Judge Walter P. Schwarm, Case 30-2021-01184284 2023-07-18 Tentative Ruling

Judge: Walter P. Schwarm, Case: 30-2021-01184284, Date: 2023-07-18 Tentative Ruling

Defendants’ (Defendants’ (Wheaton World Wide Moving and Mather Brothers Moving Company, LLC) Motion to Strike Punitive Damages From Plaintiff’s Second Amended Complaint (Motion), filed on 4-10-22 under ROA No. 256, is GRANTED in part and DENIED in part.

The court DENIES Defendants’ Request for Judicial Notice, filed on 7-11-23 under ROA No. 298, for the following two reasons: (1) It is immaterial to the court’s decision as set forth below. (Silverado Modjeska Recreation & Parks District v. County of Orange (2011) 197 Cal.App.4th 282, 307, fn. 18.); (2) Defendants improperly submitted their Request for Judicial Notice after Plaintiff (Joshua Derek Brown) filed the Opposition to this Motion. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537–1538.)

Code of Civil Procedure section 436, states, “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. [¶] (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” Code of Civil Procedure section 435, subdivision (b)(1), states, “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, but this time limitation shall not apply to motions specified in subdivision (e).” Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342, explains, “Preliminarily, we note a motion to strike is generally used to reach defects in a pleading which are not subject to demurrer. A motion to strike does not lie to attack a complaint for insufficiency of allegations to justify relief; that is a ground for general demurrer. [Citation.]” Code of Civil Procedure section 437, subdivision (a), “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”

The Motion seeks to strike the following allegations for Plaintiff’s Second Amended Complaint (SAC) filed on 3-10-23 under ROA No. 225: (1) “Plaintiff’s Prayer for Punitive Damages; SAC page 15, lines 2-3” (Motion; 3:4); and (2) “Survivorship Claims newly brought on behalf of Decedent’s Estate; page 13-14, paragraphs 47-53.” (Motion; 3:5-6.)

Code of Civil Procedure section 3294, subdivision (b), states, “(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”

Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63, states, “ ‘In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.’ [Citation.] [¶] In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. [Citation.] These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ.Code, § 3294, subd. (a).) ‘ “Malice” ’ is defined in the statute as conduct ‘intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others.’ [Citations.] ‘ “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.’ [Citation.] ‘ “Fraud” ’ is ‘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.’ [Citation.]”

In order to plead punitive damages, a plaintiff must plead allegations of fraud, malice, or oppression with sufficient particularity. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872; Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)

Davis v. Kiewit Pacific Company (2013) 220 Cal.App.4th 358, 366 (Davis), provides, “ ‘Managing agents’ are employees who ‘exercise[] substantial discretionary authority over decisions that ultimately determine corporate policy.’ [Citation.] White concluded: ‘[T]he Legislature intended the term ‘managing agent’ to include only those corporate employees who exercise substantial independent authority and judgment in their corporate decisionmaking so that their decisions ultimately determine corporate policy.’ [Citation.] ‘[T]o demonstrate that an employee is a true managing agent under [Civil Code] section 3294, subdivision (b), a plaintiff seeking punitive damages would have to show that the employee exercised substantial discretionary authority over significant aspects of a corporation's business.’ [Citation.] ‘The scope of a corporate employee's discretion and authority under our [managing agent] test is therefore a question of fact for decision on a case-by-case basis.’ [Citation.] If there exists a triable issue of fact regarding whether a corporate employee is a managing agent under the White test, that factual question must be determined by the trier of fact and not the court on a motion for summary adjudication. [Citations.]” (Italics in Davis.)

Paragraph 25 of the SAC pleads, “Specifically, Defendants MATHER and WHEATON acted with advance knowledge and/or malice in that they engaged in despicable conduct and in conscious disregard of the rights, safety, and welfare of Decedent by conduct that included, but is not limited to, the following: [¶] a. On the date of the Subject Collision, Defendants MATHER and WHEATON knew that Defendant GAITHER’s employment application was not accurate. [¶] b. On the date of the Subject Collision, Defendants MATHER and WHEATON knew that Defendant GAITHER was unfamiliar with the contents of the California Commercial Driver Handbook. [¶] c. On the date of the Subject Collision, Defendants MATHER and WHEATON knew that Defendant GAITHER had never taken the Commercial Driver’s License (‘CDL’) Exam. [¶] d. On the date of the Subject Collision, Defendants MATHER and WHEATON knew that Defendant GAITHER had no training in Federal Motor Carrier Safety Regulations. The Federal Motor Carrier Safety Regulations are in place to ensure safe operation of commercial vehicles. [¶] e. On the date of the Subject Collision, Defendants MATHER and WHEATON knew that Defendant GAITHER did not have sufficient safety training from Defendants. [¶] f. Prior to the Subject Collision, Defendant GAITHER was involved in a previous pedestrian vs. automobile incident in which he ran someone over on July 14, 2016. Defendants MATHER and WHEATON should have known, had they used due diligence in hiring Defendant GAITHER, of this incident. [¶] g. Defendants MATHER and WHEATON failed to properly investigate Defendant GAITHER’s application, wherein Defendant GAITHER reported the incident as a ‘automobile vs. automobile incident’ which was not true. [¶] h. Defendants MATHER and WHEATON thereafter authorized their truck to be operated by Defendant GAITHER on October 26, 2020, in conscious disregard of the health and safety of other motorists and pedestrians, including the Decedent, in violation of Federal and California Law. [¶] i. MATHER and WHEATON failed to properly review Defendant GAITHER’s application, failed to formally train him, did not investigate his training and experience, and allowed him to operate a tractor-trailer after one singular pre-ride. Prior to the subject collision, MATHER and WHEATON failed to perform an adequate inquiry to confirm Defendant GAITHER was safe to operate the subject tractor-trailer, had safety compliance policies and procedures in place, and was qualified to drive a commercial vehicle. Had MATHER and WHEATON performed an adequate inquiry, they would have discovered that GAITHER was not qualified to drive a commercial vehicle. [¶] j. MATHER and WHEATON failed to properly investigate Defendant GAITHER’s employment history, including indicating on their background forms that a call was placed to Defendant GAITHER’s former employer Walter Settles, for whom Defendant GAITHER was employed during the previous pedestrian vs. automobile incident on July 14, 2016. Despite indicating this phone call with Walter Settles, MATHER and WHEATON never made such call; [¶] k. MATHER and WHEATON failed to meet proper standards of care for longhaul, interstate drivers by failing to send physical letters to former employers to ensure the authenticity of the applicants’ employment background and training; [¶] l. WHEATON participated in deceitful practices by advising potential Agents (like Defendant GAITHER and MATHER) that WHEATON would handle all Federal and California compliance requirements including FMSCA compliance and other licensure requirements, and then wholly failing to handle any such compliance requirements once the Agent began employment with WHEATON. This bait-and-switch method allowed for a complete absence of safety measures, which led to the unsafe operation of commercial vehicles by WHEATON’s Agents (including Defendants MATHER and GAITHER). [¶] m. WHEATON’s officer, Safety Director, Jim Witzerman, established an unsafe practice for the hiring of Agents (including Defendants MATHER and GAITHER). Jim Witzerman has never read the safety training guidelines, does not have a commercial license, and does not know whether the federal guidelines he must abide by are to ensure safety. [¶] n. WHEATON’s officer, Safety Director, Jim Witzerman confirmed that despite tractor-trailers operating at WHEATON’s direction, covering 26 million miles per year, he allowed Agents (such as MATHER and GAITHER) to operate believing that WHEATON would ensure all Federal and California compliance requirements, while knowing that WHEATON took no action to meet such compliance requirements. [¶] o. WHEATON’s officer, Safety Director, Jim Witzerman allowed the employee background checks to be sub-par, including for the hiring of Defendant GAITHER, by not ensuring their background check company ‘Private Eyes’ performs inspections on all new hires, not ensuring each previous employer was actually spoken to in the hiring process, and failing to confirm proper licensure and training. Jim Witzerman’s oversight directly resulted in GAITHER operating his commercial vehicle in an unsafe manner at the time of the subject collision. [¶] p. Due to allowing practices that failed to meet Federal and California longhaul driver standards of care, and allowing Agents to fall below the standard of care, in an attempt to pursue further profits, WHEATON Safety Director, Jim Witzerman, constituted malice, oppression, and fraud. [¶] q. WHEATON endorsed practices amounting to malice, oppression, and fraud through its Agency Manual, which outlines practices contrary to Federal and California compliance requirements. [¶] r. At all relevant times, WHEATON and MATHER knew that commercial driving is dangerous and has the potential to cause grave bodily harm to members of the community if safety rules and regulations are not followed. Despite this knowledge, WHEATON and MATHER allowed GAITHER—through their actions and inactions enumerated above—to unsafely operate his commercial vehicle at the time of the subject collision. WHEATON and MATHER officers and directors knew or should have known that its conduct constituted malice, oppression and fraud. [¶] s. The foregoing acts of Defendants, and each of them, constitute a wanton, despicable, conscious, reckless, and callous disregard of the injurious consequences to the rights and safety of Decedent and others on the road. This conduct directly resulted in Defendant GAITHER unsafely operating his commercial vehicle at the time of the subject collision. By reason thereof, Defendants, and each of them, are charged with malice, fraud, and oppression by reason of which plaintiff requests punitive and exemplary damages.” (Uppercase in SAC.)

As to punitive damages, the SAC does not sufficiently allege that the “. . . the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice . . .” was on the part of an officer, director, or managing agent of Wheaton World Wide Moving and Mather Brothers Moving Company, LLC. Although the SAC alleges that Jim Witzerman is a Safety Director, the SAC does not describe Jim Witzerman’s role with Wheaton World Wide Moving and Mather Brothers Moving Company, LLC as an officer, director, or managing agent of those entities. Therefore, the court GRANTS the Motion to the extent it seeks to strike “Plaintiff’s Prayer for Punitive Damages; SAC page 15, lines 2-3.” (Motion; 3:4.)

The Motion also states, “The SAC brings a new Survival claim on behalf of a new party plaintiff: The Estate of Decedent. The survival claim is barred by the statute of limitations.” (Motion; 5:7-9.) “Friends of Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1482 (Friends), provides, “A party may also object by demurrer on the ground that “[t]he pleading does not state facts sufficient to constitute a cause of action,” including that the claims are barred by the applicable statutes of limitations. [Citations.]”

The SAC Survivorship as the fifth cause of action. (SAC; ¶¶ 47-53.) The Motion seeks to strike paragraphs 47-53 of the SAC. Under Pierson, a motion to strike is not the proper procedure to challenge a complaint as to the sufficiency of the allegations that support relief. The Motion relies on the statute of limitations as the basis to challenge the Survivorship cause of action. Since the Motion is challenging the sufficiency of the allegations that support this cause of action, a motion to strike is not the proper procedure to challenge this cause of action. Therefore, the court DENIES the Motion to the extent it seeks to strike paragraphs 47-53 of the SAC.

Based on the above, the court GRANTS Defendants’ (Defendants’ (Wheaton World Wide Moving and Mather Brothers Moving Company, LLC) Motion to Strike Punitive Damages From Plaintiff’s Second Amended Complaint, filed on 4-10-23 under ROA No. 256, to the extent it seeks to strike “Plaintiff’s Prayer for Punitive Damages; SAC page 15, lines 2-3” (Motion; 3:4), with 14 days leave to amend from the date of service of the notice of the court’s ruling. The court DENIES the Motion to the extent it seeks to strike paragraphs 47-53 of the SAC. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146-1147.)

Defendants are to give notice.