Judge Eddie C. Sturgeon, Case 37-2023-00006298-CU-PO-CTL 2023-12-08 Tentative Ruling

Judge: Eddie C. Sturgeon, Case: 37-2023-00006298-CU-PO-CTL, Date: 2023-12-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - December 07, 2023

12/08/2023 09:00:00 AM C-67 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Eddie C Sturgeon

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited PI/PD/WD - Other Demurrer / Motion to Strike 37-2023-00006298-CU-PO-CTL HILL VS BUTTER KNIFE BETTY INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 04/21/2023

Defendant Butter Knife Betty, Inc. dba Beach Fire Guy's Demurrer is SUSTAINED with leave to amend.

Defendant's Motion to Strike is GRANTED with leave to amend.

1. Demurrer With respect to the demurrer, the court is satisfied that Plaintiffs have alleged negligent infliction of emotional distress, which is properly pled as a form of negligence. (See Burgess v. Super. Ct. (1992) 2 Cal.4th 1064, 1072.) '[A] plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress-a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.' (Thing v. La Chusa (1989) 48 Cal.3d 644, 667-668.) A 'viable negligent infliction of emotional distress claim may be stated by a plaintiff who perceives an event by 'other senses' as long as they contemporaneously understand the event caused injury to their close relative.' (Downey v. City of Riverside (2023) 90 Cal.App.5th 1033, 1053.) Here, 'Plaintiff Laylah Hill screamed and began crying hysterically. Laylah's mother and father, Plaintiffs Bennie Hill and Adriana Aparicio heard her scream and ran to her aid. Plaintiffs Bennie Hill and Adriana Aparicio were present at the scene and were then aware of injury. They saw deep burns on the top and bottom of Laylah's feet and poured water over them. Laylah's parents immediately transported her to the hospital.' (Compl. ¶ 10.) This sort of contemporaneous awareness of the injury and immediate recognition of the injury's cause could support an NIED claim. However, the complaint currently lacks a direct allegation of causation between the alleged negligence and Plaintiff Laylah Hill's injury. While the caption to the photo included on page 3 briefly explains the cause of her injury and the cause could potentially be inferred from other statements in the complaint, there is no direct allegation of causation connecting Defendant's negligence and Plaintiff's injury in any paragraph of the complaint. As such, the demurrer is sustained with leave to amend.

2. Motion to Strike Punitive damages are available in a tort action 'where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.' (Civ. Code, § 3294(a).) 'Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or 'malice,' or a fraudulent or evil motive on the Calendar No.: Event ID: TENTATIVE RULINGS

2964459 2 CASE NUMBER: CASE TITLE: HILL VS BUTTER KNIFE BETTY INC [IMAGED] 37-2023-00006298-CU-PO-CTL part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.' (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-895; see id. at 899-900 ['ordinarily, routine negligent or even reckless disobedience of traffic laws would not justify an award of punitive damages'].) A defendant's conduct must be 'despicable' and 'willful.' (Lackner v. North (2006) 135 Cal.App.4th 1188, 1211 [quoting College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 713].) A claim for punitive damages cannot be plead generally. 'Pleading in the language of the statute is acceptable provided that sufficient facts are pleaded to support the allegations.' (Blegen v. Superior Court (1981) 125 Cal.App.3d 959, 963.) Thus, a plaintiff must set out clearly, concisely, and with sufficient particularity, those facts and circumstances which constitute fraud, malice, or oppression.

(Lehto v. Underground Construction Company (1977) 69 19 Cal.App.3d 933, 944.) In support of punitive damages, Plaintiff points to Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 288 where punitive damages were permitted when a plaintiff slipped and fell on gasoline next to a pump when the defendant convenience store was aware that the pump had been leaking for months. But that case is not controlling for several reasons.

First, in Nolin, the convenience store defendant had prior notice of slip-and-falls related to the leak and had been repeatedly informed of the risk to personal safety presented by the leak. (Id. at 284 ['prior to plaintiff's accident, two members of the public had fallen there as well as several of defendant's own employees']; id. at 288 ['employees who observed the danger daily communicated it upward to supervisory personnel, but to no avail'].) In contrast, here, the complaint does not allege any prior notice of danger. The complaint states that at or approximately 10:21 p.m. Defendant's employee 'failed to properly dispose of the hot ash/coals, failed to adequately secure and protect, and failed to warn of the danger of hot coals, ash, and sand, despite the fact that children were running around nearby.' (Compl.

¶ 9.) These allegations are insufficient to maintain a showing of despicable or willful conduct.

The motion to strike is granted with leave to amend.

Calendar No.: Event ID: TENTATIVE RULINGS

2964459 2