Case Name: Michael Calantropio v. Devcon Construction Inc., et al.
Case No.: 2015-1-CV-287720

Motion to Strike Claim for Punitive Damages by Defendant Devcon Construction Inc.

Factual and Procedural Background

This is a negligence case. On March 2, 2015, plaintiff Michael Calantropio (“Plaintiff”) sustained serious right lower extremity injuries as well as other injuries after he fell several feet off a standing ladder and into an uncovered, unguarded floor opening. (See Second Amended Complaint [“SAC”], first cause of action, ¶ GN-1.) Plaintiff alleges defendant Devcon Construction Inc. (“Devcon”) and other defendants negligently constructed, maintained, inspected, managed, supervised and/or controlled the job site at 100 Mayfield Way in Mountain View, California, including the area where the subject incident occurred. (Ibid.) Defendants allegedly created the dangerous condition and knew or should have known of the dangerous condition they had created including the unreasonable dangers posed by the uncovered, unguarded and concealed floor opening. (Ibid.)

On May 24, 2018, Plaintiff filed the operative judicial council form SAC against defendants alleging causes of action for general negligence and premises liability.

Motion to Strike Claim for Punitive Damages

Currently before the Court is Devcon’s motion to strike the claim for punitive damages in the SAC. Devcon filed a request for judicial notice in conjunction with the motion. Plaintiff submitted written opposition. Devcon filed reply papers.

Request for Judicial Notice

In support of the motion, Devcon requests judicial notice of various pleadings and court orders concerning this case over the last two years. (See Request for Judicial Notice at Exhibits 1-8.) These documents are proper subjects of judicial notice as they constitute records of the superior court under Evidence Code section 452, subdivision (d). (See Evid. Code, § 452, subd. (d); Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500 [the court may take judicial notice of its own file].) Plaintiff does not oppose the request for judicial notice.

Accordingly, the request for judicial notice is GRANTED.

Legal Standard

A court may strike out any irrelevant, false, or improper matter asserted in a pleading. (Code Civ. Proc., § 436, subd. (a).) A court may also strike out all or any part of a pleading not filed in conformity with the laws of the State of California. (Code Civ. Proc., § 436, subd. (b).) 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).)

Sufficiency of Punitive Damages Allegations

“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. These statutory elements include allegations that the defendant has been guilty of oppression, fraud, or malice. ‘Malice’ is defined in the statute as conduct ‘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.’ ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. ‘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.’” (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 [internal citations omitted].)

“In determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint. Further, even though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to defendants’ conduct may adequately plead the evil motive requisite to recovery of punitive damages.” (See Monge v. Super. Ct. (1986) 176 Cal.App.3d 503, 510.)

Here, Plaintiff’s SAC includes an exemplary damages attachment with respect to defendant Devcon. The attachment alleges, in conclusory fashion, that Devcon’s conduct constitutes fraud, malice, and/or oppression towards Plaintiff and others, and a conscious disregard for the safety of Plaintiff and others. (See SAC, Exemplary Damages Attachment, ¶ EX-2.) In support of this conclusion, Plaintiff alleges the following:

“Devcon Construction Inc. and DOES 1 to 25 knew of the dangerous condition they had created including the unreasonable dangers posed by the uncovered, unguarded and concealed floor opening. Despite such knowledge, defendant Devcon Construction Inc. and Does 1 to 25 failed to rectify, warn, and/or guard against this hazard. Rather, they directed and instructed Plaintiff to work in the area of the dangerous condition knowing it was unsafe and posed a hazard and knowing this hazard was concealed before Plaintiff started working in the area. In doing so [,] defendant Devcon Construction Inc. purposefully placed their monetary interests and profit motive ahead of safety.”
(Ibid.)

These facts however are not enough to support an award for punitive damages. As a preliminary matter, the SAC is supported by claims of negligence and premises liability. (See McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 668 [premises liability is a species of negligence].) “[M]ere negligence, even gross negligence is not sufficient to justify an award of punitive damages.” (Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894.) Nor do the facts establish fraud or even malice as there are no allegations demonstrating an evil motive or intent to cause harm to the Plaintiff. (See Western Décor & Furnishings Industries, Inc. v. Bank of America (1979) 91 Cal.App.3d 293, 309 [“The malice essential to an award of exemplary damages requires an evil motive or intent; it denotes ill will on the part of the defendant, or his desire to do harm for the mere satisfaction of doing it.”].)

A plaintiff may also seek punitive damages based on despicable conduct which is encompassed in section 3294 under malice and oppression. The adjective “despicable” connotes conduct that is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.) Put another way, “[p]unitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.” (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1154.) Such conduct described as having the character of outrage frequently associated with a crime. (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.) Here, the fact that Devcon allegedly placed Plaintiff in a hazardous work environment may qualify as negligent and even reckless behavior but does not rise to the level of despicable conduct necessary to support an award for punitive damages. Nor does achieving a profit qualify as conduct so vile, contemptible, and loathsome so as to be despised by ordinary decent people. Therefore, the claim for punitive damages is hereby stricken however Plaintiff will be given an opportunity to amend his pleading. (See Price v. Dames & Moore (2001) 92 Cal.App.4th 355, 360 [with respect to motion to strike, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question].)

Disposition

The motion to strike the claim for punitive damages in the SAC is GRANTED with 10 DAYS’ LEAVE TO AMEND after service of this signed order.

The Court will prepare the order.