Judge: William D. Claster, Case: 22-01290687, Date: 2023-06-16 Tentative Ruling
Defendant Max R.
Lehfeldt, MD’s Demurrer
Defendant Max R. Lehfeldt, MD’s Motion to Strike
MOTION TO STRIKE
Defendant Max Lehfeldt moves to strike portions of the first amended complaint (FAC) of Plaintiff Lucia Tapias Millian. The motion is GRANTED IN PART AND DENIED IN PART. Specifically:
The Court has not considered Plaintiff’s citation to unpublished decisions of the California Superior Courts. “[A] written trial court ruling has no precedential value.” (Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, 831.)
I. Standard of Review
A party may move to strike “any irrelevant, false, or improper matter inserted in any pleading” or “all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (CCP § 436.) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (CCP § 437.)
II. Items 1-6
“A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken.” (CRC 3.1322(a).) Items 1-6 of Lehfeldt’s notice of motion violate this Rule of Court. All six set forth an entire identical paragraph (repeated in six locations in the FAC) and state that Lehfeldt seeks to strike “portions” of the paragraph. The notice of motion does not identify which portions of each paragraph Lehfeldt seeks to strike. Because the notice fails to comply with the Rules of Court, the motion is denied as to items 1-6.
III. Prejudgment Interest (Item 7)
Lehfeldt moves to strike Plaintiff’s prayer for prejudgment interest, arguing that the damages will not be ascertainable until the jury’s verdict is announced. “Damages are certain or capable of being made certain by calculation, or ascertainable, for purposes of Civil Code section 3287, subdivision (a) if the defendant actually knows the amount of damages or could compute that amount from readily available information. [Citation.] In contrast, damages that must be determined by the trier of fact based on conflicting evidence are not ascertainable.” (Bullock v. Philip Morris USA, Inc. (2011) 198 Cal.App.4th 543, 573-74.)
Lehfeldt contends Plaintiffs’ damages are not certain or capable of being made certain at this time, and instead must be determined by the trier of fact. He is correct, and Plaintiff concedes as much. But she argues that in Bullock—a products liability action like the one at bar—the Court of Appeal affirmed an award of prejudgment interest accruing from the date of the jury’s verdict. Bullock explains, “Damages determined by a verdict are made certain as of the date that the verdict is entered, so prejudgment interest begins to accrue on that date.” (Id., at p. 574.) Furthermore, as Plaintiff points out, Civil Code § 3288 gives the jury discretion to award interest “in an action for the breach of an obligation not arising from contract.”
Following Bullock and § 3288, if Plaintiff prevails, a jury will have the discretion to award her interest from the date of the verdict. So limited, Plaintiff’s prayer for prejudgment interest is proper, and Lehfeldt’s motion is denied.
IV. Costs and Fees (Item 8)
Lehfeldt moves to strike the prayer for “costs including reasonable attorneys’ fees, court costs, and other litigation expense.” His request is overbroad. Prevailing parties are entitled to recover their costs unless a statute provides otherwise (CCP § 1032(b)), and Lehfeldt identifies no statute that would bar Plaintiff from recovering her costs if she prevails. Furthermore, court costs and certain litigation expenses are expressly recoverable under CCP § 1033.5. The motion is denied to the extent Plaintiff prays for costs generally, or for court costs and litigation expenses specifically.
Attorneys’ fees are another matter. A court may not award attorneys’ fees to a prevailing party unless provided for by statute or contract. (CCP § 1021.) The FAC identifies no statute or contract that provides for a fee award. In opposition, Plaintiff cites only an unpublished Superior Court case for the proposition that a fee award might be appropriate here. Absent a statute or contract allowing for the recovery of fees, the motion is granted as to attorneys’ fees.
Because this is the first time this defect has been identified, Plaintiff is granted leave to amend.
DEMURRER
Defendant Max Lehfeldt demurs to the second, third and fifth causes of action in Plaintiff Millian’s FAC. The demurrer is SUSTAINED. As to the second and third causes of action, leave to amend is granted, with July 3, 2023 the deadline for the filing of an amended complaint. As to the fifth cause of action, leave to amend is denied.
I. Breach of Express Warranty
Plaintiff does not contest Lehfeldt’s demurrer to the fifth cause of action for breach of express warranty. (Opp. at p. 1, fn. 1.) This demurrer is therefore sustained without leave to amend.
II. Strict Liability
Plaintiff underwent surgery in which the SERI Mesh product was implanted in her breast tissue. She contends the SERI Mesh was defective and caused injuries. The main defendants in this action are companies that allegedly manufactured, distributed or sold SERI Mesh. Lehfeldt, the demurring party, was allegedly a paid consultant for the Allergan defendants. Both the second and third causes of action seek to hold the defendants strictly liable for Plaintiff’s claimed injures.
Lehfeldt contends strict liability is inappropriate because (1) he is not in the vertical chain of distribution for SERI Mesh, and (2) to the extent strict liability is extended to SERI Mesh’s wider “stream of commerce,” the policy concerns underlying the extension of strict liability do not apply here. Citing Bay Summit Community Assn. v. Shell Oil Co. (1996) 51 Cal.App.4th 762, Plaintiff argues strict liability is appropriate if (1) the defendant received a direct financial benefit from sales of the product, (2) the defendant was integral to the overall business enterprise such that he was integral in bringing the product to market, and (3) the defendant controlled or had substantial ability to influence manufacturing or distribution. She argues the FAC sufficiently alleges all three factors identified in Bay Summit.
Plaintiff’s argument fails at this stage because her opposition depends heavily on extrinsic facts the Court cannot consider on demurrer. For example, in arguing she has sufficiently alleged that Lehfeldt directly profited from the sale of SERI Mesh, Plaintiff cites not only her allegation that Lehfeldt was a paid consultant for Allergan, but also allegations about the nature of his compensation plan and his status as an Allergan shareholder. The former allegation is set forth in the FAC, but the latter two come from the complaint in a different case, Knecht v. Lehfeldt, LASC No. BC641979, attached to the Ephron Decl. as Ex. 1.
Similarly, Plaintiff’s discussion about the purpose and conduct of the SURE-001 study that preceded the marketing of SERI Mesh—a study allegedly headed by Lehfeldt—is drawn not from the FAC, but from a deposition taken in Harben v. Allergan USA, Inc., E.D.Pa. No. 2:18-cv-01833. (Ephron Decl., Ex. 3.) This goes to the second factor identified in Bay Summit, whether Lehfeld was instrumental in bringing SERI Mesh to market.
Plaintiff’s reliance on extrinsic evidence in her opposition is equivalent to a concession that the FAC does not sufficiently allege strict liability against Dr. Lehfeldt. The demurrer is therefore sustained. The Court grants leave to amend for Plaintiff to address this defect.