Judge Lee S. Arian, Case Number: 21STCV18035, Date: 2024-11-19 Tentative Ruling

This case arises from a September 18, 2020, incident where Plaintiff Benjamin Leiser was injured after his bicycle hit broken, uneven, and elevated concrete on a bike path in the 14200 block of Bessemer St., Van Nuys, CA.

On May 13, 2021, Plaintiff filed a lawsuit against Defendants City of Los Angeles and Shelter Clean, Inc., seeking punitive damages against both Defendants. Shelter Clean is allegedly contracted with the City of Los Angeles for the inspection, maintenance, and repair of the subject bikeway.

Plaintiff specifically alleges the following with respect to punitive damages against Shelter Clean:

“Defendant SHELTER CLEAN, INC., Defendants had actual notice of the dangerous condition Plaintiff alleges in the instant case “on March 16, 2018, more than 2 years and 6 months prior to plaintiff’s injury when Ivet Madatyan, Shelter Clean’s primary contact with the City of Los Angeles and an employee of the City, and Victor Marquez, Shelter Clean’s bike path inspector personally inspected the trail together and noted and documented the defect. [] The City was also sued for another bicycle accident occurring at the same location. On March 30, 2019, Joshua Marx suffered injury at the same site which is the subject of this lawsuit.” (SAC ¶ 14.)

Plaintiff further alleges that “[a]t no time did the City of Los Angeles instruct Shelter Clean to obtain bids for repair of the surface, erect barricades, or provide warnings to users of the trail, or repair the surface where Plaintiff claims to have been injured.” (SAC ¶ 15.) Plaintiff claims that Defendant Shelter Clean, despite its knowledge of the defect and its contract obligations with the City, failed to independently repair the concrete, erect barricades, or provide warnings. Shelter Clean’s contract with the City specifically provides, in section 4.4.3, that the contractor “must make repairs as needed to pavement; repairs may include, but are not limited to, patching of asphalt/concrete and repainting striping.” (SAC ¶ 15.)

Defendant Shelter Clean now moves the Court to strike Plaintiff’s allegations for punitive damages.

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.)¿¿¿

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code § 3294, subd. (a).)¿ Clear and convincing evidence requires proof making the existence of a fact highly probable— falls between the “more likely than not” standard commonly referred to as a preponderance of the evidence and the more rigorous standard of proof beyond a reasonable doubt.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 995.)¿

“Malice’ means 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.” (Civil Code section 3294 (c)(1).) Under the statute, malice does not require actual intent to harm. Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences. (Pfeifer v.John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) ‘Despicable’ is a powerful term that refers to circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’ (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)¿¿¿¿

A plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud, or malice.¿ To wit, there is a heightened pleading requirement regarding a claim for punitive damages.¿ (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.).)¿¿

Punitive Damage against corporation

California Code, Civil Code § 3294(b), which governs punitive damages against corporations, provides:¿

(b) 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.¿

The allegations in the complaint sufficiently state facts to support a claim for punitive damages against Defendant Shelter Clean, Inc. Plaintiff alleges that Defendant had actual notice of the dangerous condition more than two years and six months before Plaintiff’s injury. Specifically, on March 16, 2018, Ivet Madatyan, Shelter Clean’s primary contact with the City of Los Angeles, and Victor Marquez, Shelter Clean’s bike path inspector, personally inspected the trail and documented the defect. (SAC ¶ 14.) This allegation is corroborated by the declaration of Alan Mudge, Defendant’s General Manager, who confirmed that Shelter Clean employees inspected the trail, produced a work order, and informed the City of the defect in 2018. This defect was also the subject of a prior lawsuit, Joshua Marx v. City of Los Angeles, et al., Case No. 19STCV23010, in which Defendant Shelter Clean was named as a defendant for an incident occurring at the same location as the present lawsuit. (Mudge Decl. ¶¶ 10-12.)

Plaintiff also alleges that despite knowledge of prior lawsuit and prior falls, Defendant took no steps to repair the condition as required under its contract with the City, which specifically obligated Shelter Clean to make pavement repairs, including patching asphalt and concrete. (SAC ¶ 15.)

These allegations, when taken as true for the purposes of this demurrer, meet the standard required to support a claim for punitive damages. Civil Code § 3294(a) permits punitive damages in cases where the defendant’s conduct constitutes malice, oppression, or fraud. "Malice" includes conduct that demonstrates a willful and conscious disregard for the safety of others. The facts alleged here suggest that Defendant’s failure to act despite knowledge of the defect and prior injuries rises to the level of willful reckless indifference, satisfying the malice requirement. This case is analogous to Colombo v. Bombardier Recreational Products, Inc. (2014) 230 Cal.App.4th 1442, 1459, where the appellate court upheld a punitive damages award based on the defendant's awareness of similar injuries and its failure to mitigate risks. The court found that such conduct demonstrated a reckless or callous disregard for the safety of others. Similarly, Defendant’s awareness of the hazardous condition on the bike path, coupled with its failure to address the issue or provide warnings, supports an inference of malice under Civil Code § 3294(a).

Defendant makes several arguments in the reply that the Court does not find persuasive.

Defendant's reliance on Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 754, is misplaced. Plaintiff is not asking the Court to accept the truth of the allegations in the Marx complaint but to recognize that the Marx complaint put Shelter Clean on notice of the dangerous condition. Judicial notice of the existence of the Marx complaint is proper and relevant for that purpose. Moreover, Shelter Clean’s own declaration, provided by Alan Mudge, establishes that Shelter Clean had prior awareness of the condition and failed to address it.

Defendant argues that the Marx complaint describes a different condition, attempting to draw a distinction between a “large hole in the concrete” (Leiser) and an “elevated obstruction” (Marx). This distinction is unpersuasive. The SAC explicitly alleges that the incident involved a “portion of concrete in the bicycle lane that was broken, uneven, and elevated above the rest of the concrete.” (SAC ¶ 10.) Additionally, Alan Mudge declares that, based on his personal involvement as a witness in the Marx case, “on or about March 30, 2019, Mr. Marx rode his bicycle over the same site inspected on March 16, 2018, and alleges that he suffered injuries.” (Mudge Decl. ¶ 12.) Regardless of if condition is described as an “elevated obstruction” or a “large hole in the concrete,” Defendant was on notice of the dangerous condition when it inspected the bikeway in 2018 and documented the defect.

Defendant also argues that Plaintiff failed to allege corporate ratification under Civ. Code § 3294(b). However, ratification is not required when malicious acts are performed by a managing agent. Here, Alan Mudge, Defendant’s General Manager, qualifies as a managing agent. Despite being aware of the dangerous condition, including Defendant’s involvement in a prior lawsuit arising from a fall at the same location (Marx, Case No. 19STCV23010), Mudge failed to take necessary corrective action or make the required repairs under Defendant’s contract. This inaction supports Plaintiff’s claim for punitive damages.

Thus, the motion is DENIED.

If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept27@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.