Judge: Eddie C. Sturgeon, Case: 37-2017-00028353-CU-PO-CTL, Date: 2023-08-25 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 24, 2023

08/25/2023  09:00:00 AM  C-67 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Eddie C Sturgeon

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Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2017-00028353-CU-PO-CTL FRANCISCO CHAVEZ VS. FEDERAL EXPRESS CORPORATION [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 06/14/2023

Defendant Federal Express Corporation's Motion to Strike is GRANTED. Plaintiffs and Defendant's requests for judicial notice are granted except for Defendant's exhibits G-J which are emails between counsel and not the proper subject of judicial notice. (ROAs 269, 276.) Defendant argues that allegations regarding Plaintiff Blume's request for pain and suffering damages should be stricken. The court agrees.

Code of Civil Procedure section 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 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 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.' Taken together, the two subdivisions bar damages for a decedent's pain and suffering in a suit by a personal representative except where, (1) the case 'was granted a preference pursuant to Section 36 before January 1, 2022'; or (2) 'was filed on or after January 1, 2022[.]' The action was originally filed on August 2, 2017. It is undisputed that this case was not granted a preference pursuant to Section 36 before January 1, 2022. The FAC, which includes Christiane Blume, as Decedent Thompson's personal representative, was not filed until May 2, 2023. The question for the court is whether, for purposes of the second exception in Section 377.34, the action was filed on August 2, 2017 or May 2, 2023.

The court agrees with Defendant's interpretation that the 'action or proceeding' that must have been filed after January 1, 2022 is the underlying tort: i.e., the decedent's cause of action, not the personal representative's claim to pursue the underlying tort on behalf of the estate. Although this interpretation is supported by the statute's plain language, it is also supported by the legislative history. (See Cal. Committee Report, 2021 California Senate Bill No. 447, California 2021-2022 Regular Session.) Calendar No.: Event ID:  TENTATIVE RULINGS

2985753  7 CASE NUMBER: CASE TITLE:  FRANCISCO CHAVEZ VS. FEDERAL EXPRESS CORPORATION [IMAGED]  37-2017-00028353-CU-PO-CTL Plaintiff argues that allowing pain and suffering damages in this case would be consistent with the Legislature's intent to 'end a decades-old injustice in California by finally extending a victim's right, and the right of their loved ones, to pursue accountability for human suffering – even if they die prior to case resolution.' (ROA 276, RJN, Ex. 1.) While this may be true, it is unpersuasive. Here, the Legislature created a window of time during which pain and suffering was recoverable by personal representatives on behalf of decedents. The window will necessarily be underinclusive of all actions that would have otherwise benefited from ending the policy. In other words, because the Legislature did not unequivocally end the policy, there will necessarily be some cases where the long precedent of barring pain and suffering damages will result in some purported injustice. This court cannot second guess the Legislature's decision.

Moreover, Plaintiff points to legislative history stating the statute should apply to cases where trial was delayed due to COVID-19 and argues that had such delays not prevented trial in this case, it would have been resolved prior to Decedent Thompson's passing. (Id., Ex. 1 ['Every harmed plaintiff deserves access to the civil justice system for redress of injuries. The COVID-19 restrictions have created a backlog of civil cases in the California courts . . . . SB 447 should be amended to apply recovery of pain and suffering damages only for those personal injury cases impacted by the court backlog resulting from the pandemic.'].) But the cited language in the legislative history was merely the recitation of stakeholder comments of proposed amendments that were not ultimately incorporated. There is nothing in the statute which applies to include cases delayed by COVID-19 beyond the statute's plain language.

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