Judge Jill Feeney, Case 21STCV37822 2022-10-19 Tentative Ruling

This is an action for wrongful death and negligence arising from a vehicle accident which resulted in the death of Ana Elena Moreno Santos (“Decedent”). Plaintiffs Marvin Merino and Jezebel Moreno, a minor, by and through her Guardian ad Litem, Marvin Merino filed their complaint against Juan Carlos Menjivar, Dewayne Maurice Floyd, and Dart International on October 13, 2021.

Moving Defendants argue that Plaintiffs’ Complaint contains only legal conclusions in support of their demand for punitive damages. Defendant Floyd’s act of parking his semi-truck on the side of an interstate highway alone does not show a conscious disregard for the safety of others.

Plaintiffs argue that Defendant Floyd’s conduct as alleged in the TAC is sufficient to support a claim for punitive damages because he knowingly parked his truck along a busy freeway and chose not to use his reflective triangles. Plaintiffs also argue that Defendant Dart International’s conduct, allowing Floyd to remain illegally parked without correcting his conduct, also demonstrates a conscious disregard of the rights or safety of others.

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 of Civ. Proc., § 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. § 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 acted with oppression, fraud or malice. (Civ. Code, § 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 § 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. (See Code of Civ. Proc. §§ 430.41; 435.5.)

Moving Defendants’ Counsel’s declaration appears to show Moving Defendants attempted to meet and confer via email, rather than by telephone or in person. (Snyder Decl., ¶ 7.) Moving Defendants did not properly meet and confer with Plaintiff prior to filing this motion, however that is not a basis for denying the motion.

As a rule of law, it has long been established one cannot recover punitive damages for a wrongful death claim under California law. (Ford Motor Co. v. Superior Court (1981) 120 Cal.App.3d 748, 751; Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 450.)

As with the SAC, Plaintiffs’ TAC alleges that on August 15, 2021, Floyd and International Dart caused a truck to be parked illegally on the shoulder of the road without any warning signs. (TAC, ¶14.) Defendant Menjivar was driving his Lexus at high speed while under the influence of alcohol and/or drugs and crashed into the truck. (Id., ¶15.) The crash caused the death of Ana Elena Moreno Santos. (Id., ¶16.)

Plaintiffs’ TAC adds that Floyd’s trailer did not have the reflective stickers as advised by California Commercial Driver’s License Manual. (TAC, ¶15.) Floyd did not use free standing reflectors or reflective cones in a specified pattern leading to his stopped tractor trailer. (TAC, ¶16.) The TAC alleges that Floyd and International Dart’s officers and directors knew that CalDOT and FMCA regulations require that a tractor trailer rig must not be stopped in an emergency zone or otherwise park along a highway, unless actively disabled or due to another emergency. (TAC, ¶16.) The TAC further alleges that Floyd and International Dart knew that a tractor trailer parked along a public highway without the use of standing reflectors posed a substantial risk of collision involving serious injury or death of another motorist. (TAC, ¶17.) International Dart’s officers and directors knew of the probable consequences of Floyd’s actions and ratified them, choosing not to follow or comply with the rules governing tractor trailers. (TAC, ¶18.)

As before, the facts alleged in the TAC are insufficient to support a claim for punitive damages as to Moving Defendants because there is no evidence that Moving Defendants acted with a conscious disregard for the safety of others or that their conduct was despicable.

The California Supreme Court held in Taylor that “the act of operating a motor vehicle while intoxicated may constitute an act of ‘malice’ under section 3294 if performed under circumstances which disclose a conscious disregard of the probable dangerous consequences.” (Taylor v. Superior Court (1979) 24 Cal. 3d 890, 892.) Punitive damages may be sought where the allegations lead to the conclusion that “defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Id. at pp. 895-896.) In Taylor, the Supreme Court issued a writ directing the trial court to overrule the defendant’s demurrer to plaintiff’s punitive damages prayer based on a finding that the plaintiff’s allegations in that case met this standard.

The complaint in Taylor alleged, not only that defendant was intoxicated at the time of the accident, but also that he “had previously caused a serious accident while driving under the influence of alcohol; that he had been arrested and convicted for drunken driving on numerous prior occasions; that at the time of the accident . . . [defendant there had] recently completed a period of probation which followed a drunk driving conviction; that one of his probation conditions was that he refrain from driving for at least six hours after consuming any alcoholic beverage; and that at the time of the accident in question he was presently facing an additional pending criminal drunk driving charge.” (Id. at 893.) What is more, the complaint alleged that defendant was already intoxicated and continuing to drink alcohol in his vehicle at the time of the accident. (Ibid.)

Penner involved an incident where the plaintiff there was assaulted by intruders and sought punitive damages against his landlord. Like Taylor, the demand for punitive damages in Penner was supported by many facts, including that the defendants there knew of safety issues and tenants’ previous requests for safety improvements. (Penner v. Falk (1984) 153 Cal.App.3d 858, 867.) The landlord knew of existing safety problems for at least two years, had the power to make changes, and failed to take corrective and curative measures. (Id.)

The complaint in G.D. Searle alleged that the plaintiff there suffered injuries caused by an oral contraceptive and demanded punitive damages on the grounds that the defendants “wrongfully, knowingly, and willfully acted in complete disregard of plaintiff's implicit reliance upon defendants' implicit representations of safety.” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 27.) Punitive damages were denied in G.D. Searle because the complaint failed to show defendants knew of the dangerous potential of its product, only that unspecified products of the same type might cause injury. (Id at 32.) Additionally, the complaint did not allege that defendants knew its implicit representations of safety were false. (Id.) The complaint’s conclusory allegations that defendants’ conduct was willful failed to allege directly or in equivalent terms that defendants intended to injure its consumers or that defendants acted with conscious disregard of their safety. (Id.)

After Taylor, the Legislature amended the “malice” standard interpreted by the Supreme Court in that case to add the requirement that malicious conduct under section 3294 be shown to be “despicable” and “willful.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1211.) As noted above, “[t]he statute’s reference to ‘despicable conduct’ represent[ed] ‘a new substantive limitation on punitive damage award.’” (Ibid. (quoting College Hospital Inc. v. Superior Court, supra, 8 Cal.4th at p. 725).) Consequently, punitive damages must be supported by facts that show both a willful disregard for the probable consequences of one’s actions and despicable conduct.

Here, as with G.D. Searle, Plaintiffs’ allegations that Moving Defendants acted willfully are conclusory. The TAC adds that Floyd’s did not comply with CalDOT and FMCA regulations by failing to equip his trailer with reflective stickers, stopping illegally on a highway, and failing to use reflective cones leading to the parked trailer. Merely failing to comply with regulations alone does not show that Floyd or International Dart knew of the probable consequences of parking the trailer and willfully ignored them. The TAC repeatedly states Floyd and knew of the probable consequences of his actions but does not state facts to support this allegation. Conclusory statements unsupported by facts are insufficient to sustain a claim for punitive damages. Unlike Taylor or Penner, where punitive damages were upheld because of detailed facts such as past incidents or advanced knowledge showing willful conduct, here, Plaintiff only alleges Moving Defendants failed to use reflective stickers and cones. Moreover, this conduct was not despicable because it was not so vile, base, contemptible, miserable, wretched, or loathsome that it would be looked down upon and despised by ordinary decent people. Absent additional facts, the Court cannot find that sufficient facts have been pled with respect to punitive damages.

Plaintiffs also seek punitive damages from Floyd’s employer, Dart International. Plaintiffs fail to name any officers or directors or state any facts showing they had advance knowledge of Floyd’s unfitness or that they ratified his actions. Again, conclusory allegations restating the standard for punitive damages are insufficient to allege a claim for punitive damages. Plaintiffs also state that Dart International had knowledge of the rules governing tractor trailers issued by CalDOT and FMCA, and would thus have known that that Floyd’s actions would result in severe injury or violent death of other motorists. However, this inference is speculative and again is not a fact which would show the company’s officers or directors were aware of the consequences of Floyd’s actions and willfully disregarded them or ratified Floyd’s actions.

Plaintiffs also rely heavily on a Traffic Collision Report which states the decedents involved in this matter were both decapitated. (Opp., p.3.) However, this is extraneous evidence not included in the TAC that cannot be considered. Even if it was included in the TAC, this fact has no bearing on whether Moving Defendants willfully disregarded the safety of other motorists or their conduct was despicable.