Judge Mark H. Epstein, Case Number: 24SMCV03119, Date: 2025-03-19 Tentative Ruling

Judge: Mark H. Epstein, Case: 24SMCV03119, Date: 2025-03-19 Tentative Ruling

Case Number: 24SMCV03119 Hearing Date: March 19, 2025 Dept: I

The court’s first inquiry is why the reply was filed on March 17, 2025, without leave of court or a request to make an untimely filing. The improper reply will be STRICKEN unless there is a good reason. The reply was due on 3/12/25.

Turning to the merits, the case involves a pedicure that resulted in injury to plaintiff. The proposed amendment discusses more damages and also alleges new torts including the violation of regulations, negligent infliction of emotional distress, violation of the implied warranty of merchantability, B&P Code section 17200, premises liability, res ipsa loquitur, premises liability, assault, battery, negligence per se, and regular negligence. (The original complaint alleged negligence and negligence per se.) Plaintiff asserts that there is good cause for this. The court sees very little good cause to allege the new causes of action—at least insofar as one is talking about reasons why they were not alleged earlier. But the standard is not really that. Absent prejudice, leave to amend is freely granted, and the court sees no prejudice here.

That said, negligence, negligence per se, res ipsa loquitur, and negligent infliction of emotional distress are four different ways of saying negligence. Negligence per se is not a newly added tort, so leave to amend is not required to allege it. Having said that, the court notes that the per se aspect of the tort is that the statute or rule or regulation constitutes the standard of care; not that the per se aspect makes it a separate tort. It is still just negligence. Res ipsa loquitur is also just negligence by another name. The doctrine speaks of something that is so obvious that nothing more need be said about breaching the duty of care, and there are discreet jury instructions for it, but it, too, still is just negligence. Negligent infliction of emotional distress is also not really a separate tort, at least in the direct victim sense (as opposed to bystander liability). And it adds nothing in terms of damages. Given that there is no excuse for the delay and these causes of action add nothing to the complaint because they are not really new causes of action, the motion as to the res ipsa loquitur and NIED causes of action is DENIED.

The court does not understand the breach of the implied warranty of merchantability. That doctrine applies to the sale of products. Nothing seems to be alleged in the complaint as to the sale of a product. A pedicure is a service, not a product. The motion is DENIED as to that cause of action because it is futile. The court also does not understand the premises liability cause of action. This was an injury from the pedicure service, not a trip and fall. The motion is DENIED as to this cause of action as well as futile.

As to assault and battery, whether those causes of action survive is better tested by demurrer than in the opposition of a motion for leave to amend. Were the motion limited to those causes of action, it would have been granted.

As to the 17200 cause of action, plaintiff needs to do better as to what the unlawful, unfair, or fraudulent business practice is. The motion is DENIED as to that cause of action, but if plaintiff were to articulate the matter better, the court would consider the amendment.

Finally, the motion for leave to amend as to the regulation is DENIED. It is not clear to the court that the violation of the regulation is a separate tort. It might well constitute negligence (in the negligence per se sense), but negligence is already in the case. On the other hand, the denial is without prejudice as to another attempt if plaintiff can show that a violation of the regulation is itself a separate actionable tort.

The court notes that plaintiff seems to be overpleading the case. There is a tort alleged here, to be sure. But this is not a law school torts exam, where points are scored for every theoretical tort that can be articulated. If plaintiff wants to accept this ruling, plaintiff can file a stand alone FAC in conformity herewith (meaning that only assault and battery are added) within 5 court days and the defense will have 30 days to answer or otherwise respond. If plaintiff would rather try again, plaintiff should let the court know and the court will so allow and plaintiff can try to cure the problems outlined above in the next iteration of the proposed FAC. So technically, the motion as framed is DENIED, but if plaintiff wants to limit the new complaint rather than try to add the other causes of action, then the court will allow that amendment and GRANT the motion in part.