Judge: Lisa R. Jaskol, Case: 21STCV44260, Date: 2024-06-03 Tentative Ruling

Case Number: 21STCV44260    Hearing Date: June 3, 2024    Dept: 28

Having considered the moving and opposition papers, the Court rules as follows. 

BACKGROUND 

On December 3, 2021, Plaintiff Brionna Dreer (“Brionna Dreer”) filed this action against Defendants Behrooz Rostam (“Rostam”), Black & White Car Rental, Burton Way Investments LLC, and Does 1-100 for negligence and negligence per se. 

On February 25, 2022, Defendants Burton Way Investments, LLC, and Camzam Investments, Inc., d.b.a. Black & White Car Rental, erroneously named and sued as Black & White Car Rental, filed an answer and a cross-complaint against Cross-Defendants Rostam and Roes 1-100 for breach of rental agreement, breach of bailment, and negligence (property damage).  On September 26, 2022, Rostam filed an answer to the cross-complaint. 

On March 10, 2022, Rostam filed an answer to the complaint.  On September 26, 2022, Rostam filed a cross-complaint against Cross-Defendants Burton Way Investments, LLC, Camzam Investments, Inc., dba Black & White Car Rental, and Moes 1-100 for implied indemnity, comparative contribution, total equitable indemnity, and declaratory relief. 

On January 9, 2024, Plaintiff Michelle Dreer (“Plaintiff”), in her capacity as personal representative of the Estate of Brionna Dreer, filed a first amended complaint. 

On February 15, 2024, Rostam filed an answer to Plaintiff’s first amended complaint. 

On March 13, 2024, Defendants Burton Way Investments, LLC, and Camzam Investments, Inc., d.b.a. Black & White Car Rental, erroneously named and sued as Black & White Car Rental (“Moving Defendants”) filed a demurrer to Plaintiff’s first amended complaint and a motion to strike portions of the first amended complaint.  The motions were set to be heard on May 2, 2024.  On April 19, 2024, Plaintiff filed oppositions.  The Court continued the hearing to June 3, 2024.  

Trial is scheduled for November 22, 2024. 

PARTIES’ REQUESTS 

Moving Defendants ask the Court (1) to sustain the demurrer to the second cause of action for negligence per se and (2) to strike portions of the first amended complaint. 

Plaintiff agrees to strike the second cause of action for negligence per se and portions of the first amended complaint but objects to some of Moving Defendants' requests. 

LEGAL STANDARD 

A.   Demurrer 

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: 

“(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading. 

“(b) The person who filed the pleading does not have the legal capacity to sue. 

“(c) There is another action pending between the same parties on the same cause of action. 

“(d) There is a defect or misjoinder of parties. 

“(e) The pleading does not state facts sufficient to constitute a cause of action. 

“(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible. 

“(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct. 

“(h) No certificate was filed as required by Section 411.35.” 

(Code Civ. Proc., § 430.10.) 

In a demurrer proceeding, the defects must be apparent on the face of the pleading or by judicial notice. (Code Civ. Proc., § 430.30, subd. (a) [“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading”].) 

B.   Motion to strike 

“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)(1).)  The Court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436, subd. (a).)  “The grounds for a motion to strike shall appear on the face of the challenged pleading of from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).) 

“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.)  “In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”  (Ibid.)  “In ruling on a motion to strike, courts do not read allegations in isolation.”  (Ibid.) 

C.   Code of Civil Procedure section 377.34 

Code of Civil Procedure section 377.34 provides in part: 

“(a) In an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement. 

“(b) Notwithstanding subdivision (a), in an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable may include damages for pain, suffering, or disfigurement if the action or proceeding was granted a preference pursuant to Section 36 before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026. . . .” 

(Code Civ. Proc., § 377.34, subds. (a), (b).) 

          “All decedent’s pecuniary damages incurred prior to death (e.g., medical expenses and lost earnings), as well as punitive damages, are recoverable; but the estate generally is not entitled to an award for decedent’s pain, suffering or disfigurement” under Code of Civil Procedure section 377.34, subdivision (a).  (Z. Haning et al., Cal. Practice Guide: Personal Injury (Rutter 2023) ¶ 3:286, p. 3-52.) 

DISCUSSION 

A.   The first amended complaint 

The first amended complaint alleges the following: 

On or about December 7, 2019, Rostam was driving a 2018 Ferrari 360 Spider Ferrari (“vehicle”) that he had rented from Defendant Black & White Car Rental.  Defendant Burton Way Investments, LLC, owned the vehicle.  Brionna Dreer was a passenger in the vehicle. 

While driving northbound on Pacific Coast Highway, near the intersection of Pacific Coast Highway and Sunset Boulevard, Rostam drove at an excessive speed and lost control of the vehicle, causing it to veer to the right, crash, flip and/or roll over.  Brionna Dreer “was thrown violently about and as a further result, sustained severe and permanent personal injuries.” 

Plaintiff Michele Dreer brings the first amended complaint “in her capacity as the personal representative of the Estate of Brionna Dreer . . . .”  (First amended complaint p. 1.) 

B.   The motion to strike 

Moving Defendants ask the Court to strike from the first amended complaint allegations concerning bodily injuries, pain, suffering, emotional distress, permanent disabilities, and loss of future earnings and the prayer for general damages.  According to Moving Defendants, these damages are no longer recoverable under Code of Civil Procedure section 377.34, subdivision (a), which permits a decedent’s personal representative to recover damages for “the loss or damage that the decedent sustained or incurred before death” but bars the decedent’s personal representative from recovering “damages for pain, suffering, or disfigurement.”  (See Code Civ. Proc., § 377.34, subd. (a).)   

Moving Defendants also ask the Court to strike Plaintiff’s second cause of action for negligence per se because it is not a separate cause of action. 

In response, Plaintiff agrees to strike the following portions of the first amended complaint: 

“1. Page 6-7, Paragraph 26, the portions that read: ‘and Plaintiff alleges that she will thereby be prevented from attending said usual occupation for a period in the future.’ 

“2. Pages 7-8, Paragraphs 27-33 (Plaintiff’s second cause of action for negligence per se) in its entirety. 

“3. Page 7 [sic], Paragraph 1 of the prayer for relief, in its entirety, which states: ‘For general damages, according to proof.’ 

“4. Page 7 [sic], Paragraph 6, the words ‘general and’ ” 

(Opposition p. 2.)  Plaintiff also agrees to strike the phrase “all of which said injuries have caused and continue to cause Brionna great mental, physical and emotional distress, pain and suffering” from paragraph 24 on page 6 of the first amended complaint.  (Opposition p. 3.) 

Plaintiff objects to striking the sentence "As a direct and proximate result of the crash, BRIONNA suffered and sustained bodily injuries."  (Page 8, paragraph 33.)  However, this sentence is part of Plaintiff's second cause of action for negligence per se, which Plaintiff has agreed to strike.

          Based on Code of Civil Procedure section 377.34 and the parties’ contentions and admissions, and the Court strikes the following portions of the first amended complaint: 

1.    The phrase “all of which said injuries have caused and continue to cause Brionna great mental, physical and emotional distress, pain and suffering,” (Page 6, paragraph 24)

2.    The phrase “and Plaintiff alleges that she will thereby be prevented from attending said usual occupation for a period in the future” (Pages 6-7, paragraph 26)

3.    Paragraphs 27-33 (the second cause of action for negligence per se)

4.    The phrase “For general damages, according to proof” (Prayer for Relief, paragraph 1)

5.    The phrase “general and” (Prayer for Relief, paragraph 6) 

C.   The demurrer 

In light of the Court’s ruling on the motion to strike, Moving Defendants’ demurrer to the second cause of action for negligence per se is moot. 

CONCLUSION 

The Court GRANTS in part the motion to strike filed by Defendants Burton Way Investments, LLC, and Camzam Investments, Inc., d.b.a. Black & White Car Rental, erroneously named and sued as Black & White Car Rental.  The Court strikes the following portions of the first amended complaint without leave to amend: 

1.       The phrase “all of which said injuries have caused and continue to cause Brionna great mental, physical and emotional distress, pain and suffering,” (Page 6, paragraph 24)

2.       The phrase “and Plaintiff alleges that she will thereby be prevented from attending said usual occupation for a period in the future” (Pages 6-7, paragraph 26)

3.       Paragraphs 27-33 (the second cause of action for negligence per se)

4.       The phrase “For general damages, according to proof” (Prayer for Relief, paragraph 1)

5.       The phrase “general and” (Prayer for Relief, paragraph 6) 

In all other respects, the Court DENIES the motion to strike. 

The Court OVERRULES the demurrer as moot. 

Moving parties are ordered to give notice of this ruling. 

Moving parties are ordered to file the proof of service of this ruling with the Court within five days.