Case Number: BC608065 Hearing Date: May 31, 2018 Dept: A

# 11. Ismael Torres, Jr. v. Design Group Facility Solutions, Inc. et al.

Case No.: BC608065

Matter on calendar for: Hearing on Motion to Strike (punitive damages)

Tentative ruling:

I. Background

This action arises from Plaintiff Ismael Torres’ alleged injuries caused by his falling 37 feet through a skylight. Plaintiff was working for Defendant H.J. Vast, Inc. on the roof of a building owned by Defendant Santa Monica Seafood Company (“SMS”). Defendant Design Group Facility Solutions, Inc. (“DGFS”) was the general contractor hired by SMS for the construction project where the incident took place. DGFS had contracted with Defendant C&L Refrigeration Corporation (“C&L”) to install refrigeration systems at the property. C&L contracted with Vast to install electrical components for the refrigeration systems. The property owner is Defendant Watson Partners L.P. (“Watson”).

Plaintiff has sued Vast, C&L, Watson, SMS, DGFS, and others for (1) Negligence – Personal Injury; (2) Failure to Provide a Safe Place to Work; (3) Strict Products Liability Resulting in Personal Injury; (4) Negligent Product Liability; (5) Breach of Express and Implied Warranties; and (6) Punitive Damages. Plaintiff asserts only Causes of Action 1, 2, and 6 against C&L.

C&L moves to strike the portions of the operative complaint (“First Amended Complaint” or “FAC”) relating to punitive damages.

C&L Argues:

· Plaintiff fails to plead any specific allegations or facts that C&L’s corporate leaders acted with malice, oppression, or fraud. (Mtn pg. 10)

· Plaintiff is not entitled to punitive damages for causes of actions based on mere negligence or strict liability. (Id. pg. 12)

· The contract between C&L and DGFS cannot be the basis of a claim for punitive damages. (Id. pg. 12)

· Evidence related to OSHA Citations is improper, inadmissible, and does not support a claim for punitive damages. (Id. pg. 14)

· Evidence of unrelated, dissimilar incidents are irrelevant, improper, inadmissible, and do not support a claim for punitive damages. (Id. pg. 15)

Plaintiff opposes the motion. C&L has filed a reply.

Trial is currently set for October 15, 2018.

II. Standard

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (CCP §436(a).) The court may also strike 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. (CCP §436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (CCP §436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (CCP § 437.)

III. Analysis

A. Use of Cal-OSHA regulations and citations as evidence in third party claims

Labor Code 6304.5 limits the applicability of citations under Cal-OSHA to actions between employee and employer. (LC § 6304.5) Labor Code 6304.5 was amended in 1999 and discussed in detail by the California Supreme Court. (Elsner v. Uveges (2004) 34 Cal. 4th 915) The Court noted the legislature “deleted language precluding admission of Cal-OSHA provisions in third party actions.” (Id. at 927). Under the amended code, which is the same code used today, the Court found the use of Cal-OSHA evidence permissible. (Id. at 927)

C&L’s argument that the Court may not consider Cal-OSHA evidence is unavailing.

B. Use of Prior Incidents in Evidence

Prior incidents can be relied upon for various purposes such as to show foreseeability of the risk and degree of risk: “[w]hether similar or not, [previous incidents] were properly held to constitute evidence of foreseeability” (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal. 3d 112, 129); “Prior similar incidences are one means of showing the extent of the risk which should have been foreseen and guarded against.” (Morfin v. State of California (1993) 12 Cal. App. 4th 812, 817).

The previous incidents that Plaintiff is relying upon involved injuries or death resulting from skylight falls. (FAC ¶¶ 58—61). C&L’s argument that these are dissimilar is unpersuasive. The previous incidents may be relied upon to show foreseeability.

C. “Arising out of Contract” and the Privette doctrine

CC § 3294 does not apply to claims arising out of contract. Plaintiff alleges a contract between C&L and DGFS where C&L accepts sole liability for safety at the site:

“Subcontractor (C&L) is an independent contractor and shall comply with all laws, orders, citations, rules, regulations, standards and statutes affecting or relating to this Subcontract Agreement or its performance, including but not limited to those with respect to occupational health and safety . . . and accepts sole responsibility for providing a safe place to work for its employees and for employees of its subcontractors and suppliers of material and equipment, for adequacy of and required use of all safety equipment . . . .”

(FAC ¶ 64)

Plaintiff’s action against C&L is based in negligence. Plaintiff is not alleging any breach of contract claim against C&L. (See FAC) Defendant C&L does not cite any authority for its position that Plaintiff’s claim arises from contract except for a case, Palmer v. Ted Stevens Honda, Inc., which C&L concedes is based on a breach of contract claim. ((1987) 193 Cal. App. 3d 530). The Court therefore finds C&L’s argument that Plaintiff’s claim arises from contract to be unpersuasive.

C&L also argues that the Privette Doctrine precludes punitive damages against C&L. (Mtn. pg 6) The Privette doctrine protects an innocent hirer from the imputed negligence of its subcontractor. (Whiton v. Swinerton & Walberg Co. (1995) 34 Cal. App. 4th 1054, 1060) The doctrine does not protect C&L in the instant case because negligence is not being imputed to it, but alleged directly against it for its own actions. (Id.) The Court finds that the Privette doctrine does not preclude Plaintiff’s claim for punitive damages.

D. Pleading Oppression, Fraud, or Malice under Civil Code § 3294

For issues not arising from contract, Civil Code § 3294 allows for punitive damages against an employer if, by clear and convincing evidence, the employer is guilty of oppression, fraud, or malice. (CCC § 3294) Malice is at issue here; the code describes it as “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (CC § 3294(c)(1)) As the court held in College Hospital v. Superior Court (1994) 8 Cal. 4th 704, 713, CC § 3294 was amended in 1987 to require that, where malice is based on a defendant’s conscious disregard of a plaintiff’s rights, the conduct must be both despicable and willful. The court in College Hospital held further that “despicable conduct refers to circumstances that are base, vile, or contemptible.” (Id. at 725 (citation omitted)) “‘[I]ntent,’ in the law of torts, denotes not only those results the actor desires, but also those consequences which he knows are substantially certain to result from his conduct.” (Shroeder v. Auto Driveway Co. (1974) 11 Cal. 3d 908, 922)

For a corporation, “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.” (CCC § 3294(b)) A managing agent is a “person with general power involving the exercise of judgment and discretion.” (Black’s Law Dictionary)

Plaintiff alleges:

· “[C&L] knew about the skylight hazards on the roof where the Plaintiff was working, but with conscious disregard for Plaintiff’s rights and safety, ignored them, resulting in serious injuries to the Plaintiff . . . .” (FAC ¶59)

· “Prior to November 4, 2015, the officers, directors, employees and/or managing agents of Defendants, C&L . . . knew, or should have known, that fall protection such as, guards, nets, fences, warnings, safety belts and lines were available and should have been provided to protect Plaintiff, and that Defendants’ failure to provide fall protection would likely result in serious bodily injury and/or death to employees and/or employees of subcontractors including Plaintiff . . . .” (Id. ¶ 76)

· “Defendants, and their officers, directors, employees and/or managing agents, knew about the safety hazards with respect to skylights on the roof where the Plaintiff fell, based on prior accidents and resulting OSHA citations, yet Cal-OSHA fall protection safeguards were never installed around the skylights at the subject job site by Defendant, C & L, to protect the project workers . . . .” (Id. at ¶ 75)

· “Mike Annesley, Safety Coordinator for C & L, admitted in his deposition taken on February 12, 2018, that C & L did not change its safety procedures or protocol after the 2003 Sandoval incident . . . [or] after the 2006 Aranda incident to prevent similar falls in the future.” (FAC ¶ 62) (emphasis omitted)

Plaintiff alleges that the officers of C&L were aware, based on the prior incidents and the accompanying Cal-OSHA citations, of the specific dangers posed by skylights yet failed to take the proper steps to prevent future harm. C&L argues that this case is similar to McDonnel v. American Trust Co., where the defendant was aware of and refused to repair a defective condition that lead to injury, yet the court did not award punitive damages. (Mtn. pg. 13; (1955) 130 Cal. App. 2d 296)) The McDonnel Court found that the refusal to fix the leaking roof—which caused a puddle that in turn lead to a slip—did not rise to reckless disregard of the rights of others. (McDonnel, at 300) Plaintiff’s allegations here have a degree of seriousness and certainty beyond facing the McDonnel court. The prior Cal-OSHA citations appear to show that C&L employees had been seriously injured from skylight falls. Plaintiff further alleges that the officers of C&L were aware of these incidents and took no corrective action, thereby leading to Plaintiff’s injury. The Court finds that Plaintiff has sufficiently pleaded conscious and willful disregard of the rights or safety of others to support a punitive damages claim.

IV. Ruling

The Court denies the motion to strike.