Minute Order

Cal. Super. - 6th Dist.April 1, 2021

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Tori Moses vs Hyatt Corporation et al Hearing Start Time: 9:00 AM 21CV381458 Hearing Type: Motion: Strike Date of Hearing: 02/03/2022 Comments: 4 Heard By: Takaichi, Drew C Location: Department 2 Courtroom Reporter: - No Court Reporter Courtroom Clerk: Farris Bryant Court Interpreter: Court Investigator: Parties Present: Future Hearings: Exhibits: - Portions of the First Amended Complaint by Def Lusardi Construction Company (Gabriella S. Burden) The following attorney(s) appear via CourtCaII: Howard A. Weber for Defendant(s), Hyatt Corporation; Hyatt Centric Mountain View Khachatur Ayvazyan For: P|aintiff(s), Tori Moses Gabriella S. Burden for Defendant(s), Lusardi Construction Company and Palmetto Hospitality Of Mountianview LLC et al Tentative Ruling is contested by Defendant, OTO Development. LLC and Palmetto Hospitatlity only to the fact that Defendant OTO Development was excluded from the tentative ruling. Matter is heard/argued. The Tentative Ruling is adopted with the requested amendment of including Defendant, OTO Development in the final Court's order. See below. Calendar line 3-4 Case Name: Moses v. Hyatt Corp., et al. Case No.2 21CV381458 According to the allegations ofthe first amended complaint ( FAC ), on August 7, 2020, plaintiff Tori D. Moses ( Plaintiff ) was a hotel guest at defendant Palmetto Hospitality of Mountain View, LLC d/b/a Hyatt Centric Mountain View ( Palmetto ), located at 509 San Antonio Road in Mountain View, owned and operated by defendant Hyatt Corporation ( Hyatt ). (See FAC, 17.) Defendant Lusardi Construction Company ( Lusardi ) was the general contractor retained to construct, design and develop the hotel rooms at Palmetto. (See FAC, 11.) While staying at the hotel, after taking a shower, Plaintiff slid the tempered glass shower door when it suddenly exploded, shattering over Plaintiff s body, causing Plaintiff to fall to the ground and to sustain Printed: 2/3/2022 02/03/2022 Motion: Strike - 21CV381458 Page 1 of 5 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER multiple lacerations and cuts to her wrists, hands, fingers, legs and feet. (See FAC, 24.) Plaintiff necessitated medical treatment and was thereafter transported to Stanford Health Care s Emergency Department. (See FAC, 27-28.) The FAC includes photographs of the bloody towels and shattered glass at the scene of the incident, photographs of lacerations on her feet and wrist, bloody towels and a bloodied flip flop, presumably taken at Stanford Health Care s Emergency Department, as well as photographs of a different incident at a different hotel where a person was bloodied by an exploding glass shower door. (See FAC, 1, 2, 27-29, fn. 2- 3.) Defendants Palmetto and Lusardi separately move to strike the post-accident photos and news articles of the unrelated incident, as well as portions of the complaint supporting punitive damages, restitution and disgorgement, and attorney s fees. Request for judicial notice In support of their motions to strike, the moving defendants request judicial notice of the FAC. The request forjudicial notice is GRANTED. (See Evid. Code 452, subd. (d).) Post-accident photos Palmetto and Lusardi move to strike the post-accident photos pursuant to Code of Civil Procedure section 436, subdivision (a), which states that [t]he court may [s]trike out any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc. 436, subd. (a).) Here, the photos are alleged to depict the scene of the incident and Plaintiff s injuries. (See FAC, 1, fn. 2 (stating that [t]he photos depict the scene of the incident, that occurred on August 7, 2020, which gives rise to Plaintiff s action, resulting from the glass shower in her hotel room at the Hyatt Centric Mountain View having shattered and exploded onto Plaintiff, thereby causing severe bodily injuries and emotional distress, among other things ), 23, fn. 4 (stating that [t]his photo depicts the layout of the hotel room guest restroom and tempered glass shower in the Hyatt Centric Hotel room in which Plaintiff was injured ), 27, fn. 5 (stating that [d]epicted above is the shower glass that shattered and exploded onto Plaintiff, thereby injuring Plaintiff, while she was hotel guest [sic] at the Hyatt Centric on August 7, 2020 ), 29, fn. 6 (stating that [d]epicted above is the are [sic] photos of Plaintiff s injuries, sustained while she was hotel guest [sic] at the Hyatt Centric on August 7, 2020, immediately after the hotel glass shower exploded and shattered onto Plaintiff s body, thereby causing bodily injuries, permanent scars, and nerve damages [sic], amongst other injuries ).) These photos are neither irrelevant nor false. Thus, the question is whether they are improper. Citing County of San Joaquin v. Budd (1892) 96 Cal. 47, Palmetto and Lusardi argue that [t]he photos are contained within the Complaint, a pleading, and do not add to the ultimate and issuable facts alleged in the Complaint [t]herefore, they must be stricken. (Defs. reply in support of motion to strike ( reply ), pp.2:9-26, 321-8.) In County of San Joaquin, supra, on January 27, 1891, a courthouse was erected in Stockton, and certain judges of the Superior Court ofthe County of San Joaquin took possession of certain rooms of the courthouse that were designated on the building plans as judge s chambers. (Id. at p.49.) The County assigned the rooms to the district attorney; however, the judges refused to surrender possession of the rooms. (Id. at p.50.) County filed an action for ejectment; the trial court sustained a demurrer to the complaint, and at the same time, granted a motion to strike a portion of the complaint pertaining to County s assignment and the judges refusal to surrender possession, and thereafter entered judgment in favor of the defendants. (Id. at Printed: 2/3/2022 02/03/2022 Motion: Strike - 21CV381458 Page 2 of 5 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER pp.49-50.) The California Supreme Court reversed the judgment. However, the County of San Joaquin court noted that [t]he court did not err in striking from the complaint the paragraph above quoted [i]t was merely the statement of a matter which might be proper to be shown upon the trial of the action, but it added nothing to the ultimate and issuable facts alleged in the complaint. (Id. at p.50.) It appears that Palmetto and Lusardi interpret this statement as one that mandates the striking of any allegation that add nothing to the ultimate and issuable facts alleged in the complaint (see reply, p.2:21 (stating that [t]herefore, they must be stricken ) (emphasis added)),' however, section 436, subdivision (a) explicitly states that the court may, upon motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper [s]trike out any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc. 436, subd. (a) (emphasis added).) Ordinarily, the word may connotes a discretionary or permissive act; the word shall connotes a mandatory or directory duty. (Woodbury v. Brown-Dempsey (2003) 108 Cal.App.4th 421, 433; see also Armando D. v. State Dept. of Health Services (2004) 124 Cal.App.4th 13, 25 (stating same); see also In re Marriage of Fini (1994) 26 Cal.App.4th 1033, 1039 (stating that [i]t is a well established rule of statutory construction that the word shall connotes mandatory action and may connotes discretionary action ); see also In re Marriage of Lusby (1998) 64 Cal.App.4th 459, 471 (stating same); see also County of Lake v. Palla (2001) 94 Cal.App.4th 418, 424 (stating same); see also County of Orange v. Bezaire (2004) 117 Cal.App.4th 121, 129 (stating that the word may is permissive ).) Here, while the photos may be subject to an Evidence Code section 352 objection at tria|,that is an issue for the trial judge. The Court will not use its discretion to strike the photos in paragraphs 1, 23, 27 and 29 of the FAC. The motions to strike the photos in paragraphs 1, 23, 27 and 29 of the FAC is DENIED. News articles Palmetto and Lusardi also move to strike paragraph 2 s reference to a separate incident at a different hotel in Newport Beach and news articles thereto. Here, unlike the post-accident photos, despite an allegation that Defendants, and each ofthem, have been on actual notice of its faulty glass showers since 2018, the screenshots of news articles regarding an incident at a different location, at a different time does not appear relevant to the instant incident. The FAC does not allege facts supporting how each of the defendants were on actual notice of an incident that took place two years earlier about 400 miles away. In opposition, Plaintiff argues that the allegation is an ultimate fact, and that she need not allege any further facts. However, while actual notice may be an ultimate fact, here, Plaintiff avers specific facts with regards to such notice. [|]t is possible that specific allegations will render a complaint defective when the general allegations, standing alone, might have been sufficient. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1236; see also Chen v. PayPal, Inc. (2021) 61 Cal.App.5th 559, 571 (stating same); see also Medical Marijuana, Inc. v. ProjectCBD.com (2016) 6 Cal.App.5th 602, 619 (stating same); see also Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1352 (Sixth District, stating same).) At issue is not just the allegation that each of the defendants had actual notice, but the specific allegation that each of the defendants had actual notice based on a separate incident, or news reports of a separate incident. The FAC does not allege facts that state or show that each of the defendants have actual notice based on that separate incident. The motions to strike paragraph 2 from the FAC is GRANTED with 10 days leave to amend. Accordingly, paragraph 2 of the FAC is hereby stricken as to both Palmetto and Lusardi. Punitive damages Palmetto and Lusardi move to strike paragraph iii of the prayer seeking punitive damages. In opposition to Printed: 2/3/2022 02/03/2022 Motion: Strike - 21CV381458 Page 3 of 5 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER the motion, Plaintiff asserts that the First Cause of Action, which asserts Premises Liability and the Second Cause of Action for Negligence specifically allege that Defendants failed to properly maintain their hotel rooms and showers when Defendants knew that the glass doors for the shower were defective, and by failing to do so Defendants acted maliciously and oppressively with the wrongful intention of injuring Plaintiff. (Opposition, pp.5:24-27, 6:1.) Plaintiff also argues that section 3294 provides for punitive damages for unintentional negligent conduct. (Id. at p.6z9.) Plaintiff is mistaken. [M]ere negligence, which -- even if gross, or reckless -- cannot justify punitive damages. (Krusi v. Bear, Stearns & Co. (1983) 144 Cal.App.3d 664, 679; see also Central Pathology Service Medical Clinic, Inc. v. Super. Ct. (Hull) (1992) 3 Ca|.4th 181, 191 (stating that [t]here are, however, few situations in which claims for punitive damages are predicated on mere negligence or a conscious disregard of the rights or safety of others and in which no intentional torts are alleged ); see also Delaney v. Baker (1999) 20 Cal.4th 23, 39 (stating same); see also Davis v. Hearst (1911) 160 Cal. 143, 172 (stating that the truth is that mere negligence or mere carelessness can never be evidence of malice in fact [i]n the same act they cannot even co-exist [m]a|ice necessarily imports an evil purpose [n]eg|igence necessarily implies an absence of intent or purpose ).) The FAC does not allege facts warranting the imposition of punitive damages. The motions to strike paragraph iii ofthe prayer is GRANTED with 10 days leave to amend. Paragraph iii of the prayer of the FAC is hereby stricken as to both Palmetto and Lusardi. Restitution, disgorgement, and attorney s fees Palmetto and Lusardi move to strike paragraphs v and vi seeking restitution, disgorgement and attorney s fees from the prayer of the FAC, asserting that there are no facts that would support such an award. Indeed, the FAC does not allege any facts suggesting what restitution would be necessary, for what Plaintiff would seek disgorgement and what the basis for attorney s fees is. In opposition, Plaintiff argues that [b]ecause Defendants have not defaulted and will Answer once the Court overrules any Motion to Strike, the contents of Plaintiff s prayer are no longer relevant. (Opposition, p.725-24.) This argument is perplexing, but regardless, it is without merit. (See Code Civ. Proc. 1021 (stating that [e]xcept as attorney s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties ).) The motions to strike paragraphs v and vi of the prayer is GRANTED with 10 days leave to amend. Paragraphs v and vi of the prayer of the FAC is hereby stricken as to both Palmetto and Lusardi. The Court will prepare the Order. Printed: 2/3/2022 02/03/2022 Motion: Strike - 21CV381458 Page 4 of 5 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Printed: 2/3/2022 02/03/2022 Motion: Strike - 21CV381458 Page 5 of 5