(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death/elder abuse case and its proceedings.)
It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.
Plaintiff’s Third, Fourth And Fifth Causes Of Action For Negligence Per Se Are Sufficiently Pled And Supported By Factual Allegations
Defendant’s argument in support to demurrer to the Third, Fourth and Fifth causes of action are essentially that (a) Plaintiff’s complaint is too organized, and (b) the causes of action do not specifically identify how each defendant supposedly violated the specific statutes.
Plaintiff’s effort to be clear and specific by pleading a “Negligence Per Se” cause of action for each separate and distinct statute involved is not grounds for demurrer.
California Evidence Code section 669 provides, in pertinent part, as follows:
The failure of a person to exercise due care is presumed if:
(1) He violated a statute, ordinance, or regulation of a public entity;
(2) The violation proximately caused death or injury to person or property;
(3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and
(4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.
In an effort to specifically and clearly plead the causes of action and claims at issue in this case, Plaintiff delineated a separate and distinct cause of action for Negligence Per Se for each separate and distinct statute involved.
Defendant’s demurrer on grounds that Plaintiff specifically and separately delineated the various statutes violated by Defendants and thus the statutory grounds for negligence per se claims is simply unnecessary and counter-productive. There would be no point to forcing Plaintiff to simply lump all of the statutes together in one massive negligence cause of action. That would only complicate matters. Further, as discussed below, the statutes at issue are vastly different and unique in their application to the facts alleged. Defendants’ demurrer on this basis should be overruled.
Plaintiff’s complaint does sufficiently identify which Defendants violated which statutes involved
Defendant fails to cite any authority whatsoever to indicate that Plaintiff must specify which Defendant committed the statutory violations at issue. There is no such requirement. California is a notice pleading state, and the causes of action and claims relating to statutory violations are sufficient to put Defendant ODA on notice that Plaintiff is alleging that ODA is responsible.
Second, even if Plaintiff was required to specify which Defendant committed which violations of which statute, the complaint does so. Plaintiff’s complaint alleges that each of the defendants was the agent, servant, and/or employee of each of the remaining defendants and was, at all times relevant, acting within the course and scope of their authority as agent, servant and/or employee and with the permission and consent of each of the remaining defendants. Plaintiff alleges that Defendants Hill and Brown were employees and/or agents and/or representatives of ODA and were acting on ODA’s behalf, within the course and scope of their employment and/or agency and/or representation. Plaintiff further alleges that all non-individual Defendants in this action were acting in concert with each other, in business relationships with each other, for such purposes and in such a manner as to make each and all of them responsible….
Defendant’s argument lacks merit. The demurrer should be overruled. (See Part 7 of 11.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.