Judge: Mark C. Kim, Case: 21LBCV00570, Date: 2022-08-16 Tentative Ruling
Case Number: 21LBCV00570 Hearing Date: August 16, 2022 Dept: S27
Plaintiff, 2523 E. Anaheim Inc.
filed this action against Defendant, Western Express, Inc. for damages arising
out of a single automobile accident. Plaintiff
alleges Defendant’s employee’s vehicle slammed into a fire hydrant in close proximity
to Plaintiff’s business, which fire hydrant discharged approximately 600,000
gallons of water into the area, causing serious harm to the premises and
personal property on the premises.
Plaintiff filed its original
complaint on 10/28/21 and its operative FAC on 4/22/22. The FAC includes causes of action for negligence
and intentional misconduct, and includes a prayer for punitive damages.
a. Parties’
Positions
Defendant moves to strike the
prayer for punitive damages and related allegations. It argues there are no facts showing fraud,
malice, or oppression. It argues that,
even if there are such facts as to its employee, there are no facts showing
corporate authorization or ratification.
Plaintiff opposes the motion. It argues the motion is an improper attempt
to demur to the willful misconduct cause of action, which carries a punitive
damages penalty. It argues there are
sufficient facts to show both the driver and the entity defendant engaged in
malicious conduct. It argues facts
showing which corporate officer or director authorized or ratified the driver’s
conduct can be learned during discovery, and the allegations are sufficient at
the pleading stage.
b. Improper
Demurrer
The threshold issue before the Court
is whether this is an improper attempt to demur to the willful misconduct cause
of action. Plaintiff argues Defendant
improperly attacks the prayer for punitive damages without attacking the cause
of action for willful misconduct. It argues
the failure to demur concedes the merit of the willful misconduct cause of
action, and willful misconduct carries a punitive damages penalty.
The Court disagrees. While a demurrer to the willful misconduct
cause of action would have been logical under the circumstances, the motion
asks the Court to decide, as a matter of law, whether there are facts pled in
the FAC showing fraud, malice, or oppression.
The Court can do so regardless of what cause(s) of action are pled in
the FAC.
c. Initial
Note re: Pleading
Defendant argues, throughout its
motion, that Plaintiff must plead with clear and convincing evidence. Defendant is conflating the evidentiary
burden at trial with the pleading standard.
Indeed, it is not clear how one could plead clear and convincing
evidence, as one pleads facts, not evidence.
The Court, in ruling on this motion, is tasked with determining whether the
FAC adequately pleads facts showing fraud, malice, or oppression, not with
making any evidentiary determination.
d. Initial
Note re: Opposition
Plaintiff, in its opposition, consistently
argues that “Defendant” engaged in certain conduct. This is not correct. Defendant’s employee, not Defendant, engaged
in the vast majority of the conduct at issue in this case. The Court asks Plaintiff to ensure this distinction
is made in the future, as it clouds the issues when the distinction is ignored.
e. Punitive
Damages in the Hit and Run Context
Plaintiff’s prayer for punitive
damages is premised on the allegation that the accident at issue was a
hit-and-run. In Brooks v. E.J. Willig Truck
Transp. Co. (1953) 40 Cal.2d 669, 679 the court found that a hit and run cannot
give rise to damages unless the fact of the hit and run caused additional
damages above and beyond the accident itself.
Brooks did not consider the issue of whether punitive damages can be
imposed based on a hit and run. It did,
however, hold that such act only constitutes a tort if the act itself causes
the plaintiff additional damages above and beyond the damages caused by the
accident that precedes the hit and run.
For example, if a plaintiff is struck and is seriously bleeding
following the accident, the fact that the defendant hits and runs could cause
additional damage due to loss of blood, death, etc. If, however, the accident causes immediate
soft tissue damage, no amount of aid would reduce or minimize the future
damages, and the act of hitting and running would not give rise to additional
damages. If the act of hitting and
running, in and of itself, does not give rise to a tort, then it logically
follows that the act cannot give rise to a claim for punitive damages.
It is not clear, in this case, if the
hit-and-run aspect of the accident caused damages over and above the accident
itself. The motion to strike the prayer
for punitive damages premised on the allegation that the accident was a
hit-and-run is therefore granted. Leave
to amend is granted to cure this defect if and only if Plaintiff can allege
that the hit and run caused additional damages to Plaintiff over and above the
damages sustained due to the accident itself.
f. Defendant’s
Conduct
Plaintiff alleges Defendant is
liable both due to its own conduct and also because it ratified its employee’s
conduct. The first issue is whether Plaintiff
adequately alleges Defendant, as opposed to its employee, engaged in malicious
conduct. Plaintiff alleges it did so based
on the allegations found at ¶P12 and 13 of the FAC. ¶12 alleges, “Defendant…utilized E-Smart
technology and other tracking technology to make its entire fleet of tractor
trailers, trucks and trailers…safer, GPS trackable, and programmed to keep
Defendants contemporaneously informed of collisions, logistics data, and other
potential causes for concern related to the fleet and its operations.”
¶13 alleges, “Defendants…knew its
tractor trailer was involved in the collision on or about September 8, 2020 at the
time or immediately after it occurred, knew its employee or agent fled the scene
of the collision, knew the tractor trailer had caused damage that was unabated
and ongoing, failed to voluntarily identify themselves as the parties responsible
for the damage caused, and deliberately intended to avoid responsibility for
the collision and damage by keeping Defendant’s identity hidden.”
The Court is not entirely clear on
how this system works. Does the system literally
show what is happening, with a camera or some similar mechanism, in real time? Is someone watching the camera at all times? Even if Defendant got some sort of report
that there was an impact, how did Defendant know the impact was with a fire
hydrant and was spewing water? Who was
receiving and reviewing this data? If it
was an employee of Defendant’s, then Plaintiff would need to allege ratification
and/or authorization of the act by an officer, managing agent, or
director.
If Plaintiff can plead facts
showing Defendant knew there was a collision with a fire hydrant and it was
spewing water (either because an officer, director, or managing agent personally
had this knowledge, or through authorization or ratification), then the Court
finds the above analysis applies: if that knowledge caused Plaintiff damages
over and above the damages that would have been caused if Defendant had
responded differently to the knowledge it gained when it gained that knowledge,
then punitive damages could be appropriate.
However, absent contemporaneous knowledge of the actual damage being
caused, coupled with a failure to act that exacerbates the damage, Plaintiff
has failed to plead facts showing malice that would support imposition of
punitive damages.
g. Corporate
Authorization or Ratification
To the extent Plaintiff has not pled
direct conduct by Defendant that caused damages, Plaintiff seeks punitive
damages based on Defendant’s officer, managing agent’s, or director’s
authorization or ratification of its employee’s hit-and-run act. Plaintiff concedes, in opposition to the
motion, that it has made only a conclusory allegation to this effect in its
FAC. Plaintiff argues these are facts
that will be learned during discovery. All
facts supporting punitive damages, however, must be pled with specificity.
The motion to strike on the ground that
Plaintiff has failed to allege facts showing authorization or ratification is
therefore also granted. If Plaintiff
cannot amend to add those facts at this stage, then Plaintiff must not do so,
and may move for leave to amend if and when such facts are discovered during the
course of the litigation.
h. Conclusion
The motion to strike is
granted. Leave to amend is granted if
and only if Plaintiff can allege additional facts as set forth fully above. If Plaintiff chooses to amend, it must do so
within twenty days, and Defendant must file a responsive pleading within the statutory
time thereafter. If Plaintiff chooses
not to amend, it must so communicate with Defendant during the next twenty days,
and Defendant must file an answer to the FAC, with the prayer for punitive
damages and related allegations deemed stricken, within five days thereafter.
The parties are reminded that there
is a CMC on calendar concurrently with the hearing on the above motion to
strike. The Court asks Counsel to make
arrangements to appear remotely at the CMC and hearing on the motion.