2013-00153135-CU-AS

Lee Mize vs. 84 Lumber Company

Nature of Proceeding: Motion to Strike

Filed By: Remillard, Thomas W.

Defendant Merlex Stucco, Inc.’s Motion to Strike Specified Portions of the First
Amended Complaint is GRANTED in part and DENIED in part.

Merlex moves to strike all the allegations to support punitive damages against Merlex
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set forth in paragraphs 22-28 (1 cause of action for negligence), paragraphs 40-44 (2
nd cause of action for strict liability) and paragraphs 55-58 (4th cause of action for
Intentional Tort/Intentional failure to warn). Merlex also seeks to have the prayer for
punitive damages stricken.

The motion to strike paragraphs 22-28 is GRANTED. Negligence is an unintentional
tort, a failure to exercise the degree of care in a given situation that a reasonable man
under similar circumstances would exercise to protect others from harm. (Rest. Torts,
secs. 282, 283, 284; Prosser, Torts, secs. 30 et seq.) A negligent person has no desire
to cause the harm that results from his carelessness, (Rest. Torts, sec. 282 (c)), and
he must be distinguished from a person guilty of willful misconduct, such as assault
and battery, who intends to cause harm. (Prosser, Torts, p. 261.) Willfulness and
negligence are contradictory terms. If conduct is negligent, it is not willful; if it is willful,
it is not negligent. Nonintentional conduct comes within the definition of malicious acts
punishable by the assessment of punitive damages when a party intentionally
performs an act from which he knows, or should know, it is highly probable that harm
will result.Mere negligence, even gross negligence is not sufficient to justify an award
of punitive damages. Ebaugh v. Rabkin (1972) 22 Cal. App. 3d 891, 894; G. D. Searle
& Co. v. Superior Court (1975) 49 Cal.App.3d 22, 31.

Although in opposition, plaintiff cites Donnelly v. Southern Pacific Co. (1941) 18 Cal.
2d 863, 869-870 to support punitive damages in a negligence action, the Supreme
Court there held that “Wanton and reckless misconduct is more closely akin to willful
misconduct than to negligence, and it has most of the legal consequences of willful
misconduct. Thus, it justifies an award of punitive damages, and contributory
negligence by the plaintiff is not a defense.”

In this cause of action, plaintiff has pled negligence, not wanton and reckless
misconduct.

The motion to strike paragraphs 40-44 (2nd cause of action for strict liability) and

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paragraphs 55-58 (4 cause of action for Intentional Tort/Intentional failure to warn)
are DENIED.

Although moving party asserts that plaintiffs have failed to allege any facts to support
punitive damages against Merlex, the FAC alleges that defendant Merlex Stucco, Inc.
put asbestos containing products on the market in 1963 and continued selling this
asbestos containing product until at the very least 1976, at least four years after the
release of OSHA regulations regarding the use of asbestos. Plaintiffs allege that
defendant Merlex Stucco, Inc. never placed any warnings on its products regarding the
dangers associated with exposure to asbestos despite its knowledge of the release of
OSHA regulations requiring them to do so. (FAC, paras. 47, 55.)

Plaintiffs allege that defendant Merlex Stucco, Inc.’s corporate officers, agents, and
employees knew of, and were members in organizations that would know of, the
OSHA regulations that were released in 1972 regarding the hazards from exposure to
asbestos. (FAC, para. 55(d)) The court does not concur that at the pleading stage,
plaintiffs must identify the specific persons who acted on behalf of Merlex.

The motion to strike the prayer for punitive damages is also DENIED.

Defendant Merlex shall file and serve its Answer First Amended Complaint (excluding
paragraphs 22-28) not later than Monday, June 2, 2014.

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