Judge Cynthia A Freeland, Case 37-2023-00020441-CU-PO-NC 2023-08-18 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2023-00020441-CU-PO-NC, Date: 2023-08-18 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - August 17, 2023

08/18/2023 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited PI/PD/WD - Other Motion Hearing (Civil) 37-2023-00020441-CU-PO-NC MEJIA VS. TRISTRUX LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 06/20/2023

Defendant Tristrux, LLC ('Defendant')'s motion to strike the claim for punitive damages from Plaintiffs Itzel Mejia and El Nopalito, Inc. ('El Nopalito' and, together with Ms. Mejia, 'Plaintiffs')'s Complaint is granted.

California Code of Civil Procedure § 436 provides that '[t]he court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.' Cal. Code Civ. P. §§ 436(a)-(b). In ruling on a motion to strike, courts do not read allegations in isolation. See Perkins v. Sup. Ct. (1981) 117 Cal. App. 3d 1, 6. 'In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.' Clauson v. Sup. Ct. (1998) 67 Cal. App. 4th 1253, 1255. The grounds for a motion to strike must appear on the face of the challenged pleading or any matter of which the court is required to take judicial notice. See Cal. Code Civ. P. § 437(a).

'In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damages statute, Civil Code section 3294.' Turman v. Turning Point of Central California, Inc. (2010) 191 Cal. App. 4th 53, 63. California Civil Code ('CC') § 3294 allows a plaintiff to recover punitive damages '[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.' Cal. Civ. Code § 3294(a). Moreover, '[a]n employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.' Cal. Civ. Code § 3294(b). In relevant part, for purposes of awarding punitive damages, ''[m]alice' means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.' Cal. Civ. Code § 3294(c)(1).

The court finds that the Complaint fails to sufficiently plead the ultimate facts with the requisite specificity demonstrating that Defendant's conduct, if ultimately proven by clear and convincing evidence, could give rise to the imposition of punitive damages against Defendant. See Brousseau v. Jarrett (1977) 73 Calendar No.: Event ID: TENTATIVE RULINGS

2986896 CASE NUMBER: CASE TITLE: MEJIA VS. TRISTRUX LLC [IMAGED] 37-2023-00020441-CU-PO-NC Cal. App. 3d 864, 872; Hillard v. A.H. Robins Co. (1983) 148 Cal. App. 3d 374, 391-392. The Complaint alleges that on or before January 11, 2023, Defendant hired Defendant Todd Hayes and entrusted him with an F-250 Supercab as part of his employment. See Complaint, ¶¶ 24-25. On January 11, 2023, Mr.

Hayes, acting within the course and scope of his employment with Defendant (a nationwide telecommunications company), drove the Supercab through El Nopalito (a restaurant). Ibid., ¶¶ 3, 5, 28.

The incident destroyed El Nopalito and seriously injured one of its employees, Ms. Mejia. Ibid., ¶¶ 6-7, 28. Mr. Hayes, for his part, has an extensive history of alcohol abuse resulting in criminal convictions.

More specifically: (1) In or around August 28, 1999, Mr. Hayes was driving under the influence of alcohol in Monroe County, Pennsylvania. This resulted in Monroe County Case No. 43-4-01CR-0000191-99 in which Mr.

Hayes was charged with, inter alia, driving under the influence of alcohol; (2) On or about December 7, 1999, Mr. Hayes was driving under the influence of alcohol. This resulted in San Bernardino County Superior Court Case No. TMB19085 in which Mr. Hayes was charged with, inter alia, driving under the influence of alcohol. Mr. Hayes was convicted under California Vehicle Code § 23103.5 (Reckless Driving, Alcohol Related); (3) On or about March 20, 2009, Mr. Hayes was driving under the influence of alcohol. This resulted in San Bernardino County Superior Court Case No. TMB900702 in which Mr. Hayes was charged with, inter alia, driving under the influence of alcohol. Mr. Hayes failed to appear for his pre-trial hearing and, as of May 10, 2023, there was an outstanding bench warrant for his arrest; (4) On or about January 17, 2010, Mr. Hayes was driving under the influence of alcohol. This resulted in San Diego County Superior Court Case No. CN272822 in which Mr. Hayes was charged with, inter alia, driving under the influence of alcohol; and (5) On or about August 13, 2022, Mr. Hayes was driving under the influence of alcohol. This resulted in San Diego County Superior Court Case No. 22135867/CN437355 in which Mr. Hayes was charged with, inter alia, driving under the influence of alcohol.

Ibid., ¶¶ 17-21. As a result of the foregoing criminal cases, the State of California has suspended Mr.

Hayes' driver's license. Ibid., ¶ 22. Mr. Hayes' criminal history is readily available online. Ibid., ¶ 23.

Despite this accessible information, Defendant recklessly provided Mr. Hayes with the Supercab that ultimately caused the subject incident. Ibid., ¶¶ 23, 25, 27.

Defendant is correct that, as a general rule, punitive damages are not recoverable for ordinary negligence, gross negligence, or reckless conduct. See, e.g., Colombo v. BRP US Inc. (2014) 230 Cal. App. 4th 1442, 1486, fn. 8. However, courts have held that the act of operating a motor vehicle while intoxicated may constitute an act of malice under CC § 3294 if performed under circumstances that disclose a conscious disregard of the probable dangerous consequences. See Taylor v. Sup. Ct. (1979) 24 Cal. 3d 890, 895-896 ('Taylor'). In Taylor, the California Supreme Court, when called to rule upon the propriety of the trial court's order sustaining a demurrer to the underlying complaint insofar as it sought the recovery of punitive damages for a car accident, explained as follows: Examining the pleadings before us, we have no difficulty concluding that they contain sufficient allegations upon which it may reasonably be concluded that defendant consciously disregarded the safety of others. There is a very commonly understood risk which attends every motor vehicle driver who is intoxicated. (See Coulter v. Superior Court, supra, 21 Cal.3d 144, 152-154, 145 Cal.Rptr. 534, 577 P.2d 669.) One who wilfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others. The effect may be lethal whether or not the driver had a prior history of drunk driving incidents.

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2986896 CASE NUMBER: CASE TITLE: MEJIA VS. TRISTRUX LLC [IMAGED] 37-2023-00020441-CU-PO-NC Ibid., at 896-897.

The Complaint sufficiently alleges a punitive damages claim against Mr. Hayes under Taylor and its progeny. Indeed, it is undisputed that Mr. Hayes: (1) has an extensive criminal history of alcohol abuse, and (2) was intoxicated at the time of the subject accident. As to Defendant, the Complaint alleges that Defendant is liable for various direct torts as well as under the doctrine of respondeat superior for Mr.

Hayes conduct in the course and scope of his employment with Defendant. See Complaint, ¶¶ 12-13.

Toward that end, the Fourth District Court of Appeal, analyzing a request for punitive damages against the employer of an employee who caused injuries while driving under the influence in the course and scope of his employment, has held that '[a]n employer may be held liable for punitive damages on account of the conduct of a managerial employee acting within the scope of the employment.' Dawes v. Sup. Ct. (1980) 111 Cal. App. 3d 82, 91. However, the Complaint does not allege that Mr. Hayes was a 'managerial employee' at the time of the accident.

That being said, 'the employer may be subject to punitive damages upon a proper showing of misconduct, the standards for which are specified in section 3294, subdivision (b).' CRST, Inc. v. Sup.

Ct. (2017) 11 Cal. App. 5th 1255, 1264. In this case, the Complaint sufficiently alleges that Defendant, through basic diligence, could have discovered Mr. Hayes' criminal history yet nevertheless employed him and provided him with the Supercab in conscious disregard of the rights and safety of others.

However, the Complaint, as presently pled, is insufficient insofar as it fails to identify a specific officer, director, or managing agent of Defendant (a corporate employer) who knew of Mr. Hayes' unfitness yet employed him in conscious disregard of the rights and safety of others.

Accordingly, the court grants the motion to strike with leave to amend to address the foregoing deficiencies, if possible. See Grieves v. Sup. Ct. (1984) 157 Cal. App. 3d 159, 168.

In light of the foregoing, the court grants the motion to strike with leave to amend. Plaintiffs shall file and serve a first amended complaint within ten (10) days of this hearing. See Cal. R. Ct. 3.3120(g).

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, August 18, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of August 18, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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