Judge Jill Feeney, Case 22STCV21160 2023-02-02 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”) argue 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.

Plaintiff withdraws the request for attorney’s fees. Plaintiff also argues that she has amended her Complaint to include facts that show Defendants chose to create a danger, knew of the danger, and chose to allow the danger to continue existing.

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.

“Used in its ordinary sense, the adjective ‘despicable’ is a powerful term that refers to circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’” (College Hosp., Inc. v. Sup.Ct. (Crowell) (1994) 8 C4th 704, 725 (quoting Oxford English Dictionary (2nd ed. 1989).) CACI defines “despicable conduct” as “conduct that is so mean, vile, base, or contemptible that it would be looked down on and despised by reasonable people.” (CACI 3941.)

Thus, punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’ [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.) “As amended to include [despicable], the [Civil Code section 3294] 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. v. Superior Court (1994) 8 Cal.4th 704, 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.)

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.) 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.)

“[T]he imposition of punitive damages upon a corporation is based upon its own fault. It is not imposed vicariously by virtue of the fault of others.” (City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal.App.3d 31, 36.) “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive. An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees. But the law does not impute every employee’s malice to the corporation. Instead, the punitive damages statute requires proof of malice among corporate leaders: the ‘officer[s], director[s], or managing agent[s].’” (Cruz v. Home Base (2000) 83 Cal.App.4th 160, 167 [citation omitted].) As to ratification, “[a] corporation cannot confirm and accept that which it does not actually know about.’” (Ibid. [citing College Hospital, Inc., supra, 8 Cal.4th at p. 726 [for ratification sufficient to justify punitive damages against corporation, there must be proof that officers, directors, or managing agents had actual knowledge of the malicious conduct and its outrageous character]].)

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.)

As before, 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. (FAC ¶¶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. (FAC ¶11b.) The wheel stop was painted blue, which blended in with the blue lines on the ground. (FAC ¶11c.) The wheel stops were located at or near the sides of the parking stalls. (FAC ¶11d.) Plaintiff fell directly in front of the exit to the AT&T store. (FAC ¶11e.) The wheel stops failed to conform with the standards on walking surfaces published by the American Society for Testing and Materials. (FAC ¶12.)

The FAC 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.” (FAC ¶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.” (FAC ¶14.)

Plaintiff’s FAC now also states that Defendant’s conduct was committed with reckless disregard for Plaintiff’s rights. (FAC ¶15.) Defendant Martin Fox knew that the place where the fall occurred was not safe and was very probable to cause injury. (FAC ¶16.) It did not matter to Martin Fox whether someone was injured at his property. (FAC ¶16.) The area where Plaintiff fell was intended and designed to be a pedestrian walkway. (FAC ¶17.) The area then became parking spaces and a decision was made to revisit and consider, and reconfigure the area and place the wheel stop where it sits now. (FAC ¶17.) Plaintiff again describes the hazard. (FAC ¶18.) Plaintiff also alleges that the improvements were made over the course of years with indifference to the increased danger of injury. (FAC ¶19.)

As before, the FAC 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. The FAC now also states that Defendant Michael Fox knew that the area was dangerous and failed to change it. This fact is sufficient to show that Fox acted with a willful disregard for the probable consequences of his actions.

However, the facts are still insufficient to show that placing a wheel stop too close to a set of bollards is despicable behavior. Plaintiff’s facts at most show that Defendants slowly turned a pedestrian walkway into parking spaces, placed the wheel stops too close to the bollards, Michael Fox became aware of the hazard, and then did not remove the hazard. As before, merely placing a wheel stop too close to a set of bollards is demonstrative of negligent or grossly negligent behavior and does not rise to the level of despicable behavior.

Plaintiff also argues that the motion calls for weighing and/or a determination of facts which is premature at this stage because discovery is still ongoing. However, because the FAC fails to state facts sufficient to plead the elements of punitive damages, the matter may properly be stricken.

Plaintiff also relies on Nolin v. National Convenience Stores, Inc. (1979) to show that punitive damages are proper against a defendant who was aware of and indifferent to a danger and chose not to fix the danger. However, Nolin predates the 1987 amendment to Civ. Code, section 3294 adding despicable conduct to the definition of malice.