Ken Glaser vs. Best Towing And Transportation Services, LLC

Reply to Opposition

Cal. Super. - 4th Dist.October 24, 2016

2 3 4 5 6 7 8 9 10 A 11 — = 12 < 2 g - 13 BL og 14 mz 15 gE < 16 E © 17 wn 18 19 20 21 % 23 24 25 26 27 28 114816.1 1004.41294 A. SCOTT GOLDBERG (SBN CA 119797) JERRY C. POPOVICH (SBN CA 138636) MATTHEW S. BRADY (SBN CA 245957) ELECTRONICALLY FILED SELMAN BREITMAN LLP Superior Court of Califomia, 6 Hutton Centre Drive, Suite 1100 County of Orange Santa Ana, CA 92707-5755 01/06/2017 at 02:00:00 PM Telephone: 714.647.9700 Clerk of the Superior Court Facsimile: 714.647.9200 By & Clerk, Deputy Clerk Attorneys for Defendant BEST TOWING AND TRANSPORTATION SERVICES, LLC SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE —- CENTRAL JUSTICE CENTER KEN GLASER, an individual, Case No. 30-2016-00882803-CU-PO-CJC Plaintiff, Judge: Hon. David Chaffee Dept.: C20 V. DEFENDANT BEST TOWING AND BEST TOWING AND TRANSPORTATION | TRANSPORTATION SERVICES, LLC'S SERVICES, LLC, a limited liability REPLY TO PLAINTIFF'S OPPOSITION corporation; and DOES 1 to 10, inclusive, TO MOTION TO STRIKE Defendants. RESERVATION NO.: 72498041 Date: January 13, 2017 Time: 9:30 a.m. Dept.: C20 Judge: Hon. David Chaffee Complaint Filed: October 24, 2016 Trial Date: Not set. TO THE HONORABLE COURT, ALL PARTIES, AND TO THEIR ATTORNEYS OF RECORD HEREIN: Defendant Best Towing and Transportation Services, LLC (hereinafter "BEST TOWING") hereby submits the following Reply to Plaintiffs' Opposition to Defendant's Motion to Strike herein: 111 1 REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO STRIKE 2 3 4 5 6 7 8 9 10 A 11 — 12 cE g = 13 2< o : 14 mz 15 = c = 16 Oo 17 wn 18 19 20 21 22 23 24 25 26 27 28 114816.1 1004.41294 I. INTRODUCTION Plaintiff Ken Glaser ("Plaintiff") does not have a right to plead and seek punitive damages based on insufficient facts. Plaintiffs are required to plead punitive damages with specific facts or if during discovery facts are disclosed to support a claim for punitive damages, plaintiffs may seek leave to amend their complaint. One of the issues before the court is whether Plaintiff's Complaint for Damages ("Complaint") contains enough facts with sufficient specificity to show that BEST TOWING, a corporation, consciously disregarded the safety of others. Plaintiff's Opposition to Motion to Strike ("Opposition") contends that the Complaint meets this standard by essentially equating allegations of facts with allegations of legal conclusions. Furthermore, Plaintiff's Opposition is completely devoid of any alleged facts concerning the conduct or knowledge of any BEST TOWING officer, director or managing agent. As a result, BEST TOWING's Motion to Strike Portions of Plaintiff's Complaint ("Motion to Strike") should be granted as to punitive damages because the Complaint lacks the requisite allegations of facts to support a claim of punitive damages against BEST TOWING. Plaintiff also requests attorney's fees under the private attorney general doctrine codified in California Code of Civil Procedure section 1021.5, but that request is not supported by the facts alleged in Plaintiff's Complaint. BEST TOWING's Motion to Strike Plaintiff's request for attorney's fees should also be granted. II. PLAINTIFF FAILS TO STATE A CLAIM FOR PUNITIVE DAMAGES First, Plaintiff's Complaint fails to allege his claim for punitive damages with requisite specificity to support his claim that BEST TOWING acted with malice, oppression or fraud. Second, Pursuant to Civil Code sections 3294(a) and (b), plaintiffs cannot maintain a claim for punitive damages against a corporate defendant such as BEST TOWING, unless they prove by clear and convincing evidence that a corporate officer, director or managing agent engaged in malicious, fraudulent or oppressive conduct. Cruz v. HomeBase (2000) 83 Cal.App.4th 160,167- 68. Third, the "clear and convincing" standard for punitive damages requires "that the evidence be so clear as to leave no substantial doubt; sufficiently strong to command the unhesitating assent of every reasonable person." Mock v. Michigan Millers, (1992) 4 Cal. App.4th 306, 332. 2 REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO STRIKE 2 3 4 5 6 7 8 9 10 A 11 — ol 12 <2 g - 13 Re Lg 14 mz 15 SE < 16 £ QO 17 7 18 19 20 21 22 23 24 25 26 27 28 114816.1 1004.41294 A. Plaintiff Fails to Allege His Claim For Punitive Damages With The Requisite Specificity California law is abundantly clear that recovery of punitive damages in non-intentional tort cases is permitted when plaintiff has proven that defendant's malicious, oppressive or fraudulent conduct constitutes conscious disregard of the rights or safety of others. To meet this standard in the pleading stage, plaintiffs must allege sufficiently specific facts to show that defendants were aware of the probable harmful consequences of their conduct and willfully and deliberately failed to avoid those consequences. However, Plaintiff's Complaint falls short of meeting those standards because it lacks the specific allegations of facts that specifically show that any BEST TOWING officers, directors or managing agents were aware of the harmful effects of its conduct, and still nevertheless willfully and deliberately proceeded with that conduct. Taylor v. Superior Court (1979) 24 Cal. 3d., 890, 895-896; see also G.D. Searle & Co. v. Superior Court (1975) 49 Cal. App. 3d. 22; (emphasis added). The controlling California Supreme Court case on this narrow issue is the Taylor case. Taylor v. Superior Court (1979) 24 Cal. 3d. 890. As pointed out by plaintiffs, in Taylor, a drunk driving case, the California Supreme Court vacated the trial court's sustaining of defendant's demurrer as to the prayer for punitive damages because the Court found that plaintiff indeed sufficiently plead sufficient facts in his complaint. Plaintiff in Taylor presented in excruciating detail specific facts about the defendant including his history of alcoholism, his proclivity to drive intoxicated, his prior car accidents due to intoxication and subsequent convictions, his recent completion of probation, his acceptance of employment that required him to be tempted to drink and drive, and finally his simultaneous consumption of alcohol while driving at the actual time of the accident. Taylor at 893. Indeed, even the court's summary of plaintiff's punitive damages allegations spanned three paragraphs of specific facts showing the defendant's conscious disregard for plaintiff's safety. Crucial to plaintiff's prayer for punitive damages in Taylor were plaintiff's comprehensive and detailed factual allegations of the defendant's specific and continued awareness and knowledge of the substantial risk of harm created by defendant driving while intoxicated. The 3 REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO STRIKE 1 2 3 4 5 6 7 8 9 10 ™ 11 yd 2 Sz Ex 13 > o< © £ 14 / 15 li = = 16 O 17 wn 18 19 20 21 22 23 24 25 26 77 28 114816.1 1004.41294 plaintiff in Taylor did not simply make conclusory allegations of defendant's wrongful, tortious, and malicious conduct, but rather presented detailed factual allegations that show those alleged state of minds, such as plaintiff's detailed account of the defendant's past history of intoxicated driving and that the defendant was actually simultaneously driving and consuming alcohol at the time of the accident. Here, Plaintiff's Complaint has not imparted to BEST TOWING a similar level of knowledge or potential for injury as that required under Taylor. Rather, the allegation above is merely of negligence or gross negligence at best, not of conscious disregard. Punitive damages will not be granted for negligence, gross negligence, or even recklessness. Simply making conclusory legal allegations using the correct buzzwords is not sufficient to meet the heightened pleading standard for a punitive damages claim. This was made clear in Smith v. Superior Court (1992) 10 Cal. App. 4™ 1033, where the court vacated the trial court's order denying defendant's motion to strike punitive damages because plaintiffs’ complaint was indeed devoid of factual assertions to support her conclusory allegations. The plaintiffs in Smith, just like Plaintiff here, attempted to replace the required factual assertions with mere legal conclusions, including the buzzwords "willfully and maliciously," and "conscious disregard of the safety of plaintiffs". Instead of alleging the facts by which the defendant in Smith fraudulently concealed the nature of his representation, with a conscious disregard, the plaintiffs there simply inserted legal conclusions. Therefore, like the court in Smith, the court here should reject plaintiffs’ use of conclusory allegations and grant BEST TOWING's Motion to Strike. B. Plaintiff Fails to Sufficiently Plead A Claim For Punitive Damages Against BEST TOWING As A Corporate Defendant Where a party seeks punitive damages against a corporate entity, it faces a two-step process: (1) the party must set forth specific facts demonstrating the malice, oppression or fraudulent intent; and (2) the party must allege "advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud or malice. ..on the part of an officer, 4 REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO STRIKE 2 3 4 5 6 7 8 9 10 A 11 — 12 Sz E 13 ze Lg 14 AZ 15 ei 2 = 2 16 o 17 wn 18 19 20 21 22 23 24 25 26 27 28 114816.1 1004.41294 director, or managing agent of the corporation." California Civil Code § 3294(a) and (b); see also Toole v. Richardson-Merrell, Inc. (1967) 251 Cal. App. 2d. 689 [explaining special requirements for awarding punitive damages against a corporate employer]. The second paragraph of Plaintiff's Complaint alleges BEST TOWING to be a corporate defendant (Complaint, para. 2, p. 2:4-7), but the knowledge and conscious disregard of BEST TOWING officer, director or managing agent is never addressed in Plaintiff's Complaint. Therefore, BEST TOWING's Motion to Strike punitive damages should be granted. Applying the requirements of Civil Code sections 3294(a) and (b), Cruz, supra, reversed a punitive damage award against a corporate defendant, since the plaintiff did not prove by clear and convincing evidence that any officer, director or managing agent of the corporate defendant was guilty of malice, fraud or oppression. Cruz reaffirmed the black-letter rules directly applicable herein, namely that corporations are legal entities that do not have minds of their own and an award of punitive damages must rest on the malice of the corporation's leaders who guide corporate conduct, including officers, directors or managing agents. Cruz, supra 83 Cal. App.4™ at 166-167. Managing agents are "employees who exercise substantial discretionary authority over decisions that ultimately determine corporate policy." Cruz, supra 83 Cal. App.4™ at 167. Thus, a corporation such as BEST TOWING cannot be punished for the actions of their tow truck drivers because there is no evidence that these unidentified individuals had any authority over corporate principles or rules of general application at BEST TOWING. Even if the tow truck drivers' decisions could have significant consequences, BEST TOWING can only be liable for punitive damages if the malicious employee belongs to the leadership group of officers, directors and managing agents and Plaintiff has failed to allege facts in this regard. Cruz, supra 83 Cal. App.4™ at 168. Here, Plaintiff alleges that BEST TOWING acted with conscious disregard of Plaintiff's rights entitling Plaintiff to punitive damages (Complaint, para. 17, pp. 5:25-6:2). However, Plaintiff has failed to identify any specific facts suggesting that a particular officer, director or managing agent from BEST TOWING participated in, had knowledge of, or ratified any of the 111 5 REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO STRIKE 2 3 4 5 6 7 8 9 10 A 11 pod — 12 © Z g = 13 Bz o< © ¢ 14 mz 15 ck < 16 = © 17 nN 18 19 20 21 22 23 24 25 26 27 28 114816.1 1004.41294 allegedly malicious, oppressive or despicable conduct against Plaintiff and therefore, no claim for punitive damages can survive. C. Plaintiff's Alleged Facts in His Complaint Do Not Meet the Clear and Convincing Standard for Punitive Damages Plaintiff's Opposition alleges that BEST TOWING has a set policy to violate Code of Regulations Title 13 Section 2485. There are no facts in Plaintiff's Complaint that support the allegation of a BEST TOWING policy or practice of idling its diesel engines with conscious disregard for Plaintiff's health or safety. Plaintiff's Complaint basically alleges Plaintiff locked his key in his vehicle, called BEST TOWING for help, BEST TOWING unlocked Plaintiff's vehicle while running their diesel engines, and Plaintiff became ill from diesel exhaust fumes. Those facts do not warrant punitive damages because they are not clear and convincing of malice oppression of fraud. The "clear anil convincing" standard for punitive damages requires "that the evidence be so clear as to leave no substantial doubt; sufficiently strong to command the unhesitating assent of every reasonable person." Mock v. Michigan Millers at 332. The cases interpreting section 3294 make it clear in order to warrant the allowance of punitive damages, the act complained of must not only be willful in the sense of intentional, but it also must be accompanied by aggravating circumstances amounting to malice. There must be the intent to vex, annoy or injure. "Mere spite or ill will is not sufficient; and mere negligence, even gross negligence, is not sufficient to justify an award of punitive damages." Ebaugh v. Rabkin (1972) 22 Cal.App.3d. 891, 894. See also, Krusi v. Bear, Stearns & Co. (1983) 144 Cal.App.3d. 664, 679 ["...[M]ere negligence, which---even if gross, or reckless---cannot justify punitive damages."]; Tresemer v. Barke (1978) 86 Cal.App.3d. 656, 668 ["...[M]ere negligence, even gross negligence, is not sufficient to justify an award of punitive damages."] Therefore, the court should strike the portion of Plaintiff’s Complaint, Paragraph 17, page 5, line 25, through page 6, line 2, requesting punitive damages. I 111 /1/ 6 REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO STRIKE 2 3 4 5 6 7 8 9 10 A 11 — «= 12 < Z og 4 13 3 © ¢ 14 mz 15 5: < 16 E O 17 wn 18 19 20 21 22 23 24 25 26 27 28 114816.1 1004.41294 III. BEST TOWING'S MOTION TO STRIKE PORTIONS OF THE COMPLAINT SEEKING ATTORNEY'S FEES AGAINST BEST TOWING SHOULD BE GRANTED. Plaintiff's Opposition acknowledges that Plaintiff's request for attorney's fees is based solely as a "private attorney general" for the public interest. Here, Plaintiff's lawsuit is a based upon a single alleged negligent action, not something that affects the public interest, general public, or a large class of persons. Code of Civil Procedure Section 1021.5 states in pertinent part that "a court may award attorney's fees to a successful party...which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit...has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement...are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery." There are no facts in Plaintiff's Complaint to support the theory that a finding of liability against BEST TOWING would result in the enforcement of an important right affecting the public interest. A. There is No Significant Benefit to the General Public or Large Class of Persons | Plaintiff's Complaint addresses a single incident that took place while three BEST TOWING tow trucks were rendering him aid. The Complaint lacks sufficient facts to determine where or when the incident took place. There is no evidence that BEST TOWING had any policy against the general public or large class of persons to expose them to diesel exhaust fumes. Even if Plaintiff were to succeed on his causes of action, it would not rise to the level of a private attorney general conferring a significant benefit to the general public or large class of persons. The only persons present at the incident per the Complaint were Plaintiff and the three BEST TOWING tow truck drivers. Plaintiff's Opposition cites Woodland Hills Residents Assn. Inc. v. City Council (1979) 23 Cal. 3d 917, 941, as support for their position that attorney's fees should be awarded under the Code of Civil Procedure section 1021.5. That case was attempting to determine if section 1021.5 applied while the case had been pending on appeal. It simply found that the section could be applied, but remanded the case to the trial court to consider the 7 REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO STRIKE 2 3 4 5 6 7 8 9 10 A 11 pd 12 Sz £ = 13 a 0 go 14 a AZ 15 SE = < 16 Oo 17 wn 18 19 20 21 22 93 24 25 26 D7 28 114816.1 1004.41294 newly enacted statute at the time. Further, Woodland Hills Residents Assn., Inc. states," We believe rather that the Legislature contemplated that in adjudicating a motion for attorney fees under section 1021.5, a trial court would determine the significance of the benefit, as well as the size of the class receiving benefit, from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case." Woodland Hills Residents Assn., Inc. at 939-940. Plaintiff also cites Graham v. DaimlerChrysler Corp. (2004) 34 Cal. 4" 553 to support their allegation of a public benefit if Plaintiff were to succeed. However, Graham involved the incorrect marketing materials regarding the sales of 7,000 trucks by DaimlerChrysler. The matter was resolved prior to judicial resolution and the court found plaintiffs were entitled to attorney's fees because the settlement involved vehicle repurchase, replacement, service contracts and parts coupons. Id. at 563. The court awarded attorney's fees in Graham because the fees would have gone unpaid otherwise as there were no additional monies as part of the settlement agreement. Id. at 564. Therefore, Graham is not applicable to this case in terms of the group of persons affected, number of instances at issue, type of damages, and ability to pay attorney's fees. The incident that is alleged in Plaintiff's Complaint is over. Plaintiff would be the only person to benefit from the incident if he were to be successful. There would be not significant benefit to the general public or large group of persons even if Plaintiff was to succeed and thus no award of attorney's fees should be possible. Money damages would be the likely source of any award, which could be used to pay attorney's fees, as they are in most civil cases. B. There is No Necessity and Financial Burden of Private Enforcement The court in Woodland Hills Residents Assn., Inc. found that the record was unclear as to whether attorney's fees were appropriate under the necessity and financial burden of private enforcement prong of the statute. Woodland Hills Residents Assn., Inc. at 941. Code of Regulations Title 13 Section 2485 (f) deals directly with enforcement of the regulation stating, "This section may be enforced by the Air Resources Board, peace officers as defined in California Penal Code, title 3, chapter 4.5, Sections 830 et seq. and their respective law enforcement agencies’ authorized representatives; and air pollution control or air quality 8 REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO STRIKE o d 9 3 4 5 6 7 8 9 10 ~ 11 — 12 cE gd 13 Bz < Oe 14 44) mz 15 el 2 = > 16 © 17 wn 18 19 20 21 22 23 24 25 26 27 28 114816.1 1004.41294 management districts." There is no necessity of private enforcement of the regulation at issue. There are numerous public agencies and districts that enforce the regulation: Plaintiff does not run the financial burden of having to enforce the regulation at issue because that financial burden is spread throughout the public entities specifically identified in the regulation. C. Plaintiff Should be Responsible for His own Attorney's Fees in the Interests of Justice Plaintiff should be responsible to his own attorney's fees in the interest of justice because this lawsuit involves a single incident of alleged negligence. There is no greater good that is created by Plaintiff if he were to be successful in his claims. Therefore, the general principle that Plaintiff is responsible for his own attorney's fees should be applied in this case. Based on these authorities, this Court should strike the Plaintiff's request for attorney's fees in the Complaint at Prayer Item No. 4, page 6, line 8. IV. CONCLUSION BEST TOWING requests this court grant its Motion to Strike Portions of the Complaint as to the Plaintiffs’ requests for attorney's fees and punitive damages against BEST TOWING. DATED: January 6, 2017 SELMAN BREITMAN LLP Attorneys for Defendant BEST TOWING AND TRANSPORTATION SERVICES, LLC 9 REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO STRIKE S e l m a n B r e i t m a n LL P A T T O R N E Y S AT L A W H O W LO 0 9 O N Wn 10. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 29 26 cd 28 114405. PROOF OF SERVICE Ken Glaser v. Best Towing And Transportation Services, LLC, et al. Orange County Superior Court Case No. 30-2016-00882803-CU-PO-CJC STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of ORANGE, State of California. I am over the age of 18 years and am not a party to the within action; my business address is 6 Hutton Centre Drive, Suite 1100, Santa Ana, CA, 92707-5755. On January 6, 2017, I served the following document(s) described as DEFENDANT BEST TOWING AND TRANSPORTATION SERVICES, LLC'S REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO STRIKE on the interested parties in this action as follows: BY MAIL: By placing a true copy thereof in a sealed envelope addressed as above, and placing it for collection and mailing following ordinary business practices. I am readily familiar with the firm’s practice of collection and processing correspondence, pleadings, and other matters for mailing with the United States Postal service on that same day with postage thereon fully prepaid at Santa Ana, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. BY ELECTRONIC SERVICE: by transmitting a copy of the foregoing document(s) via internet/electronic mail to One Legal website for service on all parties in this case via their e-mail addresses, pursuant to court order, which includes the following plaintiff's counsel: Jeremy A. Rhyne, Esq. Attorney for Plaintiff Lex Opus Telephone: (714) 558-8580 2100 N. Broadway, Suite 210 Fax: (714) 558-8579 Santa Ana, CA 92706 O BY FAX: I transmitted a copy of the foregoing document(s) via telecopier to the facsimile numbers of the addressee(s), and the transmission was reported as complete and without error. O BY PERSONAL SERVICE: I personally delivered such envelope by hand to the offices of the addressee(s). I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January 6, 2017, at Santa Ana, California. 07 7c A hal NATALIE COSTA 1004.41294