18-CIV-05321 CARLOS ALFARO, ET AL. VS. JOHN HENDERSON, ET AL.

CARLOS ALFARO JOHN HENDERSON
JOEL H. SIEGAL MICHAEL K. BUDRA

DEMURRER TENTATIVE RULING:

Defendant HENDERSON’s demurrer is SUSTAINED against the entire complaint. The Complaint fails to state a cause of action as to Plaintiff LOPEZ. Plaintiff LOPEZ does not allege that she has standing to sue for loss of consortium or negligent infliction of emotional distress.

A. Loss of Consortium. Loss of consortium damages are available only to a married spouse of the injured plaintiff or to his or her registered domestic partner. (CACI 3920; Fam. Code sect. 297.5, subd. (c). Plaintiff’s reliance on the Butcher case is unpersuasive; the Supreme Court rejected Butcher for the proposition cited by Plaintiff. (See Elden v. Sheldon (1988) 46 Cal.3d 267, 277, 279-80.) Plaintiff LOPEZ does not allege that she is the spouse or registered domestic partner of Plaintiff ALFARO. Plaintiff LOPEZ therefore fails to allege standing to claim loss of consortium damages.

B. Negligent Infliction of Emotional Distress. To claim damages for negligent infliction of emotional distress, a plaintiff must be related to the injured victim. (Thing v. La Chusa (1989) 48 Cal. 3d 644, 667–68; see also id. at 668 n.10 (recovery limited to “relatives residing in the same household, or parents, siblings, children, and grandparents of the victim”).) Plaintiff LOPEZ has not alleged that she is related to Plaintiff ALFARO by blood or marriage; she fails to allege standing to sue for negligent infliction of emotional distress. Plaintiff’s reliance on Mobaldi v. Regents of University of Calif. (1976) 55 Cal.App.3d 573, 582 is unpersuasive. The Mobaldi case, on the issue of standing, has been rejected by the California Supreme Court. (See Elden v. Sheldon (1988) 46 Cal. 3d 267, 272– 77.)

Plaintiff LOPEZ is granted leave of court until February 25, 2019 to file and serve a First Amended Complaint that alleges facts to support standing in this action.

Plaintiff’s counsel failed to engage in the mandatory meet-and-confer process set forth in Code of Civil Procedure section 430.41. The Court directs Plaintiff’s attorneys, Joel Siegal and the law firm of Siegal & Richardson LLP, to participate in the meet-and-confer process set forth in section 430.41 in the future, in this case and all other cases. This demurrer likely could have been avoided if Plaintiff’s counsel had complied with the statute.