Judge Kerry Bensinger, Case Number: 23STCV05849, Date: 2023-09-07 Tentative Ruling

MOVING PARTY: Defendants Steve Jones, Anne R. Jones, John Echevarria, Cathy Echeverria, Richard Kohlmeyer, and Kristen Kohlmeyer

On March 16, 2023, Plaintiff, Leslie Ann Lobel, initiated this action against Defendants, Musso & Frank Grill Company (“Musso & Frank”), Carissimi Family, LLC (“Carissimi Family”), Steve Jones, Anne R. Jones, John Echeverria, Cathy Echeverria, Richard Kohlmeyer, and Kristen Kohlmeyer,[1] for Negligence and Premises Liability.

On July 12, 2023, Steve Jones, Anne R. Jones, John Echeverria, Cathy Echevarria, Richard Kohlmeyer, and Kristen Kohlmeyer (“Demurring Party”) filed this demurrer and motion to strike[2]. Plaintiff opposes and Demurring Party replies.

According to the Complaint, on June 4, 2020, Plaintiff was a guest at the Musso & Frank restaurant located at 6667 Hollywood Boulevard, Hollywood, California, when she slipped and fell on a slippery substance on the dining area floor of the premises. Plaintiff alleges Defendants negligently owned, operated, maintained, controlled, supervised, and/or cleaned the subject floor.

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.)¿¿

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.)¿¿

Demurring Party requests judicial notice of the grant deed from the Carissimi Family Trust conveying its interest in 6667 Hollywood Boulevard to Carissimi Family, LLC. The unopposed request is GRANTED. (Evid. Code, § 452, subd. (h).) The Court takes judicial notice of the existence of the grant deed and not the truth of the of the matters asserted therein.

Defense counsel has complied with the meet and confer requirement. (See Alsekh Decl.)

“The elements of a cause of action for negligence are well established.¿ They are (a) a legal duty to use due care; (b) a breach of such legal duty; and (c) the breach as the proximate or legal cause of the resulting injury.”¿ (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917; CACI No. 400.) (Quotations omitted.)

Demurring Party argues the demurrer should be sustained because the allegations are conclusory and fail to set forth the factual basis for Demurring Party’s control of the premises. Demurring Party further argues the allegations are uncertain. A review of the Complaint supports Demurring Party’s position. The Complaint sets forth boilerplate allegations throughout the pleading that Demurring Party “owned, operated, controlled, cleaned, mopped, dried, inspected, secured, supervised, repaired, renovated, guarded, monitored, maintained and/or managed the Subject Premises.” (Complaint, ¶¶ 16, 19, 20, 25, 26.) Plaintiff contends this allegation is sufficient to state causes of action for negligence and premises liability. However, contrary to Plaintiff’s contention, this allegation is unsupported by any facts showing how Demurring Party controlled the premises.

The Complaint is also uncertain as to Demurring Party. Steve Jones, Anne R. Jones, John Echeverria, Cathy Echeverria, Richard Kohlmeyer, and Kristen Kohlmeyer are sued individually and as trustees. However, the Complaint does not sufficiently apprise Demurring Party how they are liable for Plaintiff’s injuries in either capacity.

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Defendants seek to strike claims for hedonic damages, prejudgment interest, and property damage from the Complaint. As the Court has sustained the demurrer as to Steve Jones, Anne R. Jones, Cathy Echeverria, John Echeverria, Richard Kohlmeyer and Kristen Kohlmeyer, the motion to strike is MOOT as to those defendants.

“Hedonic damages means either a loss of enjoyment of life or loss of life’s pleasures.” (Loth v. Truck-A-Way Corp. (1998) 60 Cal.App.4th 757, 760, fn. 1.) “In California, a pain and suffering award may include compensation for the plaintiff's loss of enjoyment of life. Loss of enjoyment of life, however, is only one component of a general damage award for pain and suffering. It is not calculated as a separate award.” (Id. at p.763.)

Defendants Musso & Frank and Carissimi Family (hereafter, “Defendants”) argue the claim for hedonic damage should be stricken from the Complaint because impairment of the quality of life is subsumed as part of general damages. As such, the request is duplicative. The Court agrees. Because “impairment of the quality of life” is an aspect of pain and suffering, allowing the allegation to stand runs the risk of double recovery should Plaintiff’s claim prove meritorious. (See Loth, supra, 60 Cal.App.4th at p.769 [concluding same].)

Accordingly, the motion to strike the request for damages for impairment of the quality of life is GRANTED.[3]

A person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day, except when the debtor is prevented by law, or by the act of the creditor from paying the debt. This section is applicable to recovery of damages and interest from any debtor, including the state or any county, city, city and county, municipal corporation, public district, public agency, or any political subdivision of the state. (Civ. Code, § 3287, subd. (a).) Section 3287 applies to situations “where there is essentially no dispute between the parties concerning the basis of computation of damages if any are recoverable but where their dispute centers on the issue of liability giving rise to damage.” (Canavin v. Pacific Southwest Airlines (1983) 148 Cal.App.3d 512, 524.) (Citation omitted.) In an action for the breach of an obligation not arising from contract, and in every case of oppression, fraud, or malice, interest may be given, in the discretion of the jury. (Civ. Code, § 3288.) However, prejudgment interest pursuant to section 3288 is inappropriate in cases involving damages for pain and suffering. (Greater Westchester Homeowners Assn v. City of Los Angeles (1979) 26 Cal.3d 86, 102-103.)

Here, Plaintiff seeks to recover prejudgment interest based, in part, on past medical expenses and loss of earnings. Although the specific sums have not been pled, discovery could make certain the amount of damages Plaintiff incurred as to past medical expenses and earnings losses.

Defendants seek to strike claims for property damage because there are no factual allegations showing Plaintiff suffered property damage. The Court agrees. There are no such allegations. Should discovery uncover otherwise, Plaintiff may seek leave to amend at that time.

The motion to strike hedonic damages and property damage from the prayer of the Complaint is granted. The motion to strike prejudgment interest is denied. Leave to amend is granted.

Plaintiff is ordered to file and serve the First Amended Complaint within 15 days of this order.

Defendants are ordered to file and serve their responsive pleading within 30 days of service of the First Amended Complaint.

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] Steve Jones, Anne R. Jones, John Echeverria, Cathy Echeverria, Richard Kohlmeyer, and Kirsten Kohlmeyer are sued individually and/or as trustee or co-trustee of the Rose Keegel Trust and/or Carissimi Trust.

[2] The motion to strike is filed on behalf of all defendants.

[3] To be clear, striking the request for damages for “impairment of the quality of life” does not prevent Plaintiff from seeking damages for impairment of the quality of life as part of her general damages.