Judge: Serena R. Murillo, Case: 21STCV39586, Date: 2022-09-20 Tentative Ruling

Case Number: 21STCV39586    Hearing Date: September 20, 2022    Dept: 29

Carlos Avalos v. Jose Mier

Tuesday, September 20, 2022

Motion to Strike Punitive Damages filed by Defendant Premier Liquor

TENTATIVE

Defendant Premier Liquor’s motion to strike is DENIED.

Meet and Confer 

The motion to strike is accompanied by the declaration of Michael E. McCabe, which satisfies the meet and confer requirement. (Code Civ. Proc. § 435.5.)  

Legal Standard 

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435(b)(1).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (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; Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) 

Discussion

Defendant Premier Liquor moves to strike allegations of punitive damages against it in the complaint.

To state a claim for punitive damages under Civil Code section 3294, a plaintiff must allege specific facts showing that the defendant has been guilty of malice, oppression or fraud. (Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1042.) The basis for punitive damages must be pled with specificity; conclusory allegations devoid of any factual assertions are insufficient. (Id.) A motion to strike may lie where the facts alleged, if proven, would not support a finding that the defendant acted with malice, fraud or oppression. (Turman v. Turning Point of Central California (2010) 191 Cal. App. 4th 53, 63.)  

“Malice” is defined in section 3294(c)(1) as “conduct which is intended by the defendant to cause injury” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” “Oppression” is defined in section 3294(c)(2) as “despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.” The term “despicable” has been defined in the case law as actions that are “base,” “vile,” or “contemptible.” (See, e.g., Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal. App. 4th 847, 891.)  

To prove that a defendant acted with “willful and conscious disregard of the rights or safety of others,” it is not enough to prove negligence, gross negligence or even recklessness. (Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, 87.) Rather, a plaintiff must allege facts demonstrating that “the defendant acted in such an outrageous and reprehensible manner that the jury could infer that he [or she] knowingly disregarded the substantial certainty of injury to others.” (Id. at 90). Further, the allegations must be sufficient for a reasonable jury to conclude that Defendant’s conduct was “despicable” defined as “base, vile or contemptible.” (College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 725.) 

As to vicarious liability of punitive damages, “the courts require evidence that the employer authorized or ratified a malicious act, personally committed such an act, or wrongfully hired or retained an unfit employee. For corporate or other large organizations, [the malicious conduct of an employee] must have been performed by an ‘agent...employed in a managerial capacity and…acting in the scope of employment,’ or ratified or approved by a ‘managerial agent’ of the organization. [Citations.]” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 723; Civil Code section 3294, subd. (b). Further, there must be allegations that the managing agent was acting as a corporate representative or in a professional capacity. (Id. at p. 724.) ‘‘[M]anaging agent’...include[s] only those corporate employees who exercise substantial independent authority and judgment in their corporate decisionmaking so that their decisions ultimately determine corporate policy.’ [Citation.]” (Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 164.) 

Plaintiff alleges that on October 26, 2019, Plaintiff’s son Alonso, along with his friends, went to Premier Liquor in Sun Valley, and the employee, Jose Mier proceeded to scream obscenities at Alonso and his friends. Plaintiff alleges that Mier then attempted to charge at them in an aggressive manner. Alonso and his friends ran away on foot, and Mier pursued them in his vehicle. He then intentionally struck Alonso with his vehicle, and ran him over, resulting in Alonso’s immediate death. Defendant Mier was charged with murder. As to punitive damages against Defendant Premier Liquor, Plaintiff alleges that Mier was an owner/manager of Premier Liquor, and was acting within his role as owner, manager, operator, and employee of Premier Liquor when he struck decedent with his vehicle.

The Court finds that there are allegations in the Complaint that sufficiently allege conduct that rises to the level of malice and oppression, and Plaintiff’s allegations that Mier was the owner of Premier Liquor, and acted within his role as owner when he operated his vehicle and struck Decedent, is sufficient to connect Premier to that conduct.

Conclusion 

Accordingly, Defendant Premier Liquor’s motion to strike is DENIED.

Moving party is ordered to give notice.