Case Number: YC068422    Hearing Date: August 01, 2014    Dept: 91

Plaintiffs’ Motion for Leave to File First Amended Complaint, filed on 6/30/14, is DENIED. CCP Section 473(a).

Leave to amend is permitted at the court’s discretion upon any terms that may be just. Cal Code Civ Procedure § 473. The court’s discretion will usually be exercised liberally to permit amendment of the pleadings. Nestle v. Santa Monica 6 Cal.3d 920 (1972); Morgan v. Superior Court of Los Angeles County, 172 Cal. App. 2d 527, 530 (Cal. App. 2d Dist. 1959). However, the court has discretion to deny leave to amend where the proposed pleading is deficient.
Cal. Casualty Gen. Ins. Co. v. Superior Court, 173 Cal. App. 3d 274, 280 (Cal. App. 4th Dist. 1985).

The motion is timely made as it is based on facts recently obtained by way of Ronald Taylor’s declaration, signed on 5/2/14, who asserts that he told Mr. Noh that he should install an eye wash station. Plaintiff’s Ex. 1. Mr. Taylor also testified to this effect at his deposition on 6/5/14. Plaintiff’s Ex. 2. This motion was filed 6/30/14.

To allege a claim for punitive damages, Plaintiffs must allege facts and circumstances to support conduct that arises to malice, fraud or oppression as those terms are defined by Civ Code § 3294(c), Grieves v. Superior Court, 157 Cal. App. 3d 159, 166 (1984). Malice or oppression requires evidence of despicable conduct carried on with a wilful and conscious disregard of Plaintiff’s rights or despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of Plaintiff’s rights. Civ Code § 3294(c).

The proposed pleading is defective as it does not allege facts and circumstances that would support recovery of punitive damages. The allegations are separately alleged in a “4th cause of action.” Plaintiffs allege that Defendants knew or should have known of a regulation requiring emergency eye wash equipment. Proposed FAC ¶ 27. Defendant was told multiple times that the station was required. ¶ 27. An injury had occurred about or 2 months previously. 9:3-4. Defendant allegedly knowingly failed to hook the eye wash basin in conscious disregard of Plaintiff’s rights. 9:13-17.

“Despicable conduct” is defined as conduct which is “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” Mock v. Michigan Millers Mutual Ins. Co., 4 Cal. App. 4th 306, 331 (Cal. App. 2d Dist. 1992). Plaintiffs are alleging negligence, a statutory violation and a derivative claim for loss of consortium.

Plaintiffs cite a case concerning a landlord’s conduct, all of which supported recovery of punitive damages where a landlord engaged in retaliatory eviction, forcible entry, trespass and disruption of a tenant’s peaceful occupation. The requirement for “despicable conduct” was met. Spinks v. Equity Residential Briarwood Apartments, 171 Cal. App. 4th 1004, 1055 (Cal. App. 6th Dist. 2009).

In their reply brief, Plaintiffs cite to Angie M. v. Superior Court, 37 Cal. App. 4th 1217, 1228 (Cal. App. 4th Dist. 1995), arguing that all that is required is that Defendant is aware of the probable dangerous consequences of his or conduct and wilfully fails to avoid such consequences.

However, Angie M. acknowledged the amendment to the Civil Code § 3294 requiring “despicable conduct” in addition to willful and conscious disregard for a Plaintiff’s interest. The court found the allegations sufficient as Plaintiff alleged Defendants intentionally violated numerous criminal statutes. The defendant in that action was a physician with knowledge of Plaintiff’s “dysfunctional family background and other vulnerabilities” to constitute outrageous conduct. The Defendant allegedly engaged in the unlawful seduction of minor. The court found the alleged conduct to be sufficiently vile and contemptible. Angie M. v. Superior Court, 37 Cal. App. 4th 1217, 1228 (Cal. App. 4th Dist. 1995).

The alleged conduct does not arise to the level of “despicable conduct” defined by Mock.