Case Name: Price, et al. v. Guerrero, et al.
Case No.: 17-CV-313375

Defendants/cross-defendants LSE Logistics, Inc. (“LSE”) and Benito Galindo Guerrero (“Guerrero”) (collectively, the “LSE Defendants”) move to strike portions of the first amended complaint (“FAC”) filed by Sarah Price, as guardian ad litem for Born Queen Moseley (“Born Queen”), a minor, Niaja Lartigue and Umajesty Moseley Williams individually, as heirs and successors in interest of Born King Moseley (“Born King”) (collectively, “Plaintiffs”).

I. Factual and Procedural Background

This is an action for negligence and wrongful death arising out of a fatal collision between an automobile and a tractor trailer. According to the allegations of the FAC, on March 31, 2017, the decedent Born King was killed while driving in a vehicle with his daughter, Born Queen, when a semi-truck driven by Guerrero backed up and crashed into his 2000 Silver Pontiac Firebird. (FAC, ¶¶ 32-34.) The semi-truck belonged to LSE, while the attached trailer belonged to Sebring. At all times alleged in the Complaint, defendant/cross-defendant Core General Contractor, Inc. (“Core”) was in possession and control of the main entrance gate of the construction jobsite where Guerrero was directed to back up his semi-truck with its attached trailer. (Id., ¶ 22.) Core’s agents and/or employees improperly directed Guerrero to back up the truck across all four lanes of Park Avenue, ultimately causing the subject accident. (Id., ¶ 23.) As a result of improper directions and failures to warn by the “flag men,” Guerrero became confused and abruptly backed into the eastbound #1 lane of travel on Park Avenue from the intersection of McEvoy Street at the same time that Born King was traveling in the #1 eastbound lane on Park Avenue, colliding his tractor trailer with Born King’s vehicle. (Id., ¶ 27.) Born King’s vehicle wedged under the trailer of the semi-truck, resulting in his immediate death. (Id., ¶34.) Plaintiffs further allege that Guerrero’s confusion was due in part to his inattentiveness, which resulted from sleep deprivation, his level of intoxication and/or use of illegal drugs, and his talking and/or texting on his cell phone. (Id., ¶ 28.) Finally, Plaintiffs allege that the actions of the LSE Defendants violated numerous provisions of the California Vehicle Code, the California Code of Regulations and the City of San Jose Municipal Code. (Id., ¶ 7.)

On July 21, 2017, Plaintiffs filed the Complaint asserting the following causes of action: (1) general negligence (against the LSE Defendants, Sebring Transport, Inc. (“Sebring”), Core, et al.); (2) respondeat superior (against LSE and Sebring); (3) respondeat superior (against Core, etc.); (4) negligence per se (against Guerrero, LSE, Sebring, etc.); (5) wrongful death (against Guerrero, LSE, Sebring, etc.); and (6) gross negligence (against all defendants).

On September 8, 2017, the LSE Defendants filed a motion to strike Plaintiffs’ request for punitive damages and allegations relating thereto, arguing that Plaintiffs had not pleaded facts sufficient to warrant the imposition of such damages. On November 2, 2017, the Court granted the motion with leave to amend, agreeing with the LSE Defendants that as alleged, the conduct purportedly committed by them was not so “vile, base, contemptible, miserable, wretched or loathsome” so as to warrant the recovery of punitive damages.

On November 17, 2017, Plaintiffs filed the FAC asserting the following causes of action: (1) general negligence (against the LSE Defendants, Sebring, Core, et al.); (2) violation of statute (against the LSE Defendants, Sebring, Core, et al.); (3) wrongful death (against the LSE Defendants, Sebring, Core, et al.); and (4) gross negligence (against the LSE Defendants). On December 26, 2017, the LSE Defendants filed the instant motion to strike various portions of the FAC, including Plaintiffs’ request for punitive damages. Plaintiffs oppose the motion.

II. The LSE Defendants’ Request for Judicial Notice

In support of their motion to strike, the LSE Defendants request that the Court take judicial notice of the following items: (1) various provisions of the California Vehicle Code (Exhibits A-L), the California Code of Regulations (Exhibits L and M) and the San Jose Municipal Code (Exhibit N); (2) relevant portions of the San Jose Police Department’s investigative report regarding the incident in question (Exhibit O); (3) a copy of the San Jose Police Department report (Exhibit P); and (4) a copy of the United States Naval Observatory Astronomical Applications Department sunrise time for San Jose, California on March 31, 2017 (Exhibit Q). While the existence of each of the foregoing items are proper subjects of judicial notice under various provisions of Evidence Code section 452, in particular subsections (a), (b), (c) and (d), the Court cannot properly take judicial notice of the truth of the contents of Exhibits O, P and Q. (See, e.g., Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 879 [holding that court may not take judicial notice of truth of contents of police report in ruling on demurrer].) With the foregoing qualifier in mind, the LSE Defendants’ request for judicial notice is GRANTED.

III. The LSE Defendants’ Motion to Strike

With the instant motion to strike, the LSE Defendants move to strike the following portions of the FAC, which includes Plaintiffs’ request for punitive damages:

 Page 9, lines 1-2 (allegations pertaining to Guerrero’s alleged sleep deprivation, intoxication, use of illegal drugs, and talking/texting on his cell phone)
 Page 10, lines 18-22 (allegations pertaining to the actions of the LSE Defendants as violating specific provisions of the California Vehicle Code);
 Page 10, line 27- page 11, line 2 (allegations pertaining to Guerrero’s alleged sleep deprivation, intoxication, use of illegal drugs, and talking/texting on his cell phone)
 Page 12, Lines 5-7 (allegations pertaining to Guerrero’s alleged sleep deprivation, intoxication, use of illegal drugs, and talking/texting on his cell phone)
 The second cause of action in its entirety (¶¶ 64-71);
 The fourth cause of action in its entirety (¶¶ 94-116);
 Page 30, lines 2-4 (allegations pertaining to Guerrero’s alleged sleep deprivation, intoxication, use of illegal drugs, and talking/texting on his cell phone);
 ¶ 101 in its entirety (allegations pertaining to LSE’s alleged knowledge of multiple prior criminal convictions against Guerrero for numerous Vehicle Code violations, including driving under the influence);
 ¶ 102 in its entirety (allegations pertaining to Guerrero’s alleged crimination charge for driving under the influence);
 ¶ 103 in its entirety (allegations pertaining to Guerrero knowingly engaging in oppressive or malicious conduct by operating the truck while under the influence of alcohol or other illicit substances);
 Page 35, line 25- page 36, line 3 (allegations pertaining to the actions of the LSE Defendants as violating specific provisions of the California Vehicle Code);
 Page 36, lines 23-24 (allegations pertaining to Guerrero’s alleged sleep deprivation, intoxication, use of illegal drugs, and talking/texting on his cell phone);
 ¶ 115 in its entirety (allegations pertaining to Plaintiffs’ entitlement to punitive damages);
 ¶ 11 in the Prayer (request for punitive damages against the LSE Defendants); and
 ¶ 12 in the Prayer (request for attorney’s fees and costs).

As an initial matter, to the extent that the LSE Defendants’ seek to strike the second and fourth causes of action in their entirety for failure to state a claim, their motion to strike is DENIED. A pleading challenge to an entire cause of action is by demurrer rather than a motion to strike. (See Quiroz v. Seventh Ave. Ctr. (2006) 140 Cal.App.4th 1256, 1281.)

With regard to the remaining allegations at issue, the thrust of the LSE Defendants’ motion is that Plaintiffs have again failed to plead facts sufficient to support a claim for punitive damages. As explained previously, the right to exemplary or punitive damages requires proof of “oppression, fraud, or malice” on the part of the defendant by “clear and convincing evidence.” (Civ. Code, § 3294, subd. (a).) For pleading purposes, in order to support a prayer for punitive or exemplary damages, the complaint must allege “ultimate facts of the defendant’s oppression, fraud or malice.” (Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316-317.) Simply pleading the statutory terms “oppression, fraud or malice” is insufficient to adequately allege punitive damages, but only to the extent that the complaint pleads facts to support those allegations. (Blegen v. Superior Court (1986) 176 Cal.App.3d 503, 510-511.) Therefore, specific factual allegations demonstrating oppression, fraud or malice are required. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) However, the complaint will be read as a whole so that even conclusory allegations may suffice when read in context with facts alleged as to the defendant’s wrongful conduct. (Perkins v. Super. Ct. (1981) 117 Cal.App.3d 1, 6-7; Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255).

Here, as was the case in the original complaint, malice and oppression both serve as the foundation for Plaintiffs’ punitive damages requests. Under the punitive damages statute, Civil Code section 3294, “malice” is defined as conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) “Oppression” is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Id., § 3294, subd. (c)(2).) “Despicable conduct,” in turn, has been described as conduct that 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. (1992) 4 Cal.App.4th 306, 331.)

Punitive damages may be recovered against an employer for an employee’s conduct where the employer (1) 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, (2) ratified or authorized the employee’s wrongful conduct, or (3) was personally guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (b).) Further, when the employer is 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.” (Id.)

Here, the LSE Defendants maintain that the conduct alleged in the FAC, which includes new allegations added by Plaintiff to correct issues which compelled the Court to grant the LSE Defendants’ prior motion to strike portions of the Complaint, is still insufficient to rise to the level of malice and oppression on their part. In particular, the LSE Defendants take issue with the veracity of allegations added to the FAC by Plaintiffs that Guerrero was intoxicated, under the influence of illicit substances, and/or operating his cell phone at the time of the accident, as well as allegations that his conduct violated certain (specified) provisions of the California Vehicle Code, the California Code of Regulations and the San Jose Municipal Code. Citing to portions of the investigation reports authored by the San Jose Police Department, the LSE Defendants maintain that it is clear that Guerrero was not under the influence of alcohol or any other illicit substances when the subject incident took place, and was not operating his cell phone at the time of the incident.

The foregoing arguments proffered by the LSE Defendants ignore the procedural limitations of a motion to strike. Such a motion, like a demurrer, is confined to defects which appear on the face of the pleading or from matters of which the court may take judicial notice. (Code Civ. Proc., § 437.) Here, while the Court has taken judicial notice of the existence of the San Jose Police Department reports, it has not taken such notice of the truth of their contents. Critically, a motion to strike is not the appropriate procedure for determining the truth of disputed facts. (See, e.g., Ramsden v. Western Union, supra, 71 Cal.App.3d at 879.) Thus, the Court will not strike various allegations in the FAC based on the LSE Defendants’ contention that they are false. That argument is reserved for another day and motion or trial.

The LSE Defendants also assert that it is clear based on the allegations of the FAC that they did not violate certain provisions of the Vehicle Code (in particular, sections 21100, 21100.3), the Code of Regulations (sections 1598 and 1599) and the San Jose Municipal Code (section 11.12.050), and further, that there are no allegations contained in the FAC to show how LSE and/or Guerrero violated Vehicle Code sections 22354, 22355, 24250, 24251, 24407, 24409, 26456, or 26457. These arguments are submitted by the LSE Defendants in support of their assertion that Plaintiffs’ second cause of action fails to state facts sufficient to support a claim for statutory violations. As stated above, a motion to strike a cause of action in its entirety for failure to state facts is procedurally improper. Thus, the Court will not strike the allegations contained in or pertaining to the second cause of action on this basis.

Next, the LSE Defendants argue that Plaintiffs have not pleaded sufficient facts to support their request for punitive damages. With respect to Guerrero specifically, they assert that when the allegations regarding his sleep deprivation, intoxication, drug use and cell phone use while operating the truck are removed from the FAC, what is left are the same allegations against Guerrero that the Court previously deemed insufficient to support a request punitive damages. However, for the reasons articulated above, the Court will not strike these allegations, and finds that the conduct they describe qualifies as “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. (1992) 4 Cal.App.4th 306, 331.) Thus, Plaintiffs have sufficiently pleaded malicious conduct on the part of Guerrero within the meaning of the punitive damages statute, Civil Code section 3294, and therefore pleaded facts necessary to support their request for punitive damages against him.

As for Plaintiffs’ request for punitive damages against LSE, the LSE Defendants contend that no facts have been pleaded which support the recovery of damages against it in particular. Plaintiffs’ allegations, they explain, that LSE was aware that Guerrero “had multiple prior criminal convictions in violation of numerous Vehicle Code sections, including but not limited to, the Unlawful Failure in Disobeying Specified Highway Signage, the Unlawful Failure in Disobeying Traffic Signals, the Unlawful Failure to Comply with Traffic Control Devices, and Vehicle Code sec. 23152, including prior charge of Driving Under the Influence resulting in a traffic injury,” and that it ultimately “had actual knowledge of the unfitness of [its employee, Guerrero] …, and nevertheless, knowingly employed him with a conscious disregard of the rights and safety of others” (FAC, ¶¶ 101, 112), are insufficient to support the request for punitive damages because the mere fact that Guerrero may have had prior traffic violations is irrelevant and has no bearing on whether or not he was fit for the job. At this juncture, the Court finds that Plaintiffs have pleaded sufficient facts to support their request for punitive damages against LSE by alleging that it was aware prior to the subject incident that Guerrero was unfit for his job. Whether this was actually the case, or whether Guerrero’s past traffic violations (if they exist) will prove admissible to establish his alleged fitness are issues not appropriately considered in this motion. Accordingly, to the extent that the instant motion seeks to strike Plaintiffs’ request for punitive damages and allegations thereto, it is DENIED.

Finally, the LSE Defendants contend that Plaintiffs’ request for attorney’s fees and costs should be stricken because they have not pleaded facts which entitle them to recover such fees and costs as damages. As set forth in Code of Civil Procedure section 1021, “[e]xcept as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.” Here, the LSE Defendants maintain, persuasively, that the FAC does not reference any statute under which Plaintiffs would be entitled to recover attorney’s fees, and further, that they have not alleged that the LSE Defendants, expressly or impliedly, agreed to the recovery of these amounts. In their opposition, Plaintiffs do not address the issue of attorney’s fees at all and thus impliedly concede the merits of the aforementioned arguments. Thus, to the extent that the instant motion seeks to strike Plaintiffs’ request for attorney’s fees, it is GRANTED.