). This is sufficiently pleaded.
Though also not before the court in the demurrer stage, the relevant statute is one likely to be known only by those who regularly rent such ATVs for a living, and creates a legal duty to the renter of ATVs not to violate or induce violation of that statute.
DEFENDANT’S ARGUMENTS ABOUT CORPORATE VS. INDIVIDUAL LIABILITY AND ABOUT JOHN BLACK’S LEGAL RELATIONSHIP TO THE CORPORATION AND TO THE PLAINTIFF ARE BOTH INCORRECT ON THE LAW, AND UNTIMELY RAISED AT THE DEMURRER STAGE
Though we could further detain the court with our legal research on the various ways in which John Black is responsible for what happened at BJ’s ATV rentals at the time at issue in the case – suffice it to say that we believe that the case law with which we are familiar, including that mis-cited by defendant in an argument inappropriate to a demurrer, pins John Black with liability in this case – this issue is not now before the court, and cannot be before the court before we have done sufficient discovery to be able to put admissible evidence forward if a motion for summary judgment is filed.
At the demurrer stage, plaintiff’s assertions must be assumed true by the court, and if they form a cause of action the case goes forward. If during the course of discovery, no evidence is adduced that would keep Mr. Black in the case as a defendant, then after that process is substantially complete, Mr. Black may file his motion for summary judgment.
Defendant here wants the court both to ignore the assertions in plaintiff’s pleadings, though demurrer law requires the court to assume them true, and instead to accept as true the self-serving, conclusory factual and legal assertions of the defendant, and sustain a demurrer, thereby precluding the plaintiff from conducting the discovery that would have nailed down the proof that defendant’s assertions are false. That is not the law in this or in any state.
CONCLUSION
This demurrer must be overruled as to the second cause of action. If for some reason the court believes that the demurrer must be sustained as to the second cause of action, that demurrer should be sustained with leave to amend.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.