2017-00208660-CU-PA

Tyrone Shacklefoot vs. One Call Care Management

Nature of Proceeding: Motion to Strike Portions of Plaintiff’s First Amended Complaint

Filed By: Lee, Matthew E.

The motion of Defendants One Call Medical, Inc. (NJ) dba One Call Care Management and Zonecare USA of Delray, LLC (FL) dba One Call Care Transport + Translate (collectively “Defendants”) to strike the punitive damages claim from the first amended complaint (FAC) is GRANTED with leave to amend.

This is a personal injury case. The plaintiff is Tyrone Shacklefoot (Shacklefoot). In the FAC, Shacklefoot alleges that Defendants provide home health care and transportation to/from medical appointments for injured workers. He alleges that in September 2016 other defendants transporting him as Defendants’ agents were involved in a collision that rendered him a paraplegic. He alleges he weighed close to 500 lbs. at the time, and that the taxicab used to transport him did not have a suitable passenger restraint system.

The FAC contains a single cause of action for “Motor Vehicle,” which includes allegations that Defendants acted with the malice required to support an award of punitive damages. According to Shacklefoot, Defendants knew he was unable to use a standard seat belt and knew the taxi they summoned for him the day of the collision did not have a usable restraint system. They nonetheless caused him to be transported by taxi even though medical vans are safer and available. Shacklefoot alleges Defendants acted to maximize profits and reduce costs. He also alleges they were “too lazy” to find appropriate transport. And he alleges Defendants knew the service they were providing was “dangerous.” (FAC, ¶ 44(b).)

Citing Di Giorgio Corp. v. Valley Labor Citizen (1968) 260 Cal.App.2d 268, 277-278, Defendants argue first that Shacklefoot has lumped them together in the FAC and, as a consequence, has failed to establish each entity’s malice with sufficient specificity. Di Giorgio Corp., though, involved the sufficiency of evidence after trial, not the sufficiency of allegations in the face of a pleading challenge. Di Giorgio Corp. is distinguishable, and the court thus rejects Defendants’ first argument.

Next Defendants argue the allegations of malice are mere conclusions. The court disagrees. (See FAC, ¶ 44.)

Defendants argue next that the motion must be granted because Shacklefoot has failed to allege their intent to harm. But malice may be shown with facts establishing a reckless disregard for the results of wrongful conduct, not merely a specific intent to harm. (See Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 922.) The court rejects the suggestion Shacklefoot must allege a specific intent to harm.

Next, Defendants argue that Vehicle Code § 27315 bars the imposition of punitive damages. That section mandates the use of seatbelts in motor vehicles but exempts taxicabs “when the taxicab is driven on a city street and is engaged in the transportation of a fare-paying passenger.” Defendants argue that this exemption mandates a conclusion they had no malice when they placed Shacklefoot in a taxicab without a seatbelt suitable for him. Defendants, however do not cite any case adopting their view. Nor is it clear that the taxicab in which Shacklefoot was injured was operating “on a city street” when he was injured. In addition, the relationship between Defendants (who allegedly serve injured workers) and Shacklefoot (who was injured and allegedly pleaded for a more suitable transport vehicle) does not reflect the typical relationship between a city taxi driver and garden variety passenger. The court is not persuaded § 27315 bars an award of punitive damages against Defendants.

The court grants the motion, however, because Shacklefoot has not identified any officer, director of managing agent necessary to award punitive damage against a corporate employer. (See CC § 3294(b).) Leave to amend is granted.

In granting leave to amend, the court is mindful that there do not appear to be any cases authorizing punitive damages on grounds a collision was somehow “despicable” for purposes of awarding punitive damages. (See Lackner v. North (App. 3 Dist. 2006) 135 Cal.App.4th 1188, 1212-1213.) Nonetheless, the court is not persuaded the alleged conduct cannot be considered “extreme indifference” to Shacklefoot’s rights, and for that reason leave to amend is granted. (See id., p. 1210.)

Disposition

The motion is granted with leave to amend.

No later than 3/08/18, Shacklefoot may file and serve a second amended complaint (SAC) in order to allege facts supporting punitive damages against Defendants; response(s) due within 30 days thereafter, 35 days if the SAC is served by mail.

Although not required by any statute or rule of court, Shacklefoot is requested to attach a copy of the instant minute order to the SAC to facilitate the filing of the pleading.

If any defendant intends to demur to the SAC or move to strike, it shall determine if any other defendant who has appeared in this action also intends to demur or move to strike. If so, all such defendants shall coordinate a single hearing date for the demurrers and motions to strike. Additionally, a copy of the SAC shall be included with the moving papers.