2012-00135887-CU-PA

Heather Bernice Kontos vs. Matheson Postal Services, Inc.

Nature of Proceeding: Hearing on Demurrer

Filed By: Bairey, Jeffery G.

Defendant Matheson Postal Services, Inc.’s Demurrer to the First Amended Complaint
is ruled on as follows.

Plaintiff alleges that she was injured on November 5, 2011, when a truck owned,
leased, operated and maintained by Matheson struck plaintiff, a pedestrian, at an
intersection in Petaluma, California. Plaintiff alleges that she had the right of way at
the intersection and was crossing the street when the truck, driven by employee
Joseph Ramon Jones, made a reckless and negligent right turn and crushed plaintiff
under the wheels. Plaintiff alleges that the driver, Jones, left the scene of the accident,
in violation of Vehicle Code section 20001.

Plaintiff alleges causes of action for Negligence and Negligent Hiring, Training,
Supervision, Retention against Matheson, as well as a claim for punitive damages.

Defendant challenges only the 2nd cause of action and the claim for punitive
damages.

2nd cause of action Negligent Hiring: Overruled.
Plaintiff alleges that defendant knew that Defendant Jones was incompetent or unfit
and likely to cause harm to other persons or property and that he was negligently
trained, instructed, supervised, and retained. Defendant contends that this claim is “superfluous” on the ground that defendant admits it is vicariously liable for the acts of
the employee. However, such admission is not on the face of the FAC, therefore for
purposes of this demurrer, the 2nd cause of action is not “superfluous .” The case of
Diaz v Carcamo (2011) 51 Cal.4th 1148, is not on point as that was a case concerning
jury instructions after trial. Here, the parties are only at the pleading stage. More to the
point, no admission of vicarious liability presently exists–defendant’s “admission” in its
argument in support of its demurrer is not proof of the fact of the admission.

The motion to strike is granted, with leave to amend. A claim for punitive damages is
not a cause of action. The claim for punitive damage is based on the allegation that
the driver of the truck did not stop at the scene of the accident but fled the scene, in
violation of Vehicle Code section 20001, delaying plaintiff’s medical care in this case
with serious injuries accumulating over $2,000,000 in medical bills.

Civil Code 3294(b) provides:

“An employer shall not be liable for damages pursuant to subdivision (a), based upon
acts of an employee of the employer, unless the employer had advance knowledge of
the unfitness of the employee and employed him or her with a conscious disregard of
the rights or 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. With
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.” The allegations at
paragraph 43:”Defendant Matheson, which employed Jones, acting by and through its
officers, directors, owners and/or managing agents authorized and ratified Defendant
Jones conduct” are overly conclusory and insufficient to hold the defendant liable for
the fact that the driver left the scene of the accident.

No facts supporting the alleged authorization or ratification of the truck driver’s violation
of Vehicle Code section 20001 have been alleged. Ratification only occurs if the
officer, director or managing agent had actual knowledge after the conduct occurs, and
the conduct is adopted or approved. College Hospital, Inc. v Superior Court (1994) 8
Cal.4th 704, 726.

Plaintiff may file and serve a 2nd amended complaint on or before October 28, 2013.
Response to be filed within 20 days of service of the amended complaint, 25 days if
served by mail.

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