Judge: Michael Shultz, Case: 21STCV40690, Date: 2023-02-28 Tentative Ruling

Case Number: 21STCV40690    Hearing Date: February 28, 2023    Dept: A

21STCV40690 Adelina Sanchez, et al v. Fenico Precision Castings, Inc., et al.

Tuesday, February 28, 2023 at 8:30 a.m.

[TENTATIVE] ORDER OVERRULING DEMURRER TO THE FIRST AMENDED COMPLAINT

[TENTATIVE] ORDER GRANTING THE MOTION TO STRIKE PUNITIVE DAMAGE ALLEGATIONS

I.        BACKGROUND

            The First Amended Complaint alleges that Plaintiffs are heirs of Jose Santos Mendoza Martinez, who was shot by a co-worker, Pablo Ontiveros Guerra (“Ontiveros”), while at his place of employment for Defendant, Fenico Precision Castings, Inc. (“Fenico”). Plaintiffs sue Fenico and Springfield Armory, Inc., the gun manufacturer (“Springfield”) for wrongful death.

II.      ARGUMENTS

            Defendant Springfield demurs to the complaint on grounds Plaintiffs’ claims for wrongful death and negligent entrustment of a dangerous instrumentality are barred by a federal immunity statute. None of the statutory exceptions apply, and therefore, Plaintiffs’ fail to state a cognizable claim against Springfield.

            Plaintiffs do not dispute that the federal act on which Defendant relies bars Plaintiffs’ state law claims. However, Plaintiffs allege facts to support two exceptions to statutory immunity, namely the negligent entrustment exception and the predicate acts exception.  

            In reply, Springfield argues that Plaintiffs cannot allege that Springfield sold the gun directly to Ontiveros. None of the statutory exceptions apply. Plaintiffs do not have a good faith basis for bringing this action against Springfield.

III.    LEGAL STANDARDS

      A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706). The court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318). The court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.4th 634, 638).

            Plaintiffs must allege facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43).  Plaintiffs are required to allege facts "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644).

            A demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are so confusing, they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2; Code Civ. Proc., § 430.10 subd. (f)).

IV.    DISCUSSION

            The Protection of Lawful Commerce in Arms Act (“PLCAA” or “the Act”) prohibits causes of action against gun manufacturers (among others) for harm solely caused by the criminal or unlawful misuse of firearm products “when the product functioned as designed and intended.” (15 U.S.C.A. § 7901(b)(1)). Congress intended to preempt common-law claims such as general tort theories of liability embodied in the common law. (Ileto v. Glock, Inc. (9th Cir. 2009) 565 F.3d 1126, 1135). Plaintiffs do not dispute that the PLCAA applies to this case based on the allegations of the pleading. (Opp. 5:13). Plaintiffs argue that the FAC alleges facts sufficient to fall within two exceptions of the Act. The Act permits “qualified civil liability” actions involving “negligent entrustment or negligence per se; … .” (15 U.S.C.A. § 7903(5)A)(ii)). The term “negligent entrustment” “means the supplying of a qualified product by a seller for use by another person when the seller knows, or reasonably should know, the person to whom the product is supplied is likely to, and does, use the product in a manner involving unreasonable risk of physical injury to the person or others." (15 U.S.C.A. § 7903 (5)(B)). Similarly, under California law, "one is liable for injuries arising out of the negligent entrustment of a dangerous instrumentality to a person who the supplier knows, or has reason to know, is a danger to himself or herself, or others.” (Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 116).

            The FAC alleges that Ontiveros purchased the handgun from an authorized agent of the gun’s manufacturer, distributor and seller, Defendant Springfield. (FAC ¶ 13). Plaintiffs allege that Springfield “knew or should have known that Ontiveros was disqualified from owning or possessing” a weapon as a “person” falling within certain categories particularly described by numerous federal and state regulations, for example, a person convicted of a felony, or who possesses an outstanding warrant, or who was ordered not to possess firearms. (FAC ¶ 108).

      Springfield contends it is not a “seller” but a manufacturer, and the exception applies only to sellers. (Demurrer, 7:13-21). However, this contention is contrary to the specific allegations of the FAC and raises a factual dispute, which the Court does not determine at the demurrer stage.  Defendant argues it is “impossible” for Plaintiffs to satisfy the requirement that Springfield knew or should have known that Ontiveros was likely to use the product in a manner that involved an unreasonable risk of injury to others.” (Demurrer, 11:1-5). However, whether Plaintiffs will be able to prove the alleged facts is irrelevant at the demurrer stage. (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610).

      Defendant further contends that the negligent entrustment claim applies only when the defendant directly transfers the firearm to the person who used it an unreasonable manner. Demurrer, (11:5-8). However, Defendant relies on an unpublished opinion written by the Superior Court of Connecticut, which is not binding on this Court. (Soto v. Bushmaster Firearms International, LLC (Conn. Super. Ct., Oct. 14, 2016, No. FBTCV156048103S) 2016 WL 8115354. Accordingly, Plaintiffs have adequately alleged an exception to the general rule of preemption based on negligent entrustment.

      Plaintiffs also contend that the “predicate acts” exception to statutory immunity also applies. This exception covers claims that allege “knowing violations of a state or federal statute applicable to the sale or marketing of firearms" and the violation was a proximate cause of the harm for which relief is sought. (Ileto at 1136; 15 U.S.C.A. § 7903(5)(A)(iii)). Specifically, these statutes “regulate manufacturing, importing, selling, marketing, and using firearms or that regulate the firearms industry—rather than general tort theories that happened to have been codified by a given jurisdiction." (Ileto at 1136).

      The FAC alleges that Springfield and other firearm defendants “were in violation of one or more of the state or federal laws” governing marketing and selling and that Defendants knew or should have known that Ontiveros was disqualified from owning or possessing a weapon. (FAC ¶ 108). While Plaintiffs broadly allege Defendants violated various laws without articulating a factual basis for such violations, Plaintiffs have sufficiently alleged one exception to statutory immunity sufficient to survive demurrer.  A demurrer cannot rightfully be sustained to part of a cause of action. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047). If any part of a cause of action is properly alleged, demurrer will be overruled. (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452).

V.      CONCLUSION       

[TENTATIVE] ORDER GRANTING THE MOTION TO STRIKE WITHOUT LEAVE TO AMEND

I.        ARGUMENTS

            Defendant Springfield moves to strike allegations supporting the claim for punitive damages. Plaintiffs argue that the prayer is supported by allegations of what Springfield knew or should have known about the use of the firearm at issue. In reply, Defendant contends that there must be clear and convincing evidence to support such damages. The claim is based on legal conclusions.

II.      LEGAL STANDARDS

      To recover exemplary damages, Plaintiffs must establish “by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” (Civ. Code, § 3294 (a)). The predicate acts to support a claim for punitive damages must be intended to cause injury or must constitute “malicious” or “oppressive” conduct as defined by statute. “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.” (Civ. Code, § 3294 (c)(1); College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 ["malice involves awareness of dangerous consequences and a willful and deliberate failure to avoid them"]). "Oppression" is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Civ. Code, § 3294 (c)(2)).

      Absent an intent to injure the plaintiff, the conduct must be “despicable” which is defined as “base, vile, or contemptible.” (College Hospital Inc. at 725). The plaintiff must demonstrate that “the defendant acted in such an outrageous and reprehensible manner that the jury could infer that he knowingly disregarded the substantial certainty of injury to others." Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 90. Conduct constituting negligence, gross negligence or recklessness is insufficient to support a claim for punitive damages. Dawes at 87.          

III.    DISCUSSION

      Plaintiffs rely on allegations that Defendant “knew or should have known about the unreasonably high risk” associated with the use of the firearm. FAC ¶¶ 99-102. Plaintiffs allege that Defendant marketed and promoted the assaultive qualities and military uses of the firearm. FAC ¶ 103-104. Plaintiffs then conclude this conduct is unethical, oppressive, immoral, and unscrupulous. FAC ¶¶ 115. These allegations, based on what Defendant knew or should have known, do not rise to the level of “despicable conduct” necessary to support liability for punitive damages. Conduct constituting negligence, gross negligence, or recklessness is insufficient to support a claim for punitive damages. Dawes at 87. 

IV.    CONCLUSION

      Accordingly, the motion to strike is GRANTED. Leave to amend is ordinarily given if there is a reasonable possibility that the defect can be cured. However, it is the Plaintiffs’ burden to demonstrate how and in what manner the complaint can be amended and how that amendment will change the legal effect of the pleading]. (Association of Community Organizations for Reform Now v. Department of Industrial Relations (1995) 41 Cal.App.4th 298, 302). As Plaintiffs have not met that burden, leave to amend is DENIED.