Case Name: Guadalupe Sanchez Garcia, et al. v. Ricardo Ramos Hernandez, et al.
Case No.: 18CV329804

This is an action brought by Plaintiffs Guadalupe Sanchez Garcia, Gina Douglas, and Josefina Douglas Sanchez (“Plaintiffs”), the survivors of Decedent Pedro Douglas Perez (“Decedent”) stemming from Decedent’s death on September 1, 2017. Plaintiffs allege that Decedent’s death was caused by the negligent operation of a vehicle (a tractor) owned by Defendant Red Fox Farm, Inc. (“Red Fox”) and driven by Defendant Ricardo Ramos Hernandez (“Hernandez”) while performing his duties as an employee of Defendant Red Fox. Plaintiffs’ June 12, 2018 Complaint states three causes of action (mislabeled as five on the Caption page of the Complaint) for (1) Negligence (against both Defendants); (2) Negligent Supervision (against Red Fox only), and; (3) “Wanton and Reckless Misconduct” (against Red Fox only).

Currently before the Court is Red Fox’s demurrer to the purported third cause of action and its separate motion to strike the portion of the Complaint’s prayer (paragraph no. 4) that seeks “Punitive Damages against Defendants.”

1. Defendant Red Fox’s Demurrer to the Complaint’s third cause of action
The Court in ruling on a demurrer (or motion to strike) treats it “as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Piccinini v. Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.)

Red Fox demurrers to the “wanton and reckless misconduct” claim on two grounds: 1) that it is uncertain and 2) that it fails to state sufficient facts. (See Notice of Demurrer at p. 1:26-28.)

Red Fox’s demurrer to the “wanton and reckless misconduct” claim on uncertainty grounds is OVERRULED. “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135; See also Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616 [“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”]) Here it is apparent from Red Fox’s other arguments that it understands what the claim attempts to allege and there is no true uncertainty.

Red Fox’s demurrer to the “Wanton and Willful Misconduct” claim on the ground that it fails to state sufficient facts is SUSTAINED with 10 days’ leave to amend.

There are two separate but related problems with the purported third cause of action. First, Plaintiffs have inexplicably pled what can only be construed as a request for punitive damages against Red Fox based on its alleged negligence as a separate cause of action. It is not. Any request for punitive damages against Red Fox should be pled as part of the first and/or second causes of action (which are themselves duplicative as alleged against Red Fox as the first cause of action fails to identify any alleged negligence by Red Fox other than negligent training and supervision). Second, as currently pled the Complaint does not identify any conduct by Red Fox that would qualify as wanton or willful behavior that would support a request for punitive damages.

A claim for punitive damages requires “clear and convincing” evidence that the defendant has been guilty of “oppression, fraud, or malice” in the commission of a tort. (Civil Code § 3294(a).) Fraud is not alleged here, so punitive damages against Red Fox could only be supported by alleged oppression or malice. “Oppression” is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Civ. Code, § 3294(c)(2).) “[I]n cases involving conduct performed without intent to harm, a finding of ‘malice’ for punitives purposes requires proof by clear and convincing evidence that defendant’s tortious wrong amounted to ‘despicable conduct’ and that such despicable conduct was carried on with a ‘willful and conscious disregard’ of the rights or safety of others.” (See College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704.) “Despicable” conduct is conduct that is “so vile, base, contemptible, miserable, wretched, or loathsome that it would be looked down upon and despised by ordinary decent people.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715; See also Taylor v. Superior Court of Los Angeles County (1979) 24 Cal.3d 890, 899-900 [ordinarily, routine negligent or even reckless disobedience of traffic laws does not justify an award of punitive damages].)

“The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages.” (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1051.) “Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.” (Scott v. Phoenix Schools, Inc., supra, 175 Cal.App.4th at p. 716, internal quotation and citation omitted.) “Conscious disregard of rights is conduct by a defendant who is aware of the probable dangerous consequences of such conduct to plaintiff’s interests and willfully and deliberately fails to avoid those consequences.” (Id., citing Smith v. Brown–Forman Distillers Corp. (1987) 196 Cal.App.3d 503, 516.) In contrast to gross negligence (which is not alleged here) ‘“wanton” or ‘reckless’ misconduct (or ‘willful and wanton negligence’) describes conduct by a person who may have no intent to cause harm, but who intentionally performs an act so unreasonable and dangerous that he or she knows or should know it is highly probable that harm will result.” (City of Santa Barbara v. Sup. Ct. (2007) 41 Cal.4th 747, 754, fn. 4, internal citation omitted

While there is not (as Red Fox appears to argue) a requirement of specific fact pleading in support of a request for punitive damages as there is with a fraud claim, the Complaint does not include any allegations of intentional conduct by Red Fox done with the knowledge that it was highly probable that harm would result. Instead the Complaint only generally argues that Red Fox failed to adhere to (unidentified) farm safety standards, failed to correct (unidentified) safety hazards and failed to warn Decedent “as to safety standards or problems at the Farm.” (See Complaint at ¶¶ 48-50.) This cannot be construed as sufficiently alleging oppression or malice.

In addition, in order to adequately request punitive damages against a corporation like Red Fox, the complaint must allege that an identified officer, director, or managing agent of the corporation was either personally responsible for the allegedly despicable conduct or that an officer, director; or managing agent of the corporation: (1) had advance knowledge of the despicable conduct and consciously disregarded it; or (2) authorized or ratified the despicable conduct. (Civ. Code, § 3294, subd. (b); See also White v. Ultramar (1999) 21 Cal.4th 563, 572 [stating that “[t]he drafters’ goals were to avoid imposing punitive damages on employers who were merely negligent or reckless and to distinguish ordinary respondeat superior liability from corporate liability for punitive damages.”]) The allegation in the Complaint at ¶ 17 that Red Fox is responsible for Defendant Hernandez’s actions “through the doctrine of respondeat superior” does not by itself support a request for punitive damages. The Complaint does not allege that any identified officer, director or managing agent of Red Fox was aware of Defendant Hernandez’s alleged problems with “alcohol intake or drug use,” or was aware that he operated motor vehicles while under the influence of drugs or alcohol. The Complaint only expressly alleges (in the purported fourth cause of action) that Defendant Hernandez himself was aware of his problems and was aware of the consequences of his decision to operate a motor vehicle while under the influence of drugs or alcohol.

As this is a demurrer to the original Complaint granting leave to amend is appropriate despite Plaintiffs’ failure in their opposition to demonstrate how a claim for punitive damages against Red Fox could be adequately stated. (See Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 [Plaintiff bears burden of proving amendment would cure defect].) Ordinarily, an order sustaining a demurer with leave to amend only permits the pleader to amend the targeted claim or claims. (See Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.) Given the problem with the current organization of the Complaint and the fact that the purported claim for “Wanton and Willful Misconduct” cannot be amended to state a cause of action independent from the first and second causes of action the Court further directs that any amended complaint shall include any allegations meant to support requests for punitive damages within the causes of action on which the requests for punitive damages are based.

Plaintiffs are not authorized by this order to add any new causes of action. (See Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023 [“Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court’s order. The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.”])

2. Defendant Red Fox’ Motion to Strike a portion of the Complaint’s Prayer
Under Code of Civil Procedure §436, a court may strike out any irrelevant, false, or improper matter inserted into any pleading or strike out all or part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. In ruling on a motion to strike, the Court reads the complaint as a whole, all parts in their context, and assumes the truth of all well-pleaded allegations. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63, citing Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255.)

Red Fox’ motion to strike is DENIED.

Red Fox moves to strike “Plaintiffs’ prayer for punitive damages as the Complaint fails to state fact[s] sufficient to warrant punitive damages.” (Notice of Motion at p. 1:25-26.) However, that portion of the Complaint’s prayer addressing punitive damages (paragraph 4) states that Plaintiffs’ seek “Punitive Damages against Defendants,” both Red Fox and Hernandez. (See Prayer at ¶ 4, Court’s emphasis.) As Red Fox’s motion fails to address the adequacy of the Complaint’s allegations in support of a request for punitive damages against Defendant Hernandez it has not established a basis for striking paragraph 4 of the prayer even if, as the Court has found in ruling on the demurrer, the Complaint does not currently state a sufficient facts to support seeking punitive damages from Red Fox.

–