Miglierini v. Havemann

SALSMAN, J.

This is an appeal from a judgment dismissing plaintiff’s action after the trial court sustained defendants’ demurrer to plaintiff’s first amended complaint. Leave to amend further was denied. The only issue on appeal therefore is the sufficiency of plaintiff-appellant’s first amended complaint.

The material allegations of the complaint are to the effect that appellant parked his ear in a parking lot; that respondents operated their car negligently and collided with appellant’s parked car; that respondents did not stop and identify themselves nor leave information as to their identity, as required by Vehicle Code section 20007,

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but drove away; that appellant observed the incident and ran after respondents’ car, calling upon the driver to stop; that in the pursuit appellant tripped and fell, sustaining personal injuries for which he demanded damages.

In our examination of appellant’s complaint we must keep in mind fundamental and long established rules where the appeal is from a judgment after a demurrer has been sustained. Thus we must give the pleading a liberal construction with a view to substantial justice between the parties

(Buxborn

v.

Smith,

23 Cal.2d 535, 545 [145 P.2d 305]) and we must presume that its allegations are true.

(Marin

v.

Jacuzzi,

224 Cal.App.2d 549 [36 Cal.Rptr. 880].)

Where a complaint attempts to state a cause of action for negligent conduct resulting in damages, it must allege facts to show the defendants’ legal duty of care towards the plaintiff ; a breach of that duty by the defendants either by an act or omission; injury as a result of the breach of duty and damage. Here we are principally concerned with questions relating to the existence of a duty of care owed by respondents to appellant. Appellant contends that the provisions of Vehicle

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