Judge: Michael E. Whitaker, Case: 22STCV21519, Date: 2023-02-09 Tentative Ruling

Case Number: 22STCV21519    Hearing Date: February 9, 2023    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

MOTION

Plaintiffs Brandee Vasquez (“Brandee”) and the Estate of Jonathyn Bradford, through successor in interest Brandee Vasquez (“Plaintiffs”) allege that Jonathyn Bradford (“Decedent”) drowned while swimming in a reservoir owned and controlled by Defendant Southern California Edison Co. (“SCE” or “Defendant”).  Defendant now moves to strike punitive damages from the first amended complaint.  Plaintiffs oppose the motion.

ANALYSIS

1. JUDICIAL NOTICE

Defendant requests that the court take judicial notice of five factual propositions, three of which are available at official governmental websites.  California has not recognized a provision for taking judicial notice of documents from official governmental agency websites.  (See Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 888.)  Information on websites can be reasonably subject to dispute.  (See ibid.; Huitt v. Southern Cal. Gas Co. (2010) 188 Cal.App.4th 1586, 1605, fn.10.)  Furthermore, Defendant does not establish that each “fact” is of such common knowledge within the territorial jurisdiction of this court that it cannot be reasonably subject to dispute.  (Evid. Code, § 452, subd. (g).)  Rather, Defendant attempts to use requests for judicial notice to turn the motion to strike into an evidentiary hearing.  This is improper.  (See Richtek USA, Inc. v. uPI Seminconductor Corporation (2015) 242 Cal.App.4th 651, 660, citing Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 115, 55 (“[A] court ruling on a demurrer cannot decide a question that may depend on disputed facts by means of judicial notice.”).)  Accordingly, Defendant’s request for judicial notice is denied.

2.         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.)

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”].) 

            In addition, “[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, Plaintiffs allege that Defendant acted with malice “in that SCE willfully and consciously disregarded [Decedent] and Brandee’s safety by failing to warn them of the known dangerous conditions on the lake, the history of prior drownings, that there was no lifeguard on duty, that emergency services were hours way, and by failing to provide any lifesaving equipment such as a throwable personal flotation device.”  (First Amended Complaint (“FAC”) ¶ 42.)  The dangerous conditions on the lake are alleged to include high winds, strong currents, variable and often frigid temperatures, and debris-filled waters.  (Id.)  Plaintiffs further allege that Defendant “was plainly aware of the probable dangerous consequences of failing to warn of the dangerous conditions on Shaver Lake as SCE knew others have already drowned there—and SCE deliberately failed to avoid those consequences.”  (Id.)  The history of prior drownings is alleged to amount to at least five other people.  (Id.; see also FAC, ¶¶ 31, 38, 43-45.) 

In addition, as set forth in paragraphs 46 and 47 of the FAC, Plaintiffs allege in pertinent part:

• SCE’s officers, directors, and/or managing agents received the complaints regarding SCE’s failure to provide warnings, a lifeguard, or rescue equipment, and consciously decided to ignore those complaints. SCE’s managing agents include SCE’s certain employees who operate the recreational facilities at Shaver Lake, as they exercise substantial independent authority, discretion, and judgment on corporate decision-making such that the employees’ decisions ultimately determine SCE’s corporate policy.

• SCE’s officers, directors, or managing agents knew that SCE’s employees implemented a policy for inviting swimmers to Shaver Lake that included no provision of a lifeguard or rescue equipment, no safety briefing or warning to wear a life jacket, that others had drowned in Shaver Lake, that dangerous conditions existed on the lake, that no lifeguard was on duty, and that emergency services were hours away.

(FAC, ¶¶ 46-47.) 

Defendant relies on Lupash v. City of Seal Beach (1999) 75 Cal.App.4th 1428, 1436 for the proposition that a failure to warn of the risks of swimming in bodies of water cannot give rise to punitive damages.  Lupash is distinguishable because Lupash does not discuss punitive damages at all.  For this reason alone, Lupash has no application here.

Defendant’s reliance on Peterson v. Superior Court, Rombalski v. City of Laguna Beach, and Zepeda v. City of Los Angeles are similarly misplaced.  Peterson observed that nonintentional conduct may form the basis for punitive damages when the conduct constitutes conscious disregard for the rights or safety of others or if a party intentionally performs an act from which he knows, or should know, it is highly probable that harm will result.  (Peterson v. Superior Court (1982) 31 Cal.3d 147, 158.)  Here, Plaintiffs have alleged that Defendant failed to act in conscious disregard for Plaintiffs’ safety, which is sufficient. More, it can be inferred that Defendant’s failed to act in conscious disregard to Plaintiffs’ safety, as has been alleged here, through Defendant’s knowledge that others have drowned at Shaver Lake and that Defendant did nothing to mitigate that result.  Rombalski, like Lupash, supra, also has no application here because Rombalski does not discuss the imposition of punitive damages.  Further, Defendant cites a portion of Rombalski that considers whether any evidence supports the proposition that the presence of a lifeguard “induce[s] people to think it safe to dive wherever there are no lifeguards.”  (Rombalski, at p. 854.)  Such consideration of evidence, or lack thereof, is improper on a motion to strike.  Last, Defendant cite Zepeda for the proposition that even if Defendant was law enforcement responsible for emergency services, there is no general liability for emergency personnel to render aid.  However, Zepeda is unavailing for the simple reason that the allegations of Defendant’s awareness of the inaccessibility of emergency services in the context of prior drownings at Shaver Lake can be read to support Defendant’s conscious disregard for the decedent’s safety.

Defendant argues that Plaintiffs fail to allege with enough specificity that an officer, director, or manage agent of the corporation acted with malice or ratified the alleged misconduct.  Here, Plaintiffs allege that Defendant’s officers, directors or managing agents acted with malice because they “received the complaints regarding SCE’s failure to provide warnings, a lifeguard, or rescue equipment, and consciously decided to ignore those complaints.”  (FAC, ¶  46.)  Plaintiffs further allege that the misconduct was ratified by Defendant’s officers, directors, or managing agents through their awareness that Defendant’s employees “implemented a policy for inviting swimmers to Shaver Lake that included no provision of a lifeguard or rescue equipment, no safety briefing or warning to wear a life jacket, that others had drowned in Shaver Lake, that dangerous conditions existed on the lake, that no lifeguard was on duty, and that emergency services were hours away.”  (FAC, ¶ 47.)  These allegations are ultimate facts that are sufficient to support the request for punitive damages.  Any details regarding the specific officers, directors, or managing agents who ratified the conduct can be clarified during the discovery process.

CONCLUSION AND ORDER

For pleading purposes, the Court finds that Plaintiffs have allege sufficient facts to support a claim for punitive damages.  Therefore, the Court denies Defendant’s motion to strike punitive damages from the First Amended Complaint.   

Defendant is ordered to provide notice of the Court’s ruling and file a proof of service of such.