TENTATIVE RULING

Defendant Apyx Medical Corporation’s Demurrer to Plaintiffs’ Complaint for Wrongful Death and Survival Action Damages is SUSTAINED with thirty (30) days leave to amend.

Defendant Apyx Medical Corporation’s Motion to Strike Punitive Damages from Plaintiffs’ Complaint for Wrongful Death and Survival Action Damages is DENIED as MOOT.

Plaintiffs Estate of Kerstin Davies, Judith Scranton, Thomas Davies, Jude Davies, Marilyn Davies, and Clara Davies may amend their complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Defendant Apyx Medical Corporation to give notice. 

REASONING

Defendant Apyx Medical Corporation (“Defendant”) demur to all causes of action alleged against it within Plaintiffs Estate of Kerstin Davies, Judith Scranton, Thomas Davies, Jude Davies, Marilyn Davies, and Clara Davies (“Plaintiff”)’s complaint. The Court notes that Defendant’s notice of demurrer is confusing, as it simply states that Defendant is demurring to the entire complaint, which does not sufficiently comply with rule 3.1320(a) of the California Rules of Court, as the memorandum of points and authorities asserts different arguments as to different causes of action. Separately, Plaintiffs’ complaint mislabels the sequence of the causes of action in the case caption. The Court uses the sequential numbers identified in the heading of each cause of action. Moreover, Plaintiffs’ complaint stands at 96 pages, which allows Plaintiffs’ narrative to become lost among repetitive and unnecessarily lengthy accounts of the events underlying Plaintiffs’ claims. “Brevity is not only the soul of wit,” it is the most effective means by which a party can present his or her claims to the trier of fact. (See Ebbetts Pass Forest Watch v. Department of Forestry & Fire Protection (2004) 123 Cal.App.4th 1331, 1338-1339.) Upon amending the pleading, Plaintiffs are advised to abbreviate their allegations in a manner that allows for better readability so the trier of fact may be better able to understand the crux of Plaintiffs’ claims.

Legal Standard

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not “assume the truth of contentions, deductions, or conclusions of fact or law” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125).

Further, the court may, upon 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).) The court may also strike 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).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

First Cause of Action: Negligence

To state a claim for negligence, Plaintiffs must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

In the first cause of action, Plaintiffs restate their allegations regarding the harm to Decedent Kerstin Davies (“Decedent”), and they generally refer to harm caused by several defendants, including this defendant, and states that defendants generally marketed the product, had certain knowledge of facts, and breached a duty of care to Plaintiffs. (Compl. ¶¶ 416-454.) Plaintiffs also appear to allege that they personally witnessed Decedent die, perhaps invoking a negligent infliction of emotional distress theory. (Compl. ¶ 446.) Plaintiffs’ lengthy recitation of facts makes it difficult for the Court and Defendant to be aware of the nature of Plaintiffs’ specific claim against Defendant. Plaintiffs shall amend the pleading to state the elements of a negligence claim as to this Defendant in a manner that is easy for the Court and trier of fact to track, i.e., merely stating facts in a lengthy pleading and identifying the cause of action does not give sufficient notice of the nature of the claim. Accordingly, Defendant’s demurrer to the first cause of action is SUSTAINED with thirty (30) days leave to amend.

Second Cause of Action: Strict Product Liability

To establish a strict products liability claim, the plaintiff must prove “that there was a defect in the manufacture or design of the product and that such defect was a proximate cause of the injuries.” (Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 133.)

Again, Plaintiffs make claims that defendants generally manufactured, distributed, marketed, or sold the J-Plasma/Renuvion device (Compl. ¶ 459), and they knew it was dangerous (Compl. ¶ 460). This again does not allow the Court, Defendant, or the trier of fact to fully understand the nature of Plaintiffs’ specific claim against this Defendant. For that reason, Defendant’s demurrer to the second cause of action is SUSTAINED with thirty (30) days leave to amend.

Third Cause of Action: Vicarious Liability and Negligent Hiring, Training, Supervision, and Retention

The elements of a cause of action for negligent hiring, retention, or supervision are: (1) the employer’s hiring, retaining, or supervising an employee; (2) the employee was incompetent or unfit; (3) the employer had reason to believe undue risk of harm would exist because of the employment; and (4) harm occurs. (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836-837.)

Plaintiffs allege that Defendant was responsible for the subject device, failed to warn Decedent, and failed to adequately safeguard the product, among other conduct. (Compl. ¶ 512.) Plaintiffs make no reference in the cause of action to the conduct of any specific employee, such that this claim appears to be no more than a restatement of a general negligence claim against Defendant. Upon amending the complaint, Plaintiffs shall differentiate this claim in some way to allege a claim for negligent hiring, retention, or supervision. Thus, Defendant’s demurrer to the third cause of action is SUSTAINED with thirty (30) days leave to amend.

Fifth Cause of Action: Fraud, Consumer Fraud, and Negligent Concealment

“The elements of fraud are (a) a misrepresentation (false representation, concealment, or nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Hinesley v. Oakshade Town Ctr. (2005) 135 Cal.App.4th 289, 294.) “The elements of a cause of action for fraudulent concealment are: (1) concealment of a material fact; (2) by a defendant with a duty to disclose; (3) the defendant intended to defraud by failing to disclose; (4) plaintiff was unaware of the fact and would not have acted as it did had it known the fact; and (5) damages.” (Butler America, LLC v. Aviation Assurance Company, LLC (2020) 55 Cal.App.5th 136, 144.)

The facts constituting the alleged fraud must be alleged factually and specifically as to every element of fraud, as the policy of “liberal construction” of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) To properly allege fraud against a corporation, the plaintiffs must plead the names of the persons allegedly making the false representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

Plaintiffs allege that defendants generally misrepresented the use and danger of the subject device, but they provide no specific information about the people allegedly making any false representations or concealments, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. This does not state a claim for fraud. Upon amending the complaint, Plaintiffs must meet the heightened specificity requirement for a fraud claim as described above, and the specific statements must be set forth in the body of the cause of action. Accordingly, Defendant’s demurrer to the fifth cause of action is SUSTAINED with thirty (30) days leave to amend.

Sixth Cause of Action: Wrongful Death

“The elements of a cause of action for wrongful death are a tort, such as negligence, and resulting death.” (Lopez v. City of Los Angeles (2011) 196 Cal.App.4th 675, 685.)

As stated above, Plaintiffs have failed to sufficiently set forth a tort by Defendant. For that reason, Defendant’s demurrer to the sixth cause of action is SUSTAINED with thirty (30) days leave to amend.

Motion to Strike

Given the Court’s ruling on demurrer, Defendant’s motion to strike is DENIED as MOOT.