Judge: Daniel M. Crowley, Case: 21STCV38095, Date: 2022-08-23 Tentative Ruling

Case Number: 21STCV38095    Hearing Date: August 23, 2022    Dept: 28

Defendant Flexeco Incorporated’s Demurrer with Motion to Strike

Having considered the moving papers, the Court rules as follows. 

BACKGROUND

On October 14, 2021, Plaintiffs Martin F. O’Toole, individually and as Successor-in-Interest to The Estate of Martin P. O’Toole (“Martin”) and Mary Lou O’Toole (“Mary”) filed this action against Defendants Flexeco Incorporated (“Flexeco”) Victor Gil Neyra (“Neyra”) and Eric Friedrichsen, M.D. (“Friedrichsen”) for negligence (wrongful death) and negligent hiring, retention, supervision and training (wrongful death). 

On July 27, 2022, Flexeco filed a Demurrer with Motion to Strike to be heard on August 23, 2022.

Trial is scheduled for April 13, 2023.

PARTY’S REQUESTS

Flexeco requests the Court sustain the demurrer to the entire complaint on the basis that both causes of action fail to state sufficient facts.

LEGAL STANDARD

CCP § 430.10 states: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have the legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible; and (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”

A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.  (CCP § 430.30(a).)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.)  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Id.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.  (Hahn, 147 Cal.App.4th at 747.)

“The elements of a cause of action for negligence are well established. They are ‘(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.’” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) 

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).”  (CCP § 435(b)(1).)  “A notice of motion to strike must be given within the time allowed to plead, and if a demurrer is interposed, concurrently therewith, and must be noticed for hearing and heard at the same time as the demurrer.”  (CRC 3.1322(b), italic added.)  “The defendant shall answer the amendments, or the complaint as amended, within 30 days after service thereof, or such other time as the court may direct, and judgment by default may be entered upon failure to answer, as in other cases.”  (CCP § 471.5(a).)

“The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”  (CCP § 437(a).)  The court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.”  (Ivanoff, supra, 9 Cal.App.5th p. 725.)  The court “assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.”  (Id.)  “The court does not, however, assume the truth of contentions, deductions or conclusions of law.  [Citation.]”  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code Section 3294. (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal. 4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code § 3294 (a).) “Malice is defined in the statute as conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others." (Coll. Hosp., Inc., supra, 8 Cal. 4th at 725 [examining Civ. Code § 3294(c)(1)].)

“[S]imple negligence will not justify an award of punitive damages.” (Spencer v. San Francisco Brick Co. (1907) 5 Cal.App.126, 128.) Civil Code § 3294(a) states: “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” “[E]ven gross negligence, or recklessness is insufficient to warrant an award of punitive damages.” (Dawes v. Superior Court (1980) 111 Cal App 3d 82, 87.)

DISCUSSION

Overview

Plaintiffs’ complaint alleges that Decedent Martin P. O’Toole (“Decedent”), while a customer at Flexeco’s spa, was found unconscious by Friedrichsen at approximately 2:30 a.m. Friedrichsen immediately alerted Flexeco’s employee, Neyra. The two carried Decedent back to Decedent’s room and left Decedent alone, still unconscious; neither contacted emergency medical services nor took any other action at the time. Neyra returned to check on Decedent at 3:20 a.m. Decedent was nonresponsive and blocking the entrance to his room. Neyra then called 911 and made a report to his supervisor regarding Decedent. Paramedics arrived within 7 minutes and pronounced Decedent dead. Paramedics estimate the time of death as 3:53 a.m.

Wrongful Death and Survival Action Damages

Flexeco argues that Plaintiffs’ complaint is based on wrongful death and survival action damages, with negligence and negligent hiring, retention, supervision and training as the underlying torts. Due to this, Plaintiffs must meet certain standards for pleading wrongful death and survival actions, as governed by statute. In order to plead a wrongful death or survivorship cause of action, Plaintiffs must assert that they are heirs of Decedent, able to bring forth such actions. Under CCP §377.60, this includes a surviving spouse, domestic partner, child, and issue of deceased children, generally. If there is no one in these categories, it then abides by the laws of interstate succession, first turning to the parents of the deceased.

The complaint asserts that Plaintiffs are Decedent’s parents but does not assert that they are Decedent’s heirs. They are not alleged to be personal representatives suing on behalf of an heir. There is no mention of whether or not Decedent has other heirs.

The Court agrees. As Plaintiffs have not asserted that they are proper heirs and, by statute, many other potential parties would be considered heirs prior to Plaintiffs, the Court sustains the demurrer. Plaintiffs must assert they are the rightful heirs and Plaintiffs to the action.

As the Court sustains the demurrer as to the entire complaint, the motion to strike is moot.

CONCLUSION

Defendant Flexeco Incorporated’s Demurrer is SUSTAINED, with 30 days leave to amend.

Defendant Flexeco Incorporated’s Motion to Strike is MOOT.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.