Hearing Motion to Strike

Cal. Super. - 6th Dist.September 24, 2015

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER C. Gardner, et al vs Proven Management, Inc., et al Hearing Start Time: 9:00 AM 2015-1-CV-286087 Hearing Type: Hearing: Motion to Strike Date of Hearing: 12/05/2017 Comments: Heard By: Zayner, Theodore C Location: Department 6 Courtroom Reporter: - No Record Transcribed Courtroom Clerk: Maggie Castellon Court Interpreter: Court Investigator: Parties Present: Future Hearings: Exhibits: - No appearance. Tentative ruling adopted. Currently before the Court are the demurrer and motion to strike by defendants Proven Management, Inc. ( Proven ), Oro Holdings, Inc. ( Oro ), and Rusty La Bar( La Bar). Factual and Procedural Background This is a personal injury action. On September 12, 2014, plaintiff Charles Gardner ( Charles) was severely injured when a portion of the boom and jib ofa Link-Belt Model No. HC-238 crane failed and fell onto and crushed his foot. (First Amended Complaint ( FAC ), 2.) At the time of the incident, the crane was operated by La Bar, an unlicensed and inexperienced employee of [Proven] who was inadequately trained or experienced in the operation of this crane. (Ibid.) Proven had been hired as the general contractor by the Santa Clara Valley Water District to perform construction work on the Lower Silver Creek Flood Protection and Creek Restoration Projects-Reaches SC to 6A ( Project ), and the crane was to be utilized by Proven to complete the Project. (Id. at 7 and 12.) Charles was assembling the crane with La Bar at the time of the incident. (Id. at 13.) Proven and La Bar allegedly performed work including the assembly of the crane in such a negligent and unreasonable way so as to cause a portion of the crane s boom and/or jib to fall onto and crush [Charles]foot. (Id.at 15.) In addition, the crane was designed and manufactured in a way that was hazardous and could lead to injury if used in a reasonable and foreseeable manner. (FAC, 2.) The manufacturer of the product defendant Link- Belt Construction Equipment, Co. ( Link-Belt ) knew or should have known of the hazards of the crane, but failed to correct the hazards on this crane, failed to recall or to retrofit the crane, and failed to warn of the hazards of the machine. (Id. at 2, 8, 16.) Based on the foregoing, Charles and his wife, Jennifer Gardner, (collectively, Plaintiffs ) filed the operative FAC against Proven, Oro, La Bar, and Link-Belt, alleging causes of action for: (1) negligence; (2) negligent performance ofan undertaking; (3) negligent exercise of retained control; (4) negligent hiring, training, and supervision; (5) negligent inspection and maintenance; (6) strict products liability; (7) strict products liability failure to warn or instruct; (8) products liability negligence; (9) products liability negligence failure to warn or instruct; (10) products liability negligence failure to recall or retrofit; and (11) loss of consortium. Primed: 12/5/2017 12/05/2017 Hearing: Motion to Strike - 2015-1-CV-286087 Page 1 of6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Shortly thereafter, on August 24, 2017, Plaintiffs dismissed the second cause of action with respect to Oro. On September 22, 2017, Proven, Oro, and La Bar (collectively, Defendants ) filed the instant demurrer. The same day, Proven and Oro filed the instant motion to strike portions of the FAC. Plaintiffs filed papers in opposition to the matters on November 20, 2017. On November 28, 2017, Defendants filed reply papers in support of their demurrer and motion to strike. Discussion |. Service of the Opposition Papers Defendants contend that the Court should disregard Plaintiffs opposition papers because the papers were not served in accordance with Code of Civil Procedure section 1005. Code of Civil Procedure section 1005, subdivision (b), which applies to demurrers and motions to strike, mandates that all opposition papers be filed and served at least nine court days before the hearing. The manner of service must be reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time the opposing papers are filed. (Code Civ. Proc., 1005, subd. (c).) Plaintiffs were obligated to file their opposition papers on November 20, 2017, nine court days before the hearing. Plaintiffs complied with that requirement, filing their papers on November 20, 2017. Plaintiffs also served the opposition papers on Defendants via US. mail. The place of mailing was San Francisco and the destination was Defendants counsel located San Francisco and Walnut Creek. Defendants state that the opposition papers were not received until November 22, 2017, two business days later. Even assuming for the sake of argument that Plaintiffs did not serve their opposition papers in a manner reasonably calculated to ensure timely delivery, it would not be appropriate to disregard the papers. Presumably, the purpose of the requirement to serve opposition papers by a specified number of days before the hearing is to provide the moving party adequate time to prepare a reply brief. (See In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 828-829.) Here, Defendants do not argue, or otherwise demonstrate, that they were prejudiced by the delayed receipt of the opposition papers. Moreover, they did in fact file reply papers addressing the substance of the opposition papers. Therefore, the Court finds that Defendants argument lacks merit. ||. Demurrer Defendants demur to the second cause of action of the FAC on the grounds of uncertainty and failure to allege facts sufficient to constitute a cause of action. (See Code Civ. Proc., 430.10, subds. (e) and (f).) Primed: 12/5/2017 12/05/2017 Hearing: Motion to Strike - 2015-1-CV-286087 Page 2 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER A. Legal Standard The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. Of Capital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621.) Consequently, [a] demurrer reaches only to the contents of the pleading and such matters as may be considered under the doctrine ofjudicial notice. (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations and quotations omitted; see also Code Civ. Proc., 430.30, subd. (a).) It is not the ordinary function of a demurrer to test the truth of the [] allegations [in the challenged pleading] or the accuracy with which [the plaintiff] describes the defendant s conduct. [ ] Thus, [] the facts alleged in the pleading are deemed to be true, however improbable they may be. (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958, internal citations and quotations omitted.) However, while [a] demurrer admits all facts properly pleaded, [it does] not [admit] contentions, deductions or conclusions of law or fact. (George v. Automobile Club of Southern California (2011) 201 Cal.App.4th 1112, 1120.) B. Uncertainty Defendants demur to the second cause of action for negligent performance of an undertaking on the ground of uncertainty. Defendants contend that the second cause of action is uncertain as to what allegations are being made against [Oro], if any, and if the claim is being asserted against [Oro] because the claim contains allegations regarding Oro even though Plaintiff s counsel agreed that [Oro] would not be named in this cause of action. (Mem. Ps. & As., p. 4:29) As Plaintiffs persuasively argue, Defendants argument lacks merit. Defendants evidence demonstrates that Plaintiffs counsel agreed to file a dismissal of the second case of action with respect to Oro. (Tolson Dec., Ex. A.) Moreover, after the filing of the FAC, Plaintiff filed said dismissal on August 24, 2017. Consequently, there is no uncertainty or ambiguity regarding whether the second cause of action is alleged against Oro. Accordingly, the demurrer on the ground of uncertainty is OVERRU LED. C. Failure to Allege Facts Sufficient to State a Claim With respect to the ground of failure to allege facts sufficient to state a cause of action, Defendants begin by discussing the case of Paz v. State of California (2000) 22 Cal.4th 550, 554 (Paz) and highlighting the California Supreme Court s conclusion that the defendants did not owe [the] plaintiff a duty simply by undertaking work that may have alleviated an allegedly dangerous condition on public property. Defendants do not articulate why they believe Paz is relevant to this lawsuit. In the FAC, Plaintiffs neither allege that Charles was injured by a dangerous condition on public property nor that the Project involved Primed: 12/5/2017 12/05/2017 Hearing: Motion to Strike - 2015-1-CV-286087 Page 3 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER work on a dangerous condition of public property. Instead, Plaintiffs allege that Charles was injured as a direct result of Proven and La Bar s negligent assembly of the crane. (FAC, 15, 21-23, 28-33.) Therefore, Paz is inapplicable. Next, Defendants state, [t]here is no dispute that the [Project] was not undertaken by [Proven] for the protection of independent contractors from being injured while working on the project, and there are no allegations to that effect in the [second cause of action] . (Mem. Ps. & As., p. 3:25-28.) Defendants further contend that Plaintiffs do not allege how [they] volunteered to undertake to provide protective services to [Charles]. (Id. at pp. 3:28-4:1.) Based on the foregoing, Defendants conclude that the second cause of action fails to state a claim. Defendants arguments are not well-taken. Under the negligent undertaking doctrine , a defendant may be liable when it undertakes to render services necessary for another s protection, but negligently performs that undertaking. (Dekens v. Underwriters Laboratories, Inc. (2003) 107 Cal.App.4th 1177, 1179-1180.) According to the allegations of the FAC, the service allegedly undertaken by Proven and La Bar was the assembly of the crane. (FAC, 15 and 31-32.) The fact that this service was allegedly provided under Proven s contract with Santa Clara Valley Water District, as opposed to on a volunteer basis, is of no importance as the negligent undertaking doctrine may apply to services undertaken for consideration. (See Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 613-614 [ As the traditional theory is articulated in the Restatement, a negligent undertaking claim of liability to third parties requires evidence that: (1) the actor undertook, gratuitously or for consideration, to render services to another ; (2) the services rendered were of a kind the actor should have recognized as necessary for the protection of third persons (plaintiffs); (3) the actor failed to exercise reasonable care in the performance of its undertaking; (4) the failure to exercise reasonable care resulted in physical harm to the third persons; and (5) either (a) the actor s carelessness increased the risk of such harm, or (b) the undertaking was to perform a duty owed by the other to the third persons, or (c) the harm was suffered because of the reliance of the other or the third persons upon the undertaking. ]; see also Rest.2d Torts, 324A.) Furthermore, the assembly of a crane on a construction site, by its nature, at least theoretically implicates the well-being and protection of third parties; that is, to undertake such assembly broadly implicates the well-being and protection of those working on or near the crane, such as Charles. Accordingly, the demurrer on the ground of failure to allege facts sufficient to constitute a cause of action is OVERRU LED. III. Motion to Strike Proven and Oro move to strike the following portions of the FAC: (1) the request for punitive damages; and (2) references to Oro contained in the second cause of action. A. Legal Standard Under Code of Civil Procedure section 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. (Code Civ. Proc., 436.) The grounds for a motion to strike must appear on the face of the challenged pleading or from matters of which the court may take judicial notice. (Code Civ. Proc., 437, subd. (a).) In ruling on a motion to strike, the court reads the pleading Primed: 12/5/2017 12/05/2017 Hearing: Motion to Strike - 2015-1-CV-286087 Page 4 of 6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER as a whole, all parts in their context, and assuming 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 (Clauson).) B. Allegations Regarding Oro in the Second Cause of Action Proven and Oro argue that the allegations regarding Oro contained in the second cause of action should be stricken because Plaintiffs counsel agreed to dismiss the claim against Oro and Plaintiffs fail to allege sufficient facts demonstrating that the doctrine of negligent undertaking applies to Oro. (Mem. Ps. & As., p. 9:7-17.) As articulated above, Plaintiffs filed a dismissal of the second cause of action with respect to Oro on August 24, 2017. Consequently, the second cause of action is not alleged against Oro and there is no need to strike the allegations at issue here. Accordingly, the motion to strike the allegations regarding Oro from the second cause of action is DENIED. C. Punitive Damages Proven and Oro argue that the request for punitive damages should be stricken because Plaintiffs do not allege any facts showing that an officer, director, or managing agent of Proven committed, ratified, or authorized the wrongful conduct. They further argue that the allegations of the FAC demonstrate, at most, negligent conduct which does not constitute malice, oppression, or fraud. To survive a motion to strike a request for punitive damages, the ultimate facts showing an entitlement to such relief must be pled. (Clauson, supra, 67 Cal.App.4th at p. 1255.) Punitive damages are permitted [i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice . (Civ. Code, 3294, subd. (a).) The statute defines malice 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).) Despicable conduct is conduct so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1050 quoting Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331.) Additionally, to demonstrate conscious disregard, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his or her conduct, and that the defendant willfully and deliberately failed to avoid those consequences. (Taylor v. Super. Ct. (1979) 24 Cal.3d 890, 895-896; Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1055.) Finally, a request for punitive damages against a corporation must allege that an 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. (See Civ. Code, 3294, subd. (b).) Primed: 12/5/2017 12/05/2017 Hearing: Motion to Strike - 2015-1-CV-286087 Page 5 of6 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Upon review of Plaintiffs punitive damages allegations, the Court finds that Plaintiffs failed to adequately allege 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. (See Civ. Code, 3294, subd. (b).) Paragraphs 151-158 contain various allegations regarding the knowledge and actions of owners, managers, employees, a superintendent, and an operations manager of Proven. However, there are no facts alleged demonstrating that any of these individuals were an officer, director, or managing agent of Proven. Consequently, Plaintiffs do not plead sufficient facts to support their request for punitive damages. Accordingly, the motion to strike the request for punitive damages is GRANTED, with 10 days leave to amend. - ooOoo - Primed: 12/5/2017 12/05/2017 Hearing: Motion to Strike - 2015-1-CV-286087 Page 6 of 6