Judge Jill Feeney, Case 22STCV21160 2022-10-27 Tentative Ruling

This is an action for negligence arising from a trip and fall incident which took place in October 2020. Plaintiff Irene Ruffinelli filed her Complaint against Defendants Martin Fox, the Martin B. Fox Living Trust, and New Cingular Wireless PCS, LLC dba AT&T Mobility on June 29, 2022.

Michael Fox and the Michael B. Fox Living Trust (“Fox Defendants”) filed separate motions to strike. However, they appear to be identical. Both allege that Plaintiff’s Complaint fails to state facts sufficient to sustain a demand for punitive damages. The Fox Defendants also seek to strike the demand for attorney’s fees.

1. Page 6, ¶15: “Defendants' conduct described herein-above was committed with reckless disregard of plaintiff s rights and/or with oppressive intent, entitling Plaintiff to a further award of exemplary damages.”

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 has been guilty of oppression, fraud or malice. (Civ. Code, § 3294, subd. (a).) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).)

“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.)

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.

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.)

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice. (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.) Gross negligence is defined as “the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or others.” (CACI No. 425.)

The allegations supporting a request for punitive damages must be alleged with specificity; conclusory allegations without sufficient facts are not enough. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)

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.)

Defendants’ Counsel submitted a declaration which states that he and Plaintiff’s counsel met and conferred via telephone and were unable to resolve their issues with Plaintiff’s Complaint. (Lerman Decl., ¶3.)

The Fox Defendants move to strike punitive damages on the grounds that Plaintiff’s Complaint fails to state facts sufficient to support a demand for punitive damages.

Plaintiff’s Complaint states that on October 28, 2020, Plaintiff tripped and fell over a wheel stop or parking bumper in the parking lot at Moving Defendants’ property located at 24520 Crenshaw Blvd. in Torrance, CA. (Compl., ¶¶1, 5. ) The wheel stop was close to and behind the bollards, which were taller than the wheel stop and drew attention to itself and away from the wheel stop. (Compl., ¶11b.) The wheel stop was painted blue, which blended in with the blue lines on the ground. (Compl., ¶11c.) The wheel stops were located at or near the sides of the parking stalls. (Compl., ¶11d.) Plaintiff fell directly in front of the exit to the AT&T store. (Compl., ¶11e.) The wheel stops failed to conform with the standards on walking surfaces published by the American Society for Testing and Materials. (Compl., ¶12.)

The Complaint further states Moving Defendants “knew or, through the exercise of reasonable care, should have known that these features of the parking lot singly and in combination created an unreasonable risk of injury. Defendants failed to repair the condition, protect against harm from the condition, or give adequate warning of the condition, and failed to exercise reasonable care for the safety of their patrons, including plaintiff.” (Compl., ¶13.) Additionally, Defendants’ conduct was “committed with reckless disregard of Plaintiff’s rights and/or with oppressive intent, entitling Plaintiff to a further award of exemplary damages.” (Compl., ¶14.)

Plaintiff’s Complaint states that Plaintiff tripped and fell over a wheel stop that was too close to a set of bollards, blended into the ground, and were placed at the side of a parking stall. Aside from a conclusory statement that Moving Defendants acted with reckless disregard or oppressive intent, there are no facts demonstrating that Moving Defendants knew of the probable dangerous consequences of building the wheel stops in the manner described and willfully and deliberately failed to avoid those consequences. There are also no facts to support that building the wheel stops in the manner described constituted despicable behavior.

Plaintiff argues that the Complaint states facts indicating recklessness because the dangerous wheel stops have since been altered. However, this is an unsupported fact not contained in the Complaint that will not be considered. Moreover, it appears to be a remedial measure which may not be considered.

Plaintiff also argues that Moving Defendants had multiple opportunities over the years to correct the hazard. Again, this is an extraneous fact not included in the Complaint that cannot be considered.

Lastly, Plaintiff argues that Plaintiff’s advanced age justifies an award of punitive damages citing to Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640. The case and the factors Plaintiff references in her opposition concern whether an award was excessive in light of Plaintiff’s age. This has no bearing on whether punitive damages are available here.

With respect to Plaintiff’s demand for attorney’s fees, these fees are only allowable under Code Civ. Proc. section 1033.5, subd. (a)(10) when authorized by contract, statute, or law. There is no evidence attorney’s fees are allowable here.