Judge Audra Mori, Case 19STCV05930 2022-09-26 Tentative Ruling

On February 21, 2019, Ana Raymundo (“Decedent”) filed this action against defendants South Bay Restaurant Group, Inc., dba Samba Brazilian Steakhouse and Mark Berglund for damages relating to an alleged slip and fall in a restaurant. Following the death of Decedent on March 13, 2021, a motion to amend the complaint was granted so that the action could be continued by the Estate of Ana Raymundo through Decedent’s personal representative, Ana Ostorga (“Plaintiff”). (Min. Order July 19, 2022.) The First Amended Complaint was deemed filed as of July 29, 2022. The FAC alleges a single cause of action for negligence.

At this time, Defendant South Bay Restaurant Group, Inc., dba Samba Brazilian Steakhouse (“Defendant”) moves to strike portions of the FAC. In particular, Defendant moves to strike Plaintiff’s prayer for general damages set forth in the FAC. Plaintiff opposes the motion, and Defendant filed a reply.

As Defendant admits, the instant motion was not timely filed. A motion to strike must be filed and served “within the allowed time to respond to a pleading.” (CCP § 435(b)(1).) Nonetheless, the Court has the discretion to rule on an untimely motion to strike. (See Jackson v. Doe (2011) 192 Cal.App.4th 742, 749-50.) Plaintiff’s FAC was deemed filed on July 19, 2022, and Defendant filed the motion on August 25, 2022, which was seven days after a responsive pleading was due. While Plaintiff asserts that Defendant’s motion was filed late, Plaintiff does not contend or identify any prejudice they have suffered from the filing. In the absence of evidence of any prejudice to Plaintiff, the Court considers Defendant’s motion to strike on the merits.

Before filing a motion to strike, the moving party is required to meet and confer with the party who filed the pleading that is subject to the motion to strike for purposes of determining whether an agreement can be reached through a filing of an amended pleading. (Code Civ. Proc, § 435.5.)

Here, Defendant’s counsel states that the parties have engaged in extensive meet and confer efforts as to the legal issues raised in the motion. (Mot. Carney Decl. ¶ 2.) While Plaintiff counsel contends that Defendant did not comply with the meet and confer requirements, Defendant’s counsel declaration is sufficient in this regard, and Plaintiff does dispute meeting and conferring about these issues. Furthermore, Plaintiff is aware of the basis for the motion and has opposed it on the merits.

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (CCP §§ 435; 436(a).) Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders. (CCP § 436(b).) A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer. (Pierson v Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).) In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers. (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (CCP § 436.)

Regarding damages recoverable for a decedent’s cause of action, CCP § 377.34 states:

(a) In an action or proceeding by a decedent's personal representative or successor in interest on the decedent's cause of action, the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.

(b) Notwithstanding subdivision (a), in an action or proceeding by a decedent's personal representative or successor in interest on the decedent's cause of action, the damages recoverable may include damages for pain, suffering, or disfigurement if the action or proceeding was granted a preference pursuant to Section 36 before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026.

Here, Defendant argues that CCP § 377.34 limits damages solely to economic damages if a plaintiff dies before a judgment is entered. Defendant contends that Senate Bill 447, which allows for the recovery of general damages after the death of a plaintiff, applies only to actions filed after January 1, 2022.

In opposition, Plaintiff contends that the survival action did not accrue until March 13, 2021- the date of Decedent’s death- and the action is set to be completed before January 1, 2026. Plaintiff contends that as a result, Plaintiff can recover general damages under CCP § 377.34.

Defendant, in reply, contends that Plaintiff incorrectly applies CCP § 377.34(b) because this action was not granted preference, and that the accrual of the date of a cause of action is irrelevant under this statute.

“ ‘Under general settled canons of statutory construction, we ascertain the Legislature’s intent in order to effectuate the law’s purpose. [Citation.] We must look to the statute’s words and give them their “usual and ordinary meaning.” [Citation.] “The statute’s plain meaning controls the court’s interpretation unless its words are ambiguous. If the plain language of a statute is unambiguous, no court need, or should, go beyond that pure expression of legislative intent.” ’ [Citation.]” [Citation Omitted.] In examining the statute, we are guided by two applicable principles. “First, statutory language is to be understood in context, with the whole of a statute considered when attempting to construe each part. [Citations.] Second, the Legislature does not engage in idle acts, and no part of its enactments should be rendered surplusage if a construction is available that avoids doing so. [Citations.]” (Hsieh v. Pederson (2018) 23 Cal.App.5th Supp. 1, 5-6.)

Based on the plain language of CCP § 377.34(a), in proceeding on a survival action for a decedent’s claim, the decedent’s personal representative or successor in interest cannot recover general damages. (The MEGA Life & Health Ins. Co. v. Superior Court (2009) 172 Cal.App.4th 1522, 1528 [“[I]n an action brought on behalf of a deceased plaintiff, as a rule, all appropriate damages may be recovered—but damages for pain and suffering may not. (Code Civ. Proc., § 377.34.)”].) However, notwithstanding CCP § 377.34(a), a decedent’s personal representative may recover general damages on a decedent’s cause of action if either (1) the action or proceeding was granted a preference pursuant to Section 36 before January 1, 2022, or (2) was filed on or after January 1, 2022, and before January 1, 2026. (CCP § 377.34(b).)

This matter has not been granted preference, and thus, Plaintiff may only recover general damages in this matter on Decedent’s cause of action if the action was filed on or after January 1, 2022. However, the Court’s records clearly show that this action was filed on February 21, 2019.

Plaintiff’s arguments that the survival cause of action accrued on the date of Decedent’s death are unavailing. First, as Defendant contends, CCP § 377.34 does not refer to the accrual of a cause of action or the date of a Decedent’s death. Rather, the statute is clear that for a personal representative to recover general damages, (1) the action or proceeding had to have been granted a preference pursuant to Section 36 before January 1, 2022, or (2) the action was required to be filed on or after January 1, 2022, and before January 1, 2026. (CCP § 377.34(b).) The Court will not now insert language into the statute not contained therein. Second, even if the Court accepted the argument that Plaintiff’s survival cause of action accrued on March 13, 2021, the action would still not have been filed on or after January 1, 2022, as required by CCP § 377.34(b).

Plaintiff’s contention that CCP § 377.34(b) applies because this action was filed before January 1, 2026, also fails. The statute must be read together as a whole; Plaintiff cannot pick and choose which portions of the statute should be followed. Therefore, based on the plain language of CCP § 377.34(b), Plaintiff can seek general damages if the action “was filed on or after January 1, 2022, and before January 1, 2026.” (Emphasis added.) The “and” used in this part of the statute clearly signals that an action must both be filed on or after January 1, 2022, and before January 1, 2026, for CCP § 377.34(b) to apply. Otherwise, Plaintiff’s reading would render CCP § 377.34(a) meaningless as this would mean that all plaintiffs in an action or proceeding by a decedent's personal representative or successor in interest on the decedent's cause of action can recover general damages since all cases filed to date were clearly filed before January 1, 2026.

Lastly, to the extent Plaintiff references the Senate Judiciary Committee’s regular session discussion, Plaintiff submits no evidence concerning such. Plaintiff’s arguments in the memorandum of points and authorities are not evidence.

Based on the foregoing, Defendant’s motion to strike the prayer for general damages in the FAC is granted. The burden is on Plaintiff to show in what manner Plaintiff can amend the FAC, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.) Plaintiff does not request leave to amend, and because this is a purely legal issue, leave to amend is not granted.

Defendant’s motion to strike the prayer for general damages is granted without leave to amend.

Hon. Audra Mori

Judge of the Superior Court