Judge: Lisa R. Jaskol, Case: 23STCV14976, Date: 2023-11-28 Tentative Ruling
Case Number: 23STCV14976 Hearing Date: November 28, 2023 Dept: 28
Having considered the moving, opposing, and reply papers, the Court rules as follows.
BACKGROUND
On June 27, 2023, Plaintiff Karine Karapetyan (“Plaintiff”) filed this action against Defendants Melrose Escape Revolution LLC (“Escape Revolution”), 7120 Melrose LLC (“Melrose”), Soleiman Hakakian (“Soleiman Hakakian”), Mois Refoua (“Refoua”), and Does 1-25 for loss of consortium.
On August 9, 2023, Plaintiff filed a first amended complaint against Escape Revolution, Melrose, Soleiman Hakakian, Refoua, Shahla Hakakian (“Shahla Hakahian”), Lux Air Heating & Air Conditioning (“Lux”), Zaven Simonyan (“Simonyan”), and Does 1-25 for loss of consortium.
On September 15, 2023, Escape Revolution, Melrose, Soleiman Hakakian, Shahla Hakakian, and Refouna filed an answer and a cross-complaint against Lux, Simonyan, and Roes 1-20 for equitable indemnity, contribution, apportionment of fault, and declaratory relief. On October 25, 2023, Lux and Simonian filed an answer.
On October 16, 2023, Escape Revolution, Melrose, Soleiman Hakakian, Shahla Hakakian, and Refoua (“Moving Defendants”) filed a motion to strike to be heard on November 28, 2023. On November 9, 2023, Plaintiff filed an opposition. On November 17, 2023, Moving Defendants filed a Reply.
On November 14, 2023, the Court found that this case (23STCV14976) and case number 23STCV16424 are related within the meaning of California Rules of Court, rule 3.300(a). This case (23STCV14976) became the lead case. The cases were assigned to Department 28 at the Spring Street Courthouse for all purposes.
Trial is currently scheduled for December 24, 2024.
PARTIES’ REQUESTS
Moving Defendants request that the Court strike the first amended complaint’s request for attorneys’ fees, request for special and compensatory damages, and request for damages for future loss of consortium.
Plaintiff requests that the Court deny the motion, except that Plaintiff concedes she is not entitled to recover attorneys’ fees.
LEGAL STANDARD
“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 or from any matter
of which the court is required to take judicial notice.” (Code Civ. Proc., §
437, subd. (a).) “Where the motion to
strike is based on matter of which the court may take judicial notice pursuant
to Section 452 or 453 of the Evidence Code, such matter shall be specified in
the notice of motion, or in the supporting points and authorities, except as the
court may otherwise permit.” (Code Civ. Proc., § 437, subd. (b).)
“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.)
DISCUSSION
A. The first amended complaint
The first amended complaint alleges the following:
Plaintiff and Vardan Ohanjanyan (“Ohanjanyan”) were married from November 27, 2015 until the dissolution of their marriage.
On August 11, 2021, Ohanjanyan fell through a skylight while performing work at 7126 Melrose Ave., Los Angeles, CA 90046 (“Subject Location”). Escape Revolution owned and/or operated the business where the accident occurred. Melrose, Soleiman Hakakian, Shahla Hakakian, and Refoua owned and/or operated the building where the accident took place. Plaintiff and Ohanjanyan were married when the accident occurred.
On or about August 11, 2021, and for a period of time before that, Escape Revolution, Melrose, Soleiman Hakakian, Shahla Hakakyan, Refoua, Lux, Simonyan (Lux’s owner) and/or Does 1 to 25 negligently, carelessly, recklessly, unskillfully, unlawfully, tortiously, and wrongfully owned, possessed, designed, constructed, maintained, operated, supervised, managed, entrusted, inspected, serviced, repaired and/or controlled the Subject Location. As a result, the Subject Premises were in a dangerous, hazardous, unlawful, unsafe and defective condition and the work environment was in a dangerous condition at the Subject Location, but Defendants failed to warn Ohanjanyan of the dangerous condition.
As a result of Ohanjanyan’s injuries, Plaintiff has been deprived of her former spouse’s companionship, affection, love, sexual relations, conjugal fellowship, physical assistance in maintaining the family home and comfort for a non-determinable length of time. This deprivation has caused, continues to cause, and in the future is expected to cause Plaintiff to suffer depression, emotional distress, loss of earning capacity, past injuries, the full extent of which has not yet been ascertained, but which will be stated according to proof at trial.
The complaint requests general damages, “special and compensatory damages,” pre-judgment and post-judgment interest, damages for loss of consortium, costs of suit, and attorneys’ fees.
B. Attorneys’ fee request
The Court may award attorneys’ fees as an item of costs only when they are authorized by contract, statute, or law. (Code Civ. Proc., § 1033.5, subd. (a)(10).)
Plaintiff has not pleaded facts showing that she is entitled to attorneys’ fees based on contract, statute, or other source of law. Therefore, the Court grants the motion to strike the first amended complaint’s request for attorneys’ fees.
C. Damages for loss of consortium
In Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 404-405, our Supreme Court held that a married person whose spouse has been injured by the negligence of a third party may recover for loss of consortium, that is, loss of conjugal society, comfort, affection, companionship and sexual relations. (See Elden v. Sheldon, 46 Cal.3d 267, 277 (Elden).) “[I]n a common law action for loss of consortium, the plaintiff can recover not only for the loss of companionship and affection through the time of the trial but also for any future loss of companionship and affection that is sufficiently certain to occur.” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 799.)
However, in refusing to extend a cause of action for loss of consortium to unmarried cohabitants, courts have held that “the right to recover for loss of consortium is founded on the relationship of marriage, and absent such a relationship the right does not exist.” (Elden, supra, 46 Cal.3d at p. 278.)
Damages for loss of consortium are noneconomic damages for purposes of Proposition 51. (Civ. Code, § 1431.2, subd. (b)(2) [“For the purposes of this section, the term “non-economic damages” means subjective, non-monetary losses including, but not limited to, pain, suffering, inconvenience, mental suffering, emotional distress, loss of society and companionship, loss of consortium, injury to reputation and humiliation”].)
CACI 3920, on loss of consortium, instructs the jury that it may award damages for:
1.
The loss of love, companionship, comfort, care, assistance, protection,
affection, society, and moral support; and
2.
The loss of the enjoyment of sexual relations [or the ability to have
children].
CACI 3920 instructs jurors not to award damages for:
1.
The loss of financial support from [name of injured spouse];
2.
Personal services, such as nursing, that [name of plaintiff] has provided
or will provide to [name of injured spouse];
3.
Any loss of earnings that [name of plaintiff] has suffered by giving up
employment to take care of [name of injured spouse]; or
4.
The cost of obtaining domestic household services to replace services
that would have been performed by [name of injured spouse].
Citing CACI 3920, Moving
Defendants ask the Court to strike the following:
1. Paragraph 20 of the first amended complaint, lines 16 to 18, which states: “… which deprivation has caused, continues to cause, and in the future is expected to cause Plaintiff to suffer depression, emotional distress, loss of earning capacity, past injuries,” and
2. Paragraph 2 of the Prayer in the first amended complaint, which states, “For special and compensatory damages according to law and proof, to the extent authorized by law.”
In response, Plaintiff asserts that the accident led to her divorce from Ohanjanyan, entitling her to “ongoing” loss of consortium damages, including damages suffered after the divorce. Plaintiff points to the absence of caselaw prohibiting recovery of loss of consortium damages after a divorce as support for her argument. However, a claim for loss of consortium is based on a party’s entitlement to the benefits of a marriage described in CACI 3920. Once the marriage is ended by a divorce, the former spouse is no longer entitled to receive these marriage benefits. It follows that the former spouse cannot assert a legal claim to recover marriage benefits to which the former spouse is not entitled due to the divorce.
Based on the authorities cited above, the Court grants Moving Defendants’ request to strike the following language from paragraph 20 of the first amended complaint: “… which deprivation has caused, continues to cause, and in the future is expected to cause Plaintiff to suffer depression, emotional distress, loss of earning capacity, past injuries.”
The Court also grants Moving Defendants’ request to strike Plaintiff’s request for special damages. (Prayer, ¶ 2.)
However, the Court denies Moving Defendants’ request to strike Plaintiff’s request for compensatory damages. (Prayer, ¶ 2.)
CONCLUSION
The Court GRANTS IN PART the motion to strike of Defendants Melrose Escape Revolution, LLC, 7120 Melrose LLC, Soleiman Hakakian, Shahla Hakakian and Mois Refoua as follows:
The Court STRIKES the attorneys’ fees request from the first amended complaint.
The Court STRIKES the language “… which deprivation has caused, continues to cause, and in the future is expected to cause Plaintiff to suffer depression, emotional distress, loss of earning capacity, past injuries” from paragraph 20 of the first amended complaint.
The Court STRIKES the request for special damages.
In all other respects, the Court DENIES the motion.
The Court denies Plaintiff’s request for leave to amend the stricken portions of the first amended complaint.
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.