Judge Lee S. Arian, Case Number: 23STCV18819, Date: 2023-11-16 Tentative Ruling

MOVING PARTY: Defendants Pershing Hill LLC d/b/a Perch erroneously sued as Perch Restaurant, JMF Enterprises V LLC, JMF Pershing Square LLC, and Citrus LLC erroneously sued as Citrus Hospitality Management

On August 8, 2023, Plaintiff filed this action against Defendants Perch Restaurant, Pershing Square Downtown LA; Citrus Hospitality Management; JMF Pershing Square LLC; JMF Enterprise LLC; JMF Enterprises V LLC; and DOES 1 through 100, for three causes of action: (1) general negligence, (2) premises liability, and (3) products liability. Plaintiff alleges that she has incurred injuries at Defendants’ restaurant.

On November 2, 2023, Plaintiff filed her First Amended Complaint (“FAC”), alleging that Plaintiff incurred injuries after encountering a conduit or piping for an outdoor patio heater at Defendants’ restaurant. As of its filing, the FAC has been the operative pleading.

On December 20, 2023, Defendants Pershing Hill LLC d/b/a Perch erroneously sued as Perch Restaurant, JMF Enterprises V LLC, JMF Pershing Square LLC, and Citrus LLC erroneously sued as Citrus Hospitality Management (“Defendants”) filed the instant Demurrer and Motion to Strike.

On January 22, 2024, Plaintiff opposed the Demurrer; and on January 26, 2024, Defendants replied.

“A demurrer tests the sufficiency of a complaint as a matter of law.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) “[T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.” (Ibid.) “[A] demurrer accepts as true all well pleaded facts and those facts of which the court can take judicial notice but not deductions, contentions, or conclusions of law or fact.” (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078 (Fox).) Although courts construe pleadings liberally, sufficient facts must be alleged to support the allegations plead to survive a demurrer. (Rakestraw v. California Physicians' Serv. (2000) 81 Cal.App.4th 39, 43.)

Where a demurrer is sustained, 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 plaintiff to show the court that a pleading can be amended successfully. (Ibid.) “If there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Defendants’ counsel emailed a meet and confer letter to Plaintiff’s counsel on November 9, 2023. The letter details the deficiencies with Plaintiff’s FAC and indicates Defendants’ intent to demurrer based on these deficiencies. (12/19/23 Speegle Decl., ¶ 6.) Subsequently, on December 4, 2023, Plaintiff’s counsel responded in an email, extending Defendants’ deadline to file a demurrer to December 30, 2023. (12/19/23 Speegle Decl., Ex. “D.”) The parties exchanged emails, and Plaintiff’s counsel indicated that it was unlikely for Plaintiff to further amend her FAC. (Dem., at p.3, Speegle Decl., Ex. “D.”)

Accordingly, the Court determines that the parties have fulfilled their meet and confer requirement before filing the instant demurrer.

Defendants request the Court take judicial notice of Plaintiff’s Third Cause of Action for Products Liability as alleged in the FAC filed in this action on November 2, 2023.

Evidence Code section 452, subdivision (d) permits the court, in its discretion, to take judicial notice of the records of any court in this state. Upon taking notice of court records, the court accepts as true only that (1) they were filed and (2) the assertions therein were made; the court does not take notice of the truth of their contents. (See Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374-375; see also Day v. Sharp (1975) 50 Cal.App.3d 904, 916.)

The Court GRANTS Defendants’ request for judicial notice to the extent that aligns with the above rulings.

Defendants contend that the third cause of action in the FAC fails to state the necessary elements of products liability. Specifically, they argue that Plaintiff does not plead any facts to establish that Defendants manufactured, distributed, or sold the patio heater in question. (Dem., at p. 5.) Furthermore, Defendants argue that Plaintiff’s third cause of action is uncertain, as it fails to distinguish among the Defendants.

A prima facie case of strict products liability requires the plaintiff to demonstrate that: (1) the product was placed on the market; (2) there was knowledge that it would be used without inspection for defect; (3) the product proves to be defective; and (4) the defect causes injury to a human. (Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57, 62, County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)

California’s strict products liability precedents have recognized “a bright-line legal distinction,” imposing liability only on those entities responsible for placing an injury-producing product into the stream of commerce. (Taylor v. Elliott Turbomachinery Co., Inc. (2009) 171 Cal.App.4th 564, 576 (Taylor).)

In Peterson v. Superior Court (1995) 10 Cal.4th 1185 (Peterson), the plaintiff was injured when she fell in a hotel bathtub. (Id., at 1189.) The Supreme Court of California concluded that it would be improper to impose strict liability on the hotel proprietor for injuries caused by an alleged defect in hotel premises that the proprietor did not build or market. (Id., at p. 1188.) The Court further explained that “although many potentially defective products are used in hotel or restaurant setting, the mere circumstance that it was contemplated customers of these businesses would use the products ... or be benefited by them does not transform the owners of the business into the equivalent of retailers of the products. [Citation]” (Id., at pp. 1199-1200.) (Underlines added.) “The mere foreseeability of injury to users of a defective product was not sufficient justification for imposing strict liability outside the stream of commerce.” (O’Neil v. Crane Co., (2012) 53 Cal.4th 335, 349.)

Plaintiff alleges she was a customer at Defendants’ restaurant. (FAC, at p. 6.) Defendants allegedly used electric or gas space heaters at their restaurant. (Ibid.) The contested product is identified as a space heater, which includes its wiring (gas and/or electric wiring), conduit, and coverings, collectively considered one product along with its component parts. (FAC, at p. 7.)

However, these allegations fail to specify whether Defendants acted as a manufacturer, distributor, or retailer of the allegedly defective product – the space heater. Following the “bright-line legal distinction” illustrated in Taylor, the Court finds that Plaintiff’s FAC does not establish that Defendants fall within the category of “those entities responsible for placing an injury-producing product into the stream of commerce.” Therefore, even if one assumes that the space heater was indeed defective, strict products liability cannot be imposed on restaurant owners like Defendants in this case.

Apparently in an effort to meet the pleading requirements for a products liability case, Plaintiff asserts that “Defendants placed the item in the stream of commerce ... Defendant manufactured and installed component parts which were incorporated into the final product and were also defective.” (Reply, at p. 5, FAC, at p.8.) The Court “accepts as true all well pleaded facts and those facts of which the court can take judicial notice but not deductions, contentions, or conclusions of law or fact.” (Fox, supra, 185 Cal.App.4th at 1078; Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125 (the court is not to assume the truth of contentions, deductions or conclusions of law).) Plaintiff’s allegations regarding Defendants’ manufacture and installation of component parts of the allegedly defective space heater in question are conclusions of fact and are thus not considered by the Court. iproducts (1992) 2 Cal.4th 962, 967.) Therefore, the Court SUSTAINS the demurrer as the third cause of action for products liability. While the Court finds it highly unlikely that Plaintiff will be able to allege facts against these restaurant owner defendants to support a products liability action (see Peterson, supra.) the Court sustains the demurrer WITH LEAVE TO AMEND.

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.” (Code Civ. Proc., § 435, subd. (b), par. (1).) A court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436, subd. (a).) A court may “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436, subd. (b).)

“Before filing a motion to strike . . . the moving party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a).) “A determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a)(4).)

The meet and confer requirement has been met as to the motion to strike. Defendants’ counsel exchanged emails with Plaintiff’s counsel regarding deficiencies in Plaintiff’s FAC. (12/20/23 Speegle Decl., ¶¶ 8-10.) However, the parties could not resolve the issues raised. (Id., ¶ 11.)

Striking Paragraph 14(a) Punitive Damages and Exemplary Damages Attachment (pages 11 and 12) of the FAC

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) California Civil Code, Section 3294 authorizes punitive damages upon a showing of malice, fraud, or oppression. Malice is defined as either “conduct which is intended by the defendant to cause injury to the plaintiff,” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civil Code, § 3294, subd. (c), par. (1).) “Despicable conduct is conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331.) Fraud under California Civil Code section 3294 subdivision (c) paragraph (3) means “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” California Civil Code section 3294 subdivision (c) paragraph (2) defines oppression as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Specific facts must be pled in support of punitive damages. (Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-392.) Facts must be pled to show that a defendant “act[ed] with the intent to vex, injure or annoy, or with a conscious disregard of the plaintiff’s rights.” (Silberg v. California Life Ins. Co. (1974) 11 Cal.3d 452, 462.) Conduct that is merely negligent will not support a claim for punitive damages. (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1288.)

An employer will not be liable for punitive damages based upon the acts of an employee of the employer, unless: (1) the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others; or (2) the employer ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (b).)

As to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of a corporation. (Ibid.)

The FAC alleges that “Defendants had actual knowledge that … their premises was inadequate and unsafe … due to an array of customer complaints over the years … Defendant made a decision to hide the danger of the device and premises, and risk that human bodies would suffer injuries.” (FAC, at p. 13, Attachment EX-2.) (Underlines added.) It has further similar factual allegations in an effort to support punitive damages. These facts, however, are not specific enough to support a claim for punitive damages. The allegations do not include the “who, what, where, when” required for specific pleading. See Lazar v. Superior Court (1996), 12 Cal. 4^th 631, 645.

Accordingly, the Court hereby grants Defendants’ motion to strike. However, because Plaintiff may, through discovery be able to ascertain specific facts to support its punitive damages allegation, the Court denies Defendants’ request to grant its motion without leave to amend.

The Court SUSTAINS the demurrer of Defendants as to the third cause of action in the First Amended Complaint WITH LEAVE TO AMEND.

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.

Hon. Lee S. Arian

Judge of the Superior Court