Judge: Frank M. Tavelman, Case: 23BBCV02436, Date: 2024-05-17 Tentative Ruling

Case Number: 23BBCV02436    Hearing Date: May 17, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO STRIKE

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is requested and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

This action is brought by Karla Mendoza, Jaime Montoya Mendoza, and Jeremias Misael Montoya (Plaintiffs). Jaime and Jeremias are minors represented by and through their Guardian Ad Litem, Milen Montoya Cabrera. Plaintiffs bring this action individually and on behalf of Misael Montoya (Decedent). Plaintiffs allege that DGK Plumbing, Yaya Glenoaks LLC, Gary Kleinman, and Michael Engelman were negligent in the digging of a trench for a construction project on which Decedent worked. DGK Plumbing is an entity owned and operated by Gary Kleinman. Yaya Glenoaks LLC is the company which owns the property on which construction occurred and Michael Engelman is its principal shareholder.

Plaintiffs allege that, as a result of Defendants’ negligence, the trench collapsed on Decedent while he was working inside of it. Plaintiffs allege Decedent was buried in the trench for the greater part of an hour before being removed and pronounced dead.  Plaintiffs’ Complaint states causes of action for (1) Wrongful Death and (2) Survivor Action.

DGK Plumbing and Gary Kleinman (Defendants) now move to strike Plaintiffs’ claim for punitive damages and related language in the Complaint. Plaintiffs oppose the motion and Defendants reply.

ANALYSIS:

I.            LEGAL STANDARD

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer, such as words, phrases, and prayers for damages. (See C.C.P. §§ 435, 436, and 437.) The proper procedure to attack false allegations in a pleading is a motion to strike. (C.C.P. § 436(a).) In granting a motion to strike made under C.C.P. § 435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], 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.” (C.C.P. § 436(a).) Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. (C.C.P. § 431.10.) The court may also “[s]trike 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.” (C.C.P. § 436 (b).)

II.            MERITS

Meet and Confer

C.C.P. § 435.5(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to a motion to strike. Upon review the Court finds the meet and confer requirements were met. (Johnson Decl. ¶ 3.)

Corporate Liability

As a preliminary matter, the Court addresses whether punitive damages can be properly addressed to DGK plumbing. “[T]he imposition of punitive damages upon a corporation is based upon its own fault. It is not imposed vicariously by virtue of the fault of others.” (City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal.App.3d 31, 36.) “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive. An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees. But the law does not impute every employee’s malice to the corporation. Instead, the punitive damages statute requires proof of malice among corporate leaders: the officers, directors, or managing agents.” (Cruz v. Home Base (2000) 83 Cal.App.4th 160, 167 [cleaned up].)

Defendants do appear to contest the applicability of punitive damages to GDK. Further, Plaintiffs address punitive damages to DGK as a result of the business decisions of Gary Kleinman. As such, the Court finds the punitive damages properly addressed.

General Punitive Damages Concepts

In ruling on a motion to strike punitive damages, “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. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Cal. Civ. Code § 3294. (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) Per Cal. Civ. Code § 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice. (Cal. Civ. Code, § 3294(a).) Under Cal. Civ. Code § 3294(b), “[a]n employer shall not be eligible 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.”

Discussion

Defendants argue (1) that Plaintiffs’ allegations do not allege conduct warranting punitive damages and (2) that Plaintiffs’ allegations are stated without sufficient particularity. For reasons stated below, the Court finds these arguments unpersuasive.

Both parties discuss the holding in Taylor v. Superior Court. There, the California Supreme Court reviewed a successful demurrer to a cause of action asserting punitive damages. The plaintiff in Taylor sought punitive damages in connection with injuries incurred from the defendant’s driving while intoxicated. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 893.) The lower court sustained the demur on the grounds that the plaintiff failed to allege any actual intent of defendant to harm others. (Id. 895.) While punitive damages claims are commonly thought of as applying only to strictly intentional torts, the Taylor court observed that such claims could also be based on a party’s awareness of the probable dangerous consequences of his conduct. (Id. at 896.) The Taylor court held that such claims must be accompanied by allegations that a defendant willfully and deliberately failed to avoid the dangerous consequences of their actions. (Id.)

Plaintiffs cite to Taylor in arguing that they have pled “malice or despicable conduct” within the meaning of Cal. Civ. Code § 3294. Plaintiff outlines a number of factual allegations in the Complaint which speak to Defendants’ conscious disregard of the safety of those working on the trench. Plaintiffs allege that Defendants knew or should have known that the trench built to install the sewer line needed to have an adequate protective system in accordance with the law. (Compl. ¶ 13.) Plaintiff also allege that Defendants recklessly and maliciously failed to design and install any protective system and failed to ensure that the spoils of the excavation were far enough away from the trench’s edge to avoid a hazardous condition. (Id.) Plaintiffs further assert that Defendants failed to secure project permits and proper supervision. (Id.) Crucially, Plaintiffs also allege that Defendants’ actions/failures were conducted despicably with the intent and purpose of saving money and/or increasing profits from the project. (Compl. ¶ 26.)

Defendants rightfully point out that since the Taylor decision, Cal. Civ. Code § 3294 has been amended to require a plaintiff to plead and prove Defendants conduct was “despicable”. “The adjective despicable connotes conduct that is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210 [internal quotation marks and citation omitted].) Defendants argue that Plaintiff has not pled facts from which Defendants’ despicable conduct can be implied.

The Court finds Plaintiffs have sufficiently alleged despicable conduct by Defendants. The defendant in Lackner was alleged to have recklessly caused a collision on a ski slope, which the court found did not support a finding of despicable conduct. (Id.) In contrast, Plaintiffs’ allegations appear significantly more dire. Plaintiffs allege that Defendants forewent virtually every safety measure associated with digging the trench in order to save costs on the construction project. Taking these allegations as true, as the Court must do on a motion to strike, they are indicative of conduct which is despicable. The Court construes the intentional failure to ensure the safety of ones employees in the hopes of maximizing profit as behavior which is so contemptible that it would be looked down on and despised by ordinary people.

Defendants further argue that Plaintiffs have failed to allege facts supporting punitive damages with sufficient specificity. Defendants cite to Anschutz Entertainment Group, Inc. v. Snepp, where the California Court of Appeal held that general allegations were insufficient to support a claim for punitive damages. The Court finds Anschutz to be both procedurally and factually inapposite to this case. First, Anschutz concerned a special motion to strike under California’s anti-SLAPP statute. (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598.) Second, the pleadings in Anschutz were conclusory in a way that Plaintiffs’ allegations here are not. Whereas the plaintiffs in Anschutz only generally alleged willful and malicious behavior, Plaintiffs’ allegations here are specifically supported.

“When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him.” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].) Here, Plaintiffs’ allegations that Defendants deliberately ignored safety protocols in order to save costs are sufficiently specific to provide adequate notice of the conduct charged. Whether Plaintiffs will be able to prove this conduct remains to be seen, but their allegations are sufficient to survive the motion to strike.   

Accordingly, the motion to strike Plaintiffs’ claims for punitive damages is DENIED.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

DGK Plumbing and Gary Kleinman’s Motion to Strike came on regularly for hearing on May 17, 2024 with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO STRIKE IS DENIED.  

UNLESS ALL PARTIES WAIVE NOTICE, PLAINTIFF KARLA MENDOZA TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE:  May 17, 2024                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles