Mario Giron, et al. v. The Harbor Restaurant

Case Number

25CV04359

Case Type

Hearing Date / Time

Wed, 02/18/2026 - 10:00

Nature of Proceedings

Demurrer to Plaintiffs’ First Amended Complaint

Tentative Ruling

For Plaintiffs Mario Giron and Raquel Viridiana Giron: Scott A. Meehan, Alfonso & Berriz PC  

For Defendants The Harbor Restaurant, Santa Barbara Harbor Restaurant, Inc., John J. Thyne III, Olesya Thyne, Eugenio “Gene” Sanchez, Carolina Jimenez, Gonzalo Del Pino, and Rich Hollowell: John J. Thyne III, Thyne Taylor Fox Howard, LLP

RULING

(1) For the reasons stated herein, the demurrer of Defendants The Harbor Restaurant, John J. Thyne III, Olesya Thyne, Eugenio “Gene” Sanchez, Carolina Jimenez, Gonzalo Del Pino, and Rich Hollowell, is continued to March 25, 2026. The parties shall, on or before March 4, 2026, fully meet and confer in good faith as to any objections to Plaintiffs’ first amended complaint raised in the demurrer, in accordance with the provisions of Code of Civil Procedure section 430.41, and the Court’s ruling herein. On or before March 11, 2026, Defendants shall file and serve a declaration that complies with Code of Civil Procedure section 430.41, subdivision (a)(3), and which states, if appropriate, the objections raised in the present demurrer that have been resolved by the parties’ meet and confer. The parties shall not file any further papers in support of or in opposition to the demurrer.

(2) To the extent Defendants rely on a demurrer and motion to strike by Defendant Santa Barbara Harbor Restaurant, Inc., as identified and described in Defendants’ present demurrer, that demurrer and motion to strike must be filed on or before February 25, 2026, in the form those documents were ostensibly served on Plaintiffs. The parties shall not file any further papers in support of or in opposition to any demurrer or motion to strike that may be filed by Defendant Santa Barbara Harbor Restaurant, Inc., by the deadline prescribed herein.

Background

On July 11, 2025, Plaintiffs Mario Giron and Raquel Viridiana Giron (collectively, Plaintiffs) filed a complaint against Defendant The Harbor Restaurant (the Restaurant), alleging one cause of action for negligence. The sole cause of action alleged in the complaint arises from Plaintiffs allegedly becoming violently ill after eating food at premises owned or operated by the Restaurant and located at 210 Stearns Wharf in Santa Barbara, California (the Premises). (Compl., ¶¶ 1 & 5-6.)

On September 8, the Restaurant filed a demurrer on the grounds that the complaint fails to allege facts constituting a cause of action and is uncertain. That demurrer was calendared for a hearing on November 12.

On November 6, Plaintiffs filed a first amended complaint (the FAC), alleging the same cause of action for negligence against the Restaurant, and Defendants John Thyne III (J Thyne), Olesya Thyne (O Thyne), Eugenio “Gene” Sanchez (Sanchez), Carolina Jimenez (Jimenez), Gonzalo Del Pino (Del Pino), Rich Hollowell (who is purportedly erroneously sued as “Rich Hallowell” (Hollowell), and Santa Barbara Harbor Restaurant, Inc., (SBHR).

On November 12, after a hearing, the Court made the following ruling on the demurrer of the Restaurant to Plaintiff’s original complaint:

“On July 11, 2025, Plaintiffs filed their original complaint in this action. On September 8, Defendant filed a demurrer to the single cause of action in the complaint. No opposition was filed to the demurrer, but on November 6, Plaintiffs filed an untimely first amended complaint. (See Code Civ. Proc., § 472, subd. (a) [amended complaint must be filed on or before opposition to demurrer due].) The Courts deems the filing of the first amended complaint a concession that the demurrer to the original complaint has merit in some respect, that the Courts has sustained that demurrer with leave to amend, and that the first amended complaint is filed and served by electronic service based upon such leave to amend. Defendant’s time to respond to the first amended complaint shall be computed from the electronic service date of November 12, 2025.”

As alleged in the FAC, which is the operative pleading:

J Thyne, O Thyne, Sanchez, and Jimenez, who were fictitiously named in the original complaint as, respectively, Doe 1, Doe 2, Doe 3, and Doe 4, own the Restaurant. (FAC, ¶¶ 4 & 10.) Del Pino, fictitiously named in the original complaint as Doe 5, is the Executive Chef of the Restaurant. (FAC, ¶¶ 5 & 10.) Hollowell, fictitiously named as Doe 6 in the original complaint, is the Restaurant’s General Manager. (FAC, ¶¶ 6 & 10.) SBHR, fictitiously named in the original complaint as Doe 7, holds an ownership interest in the Restaurant. (FAC, ¶¶ 7 & 10.)

In 2024, the Restaurant began performing unpermitted construction and mold remediation, and was soon shut down by Building and Safety. (FAC, ¶ 9.) In addition, a whistle blower reported that the Restaurant had a broken water heater that would have provided hot water to maintain sanitary conditions, and a vermin problem. (Ibid.) Accordingly, the Santa Barbara County Department of Environmental Health Services also shut the Restaurant down. (Ibid.)

On November 2, 2024, Defendants caused or allowed contaminated food to be served to Plaintiffs for their consumption. (FAC, ¶ 11.) In particular, Plaintiffs became violently ill after each eating the Green Salad with Salmon, a contaminated dish of food, served to them at the Restaurant. (Ibid.) As a result, Plaintiffs suffered injury causing Plaintiffs to incur medical and other expenses. (FAC, ¶ 12.)

On December 16, the Restaurant, J Thyne, O Thyne, Sanchez, Jimenez, Del Pino, and Hollowell (collectively, the Restaurant Defendants) filed a demurrer on the grounds that the FAC does not state facts sufficient to constitute a cause of action against the Restaurant Defendants; that Plaintiffs have engaged in a misjoinder of parties; that the FAC is unintelligible; that the Restaurant does not exist as a separate entity; and that Plaintiffs have failed to allege facts sufficient to pierce the corporate veil.

Plaintiffs oppose the demurrer.

Analysis

The demurrer of the Restaurant Defendants contains references to a “contemporaneously filed” demurrer and motion to strike of SBHR (collectively, the SBHR Motion), and asserts that the Restaurant Defendants incorporate by reference the allegations and arguments appearing in the SBHR Motion. (Demurrer at p. 3, ¶ 4 & Memorandum at p. 1, ll. 3-8 & 17-19.)

Court records reflect that, with their opposition to the present demurrer, Plaintiffs have separately filed what appears to be an opposition to the SBHR Motion. Though it appears that Plaintiffs were served with a copy of that motion, the Court has no record showing that motion was filed with the Court. Accordingly, the Court’s records do not include a copy of the SBHR Motion referenced in the present demurrer of the Restaurant Defendants.

In addition, Plaintiffs’ opposition to the demurrer of the Restaurant Defendants is supported by a declaration of their counsel, Scott A. Meehan (attorney Meehan), who states that, after the filing and service of the FAC by Plaintiffs, the Restaurant Defendants failed to conduct any meet and confer prior to filing their demurrer. (Meehan Dec. [Opp. Restaurant Defendants Demurrer], ¶ 2.) Plaintiffs’ opposition to the SBHR Motion is also supported by attorney Meehan’s declaration stating that SBHR failed to conduct any meet and confer prior to serving that motion. (Meehan Dec. [Opp. SBHR Demurrer], ¶ 2.)

In support of the present demurrer, J Thyne states that on November 21, 2025, they met and conferred with Plaintiffs’ counsel by email and advised Plaintiffs’ counsel of their objections to the complaint and the reasons that pleading is subject to demurrer. (J Thyne Dec., ¶ 3.) J Thyne further states that they and Plaintiffs’ counsel have not had the opportunity to resolve this case, and the complaint has not been amended since that meet and confer conference. (J Thyne Dec., ¶ 4.)

In reply to Plaintiffs’ opposition, the Restaurant Defendants also contend or effectively contend that the declaration of J Thyne described above, shows that they did meet and confer after Plaintiffs filed the FAC and prior to filing their demurrer. (Reply at p. 2, ¶¶ 1-3.)

“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. If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.” (Code Civ. Proc., § 430.41, subd. (a), italics added.) “The parties shall meet and confer at least 5 days before the date the responsive pleading is due.” (Code Civ. Proc., § 430.41, subd. (a)(2).)

The J Thyne declaration submitted in support of the demurrer of the Restaurant Defendants shows that, after the FAC was filed on November 6 and at least 5 days before a response to that pleading was due (see Code Civ. Proc., § 430.40, subd. (a)), J Thyne communicated with Plaintiffs’ counsel regarding the Restaurant Defendants’ objections to the complaint and reasons that pleading was subject to demurrer. That statement shows, expressly and by inference, that the meet and confer process described by J Thyne did not address and was not directed to any purported deficiencies in, or any objections raised in the demurrer of the Restaurant Defendants to, the FAC. For these same reasons, the available information and evidence also reflects or indicates that the Restaurant Defendants did not identify, with legal support, the basis of any deficiencies in the FAC, as required by code.

As the present record indicates or suggests that the Restaurant Defendants failed to meet and confer with Plaintiffs regarding the objections to the FAC raised in their demurrer, and that SBHR ostensibly intended to, but for unknown reasons, failed to separately file the SBHR Motion on which the Restaurant Defendants rely to support the points advanced in the present demurrer, the present record appears incomplete, and procedurally inappropriate.

For all reasons discussed above, the Court will continue the hearing on the Restaurant Defendants’ demurrer to permit the parties to engage in a good faith meet and confer process to determine whether the parties can reach an agreement that would resolve the objections raised by that demurrer, and to permit SBHR an opportunity to file the SBHR Motion ostensibly served on Plaintiffs.

Insofar as the Restaurant Defendants intend to rely on any points advanced in the SBHR Motion (and the Court presently makes no determination as to whether it is appropriate to consider those points to determine the present demurrer), the Court will order SBHR to, on or before February 25, 2026, file the SBHR in the form that motion was served on Plaintiffs, without edits. The parties shall not file any further papers in support of or in opposition to the SBHR Motion.

In addition, the Court will order counsel for the Restaurant Defendants and Plaintiffs to, on or before March 4, 2026, fully meet and confer in good faith as to any objections to the FAC raised in the present demurrer as required by Code of Civil Procedure section 430.41. As part of that meet and confer process, the Restaurant Defendants shall identify, with legal support, the basis of any purported deficiencies in the cause of action alleged in the FAC. In addition, Plaintiffs shall either provide legal support showing why the FAC is legally sufficient, or how the FAC could be amended to cure any insufficiencies.

The Court will further order the Restaurant Defendants to, on or before March 11, 2026, file with the Court and serve on Plaintiffs, a declaration of their counsel that complies with subdivision (a)(3) of section 430.41 and which states, if appropriate, which objections raised in the Restaurant Defendants’ demurrer have been resolved by the parties’ meet and confer. Apart from that declaration, the parties shall not file any further papers in support of or in opposition to the demurrer of the Restaurant Defendants.