2017-00218963-CU-PO

Gary St. Pierre vs. Goodwill Industries International, Inc.

Nature of Proceeding: Motion to Strike Portions of the 1st Amended Complaint

Filed By: Wooden, Kevin N.

Defendant Goodwill Industries of Sacramento Valley & N. Nevada, aka Goodwill Industries of Sacramento Valley & N. Nevada, Inc.’s motion to strike portions of Plaintiff’s complaint alleging punitive damages is ruled upon as follows.

Defendant’s notice of motion failed to include notice of the Court’s tentative ruling system as required by Local Rule 1.06(D). Defendant is ordered to notify Defendants immediately of the tentative ruling system and to be available at the hearing, in person or by telephone, in the event Defendants appear without following the procedures set forth in Local Rule 1.06(B).

Plaintiff alleges causes of action for negligence, battery, assault, false imprisonment, and intentional infliction of emotional distress arising out of being tackled and detained by security personnel at a Goodwill store in Redding.

The Court previously granted Defendant’s unopposed motion to strike related to Plaintiff’s complaint. Plaintiff then filed his first amended complaint (“FAC”). Defendant again moves to strike allegations regarding punitive/exemplary damages and conclusions of law and conclusory allegations lacking specificity.

Allegations in FAC

The FAC alleges in multiple instances: “Thus, PLAINTIFF should be awarded punitive damages pursuant to California Civil Code section 3294.” (See FAC, p. 7, ¶ 28, ln. 12-13; p. 8, ¶32, ln. 9-10; p. 8, ¶ 38, ln. 27-28; p. 9, 42, ln. 24-25; p. 10, ¶ 47, ln. 20-21; p. 11, ¶ 51, ln. 17-18; p. 13, ¶ 57, ln. 3-4; p. 13, ¶ 4 of Prayer for Relief, ln. 10.)

The FAC also includes allegations that Defendant Goodwill knowingly employed unfit employees, specifically Defendant Timothy Guinn and Defendant Steve Brewer, and that Defendant Goodwill, through its officers, directors and/or managing agents, knew at the time Defendants Guinn and Brewer were hired that “Defendants GUINN and BREWER . . . would utilize recklessly aggressive force and violence to apprehend and detain customers” and that both “had aggressive and vigilante type personalities which would be harmful to customers, but would place the value of merchandise above the

safety and well-being of customers.” (FAC ¶ 17.) The FAC also alleges that Defendant Goodwill “encouraged such tactics and trained its employees to utilize such tactics.” ( Id.)

Legal Standard

To plead an entitlement to punitive damages, a plaintiff must allege that the defendant is guilty of “oppression, fraud, or malice.” (Civ. Code § 3294(a).) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” ( Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) “Malice” under Civil Code section 3294(c)(1) means conduct intended to injure the plaintiff or despicable conduct by the defendant with a willful and conscious disregard of others. Malice “based on a conscious disregard of the plaintiff’s rights, requires proof that the defendant’s conduct is ‘despicable’ and ‘willful.’” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1211.) “‘[D]espicable’ 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.’” (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050.) Oppression is “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s

rights.” (Civ. Code § 3294(c)(2).) “Because punitive damages are imposed ‘for the sake of example and by way of punishing the defendant’ [Civ. Code § 3294(a)], they are typically awarded for intentional torts such as assault and battery, false imprisonment, intentional infliction of emotional distress, defamation, nuisance intentionally maintained, fraud, trespass, conversion, civil rights violations, insurer’s breach of covenant of good faith, wrongful termination and job discrimination, and products liability cases. [Citation.]” (Lackner, 135 Cal.App.4th at 1212.)

Additionally, an employer shall not be liable for punitive damages based upon the acts of an employee “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(b); see White v. Ultramar (1999) 21 Cal. 4th 563.)

In White v. Ultramar, Inc., our Supreme Court held that “the Legislature intended the term ‘managing agent’ to include only those corporate employees who exercise substantial independent authority and judgment in their corporate decisionmaking so that their decisions ultimately determine corporate policy. The scope of a corporate employee’s discretion and authority under our test is therefore a question of fact for decision on a case-by-case basis.” Whether an employee is a managing agent does not hinge solely on his level or position in the corporate hierarchy. (Egan v. Mutual of Omaha Ins. Co. (1979) 24 Cal.3d 809, 822.) “‘Rather, the critical inquiry is the degree of discretion the employees possess in making decisions that will ultimately determine corporate policy.’” (Kelly-Zurian v. Wohl Shoe Co., (1994) 22 Cal.App.4th 397,421, quoting Egan, supra, at pp. 822-823.)

Moreover, punitive damages are disfavored, granted only with the greatest of restraint,

and “should only be allowed in the ‘clearest of cases.” (Woolstrum v. Mailloux (1983) 141 Cal.App.3d Supp. 1, 9). A plaintiff requesting such damages is required to meet a heavy burden: to plead with specificity the facts upon which his claim is based. (See G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22; Baldwin v. Marina City Properties. Inc. (1978) 79 Cal.App.3d 393). Not only must a plaintiff state a cause of action from which it can be reasonably inferred the defendant acted with malice, oppression, or fraud, but these claims must also be supported in the complaint by facts which show that the defendant was “aware” of the consequences of such action, and continued to act in an oppressive, malicious or fraudulent nature in spite of that knowledge. (Bell v. Sharp Cabrillo Hosp. (1989) 212 Cal,App,3d 1034).

Analysis

With all of the above in mind, Plaintiff alleges that Defendant Goodwill has “policies and procedures” that “include reckless aggressive tactics to apprehend and detain customers, such as Plaintiff.” (FAC ¶ 16.) Plaintiff also claims that Defendant Goodwill has “hiring practices in which applicants with aggressive and vigilante type personalities are specifically hired for the loss prevention positions.” (Id.) Plaintiff claims that Defendant Goodwill “knew at the time it hired Defendants GUINN and BREWER that each would utilize recklessly aggressive force and violence to apprehend and detain customers.” (FAC ¶ 17.)

Plaintiff’s FAC does not include specific factual allegations in support of these contentions. In opposition to Defendant’s motion, Plaintiff cites to “evidence” purportedly retrieved from Defendant Brewer’s Facebook social media profile. (See Deedon Decl. ¶ 2, Exh. 1; ¶ 3, Exh. 2; ¶ 5, Exh. 4.) Plaintiff also relies upon an undated Goodwill policy that states that loss prevention specialists should “[w]ear clothing that matches the weather and the customer base of the store. Avoid Goodwill blue and bright or flashy clothing that might catch a shoplifter’s eye.” (See Deedon Decl. ¶ 4, Exh. 3.) Lastly, Plaintiff alleges that Defendant Brewer’s Facebook profile lists him as a member of the Shasta County Guardian Angels and includes a picture which purportedly shows members of the group being “photographed by reporters surrounding the homeless, putting their hands on them, questioning them without any color of the law, training, or authority to do so.” (See Deedon Decl. ¶ 6, Exh. 5.) The opposition does not allege that Defendant Brewer is one of the individuals in the photograph.

A motion to strike must be based on grounds that “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(a).) Here, Plaintiff does not include a request for judicial notice or otherwise authenticate any of the purported evidence attached to Plaintiff’s counsel’s declaration. Further, the “evidence” and the connections that Plaintiff asks the Court to make are speculative at best and not based on specific factual allegations. Extrinsic evidence may not properly be considered on the motion. (see, e.g. Ion Equipment Corp. v. Nelson (1980) 110 Cal. App. 3d 868, 881; Hibernia Savings & Loan Soc. v. Thornton (1897) 117 C. 481, 482.) A motion to strike, like a demurrer, “tests the pleadings alone and not the evidence or other extrinsic matters.” ( SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)

Plaintiff’s allegations related to Defendant Goodwill are conclusory and devoid of specific facts. The FAC does not include a factual basis for alleging than an officer, director, or managing agent of Defendant Goodwill either directed or knew of and then

ratified the alleged conduct giving rise to punitive damages. Plaintiff has not alleged facts showing that Defendant Goodwill acted with oppression, fraud, or malice sufficient to establish a claim for punitive damages.

Conclusion

Defendant’s motion to strike is GRANTED with leave to amend.

Plaintiff may file and serve a second amended complaint on or before July 9, 2018. Response to be filed and served within 30 days of service of the amended complaint, 35 days if served by mail.

Objections to Evidence

Defendant’s objections to evidence submitted in opposition to the motion are sustained.