Judge: Melvin D. Sandvig, Case: 24CHCV02702, Date: 2024-11-14 Tentative Ruling

Case Number: 24CHCV02702    Hearing Date: November 14, 2024    Dept: F47

Dept. F47

Date: 11/14/24

Case #24CHCV02702

 

DEMURRER & MOTION TO STRIKE TO THE ORIGINAL COMPLAINT

 

Demurrer & Motion to Strike filed on 10/14/24.

 

MOVING PARTY: Defendant Magic Mountain LLC

RESPONDING PARTY: Plaintiffs Serene Fakhouri; Cassandra Fakhouri and Reyan Fakhouri

NOTICE: ok

 

Demurrer is to the 3rd cause of action:

            1.  General Negligence

            2.  Premises Liability

            3.  Negligent Infliction of Emotional Distress

            4.  Strict Products Liability – Manufacturing Defect

            5.  Strict Products Liability – Design Defect

            6.  Strict Products Liability – Failure to Warn

 

RELIEF REQUESTED: An order striking portions of Plaintiffs’ complaint regarding punitive and exemplary damages.

 

RULING: The demurrer is overruled.  The motion to strike is granted with 30 days leave to amend. 

 

SUMMARY OF FACTS & PROCEDURAL HISTORY

 

This action arises out of injuries allegedly sustained by Plaintiffs Serene Fakhouri (Serene); Cassandra Fakhouri (Cassandra) and Reyan Fakhouri (Reyan) (collectively, Plaintiffs) as a result of riding the Riddler’s Revenge roller coaster at Defendant Magic Mountain, LLC’s (Defendant) theme park.  Reyan is the mother of Serene and Cassandra.  (Complaint ¶4). 

 

On 7/24/24, Plaintiffs visited Defendant’s amusement park and rode the Riddler’s Revenge roller coaster.  (Complaint ¶16).  Plaintiffs allege that while on the ride, their heads and bodies were jerked around like rag dolls to the point where they all sustained traumatic brain injuries.  (See Complaint ¶¶19-21).  Plaintiffs allege that Serene, who was a minor at the time, sustained an acute stroke as a result of the ride.  Id.  Additionally, Plaintiffs allege that when they got off the ride, all three exhibited signs consistent with post-concussion syndrome.  Id.  Serene also exhibited left facial droop and slurred speech.  Id.  Plaintiffs allege that they each perceived the harm and injuries suffered by one another and were physically present at the scene.  (Complaint ¶¶41-42). 

 

On 7/29/24, Plaintiffs filed this action against Defendant and others alleging causes of action for: (1) General Negligence, (2) Premises Liability, (3) Negligent Infliction of Emotional Distress, (4) Strict Products Liability – Manufacturing Defect, (5) Strict Products Liability – Design Defect, and (6) Strict Products Liability – Failure to Warn.  After meet and confer efforts failed to resolve the issues Defendant had with Plaintiffs’ complaint, on 10/14/24, Defendant filed and served the instant demurrer to the 3rd cause of action for Negligent Infliction of Emotional Distress and the instant motion to strike which seeks to strike allegations regarding punitive and exemplary damages contained in Plaintiffs’ 4th(¶60), 5th (¶75), and 6th (¶93) causes of action and the prayer for relief (¶G).  Plaintiffs have opposed the demurrer and motion to strike and Defendants have filed replies to the oppositions.

 

ANALYSIS 

 

Demurrer

 

Plaintiffs’ 3rd cause of action for negligent infliction of emotional distress cause of action is based on their perception of the harm and injuries suffered by each other rather than their own harm and injuries which is the subject of the 1st cause of action for negligence.  (See Complaint ¶¶30, 41-42).  As such, this case is distinguishable from Belen (2021) 65 CA5th 1145, relied on by Defendant for the proposition that there is no separate cause of action for negligent infliction of emotional distress.  In Belen, the plaintiff was seeking to recover for her own emotional distress in a separate cause of action when she already had a negligence cause of action based on the same conduct.  Id. at 1165-1166.  In Ess (2002) 97 CA4th 120, also relied on by Defendant for the proposition that negligent infliction of emotional distress is not a separate cause of action, the plaintiff could not satisfy the requirements of making a claim under a bystander theory.  Id. at 126-127. 

 

To recover on a claim for negligent infliction of emotional distress under a bystander theory, the plaintiff must be closely related to the injury victim, the plaintiff must be present at the scene of the injury-producing event at the time it occurs and be aware that it is causing injury to the victim and as a result, the plaintiff must suffer serious emotional distress beyond that which would be anticipated in a disinterested witness.  Thing (1989) 48 C3d 644, 647.

 

The allegations in the complaint meet the foregoing requirements.  Plaintiffs have alleged they have either a mother/daughter or sibling relationship.  (Complaint ¶4).  Plaintiffs were all present at the scene of the injury-producing event.  (Complaint ¶¶16, 42).  Plaintiffs allege that they suffered serious emotional distress injuries as a result of perceiving the harm and injuries suffered by each other.  (Complaint ¶41).  With regard to a negligence based claim, at the pleading stage, Plaintiffs do not have to prove their case by alleging specific facts as to how they observed the other Plaintiffs being injured or how they were aware that the ride was causing injury to another Plaintiff at the time of the event. 

 

Motion to Strike

 

Punitive damages may be imposed where it is proven by clear and convincing evidence that a defendant has been guilty of oppression, fraud or malice.  Civil Code 3294.  Conclusory allegations unsupported by ultimate facts are insufficient to support a claim for punitive damages.  Blegen (1981) 125 CA3d 959, 963; Brousseau (1977) 73 CA3d 864; G.D. Searle & Co. (1975) 49 CA3d 22, 24, 27, 29, 32.

 

Here, Plaintiffs have not pled sufficient facts to support their conclusory allegations regarding punitive and exemplary damages.  (See Complaint ¶¶56, 71, 89).  For example, Plaintiffs do not allege how Defendant and its officers, directors or managing agents knew that the Riddler was defective and dangerous.  (See Complaint ¶¶57, 72, 90).

 

CONCLUSION

 

The demurrer is overruled.  The motion to strike is granted with 30 days leave to amend.  Given the liberal policy of allowing leave to amend and because this is only the original complaint, Plaintiffs are given the opportunity to try to cure the defects in their complaint regarding punitive and exemplary damages.    

 

The Court notes that Defendant has failed to electronically bookmark the exhibits attached to the moving papers in violation of CRC 3.1110(f)(4).  Counsel for the parties are warned that failure to comply with this rule in the future may result in matters being continued so that papers can be resubmitted in compliance with the rule, papers not being considered and/or the imposition of sanctions.