Judge Loren G. Freestone, Case Number: 37-2023-00054256-CU-PO-CTL, Date: 2024-06-14 Tentative Ruling

Judge: Loren G. Freestone, Case: 37-2023-00054256-CU-PO-CTL, Date: 2024-06-14 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 13, 2024

06/14/2024 10:30:00 AM C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited PI/PD/WD - Other Demurrer / Motion to Strike 37-2023-00054256-CU-PO-CTL ATKINSON VS SAMMY'S WOODFIRED PIZZA [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Defendant Stones South Bay Corp. d/b/a Seven Mile Casino (erroneously sued as Sammy's Woodfired Pizza)'s demurer to the complaint filed by Plaintiff Matthew Atkinson is SUSTAINED IN PART and OVERRULED IN PART.

Stones' motion to strike Atkinson's prayer for punitive damages and related allegations is GRANTED IN PART and DENIED IN PART.

Preliminary Matters Stones reserved a hearing for its demurrer. However, it did not reserve a separate hearing for its motion to strike. The court will address both, but failure to reserve a hearing date in the future may result in the motion not being heard. (Super. Ct. San Diego County, Local Rules, rule 2.1.19.A.) First Cause of Action Atkinson's first cause of action is for 'personal injury.' Stones demurs on the ground that this cause of action is duplicative of the second cause of action for negligence.

Although there is a split of authority, the Fourth District Court of Appeal, Division One, has held that a demurrer may be sustained when a cause of action is duplicative of another cause of action. (See Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290 & fn. 12.) The first and second causes of action both allege that Atkinson suffered food poisoning after Sammy's served him a bowl of pho containing a cockroach. The first cause of action does not appear to be premised on a different theory of liability than the second cause of action (e.g., intentional conduct as opposed to negligent conduct). Atkinson did not address this aspect of the demurrer in his opposition or otherwise explain how the two claims meaningfully differ.

The demurrer to the first cause of action is therefore sustained.

Second Cause of Action Calendar No.: Event ID: TENTATIVE RULINGS

3093008 37 CASE NUMBER: CASE TITLE: ATKINSON VS SAMMY'S WOODFIRED PIZZA [IMAGED] 37-2023-00054256-CU-PO-CTL Atkinson's second cause of action is for 'negligence.' Stones demurs on the ground that Atkinson failed to sufficiently allege a causal connection between the cockroach and his food poisoning.

In food poisoning cases, the trier of fact is entitled to make reasonable inferences to determine whether a restaurant was the cause of the patron's illness. (See generally Sarti v. Salt Creek Ltd. (2008) 167 Cal.App.4th 1187; see, e.g., Stell v. Townsend Cal. Glace Fruits (1934) 138 Cal.App.Supp. 777 [affirming judgment for plaintiff who had eaten plain breakfast, but became violently ill and was diagnosed with food poisoning shortly after eating soft, slimy, and peculiar tasting fish for dinner at defendant's restaurant].) Here, Atkinson allegedly consumed a bowl of pho containing a cockroach. Cockroaches can carry disease, contaminate food, and pose a risk of illness. (See Health & Saf. Code, §§ 113180, 11393, 11393.1.) Within 12 hours, Atkinson allegedly became violently sick. He was then allegedly admitted to the emergency department at Scripps Mercy Hospital Chula Vista where doctors diagnosed him with food poisoning from the roach. For pleading purposes, this is sufficient to allege causation.

The demurrer to the second cause of action is therefore overruled.

Third Cause of Action Atkinson's third of action is for 'gross negligence.' Stones demurs on the grounds that there is no independent cause of action for gross negligence, and its alleged conduct was in any event not grossly negligent.

'California does not recognize a distinct common law cause of action for gross negligence apart from negligence.' (Epochal Enterprises, Inc. v. LF Encinitas Properties, LLC (2024) 99 Cal.App.5th 44, 55.) 'Gross negligence' is simply a difference 'in degree, not in kind.' (Id. at p. 56.) That difference only matters in some scenarios, such as when 'a particular statute that is at issue in the case creates a distinction based on a standard of gross negligence' or 'if case law has created a distinction between gross and ordinary negligence.' (See CACI 425, Directions for Use.) Atkinson does not explain the importance of alleging 'gross negligence' in this case. Although he argues that Stones' conduct violated the Health and Safety Code, none of the sections he cites imposes a 'gross negligence' standard. Even if the difference did matter, there is still no independent cause of action for gross negligence. Any facts establishing gross negligence should simply be pled under the negligence cause of action.

The demurrer to the third cause of action is therefore sustained.

Fourth Cause of Action Atkinson's fourth cause of action is for 'res ipsa loquitur.' Stones demurs on the ground that there is no independent cause of action for res ipsa loquitur.

'Where it applies, the doctrine of res ipsa loquitur permits a finder of fact to infer that something was caused by the defendant's negligence, despite the lack of any evidence establishing such negligence or causation.' (Barber v. Southern California Edison Co. (2022) 80 Cal.App.5th 227, 246.) 'The doctrine of res ipsa loquitor applies where the evidence satisfies three conditions: (1) the accident or injury must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been Calendar No.: Event ID: TENTATIVE RULINGS

3093008 37 CASE NUMBER: CASE TITLE: ATKINSON VS SAMMY'S WOODFIRED PIZZA [IMAGED] 37-2023-00054256-CU-PO-CTL due to any voluntary action or contribution on the part of the plaintiff.' (Ibid.) If those three conditions are shown, the burden shifts to the defendant to produce evidence 'sufficient to sustain a finding that any negligence on [its] part was not a proximate cause of plaintiff's injury,' at which point 'the res ipsa loquitur presumption disappears.' (Ibid.) It is unnecessary to allege a separate cause of action for 'res ipsa loquitor.' (See Kaiser Steel Corp. v. Westinghouse Elec. Corp. (1976) 55 Cal.App.3d 737, 745.) Rather, 'the allegations of fact necessary for application of the doctrine' may simply be alleged under the negligence cause of action that the doctrine will help establish. (See ibid.) Atkinson argues that he can rely on the doctrine of res ipsa loquitor to establish that the presence of the roach in his pho was the result of Sammy's negligence. But the present issue is not whether the doctrine applies, but whether the doctrine is an independent cause of action. It is not.

The demurrer to the fourth cause of action is therefore sustained.

Punitive Damages Atkinson prays for punitive damages.

Stones moves to strike the prayer (request 4), as well as various allegations in support of the prayer (requests 1–3), on the ground that the facts pled do not support that relief.

'Punitive damages may not be pleaded generally.' (Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1193.) Rather, a prayer for punitive damages must be supported by 'specific factual allegations.' (Ibid.; see Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166; G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 32.) But provided there are such factual allegations, a prayer for punitive damages is not rendered deficient because the complaint also includes conclusory terms such as 'oppressive.' (See Blegen v. Superior Court (1981) 125 Cal.App.3d 959, 963.) Nonintentional torts 'may form the basis for punitive damages when the conduct constitutes conscious disregard of the rights or safety of others.' (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 907; accord Magallanes v. Superior Court (1985) 167 Cal.App.3d 878, 882–883 & fn. 1; Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 285–288.) However, when the defendant is a corporation, an award of punitive damages 'must rest on the malice of the corporation's employees.' (Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 154.) The law 'does not impute every employee's malice to the corporation. Instead, the oppression, fraud, or malice must be perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the corporation.' (Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 154.) A prayer for punitive damages against a corporation must be struck if such conduct on behalf of an officer, director, or managing agent is not alleged. (See Scannell v. County of Riverside (1984) 152 Cal.App.3d 596, 614; Grieves, supra, 157 Cal.App.3d at pp. 167–168; compare O'Hara v. Western Seven Trees Corp. (1977) 75 Cal.App.3d 798, 806; Magallanes, supra, 167 Cal.App.3d at p. 882–883 & fn. 1.) Here, Atkinson alleges that the roach infestation occurred as a result of Stones' unsanitary practices and conditions in the kitchen. Stones had allegedly been aware of the roach infestation problem for months.

Yet Stones allegedly failed to ensure that a roach was not mixed in with his soup, failed to take any industry standard remedial measures to eliminate the infestation, and failed to shut down the restaurant pending elimination of the infestation. Rather, Stones allegedly disregarded the health threat posed by the roach infestation in wanton and reckless disregard of the safety of its customers. These allegations are relevant not only to the remaining cause of action for negligence, but also to establishing the malice required for punitive damages.

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3093008 37 CASE NUMBER: CASE TITLE: ATKINSON VS SAMMY'S WOODFIRED PIZZA [IMAGED] 37-2023-00054256-CU-PO-CTL However, Atkinson does not allege that an officer, director, or managing agent of Stones caused, authorized, or knowingly permitted any unsanitary conditions to exist. Absent those additional allegations, the prayer for punitive damages is stricken with leave to amend.

Conclusion The demurrer to the first cause of action is sustained. Atkinson did not address that cause of action in his opposition, nor did he request leave to amend it. There does not appear to be a reasonable probability that he can amend it to differentiate it from his negligence cause of action. As such, the demurrer to that cause of action is sustained without leave to amend.

The demurrer to the second cause of action is overruled.

The demurrer to the third and fourth causes of action is sustained. As these are not independently recognized causes of action, there is not a reasonable probability that Atkinson can amend to render them viable. As such, the demurrer to those causes of action is sustained without leave to amend.

However, the court grants leave to amend the second cause of action to incorporate allegations from the third and fourth causes of action to the extent Atkinson deems appropriate.

The motion to strike is granted in part and denied in part. The prayer for punitive damages is stricken, but the other allegations are not, and leave to amend is granted with respect to the punitive damages claim.

Accordingly, Atkinson shall have 10 days to file an Amended Complaint consistent with the above.

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