Daniel Bruckner, et al. v. Southern California Edison
Case No: 17CV05745
Hearing Date: Tue May 22, 2018 9:30

Nature of Proceedings: Motion Strike Punitive Damages

Motion of Defendant to Strike Portions of Complaint

Attorneys:

For Plaintiffs Daniel Bruckner and Janell Bruckner: Brian J. Heffernan, Alexandra J. Newsom, Engstrom, Lipscomb & Lack

For Defendant Southern California Edison: Friedrich W. Seitz, Gina E. Och, Brian R. Shaw, Murchison & Cumming, LLP; Leon Bass, Jr., Laura A. Meyerson, Southern California Edison Company

Ruling:

For the reasons set forth herein, the motion of defendant Southern California Edison to strike portions of the complaint is granted, without leave to amend, to strike paragraphs 42, 50, 54, and 66 of the text of the complaint and to strike paragraph 7 of the prayer on page 14 of the complaint. This ruling is without prejudice to the filing of a noticed motion to amend to allege claims for punitive damages at some later time upon an appropriate showing.

Background:

Plaintiffs Daniel Bruckner and Janell Bruckner are owners of real property known as the Ogilvy Ranch. (Complaint, ¶ 13.)

On or around August 18, 2016, the Rey Fire started in the Los Padres National Forest, eventually burning over 32,000 acres of backcountry and destroying multiple outbuildings, personal property, and extensive vegetation on the Ogilvy Ranch. (Complaint, ¶ 14.)

The Rey Fire was caused by the failure of an electrical line and other equipment owned, operated, controlled, or maintained by defendant Southern California Edison Company (SCE). (Complaint, ¶ 16.) SCE intentionally and negligently failed to properly maintain the electrical line and the area around it, causing contact between an improperly maintained true and an electrical line, which was a substantial factor in the cause of the fire. (Complaint, ¶ 17.)

On December 20, 2017, plaintiffs filed their complaint in this action against SCE asserting six causes of action: (1) inverse condemnation; (2) negligence; (3) trespass; (4) private nuisance; (5) violation of Public Utilities Code section 2106; and (6) violation of Health and Safety Code section 13007. (Note: The list of causes of action in the caption reverses the first and second causes of action from the order in which they appear in the text of the complaint. The Court refers to the causes of action in the order in which they appear in the text.) All causes of action other than inverse condemnation include allegations or prayers for punitive damages.

SCE now moves to strike the allegations and prayers for punitive damages. The motion is opposed by plaintiffs.

Analysis:

“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.” (Code Civ. Proc., § 436.) “Irrelevant matter” includes a “demand for judgment requesting relief not supported by the allegations of the complaint.” (Code Civ. Proc., § 431.10, subds. (b)(3), (c).) “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.” (Code Civ. Proc., § 437, subd. (a).)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. [Citations.] 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. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).) “‘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.” (Civ. Code, § 3294, subd. (c)(1).)

“‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(1).)

“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.” (Civ. Code, § 3294, subd. (b).)

“As nonintentional torts support punitive damages when the defendant’s conduct ‘involves conscious disregard of the rights or safety of others,’ our focus is on malice and oppression. … The term ‘ “despicable” ’ [in the definitions of “malice” and “oppression”], though not defined in the statute, is applicable to ‘circumstances that are “base,” “vile,” or “contemptible.” ’ ” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299, citations omitted.)

Plaintiffs allege negligence in failing to correct conditions that posed a risk of serious injury, damage, or death if the electrical line came in contact with vegetation. (Complaint, ¶¶ 35-37.) Plaintiffs allege in conclusory terms that this conduct evidences a conscious disregard for the safety of others, including plaintiffs, and that the conduct was committed, authorized, or ratified by an officer, director, or managing agent of SCE. (Complaint, ¶ 42.) These allegations are repeated in essence for each of the allegations for punitive damages.

These allegations are too conclusory to meet the pleading burden to allege ultimate facts supporting a claim for punitive damages. In opposition, plaintiffs argue generally that wildfires caused by utilities is a recurring problem in California. In the context of this particular case, plaintiffs argue that whether the Rey Fire was a product of conscious disregard is presently unknown and that “[t]ime and discovery will tell.” (Opposition, p. 3.) Plaintiffs make a reasoned argument that, under appropriate circumstances, the element of despicable conduct with conscious disregard for the safety of others for punitive damages may be shown where a party knows of and creates or permits a sufficiently high likelihood of wildfires. Where that risk is particularized to the circumstances that led to the fire at issue in this complaint (as, hypothetically, where a utility was warned about a particular tree’s danger and the danger was intentionally ignored), such known risk may demonstrate despicable conduct supporting an award of punitive damages. But no such particularized circumstances are alleged here. The allegations fairly read only refer to a general risk of fire from insufficient control and maintenance over electric lines in connection with surrounding vegetation. As argued by plaintiffs, wildfire is a persistent and ordinary risk of the operation of electrical lines; as a result, despicable conduct would require a showing of a sufficiently heightened risk particular to the facts of this case. The allegations of the complaint do not allege despicable conduct particular to this case to support a claim of punitive damages. The motion to strike will therefore be granted.

The more difficult question involves whether to grant leave to amend. Plaintiffs argue in opposition that the underlying facts, i.e., what was the known risk and why was it allowed to exist, are unknown to plaintiffs and require discovery to ascertain. This lack of knowledge of facts is especially true of facts sufficient to meet the requirement of authorization or ratification by a managing agent—a plaintiff is very unlikely to know such facts without discovery. It is not enough, however, to allege a speculative claim for punitive damages with the hope that discovery will yield evidentiary support. In the circumstances here, plaintiff must do the discovery first. The motion to strike will be granted without leave to amend, but also without prejudice to a later motion to amend to allege claims for punitive damages upon a proper showing.