Judge: Michael E. Whitaker, Case: 22STCV20016, Date: 2023-04-20 Tentative Ruling

Case Number: 22STCV20016    Hearing Date: April 20, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiffs Yaroslava Voronkov (Plaintiff Yaroslava), Daria Lukonina (Plaintiff Lukonina) and Dimitry Voronkov (Plaintiff Voronkov) (collectively, Plaintiffs) sued Defendants Little Bee Day Care, Inc. (Little Bee), Alina Stolyarova (Stolyarova) and Evgeny Nagovitsyn (Nagovitsyn) as the Trustee of Nagovitsyn Family Trust (collectively, Defendants) based on a leg injury Plaintiff Yaroslava allegedly sustained while she was under the care of Defendants at Little Bee. 

Defendants demur to Plaintiffs’ Complaint.  Plaintiffs have not filed an opposition.

The Court continued the hearing on the demurrer twice to allow Little Bee, a corporation, to retain counsel, and for Defendants to meet and confer with Plaintiffs regarding the issues raised in the demurrer.  On February 28, 2023, Defendants filed substitutions of attorney indicating that Armen Papazian has been retained to represent Defendants including Little Bee.  Further, on April 6, 2023, Defendants filed with the court a declaration detailing their meet and confer efforts with Plaintiffs regarding the demurrer.

ANALYSIS

1. DEMURRER

Defendants demurrer to Plaintiffs’ complaint which states causes of action for negligence and negligent infliction of emotional distress (NIED), arguing that Plaintiffs’ claims fail to state sufficient facts to constitute a cause of action, and are uncertain.

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.) 

A demurrer for uncertainty will be sustained only where the pleading is so bad that the responding party cannot reasonably respond - i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what claims are directed against him or her. (Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.) Where a demurrer is made upon the ground of uncertainty, the demurrer must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers. (See Fenton v. Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809.)

a.     Negligence – First Cause of Action

In the first cause of action, Plaintiff Yaroslava asserts a negligence claim against Little Bee and Stolyarova.  “The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 834 [cleaned up].)  Here, Plaintiffs allege in pertinent part the following:

• Since March of 2021, plaintiffs DIMITRY VORONKOV (DIMITRY) and DARIA LUKONINA DIMITRY(DARIA) had enrolled their 16-month-old daughter YAROSLAVA VORONKOV (YAROSLAVA) in LITTLE BEE daycare. LITTLE BEE is the business name of LITTLE BEE DAY CARE, INC. which is owned and operated by ALINA STOLYAROVA (STOLYAROVA). STOLYAROVA is the on-site manager of the day-to-day operations for the day care center.
• In the morning of April 6, 2021, DIMITRY dropped off YAROSLAVA at LITTLE BEE. At 5:45 P.M on the same day, when DARIA went to pick up YAROSLAVA STOLYAROVA came out of the facility carrying YAROSLAVA in her arms. YAROSLAVA was crying and could not walk. STOLYAROVA told DARIA that YAROSLAVA had not eaten anything that day and did not take a nap.
• That night, YAROSLAVA was still crying non-stop and was still unable to walk or move. DIMITRIY and DARIA texted STOLYAROVA to ask her what had happened to their daughter at the daycare. At about 8:45 PM, STOLYAROVA told the parents that at approximately 10:20 AM, their daughter had injured her right leg on the playground. This was the first time that anybody from LITTLE BEE told DIMITRY or DARIA that their toddler was injured while under the care of LITTLE BEE. Not only defendants LITTLE BEE STOLYAROVA did not tell the parents that their child was injured, nobody provided any medical attention on the premises, nor called any outside health provider to attend to YAROSLAVA.
• On April 7, 2021, DMITIRY and DARIA took YAROSLAVA to Kaiser Urgent Care. The medical examination revealed that YAROSLAVA's right leg was fractured in two places. YAROSLAVA could not walk for six weeks and DMITIRY and DARIA had to carry her throughout the entire day.
• Defendants LITTLE BEE and STOLYAROVA and DOES 1-10, and each one of them, had a duty to safeguard STOLYAROVA by supervising her and creating a safe environment for the children they were taking care of.
• Defendants LITTLE BEE and STOLYAROVA and DOES 1-10, and each one of them, had a duty to seek immediate medical help for YAROSLAVA when noticing that she had suffered an injury.
• LITTLE BEE and STOLYAROVA and DOES 1-10 were negligent when they breached their duty of supervising YAROSLAVA, and not seeking medical attention, and thus instead they allowed YAROSLAVA to suffer for 7 and a half hours with a fractured leg.
• As a result of said negligent acts of LITTLE BEE, STOLYAROVA and DOES 1-10, and each one of them, YAROSLAVA suffered and continues to suffer physical injuries, all to her general damage for which she should be compensated in an amount to be determined according to proof.
• As a further result of said acts of Defendants, and each of them, YAROSLAVA incurred medical, hospital, and related expenses in amounts to be determined according to proof, but within the jurisdiction of this honorable court.

(Complaint, ¶¶ 10-14, 16-20.)

As to Defendants’ argument that the above allegations are uncertain, the Court finds Defendants have failed to distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears by reference to page and line numbers.  Further, the Court finds that the first cause of action is not so bad that Defendants cannot reasonably determine what issues must be admitted or denied or what claims are directed against them. 

Further, the Court finds Plaintiff Yaroslava has stated facts sufficient to assert a negligence cause of action against Little Bee and Stolyarova. 

Finally, regarding Defendants arguments attacking the veracity and accuracy of Plaintiffs allegations, a demurrer does not challenge the veracity of the factual allegations since the Court deems a plaintiff’s allegations as true without regard to any evidence.  (See Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998.)

Accordingly, the Court overrules Defendants’ demurrer to the first cause of action for negligence against Little Bee and Stolyarova.

b.     Negligent Infliction of Emotional Distress (NIED)

With respect to the second cause of action, Plaintiffs Lukonina and Voronkov allege that Little Bee and Stolyarova negligently inflicted emotional distress. 

Negligent infliction of emotional distress (“NIED”) “[i]s a tort in negligence, and the plaintiff must establish the elements of duty, breach of duty, causation, and damages. The distinction between the bystander and the direct victim cases is found in the source of the duty owed by the defendant to the plaintiff. Bystander claims are typically based on breach of a duty owed to the public in general, whereas a right to recover for emotional distress as a direct victim arises from the breach of a duty that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of the defendant's preexisting relationship with the plaintiff.” (Moon v. Guardian Postacute Services, Inc. (2002) 95 Cal.App.4th 1005, 1009 [cleaned up].) “In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.” (Thing v. La Chusa (1989) 48 Cal.3d 644, 647.)

Plaintiffs Lukonina and Voronkov allege in pertinent part the following:

• Plaintiffs reallege and incorporate by reference the allegations in paragraph 1 through 2.
• Defendants LITTLE BEE and STOLYAROVA and DOES 1-10, and each of them, had a duty to safeguard STOLYAROVA by supervising her and creating a safe environment for the children they were taking care of.
• Defendants LITTLE BEE and STOLYAROVA and DOES 1-10, and each of them had a duty to seek immediate medical help for YAROSLAVA when noticing that she had an injury.
• LITTLE BEE and STOLYAROVA and DOES 1-10 and each of them also had a duty to immediately attend to any injuries sustained by children under their supervision.
• LITTLE BEE and STOLYAROVA had an additional duty to notify DIMITRY and DARIA of the injuries their daughter had sustained.
• Instead, LITTLE BEE and STOLYAROVA and DOES 1-10 breached their duties to DIMITRY and DARIA by not seeking medical attention for YAROSLAVA and by withholding the information about her injuries from her parents DIMITRY and DARIA and allowing the parents to witness their child pain and suffering for 7 hours.
• As a result of said negligent acts of LITTLE BEE, STOLYAROVA and DOES 1-10, and each one of them, DIMITRY and DARIA suffered and continues to suffer emotional injuries, in an amount to be determined according to proof.

(Complaint, ¶¶ 21-27.)

            The Court finds Plaintiffs have failed to present sufficient facts to establish they were “present at the scene of the injury-producing event at the time it occurs and [were] then aware that it [was] causing injury to the victim.”  (Thing, supra, 48 Cal.3d at p. 647.)  Instead, Plaintiffs specifically allege that the injury-producing event happened while at preschool when Plaintiff Yaroslava was under the care of Little Bee and Stolyarova.  Accordingly, the Court sustains Defendants’ demurrer to the second cause of action for NIED.

c.      Trust Defendant

Defendants demur to the third cause of action for negligence as to Nagovitsyn.  Defendants contend that Plaintiffs have improperly named Evgeny Nagovitsyn, as the Trustee of Nagovitsyn Family Trust, as a defendant.  Defendants argue, correctly, that a trust can neither sue nor be sued in its own name, but rather the trustee is the real party interest in litigation. (See Presta v. Tepper (2009) 179 Cal.App.4th 909, 914.)  But the Court notes that such grounds are appropriate for motion to strike, not grounds for demurrer.  (See Code Civ. Proc., § 436, subd. (b) [the court may strike “all or any part of any pleading not drawn or filed in conformity with the laws of this state”]; cf. Code Civ. Proc., § 430.10 [enumerating grounds for demurrer].) 

Nevertheless, the Court finds that Plaintiffs have sufficiently named Nagovitsyn in his or her capacity as trustee of the trust, as opposed to naming the Nagovitsyn Family Trust as a defendant.  Accordingly, the Court overrules Defendants’ demurrer to the third cause of action as to Nagovitsyn.  

2. LEAVE TO AMEND

A plaintiff has the burden of showing in what manner the complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v. Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) A plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v. Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, the burden is on Plaintiffs to establish that the complaint can be amended successfully. However, because Plaintiffs have not opposed the demurrer, they have failed to meet their burden.

CONCLUSION AND ORDER

Therefore, the Court sustains in part Defendants’ demurrer to the second cause of action for NIED without leave to amend, and overrules in part Defendants’ demurrer as to the first and third causes of action for general negligence.  Further, the Court orders Defendants to file and serve an answer to the complaint on or before May 11, 2023. 

Defendants shall provide notice of the Court’s ruling and file a proof of service of such.