Case Name: Ronald Foster, et al. v. Gardner Trucking, et al.
Case No.: 2014-1-CV-268935 (lead case)

This is a group of five consolidated actions all arising from the same motor vehicle accident. On July 21, 2014, defendant Gregory Dwayne Wells (“Wells,” now deceased) was operating an international truck and trailer along State Route Highway 152 while in the course of employment with defendant Gardner Trucking, Inc. (“Gardner”) when he struck several vehicles stopped at a red light, injuring several people and killing one. Wells was a diabetic who had allegedly been non-compliant with his medications and his doctor’s advice in the months leading up to the crash and as a result was allegedly in an altered state due to diabetes when he struck the vehicles.

Currently before the Court are three separate but largely identical motions for summary adjudication brought by Defendant Gardner asserting that the plaintiffs in three of these actions (the Foster, Herrera and Furtado plaintiffs) are not entitled to recover punitive damages from it because “Plaintiffs cannot prove by clear and convincing evidence that Gardner Trucking had advance knowledge of the unfitness of Gregory Wells (‘Wells’) or employed him with a conscious disregard of the rights or safety of others, authorized or ratified Wells’ allegedly wrongful conduct, or is ‘personally guilty of oppression, fraud, or malice,’” asserted in lines 4-6 and/or “because Plaintiffs cannot prove by clear and convincing evidence that decedent Barbara Kay Foster survived for any interval of time after the incident at issue in this case,” asserted in line 4 (Foster) only. (See Gardner’s notices of motion.) The Court notes that both the moving and opposing papers for all three motions are essentially identical in all material respects other than the issue of the circumstances of Barbara Foster’s death, which is only presented in line 4.

The pleadings limit the issues presented for summary judgment or adjudication. (See Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a summary judgment motion.”].) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (See CCP §437c(f)(1); McClasky v. California State Auto. Ass’n (2010) 189 Cal.App.4th 947, 975 [“If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”]; Palm Spring Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 288.)

It is well established that summary adjudication may be granted as to a claim for punitive damages even though it does not dispose of an entire cause of action. (See CCP §437c(f)(1); Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 96.) “Although a claim for punitive damages is specifically set forth as an area which may properly be the subject of summary adjudication, in keeping with the purposes of [CCP] section 437c, subdivision (f), a grant of summary adjudication in this area must cover the entire claim.” (Catalano, supra at 97.) “If any one or more of the facts would support a claim for punitive damages, then summary adjudication is not available to eliminate from trial other facts relating to the claim for punitive damages.” (Id., at pp. 97-98.)

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted.)

“[W]here the plaintiff’s ultimate burden of proof will be by clear and convincing evidence, the higher standard of proof must be taken into account in ruling on a motion for summary judgment or summary adjudication, since if a plaintiff is to prevail on a claim for punitive damages, it will be necessary that the evidence presented meet the higher evidentiary standard.” (American Airlines, Inc. v. Sheppard, Mullen, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1049.) Although the clear-and-convincing evidence standard is stringent, it does not impose on a plaintiff the obligation to “prove” a case for punitive damages in the summary adjudication proceeding. (Id.) That said, to defeat summary judgment on a claim for punitive damages, the burden is on a plaintiff to produce “clear and convincing evidence” of malice, fraud or oppression. (Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1121.)

Particular rules govern when punitive damages may be recovered from the employer of an alleged negligent employee. “Under the doctrine of respondeat superior, ‘an employer is vicariously liable for the torts of its employees committed within the scope of the employment.’ . . . [U]nder the respondent superior doctrine, the employer is not liable for punitive damages absent fault or misconduct on the employer’s part. . . . [U]pon a suitable demonstration of employer misconduct, a vicariously liable employer may be subject to an award of punitive damages when an employer was negligent. . . . The requisite employer misconduct is now specified in subdivision (b) of section 3294, which states that an employer may be liable for punitive damages when ‘‘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 or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice . . .’’ The statute further provides that ‘ ‘[w]ith 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.’” (CRST v. Superior Court (2017) 11 Cal.App.5th 1255, 1260-1262.)

None of the Plaintiffs here allege that Gardner is personally guilty of oppression, fraud or malice. Instead they allege that Gardner had advance knowledge of Wells’ unfitness and/or authorized or ratified that conduct. “For purposes of determining an employer’s liability for punitive damages, ratification generally occurs where, under the particular circumstances, the employer demonstrates an intent to adopt or approve oppressive, fraudulent, or malicious behavior by an employee in the performance of his job duties. Corporate ratification in the punitive damages context requires actual knowledge of the conduct and its outrageous nature.” (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 726, emphasis added, internal citations omitted.)

All three of Gardner’s motions for summary adjudication are GRANTED, as follows. Gardner has met its initial burden to show that there is no evidence that any “officer, director, or managing agent” had advance knowledge that Wells was unfit because of medical issues, nor that any officer, director or managing agent ratified or approved wrongful conduct by Wells (which would require such knowledge). See the Declarations of Dana Spencer (Gardner exhibit 1), Marcus Victoria (Gardner exhibit 2), Gardner Counsel David Turner (Gardner exhibit 3) and Natalie Hartenbaum, MD MPH (Gardner exhibit 4), and the exhibits to these declarations. Gardner’s knowledge that Wells had diabetes that initially did not require insulin to control, and therefore did not disqualify him from being certified as a driver, is not the same as knowledge of Wells’ alleged unfitness as a driver because his diabetes eventually did require insulin to control. Gardner’s knowledge from 2012 forward that Wells had diabetes (then controllable without insulin) is not enough in itself to support the claims for punitive damages, as diabetes only disqualifies a driver under 49 CFR §391.41(b)(3) if insulin is “currently required” to control the diabetes. Wells was certified as medically fit to drive a truck at the time of the accident. There is no evidence that Wells was ever told to take insulin before 2014, nor any evidence that Gardner ever knew that Wells’ diabetes ever required insulin to control – or had an obligation to inquire – prior to the accident. Wells was issued a Medical Examiner’s Certificate in August 2013 from a qualified medical examiner that was good for two years. The corresponding Medical Examination Report indicated the diabetes was controlled by diet and pills and included the notation “DM controlled.” (See exhibits E and F to the Spencer declaration). Gardner was not required to question that 2013 medical certification (or any prior certifications) or somehow specially monitor Wells simply because it knew he had diabetes that did not (according to the information it possessed) disqualify him from driving because it did not require insulin. No evidence has been presented that Gardner ever allowed Wells to drive while a medical hold was placed on his certification by a medical examiner, nor allowed him to drive for the company at any time when he allegedly was or became medically unqualified to do so.

When the burden shifts Plaintiffs are unable to raise a triable issue of material fact as to Gardner’s alleged knowledge of Wells’ unfitness under the applicable “clear and convincing evidence” standard. To defeat summary judgment/adjudication on a claim for punitive damages, the burden on a plaintiff is to produce “clear and convincing evidence” of malice, fraud or oppression. (Basich v. Allstate Ins. Co. (2011) 87 Cal.App.4th 1112, 1121.) Plaintiffs have not produced any evidence from which it could be reasonable inferred that Gardner knew before the accident that Wells’ diabetes had progressed to the point insulin was required—which is the only point at which diabetes becomes a disqualifying condition under 49 CFR § 391.41(b)(3). The declaration of Plaintiffs’ expert Paul Herbert in particular does not raise any triable issue of material fact. Mr. Herbert fails to demonstrate how 49 CFR §§ 391.41(b)(12)(ii) and 390.11 impose any specific duty on an employer that Gardner breached, nor does Herbert suggest under what authority Gardner may have been required to inquire with Wells’ personal physicians to verify he was taking his medications. In both 2012 and 2013 Wells was issued a Medical Examiner’s Certificate, and Herbert does not identify any authority permitting or requiring Gardner to look behind the Certificates and question the health of driver who had been medically certified by an independent examiner. Herbert also fails to cite any evidence that any prior accidents in which Wells was involved had anything to do with Wells’ health in general or diabetes in particular.

As the Court finds that all three motions for summary adjudication can be and are granted on the basis that there is no evidence that any Gardner officer, director or managing agent had advance knowledge of Well’s unfitness to drive prior to the July 21, 2014 accident; nor any evidence of ratification of any wrongful conduct by Wells, it is unnecessary for the Court to consider whether the circumstances of the timing of the death of Barbara Foster were such that punitive damages would or would not be available against Gardner, in the survivor action, even if knowledge/ratification had been shown.

Motion to Bifurcate Punitive Damages (Line 12)

Defendant Gardner also brings a motion to sever or bifurcate the issue of punitive damages in each of the pending trials. The hearing on this motion was continued at the parties’ request to be heard at the same time as the motions for summary adjudication on punitive damages. The Court has not received written opposition to this motion, brought under Civil Code §3295(d) and Code of Civil Procedure §598.

As the court has granted the motions for summary adjudication on punitive damages, the motion to bifurcate is DENIED, without prejudice, as moot.