Case Number: BC629958 Hearing Date: August 22, 2017 Dept: SEC

OH v. TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA

CASE NO.: BC629958

HEARING: 08/22/17

JUDGE: RAUL A. SAHAGUN

#2

TENTATIVE ORDER

I. Defendants TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA; and CUSHMAN & WAKEFIELD MAMAGEMENT CORPORATION, CUSHMAN & WAKEFIELD OF CALIFORNIA, INC., and JRT REALTY GROUP, INC.’s demurrer to Plaintiffs’ second amended complaint is OVERRULED. C.C.P. § 430.10(e).

II. Defendants TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA; and CUSHMAN & WAKEFIELD MAMAGEMENT CORPORATION, CUSHMAN & WAKEFIELD OF CALIFORNIA, INC., and JRT REALTY GROUP, INC.’s motion to strike portions of Plaintiffs’ second amended complaint is GRANTED with 15 days leave to amend. C.C.P. §436.

Opposing Party to give Notice

Plaintiffs’ request for judicial notice is GRANTED. Cal. Ev. Code §452

Defendants TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA; and CUSHMAN & WAKEFIELD MAMAGEMENT CORPORATION, CUSHMAN & WAKEFIELD OF CALIFORNIA, INC., and JRT REALTY GROUP, INC.’s request for judicial notice is GRANTED. Cal. Ev. Code §452

This wrongful death/products liability action was filed by Plaintiffs LIN JOON OH and JUNG HEE OH, individually, and as co-successors-in-interest to JI HOON OH (“Decedent) on August 12, 2016. As alleged, on March 7, 2016, a fatal explosion and fire involving the highly flammable liquid KF-9008 occurred at a warehouse located at 10015 South Pioneer Boulevard, Santa Fe Springs, California (the “Premises”). Plaintiffs allege that Defendants were/are the owners, managing agents, lessors for the Premises. Decedent was employed by I.B.S Beauty, Inc., which was located at the Premises. Decedent was at work on the Premises when an explosion and fire involving KF-9008 occurred, ultimately causing Decedent’s death.

On June 12, 2017, Plaintiffs filed a Second Amended Complaint, asserting the following causes of action: (1) Negligence Per Se by Plaintiffs LIN JOON OH and HUNG HEE OH, individually and as co-successors-in-interest to JI HOON OH; (2) Wrongful Death based on Negligent Products Liability; (3) Wrongful Death by Plaintiffs LIN JOON OH and JUNG HEE OH in their individual capacities; (4) SURVIVAL ACTION; (5) STRICT PRODUCTS LIABILITY: Design Defect (Wrongful Death); (6) Strict Products Liability: Failure to Warn (Wrongful Death).

Defendants TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA; and CUSHMAN & WAKEFIELD MAMAGEMENT CORPORATION, CUSHMAN & WAKEFIELD OF CALIFORNIA, INC., and JRT REALTY GROUP, INC. (collectively “Landlord Defendants”) separately demur to the first, third, and fourth causes of action.

First Cause of Action – Negligence Per Se

The elements of a cause of action for negligence per se are as follows: (1) Defendant violated a statute, ordinance, or regulation of a public entity; (2) that violation caused an injury or death; (3) injury or death resulted from occurrence which the law was designed to prevent; and (4) person suffering the injury or death was one of the class of persons for whose protection the law was adopted. (see Randi W. v. Muroc Joint Unified School Dist. (1997) 14 Cal.4th 1066, 1088.)

Despite the Landlord Defendant’s arguments to the contrary, the Court finds that Plaintiffs have alleged sufficient facts in support of this cause of action for purposes of surviving demurrer (See SAC ¶¶ 34-42.) The Landlord Defendants’ arguments in support of their demurrers involve factual determinations inappropriate decided at this stage in the litigation. The demurrers to the first cause of action are overruled.

Third Cause of Action – Wrongful Death

The elements for the cause of action for wrongful death are the tort, i.e. negligence or other wrongful act, the resulting death, and the damages, consisting of the pecuniary loss suffered by the heirs. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256.) Thus, a cause of action for wrongful death is derivative of other causes of action.

For the reasons indicated above, Plaintiffs have sufficiently alleged a sufficient basis to state a claim for wrongful death. The demurrer to the third cause of action is overruled.

Fourth Cause Action – Survival Action

Here, Plaintiffs seek to incorporate the allegations of their negligence per se cause of action into their fourth cause of action. Again, Plaintiffs have sufficiently alleged a sufficient cause of action for negligence per se against the Demurring Defendants herein. Therefore, Plaintiffs have alleged an adequate basis to maintain a survival action against the Landlord Defendants.

The demurrer to the fourth cause of action is overruled.

Motion to Strike

Both the Landlord Defendants move to strike Plaintiffs’ claim for punitive damages. Punitive damages must be pled with specificity. Plaintiffs must allege specific facts showing that defendant’s conduct was oppressive, fraudulent, or malicious. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.) Here, Plaintiffs have failed to demonstrate that they are entitled to seek a punitive damages award.

Landlord Defendants motion to strike is granted with 15 days leave to amend.