Judge: Michael E. Whitaker, Case: 22STCV04138, Date: 2022-09-07 Tentative Ruling

Case Number: 22STCV04138    Hearing Date: September 7, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTIONS

Plaintiff Francisco Alcantar Garcia sued defendant Greyhound Lines, Inc. based on injuries Plaintiff alleges he sustained when he was shot four times in the stomach by another passenger on a bus owned and operated by Defendant.  Defendant moves to strike Plaintiff’s claim for punitive damages and exemplary damages and attorneys’ fees from the first amended complaint.  Plaintiff opposes the motion.

ANALYSIS

1. MOTION TO STRIKE

    

   Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

1. Punitive Damages

    

   In ruling on a motion to strike punitive damages, “judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294.  (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)  Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a).)   As set forth in the Civil Code,

    

   (1) “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.  (2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.  (3) “Fraud” means 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.

    

   (Civ. Code, § 3294, subd. (c)(1)-(3), emphasis added.) 

    

   Further, 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.  (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)  “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.  When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him.” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].)  In Anschutz Entertainment Group, Inc. v. Snepp, the Court of Appeal noted that the plaintiffs’ assertions related to their claim for punitive damages were “insufficient to meet the specific pleading requirement.”  (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [plaintiffs alleged “the conduct of Defendants was intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiff's rights. Plaintiff's injuries were exacerbated by the malicious conduct of Defendants. Defendants' conduct justifies an award of exemplary and punitive damages”]; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.  Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim”].) 

    

   “[T]he imposition of punitive damages upon a corporation is based upon its own fault.  It is not imposed vicariously by virtue of the fault of others.”  (City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal.App.3d 31, 36.)  “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive.  An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees.  But the law does not impute every employee’s malice to the corporation.  Instead, the punitive damages statute requires proof of malice among corporate leaders:  the officers, directors, or managing agents.”  (Cruz v. Home Base (2000) 83 Cal.App.4th 160, 167 [cleaned up].) 

    

               Here, Defendant argues Plaintiff’s complaint fails to allege conduct on the part of Defendant that rises to the level of malice to support a claim for punitive damages.  In opposition, Plaintiff contends the first amended complaint sufficiently alleges that Defendant acted with a conscious disregard for the safety of the public despite knowing that assaults regularly occur on its buses. 

    

               The first amended complaint alleges as follows:

    

   “On February 3, 2020, Plaintiff was one of forty-three people, including a 6 and 8 year-old, traveling on a bus owned and operated by Defendant GREYHOUND. The GREYHOUND operated bus trip started in Los Angeles with a destination of San Francisco. Despite having policies that prohibits passengers from bringing guns, explosives or dangerous chemicals on board its buses, GREYHOUND did not conduct any searches of the passengers prior to boarding the bus nor did it require any passengers to undergo any metal detector screening.

    

   …

    

   At the time of the incident, GREYHOUND knew that assaults regularly occurred on their buses.

    

   …

    

   Despite said behavior, WILLIAMS was allowed to transfer buses in Los Angeles. Upon immediate entry of the bus prior to leaving the Los Angeles station towards San Francisco, WILLIAMS was talking loudly, incoherently and got into an argument with someone who asked him to quiet down. However, the bus driver of PLAINTIFF’s GREYHOUND’s bus did nothing to maintain order or protect passengers from injury. As the bus departed Los Angeles, WILLIAMS was heard stating ‘you don’t know me like that,’ ‘wait til we get to the station,’ ‘get away from the dude in the striped shirt.” Later in the ride, when another passenger got up to use the bathroom and WILLIAMS ordered him to sit down and said, ‘I’m gonna shoot.’

    

   GREYHOUND failed to use any care to protects its passengers. Had they strictly enforced their policy to prohibit weapons on their buses, Plaintiff would not have been shot four times. Had they not allowed WILLIAMS to continue riding, despite knowledge of his behavior in San Diego, Plaintiff would not have been shot four times. On February 3, 2020, GREYHOUND failed to do all that human care, vigilance, and foresight reasonably can be done under all the circumstances including to carry PLAINTIFF safely.  DEFENDANTS have failed to take any action to reduce the risk of harm to its passengers, despite knowledge of their heightened standard of care, knowledge of basic, life-safety principles, and knowledge of the feasible means to enforce these principles. In doing so, DEFENDANTS violated their standard of care, resulting in the INCIDENT.”

    

   (First Amended Complaint, ¶¶ 19, 21, 27, 30.) 

    

               The Court finds Plaintiff’s allegations in the first amended complaint fail to constitute despicable conduct which is carried on by Defendant with a willful and conscious disregard of the rights or safety of others, or, more importantly, malice among Defendant’s officers, directors, or managing agents to withstand the motion to strike.  Accordingly, the Court grants in part the motion to strike Plaintiff’s claim for punitive damages.

    

2. Attorneys’ Fees

    

   Per Code of Civil Procedure section 1033.5, attorney’s fees are only allowable as costs under Section 1032 “when authorized by any of the following: (A) Contract. (B) Statute. (C) Law.” (Code of Civ. Proc., § 1033.5, subd. (a)(4)(D)(10).) 

    

   Defendant next moves to strike Plaintiff’s prayer for attorneys’ fees for Plaintiff’s failure to identify a basis for such relief.  In his opposition, Plaintiff represents that he has stipulated to waiving his claim for attorneys’ fees.  The Court therefore denies in part the motion to strike Plaintiff’s claim for attorneys’ fees as moot.

    

1. LEAVE TO AMEND

    

Plaintiff has the burden of showing in what manner the first amended complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) The plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, Plaintiff has failed to meet his burden with respect to his claim for punitive damages. Plaintiff’s opposition requests leave to amend “if there is anything inadvertently omitted from the complaint.”  It is unclear how Plaintiff expects the Court to recognize what Plaintiff may have inadvertently failed to plead in the first amended complaint.  

CONCLUSION AND ORDER

Therefore, the Court grants in part Defendant’s motion to strike Plaintiff’s claim for punitive damages, without leave to amend, and denies in part Defendant’s motion to strike Plaintiff’s prayer for attorneys’ fees as moot.   The Court orders Defendant to file and serve and answer to the first amended complaint within 20 days of the hearing.

Defendant shall provide notice of the Court’s orders and file a proof of service of such.