Judge: John C. Gastelum, Case: 20-01153512, Date: 2022-08-09 Tentative Ruling
(1) Motion to Strike (2) CMC
Tentative Ruling: Defendants Target Corp. and Fit for Life, LLC move to strike all claims and references related to punitive damages on the grounds the FAC fails to plead sufficient facts to support an award of punitive damages. The motion to strike is DENIED. Defendants to file their Answer within 20 days.
Pursuant to Civil Code section 3294(a), a plaintiff may seek punitive damages for “oppression, fraud, or malice.” Section 3294(c) defines “malice” as conduct which is intended to cause injury or despicable conduct carried on with a willful and conscious disregard of the rights or safety of others. Similarly, section 3294(c) defines “oppression” as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. Lackner v. North (2006) 135 Cal.App.4th 1188 explains “despicable conduct” is conduct that is “so vile, base, contemptible, miserable, wretched or loathsome that is would be looked down upon and despised by ordinary decent people.” (Id. at 1210.)
Under California law, to establish malice, it is not sufficient to show defendant’s conduct was negligent, grossly negligent or even reckless, since such findings will not support a claim for punitive damages. (See Flyers Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1968) 185 Cal.App.3d 1149, 1154 to 1155.) Further, punitive damages cannot be pled in conclusory terms, instead the facts supporting a claim for punitive damages must be set out clearly, concisely, and with particularity. (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041 to 1042.)
In addition, in Mock v. Michigan Miller’s Mutual Ins. Co. (1992) 4 Cal.App.4th 306, the court noted despicable conduct means conduct that is so vile, wretched, and loathsome that it would be looked down upon by decent people. (Id., at 331.) Similarly, in College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, our Supreme Court explained:
...the statute’s reference to “despicable” conduct seems to represent a new substantive limitation on punitive damage awards. Used in its ordinary sense, the adjective “despicable” is a powerful term that refers to circumstances that are “base”, “vile,” or “contemptible.” (Citation omitted.) As amended to include this word, 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. (Citation omitted.)” (Id., at 725.)
Malice is defined by Civil Code section 3294(c)(1) as “... conduct which is 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.” Section 3294.1(c)(1) is stated in the disjunctive, so either prong is sufficient.
In addition, with regards to a corporate defendant, section 3294(b) requires that, where punitive damages are sought based upon the conduct of an employee of a corporate entity, plaintiff must show that an officer, director, or managing agent of the corporation had advance knowledge of the employee’s unfitness, or authorized or ratified the wrongful conduct. “Managing agents” are employees who “exercise [ ] substantial discretionary authority over decisions that ultimately determine corporate policy.” (See Cruz v. Homebase, Inc. (2000) 83 Cal. App. 4th 160, 167-68. See also Roby v. McKesson Corp. (2009) 47 Cal. 4th 686, 714-15.)
“An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, 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. 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.” (Civ. Code § 3294 (b).)
In opposition, Plaintiff cites the following authority in support of punitive damages: “Marketing a product that is known to be defective and dangerous to consumers supports an inference of malice for purposes of punitive damages.” (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1230. ) When a company knows or should know that a product is likely to pose a risk to purchasers, but continues to market that product without conducting testing, without making alterations, or without providing warnings, that company is liable for punitive damages. (See Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1300 (affirming award of punitive damages in products liability case).) A company’s refusal to consider questions about the safety of a product and failure to test a product in the face of those concerns also constitutes grounds for punitive damages under current California law. (Johnson v. Monsanto Company (2020) 52 Cal.App.5th 434, 456 (affirming punitive damages and holding that a failure to test a product despite having reason to know of potential safety issues could constitute despicable conduct); see also West v. Johnson & Johnson Products, Inc. (1985) 174 Cal.App.3d 831, 869 (holding plaintiff showed conscious disregard of safety where manufacturer consciously chose to avoid testing its product despite knowing of problems and consumer complaints).)
Here, the FAC alleges each of the Doe defendants conspired with and participated with the other defendants in engaging in the wrongful conduct alleged in the FAC. (FAC., ¶¶ 5-9.)
On April 3, 2020, Plaintiff was severely injured when the door attachment and/or fitness cable of exercise equipment known as the Ignite by SPRI Pro Resistance Cord – suddenly and without warning – struck him in the face. At the time of the incident, Plaintiff was performing curls like the model on the front of the box the SPRI Pro Resistance Cord came in and Plaintiff was looking straight ahead. Plaintiff sustained immediate loss of vision in his right eye. (FAC ¶ 12).
Plaintiff alleges that SPRI designs, manufactures and distributes fitness products. (FAC ¶ 13.) In April of 2020, Plaintiff purchased the Ignite by SPRI Pro Resistance Cord at Target. (FAC ¶ 19.) SPRI designed and produced the SPRI Packaging, Exercise Guide, Safety Guide and Door Attachment, which did not contain sufficient warnings. (FAC ¶¶ 27-71.) In addition, the Door Attachment was defective in that the door attachment was attached in such a way as to place the user at risk of being struck and injured. (FAC, ¶¶ 72-88.)
The U.S. Consumer Product Safety Commission (“CPSC”) has issued recalls of other resistance bands that posed safety hazards similar to the safety hazards posed by the SPRI Pro Resistance and its Door Attachment. (FAC, ¶¶ 90-104.) Even though Defendants were aware of the recalled products and that the subject product had the same hazardous components and design failures, Defendants continued to manufacture and sell the dangerous product. (Ibid.)
Defendants knew or should have known that the CPSC's recalls of the aforementioned products were good cause for them: (a) to re-evaluate the safety hazards posed by the subject product's attachment; (b) to re-evaluate the warnings and instructions concerning the subject product's attachment; and (c) to redesign the warning system to ensure they provided adequate warnings of the hazards/risks of pulling the fitness cable in alignment with the user's head, face and eyes. (FAC ¶ 103.)
Defendants were fully aware of (a) the hazards of a resistance band's snapping back, striking the users' eyes and causing blindness and (b) the importance of the designer/manufacturer/retailer's providing adequate warnings of safety precautions concerning users' eyes such as the use of safety glasses or goggles, no later than August 2009, almost 11 years before Plaintiff purchased the subject product. (FAC ¶ 104.)
Defendant Fit for Life, LLC manufactured products with tubing that would break, resulting in injuries to the user. Defendant Fit for Life, LLC similarly manufactured products with door attachments that could break or detach, causing them to strike the user. Defendant Fit for Life, LLC knew that the product that caused Plaintiff injury suffered from the same defects that were recalled by the CPSC. (FAC ¶ 105.)
Target knowingly sold products with tubing that would break, resulting in injuries to the user. Target similarly sold products with door attachments that could break or detach, causing them to strike the user. Target knew that the product that caused Plaintiff injury suffered from the same defects that were recalled by the CPSC. (FAC ¶ 106.)
The marketing materials repeatedly show users disregarding the warnings contained in the SPRI Packaging. (FAC ¶ 107.) Nothing prevented Defendants from eliminating the images/demonstrations of users' pulling the fitness cable in alignment with or near their faces while staring at the fitness cable without protective glasses from the back of the SPRI Packaging, the Exercise Guide, the Safety Guide and the Attachment Hang Tag. (FAC ¶ 108.) Defendants' failures to remove all of those images/demonstrations years before Plaintiff purchased the subject product reflected a conscious disregard for consumers' safety. (Ibid.)
Nothing prevented Defendants from including conspicuous warnings on the packaging. (FAC ¶ 109.) There is no justification for Defendants' failures to include such warnings on the SPRI Packaging, the Exercise Guide, the Safety Guide and the Attachment Hang Tag before Target purchased the subject product. Defendants elected not to include such warnings to maximize their profits (by maintaining or increasing the sales of the subject product) at the expense of ordinary consumers' safety. (Ibid.)
Before Target offered the SPRI Pro Resistance for sale to ordinary consumers and users such as Plaintiff, Target knew that fewer SPRI Pro Resistance Cord units would be sold (and, therefore, its profits would be decreased) if: (a) there were warnings on the exterior of the SPRI Packaging, on the Exercise Guide, in the Safety Guide and/or on the Attachment Hang Tag that users should never pull fitness cables so that the stretched cables line up with their faces or other sensitive parts of their bodies; user should never look in the direction of the cables and/or attachment while in use; it is necessary for users to wear protective eyewear when utilizing the fitness cables and (b) such warnings were conspicuous to ordinary consumers and users such as Plaintiff. Such knowledge by Target motivated them not to add such warnings to the exterior of the SPRI Packaging, the Exercise Guide, the Safety Guide and/or the Attachment Hang Tag. Accordingly, Target deliberately chose their profits over ordinary consumers' safety. (FAC ¶ 111.) Such knowledge by Target motivated it not to request and/or require SPRI to ensure that such warnings in the Exercise Guide or Safety Guide be more conspicuous to ordinary consumers and users such as Plaintiff. Accordingly, Target deliberately chose its profits over ordinary consumers' safety. (FAC ¶ 113, 115, 117.)
At all times relevant to this action, Defendants knew or should have known that: (a) Defendants failed to warn and/or failed to provide adequate warnings to ordinary consumers and users of the SPRI Pro Resistance Cord such as Plaintiff of the risks and dangers of using the SPRI Pro Resistance Cord and, more specifically, pulling the fitness cables such that they line up with the user's face and other sensitive parts of the user's body; not removing the attachment prior to using the fitness bands; and not wearing protective glasses during use of the fitness bands (b) Defendants failed to warn and/or failed to provide adequate warnings to ordinary consumers and users of the SPRI Pro Resistance Cord such as Plaintiff of the risks and dangers of not removing the attachment before use; (c) the design of the SPRI Pro Resistance Cord’s attachment was defective as alleged herein; (d) the SPRI Pro Resistance Cord and its attachment could not safely be used in the manners intended and reasonably foreseeable because of the failures to warn alleged herein, the inadequate warnings alleged herein, and the design defects alleged herein; (e) the SPRI Pro Resistance Cord and its attachment would be sold to and used by the general public without adequate consideration of the risks and dangerous of using the SPRI Pro Resistance Cord as a pulley system and without inspection for defects; and (f) Defendants' placement of the SPRI Pro Resistance Cord and its attachment on the market was in willful and conscious disregard of the safety of the general public. (FAC ¶ 118.)
Defendants' conduct as alleged herein was malicious because it was despicable conduct carried on with a willful and conscious disregard for the safety of others. Defendants' conduct as alleged herein was despicable in that it was so base or contemptible that it would be looked down upon and despised by ordinary decent people. Defendants' conduct as alleged herein was carried on with a willful and conscious disregard for the safety of others in that they were: aware of the probable dangerous consequences of their conduct and willfully and deliberately failed to avoid those consequences. (FAC ¶ 120.) Defendants' conduct as alleged herein was oppressive because it subjected a person to cruel and unjust hardship in conscious disregard of that person's rights. (FAC ¶ 121.) Defendants' conduct as alleged herein was fraudulent because, among other reasons: (a) by placing the SPRI Pro Resistance Cord attachment on the market, Defendants expressly and/or impliedly represented to the general public that it was safe to be used in the manners intended and reasonably foreseeable; (b) Defendants intended the general public to rely on such representations; and (c) Plaintiff, in purchasing and using the SPRI Pro Resistance Cord and its attachment as alleged herein, did rely on Defendants' representations as alleged herein, all to his damage as alleged herein. (FAC ¶ 122.)
Defendants’ managing agents knowingly authorized and ratified the manufacture, distribution and sale of the dangerous product to users like Plaintiff in conscious disregard of the rights or safety of others. Defendant Fit For Life, LLC’s managing agents knew that the product suffered from the same defects as the recalled products but Defendant Fit For Life, LLC’s managing agents nonetheless manufactured and distributed a product with the same hazardous components without adequate warning. Target’s managing agents knew that the product suffered from the same defects as the recalled products by Target’s managing agents nonetheless sold the product with the same hazardous components to its customers without adequate warning. (FAC ¶ 123.)
The foregoing allegations are sufficient to allege punitive damages against moving defendants. The facts alleged in the FAC have been stated with sufficient particularity to support punitive damages.
Accordingly, the motion to strike is denied.
Moving Parties to give notice.