Judge Lee W. Tsao, Case Number: 23NWCV01135, Date: 2024-01-18 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV01135, Date: 2024-01-18 Tentative Ruling

Case Number: 23NWCV01135 Hearing Date: January 18, 2024 Dept: C

NIJINSKY v. BENSON CRANE, INC.

CASE NO.: 23NWCV01135

HEARING: 01/18/24

Defendant CALIFORNIA HOME SPAS, INC.’s Motion to Strike Portions of Plaintiff’s First Amended Complaint is GRANTED in part with 20 days leave to amend.

Moving Party to give notice.

This breach of contract action was filed by Plaintiffs RENE ROBERTS NIJINSKY and STEPHAN A. NIJINSKY (“Plaintiffs”) on April 13, 2023.

On June 20, 2023, the operative First Amended Complaint (“FAC”) was filed. Plaintiffs allege that “[t]his dispute concerns [a] crane accident that occurred at the property owned by the Plaintiffs located at 6133 Hersholt, Lakewood, CA 90712 (‘Property’). [¶] Ms. Nijinsky is unfortunately suffering from the effects of cerebral palsy and the side effects of treatment. [¶] On her doctors order to stay active, Ms. Nijinsky soon realized that water exercises and swimming were greatly beneficial in her battle with cerebral palsy. Plaintiffs soon settled on purchasing the R500 spa (‘R500’) to help Ms. Nijinsky.” (FAC ¶¶6-8.) Plaintiffs purchased the R500 from Defendant CALIFORNIA SPAS, INC. (“Cal Spa”) (FAC ¶10.) “The R500 was too large to get through the small opening in the front gate…. Thus, a crane was going to be needed to hoist the R500 over the property and place it into the hole in the backyard. Cal Spa recommended and then hired Benson to hoist the R500 over the property and place it into the hole in the backyard. The recommendation and hiring of Benson was all handled through Defendant Cal Spa.” (FAC ¶12.) “Benson, being a crane operator that advertises that they can hoist loads up to 100 tons, has such superior knowledge, skill, and experience in the crane industry that the duty owed to Plaintiffs is greater still.” (FAC ¶16.) “Benson would go on to breach their duty of care owed to Plaintiffs, because when the R500 was above the backyard and ready to be lowered into the hole in the backyard of the Property, Benson’s crane tipped over on its side, sending the R500 crashing to the ground, and the arm of the crane crashing into the roof of the property with Ms. Nijinsky inside. Furthermore, as the crane tipped over, it knocked over an electrical pole(s) owned by Southern California Edison (‘SCE’). The resulting impact hit the kitchen and could have killed Ms. Nijinsky, who was in the kitchen at the time and witnessed, heard, and felt the impact of the crane damaging their home.” (FAC ¶17.)

Plaintiffs’ FAC asserts the following causes of action:

(1) Breach of Contract;

(2) Negligence;

(3) Tort of Another;

(4) Professional Negligence; and

(5) Negligent Infliction of Emotional Distress

Defendant Cal Spa moves to strike: (1) Plaintiff’s claim for non-economic/emotional damages based on a breach of contract; and (2) Plaintiff’s claim for non-economic/emotional damages based on negligence without injury.

A motion to strike lies either when (1) there is “irrelevant, false or improper matter inserted in any pleading”; or (2) to strike any pleading or part thereof “not drawn or filed in conformity with the laws of this state, a court rule or order of court.” (CCP §436.)

Non-Economic Emotional Damages Based on Breach of Contract

Cal Spa moves to strike Plaintiff’s claim for emotional distress damages based on their first cause of action for breach of contract. (FAC ¶¶21, line 6; ¶29, lines 3-4; ¶30, line 6, Item 1 as to the first cause of action for general damages in Plaintiff’s Prayer.)

In Opposition, Plaintiffs argue that they have properly pled emotional distress damages based on the parties’ contract, and that the arguments raised by Cal Spa are improperly resolved at this stage in the litigation.

“[D]amages for mental suffering and emotional distress are generally not recoverable in an action for breach of an ordinary commercial contract in California. [Citation.] There are two exceptions to this rule: (1) when the emotional distress caused by the breach is accompanied by physical injury; or (2) when ‘the breach of such kind that serious emotional disturbance was a particularly likely result.’ [Citation.]” (Levy v. Only Cremations for Pets, Inc. (2020) 57 Cal.App.5th 203, 214.)

Here, Plaintiffs allege “there were no immediate bodily injuries that needed treating on the scene.” (FAC ¶18.)

Where there were no physical injuries, that leaves only the second exception. “For this exception, the Erlich court specified that when the express object of the contract is the mental and emotional well-being of one of the contracting parties, then that party can collect damages for emotional distress[.] Courts have carved out a narrow range of exceptions to the general rule of exclusion where emotional tranquility is the contract’s essence. [Citations Omitted.]” (Levy v. Only Cremations for Pets, Inc. (2020) 57 Cal.App.5th 203, 214-215.)

Plaintiffs do not allege sufficient facts to show that the second exception applies.

In other words, Plaintiffs do not allege that the express terms of the contract relate to matters concerning Ms. Nijinsky’s well-being. The Agreement attached as Exhibit A to the FAC is for the sale of goods—it is an invoice for the purchase of a home spa.

Accordingly, the Motion to Strike emotional distress damages based on Plaintiffs’ first cause of action for breach of contract is GRANTED with 20 days leave to amend.

Non-Economic Emotional Damages Based on Negligence Without Injury

Without citing any relevant law or authority, Cal Spa conclusory argues that Plaintiff’s claim for non-economic/emotional damages based on negligence without injury is impermissible. Cal Spa argues that Plaintiff’s claim for emotional damages is impermissibly “being tacked on to a negligence cause of action.” (Motion 6:4-5.) (See FAC Prayer as to Second, Third, Fourth, and Fifth Causes of Action, Item 2.) Although not expressly stated, it appears that Cal Spa is attempting to strike any claims for emotional damages attributed to Plaintiffs’ second cause of action for negligence.

In Opposition, Plaintiffs argue that Cal Spa’s Motion on this ground is incomplete and fails to present any arguments or case law to refute Plaintiffs’ emotional distress damages based on negligence.

Cal Spa fails to address or refute Plaintiffs’ arguments in Opposition, seemingly in concession on the merits.

The Motion is DENIED. The prayer for emotional distress damages is stated generally as applying to the second, third, fourth, and fifth causes of action. “Irrelevant and redundant matter inserted in a pleading may be stricken by the court. [Citation.] But a motion to strike cannot be made to serve the purpose of a special demurrer. Where a motion to strike is so broad as to include relevant matters, the motions should be denied in its entirety.” (Hill v. Wrather (1958) 158 Cal.App.2d 818, 823.) Because the language sought to be stricken is language that applies to the second, third, fourth and fifth causes of action (not just the second cause of action)—the Motion to Strike non-economic emotional damages based on negligence without injury is DENIED.