Judge Jill Feeney, Case 20STCV15750 2023-01-11 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.

On September 15, 2022, Defendants Agro Merchants Corporation, Agro Merchants North America Holdings, Inc., and Agro Merchants Carson, LLC (collectively “Agro”) filed the instant motion to strike.

On October 12, 2022, the Court granted Agro’s motion to strike punitive damages and denied CMG’s joinder to Agro’s motion. The minute order provided that CMG had 30 days to file an answer or other responsive pleading.

CMG seeks to strike the portions of Plaintiff’s SAC which demand punitive damages, including in paragraphs 11, 20, 21, 33, 74, 75,78, 79, 80, 81, and paragraph (h) of the prayer for relief. CMG argues that it is a separate entity from Citistaff and that it assigns only clerical workers to various businesses in California.

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.)

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.)

CMG’s counsel testifies that he met and conferred with Plaintiff’s counsel regarding punitive damages in Plaintiff’s SAC via email. (Slater Decl., ¶4.) Although meeting and conferring via email insufficient under Code of Civ. Proc. sections 430.41; 435.5 which requires the parties to meet and confer in person or via telephone, failure to meet and confer is not a basis for denial.

CMG seeks to strike Plaintiff’s demands for punitive damages on the grounds that (1) there was no employer-employee relationship between CMG and Freeman, (2)Plaintiff made no allegations establishing CMG’s despicable conduct to support a claim for punitive damages, (3) there are no factual allegations demonstrating CMG’s prior knowledge of Freeman’s alleged unfitness, and (4) there are no factual allegations demonstrating CMG authorized or ratified Freeman’s conduct.

Plaintiff’s SAC states that CMG is an employment and staffing agency that had a contract with Defendant Agro to provide employees to work on Agro’s premises. (SAC, ¶¶17-18.) CMG knew that up to 120 trucks picked up goods at Agro’s premises and that truck drivers were stressed and under intense time constraints. (SAC, ¶18.) On one previous occasion, the Sheriff’s office responded to altercations at the warehouse between security guard Redmond and another truck driver. (SAC, ¶25.) Altercations took place on numerous occasions and Agro’s President, Steve 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.)

All Defendants knew or should have known that it was reasonably foreseeable that persons on the premises, including truck drivers, would suffer serious injury as a result of the lack of qualified supervision or security at the Agro warehouse and deliberately continued with their practices in conscious disregard for the health and safety of visitors to the warehouse. (SAC, ¶62.) All Defendants failed to maintain safety and security on the premises. (SAC, ¶71.) All Defendants, including CMG, hired Freeman. (SAC, ¶83.) 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.) All Defendants failed to train and supervise Freeman and chose to retain him despite knowing of his violent tendencies. (SAC, ¶87.)

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.

Plaintiffs’ SAC fails to allege facts showing an officer, director, or managing agent of CMG had advanced knowledge of Freeman’s unfitness. Although the SAC describes a machete attack on Redmond, this allegation speaks to the actions of the truck driver wielding the machete, not Defendants’ security guards. Although the allegations allege that CMG 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. It is not despicable conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Conclusory allegations that CMG had advanced knowledge of Freeman’s violent tendencies are conclusions insufficient to support a demand for punitive damages.

There are also no facts showing that CMG’s actions after the incident ratified Freeman’s actions. The SAC does not name any officers, directors, or managing directors of CMG and does not allege that they knew of Freeman’s propensity for violence or ratified Freeman’s conduct.

CMG also points to facts outside of the SAC that CMG did not employ Freeman and that CMG only employs clerical workers. These facts are extraneous to the SAC and cannot be considered. Even if they were, the SAC fails to state facts sufficient to support a demand for punitive damages against CMG.