Judge: Daniel M. Crowley, Case: 21STCV05722, Date: 2023-11-07 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff  via the Department's email: SMCdept71@lacourt.org before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by LACourtConnect for all matters.

Case Number: 21STCV05722    Hearing Date: November 7, 2023    Dept: 71

SUPERIOR COURT OF CALIFORNIA 

COUNTY OF LOS ANGELES 

DEPARTMENT 71 

TENTATIVE RULING 

Defendant Harbor Pest Control, Inc.’s motion for summary adjudication is moot in part and denied in part.

Defendant’s motion for summary adjudication is moot as to Issue Nos. 1 and 2 and denied as to Issue No. 3.  

Defendant Harbor Pest Control, Inc. (“Defendant”) moves for summary adjudication against Mario Joseph Espinosa and Gail Denise Espinosa (“Plaintiffs”) on the fourth cause of action for fraudulent concealment, fifth cause of action for breach of implied warranties, and punitive damages.

Preliminarily, the reply is untimely. (Code Civ. Pro., § 1005.)

Background

On February 11, 2021, Plaintiffs Raymond Leyba, Karen Castillo-Leyba, Mario Joseph Espinosa, and Gail Denise Espinosa filed a complaint against Metropolitan and Harbor Pest Control, Inc. for negligence, strict liability, fraudulent concealment, breach of implied warranties, and loss of consortium based on Raymond Leyba and Mario Joseph Espinosa’s alleged exposure to the hazardous chemical methyl bromide while working at the Port of San Diego in the 1990s, resulting in serious injuries including prostate cancer. (Complaint, ¶¶ 24-36.) 

          Legal Standard

Under Code of Civil Procedure section §437c, a party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no merit to an affirmative defense to the cause of action, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code [punitive damages], or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.  (Code Civ. Pro., §437c(f)(1).)  A grant of summary adjudication can only be made if it completely disposes of a cause of action, affirmative defense, a claim for damages, or an issue of duty. (Code Civ. Pro., §437c(f)(1).) 

Discussion

CRC Violations

Plaintiffs’ opposing separate statement violates California Rule of Court, rule 3.1350(f).  Plaintiffs dispute facts but do not describe the evidence that supports the position that the fact is controverted. Further, Plaintiffs do not refer to the exhibit, title, page, and line numbers of the evidence in support of their position.

Separate Statement

An opposing Separate Statement must comply with the requirements of California Rule of Court, rule 3.1350(e), (f) and (h).  The opposing Separate Statement must indicate if a fact is unequivocally disputed and, if so, state the opposing fact with a citation to admissible evidence. The rules do not permit a fact to be “disputed in part,” nor is argument permitted in an opposing Separate Statement. (Page v. Miracosta Community College District (2009) 180 Cal.App.4th 471, 479, fn. 2 [arguments in Separate Statement are ineffective in raising triable issues]; Collins v. Hertz Corp. (2006), 144 Cal.App.4th 64, 73.)  If a party opposing summary judgment fails to comply with the requirements in a separate statement, the court, in its discretion, may grant the motion. (Code Civ. Proc., § 437c,¿subd. (b)(3).) 

Here, Plaintiffs argue in the opposing Separate Statement. For example, for the issue of punitive damages, Plaintiffs dispute material fact number 3 and Plaintiffs state, “This purported fact is not based on evidence or declaration, but upon the state of the pleadings. Specifically, Defendant argues that the allegations of the complaint are asserted against all defendants and does not “provide specific claims attributable to Harbor Pest.” Further, Plaintiffs do not describe the evidence that supports its position or cite to the exhibit, title, page, and line numbers of the evidence in support.

Additionally, the summary judgment statute does not provide for a “Reply Separate Statement.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 249.) Defendant submitted a reply separate statement. The court will not consider it.

Fraudulent Concealment (4^th COA) (Issue No. 1)

“[T]he elements of an action for fraud and deceit based on a concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the

defendant must have been under a duty to disclose the fact to the plaintiff, (3)

the defendant must have intentionally concealed or suppressed the fact with the

intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the

fact and would not have acted as he did if he had known of the concealed or

suppressed fact, and (5) because of the concealment or suppression of the fact,

the plaintiff must have sustained damage.” (Boschma v. Home Loan Center, Inc.

(2011) 198 Cal.App.4th 230, 248.)

          As pleaded, Plaintiffs sue DOE Defendants 1 to 40, not Defendant, for fraudulent concealment.

          Thus, the motion for summary adjudication as to this cause of action is moot.  

Breach of Implied Warranties (Issue No. 2)

Preliminarily, there is no implied warranties cause of action. There is breach of implied warranty of fitness for a particular purpose and breach of implied warranty of merchantability.

As pleaded, Plaintiffs sue DOE Defendants 1 to 40, not Defendant, for breach of implied warranties.

          Thus, the motion for summary adjudication as to this cause of action is moot.  

Punitive Damages (Issue No. 3)

A plaintiff may seek 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….” (Civ. Code §3294, subd. (a).) “[A]lthough the “clear and convincing” evidentiary standard is a stringent one, it does not impose on a plaintiff the obligation to ‘prove’ a case for punitive damages at summary judgment. However, where the plaintiff’s ultimate burden of proof will be by clear and convincing evidence, the higher standard of proof must be taken into account in ruling on a motion for summary judgment or summary adjudication, since if a plaintiff is to prevail on a claim for punitive damages, it will be necessary that the evidence presented meet the higher evidentiary standard.” (American Airlines v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1049.) For instance, in American Airlines, the Court of Appeal concluded that “there existed no triable issues of material fact which would support a finding by clear and convincing evidence that defendants should be held liable for punitive damages.” (Id. at 1023.) “Summary judgment or summary adjudication on the issue of punitive damages is proper only when no reasonable jury could find the plaintiff’s evidence to be clear and convincing proof of malice, fraud or oppression.” (Pacific Gas and Electric Company v. Super. Ct. (2018) 24 Cal.App.5th 1150, 1159.)

“‘Malice’ 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. ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code § 3294, subd. (c)(1)-(3).)

To justify an award of punitive damages based on conscious disregard, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that it willfully and deliberately failed to avoid those consequences.” (Delgado v. Heritage Life Ins. Co. (1984) 157 Cal.App.3d 262, 277; Taylor v. Super. Ct. (1979) 24 Cal.3d 890, 895–896.)

Defendant argues that because the punitive damages claim is globally alleged, there are no specific factual allegations directed solely against it, as opposed to all the other defendants. Defendant further argues that Plaintiffs have no evidence showing that its managerial agents had knowledge of toxic hazards or that its misrepresented anything. Defendant also argues that in response to Defendant’s discovery specifically requesting all facts and documents supporting Plaintiffs’ claim for punitive damages against Defendant, Plaintiffs repeat the boilerplate allegations and fails to provide any specific information as to Defendant that would support a claim for punitive damages in the instant matter. Defendant further argues that at deposition, Mario Jose Espinosa failed to provide any testimony or evidence of oppression, fraud, or malice by Defendant. Defendant asserts that there is no inference of an evil intent attributable to Harbor Pest and there is no despicable conduct necessary to support a claim for punitive damages.

To support its arguments, Defendant submits the complaint Plaintiff filed in the instant action, Plaintiffs’ written discovery responses, and Defendant’s written discovery responses. Defendant does not submit evidence in support of its assertion, “in response to Harbor Pest’s discovery specifically requesting all facts and documents supporting Plaintiffs’ claim for punitive damages against Harbor Pest, Plaintiffs repeat the boilerplate allegations and fails to provide any specific information as to Harbor Pest that would support a claim for punitive damages in the instant matter.”

First, as discussed above, “evil intent” is not the legal standard for punitive damages. Second, it is unclear which conduct—malice, oppression, or fraud—Defendant is arguing that there are no issues of triable material fact. Third, the knowledge of a managing agent or a managing agent’s lack of knowledge supports punitive damages against a corporation only if a plaintiff alleges it was an employee’s acts that formed the basis of the punitive damages claims. (Civ. Code § 3294, subd. (b)). Here, Plaintiffs do not do so. Fourth, evidentiary facts are required to support a summary judgment; conclusions of fact or law are not sufficient. (Snider v. Snider (1962) 200 Cal.App.2d 741, 751.) Here, Defendant argues conclusions of fact rather than evidentiary facts. Fifth, a motion for summary judgment or adjudication shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.  (Code Civ. Proc., § 437c, subd. (b)(1).) Thus, the complaint Defendant cited is not considered evidence.

Based on the above, Defendant has not proven that there are no triable issues of material fact to prove Plaintiff cannot recover punitive damages in this matter. The burden does not shift to Plaintiffs.

Conclusion

Defendant’s motion for summary adjudication is moot as to Issues Nos. 1 and 2 and denied as to Issue No. 3.  

Dated:  November _____, 2023

Hon. Daniel M. Crowley

Judge of the Superior Court

SUPERIOR COURT OF CALIFORNIA 

COUNTY OF LOS ANGELES 

DEPARTMENT
71 

TENTATIVE RULING 

Defendant Harbor Pest Control, Inc.’s
motion for summary adjudication is moot in part and denied in part.

Defendant’s motion for summary
adjudication is moot as to Issue Nos. 1 and 2 and denied as to Issue No. 3.  

Defendant Harbor Pest Control, Inc. (“Defendant”)
moves for summary adjudication against Raymond Leyba and Karen Castillo-Leyba (“Plaintiffs”)
on the fourth cause of action for fraudulent concealment, fifth cause of action
for breach of implied warranties, and punitive damages.

Preliminarily, the reply is untimely.
(Code Civ. Pro., § 1005.)

Background

On February 11, 2021, Plaintiffs
Raymond Leyba, Karen Castillo-Leyba, Mario Joseph Espinosa, and Gail Denise
Espinosa filed a complaint against Metropolitan and Harbor Pest Control, Inc. for
negligence, strict liability, fraudulent concealment, breach of implied
warranties, and loss of consortium based on Raymond Leyba and Mario Joseph Espinosa’s
alleged exposure to the hazardous chemical methyl bromide while working at the Port
of San Diego in the 1990s, resulting in serious injuries including prostate cancer.
(Complaint, ¶¶ 24-36.) 

          Legal Standard

Under Code of
Civil Procedure section §437c, a party may move for summary adjudication as to one
or more causes of action within an action, one or more affirmative defenses,
one or more claims for damages, or one or more issues of duty, if the party
contends that the cause of action has no merit, that there is no merit to an
affirmative defense to the cause of action, or that there is no merit to a
claim for damages, as specified in Section 3294 of the Civil Code [punitive
damages], or that one or more defendants either owed or did not owe a duty to
the plaintiff or plaintiffs.  (Code Civ. Pro., §437c(f)(1).)  A grant
of summary adjudication can only be made if it completely disposes of a cause
of action, affirmative defense, a claim for damages, or an issue of duty. 
(Code Civ. Pro., §437c(f)(1).) 

          CRC Violations

Plaintiffs’ opposing separate statement violates California Rule
of Court, rule 3.1350(f).  Plaintiffs dispute facts but do not describe
the evidence that supports the position that the fact is controverted. Further,
Plaintiffs do not refer to the exhibit, title, page, and line numbers of the
evidence in support of their position.

Separate Statement

An
opposing Separate Statement must comply with the requirements of California
Rule of Court, rule 3.1350(e), (f) and (h). 
The opposing Separate Statement must indicate if a fact is unequivocally
disputed and, if so, state the opposing fact with a citation to admissible
evidence. The rules do not permit a fact to be “disputed in part,” nor is
argument permitted in an opposing Separate Statement. (Page v. Miracosta
Community College District (2009) 180 Cal.App.4th 471, 479, fn. 2
[arguments in Separate Statement are ineffective in raising triable issues]; Collins
v. Hertz Corp. (2006), 144 Cal.App.4th 64, 73.)  If a party opposing summary judgment fails to
comply with the requirements in a separate statement, the court, in its
discretion, may grant the motion. (Code Civ. Proc., § 437c,¿subd. (b)(3).) 

Here,
Plaintiffs argue in the opposing Separate Statement. For example, for the issue
of punitive damages, Plaintiffs dispute material fact number 3 and Plaintiffs
state, “This purported fact is not based on evidence or declaration, but upon
the state of the pleadings. Specifically, Defendant argues that the allegations
of the complaint are asserted against all defendants and does not “provide
specific claims attributable to Harbor Pest.” Further, Plaintiffs do not describe the evidence that
supports its position or cite to the exhibit, title, page, and line numbers of
the evidence in support.

Additionally, the
summary judgment statute does not provide for a
“Reply Separate Statement.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 249.) Defendant submitted
a reply separate statement. The court will not consider it.

Discussion

Fraudulent Concealment (4^th
COA) (Issue No. 1)

“[T]he elements of an action for fraud and
deceit based on a concealment are: (1) the defendant must have concealed or suppressed
a material fact, (2) the

defendant must have been under a duty to disclose the fact to the
plaintiff, (3)

the defendant must have intentionally concealed or suppressed the
fact with the

intent to defraud the plaintiff, (4) the plaintiff must have been
unaware of the

fact and would not have acted as he did if he had known of the concealed
or

suppressed fact, and (5) because of the concealment or suppression
of the fact,

the plaintiff must have sustained damage.” (Boschma v. Home Loan
Center, Inc.

(2011) 198 Cal.App.4th 230, 248.)

          As pleaded, Plaintiffs
sue DOE Defendants 1 to 40, not Defendant, for fraudulent concealment.

          Thus, the motion
for summary adjudication as to this cause of action is moot.  

Breach of Implied Warranties (Issue No. 2)

Preliminarily, there is no implied warranties
cause of action. There is breach of implied warranty of fitness for a
particular purpose and breach of implied warranty of merchantability.

As pleaded, Plaintiffs sue
DOE Defendants 1 to 40, not Defendant, for breach of implied warranties.

          Thus, the motion
for summary adjudication as to this cause of action is moot.  

Punitive Damages (Issue No. 3)

A plaintiff may seek 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….” (Civ. Code §3294, subd. (a).) “[A]lthough the “clear and
convincing” evidentiary standard is a stringent one, it does not impose on a
plaintiff the obligation to ‘prove’ a case for punitive damages at summary
judgment. However, where the plaintiff’s ultimate burden of proof will be by
clear and convincing evidence, the higher standard of proof must be taken into
account in ruling on a motion for summary judgment or summary adjudication,
since if a plaintiff is to prevail on a claim for punitive damages, it will be
necessary that the evidence presented meet the higher evidentiary standard.” (American
Airlines v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th
1017, 1049.) For instance, in American Airlines, the Court of Appeal
concluded that “there existed no triable issues of material fact which would
support a finding by clear and convincing evidence that defendants should be
held liable for punitive damages.” (Id. at 1023.) “Summary judgment or
summary adjudication on the issue of punitive damages is proper only when no
reasonable jury could find the plaintiff’s evidence to be clear and convincing
proof of malice, fraud or oppression.” (Pacific Gas and Electric Company v.
Super. Ct. (2018) 24 Cal.App.5th 1150, 1159.)

“‘Malice’ 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. ‘Oppression’ means despicable conduct that subjects a person to cruel
and unjust hardship in conscious disregard of that person’s rights. ‘Fraud’
means an intentional misrepresentation, deceit, or concealment of a material
fact known to the defendant with the intention on the part of the defendant of
thereby depriving a person of property or legal rights or otherwise causing
injury.” (Civ. Code § 3294, subd. (c)(1)-(3).)

To justify an award of
punitive damages based on conscious disregard, the plaintiff must establish
that the defendant was aware of the probable dangerous consequences of his
conduct, and that it willfully and deliberately failed to avoid those
consequences.” (Delgado v. Heritage Life Ins. Co. (1984) 157 Cal.App.3d 262, 277; Taylor v. Super. Ct. (1979) 24 Cal.3d 890, 895–896.)

Defendant argues that because the punitive
damages claim is globally alleged, there are no specific factual allegations directed
solely against it, as opposed to all the other defendants. Defendant further
argues that Plaintiffs have no evidence showing that its managerial agents had
knowledge of toxic hazards or that its misrepresented anything. Defendant also
argues that in response to Defendant’s discovery specifically requesting all
facts and documents supporting Plaintiffs’ claim for punitive damages against Defendant,
Plaintiffs repeat the boilerplate allegations and fails to provide any specific
information as to Defendant that would support a claim for punitive damages in
the instant matter. Defendant further argues that at deposition, Raymond Leyba
failed to provide any testimony or evidence of oppression, fraud, or malice by Defendant.
Defendant asserts that there is no inference of an evil intent attributable to
Harbor Pest and there is no despicable conduct necessary to support a claim for
punitive damages.

To support its
arguments, Defendant submits the complaint Plaintiffs filed in the instant
action, Plaintiffs’ written discovery responses, and Defendant’s written discovery
responses. Defendant does not submit evidence in support of its assertion, “in
response to Harbor Pest’s discovery specifically requesting all facts and
documents supporting Plaintiffs’ claim for punitive damages against Harbor
Pest, Plaintiffs repeat the boilerplate allegations and fails to provide any
specific information as to Harbor Pest that would support a claim for punitive
damages in the instant matter.”

First,
as discussed above, “evil intent” is not the legal standard for punitive
damages. Second, it is unclear which conduct-malice, oppression, or
fraud-Defendant is arguing that there are no issues of triable material fact. Third, the
knowledge of a managing agent or a managing agent’s lack of knowledge supports punitive
damages against a corporation only if a plaintiff alleges it was an employee’s
acts that formed the basis of the punitive damages claims. (Civ. Code § 3294, subd. (b)). Here,
Plaintiffs do not do so. Fourth, evidentiary facts are required to support a
summary judgment; conclusions of fact or law are not sufficient. (Snider v. Snider (1962) 200 Cal.App.2d
741, 751.) Here, Defendant argues conclusions of fact rather than
evidentiary facts. Fifth, a motion for summary judgment or adjudication shall be supported by affidavits,
declarations, admissions, answers to interrogatories, depositions, and matters
of which judicial notice shall or may be taken.  (Code Civ. Proc., § 437c,
subd. (b)(1).) Thus, the complaint Defendant cited is not considered evidence.

Based on the above, Defendant
has not proven that there are no triable issues of material fact to prove no punitive
damages. The burden does not shift to Plaintiffs.

Assuming arguendo the
burden has shifted, Plaintiffs argue that Raymond
Leyba’s lack of recollection in his deposition testimony of the name “Harbor
Pest Control” does not, as a matter of law, support an inference that Plaintiffs
cannot reasonably obtain evidence supporting their claims for punitive damages.
Plaintiffs also argue that their written discovery response discusses the
statutory requirement for warning of toxic hazards of methyl bromide, which is
a duty that Defendant does not dispute in its motion; in addition, the response
states that Defendant willfully, deliberately, and fraudulently concealed facts
concerning the nature of the chemicals which responding party worked with and
around daily. Plaintiffs further argue that under California case law, the
failure of a manufacturer or distributor of products to provide warnings of the
toxic hazards of its products, despite the manufacturer’s actual knowledge of these
toxic hazards, fits the very definition of “conscious disregard.”

To
support their argument about lack of recollection, Plaintiffs do not cite the
separate statement or evidence. To support their argument about duty to warn, Plaintiffs
submit written discovery response. ([SSF No. 5] Defendant’s
Appendix Ex. “D,” Special Interrogatory Response No. 33.)

First,
it is unclear which conduct—malice, oppression, or fraud—Plaintiffs are
opposing. Second, evidentiary facts are required to support a summary judgment; conclusions
of fact or law are not sufficient. (Snider v. Snider (1962) 200 Cal.App.2d 741, 751.) Here, in asserting “Defendant
willfully, deliberately, and fraudulently concealed facts concerning the nature
of the chemicals which responding party worked with and around daily,” Plaintiffs argue
conclusions of fact rather than evidentiary facts.

Based on the above, Plaintiffs
have not proven that there are triable issues of material fact to prove no punitive
damages.

Conclusion

Defendant’s motion for summary
adjudication is moot as to Issues Nos. 1 and 2 and denied as to Issue No. 3.  

Dated:  November _____, 2023

Hon. Daniel M.
Crowley

Judge of the
Superior Court