This case was last updated from Los Angeles County Superior Courts on 08/15/2019 at 09:44:25 (UTC).

DILLON CONAWAY VS RALPHS GROCERY COMPANY ET AL

Case Summary

On 02/13/2018 DILLON CONAWAY filed a Personal Injury - Other Personal Injury lawsuit against RALPHS GROCERY COMPANY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is STEPHEN I. GOORVITCH. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3723

  • Filing Date:

    02/13/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

STEPHEN I. GOORVITCH

 

Party Details

Plaintiff and Petitioner

CONAWAY DILLON

Defendants, Respondents, Cross Plaintiffs and Cross Defendants

BACKSTROM JUSTIN

HANNAY REALTY ADVISORS INC

HRA 9TH & FLOWER LP

DOES 1 TO 50

RALPHS

1ST AMERICAN PROFESSIONAL SECURITY

AMERICAN GUARD SERVICES INC

RALPH'S GROCERY COMPANY

1ST AMERICAN PROFESSIONAL SECURITY SERVICES LLC

AMERICAN GUARD SERVICES

RALPH'S GROCERY COMPANY DBA RALPHS

AKHTAR MOHAMMAD

HANNAY REALTY ADVISORS LP-CALIFORNIA LP

THE TRAVELERS INDEMNITY COMPANY

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

MEYER MATT ESQ.

MYER MATT

Defendant and Respondent Attorneys

D'ORO FRANK J. ESQ.

VRANJES MARK ESQ.

TYSON ROBERT F. JR. ESQ.

VRANJES MARK

Defendant and Cross Plaintiff Attorneys

VRANJES MARK

GEROME BRENT ALLEN

Cross Defendant Attorney

AGNESS AARON CHAPMAN

Other Attorneys

YEE KEVIN R.

 

Court Documents

AMENDMENT TO COMPLAINT

5/8/2018: AMENDMENT TO COMPLAINT

AMENDMENT TO COMPLAINT

5/8/2018: AMENDMENT TO COMPLAINT

PROOF OF SERVICE SUMMONS

9/7/2018: PROOF OF SERVICE SUMMONS

ANSWER OF DEFENDANT TREVALLE COLE TO THE SECOND AMENDED COMPLAINT

9/21/2018: ANSWER OF DEFENDANT TREVALLE COLE TO THE SECOND AMENDED COMPLAINT

Separate Statement

10/11/2018: Separate Statement

Motion to Compel

10/11/2018: Motion to Compel

Motion to Compel Further Discovery Responses

10/11/2018: Motion to Compel Further Discovery Responses

Declaration

10/19/2018: Declaration

Informal Discovery Conference

11/1/2018: Informal Discovery Conference

Stipulation and Order

1/2/2019: Stipulation and Order

Case Management Statement

1/9/2019: Case Management Statement

Order

1/23/2019: Order

Notice of Deposit - Jury

1/23/2019: Notice of Deposit - Jury

Answer

2/5/2019: Answer

Motion to Compel

3/11/2019: Motion to Compel

Notice Re: Continuance of Hearing and Order

4/23/2019: Notice Re: Continuance of Hearing and Order

CROSS-COMPLAINT

3/19/2018: CROSS-COMPLAINT

COMPLAINT FOR COMPENSATORY AND PUNITIVE DAMAGES: 1. NEGLIGENCE ;ETC

2/13/2018: COMPLAINT FOR COMPENSATORY AND PUNITIVE DAMAGES: 1. NEGLIGENCE ;ETC

76 More Documents Available

 

Docket Entries

  • 12/16/2019
  • Hearingat 09:30 AM in Department 56 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 12/02/2019
  • Hearingat 08:30 AM in Department 56 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 10/18/2019
  • Hearingat 08:30 AM in Department 56 at 111 North Hill Street, Los Angeles, CA 90012; Post-Mediation Status Conference

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  • 08/12/2019
  • DocketStipulation and Order (Stipulation Allowing Production/Release of Subpoenaed Records in Court's Possession from Banner University Medical to Subpoenaing Parties, Hannay Realty Advisors-California, LP and HRA 9th & Flower, LP; and [Proposed] Order); Filed by HRA 9th & Flower, LP (Defendant); Hannay Realty Advisors, Inc (Defendant)

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  • 06/25/2019
  • Docketat 09:00 AM in Department 56; Informal Discovery Conference (IDC) - Not Held - Taken Off Calendar by Party

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  • 06/18/2019
  • Docketat 09:00 AM in Department 56; Informal Discovery Conference (IDC) - Not Held - Taken Off Calendar by Party

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  • 06/07/2019
  • Docketat 08:30 AM in Department 56; Hearing on Motion to Compel (Motion to Compel Plaintiff's Deposition) - Not Held - Taken Off Calendar by Party

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  • 05/21/2019
  • Docketat 08:30 AM in Department 56; Hearing on Motion to Compel (Motion to Compel Plaintiff's Deposition) - Not Held - Rescheduled by Court

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  • 05/02/2019
  • Docketat 09:00 AM in Department 56; Informal Discovery Conference (IDC) - Not Held - Taken Off Calendar by Party

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  • 05/01/2019
  • Docketat 08:30 AM in Department 56; Hearing on Motion to Compel (Motion to Compel Plaintiff's Deposition) - Not Held - Rescheduled by Party

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143 More Docket Entries
  • 04/05/2018
  • DocketSTIPULATION FOR PLAINTIFF TO FILE A FIRST AMENDED COMPLAINT AND TO CONTINUE DEFENDANT'S DEADLINE TO FILE A RESPONSIVE PLEADING TO PLAINTIFFS OPERATIVE COMPLAINT

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  • 04/05/2018
  • DocketPartial Dismissal (w/o Prejudice); Filed by Dillon Conaway (Plaintiff)

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  • 03/19/2018
  • DocketAnswer; Filed by Hannay Realty Advisors, Inc (Legacy Party)

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  • 03/19/2018
  • DocketCROSS-COMPLAINT

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  • 03/19/2018
  • DocketANSWER TO COMPLAINT

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  • 03/19/2018
  • DocketCross-Complaint; Filed by HRA 9th & Flower, LP (Cross-Complainant); Hannay Realty Advisors LP-California, LP (Cross-Complainant)

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  • 03/19/2018
  • DocketSummons on Cross Complaint

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  • 02/13/2018
  • DocketSUMMONS

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  • 02/13/2018
  • DocketCOMPLAINT FOR COMPENSATORY AND PUNITIVE DAMAGES: 1. NEGLIGENCE ;ETC

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  • 02/13/2018
  • DocketComplaint; Filed by Dillon Conaway (Plaintiff)

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Tentative Rulings

Case Number: BC693723    Hearing Date: January 29, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

DILLON CONAWAY, etc.,

Plaintiff,

vs.

RALPH’S GROCERY COMPANY, etc., et al.,

Defendants.

CASE NO.: BC693723

[TENTATIVE] ORDER RE: MOTION FOR SUMMARY ADJUDICATION

Date: January 29, 2020

Time: 8:30 a.m.

Dept. 56

FSC: April 28, 2020

Jury Trial: May 4, 2020

MOVING PARTY: Defendant Ralphs Grocery Company dba Ralphs (“Moving Defendant”)

OPPOSING PARTY: Plaintiff Dillion Conaway

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

Plaintiff filed the operative Second Amended Complaint (“SAC”) that arises from an alleged deprivation of Plaintiff’s movement by security guards in a Ralphs grocery store due to Plaintiff being accused of shoplifting. The SAC alleges causes of action against Defendants for: (1) negligence; (2) negligent hiring, supervision or retention of employee; (3) intentional infliction of emotional distress; (4) false imprisonment; (5) battery; and (6) assault.

Moving Defendant filed a motion for summary adjudication on the grounds that there are no triable issues of facts on the following issue: (1) as a matter of law, Moving Defendant cannot be held liable for punitive damages to Plaintiff under the facts and circumstances of this case. Specifically, Moving Defendant asserts that: (1) it cannot be held liable for punitive damages for the acts or omissions of independent contractors; and (2) it cannot be held liable for punitive damages for inactions of the store manager on the basis of the following theories—abusive culture, inaction, managing agent, and ratification.

Plaintiff opposes Moving Defendant’s motion for summary adjudication on the grounds that: (1) Moving Defendant can be held liable for punitive damages based on its own malice or conscious disregard; and (2) Moving Defendant can be held liable for punitive damages for ratifying another’s malice or conscious disregard. Specifically, Plaintiff argues that: (1) it is undisputed that Moving Defendant enacted a corporate policy to keep “undesirables” out of its stores which despicably fostered a malicious disregard for persons defined to be mere “undesirables” and subjecting it to punitive damages; and (2) Moving Defendant’s managing agents ratified the conduct of its staff and the inside security guards’ conscious disregard of Plaintiff’s rights and safety subjecting itself to punitive damages based on their despicable acts and malicious conduct.

Preliminary Procedural Issues

Initially, the Court finds that various components of Plaintiff’s responses to Moving Defendant’s separate statement of undisputed material facts are deficient. “A properly prepared separate statement . . . can materially ease the trial court’s burden.” (Blackman v. Burrows (1987) 193 Cal.App.3d 889, 894.) A separate statement in connection with an opposition to a motion for summary adjudication must cite “the evidence that establishes the fact[]” and “must include reference to the exhibit, title, page, and line numbers.” (Cal. Rules of Court, Rule 3.1350(f)(3).) An opposition to a motion for summary adjudication must be supported with evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.) In connection with a motion for summary adjudication “[e]ach material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute sufficient ground, in the court’s discretion, for granting the motion.” (Code Civ. Proc. § 437c(b)(3).)

At numerous instances in Plaintiff’s responses to Moving Defendant’s separate statement, Plaintiff indicates that he does not dispute a material fact presented by Moving Defendant but states that the material fact presented by Moving Defendant is misleading and then proceeds to cite to evidence. Plaintiff clearly stated that he does not dispute many of Moving Defendant’s undisputed material facts and supporting evidence. Thus, the Court will not consider evidence presented in connection with the instances where Plaintiff has indicated “Undisputed, but misleading” in his separate statement. If Plaintiff wished to dispute a material fact, Plaintiff should have so indicated.

Moreover, the Court finds that Moving Defendant’s Undisputed Material Facts (“UMF”) numbers 7 through 13 are not supported with sufficient evidence because with respect to those UMF’s, Moving Defendant cites to statutory or case law and not to an exhibit or declaration. Thus, the Court will not consider those UMF’s and will not consider any of the purported evidence cited thereto as it is insufficient.

Additionally, Moving Defendant filed new evidence in support of its reply in the form of deposition transcripts from: (1) Travalle Cole; (2) Nathan Morales; and (3) Justin Backstrom. Such deposition transcripts were not filed with the moving papers and were presented to the Court for the first time in connection with the reply brief. “The general rule of motion practice . . . is that new evidence is not permitted with reply papers. This principle is most prominent in the context of summary judgment [and adjudication] motions, which is not surprising, given that it is a common evidentiary motion.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) “[T]he inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case . . . and if permitted, the other party should be given an opportunity to respond.” (Id. at 1537-1538.) “[P]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.” (Id. at 1538.) As such, the Court will not consider any new evidence that was submitted with Moving Defendant’s reply. Moving Defendant had the opportunity to present the additional, new evidence with its moving papers yet failed to do so.

DISCUSSION

California Code of Civil Procedure, Section 437c(f)(1) says that “[a] party may move for summary adjudication as to . . . one or more claims for damages. . . if the party contends that . . . there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code . . . A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, affirmative defense, a claim for damages, or an issue of duty.” “A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment.” (Davis v. Kiewit Pacific Co. (2013) 220 Cal.App.4th 358, 363.) Summary adjudication is designed “to promote and protect the administration of justice, and to expedite litigation by the elimination of needless trials.” (Wiler v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d 621, 625.) “From commencement to conclusion, the party moving for summary [adjudication] bears the burden of persuasion that there is no triable issue of material fact and that he or she is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 827-828.) “[A] defendant . . . has met his burden of showing that a cause of action has no merit if he has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff.” (Id. at 849.)

A plaintiff cannot “rely on the mere allegations or denials of his pleadings to show that a triable issue of material fact exists but, instead, must set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto.” (Id.) “The moving party must support[] the motion with evidence including affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice must or may be taken.” (Id. at 843.) The party opposing a motion for summary adjudication “must present evidence including affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice must or may be taken.” (Id.) For purposes of presenting evidence in connection with a motion for summary adjudication “if it is not set forth in the separate statement, it does not exist.” (City of Pasadena v. Superior Court (2014) 228 Cal.App.4th 1228, 1238, fn. 4.) “[O]n a motion for summary adjudication with respect to a punitive damages claim, [a] higher evidentiary standard applies.” (Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1121.) “If the plaintiff is going to prevail on a punitive damages claim, he or she can only do so by establishing malice, oppression or fraud by clear and convincing evidence. Thus, any evidence submitted in response to a motion for summary adjudication must necessarily meet that standard.” (Id.) “Under the clear and convincing standard, the evidence must be so clear as to leave no substantial doubt and sufficiently strong to command the unhesitating assent of every reasonable mind.” (Pacific Gas and Electric Company v. Superior Court (2018) 24 Cal.App.5th 1150, 1158.) “Although the clear and convincing evidentiary standard is a stringent one, it does not impose on a plaintiff the obligation to prove a case for punitive damages at summary judgment [or summary adjudication].” (Id.) “A defendant is entitled to summary adjudication if the record establishes that the plaintiff’s cause of action cannot succeed as a matter of law.” (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1507.)

Issue No.1: Acts or Omissions of Employees of Independent Contractors

Moving Defendant asserts that it cannot be held liable for punitive damages for the acts or omissions of employees of independent contractors.

In connection with punitive damages with respect to a motion for summary adjudication a high evidentiary threshold applies. (Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1121.) “If [a] plaintiff is going to prevail on a punitive damages claim, he or she can only do so by establishing malice, oppression or fraud by clear and convincing evidence. Thus, any evidence submitted in response to a motion for summary adjudication must necessarily meet that standard.” (Id. at 1122.) California Civil Code, Section 3294 authorizes the imposition of punitive damages only upon proof of malice, fraud, or oppression. California Civil Code, Section 3294(b) states that “[a]n employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advanced knowledge of the unfitness of the employee and employed him with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded.” In the context of a corporate employer being liable for punitive damages “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.”

For purposes of punitive damages, malice is “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.” (Cal. Civ. Code § 3294(c)(1).) Oppression for purposes of instituting punitive damages “means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Cal. Civ. Code § 3294(c)(2).) “Under California law, a corporate entity is incapable of engaging in willful and malicious conduct for purposes of punitive damages liability.” (Taiwan Semiconductor Manufacturing Co., Ltd. v. Tela Innovations, Inc. (2014) 2014 WL 3705350 at 6.) Where corporate policies are it issue in connection with punitive damages, a plaintiff “must nevertheless present evidence that permits a clear and convincing inference that within the corporate hierarchy authorized persons acted despicably in willful and conscious disregard of the rights and safety of others.” (Pacific Gas and Electric Company v. Superior Court (2018) 24 Cal.App.5th 1150, 1173.) “[C]orporate malice can be based on the existence of a company policy that willfully, consciously, and despicably disregards the rights and safety of others.” (Id.) Malice on behalf of a corporation can also be shown “by piecing together knowledge and acts of the corporation’s multitude of managing agents.” (Id.) Malice, however, will not be found or inferred where “a company policy [exists] that fails to protect against a known risk of harm.” (Id.) “[A] defendant’s dissimilar acts, independent from the acts upon which liability was premised, may not serve as the basis for punitive damages. A defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business.” (Id. at 1176.) A company’s failure to take preventative measures does not correlate with a conscious and willful decision to ignore or disregard a risk. (Id. at 1173.) A company that subcontracts work is valid in assuming that “contractors [are] training their employees as required.” (Id. at 1175.)

Moving Defendant’s Evidence

Moving Defendant presents the undisputed facts that: (1) no employee of Moving Defendant ever made physical contact with Plaintiff (UMF 2); (2) no employee of Moving Defendant ever threatened Plaintiff (UMF 3); (3) the security guards that are alleged to have made physical contact with and threatened Plaintiff were not employees of Moving Defendant (UMF 4); (5) the highest ranking employee at the premises at the time of the incident was a night-manager (UMF 5); and (6) Moving Defendant had a “hands off” policy when dealing with shoplifters at the time of the incident. (UMF 6.)

Moving Defendant has met its burden in showing that there is no dispute of material fact with respect to: (1) the security guards allegedly involved in the incident being employees of Moving Defendant; and (2) Moving Defendant lacking knowledge of the propensity of such guards to engage in the conduct complained of. Moving Defendant has met its burden in showing that it did not act with malice, oppression, or fraud with respect to the security personnel in which it contracted. The burden now shifts to Plaintiff to show a triable issue of material fact.

Plaintiff’s Evidence

Plaintiff presents evidence, in the form of additional undisputed facts, that: (1) Moving Defendant implemented a policy to keep all “undesireables” such as panhandlers and indigents off the property (Myer Decl., Exhibit A at ¶ 4); (2) Moving Defendant did not explain to its inside security guards what the term undesirable meant (Id., Exhibit C at 127:22-128:12); (3) Moving Defendant did not train its night manager, Rogelio Bernardo, on how to deal with the homeless population (Id., Exhibit D at 37:1-3); (4) Plaintiff was under the influence and had a needle inside his pants the night of the incident (Id., Exhibit C at 94:20-24); (5) Moving Defendant had a hands-off policy with respect to shoplifters but the store manager, Angel Herrera, was not aware of a written policy that is for the associates (Id., Exhibit E at 39:6-40:6); (6) Moving Defendant did not have a policy for store employees to follow in cases of suspected shoplifting (Id., Exhibit E at 47:17-23); (7) Moving Defendant failed to train its inside security guards on their hands-off shoplifting policy (Id., Exhibit C at 136:5-15 and 148:5-15); (8) Store 22’s night manager, Rogelio Bernardo, did not know what to do if a security guard failed to follow proper policy (Id., Exhibit D at 30:16-20); (9) Store 22 had two sets of guards—inside and outside guards—the latter of which who were supposed to stay outside the store at all times (Id., Exhibit E at 63:2-64:25); and (10) Moving Defendant hired the inside guard company—AGS—and the outside guard company, First American Professional Services, was retained by the property’s property manager, Hannay. (Id., Exhibit J at 42:1-7 and 51:7-52:22.)

Plaintiff also presents evidence that: (1) Moving Defendant had an issue with outside guards coming into the store and getting involved in security matters (Id. at Exhibit B(1)); (2) Susan Moore, who is a corporate employee of Moving Defendant, never said anything to Store 22’s manager about the issue of outside guards coming into Store 22 and becoming involved in security matters (Id., Exhibit E at 66:19-67:18); (3) the only action Moving Defendant took to address the issue of outside security guards coming inside Store 22 and becoming involved in store security issues was approximately 5 months before the incident at issue when it simply requested Hannay replace the then outside guards (Id. at Exhibit B(1)); (4) Hannay informed Moving Defendant that it would not interfere with the selection of outside guards (Id.); (5) Moving Defendant’s staff would instruct inside guard Cole (“Cole”) to stop patrons (Id., Exhibit C at 137:5-10 and 138:3-6); (5) Cole would mostly stop people who looked poor or homeless during his time working at Ralphs (Id., Exhibit C at 139:17-20 and 140:4-13); (6) on November 9, 2017, just before 2 a.m., Plaintiff entered Store 22 (Id., Exhibit C at 67:2-9); (7) store manager Angel Herrera testified that he does not want his employees to inform a guard if a person is suspected of shoplifting due to Moving Defendant being a hands-off company and not wanting guards to touch customers (Id., Exhibit E at 40:15-25); (8) the night manager instructed Cole to stop Plaintiff (Id., Exhibit C at 126:19-127:15); (9) Cole testified that he would not have stopped Plaintiff if Moving Defendant’s manager had not told him to do so (Id., Exhibit C at 127:6-15); (10) Cole testified that he had not seen Plaintiff put anything in his bag and he was relying on the night manager’s recitation that Plaintiff had been putting items inside his bag, was not supposed to be inside the store, and that Plaintiff comes into the store and steals often (Id., Exhibit C at 70:6-25); (11) Rogelio Bernardo was not aware of Plaintiff putting items in his bag (Id., Exhibit D at 95:3-17 and 127:9-17); (12) Moving Defendant’s employees told Cole to stop Plaintiff as he was walking to the doors (Id., Exhibit C at 81:2-11); and (13) an outside guard entered the store approximately five minutes before Plaintiff approached the exit doors. (Id., Exhibit C at 85:11-15.)

Plaintiff also presents evidence that: (1) an employee of Moving Defendant gave Cole keys to lock the door so that Plaintiff, that Cole knew that he was going to stop Plaintiff as Plaintiff approached the exit doors, and Cole had not seen Plaintiff do anything “out of line” (Id., Exhibit C at 77:1-17 and 81:2-11); (2) the exit doors were not supposed to be locked if a customer is present inside the store pursuant to Moving Defendant’s policy (Id., Exhibit E at 85:4-86:10); (3) three guards surrounded Plaintiff (Id., Exhibit C at 105:6-9); (4) Cole wanted Plaintiff to feel as though he was not free to leave (Id., Exhibit C at 75:21-24); (5) Cole believed that the night of the incident he was making an arrest (Id., Exhibit C at 116:16-18); (6) Cole was instructed by night manager Rogelio Bernardo to search Plaintiff’s bag (Id., Exhibit C at 107:1-5; 120:5-10; 143:15-17; 151:16-21; and 153:9-10); (7) after being detained by the guards, Plaintiff asked to leave the store (Id., Exhibit C at 106:10-17); (8) the police were not called by any of the guards or an employee of Moving Defendant (Id., Exhibit C at 115:5-11); (9) Plaintiff indicated he wanted to use the phone to call the police (Id., Exhibit C at 83:23-84:14); (10) Rogelio Bernardo testified that customers are not usually allowed to use phones at the registers but there is an exception if the customer is being assaulted and held captive (Id., Exhibit D at 150:3-11); and (11) the outside guard pushed Plaintiff into the doors, Plaintiff went through the store doors, the door was knocked off the hinge, and Plaintiff was thrown to the ground. (Id., Exhibit D at 27:24-28:4; 82:23-83:10; 91:16-18; 109:2-4, 24-25.)

Plaintiff also presents evidence that: (1) Cole was not compassionate to Plaintiff during the incident and did not report the incident because it was his first offense and he was unsure whether he had to report the incident (Id., Exhibit C at 96:13-17; 97:3-5); (2) no incident report was created by Moving Defendant (Id. at Exhibit H); (3) during the incident, two employees of Moving Defendant just watched the incident without intervening (Id., Exhibit C at 156:23-157:8); (4) after the incident, no one from Moving Defendant ever approached Cole and said he overstepped his boundaries with respect to stopping Plaintiff (Id., Exhibit C at 157:9-15); (5) Cole authored an incident report two and a half months after the incident (Id., Exhibit C at 98:23-99:14); (6) Cole testified that he did not know the difference between a fact and a conclusion (Id., Exhibit C at 104:21-23); (7) Cole did not view the incident as being extreme (Id., Exhibit C at 139:14-16); (8) no one from Moving Defendant contacted night manager Rogelio Bernardo about the incident involving Plaintiff (Id., Exhibit D at 123:13-15 and 124:1-9); and (9) no one from Moving Defendant’s corporate office ever asked Cole about the incident. (Id., Exhibit C at 123:25-124:15). Plaintiff also presents evidence that: (1) Cole was not disciplined in any manner with respect to this incident. (Id., Exhibit C at 125:1-2.)

Analysis

The Court finds that there is no dispute of material fact with respect to whether the actions of any inside or outside guard during the alleged incident in question was committed by an employee of Moving Defendant. The undisputed facts indicate that: (1) no employee of Moving Defendant ever made physical contact with Plaintiff; (2) no employee of Moving Defendant ever threatened Plaintiff; (3) the security guards that are alleged to have made physical contact with and threated Plaintiff are not employees of Moving Defendant; (4) the highest ranking employee at the time of the incident was a night manager; and (5) Moving Defendant had a “hands off” policy when dealing with shoplifters at the time of the incident. Thus, under the plain language articulated in California Code of Civil Procedure, Section 3294, Moving Defendant cannot be held liable for the actions of the security personnel of which it did not employ. Under Pacific Gas, despite the actions of the security guards, Moving Defendant is not liable for punitive damages on the basis of contractors in which it contracted with failing to comply with protocol and properly train its employees.

Therefore, the acts of the security personnel that were contracted to provide security services at the incident where Plaintiff was allegedly assaulted cannot serve as a basis for punitive damages.

Issue No. 2: Moving Defendant’s Store Managers

Moving Defendant asserts that it cannot be held liable for punitive damages based on the inaction of its store manager. Plaintiff contends that Moving Defendant’s managing agents ratified the conduct of its staff and the inside security guards’ conscious disregard of Plaintiff’s rights and safety thus subjecting itself to punitive damages based on their despicable acts and malicious conduct.

“Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive. An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees.” (Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167.) “But the law does not impute every employee’s malice to the corporation.” (Id.) “[T]he punitive damages statute requires proof of malice among corporate leaders: the officer[s], director[s], or managing agent[s].” (Id.) “This is the group whose intentions guide corporate conduct.” (Id., emphasis added.) “[T]he statute avoids punishing the corporation for malice of low-level employees which does not reflect the corporate state of mind or the intentions of corporate leaders. This assures that punishment is imposed only if the corporation can be fairly viewed as guilty of the evil intent sought to be punished.” (Id.) “Managing agents are employees who exercise substantial discretionary authority over decisions that ultimately determine corporate policy.” (Id., emphasis added.) “Corporate employer ratification may be established by any circumstantial or direct evidence demonstrating adoption or approval of the employee’s actions by the corporate agent, which may be inferred from a failure by the employer to investigate an employee’s acts once the employer becomes aware of them.” (Andrade v. Arby’s Restaurant Group, Inc. (2016) 225 F.Supp.3d 1115, 1130.) “If the employer, after knowledge of or opportunity to learn of the agent’s misconduct, continues the wrongdoer in service, the employer may become an abettor and may make himself liable in punitive damages.” (Id.) A corporation’s failure to discipline an employee is not indicative of ratification of the employee’s conduct for purposes of punitive damages. (Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 164-168.) Punitive damages are not warranted “unless defendants are guilty of despicable conduct, defined by the California Supreme Court as circumstances that are base, vile, or contemptible.” (Macias v. Hovey (2009) 2009 WL 9548219 at 2.) A defendant “may or may not be found liable [for punitive damages] based upon their inaction, but punitive damages could not be based on inaction alone. However, an inaction might be considered evidence of malice.” (Id.) Punitive damage awards are not instituted where “the defendant’s conduct was merely in bad faith and overzealous.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1212.) Punitive damages against a corporation cannot be based on the inaction of its employees. (Muniz v. United Parcel Service, Inc. (2010) 731 F.Supp.2d 961, 977.) A court may find as a matter of law that evidence is insufficient to show conduct was despicable for purposes of punitive damages. (Lackner v. North (2006) 135 Cal.App.4th 1188, 1213.)

Analysis

The Court incorporates its recitation of the evidence above and applies it here to its discussion of the inactions and actions of Moving Defendant’s store manager for purposes of punitive damages. The Court finds Moving Defendant met its burden in showing no ratification of the conduct of its store managers or any indicia of malice or oppression on behalf of its store managers based on their actions or inactions.

The Court, however, finds that Plaintiff has not met his burden in showing a triable issue of material fact with respect to ratification or inaction of store managers warranting the imposition of punitive damages—based on oppression or malice—against Moving Defendant. Plaintiff failed to present evidence that Moving Defendant’s store managers allegedly involved in the incident at issue were managing agents under Cruz with respect to those store managers determining or directing corporate, company-wide policy. The fact that Moving Defendant wished to keep undesirables out of its store via the security procedures manual from AGS does not warrant a finding of malice or oppression for purposes of punitive damages or indicate a triable issue of fact thereto. Plaintiff has not met his burden of presenting evidence in accordance with the clear and convincing evidence standard under Basich indicating malice or oppression warranting imposition of punitive damages against Moving Defendant.

Therefore, the Court finds that summary adjudication is appropriate with respect to issue number two in Moving Defendant’s motion. The Court GRANTS Moving Defendant’s request for summary adjudication as to issue number one in its motion.

Moving Defendant’s motion for summary adjudication is GRANTED in its entirety.

Moving party is ordered to give notice of this ruling.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 29th day of January 2020

Hon. Holly J. Fujie

Judge of the Superior Court