Judge Kerry Bensinger, Case Number: 23NWCV01960, Date: 2023-10-12 Tentative Ruling

MOVING PARTY: Defendants Maersk A/S; Maersk Warehousing & Distribution Services USA LLC

On June 23, 2023, Plaintiff, Aida Perez, initiated this wrongful death action against Defendants, Maersk A/S dba A.P. Moller—Maersk (“Maersk”), Damco Distribution Services, Inc., Damco USA Inc., 52 Degree Lane, Inc., San Judas Tadeo Trucking, LLC, San Judas Tade Trucking, Inc., and Gabriel Mendez, arising out of the death of Plaintiff’s fiancé, Jose Antonio Arciniega (“Decedent”), on Defendants’ premises on August 31, 2022. Plaintiff asserts causes of action for Negligence and Premises Liability. On July 18, 2023, the Court deemed this case and Isabel Violet Arciniega, et al. v. Maersk A/S, et al., LASC Case No. 22STCV29437 were related.

On August 22, 2023, Defendants filed a Declaration of Demurring Party in Support of Automatic Extension. The Declaration indicates Defendants’ responsive pleading was due on August 21, 2021.

On September 8, 2023, Defendants, Maersk and Maersk Warehousing & Distribution Services USA LLC (f/k/a Damco Distribution Services, Inc. and Damco USA Inc.), filed this Demurrer to Plaintiff’s Complaint.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) Judicial Council forms are not immune to demurrer. (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1486.)

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

Defense counsel has complied with the meet and confer requirement.¿ (See Declaration of Davil R. Vasquez.)

The sole issue to be decided is whether Plaintiff has standing as Decedent’s fiancé and alleged dependent to maintain her claims against Defendants.

“A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent’s personal representative on their behalf: (a) The decedent’s surviving spouse, domestic partner, children, and issue of deceased children . . .” (Code Civ. Proc., § 377.60, subd. (a).) Whether or not qualified under subdivision (a), if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, parents, or the legal guardians of the decedent if the parents are deceased. (Code Civ. Proc., § 377.60, subd. (b)(1).) As used in this subdivision, “putative spouse” means the surviving spouse of a void or voidable marriage who is found by the court to have believed in good faith that the marriage to the decedent was valid.” (Code Civ. Proc., § 377.60, subd. (b)(2).) A cause of action for wrongful death is a statutory claim meant to compensate specified persons—heirs—for the loss of companionship and for other losses suffered as a result of a decedent’s death. (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.)

Defendants argue Plaintiff does not have standing under section 377.60 to bring this wrongful death action. The Court agrees. Plaintiff alleges she was Decedent’s fiancé at the time of the incident. (Complaint, ¶ 2.) Section 377.60, subdivision (a) lists the persons who may assert a wrongful death cause of action, including the decedent’s surviving spouse, domestic partner, children and issue of deceased children. Missing from that list are persons who have the intention of marrying such as a fiancé.

Plaintiff contends Defendants’ read section 377.60 too narrowly. Plaintiff draws the Court’s attention to the language under subdivision (b)(1) which states, in part “if they were dependent on the decedent, . . . .” Here, Plaintiff alleges she “was financially dependent on [Decedent].” (Complaint, ¶ 2.) Plaintiff’s reading of section 377.60, however, pulls out of context a fragment of the statute. The cited language, “if they were dependent on the decedent” is not a separate category of persons. Rather, it is a clause which modifies the list of additional persons who may bring a wrongful death action. That list includes the “putative spouse, children of the putative spouse, stepchildren, parents, or the legal guardians of the decedent if the parents are deceased.” (Code Civ. Proc., § 377.60, subd. (b)(1).) The Complaint does not allege any facts to show Plaintiff has standing as a person listed under subdivision (a) or (b)(1) of section 377.60.

Case law supports the conclusion Plaintiff lacks standing. In Harrod v. Pacific Southwest Airlines (1981) 118 Cal.App.3d 155, the trial court sustained without leave to amend a demurrer to a wrongful death lawsuit brought by a surviving nonmarital partner of the decedent. The plaintiff had been living with the decedent the year prior to her death. The decedent died in a plane crash. The two were due to be married seven months after her untimely death. They had pooled their earnings while living together, agreed to equally share property accumulated during their relationship, and bought a house, taking title in both of their names. The appellate court affirmed the judgment dismissing the suit and held that a decedent’s meretricious spouse is not an heir within the meaning of section 377.60 (then codified as section 377). (Harrod, 118 Cal.App.3d at p. 157.) The appellate court also noted that a wrongful death cause of action “is purely statutory and exists only so far and in favor of such person as the legislative power may declare.” (Id. at p. 158.) So, too, here. Much like the plaintiff in Harrod, Plaintiff is the nonmarital surviving partner of Decedent. Plaintiff does not have standing.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

[1] Plaintiff argues the demurrer should be overruled because Defendants did not timely file their Declaration of Demurring Party as required by Code of Civil Procedure section 430.41, subdivision (a)(2). As the Declaration indicates, Defendants’ responsive pleading was due on August 21, 2023 yet they did not file the Declaration until a day later. However, Plaintiff does not cite any authority for the proposition that a court may sustain a demurrer in this procedural context. As Plaintiff was able to respond to the substance of this demurrer, the Court reaches the merits of the arguments.