Hovik Gasparyan v. Panda Restaurant Group, Inc.; and Does 1-50

Case No. 26CHCV00429 | LOS ANGELES SUPERIOR COURT NORTH VALLEY DISTRICT DEPARTMENT F49 AUGUST 21, 2026 DEMURRER Los Angeles Superior Court Case No. 26CHCV00429

Motion filed: 3/17/26 MOVING PARTY: Defendant Panda Express, Inc. RESPONDING PARTY: Plaintiff Hovik Gasparyan NOTICE: OK RELIEF REQUESTED: An order from this Court sustaining Defendant Panda Express, Inc.'s Demurrer to the fourth cause of action of Plaintiff's Complaint. TENTATIVE RULING: The Demurrer is OVERRULED. BACKGROUND This action arises from injuries allegedly sustained by Plaintiff Hovik Gasparyan ("Plaintiff") when he bit down on a metal screw embedded within prepared food he purchased from a Panda Express restaurant.

On February 2, 2026, Plaintiff filed the Complaint against Panda Restaurant Group, Inc. and Does 1 through 50, alleging the following causes of action: (1) strict products liability, (2) negligence, (3) breach of implied warranty of merchantability, and (4) negligent infliction of emotional distress. On February 11, 2026, Plaintiff filed an amendment to the Complaint naming Panda Express, Inc. ("Defendant") as Doe 1. On March 24, 2026, at the request of Plaintiff, the Court dismissed Panda Restaurant Group, Inc. from the action.

On March 17, 2026, Defendant filed the instant Demurrer (the "Demurrer"). On August 4, 2026, Plaintiff filed an Opposition. On August 13, 2026, Defendant filed a Reply. ANALYSIS "The party against whom a complaint or cross-complaint has been filed may object, by demurrer ... to the pleading on any one or more of the following grounds: ... (e) The pleading does not state facts sufficient to constitute a cause of action." (Code Civ. Proc. Sec. 430.10.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v.

Mirda (2007) 147 Cal.App.4th 740, 745.)¿When considering demurrers, courts "give the complaint a reasonable interpretation, reading it as a whole and its parts in their context." (Blank v. Kirwan (2006) 39 Cal.3d 311, 318.)¿In a demurrer proceeding, the court treats all material facts properly pleaded as true, but does not assume "contentions, deductions or conclusions of fact or law."¿(Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525, internal quotations omitted.) "Questions of fact may be resolved on demurrer only when there is only one legitimate inference to be drawn from the allegations of the complaint. [Citation.]"¿(TracFone Wireless, Inc. v.

County of Los Angeles (2008) 163 Cal.App.4th 1359, 1368.)¿ "'It is not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which he describes the defendant's conduct. A demurrer tests only the legal sufficiency of the pleading.' [Citation.]" (Berg

v. Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.) The facts alleged in a complaint are deemed true "however improbable they may be." (Id., at p.1034, internal quotations omitted.) A. Meet and Confer Before filing a demurrer, "the demurring party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer." (Code Civ.

Proc., Sec. 430.41, subd. (a).) The Court finds that Defendant has satisfied the meet and confer requirement. B. Grounds for Demurrer Defendant demurs to the fourth cause of action of the Complaint for negligent infliction of emotional distress ("NIED"). California courts do not recognize NIED as an independent tort. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.) Rather, the tort is negligence, and emotional distress an injury that may be proximately caused by the defendant's breach of some other legal duty to the plaintiff. (Ibid.)

To recover for NIED, a plaintiff must accordingly establish the elements of negligence. (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129.) Specifically, a plaintiff must establish that the defendant had some duty to the plaintiff, whether assumed, imposed as a matter of law, or arising out of a special relationship, the defendant breached that duty, the plaintiff was injured, and the defendant's breach caused that injury. (Id., at pp. 129-130.) Relying on the Court's ruling in Potter, supra, Defendant contends that because NIED is not recognized as an independent tort, it may not be alleged as a separate cause of action. (Dem., at p. 3.)

Defendant also argues that the NIED claim is duplicative of the second cause of action for negligence. (Dem., at p. 3.) Plaintiff argues that Defendant focuses on form over substance in challenging the separate labeling of the emotional distress claim, ignoring the allegations of duty, breach, and emotional harm supporting the fourth cause of action. (Opp'n, at pp. 4-5.) The Court agrees that Defendant's interpretation overstates the holding in Potter. Potter does not abolish NIED or eliminate emotional distress recovery in negligence actions.

Rather, Potter clarified and refined the circumstances under which emotional distress damages may be recovered in negligence cases, confirming that there is generally no duty to avoid negligently causing emotional distress to another. (Potter, supra, 6 Cal.4th at p. 985 ["[U]nless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant's breach of some other legal duty and the emotional distress is

proximately caused by that breach of duty."].) Insofar as Defendant's challenge is to the separate assertion of a cause of action for NIED, the Court finds this insufficient to sustain the Demurrer as to that cause of action. Defendant also contends that the NIED cause of action is duplicative of the second cause of action for negligence. (Dem., at p. 3.) Stating the same allegations, without additional facts or theories, in two causes of action is duplicative pleading that adds nothing to a complaint. (Award Metals, Inc. v.

Super. Ct. (1991) 228 Cal.App.3d 1128, 1135.) Demurrers to duplicative causes of action are properly sustained. (Ibid.) Here, the second cause of action alleges that Defendant owed Plaintiff a duty to exercise reasonable care in the preparation of food he consumed and breached that duty by failing to prevent a metal screw from entering Plaintiff's food, causing Plaintiff preventable physical injury consisting of dental trauma. (Compl., P.P. 18, 41-45.) The fourth cause of action for NIED incorporates the negligence allegations and adds allegations of emotional distress, stating that Plaintiff suffered anxiety, fear of eating, embarrassment, and nervousness that is serious and ongoing. (Id., P. 60.)

These allegations add facts concerning additional injury beyond the physical injury already alleged in the negligence cause of action. The Court accordingly does not find the NIED claim to be duplicative of the negligence cause of action. Based on the foregoing, the Demurrer is OVERRULED. CONCLUSION The Court OVERRULES Defendant's Demurrer to the Complaint. Defendant is ordered to serve and file an answer within 20 days. Moving party to give notice. Case Number: 26CHCV01712 Hearing Date: August 21, 2026 Dept: F49 Dept.

F49 | Date: 8/21/26 | Case Name: Daniela Fels v. Mercedes-Benz USA, LLC, and Does 1-10 |