Judge Jill Feeney, Case 20STCV15750 2022-10-12 Tentative Ruling

This is an action for battery, negligence, premises liability, and negligent hiring, retention, training, and supervision arising from an altercation between Plaintiff and a security guard which took place in September 2019. Plaintiff filed his Complaint against Anthony Lamar Freeman, Cool-Pak Solutions, LP, Agro Merchants Corporation, Agro Merchants Carson, LLC, and PDF Security Solutions, Inc. on April 24, 2020.

Agro seeks to strike the portions of Plaintiff’s SAC which demand punitive damages, including in paragraphs 11, 29, 33, 56-60, 62-66, 74, 75, 77-81, 96-102, and from the prayer for damages. Agro argues Plaintiff’s SAC does not allege Agro engaged in despicable conduct, that it fails to state facts demonstrating Agro had advanced knowledge of the security guard Freeman’s alleged unfitness, and that the SAC fails to demonstrate Agro authorized the guard’s conduct.

In opposition, Plaintiff argues that Agro’s employment of the security guard even after it had advanced knowledge of his unfitness constitutes despicable conduct. Plaintiff also argues that Agro’s President, Steve Karo, engaged in despicable conduct by promoting Freeman despite Freeman’s lack of experience and training as a security guard. Additionally, Plaintiff alleges that Karo and the general manager, Tom Lichter, knew of previous verbal and physical altercations between security and truck drivers. Plaintiff also argues that Karo failed to pay a more competitive salary to hire a more qualified security guard and failed to perform a background check that would have revealed Freeman’s felony conviction.

Agro argues that Plaintiff’s SAC at most describes actions that amount to gross negligence. Agro also argues that the SAC fails to allege facts that demonstrate Agro had actual knowledge of Freeman’s unfitness. Lastly, Agro argues the SAC fails to allege facts showing that Agro authorized or ratified Freeman’s conduct.

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., section 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. section 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ. Code, section 3294, subd. (a).)

“Malice is defined in the statute as conduct 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.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725 [examining Civ. Code, section 3294, subd. (c)(1)].) “A conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.)

“As amended to include [despicable], the statute plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. [Citations.] 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. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation. [Citation.]” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166 (footnote omitted).)

When seeking damages from an employer, an employer is not liable for punitive damages arising from an employee’s actions pursuant to Cal. Civ. Code section 3294(a) 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. (Cal. Civ. Code section 3294(b).) 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. (Id.)

Agro requests judicial notice of Plaintiff’s SAC, FAC, and the minute order granting Agro’s motion to strike Plaintiff’s FAC. The request is denied because it is unnecessary. The Court may always refer to the pleadings and orders in the matter at hand.

Before filing a demurrer and motion to strike, the demurring and moving party is required to meet and confer with the party who filed the pleading demurred to and sought to be stricken in person or by telephone for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the issues in argued in the demurrer and motion to strike. (Code of Civ. Proc. sections 430.41; 435.5.)

Agro states its counsel met and conferred with Plaintiff’s counsel regarding punitive damages in Plaintiff’s SAC. (Motion, Exhibit 4.) However, it appears this meet and confer attempt took place via email. That is insufficient under Code of Civ. Proc. sections 430.41; 435.5 which requires the parties to meet and confer in person or via telephone. Nevertheless, failure to meet and confer is not a basis for denial.

Here, Plaintiff’s SAC states that Agro began appointing warehouse workers as security guards after being unable to fund an experienced security guard for Agro’s warehouse. (SAC, ¶22.) Dennis Redmond, an Agro security guard, did not receive training. (SAC, ¶24.) On one previous occasion, the Sheriff’s office responded to altercations at the warehouse between Redmond and another truck driver. (SAC, ¶25.) Altercations took place on numerous occasions and Karo was normally called to the scene. (SAC, ¶27.) The Sheriff was called to the Agro warehouse 90 times between January 2010 and September 2019. (SAC, ¶35.) Agro should have known that due to the high stress nature of the operations at Agro’s warehouse facility, altercations would occur between Agro’s security and the truck drivers. (SAC, ¶58.) Freeman was “incompetent and unfit to perform the work he was hired to do, as he was an inherently violent man who was known to have a violent temper and cause altercations, including but not limited to prior incidents at” the Agro warehouse. (SAC, ¶85.) Agro failed to perform background checks on Freeman prior to hiring him to provide warehouse security. (SAC, ¶86.)

Plaintiff’s SAC contains new allegations regarding the number of previous altercations that took place at the Agro warehouse, the security guards’ lack of training, and the guards’ lack of experience. However, this conduct is again more demonstrative of negligent or even grossly negligent behavior. Although the SAC describes a machete attack on Redmond, this allegation speaks to the actions of the truck driver wielding the machete, not Agro’s security guards. There are no facts alleged in the SAC showing Agro had advance knowledge that Freeman had tendencies to cause harm. Although the allegations show Agro had advance knowledge of Freeman’s incompetence due to a lack of experience and training, the alleged conduct at most rises to the level of gross negligence, not conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Additionally, there are no facts showing that Agro’s actions after the incident ratified Freeman’s actions. Rather, the SAC alleges Freeman was terminated after the incident at issue. (SAC, ¶26.)

The SAC does allege that based on Sheriff’s Department Records, on April 6, 2019 (about five months before the incident at issue here), the Sheriff was called to the warehouse location because Defendant Freeman punched a truck driver in the face. (SAC, ¶35(e).) The SAC further alleges that Defendant Agro does not have any records relating to this incident. (SAC, ¶36.) The SAC does not allege that anybody at Agro had knowledge of Defendant Freeman punching another truck driver, much less an officer, director, or managing agent of the corporation. Under these circumstances, Plaintiff has not sufficiently alleged a claim for punitive damages against Agro.