Judge: Matthew C. Braner, Case: 37-2023-00021510-CU-PO-CTL, Date: 2024-02-14 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 01, 2024

02/02/2024  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  PI/PD/WD - Other Demurrer / Motion to Strike 37-2023-00021510-CU-PO-CTL ABBAS VS SD FLY VENTURES LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants SD Fly Ventures LLC dba Sky Zone San Diego, Sky Zone LLC, SZ Chula Vista, LLC, and Sky Zone Ventures, LLC (collectively 'Sky Zone')'s demurrer is OVERRULED.

Defendants' motion to strike is GRANTED in part.

Demurrer A demurrer shall be sustained if the pleading 'does not state facts sufficient to constitute a cause of action.' (Code Civ. Proc., § 430.10, subd. (e).) To test the sufficiency of a cause of action, the court treats as true 'all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.' (Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010.) The court may also consider matters that have been judicially noticed. (Id.) The court shall give the complaint a 'reasonable interpretation, reading it as a whole and its parts in their context.' (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Here, Defendants demur to all three causes of action in the first amended complaint. As to the first cause of action for negligence/gross negligence, Defendants contend that Plaintiff Ashraf Abbas has failed to allege a statutory basis for gross negligence, and that the cause of action is uncertain because it combines negligence and gross negligence. The court disagrees. As Defendants concede, the cause of action properly pleads negligence, and the legal conclusion of 'gross negligence' is supported by sufficient facts to apprise Defendants of the basis for Plaintiff's eventual opposition to Defendants' potential (and likely) waiver and assumption of risk defenses. The absence of a statutory basis for 'gross negligence' clarifies that no such claim is being brought; the cause of action is not uncertain.

Accordingly, the demurrer is overruled as to the first cause of action.

As to the second and third causes of action, for strict product liability (design defect and failure to warn), Sharufa v. Festival Fun Parks, LLC (2020) 49 Cal.App.5th 493, is controlling, and the court is persuaded that it offers the most analogous factual and legal analysis to the situation in this case. Plaintiff's allegation that 'Defendants designed the trampoline park with the primary object of delivering to Plaintiff and the general public the use of various product, including the Warped Wall,' (FAC, ¶ 30), is sufficient to raise, for pleading purposes, the factual issue of 'whether the primary objective of the transaction between [Plaintiff] and [Defendants] was to deliver the use of a product or service.' (Sharufa v. Festival Fun Parks, LLC, supra, 49 Cal.App.5th at p. 502.) Defendant's argument that its park primarily provides a service akin to a gym not only relies on facts outside the pleadings, but also does nothing more than Calendar No.: Event ID:  TENTATIVE RULINGS

3031657  12 CASE NUMBER: CASE TITLE:  ABBAS VS SD FLY VENTURES LLC [IMAGED]  37-2023-00021510-CU-PO-CTL raise a factual dispute regarding such purpose. Adjudication of this kind of fact dispute is improper at the pleading stage.

Accordingly, the demurrer is overruled as to the second and third causes of action.

Motion to Strike A court may strike 'any irrelevant, false, or improper matter inserted in any pleading.' (Code Civ. Proc., § 436, subd. (a).) An improper claim for punitive damages can be stricken. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 163-64.) Punitive damages are not favored and are generally granted only 'with the greatest caution.' (Dyna-Med, Inc. v. Fair Employment and Housing Comm'n (1987) 43 Ca1.3d 1379, 1392.) A claim for punitive damages must also be pled with specificity; conclusory allegations unsupported by facts showing malicious, fraudulent, or oppressive intentions will not suffice. (G.D.

Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 32-33; Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-42.) Punitive damages are available only in non-contract actions 'where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.' (Code Civ. Proc., § 3294, subd. (a). Facts that, if true, would demonstrate mere negligence or only recklessness do not warrant an award of punitive damages. (Johns-Mansville Sales Corporate Private Carriage v. Workers Comp.

Appeals Bd. (1979) 96 Cal.App.3d 923, 931.) Even gross negligence is not sufficient. (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210-11.) Here, the FAC lacks the requisite specific, non-conclusory factual allegations of reprehensible conduct that would support a claim for punitive damages. Plaintiff's allegation 'on information and belief' that Warped Wall attractions at Defendants' other parks had caused injury in a manner similar to Plaintiff's injury is neither specific nor definite enough to sufficiently apprise Defendants of the basis for Plaintiff's claim. Plaintiff's allegations that Defendants had in place policies and procedures that they then ignored are severely lacking in the degree of specificity required to make a claim for punitive damages. Overall, the allegations do not establish conduct by Defendants that rises to the kind of despicable conduct necessary to state a claim for punitive damages.

However, the court is not inclined to strike the references to 'gross negligence' or the use of the conclusory words 'malice,' 'despicable,' 'willful,' or 'knowing,' given the above decision to overrule Defendants' demurrer as to the first cause of action.

Accordingly, Defendants' motion to strike is granted as to the request and prayer for punitive damages (FAC, ¶ 36, and Prayer for Relief, ¶ B) are stricken. Plaintiff will be given leave to amend his complaint to add additional specific facts that might support a claim for punitive damages.

Plaintiff has 30 days from entry of this order to amend his complaint.

The minute order is the order of the court.

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