Judge: Daniel M. Crowley, Case: 22STCV02186, Date: 2022-09-27 Tentative Ruling

Case Number: 22STCV02186    Hearing Date: September 27, 2022    Dept: 28

Defendant MB2 Raceway Inc.’s Demurrer to the Second Amended Complaint with Motion to Strike.

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND

On January 19, 2022, Plaintiff Jodi Blumstein (“Plaintiff”) filed this action against Defendants Will Miller (“Miller”) Chris Brooks (Chris”), Martine Brooks (“Martine”), MB2 Raceway Inc. (“MB2”) and COGA Investments, Inc. (“COGA”) for general negligence, products liability and premises liability. On April 29, 2022, Plaintiff filed the First Amended Complaint.

On July 22, 2022, Plaintiff filed the SAC.

On August 23, 2022, MB2 filed a Demurrer, with Motion to Strike, to be heard on September 27, 2022. On September 14, 2022, Plaintiff filed an opposition. On September 20, 2022, MB2 filed a reply.

Trial is scheduled for July 19, 2023.

PARTY’S REQUESTS

MB2 requests the Court sustain the demurrer to the cause of action for products liability on the basis that Plaintiff’s SAC does not adequately allege the necessary elements of duty, breach and causation. Additionally, MB2 argues that the cause of action is uncertain.

MB2 also requests the Court strike Plaintiff’s request for punitive damages and attorney’s fees, along with Plaintiff’s attached “Exemplary Damages Attachment.”

Plaintiff requests that the Court overrule the demurrer and deny the Motion to Strike, or, in the alternative, grant 30 days leave to amend.

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.)

Following the sustaining of a demurrer, with leave to amend, Plaintiff is only allowed to amend the cause of action in the pleading to which the demurrer was sustained; the Plaintiff must obtain permission to add a new cause of action in an amended pleading. (People ex rel. Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785.)

“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.)

Code of Civil Procedure § 436 states that “[t]he court may, upon a motion made pursuant to Section 435, or at any time at its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or any order of the court.”

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)].)

DISCUSSION

Demurrer

Plaintiff’s product liability cause of action identifies that the go-kart was designed in such a way that if another go-kart made physical contact with it, it would use the base of the other bumper car as a ramp and angle the moving go-kart upwards. Plaintiff further alleges that there were no controls or steps taken to prevent potential injury to the person riding in the non-ascending go-kart. Plaintiffs finally allege that there were no warnings on the subject go-kart, as MB2 actively removed and replaced any warnings.

MB2 argues that Plaintiff’s complaint does not provide how the alleged “defective” angled ramp cause another driver to crash into Plaintiff, instead stating that the action of another go-kart driver, legally cause the injury. The Court disagrees—Plaintiff clearly alleges that the cause of the injury was not due to the crash, but due to the defective design. Had the subject go-karts not been designed with the allegedly defective angled ramp, the crash would not have resulted in the injury in question. This specifically is at odds with the case cited by MB2 -- “if the same injury would have occurred even if the product was designed properly, there is a lack of causation”. (Soule v. Gen. Motors Corp. (1994) 8 Cal. 4th 548, 572.) Plaintiff clearly alleges that this injury resulted in injuries specific to the incident that would not have occurred otherwise.

Plaintiff alleges that MB2 had substantial control over the manufacturing and distribution process of the product; this satisfies the requirements to overrule a demurrer. Plaintiff also alleges that MB2 was in charge of inspecting, repairing, and utilizing the product. The Court finds that, as provided, Plaintiff’s cause of action for product liability is sufficiently pled.

Motion to Strike

Defendant argues that the facts alleged do not provide a basis for punitive damages, as Plaintiff has not made non-conclusory allegations that demonstrate oppression, fraud or malice. The Court is inclined to agree. In reviewing the operative complaint, the Court sees no factual allegations that would demonstrate oppression, fraud, or malice.

Plaintiff’s complaint does not argue facts that rise to the level of malice. Plaintiff effectively alleges that Defendants negligently conducted a go-kart track, resulting in damages to Plaintiff when one go-kart “flew” on top of Plaintiff. There are no allegations of intentional conduct, one of two theories under which Plaintiff may argue for malice. The Court also finds that the alleged conduct in regard to the causes of action here does not rise to the level of despicable conduct required for malice. Allegations that Mb2’s negligent action was based in an attempt to benefit financially does not elevate this to despicable conduct, as Plaintiff appears to argue in her opposition. Fraud also is not applicable, as it requires that the fraudulent action be done with the intent of causing harm. Nothing in the complaint provides that there was any sort of intent to actually harm Plaintiff. The Court grants the motion to strike.

The Court also grants the motion to strike as to the request for attorney’s fees. Plaintiff has not provided a statutory basis for attorney’s fees, which is required.

CONCLUSION

Defendant MB2 Raceway Inc.’s Demurrer to the Second Amended Complaint is OVERRULED.

Defendant MB2 Raceway Inc.’s Motion to Strike is GRANTED, with 30 days leave to amend.

            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.