Heather Bernice Kontos vs. Matheson Postal Services, Inc.
Nature of Proceeding:
Filed By:
Motion to Strike
Meyers, Elizabeth K.

Defendant Matheson Postal Services, Inc.’s motion to strike portions of Plaintiff Heather Bernice Kontos’ second amended complaint (“SAC”) is ruled upon as follows.

In this action, Plaintiff alleges that she suffered serious injuries when struck by a tractor-trailer owned by Defendant. Plaintiff alleges that Defendant allowed defendant Joseph Jones to operate the tractor-trailer despite knowing he was unfit to do so and likely to cause harm to others. Plaintiff seeks punitive damages against Defendant and has done so through the fourth cause of action for punitive damages. Defendant moves to strike all punitive damages allegations on the basis that there is no cause of action for punitive damages and in any event the punitive damages allegations are inadequate.

First, Defendant is correct that “[t]here is no cause of action for punitive damages. Punitive or exemplary damages are remedies available to a party who can plead and prove the facts and circumstances set forth in Civil Code § 3294.” (Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391.) Plaintiff does not contest this proposition and requests leave to allege punitive damages in connection with her other causes of action.

Defendant also argues that the substance of the punitive damages allegations are insufficient because Plaintiff failed to properly allege that Defendant ratified Jones’ conduct with respect to the accident and are otherwise conclusory. Plaintiff first argues that she has adequately alleged punitive damages against defendant Jones.

However, the instant motion deals only with the allegations as they relate to Defendant Matheson.

The Court finds that for pleading purposes, the substance of the punitive damages allegations are sufficient against Defendant. Indeed, Plaintiff alleged that defendant Jones was previously employed by Defendant in 2001 and 2002 and during that period was suspended two times, at least one of which “was a result of illegal activity which called into question Defendant Jones’ ability to safely and responsibly operate tractor-trailers on the public highways and roadways.” (SAC ¶ 45.) Defendant ultimately terminated Jones in 2002 for “violations of rules related to his employment as a tractor-trailer operator.” (SAC ¶ 47.) Plaintiff further alleges that despite full knowledge of the prior illegal conduct and unsafe practices, Defendant rehired Jones in 2011 “and put him back out on the road in a will, wanton, or malicious disregard for the safety of the general public.” (SAC ¶ 48.) Plaintiff alleges that Defendant’s officers, managing agents and directors were aware of Jones’ dangerous propensities and his “inability or refusal to follow the law and/or safety rules, thereby consciously endangering the public at large.” (SAC ¶ 49.) Defendant’s decision to rehire Jones despite “actual knowledge of his inability or unwillingness to follow the rules and laws related to such employment, amounts to a ratification of [Jones’] actions on the date of the incident; including his failure to stop at the scene of the accident in violation of California Vehicle Code Sections 20001 and 20003.” (SAC ¶ 50.) Plaintiff further alleges that Defendant’s decision to put “a dangerous driver back onto the road, amounts to malice, oppression, fraud, and a conscious disregard for the safety of the general public, including Plaintiff.” (SAC ¶ 51.)

Here, while Defendant may be correct that Plaintiff has not adequately alleged that it ratified Jones’ conduct with respect to the incident, given that she alleged that such ratification was based on knowledge related to his previous employ in 2001 and 2002, the Court finds that Plaintiff adequately alleged a basis for punitive damages against Defendant pursuant to Civil Code § 3294. An employer is liable for punitive damages based on an employee’s act where the employer “had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights and safety of others…With respect to the advance knowledge and conscious disregard…must be on the part of an officer, director, or managing agent.” (Civ. Code § 3294(b).) Here, Plaintiff has sufficiently alleged that based on Jones’ previous employment with Defendant pursuant to which he was terminated for unsafe and illegal practices related to operating tractor-trailers, Defendant’s officers, managing agents and directors re-hired Jones knowing of his unfitness and prior unsafe practices and put him back on the road in its tractor-trailers. The Court finds these allegations sufficient for pleading purposes to allege a basis for punitive damages against Defendant pursuant to Civil Code § 3294(b).

However, the motion is granted to the extent that punitive damages have been sought improperly by way of a cause of action rather than as a remedy in connection with another cause of action. Leave to amend is granted to correct this defect only.

Plaintiff may file and serve an amended complaint no later than February 3, 2014.

Defendant shall file and serve its response within 10 days thereafter, 15 days if the amended complaint is served by mail. (Although not required by any statute or rule of court, Plaintiff is requested to attach a copy of the instant minute order to the amended complaint to facilitate the filing of the pleading.)

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.