Judge Jill Feeney, Case 22STCV19263 2022-10-03 Tentative Ruling

The Court notes that with respect to paragraphs 43, 54 and 63 only the following words are stricken from those paragraphs: “punitive or exemplary damages” and only as to Defendant Glendale Dodge.

This is an action for negligence, negligent hiring and supervision or retention, and negligent entrustment arising from a vehicle-pedestrian collision which took place in September 2020 and resulted in the death of Decedent Nigoghos Sarkeesian. On June 13, 2022, Plaintiffs Fyona Mudsyan, Nigoghos, Anita Sarkeesian-Asadorian, and the Estate of Sarkees Nigoghos Sarkeesian, by and through the successor-in-interest, Fyona Musdyan filed their Complaint against Defendants Akop and Ovsep Daniyelyan, and Alejandro and Mariana Garcia, and Glendale Dodge, LLC.

As a direct and proximate result of the negligence of Defendants Akop Daniyelyan, Alejandro Garcia, Glendale Dodge, and Does 41 through 100, inclusive, and each of them, as herein stated. Decedent suffered pre-death physical injuries, mental anguish, terror, anxiety, unconsciousness, and ultimately death. This paragraph pertains to the survival action damages of The Estate pursuant to California Code of Civil Procedure sections 377.30 and 377.34 which provide that the damages recoverable under the survival action include the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived.

Moving Defendants argue that the Complaint fails to state facts demonstrating Glendale Dodge, as Defendant Garcia’s employer, knew of and approved Garcia’s alleged conduct. Furthermore, Glendale Dodge contends that there is no legal basis for the imposition of attorney’s fees.

In opposition, Plaintiffs argue that their Complaint sufficiently alleges that Defendant Alejandro Garcia consciously disregarded the safety of others because he was aware of the probable and dangerous consequences of his conduct and willfully and deliberately failed to avoid these consequences. The Complaint further alleges that Glendale Dodge authorized Alejandro Garcia to drive and use its Dodge Charger to run an errand at the time of the accident.

Moving Defendant argues on reply that damages against a corporate entity must allege specific acts of corporate officers with power to bind the corporation or ratification or advance knowledge that the employees would so act. The Complaint does not include any names of other employees of Glendale Dodge other than Garcia.

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).)

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.)

Moving Defendant’s Counsel’s declaration and attached emails appears to show Moving Defendant attempted to meet and confer via email. (Carranza Decl., ¶3; Exhibit B.) This is insufficient under Code of Civ. Proc., section 435.5, subd. (a), which requires that the parties meet in person or by telephone. Failure to confer, however, is not a basis for denying the motion.

Moving Defendant seeks to strike Plaintiffs’ prayer for punitive damages on the grounds that they have not alleged facts to show Defendants acted with conscious disregard for the safety of others or demonstrated despicable conduct.

Plaintiffs allege that Decedent was struck by Defendant’s vehicle in September 2020 while he was walking on the east sidewalk of Brand Boulevard near the Maple Street intersection in Glendale, California. (Compl., ¶¶13, 17.) Defendant Alejandro Garcia was driving a 2018 Dodge Charger northbound on Brand Boulevard. (Compl., ¶15.) Garcia was driving on Brand Boulevard at a high rate of speed. (Compl., ¶16.) While attempting to change lanes, Defendant Akop Daniyelyan’s vehicle collided with Garcia’s. (Compl., ¶17.) Their vehicles then collided with a third parked vehicle that was pushed onto the sidewalk, striking Decedent. (Compl., ¶17.) Decedent died of his injuries. (Compl., ¶21.)

Plaintiffs allege Garcia was driving a vehicle owned by Mariana Garcia. (Compl., ¶25.) Garcia was working within the scope of his employment with Glendale Dodge at the time of the accident, which authorized Garcia’s use of the Dodge Charger to perform an errand for the company. (Compl., ¶¶26, 27.) Glendale Dodge should have known that their conduct was likely to harm and endanger others and acted unreasonably without concern for the safety or well-being of others. (Compl., ¶28.) The Complaint also alleges Akop Daniyelyan was intoxicated and driving on a suspended license at the time of the incident. (Compl., ¶34.) Garcia was driving his vehicle at a speed greater than was reasonable. (Compl., ¶34.)

An employer is not liable for punitive damages arising from an employee’s actions pursuant to California Civil 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.)

Here, Plaintiffs’ Complaint fails to state facts sufficient to support a claim for punitive damages against Glendale Dodge, Garcia’s employer. The Complaint states that Glendale Dodge authorized Garcia’s use of the Dodge Charger to run an errand for the company. There are no facts naming corporate officers. Additionally, there are no facts alleging Glendale Dodge had advance knowledge of Garcia’s unfitness, advance knowledge of Garcia’s conduct, or ratified Garcia’s conduct. Accordingly, Glendale Dodge’s motion to strike punitive damages is granted.

Plaintiffs also seek attorney’s fees from Glendale Dodge. These fees are only allowable under Code of Civil Procedure Section 1033.5, subd. (a)(10) when authorized by contract, statute, or law. There is no evidence attorney’s fees are allowable here.