Case Number: 19STCV05026 Hearing Date: May 24, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

SULUFAIGA DEVOUX,

Plaintiff(s),

vs.

SSA CONTAINERS, INC., et al.

Defendant(s).

Case No.: 19STCV05026

[TENTATIVE] ORDER GRANTING MOTION TO STRIKE

Dept. 3

1:30 p.m.

May 24, 2019

Background Facts

Plaintiff, Sulufaiga Devoux filed this action against Defendants, SSA Containers, Inc., SSA Marine, Inc., SSA Terminals, LLC, and SSA Terminals (Long Beach), LLC for damages arising out of injuries sustained on Defendants’ premises.

Motion to Strike

Plaintiff’s complaint includes a prayer for punitive damages, and Defendant, SSA Containers, Inc. moves to strike the prayer for punitive damages and the related allegations.

Meet and Confer

Plaintiff argues Defendant’s moving papers fail to include the required meet and confer declaration. Plaintiff is correct. However, Plaintiff does not actually argue Defendant failed to meet and confer prior to filing the motion. In reply, Defendant explains that meet and confer efforts were unsuccessful, and this motion follows. At most, the Court would continue the hearing to require Defendant to file the required declaration; however, this appears to be a futile act, as it is clear the parties have met and conferred and have not resolved their dispute. The Court will therefore consider the motion on its merits.

Malice, Fraud, or Oppression

Defendant argues Plaintiff failed to plead facts supporting his contention that Defendants’ employee acted with malice, fraud, and/or oppression. Per Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6, a complaint seeking imposition of punitive damages must be supported by facts, as opposed to conclusions, concerning fraud, malice, and/or oppression.

The motion to strike is granted. Plaintiff fails to plead any facts in support of his conclusion, in the complaint, that Defendant’s employee acted with malice, fraud, or oppression. Leave to amend is granted if and only if Plaintiff can do so by way of an amended complaint.

Employer Liability for Employee Acts

Defendant also argues Plaintiff failed to sufficiently allege facts supporting imposition of punitive damages against it on the basis of employer responsibility for an employee’s tort. Civil Code (b) §3294(b) provides:

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.

Plaintiff relies on Kiseskey v. Carpenters’ Trust for So. California (1983) 144 Cal.App.3d 222, 234-235 to support his position that corporate liability for punitive damages can be asserted based on mere conclusions. In Kiseskey, the court of appeals considered the issue of whether the plaintiff’s allegations of malice against the entity defendant’s employees were sufficient to support imposition of punitive damages against the employer defendant. The court held (citations omitted):

We turn next to the sufficiency of the allegations by which plaintiff seeks to assess punitive damages against defendant local for the conduct of Mr. McCarron and certain enumerated Does.

“In a broad sense, it is correct to state that California follows the Restatement rule regarding assessment of punitive damages against a principal: ‘Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if, (a) the principal authorized the doing and the manner of the act, or (b) the agent was unfit and the principal was reckless in employing him, or (c) the agent was employed in a managerial capacity and was acting in the scope of employment, or (d) the principal or managerial agent of the principal ratified or approved the *235 act.’ (citations.)

The FAC alleges that the persons making the threatening phone calls were the “agents and/or employees of their co-defendants Carpenters and/or Local 1506 and/or Does XI through XX and in doing the things hereinafter alleged were acting within the course and scope of such agency and the permission and consent of their co-defendants.”

That language sufficiently alleges that the threatening phone calls were made by “agents and/or employees” of defendant, “acting within the course and scope of said agency.” The more difficult question is whether it constitutes a sufficient allegation that defendant, the principal, “’authorized the doing and the manner of the act”’ or “’ratified or approved the act.”’ citations)

As to whether the words “permission and consent” constitute a sufficient allegation that the principal authorized or approved the doing and manner of the acts, we turn to Webster’s Third New International Dictionary (1961) for assistance. That work defines the word “permission,” among other definitions, as “the act of permitting: formal consent: Authorization.” (citation.) It defines the word “consent,” among other definition as “compliance or approval esp. of what is done or proposed by another: Acquiescence, Permission, capable, deliberate, and voluntary agreement to or concurrence in some act or purpose implying physical and mental power and free action.” (citation.) It defines the word “authorize,” among other definitions, as “to endorse, empower, justify, or permit by or as if some recognized or proper authority: sanction.” (citation)

We accordingly conclude that the conclusional words “permission and consent” used in the FAC, coupled with the factual allegations therein, constitute an allegation, sufficient if proven, upon which punitive damages may be assessed against defendant for the conduct of its agents.

Essentially, Kiseskey holds that corporate punitive damages can be imposed based upon the actions or nonactions of an officer, director or managing agent, which can include imposition of punitive damages based upon corporate policy to commit the wrongs complained of. Id. In this case, Plaintiff has not pled some sort of corporate policy that permitted Defendant’s employee to commit the unspecified act, in the complaint, that caused Plaintiff to suffer damages. The motion to strike is therefore also granted on the ground that Plaintiff failed to adequately plead liability for punitive damages against the moving defendant in its capacity as an employer of the doe defendant who injured Plaintiff.

Conclusion

The motion to strike is granted. Plaintiff is ordered to file an amended complaint, if he can do so in compliance with the above, within ten days. If Plaintiff files an amended complaint, Defendant is ordered to file a responsive pleading within the statutory time thereafter. If Plaintiff does not file an amended complaint within ten days, the original complaint will be allowed to stand. The punitive damages allegations will be deemed stricken. Defendant will be required to file an answer to the original complaint, with the subject allegations deemed stricken, within twenty days of today’s hearing date (ten days after the time to amend lapses).

Defendant is ordered to give notice.