Motion_to_strikeMotionCal. Super. - 4th Dist.December 18, 2017AN nn Bx W N 10 11 12 13 14 13 16 17 18 19 20 21 22 23 24 23 26 27 28 John W. McConnell, III, Esq. SBN 62052 S. Seth Kershaw, Esq. SBN 263358 MEYERS McCONNELL REISZ SIDERMAN A Professional Corporation 11620 Wilshire Boulevard, Suite 800 Los Angeles, California 90025-6601 Tel (310) 312-0772; Fax (310) 312-0656 mcconnell @ mmrs-law.com kershaw @mmrs-law.com Attorneys for Defendant TAYLOR-DUNN MANUFACTURING COMPANY ELECTRONICALLY FILED Superior Court of California, County of Orange 08/23/2018 at 02:11:00 PM Clerk of the Superior Court By Jeanette Torres-Mendoza, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE - CENTRAL JUSTICE CENTER ESPERANZA HERNANDEZ FLORES ) MURGUIA GEN, individually, and as ) surviving heir and successor in interest of ) RICARDO MURGUIA GEN (deceased); and ) MARIA GUADALUPE NAJERA HERNANDEZ, individually, and as surviving heir and successor in interest of RICARDO MURGUIA GEN (deceased), Plaintiffs, v. ) ) ) ) ) ) ) ) THE IRVINE COMPANY, LLC, a Delaware ) Limited Liability Company; TAYLOR-DUNN ) MANUFACTURING COMPANY, a ) California Corporation; and DOES 1-100, ) inclusive, ) ) ) ) ) ) ) ) Defendants. Case No.: 30-2017-00962045-CU-PL-CJC [Assigned to Hon. Derek W. Hunt, Dept. C23] DEFENDANT TAYLOR-DUNN MANUFACTURING COMPANY'S NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES AND OTHER PORTIONS OF FIRST AMENDED COMPLAINT, MEMORANDUM OF POINTS AND AUTHORITIES [Filed concurrently with Declaration of S. Seth Kershaw; and [Proposed] Order] Hearing Date: 10/12/2018 Time: 9:00 a.m. Dept.: C23 RESERVATION ID: 72876260 Complaint Filed: December 18, 2017 Trial Date: May 20, 2019 TO ALL PARTIESAND TO THEIR ATTORNEYS OF RECORD HEREIN: PLEASE TAKE NOTICE THAT on October 12, 2018, at 9:00 a.m. or as soon thereafter as may be heard in Department C23 of the above entitled court, located at 700 Civic Center Drive West, Santa Ana, California, Defendant Taylor-Dunn Manufacturing Company (“Taylor-Dunn”) will and hereby does move the Court for an order striking out the following portions of Plaintiffs’ First Amended Complaint, as alleged against Taylor-Dunn, on file herein: 1 MOTION TO STRIKE PUNITIVE DAMAGES AND OTHER PORTIONS OF FIRST AMENDED COMPLAINT ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Meyers M cCon ne Reisz Siderman A Professional Corporation 11620 Wilshire Blvd. Suite 800 Los Angeles, CA 90025 (310) 312-0772 1. Second Cause of Action, paragraph 36, which states: “As a direct and proximate result of the conduct of Defendants and DOES 1 through 100, and each of them, and of the death of RICARDO MURGUIA GEN, Plaintiffs have been deprived of the society and comfort of said decedent and have caused the loss of future services, earnings, and protection of said heirs, to their great loss and damage in an amount to be shown according to proof.” 2. Second Cause of Action, paragraph 38, which states: “As a direct, legal, and proximate result of the negligence of Defendants, DOES 1 through 100, and each of them, as aforesaid, Plaintiff sustained a loss of income, the duration and extent of which is yet to be determined, all in a sum to be shown according to proof.” 3. Third Cause of Action, paragraph 48, which states: “The conduct which Plaintiff complains of in this Complaint, and which is alleged herein, was carried out by [Taylor-Dunn], including the officers, directors and/or managing agents of [Taylor-Dunn], willfully, intentionally, and with oppression, malice, and fraud and was carried with conscious disregard of Plaintiffs’ safety to which Plaintiffs are entitled to an award of exemplary damages according to proof. Specifically, punitive damages are warranted under the circumstances because [Taylor-Dunn] had knowledge or should have had knowledge that the subject flatbed electric utility cart was unreasonably dangerous and unsafe for reasons which include, but are not limited to the fact the machine’s design and/or manufacturing caused it to be inadequately guarded and available for use by the employees.” 4. Fourth Cause of Action, paragraph 65, which states: “The conduct which Plaintiff complains of in this Complaint, and which is alleged herein, was carried out by [Taylor-Dunn] willfully, intentionally, and with oppression, malice, and fraud and was carried with conscious disregard of Plaintiff’s safety to which Plaintiff is entitled to an award of exemplary damages according to proof. Specifically, punitive damages are warranted under the circumstances because [Taylor-Dunn] had knowledge or should have had knowledge that the subject flatbed electric utility cart, which is the subject of this litigation, was unreasonably dangerous and unsafe for reasons which include, but are not limited to the flatbed electric utility cart’s design and/or manufacturing caused it to be inadequately guarded at the time it left [Taylor-Dunn’s] control.” 2 MOTION TO STRIKE PUNITIVE DAMAGES AND OTHER PORTIONS OF FIRST AMENDED COMPLAINT ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Meyers M cCon ne Reisz Siderman A Professional Corporation 11620 Wilshire Blvd. Suite 800 Los Angeles, CA 90025 (310) 312-0772 5: Prayer for Relief, paragraph 3, which states: “Punitive damages.” This Motion is made and based upon this Notice, the attached Memorandum of Points and Authorities, the Declaration of S. Seth Kershaw filed herewith, the Court’s file pertaining to this matter and all the pleadings filed herein, those matters judicially noticeable, and upon such further oral and documentary evidence as may be presented at the hearing on this Motion. DATED: August 23, 2018 MEYERS McCONNELL REISZ SIDERMAN John WMcConnell, II, Esq. S. Seth Kershaw, Esq. Attorneys for Defendant TAYLOR-DUNN MANUFACTURING COMPANY 3- MOTION TO STRIKE PUNITIVE DAMAGES AND OTHER PORTIONS OF FIRST AMENDED COMPLAINT ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Meyers M cCon ne Reisz Siderman A Professional Corporation 11620 Wilshire Blvd. Suite 800 Los Angeles, CA 90025 (310) 312-0772 MEMORANDUM OF POINTS AND AUTHORITIES l. INTRODUCTION This matter arises from an accident on December 27, 2015, involving an electric utility cart. Ricardo Murguia Gen (the decedent) was fatally injured when he was run over by the electric utility cart while apparently attempting to repair it. At the time of the accident, the decedent was working as an employee of the Millard Group at a shopping mall owned by Defendant The Irvine Company, LLC (the “Irvine Company”), which also owned the electric utility cart. Taylor-Dunn allegedly manufactured the electric utility cart. Plaintiffs Esperanza Hernandez Flores Murguia Gen and Maria Guadalupe Najera Hernandez filed this action in their own behalf and on behalf of the decedent as his purported successors-in-interest. Plaintiffs’ First Amended Complaint fails to allege facts sufficient to support their claim for punitive damages. As well, Plaintiffs’ survival claim improperly alleges recovery of damages that are not recoverable in a survival action under Code of Civil Procedure section 377.34. Accordingly, Taylor-Dunn moves to strike the punitive damages alleged against Taylor-Dunn, as well as the allegations for damages not recoverable in a survival action. [1. STATUTORY AUTHORITY AND ARGUMENT A. A party may file and serve a notice of motion to strike the whole of a complaint or any part thereof within the time allowed to respond to the pleading. Code of Civil Procedure Section 435(b)(1) provides, in pertinent part, that “[a]ny party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof....” Section 436 authorizes this Court to strike out any irrelevant, false, or improper matter inserted in any pleading or all or any 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. See CCP § 436. B. Plaintiffs’ claim for punitive damages should be stricken because insufficient facts are alleged to support them. Punitive damages are available in an action for breach of a non-contractual obligation, including products liability, only where there is “clear and convincing evidence” that the defendant has been guilty of oppression, fraud, or malice. Civ. Code § 3294(a). Section 3294 defines these 4 MOTION TO STRIKE PUNITIVE DAMAGES AND OTHER PORTIONS OF FIRST AMENDED COMPLAINT ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Meyers M cCon ne Reisz Siderman A Professional Corporation 11620 Wilshire Blvd. Suite 800 Los Angeles, CA 90025 (310) 312-0772 terms as follows: (1) “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. (2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (3) “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(c). A motion to strike punitive damages allegations lies where the facts alleged do not rise to the level of malice, fraud, or oppression. Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal. App.4th 53, 63. Moreover, conclusory allegations of “malice” or “oppression” will not support a claim for punitive damages. Perkins v. Superior Court (General Telephone Company) (1981) 117 Cal. App.3d 1; Brousseau v. Jarrett (1977) 73 Cal. App.3d 864, 872 (holding that conclusory characterizations of conduct as being intentional, willful, or fraudulent is patently insufficient to state allege punitive damages under section 3294). The pleading must allege specific facts showing that the defendant’s conduct was oppressive, fraudulent, or malicious. Smith v. Sup.Ct. (Bucher) (1992) 10 Cal. App.4th 1033, 1041-1042; Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal. App.4th 598, 643. In this regard, something more than the mere commission of a tort is required for punitive damages. Taylor v. Superior Court (1979) 24 Cal. 3d 890, 894-895 (“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 wilful or wanton.”) (internal quotations omitted, italics in original). Thus, negligence, even gross negligence, is insufficient to support a claim for punitive damages. Ebaugh v. Rabkin (1972) 22 Cal. App.3d 891, 894 (“The cases interpreting section 3294 5= MOTION TO STRIKE PUNITIVE DAMAGES AND OTHER PORTIONS OF FIRST AMENDED COMPLAINT ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Meyers M cCon ne Reisz Siderman A Professional Corporation 11620 Wilshire Blvd. Suite 800 Los Angeles, CA 90025 (310) 312-0772 make it clear that in order to warrant the allowance of punitive damages the act complained of must not only be wilful in the sense of intentional, but it must also be accompanied by aggravating circumstances, amounting to malice. The malice required implies an act conceived in a spirit of mischief or with criminal indifference towards the obligations owed to others.”); Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal. App.4th 1269, 1287 (finding the defendant’s mere carelessness or ignorance does not justify the imposition of punitive damages; rather, the tortious conduct must rise to the level of extreme indifference to the plaintiffs rights, which no decent citizen should have to tolerate). The necessity of specific, factual allegations supporting an award of punitive damages is especially true in strict liability cases. By definition, a party is liable regardless of intent. Accordingly, Plaintiffs have an even greater burden to establish conduct that goes beyond intent, and towards oppression, fraud, or malice, in order to plead recovery of punitive damages under their causes of action for strict products liability. See G. D. Searle & Co. v. Superior Court (1975) 49 Cal. App.3d 22, 29 (“When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, wilful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.”); see also Hoch v. Allied-Signal, Inc. (1994) 24 Cal. App.4th 48, 59 (indicating that in a products liability suit based on negligence and strict liability, a claim for punitive damages requires a “more rigorous evidentiary standard”). Here, the allegations in the First Amended Complaint are insufficient to meet the higher pleading standard for an alleged claim of punitive damages in a strict products liability case. Those specific allegations added in the First Amended Complaint, which were not included in the original complaint, are that there were prior complaints by employees, such as the decedent, of electrical problems. (Compl. (43, 45.) But these added allegations have no meaning or import as to Taylor- Dunn, the alleged manufacturer of the electric utility cart. The decedent was not Taylor-Dunn’s employee. These alleged prior complaints were not made to Taylor-Dunn. Accordingly, the vague assertion that there were “employee complaints” and that Taylor-Dunn (somehow) “allowed” employees like the decedent to use the subject electric utility cart is wholly inadequate to support punitive damages against Taylor-Dunn, the alleged manufacturer. (Compl. qq 43, 58.) 6 - MOTION TO STRIKE PUNITIVE DAMAGES AND OTHER PORTIONS OF FIRST AMENDED COMPLAINT ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Meyers M cCon ne Reisz Siderman A Professional Corporation 11620 Wilshire Blvd. Suite 800 Los Angeles, CA 90025 (310) 312-0772 The remaining allegations concerning punitive damages are merely generic, conclusory statements that Taylor-Dunn acted in a “clearly vile, base, or contemptible manner” or “willfully, intentionally, and with oppression, malice, and fraud and was carried with conscious disregard of Plaintiffs’ safety....” (Compl. |] 45, 48, 58, 61, 65.) Similarly, the First Amended Complaint alleges in boilerplate language that Taylor-Dunn knew or should have known that the subject electric utility cart had an alleged design defect. (Id.) As noted herein, courts have set a high standard for punitive damages, and Plaintiffs have failed to meet this standard. Lo Plaintiffs’ allegations for damages in their survival action must be stricken insofar as the damages are not recoverable under CCP § 377.34. Under Code of Civil Procedure Section 377.20, if a person dies having a cause of action for injuries suffered during life, the claim “survives” to the decedent’s estate and may be prosecuted by the decedent’s personal representative or, if none, by the decedent’s successor in interest. CCP § 377.30. Thus, a survival claim is not based on a plaintiff's own alleged injuries, but rather on the alleged injuries of the decedent. Moreover, the damages that may be recovered in a survival action are expressly limited by statute. The recoverable damages are limited to the loss or damage that the decedent sustained or incurred before death and do not include damages for pain, suffering, or disfigurement. CCP § 377.34. Within the survival cause of action, the First Amended Complaint improperly alleges damages for the loss of society and comfort of the decedent, including the loss of future services, earnings or income, and protection. These alleged damages are not recoverable in a survival action, pursuant to the limitation in Code of Civil Procedure section 377.34, and must be stricken from the First Amended Complaint. I" I" I" 7 MOTION TO STRIKE PUNITIVE DAMAGES AND OTHER PORTIONS OF FIRST AMENDED COMPLAINT 1 || Il. CONCLUSION For the foregoing reasons, the allegations and prayer for relief for an award of punitive damages against Taylor-Dunn must stricken, as well as the allegations regarding nonrecoverable damages in a survival action. DATED: August 23, 2018 MEYERS McCONNELL REISZ SIDERMAN 8 By: THO John W-—McConnell, III, Esq. 9 S. Seth Kershaw, Esq. 10 Attorneys for Defendant TAYLOR-DUNN MANUFACTURING 11 COMPANY ~N O Y a B A W 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Meyers M cCon ne Reisz Siderman A Professional Corporation 8 = Hea wise Blvd. MOTION TO STRIKE PUNITIVE DAMAGES AND OTHER PORTIONS OF FIRST AMENDED COMPLAINT ite Los Angeles, CA 90025 (310) 312-0772 ~N O N Ln BA W N 10 11 12 13 14 13 16 17 18 19 20 21 22 23 24 23 26 27 28 PROOF OF SERVICE 98.327 1013A(3)CCP STATE OF CALIFORNIA Esperanza Hernandez Flores Murguia Gen, etc. v. The Irvine Company, LLC, etal. County of Orange Superior Court Case No.: 30-2017-00962045-CU-PL-CJC I am employed in the county of Los Angeles, State of California. Iam over the age of 18 and not a party to this action; my business address is 11620 Wilshire Boulevard, Suite 800, Los Angeles, California 90025. On August 23, 2018, I served the foregoing document described as “DEFENDANT TAYLOR-DUNN MANUFACTURING COMPANY'S NOTICE OF MOTION AND MOTION TO STRIKE PUNITIVE DAMAGES AND OTHER PORTIONS OF FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES” on interested parties in this action by placing true copies thereof enclosed in sealed envelopes addressed as follows: SEE ATTACHED SERVICE LIST x (VIA MAIL) The envelope was mailed with postage thereon fully prepaid. I am “readily” familiar with the firm’s practice of collection and processing correspondence for mailing. It is deposited with U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of a 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 an affidavit. [1] (VIA E-MAIL) I caused a true copy of the foregoing document(s) listed above to be served by electronic email transmission at the time shown on each transmission, to each interested party at the email address(es) shown above. Each transmission was reported as complete and without error. [1] (VIA OVERNIGHT) I caused such envelope to be delivered by overnight courier service to the offices of the addressee. The envelope was deposited in or with a facility regularly maintained by the overnight courier service with delivery fees paid or provided for. [1] (VIA PERSONAL SERVICE) Idelivered such envelope by hand to the address of the addressee listed above. x (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on August 23, 2018, in Los Angeles, California. AU "Paulin Kim ~N O N Ln BA W N 10 11 12 13 14 13 16 17 18 19 20 21 22 23 24 23 26 27 28 ATTACHED SERVICE LIST 98.327 Esperanza Hernandez Flores Murguia Gen, etc. v. The Irvine Company, LLC, etal. County of Orange Superior Court Case No.: 30-2017-00962045-CU-PL-CJC Craig L. Chisvin, Esq. CHISVIN LAW GROUP, APC 11400 W. Olympic Blvd., Suite 200 Los Angeles, CA 90064 Tel: (310) 820-4488 Fax: (310) 820-8485 Email: craig@chisvinlaw.com Samantha E. Dorey, Esq. EVERETT DOREY LLP One MacArthur Place, Suite 110 Santa Ana, California 92707 Tel: (949) 771-9233 Fax: (949) 377-3110 Email: sdorey @everettdorey.com John P. LeCrone, Esq. Kyle P. Klein, Esq. DAVIS WRIGHT TREMAINE LLP 865 S. Figueroa Street, Suite 2400 Los Angeles, California 90017 Tel: (213) 633-6800 Fax: (213) 633-6899 Email: johnlecrone@dwt.com kyleklein@dwt.com Attorneys for Plaintiffs ESPERANZA HERNANDEZ FLORESMURGUIA GEN and MARIA GUADALUPE NAJERAHERNANDEZ Attorneys for Defendant, THE IRVINE COMPANY, LLC Attorneys for Defendant, THE IRVINE COMPANY, LLC
