Judge: Elaine W. Mandel, Case: 24SMCV06056, Date: 2025-05-12 Tentative Ruling

Case Number: 24SMCV06056    Hearing Date: May 12, 2025    Dept: P

Tentative Ruling

Almashat v. Smart and Final Extra, Case no. 24SMCV06056

Hearing date May 12, 2025

Defendant Chedraui’s Motion to Strike

Plaintiff Almashat sues defendants Smart and Final Extra, Chedraui USA Inc. and Balbuena for negligence and premises liability. Plaintiff alleges he slipped and fell while on defendants’ property. Plaintiff asserts loss of “society, love, protection, companionship, consortium, and other related injuries and damages.” Compl. para. 11. Defendant Chedraui moves to strike the identified assertion as an improper prayer for loss of consortium. Defendant also moves to strike Balbuena from the complaint. Plaintiff opposes.

A motion to strike is not the proper procedural vehicle to eliminate a party from the lawsuit. Dismissal of a party requires a separate motion, such as a demurrer or motion for summary judgment. Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528 a motion to strike cannot be used to strike a defendant's name.) Defendant’s request to strike Balbuena is not well taken.

Under California law a loss of consortium claim has four elements: (1) a valid and lawful marriage between the plaintiff and the injured person at the time of the injury; (2) a tortious injury to the plaintiff’s spouse; (3) loss of consortium suffered by the plaintiff; and (4) the loss was proximately caused by the defendant’s act. Kuciemba v. Victory Woodworks, Inc. (2023) 14 Cal.5th 993. This means that the claim is dependent on the existence of a cause of action for tortious injury to the spouse, and it cannot be made by the injured spouse themselves. Id.; see also Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921. A loss of consortium claim is separate and distinct from the injured spouse’s personal injury claim and is causally dependent on the injury to the spouse; the injured spouse cannot substitute themselves in making the claim. Leonard v. John Crane, Inc. (2012) 206 Cal. App.4th 1274.

Defendant argues plaintiff’s allegations constitute a claim for loss of consortium. Plaintiff argues he seeks damages for “’loss of society, love, protection, companionship, consortium, and other related injuries and damages,’ among other categories.” Opp. 2:23-25. Plaintiff argues his allegations constitute a broader claim for physical and emotional harm. This argument is unavailing; plaintiff specifically pleads loss of love, companionship and consortium. These are verbatim pleadings for a loss of consortium claim. See Ledger v. Tippitt (1985) 164 Cal.App.3d 625, 633. Plaintiff has pled a claim for loss of consortium.

Plaintiff cannot claim loss of consortium damages while circumventing the pleading requirements of a loss of consortium claim. Plaintiff does not name an uninjured spouse in the complaint; plaintiff cannot claim loss of consortium for himself. A motion to strike is proper.

Defendant’s motion is GRANTED in part. Plaintiff’s request for damages for loss of love, companionship and consortium is struck. Defendant’s request to strike Balbuena from the complaint is DENIED.