Judge Linda S. Marks, Case 2021-01186010 2022-10-03 Tentative Ruling

Judge: Linda S. Marks, Case: 2021-01186010, Date: 2022-10-03 Tentative Ruling

1. Motion to Strike Portions of Complaint filed by Hughes Market, Inc. on 5/31/22
2. Case Management Conference

Defendant Hughes Market, Inc., dba Ralphs’ (erroneously sued herein as The Kroger Company) seeks to strike paragraph 14(a)(2) from the Second Amended Complaint (“SAC”) on the grounds the pleading fails to allege sufficient wants to obtain punitive damage.

To support exemplary damages, the complaint must allege facts of defendant’s oppression, fraud, or malice. (CC § 3294(a).) “Malice” is defined 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. (CC § 3294(c)(1).) “Oppression” is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (CC § 3294(c)(2).) “Fraud” is defined as an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (CC § 3294(c)(3).)

To establish, “willful and conscious disregard,” plaintiff must establish that defendant: (1) was aware of the probable dangerous consequences of his or her conduct; and (2) willfully and deliberately failed to avoid those consequences. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896; TRG, CAPI, 3:262.)

“The adjective ‘despicable’ connotes conduct that is ... so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. … [A] breach of a fiduciary duty alone without malice, fraud or oppression does not permit an award of punitive damages. [Citation.] The wrongdoer … must act with the intent to vex, injure, or annoy, or with a conscious disregard of the plaintiff's rights. … Punitive damages are appropriate if the defendant's acts are reprehensible, fraudulent or in blatant violation of law or policy. The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages.... 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. ….” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.) “Despicable conduct” has been described as having “the character of outrage frequently associated with crime.” (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050.) “Consequently, to establish malice, ‘it is not sufficient to show only that the defendant's conduct was negligent, grossly negligent or even reckless.’” (Bell v. Sharp Cabrillo Hospital (1989) 212 Cal.App.3d 1034, 1044; Lackner v. North (2006) 135 Cal.App.4th 1188, 1211 [“[R]ecklessness alone is insufficient to sustain an award of punitive damages….”].)

Defendant contends that the SAC fails to sufficiently plead malice, oppression, or fraud and the conduct alleged, at best, can only be characterized as “unreasonable, negligent, grossly negligent or reckless” conduct and that the SAC does not allege that Sid Z “intended to” harm Plaintiff or even exhibited a willful and conscious disregard of the rights or safety of others.

The SAC alleges that “Ralphs employed a checker identified as “Sid Z’ who carelessly operated and recklessly discharged a handheld laser barcode scanner directly into the eyes of Plaintiff”; that Ralphs is responsible for the actions of its employees under the doctrine of respondeat superior; that the management of Hughes evidenced a conscious disregard of the safety of others by failing and omitting to verify the background of its applicants and employees who were to use its portable laser barcode readers with respect to the employees’ drug use, alcohol abuse or usage of prescription medications to determine their fitness to operate the portable laser barcode reader; that Hughes failed to educate, train, review, test, supervise and monitor the use of their employees of such devises on a regular and ongoing basis; failing to establish procedures and rules for use of the said devices; failing to abide by statutes, regulations, and federal/state rules; failing to abide by recognized industry safety protocols; failing to test, inspect and maintain in good repair and safe working order its portable handheld laser barcode readers; and consciously placing in the hands of unfit employees including Sid-Z a dangerous and hazardous instrument; and consciously hiring, employing and obtaining inept, incompetent, and inexperienced personnel with respect to the use, distribution, and maintenance of its portable barcode readers. (See SAC, pp. 4 and 5.)

As to “Sid Z”, the SAC only that he “carelessly operated and recklessly discharged” the handheld barcode scanner directly into the eyes of Plaintiff; that Sid Z had a duty of care to act reasonably and respectfully to patrons of HUGHES, and that he breached said duty of care by discharging a laser into the eyes of Plaintiff. Contrary to the Opposition, the SAC does not allege that Sid Z made “pew pew” sounds when he discharged the laser into the eyes of Plaintiff. “Conduct which may be characterized as unreasonable, negligent, grossly negligent or reckless does not satisfy the highly culpable state of mind warranting punitive damages. [Citation omitted.] Conduct which warrants punitive damages must be of ‘such severity or shocking character as warrants the same treatment as accorded to willful misconduct—conduct in which defendant intends to cause harm.’” (Woolstrum v. Mailloux (1983) 141 Cal.App.3d Supp. 1, 10.) The SAC does not allege that Sid Z acted with intent to “vex, injure, annoy, or with a conscious disregard of” Plaintiff’s rights.

Further, here, Plaintiff seeks punitive damages against Defendant HUGHES for the acts of Sid Z. Defendant contends the SAC does not sufficiently plead facts to satisfy Civil Code section 3294. Civil Code section 3294(b) provides as follows: “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.”

Here, the SAC does not allege that Defendant HUGHES had advance knowledge of the unfitness of Sid Z or that HUGHES authorized or ratified the wrongful conduct of Sid Z. Rather, the SAC alleges that HUGHES acted with a conscious disregard of others by failing and omitting to verify the background of its applicants and employees who were use its portable laser barcode readers with respect to the applicants’ drug use, alcohol use or usage of prescription medications to determine their fitness to operate the portable laser barcode. This allegation is insufficient as there is no allegation that had HUGHES performed a background check, it would have known that Sid Z had a history of drug or alcohol use such that he was unfit to use the portable barcode readers.

The SAC also does not allege which officer, director, and/or managing agent(s) had advance knowledge of Sid Z’s unfitness to operate the laser barcode reader and only alleges that “the management of Hughes” had such advance knowledge. “The law does not impute every employee's malice to the corporation. Instead, the punitive damage statute requires proof of malice among corporate leaders: the ‘officer[s], director[s], or managing agent[s].’ (Civ. Code, § 3294, subd. (b).) ...This assures that punishment is imposed only if the corporation can be fairly be viewed as guilty of the evil intent sought to be punished.” (Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167.) Accordingly, the SAC fails to allege sufficient facts as required pursuant to Civil Code section 3294(b).

Tentative Ruling: The Motion to Strike is GRANTED, with 20-days leave to amend.

Moving Party is to give notice.