Judge Lee S. Arian, Case Number: 23STCV12335, Date: 2024-01-10 Tentative Ruling

On March 31, 2023, Plaintiff Michael Clayton initiated this action against Defendants XPO Logistics Freight Inc., Alameda Engle Properties, LLC, Doe Fence Company, Secure Mobile Destruction, Inc. and Does 1 to 50, alleging the following causes of action: (1) negligence; (2) products liability; (3) premises liability; and (4) strict liability. Plaintiff alleges that, during a delivery on June 17, 2021, at the subject premises located at 8440 Alameda Street in the City of Los Angeles, he was electrocuted by an electrified fence that enclosed the subject property. It is further alleged that, at the time of the incident, the electrified fence discharged over 7,000 volts of electricity, did not have a perimeter fence, and did not have any warning signs visible to Plaintiff. The only warning sign was located on the opposite side of the fence facing the opposite direction of the Plaintiff.

On November 20, 2023, Defendant XPO Logistics Freight, Inc. (“XPO”) filed the instant motion to strike, seeking to strike references to Plaintiff’s claim for punitive damages. On December 21, 2023, Plaintiff filed his opposition. Thereafter, on January 3, 2024, XPO filed its reply.

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., § 435, subd. (b)(1).) 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, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

“Before filing a motion to strike . . . the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a).) If no agreement is reached, the moving party shall file and serve with the motion to strike a declaration stating either: (1) the means by which the parties met and conferred and that the parties did not reach an agreement, or (2) that the party who filed the pleading failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith. (Code Civ. Proc., § 435.5, subd. (a)(3).)

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.)

XPO moves to strike Plaintiff’s claim for punitive damages on the ground that it has not been sufficiently alleged with the requisite specificity.

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).) “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).) “‘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.)

Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.” (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155; see also Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1228 [“Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probably dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences”].)

XPO argues that Plaintiff’s complaint consists only of conclusory statements in support of his claim for punitive damages. (Motion at 7.) As a result, XPO contends that the Complaint fails to allege that XPO acted with the requisite malice and oppressive conduct needed to support such a claim. (Ibid.) Additionally, XPO argues that the Complaint is devoid of any allegations establishing an officer, director, or managing agent of the corporation authorized or ratified the misconduct that it had knowledge of, which is necessary to support a claim of punitive damages against a corporation. (Id. at 8-9.)

In opposition, Plaintiff argues that the Complaint has sufficient facts alleged to support his claim for punitive damages. In particular, Plaintiff contends the allegations establish that XPO acted with a conscious disregard of the safety of others because it is alleged that the fence was electrified to a lethal voltage and failed to possess a perimeter wall or sufficient warning signs to safeguard the public. (Opposition at 5.)

The Court finds that the Complaint does not sufficiently allege facts to support a claim for punitive damages against XPO. The allegations regarding the lack of safety surrounding the fence establish that XPO acted with a conscious disregard of Plaintiff’s interests, and the allegations that the fence was electrified far beyond a lethal limit without necessary safety measures as required by statute are sufficient to show that XPO’s conduct was contemptible and would be despised by ordinary decent people. (Tomaselli, supra, 25 Cal.App.4th at 1287.)

However, the Complaint falls short in alleging corporate responsibility for punitive damages. “An employer shall not be liable for punitive damages based on the acts of an employee, 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 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).) The Complaint fails to allege with sufficient particularity that XPO’s officer, director, or managing agent knowingly authorized or ratified the installation and maintenance of the electrified fence. Thus, the Complaint improperly includes a claim for punitive damages against Defendant XPO.

Moreover, Plaintiff’s opposition fails to set forth any additional facts that would indicate that defect could be cured. Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the Court that a pleading can be amended successfully. (Id.) Because Plaintiff has failed to meet his burden, he is not entitled to leave to amend. If during the course of discovery Plaintiff uncovers facts that would support a claim of punitive damages against XPO, then Plaintiff is permitted to seek leave to amend in the future.

Based on the foregoing, Defendant XPO Logistics Freight, Inc.’s Motion to Strike is GRANTED without leave to amend. Plaintiff’s claim for punitive damages against defendant XPO are deemed stricken.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Lee S. Arian

Judge of the Superior Court