Case Name: Juan Hinojosa, et al. v. Duran & Venables, Inc., et al.
Case No.: 16CV289697

I. Background

This is a personal injury lawsuit. According to the allegations in the first amended complaint (“FAC”), Juan and Armando Hinojosa (collectively, “Plaintiffs”) were “working in a lift basket, about two stories high, on the exterior of the Lexington Elementary School in Los Gatos California when [defendant Steve Lanning ] intentionally and recklessly rammed his backhoe into [their] vehicle.” (FAC, ¶ 9.) Plaintiffs suffered serious injuries because the movement of the backhoe caused their lift basket to slam into the side of the building. (FAC, ¶ 10.) Plaintiffs assert causes of action against defendants Steve Lanning (“Lanning”) and his employer Duran & Venables, Inc. (collectively, “Defendants”) for negligence, battery, and intentional infliction of emotional distress for which they seek compensatory and punitive damages.

Currently before the Court is Defendants’ motion for summary adjudication of Plaintiffs’ claim for punitive damages. Plaintiffs oppose the motion and object to Defendants’ evidence.

II. Legal Standard

A defendant may move for summary adjudication of a claim for punitive damages on the ground it lacks merit. (Code Civ. Proc., § 437c, subd. (f)(1).) The motion “shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).) Thus, a defendant bears the initial burden of presenting evidence that shows the claim for punitive damages lacks merit. (See Code Civ. Proc., § 437c, subd. (p)(2).) To carry this burden, the defendant must present supporting evidence, such as “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).) “Once the defendant [ ] has met that burden, the burden shifts to the plaintiff [ ] to show that a triable issue of one or more material facts exists….” (Code Civ. Proc., § 437c, subd. (p)(2).) “The plaintiff [ ] shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists….” (Code Civ. Proc., § 437c, subd. (p)(2).)

Ultimately, “[a] motion for summary adjudication shall be granted only if it completely disposes of…a claim for damages….” (Code Civ. Proc., § 437c, subd. (f)(1).) “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.” (Catalano v. Super. Ct. (2000) 82 Cal.App.4th 91, 97–98.)

III. Evidentiary Objection

Plaintiffs filed a single written objection to Lanning’s deposition testimony. They object on the following grounds: (1) “irrelevant and immaterial”; (2) “[v]ague, ambiguous[,] and overbroad”; and (3) misstates evidence. (Obj. at p. 1:20–22.) For the reasons set forth below, their objection is not well-taken.

First, Plaintiffs do not clearly identify the evidence to which they are objecting. Instead of specifying or quoting the testimony they are objecting to as required by rule 3.1354(b) of the California Rules of Court, they simply identify the deposition transcript as the subject of their objection without more. Although it is perhaps conceivable that an objection on some ground could be directed to the transcript as a whole, Plaintiffs’ objection on the grounds enumerated above necessarily must be directed to particular statements made by Lanning; they do not actually appear to be objecting to the entirety of the transcript. But Plaintiffs do not identify the purportedly inadmissible statements they are objecting to. Consequently, their objection is not sustainable.

Second, the majority of the grounds for objection Plaintiffs advance are not legally cognizable as presented. With the exception of the ground of relevance , the grounds they identify are grounds for objecting to the form of a question. (See Chavez v. Zapata Ocean Resources, Inc. (1984) 155 Cal.App.3d 115, 124; see also Neher v. Kauffman (1925) 197 Cal. 674, 685.) For example, a leading question asked by counsel during cross-examination is objectionable if the question misstates the evidence that has been admitted because, in light of the fact that the witness may tender only a “yes” or “no” response, the question itself necessarily constitutes a significant portion of the testimony recorded. (See, e.g., People v. Tully (2012) 54 Cal.4th 952, 1035.) An objection to the form of a question necessarily must be directed to a question and must be made contemporaneously (e.g., during a deposition). (Code Civ. Proc., § 2025.460, subd. (b); Chavez, supra, 155 Cal.App.3d at p. 124; accord Kyle v. Craig (1899) 125 Cal. 107, 114–15.) It follows that such objections cannot be interposed to an entire document, such as a transcript, for the very first time in opposition to a motion. (See Chavez, supra, 155 Cal.App.3d at p. 124.) Here, Plaintiffs’ objection on grounds concerning form is not properly directed to the transcript as a whole, and they did not actually object to the form of questions asked at Lanning’s deposition. Thus, their objection on those grounds is not well-taken.

Finally, it appears Plaintiffs may be improperly using their objection as a vehicle for arguing about what the evidence does or does not show rather than challenging the admissibility of evidence. (See, e.g., Burch v. Regents of the University of California (E.D.Cal. 2006) 433 F.Supp.2d 1110, 1118–19.) Plaintiffs state in support of their objection that there are mischaracterizations and selective references to evidence in Defendants’ supporting memorandum of points and authorities and separate statement. Even assuming Plaintiffs are correct, their assertion concerns the sufficiency of the evidence and whether it substantiates Defendants’ motion as compared to the admissibility of the evidence. Such matters should be raised as arguments in opposition, not as objections to evidence. (Ibid.) Accordingly, to the extent Plaintiffs intended to simply raise points concerning what the evidence does or does not show, an objection is not the proper procedural vehicle for doing so.

In conclusion, Plaintiffs’ objection to Lanning’s deposition testimony is OVERRULED.

IV. Discussion

Pursuant to Civil Code section 3294, subdivision (a), “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

“‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).) “‘Malice’ means 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).) For purposes of both malice and oppression, despicable conduct means conduct that is “‘so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.’ [Citation.]” (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050.) “‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, § 3294, subd. (c)(3).)

Additionally, to recover punitive damages from an employer based on the conduct of its employee, a plaintiff must prove 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.” (Civ. Code, § 3294, subd. (b).) “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.” (Civ. Code, § 3294, subd. (b).)

Defendants argue the undisputed evidence shows that Lanning did not act maliciously, oppressively, or fraudulently and Duran & Venables did not authorize or ratify his conduct.
With respect to Lanning, Defendants direct the Court to his deposition testimony in which he states he was not angry with Plaintiffs or trying to scare them by shaking the lift basket they were in. (Bonney Decl., Ex. B, Lanning Dep. at pp. 27:9–17, 59:3–10.) Lanning also testified, with equivocation, that he went to check on Plaintiffs immediately after hitting the lift basket and was not being reckless because he is “very good” at operating a backhoe. (Bonney Decl., Ex. B, Lanning Dep. at pp. 50:5–21, 59:11–14.)

Defendants do not provide any analysis of the evidence they present as necessary to demonstrate its significance in light of the applicable legal standards. It appears their position is that it is reasonable to infer from the evidence that Lanning did not intend to hurt Plaintiffs. (See Mem. of Pts. & Auth. at p. 6:5–13; Sep. Stat., ¶¶ 12–14.) But even accepting this inference, it is not possible to conclude that Lanning did not engage in conduct warranting punitive damages. Significantly, a plaintiff may still recover punitive damages in the absence of intent to harm if “the defendant was aware of the probable dangerous consequences of his [or her] conduct and [ ] willfully and deliberately failed to avoid those consequences.” (Taylor v. Super. Ct. (1979) 24 Cal.3d 890, 895–96; see also Civ. Code, § 3294, subds. (c)(1)–(2) [defining malice and oppression].) Defendants do not provide any legal analysis to support the conclusion that Lanning did not consciously disregard Plaintiffs’ rights or safety when he operated the backhoe as he did. Additionally, there is no evidence from which the Court can independently reach such a conclusion. Consequently, Defendants do not carry their initial burden of demonstrating Lanning’s conduct does not rise to the level of malice, oppression, or fraud as defined in Civil Code section 3294.

With respect to Duran & Venables, Inc., Defendants assert Plaintiffs cannot recover punitive damages against it as Lanning’s employer. In support, Defendants simply conclude punitive damages are not recoverable because Duran & Venables, Inc. did not know Lanning was unfit to operate a backhoe and “seemingly reprimanded and demoted” him after the incident. (Sep. Stat., ¶¶ 16–17.)

As a preliminary matter, although Lanning states Duran & Venables, Inc. disciplined him after the fact (Bonney Decl., Ex. B, Lanning Dep. at p. 37:1–9), there is no evidence showing what happened prior to the incident. The evidence Defendants present simply shows Lanning had operated heavy equipment for 15 years and worked for Duran & Venables, Inc. for two years. (Bonney Decl., Ex. B, Lanning Dep. at pp. 18:17–19; 48:3–6.) In any event, Defendants do not substantiate their argument because they provide no legal authority or analysis to demonstrate the significance of the facts adduced to the legal standard set forth in Civil Code section 3294, subdivision (b). Accordingly, Defendants also fail to carry their initial burden of showing punitive damages cannot be awarded against Duran & Venables, Inc. in particular.

In conclusion, Defendants do not carry their initial burden of demonstrating Plaintiffs’ claim for punitive damages lacks merit. Their motion for summary adjudication is therefore DENIED.