This case was last updated from Los Angeles County Superior Courts on 08/01/2022 at 13:18:51 (UTC).

KENNETH JOHNSON, AN INDIVIDUAL,, ET AL. VS SONY PICTURES TELEVISION, INC. A DELAWARE CORPORATION, ET AL.

Case Summary

On July 13, 2020, Kenneth Johnson, (“Plaintiff”), represented by Carr Scott H, filed a personal injury lawsuit against Brewer Garwood, Bernardan Paul, Sony Pictures Television Inc. A Delaware Corporation, Topanga Productions Inc. A California Corporation, Brewer Austen, Does 1-100 Inclusive, Sony Pictures Entertainment Inc. (collectively, “Defendants”), represented by Maxwell Kelsey and Voss Matthew, seeking declaratory and injunctive relief with damages, for alleged personal injury. This case was filed in the Los Angeles County Superior Court of California, with Judge Daniel M Crowley presiding.

In the complaint, the plaintiff alleged, “ At all times herein mentioned, DEFENDANTS, including DOES 1-100 each of them supervised, financed, created, managed, oversaw, operated, licensed, maintained and/or controlled the production of a television series entitled S.W.A.T.”

The plaintiff further alleged, “In 2018, and for many years prior, plaintiff, KENNETH JOHNSON, was an accomplished and experienced actor and film industry professional, starring in multiple award wining and critically acclaimed television series, such as The Shield on FX, Sons of Anarchy on FX, Saving Grace on TNT, and Secrets and Lies on ABC.”

The plaintiff further alleged, “In February of 2017, the services of Plaintiff KENNETH JOHNSON were provided to Entertainment Partners, Inc. by BDMC Productions, Inc. to provide independent contractor services to Defendants as an actor in connection with the filming of the television series S.W.A.T.”

The plaintiff also alleged, “KENNETH JOHNSON was paid by BDMC Productions, Inc. for his work and services in connection with S.W.A.T. which form the basis for the claims herein. BDMC Productions, Inc. was paid by Entertainment Partners, Inc. for the services of KENNETH JOHNSON.”

The plaintiff also alleged, “At all times prior to the SUBJECT SCENE, Plaintiff KENNETH JOHNSON was in good physical and mental condition and was a source of love, society, affection, companionship and support to his wife, Plaintiff CATHLEEN JOHNSON.

The plaintiff additionally alleged, “DEFENDANTS including DOES 1 through 100, and their agents and employees knew or should have known that the SUBJECT SCENE exposed Plaintiff KENNETH JOHNSON to an unreasonable risk of severe injury, but DEFENDANTS neither addressed, corrected, eliminated and/or mitigated any such risks, nor adequately warned and/or protected said Plaintiff of and/or from the risks and dangerous conditions at the SUBJECT SCENE.”

The plaintiff presented four claims for relief, alleging loss of consortium, peculiar risk, negligence. 

In the prayer for relief, the plaintiff requested for an award of general damages, medical expense, loss of earning capacity, and exemplary/punitive damages.

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Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******6270

  • Filing Date:

    07/13/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

DANIEL M. CROWLEY

 

Party Details

Plaintiffs

JOHNSON AN INDIVIDUAL CATHLEEN

JOHNSON AN INDIVIDUAL KENNETH

Defendants

BREWER AN INDIVIDUAL GARWOOD

BERNARD AN INDIVIDUAL PAUL

SONY PICTURES TELEVISION INC. A DELAWARE CORPORATION

TOPANGA PRODUCTIONS INC. A CALIFORNIA CORPORATION

BREWER AN INDIVIDUAL AUSTEN

DOES 1-100 INCLUSIVE

SONY PICTURES ENTERTAINMENT INC.

Attorney/Law Firm Details

Plaintiff Attorneys

CARR SCOTT H

CARR SCOTT H.

Defendant Attorneys

MAXWELL KELSEY

VOSS MATTHEW

 

Court Documents

Declaration - DECLARATION DECLARATION OF JONATHAN BOYER IN SUPPORT OF DEFENDANTS' AMENDED MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF

7/13/2022: Declaration - DECLARATION DECLARATION OF JONATHAN BOYER IN SUPPORT OF DEFENDANTS' AMENDED MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF

Separate Statement

7/13/2022: Separate Statement

Declaration - DECLARATION DECLARATION OF ADAM MOOS IN SUPPORT OF DEFENDANTS' AMENDED MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF

7/13/2022: Declaration - DECLARATION DECLARATION OF ADAM MOOS IN SUPPORT OF DEFENDANTS' AMENDED MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF

Declaration - DECLARATION DECLARATION OF RICHARD MORGAN IN SUPPORT OF DEFENDANTS' AMENDED MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF

7/13/2022: Declaration - DECLARATION DECLARATION OF RICHARD MORGAN IN SUPPORT OF DEFENDANTS' AMENDED MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF

Motion for Summary Judgment

7/13/2022: Motion for Summary Judgment

Declaration - DECLARATION DECLARATION OF MATTHEW E. VOSS IN SUPPORT OF DEFENDANTS' AMENDED MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF

7/13/2022: Declaration - DECLARATION DECLARATION OF MATTHEW E. VOSS IN SUPPORT OF DEFENDANTS' AMENDED MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF

Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))

6/2/2022: Minute Order - MINUTE ORDER (INFORMAL DISCOVERY CONFERENCE (IDC))

Informal Discovery Conference Form for Personal Injury Courts

5/13/2022: Informal Discovery Conference Form for Personal Injury Courts

Informal Discovery Conference Form for Personal Injury Courts

5/17/2022: Informal Discovery Conference Form for Personal Injury Courts

Stipulation and Order - STIPULATION AND ORDER STIPULATION TO STRIKE PORTIONS OF PLAINTIFF'S SECOND AMENDED COMPLAINT

2/9/2022: Stipulation and Order - STIPULATION AND ORDER STIPULATION TO STRIKE PORTIONS OF PLAINTIFF'S SECOND AMENDED COMPLAINT

Notice of Posting of Jury Fees

2/10/2022: Notice of Posting of Jury Fees

Answer

2/10/2022: Answer

Minute Order - MINUTE ORDER (DEFENDANTS SONY PICTURES TELEVISION AND TOPANGA PRODUCTIONS, ...)

1/19/2022: Minute Order - MINUTE ORDER (DEFENDANTS SONY PICTURES TELEVISION AND TOPANGA PRODUCTIONS, ...)

Request for Dismissal

1/11/2022: Request for Dismissal

Notice and Acknowledgment of Receipt

1/11/2022: Notice and Acknowledgment of Receipt

Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL, HEARING DATE ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND ALL DISCOVERY, MOTION AND TRIAL DEADLINES

1/18/2022: Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL, HEARING DATE ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND ALL DISCOVERY, MOTION AND TRIAL DEADLINES

Notice of Posting of Jury Fees

1/4/2022: Notice of Posting of Jury Fees

Amendment to Complaint (Fictitious/Incorrect Name)

1/3/2022: Amendment to Complaint (Fictitious/Incorrect Name)

54 More Documents Available
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Docket Entries

  • 07/10/2023
  • Hearing07/10/2023 at 08:30 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Dismissal

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  • 11/30/2022
  • Hearing11/30/2022 at 08:30 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial

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  • 11/16/2022
  • Hearing11/16/2022 at 10:00 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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  • 10/12/2022
  • Hearing10/12/2022 at 1:30 PM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 07/13/2022
  • DocketSeparate Statement; Filed by SONY PICTURES TELEVISION, INC. a Delaware Corporation (Defendant); TOPANGA PRODUCTIONS, INC. a California Corporation (Defendant); Sony Pictures Entertainment, Inc. (Defendant)

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  • 07/13/2022
  • DocketDeclaration (DECLARATION OF ADAM MOOS IN SUPPORT OF DEFENDANTS' AMENDED MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF); Filed by SONY PICTURES TELEVISION, INC. a Delaware Corporation (Defendant); TOPANGA PRODUCTIONS, INC. a California Corporation (Defendant); Sony Pictures Entertainment, Inc. (Defendant)

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  • 07/13/2022
  • DocketMotion for Summary Judgment (DEFENDANTS' AMENDED MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF); Filed by SONY PICTURES TELEVISION, INC. a Delaware Corporation (Defendant); TOPANGA PRODUCTIONS, INC. a California Corporation (Defendant); Sony Pictures Entertainment, Inc. (Defendant)

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  • 07/13/2022
  • DocketDeclaration (DECLARATION OF JONATHAN BOYER IN SUPPORT OF DEFENDANTS' AMENDED MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF); Filed by SONY PICTURES TELEVISION, INC. a Delaware Corporation (Defendant); TOPANGA PRODUCTIONS, INC. a California Corporation (Defendant); Sony Pictures Entertainment, Inc. (Defendant)

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  • 07/13/2022
  • DocketDeclaration (DECLARATION OF RICHARD MORGAN IN SUPPORT OF DEFENDANTS' AMENDED MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF); Filed by SONY PICTURES TELEVISION, INC. a Delaware Corporation (Defendant); TOPANGA PRODUCTIONS, INC. a California Corporation (Defendant); Sony Pictures Entertainment, Inc. (Defendant)

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  • 07/13/2022
  • DocketDeclaration (DECLARATION OF MATTHEW E. VOSS IN SUPPORT OF DEFENDANTS' AMENDED MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF); Filed by SONY PICTURES TELEVISION, INC. a Delaware Corporation (Defendant); TOPANGA PRODUCTIONS, INC. a California Corporation (Defendant); Sony Pictures Entertainment, Inc. (Defendant)

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64 More Docket Entries
  • 09/08/2020
  • DocketMotion to Strike (not initial pleading); Filed by SONY PICTURES TELEVISION, INC. a Delaware Corporation (Defendant); TOPANGA PRODUCTIONS, INC. a California Corporation (Defendant); PAUL BERNARD, an individual (Defendant)

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  • 09/08/2020
  • DocketDemurrer - with Motion to Strike (CCP 430.10); Filed by SONY PICTURES TELEVISION, INC. a Delaware Corporation (Defendant); TOPANGA PRODUCTIONS, INC. a California Corporation (Defendant); PAUL BERNARD, an individual (Defendant)

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  • 08/04/2020
  • DocketProof of Personal Service; Filed by KENNETH JOHNSON, an individual, (Plaintiff)

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  • 08/04/2020
  • DocketProof of Personal Service; Filed by KENNETH JOHNSON, an individual, (Plaintiff)

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  • 08/04/2020
  • DocketProof of Personal Service; Filed by KENNETH JOHNSON, an individual, (Plaintiff)

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  • 07/16/2020
  • DocketAmended Complaint ( (1st)); Filed by KENNETH JOHNSON, an individual, (Plaintiff)

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  • 07/13/2020
  • DocketSummons (on Complaint); Filed by KENNETH JOHNSON, an individual, (Plaintiff); CATHLEEN JOHNSON, an individual (Plaintiff)

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  • 07/13/2020
  • DocketCivil Case Cover Sheet; Filed by KENNETH JOHNSON, an individual, (Plaintiff); CATHLEEN JOHNSON, an individual (Plaintiff)

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  • 07/13/2020
  • DocketComplaint; Filed by KENNETH JOHNSON, an individual, (Plaintiff); CATHLEEN JOHNSON, an individual (Plaintiff)

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  • 07/13/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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Tentative Rulings

Case Number: *******6270    Hearing Date: February 02, 2021    Dept: 28

Demurrer with a Motion to Strike

Having considered the demurring, moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On July 13, 2020, Plaintiffs Kenneth Johnson (“Plaintiff”) and Cathleen Johnson filed a complaint against Defendants Sony Pictures Television, Inc. (“Sony”), Topanga Productions, Inc. (“Topanga”), Garwood Brewer (“G. Brewer”), Austen Brewer (“A. Brewer”), and Paul Bernard (“Bernard”).

On July 16, 2020, Plaintiff filed a first amended complaint (“FAC”).  Cathleen Johnson was omitted as a party and loss of consortium was not alleged.

On October 29, 2020, the Court overruled Defendants Sony, Topanga, and Bernard’s demurrer to the first cause of action, sustained the demurrer with leave to amend as to the second and third causes of action, and granted their motion to strike with leave to amend. 

On November 18, 2020, Plaintiff filed a second amended complaint (“SAC”).

On December 21, 2020, Defendants Sony, Topanga, G. Brewer, A. Brewer, and Bernard (collectively “Defendants”) filed a demurrer pursuant to California Code of Civil Procedure section 430.10 and a motion to strike pursuant to California Code of Civil Procedure section 435.

On January 20, 2021, Plaintiff filed his oppositions to the demurrer and motion to strike.

On January 26, 2021, Defendants filed their replies. 

Trial is set for January 10, 2022.

PARTIES’ REQUESTS

Defendants ask the Court to sustain their demurrer to the SAC because it does not sufficiently plead how Defendants knew of the scene would involve unreasonable or ultrahazardous risk, how they chose to ignore the risk, and how their conduct caused Plaintiff’s injuries. 

Defendants also ask the Court to grant their motion to strike portions of the SAC because Plaintiff has not stated a prima facie case to pray for punitive damages.

LEGAL STANDARD

Meet and Confer

Before filing a demurrer or motion to strike, the demurring and moving party is required to meet and confer with the party who filed the pleading demurred to or stricken, in person or telephonically, for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer and motion to strike. ; (See Code of Civ. Proc., ;; 430.41, 435.5.)

Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.  (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)  “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn, supra, 147 Cal.App.4th at p. 747.)

In the ordinary personal injury lawsuit, in which the complaint's factual recitations show plainly the connection between cause and effect, it suffices to plead causation succinctly and generally.”  (Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 78.)  

Motion to Strike

Any 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.  (Code of Civ. Proc., ; 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. ; 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)  These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ. Code, ; 3294, subd. (a).)

“Malice is defined in the statute as conduct 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.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725 [examining Civ. Code ; 3294, subd. (c)(1)].) “A conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code.  In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.)

“As amended to include [despicable], the statute plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725.)  The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid. Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation. [Citation.]” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.]  Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166 (footnote omitted).)

“[T]he imposition of punitive damages upon a corporation is based upon its own fault. It is not imposed vicariously by virtue of the fault of others.” (City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal.App.3d 31, 36.) “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceiveAn award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees. But the law does not impute every employee’s malice to the corporation. Instead, the punitive damages statute requires proof of malice among corporate leaders: the ‘officer[s], director[s], or managing agent[s].’” (Cruz v. Home Base (2000) 83 Cal.App.4th 160, 167 (citation omitted).) As to ratification, “[a] corporation cannot confirm and accept that which it does not actually know about.’” (Id. (citing College Hospital, supra, at p. 726 (for ratification sufficient to justify punitive damages against corporation, there must be proof that officers, directors, or managing agents had actual knowledge of the malicious conduct and its outrageous character).)

DISCUSSION

Meet and Confer

The Court finds that Defendants filed sufficient meet and confer declarations.  (Voss Declarations,4.)

Demurrer – Peculiar Risk

“The doctrine of peculiar risk is a judicially created exception to the common law rule that a person hiring an independent contractor to perform inherently dangerous work is generally not liable to third parties for injuries resulting from the work.”  (Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th 518, 525.) the location of the work and ‘against which a reasonable person would recognize the necessity of taking special precautions.’”  (Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 258 [citations and emphasis omitted].)  “A peculiar risk . . . is a risk which the employer should recognize as likely to arise in the course of the ordinary and usual method of the work, or the particular method which the employer knows that the contractor will adopt.”  (Ibid. [citations and quotations omitted].)  The doctrine of peculiar risk is a form of vicarious liability.  (Id. at pp. 261-262 [citation omitted].)

Plaintiff alleges the following facts in the SAC All Defendants were “the agents, servants, employees, permissive users, joint venturers, successors in interest, assigns and subsidiaries, each of the other.”  (SAC, ¶ 2.)  Sony hired Topanga as an independent contractor to oversee, manage, control, and supervise the stunt scene.  (SAC, ¶ 29.) Plaintiff was hired to simulate hanging from a helicopter landing gear above the ground.  (See SAC, ¶¶ 12-15.)  Defendants knew the simulation of hanging from a helicopter landing gear above the ground would, and did, result in a special risk of harm to Plaintiff.  (SAC, ¶ 32.)  Defendants consciously decided to not take specific safety measures to avoid the special risk of harm to Plaintiff Kenneth Johnson.  (FAC, ¶ 32-33.)  This caused Plaintiff to suffer harm.  (SAC, ¶¶ 34-37.)

Defendants argue the SAC fails to allege how Defendants knew the stunt scene would involve an unreasonable and ultrahazardous risk of harm, how they knew that the scene posed a specific risk to Plaintiff, and how they acted in conscious disregard for his safety.  (Dem. at p. 6-7.)  Defendants also argue the SAC fails to allege a causal connection between their conduct and Plaintiff’s injuries.  (Id. at p. 7.)  However, the SAC alleges Defendants hired Plaintiff to perform a high-risk stunt, controlled every aspect of the stunt scene, and ignored requests not to proceed and/or modify the safety precautions, which caused his injuries.  (SAC, ¶¶ 16, 27-32.)  “[A] plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action.”  (Youngman v. Nevada Irr. Dist. (1969) 70 Cal.2d 240, 245.)  The second cause of action in the SAC satisfies this standard.  Defendants’ desire for additional details can be satisfied in discovery.  The demurrer is properly overruled as to the second cause of action.

Demurrer – Ultrahazardous Activity

“The doctrine of ultrahazardous activity provides that one who undertakes an ultrahazardous activity is liable to every person who is injured as a proximate result of that activity, regardless of the amount of care he uses.”  (Pierce v. Pacific Gas & Electric Co. (1985) 166 Cal.App.3d 68, 85.)  Plaintiff alleges the following facts in the SAC.  The simulation of being pulled through the air while holding on to a helicopter landing gear was an ultrahazardous activity.  (SAC, ¶ 40.) e being blown by a powerful fan and wearing heavy body gear that decreased his ability to hold his weight to the bar.  (SAC, ¶ 41.)  The metal bar was thicker than Plaintiff was told it would be and was too thick for Plaintiff to grip with his hands for the duration of the scene.  (Ibid.)  Prior to the scene, the bar became too hot because it was sitting in the sun, Defendants used ice to cool it, but failed to adequately wipe off the bar.  (Ibid.)  As a result, the bar was wet and slippery.  (Ibid.)  Defendants did not use a stunt double to test the scene before Plaintiff.  (Ibid.)  Falling from a horizontal body position would expose Plaintiff to injury, even on a protective mat.  (Ibid.) 

Defendants, as with the second cause of action, argue the SAC fails to allege how they knew plaintiff could be injured, how they chose to ignore the risks, and how there is a causal connection between their conduct and Plaintiff’s injuries.  (Dem. at p. 7-8.)  As with the second cause of action, this argument lacks merit.  The SAC contains sufficient detail to allege Defendants knowledge, the ultrahazardous nature of the activity involved, and the manner in which Defendants’ conduct caused the injuries alleged.  Plaintiff provided the specificity requested by the Court in its previous demurrer ruling.  The demurrer is overruled as to the third cause of action.

Motion to Strike – Punitive Damages

The Court finds the allegations in the SAC are insufficient to assert a claim for punitive damages.  While the SAC alleges Defendants knew the stunt scene created an unreasonable risk of injury due to the nature of the scene they created  (SAC ¶¶ 22, 31, 41), and alleges Plaintiff requested Defendants not to proceed with the stunt or to increase safety precautions Defendants consciously chose not to take such precautions (SAC ¶¶ 32-33, 40), these allegations do not support Plaintiff’s claim for punitive damages.  

Plaintiff has not alleged either that Defendants intended to harm Plaintiff nor that the conduct was despicable , i.e., that it was so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. (College Hospital, Inc., supra, 8 Cal.4th at p. 725).  Accordingly, the motion to strike is granted.  

CONCLUSION

The demurrer is OVERRULED in its entirety.

The motion to strike is GRANTED; Paragraphs 38 and 50 of the Second Amended Complaint and Paragraph 7 of the prayer of the Second Amended Complaint are stricken discovery of further facts.  

Defendants shall have 20 days to answer the SAC. 

Plaintiff is ordered to give notice of this ruling.

The parties are directed to the header of this tentative ruling for further instructions.



Case Number: *******6270    Hearing Date: October 29, 2020    Dept: 28

Demurrer with a Motion to Strike

Having considered the demurring, moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On July 13, 2020, Plaintiffs Kenneth Johnson and Cathleen Johnson filed a complaint against Defendants Sony Pictures Television, Inc. (“Sony”), Topanga Productions, Inc. (“Topanga”), Garwood Brewer, Austen Brewer, and Paul Bernard (“Bernard”).  The plaintiffs alleged negligence, peculiar risk, ultrahazardous activity, and loss of consortium in the complaint.  The complaint arises from an incident where Plaintiff Kenneth Johnson was injured while acting as though he was being pulled through the air while hanging on to a landing gear of a helicopter.

On July 16, 2020, Plaintiff Kenneth Johnson filed a first amended complaint (“FAC”).  Plaintiff Cathleen Johnson is omitted as a party and loss of consortium is not alleged.

On September 8, 2020, Defendants Sony, Topanga, and Bernard filed a demurrer pursuant to California Code of Civil Procedure section 430.10 and a motion to strike pursuant to California Code of Civil Procedure section 435.

Trial is set for January 10, 2022.

PARTY’S REQUESTS

Defendants Sony, Topanga, and Bernard ask the Court to sustain their demurrer to the FAC because: (1) Plaintiff Kenneth Johnson has not stated sufficient facts to allege a cause of action for negligence, (2) Plaintiff Kenneth Johnson’s peculiar risk cause of action is inapplicable because there is no allegation that Plaintiff Kenneth Johnson was hired as an independent contractor, and (3) Plaintiff Kenneth Johnson has not alleged facts showing Defendants Sony, Topanga, and Bernard were engaged in ultrahazardous activities.

Defendants Sony, Topanga, and Bernard also ask the Court to grant their motion to strike portions of the FAC because Plaintiff Kenneth Johnson has not stated a prima facie case to pray for punitive damages.

LEGAL STANDARD

Meet and Confer

Before filing a demurrer or motion to strike, the demurring and moving party is required to meet and confer with the party who filed the pleading demurred to or stricken, in person or telephonically, for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer and motion to strike. ; (See Code of Civ. Proc. ;; 430.41, 435.5.)

Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.  (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)  “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn, supra, 147 Cal.App.4th at p. 747.)

Motion to Strike

Any 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.  (Code of Civ. Proc. ; 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. ; 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)  These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ. Code ; 3294, subd. (a).)

“Malice is defined in the statute as conduct 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.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725 [examining Civ. Code ; 3294, subd. (c)(1)].) “A conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code.  In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.)

“As amended to include [despicable], the statute plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725.)  The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid. Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation. [Citation.]” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.]  Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166 (footnote omitted).)

“[T]he imposition of punitive damages upon a corporation is based upon its own fault. It is not imposed vicariously by virtue of the fault of others.” (City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal.App.3d 31, 36.) “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceiveAn award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees. But the law does not impute every employee’s malice to the corporation. Instead, the punitive damages statute requires proof of malice among corporate leaders: the ‘officer[s], director[s], or managing agent[s].’” (Cruz v. Home Base (2000) 83 Cal.App.4th 160, 167 (citation omitted).) As to ratification, “[a] corporation cannot confirm and accept that which it does not actually know about.’” (Id. (citing College Hospital, supra, at p. 726 (for ratification sufficient to justify punitive damages against corporation, there must be proof that officers, directors, or managing agents had actual knowledge of the malicious conduct and its outrageous character).)

DISCUSSION

Meet and Confer

The Court finds that Defendants Sony, Topanga, and Bernard filed sufficient meet and confer declarations.  (Voss Declarations,4.)

Demurrer – Negligence 

The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. ; (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) ;

“Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and . . . the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) However, there is no requirement that plaintiff identify and allege the precise moment of the injury or the exact nature of the wrongful act. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

The FAC alleges the following.  On July 18, 2018, Plaintiff Kenneth Johnson was on set and involved in filming a scene for S.W.A.T. in which Plaintiff Kenneth Johnson was to simulate being pulled through the air while hanging on to the landing gear of a helicopter.  (FAC, ¶ 15.)  Defendants Sony, Topanga, and Bernard controlled, directed, managed, supervised, and had authority over the creation, planning, management, preparation, and safety precautions and measures of the scene.  (FAC, 16.)  Defendants Sony, Topanga, and Bernard knew or should have known the scene exposed Plaintiff Kenneth Johnson to an unreasonable risk of severe injury, but Defendants Sony, Topanga, and Bernard did not prevent this exposure.  (FAC, 22.)  As a result, Plaintiff sustained injuries.  (FAC, 23.)

The Court finds Plaintiff Kenneth Johnson has alleged sufficient facts to state a cause of action for negligence against Defendants Sony, Topanga, and Bernard.  Plaintiff Kenneth Johnson has alleged that Defendants Sony’s, Topanga’s, and Bernard’s negligent creation, planning, management, preparation, and safety precautions and measures of the scene caused Plaintiff Kenneth Johnson’s injuries.  This is sufficient to state a cause of action for negligence.  Accordingly, the demurrer is overruled as to Plaintiff Kenneth Johnson’s negligence cause of action.

Demurrer – Peculiar Risk

“The doctrine of peculiar risk is a judicially created exception to the common law rule that a person hiring an independent contractor to perform inherently dangerous work is generally not liable to third parties for injuries resulting from the work.”  (Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th 518, 525.) Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 258 [citations and emphasis omitted].)  “A peculiar risk . . . is a risk which the employer should recognize as likely to arise in the course of the ordinary and usual method of the work, or the particular method which the employer knows that the contractor will adopt.”  (Ibid. [citations and quotations omitted].)  The doctrine of peculiar risk is a form of vicarious liability.  (Id. at pp. 261-262 [citation omitted].)

Plaintiff Kenneth Johnson alleges the following facts in the FACDefendants Sony, Topanga, and Bernard hired each other as employees or independent contractors.  (FAC, 2.)  The peculiar risk Defendants Sony, Topanga, and Bernard subjected Plaintiff Kenneth Johnson to is based on Defendants Sony’s, Topanga’s, and Bernard’s negligence.  (See FAC, ¶¶ 26-27.)  Plaintiff Kenneth Johnson was hired to simulate hanging from a helicopter landing gear above the ground.  (See FAC, ¶¶ 12-15.)  Defendants Sony, Topanga, and Bernard knew the simulation of hanging from a helicopter landing gear above the ground would, and did, result in a special risk of harm to Plaintiff Kenneth Johnson.  (FAC, 29.)  Defendants Sony, Topanga, and Bernard consciously decided to not take specific safety measures to avoid the special risk of harm to Plaintiff Kenneth Johnson.  (FAC, 30.)  This caused Plaintiff to suffer harm.  (FAC, ¶¶ 31-34.)

The Court finds sufficient facts have been stated to allege liability against Defendants Sony, Topanga, and Bernard based on the peculiar risk doctrine.  When read in context, the allegations in the complaint show Defendants Sony, Topanga, and Bernard hired each other as independent contractors.  Also, Plaintiff Kenneth Johnson was hired by either Defendants Sony, Topanga, or Bernard to simulate hanging from a helicopter landing gear.  As such, the peculiar risk doctrine is applicable.

Defendants Sony, Topanga, and Bernard do not present authority stating the pleading standard for alleging liability based on the peculiar risk doctrine requires Plaintiff Kenneth Johnson to state he was hired as an independent contractor.  Rather, Plaintiff Kenneth Johnson may make inconsistent or alternative allegations.  (See Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402.) and in context, the allegations show Plaintiff Kenneth Johnson was hired either as an employee or an independent contractor.  (See FAC, ¶¶ 12-15.)  Thus, the demurrer must be overruled as to Plaintiff Kenneth Johnson’s cause of action based on the doctrine of peculiar risk.

Demurrer – Ultrahazardous Activity

“The doctrine of ultrahazardous activity provides that one who undertakes an ultrahazardous activity is liable to every person who is injured as a proximate result of that activity, regardless of the amount of care he uses.”  (Pierce v. Pacific Gas & Electric Co. (1985) 166 Cal.App.3d 68, 85.)  The determination of whether an activity is considered ultrahazardous requires a judge to analyze six fact intensive factors.  (See Edwards v. Post Transportation Co. (1991) 2228 Cal.App.3d 980, 983-984.)  “[T]he issue of whether an activity is ultrahazardous cannot be decided on demurrer.”  (SKF Farms, supra, 153 Cal.App.3d at p. 906.)

Plaintiff Kenneth Johnson alleges the following facts in the FAC.  The simulation of being pulled through the air while holding on to a helicopter landing gear was an ultrahazardous activity.  (FAC, 37.)  Defendants Sony, Topanga, and Bernard consciously decided to not make the scene safe despite having control, direction, management, supervision, and authority over the scene.  (FAC, ¶¶ 16, 36-39.)  This caused Plaintiff Kenneth Johnson to be injured.  (Ibid.)

The Court finds sufficient facts have been alleged to state a cause of action for strict liability based on Defendants Sony’s, Topanga’s, and Bernard’s engagement in an ultrahazardous activity.  Defendants Sony, Topanga, and Bernard do not present authority stating Plaintiff Kenneth Johnson has to plead specific facts as to causation.  Accordingly, the demurrer must be overruled as to Plaintiff Kenneth Johnson’s ultrahazardous activity cause of action.

Motion to Strike – Punitive Damages

The Court finds sufficient facts have been alleged to pray for punitive damages against Defendant BernardDefendant Bernard controlled the scene and understood that Plaintiff Kenneth Johnson would be propelled in the air simulating the incredibly dangerous act of hanging from a helicopter landing gear.  Defendant Bernard consciously decided to not provide adequate safety precautions to prevent Plaintiff Kenneth Johnson from being injured.  These allegations show Defendant Bernard as aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences in causing injuries to Plaintiff Kenneth Johnson.  Such conduct, considering the high probability of substantial injuries from being propelled in the air, is despicable.

However, Plaintiff Kenneth Johnson has not alleged malice among Defendants Sony’s or Topanga’s corporate leaders.  These corporate entities can only be liable for punitive damages based on the conduct of their corporate leaders.  As such, punitive damages are properly struck against Defendants Sony and Topanga.

CONCLUSION

The demurrer is OVERRULED.

The motion to strike is GRANTED as to Defendant Bernard.

The motion to strike is DENIED as to Defendants Sony and Topanga.

Plaintiff Kenneth Johnson’s prayer for punitive damages against Defendant Bernard in paragraph 7 of the prayer is STRIKEN.

Plaintiff Kenneth Johnson may file a second amended complaint with twenty days’ of this ruling.

Defendants Sony, Topanga, and Bernard are ordered to give notice of this ruling.

The parties are directed to the header of this tentative ruling for further instructions.



Case Number: *******6270    Hearing Date: October 28, 2020    Dept: 28

Demurrer with a Motion to Strike

Having considered the demurring, moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On July 13, 2020, Plaintiffs Kenneth Johnson and Cathleen Johnson filed a complaint against Defendants Sony Pictures Television, Inc. (“Sony”), Topanga Productions, Inc. (“Topanga”), Garwood Brewer, Austen Brewer, and Paul Bernard (“Bernard”).  The plaintiffs alleged negligence, peculiar risk, ultrahazardous activity, and loss of consortium in the complaint.  The complaint arises from an incident where Plaintiff Kenneth Johnson was injured while acting as though he was being pulled through the air while hanging on to a landing gear of a helicopter.

On July 16, 2020, Plaintiff Kenneth Johnson filed a first amended complaint (“FAC”).  Plaintiff Cathleen Johnson is omitted as a party and loss of consortium is not alleged.

On September 8, 2020, Defendants Sony, Topanga, and Bernard filed a demurrer pursuant to California Code of Civil Procedure section 430.10 and a motion to strike pursuant to California Code of Civil Procedure section 435.

Trial is set for January 10, 2022.

PARTY’S REQUESTS

Defendants Sony, Topanga, and Bernard ask the Court to sustain their demurrer to the FAC because: (1) Plaintiff Kenneth Johnson has not stated sufficient facts to allege a cause of action for negligence, (2) Plaintiff Kenneth Johnson’s peculiar risk cause of action is inapplicable because there is no allegation that Plaintiff Kenneth Johnson was hired as an independent contractor, and (3) Plaintiff Kenneth Johnson has not alleged facts showing Defendants Sony, Topanga, and Bernard were engaged in ultrahazardous activities.

Defendants Sony, Topanga, and Bernard also ask the Court to grant their motion to strike portions of the FAC because Plaintiff Kenneth Johnson has not stated a prima facie case to pray for punitive damages.

LEGAL STANDARD

Meet and Confer

Before filing a demurrer or motion to strike, the demurring and moving party is required to meet and confer with the party who filed the pleading demurred to or stricken, in person or telephonically, for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer and motion to strike. ; (See Code of Civ. Proc. ;; 430.41, 435.5.)

Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.  (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)  “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn, supra, 147 Cal.App.4th at p. 747.)

Motion to Strike

Any 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.  (Code of Civ. Proc. ; 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. ; 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)  These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ. Code ; 3294, subd. (a).)

“Malice is defined in the statute as conduct 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.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725 [examining Civ. Code ; 3294, subd. (c)(1)].) “A conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code.  In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.)

“As amended to include [despicable], the statute plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725.)  The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid. Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation. [Citation.]” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.]  Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166 (footnote omitted).)

“[T]he imposition of punitive damages upon a corporation is based upon its own fault. It is not imposed vicariously by virtue of the fault of others.” (City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal.App.3d 31, 36.) “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceiveAn award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees. But the law does not impute every employee’s malice to the corporation. Instead, the punitive damages statute requires proof of malice among corporate leaders: the ‘officer[s], director[s], or managing agent[s].’” (Cruz v. Home Base (2000) 83 Cal.App.4th 160, 167 (citation omitted).) As to ratification, “[a] corporation cannot confirm and accept that which it does not actually know about.’” (Id. (citing College Hospital, supra, at p. 726 (for ratification sufficient to justify punitive damages against corporation, there must be proof that officers, directors, or managing agents had actual knowledge of the malicious conduct and its outrageous character).)

DISCUSSION

Meet and Confer

The Court finds that Defendants Sony, Topanga, and Bernard filed sufficient meet and confer declarations.  (Voss Declarations,4.)

Demurrer – Negligence 

The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. ; (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) ;

“Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and . . . the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) However, there is no requirement that plaintiff identify and allege the precise moment of the injury or the exact nature of the wrongful act. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

The FAC alleges the following.  On July 18, 2018, Plaintiff Kenneth Johnson was on set and involved in filming a scene for S.W.A.T. in which Plaintiff Kenneth Johnson was to simulate being pulled through the air while hanging on to the landing gear of a helicopter.  (FAC, ¶ 15.)  Defendants Sony, Topanga, and Bernard controlled, directed, managed, supervised, and had authority over the creation, planning, management, preparation, and safety precautions and measures of the scene.  (FAC, 16.)  Defendants Sony, Topanga, and Bernard knew or should have known the scene exposed Plaintiff Kenneth Johnson to an unreasonable risk of severe injury, but Defendants Sony, Topanga, and Bernard did not prevent this exposure.  (FAC, 22.)  As a result, Plaintiff sustained injuries.  (FAC, 23.)

The Court finds Plaintiff Kenneth Johnson has alleged sufficient facts to state a cause of action for negligence against Defendants Sony, Topanga, and Bernard.  Plaintiff Kenneth Johnson has alleged that Defendants Sony’s, Topanga’s, and Bernard’s negligent creation, planning, management, preparation, and safety precautions and measures of the scene caused Plaintiff Kenneth Johnson’s injuries.  This is sufficient to state a cause of action for negligence.  Accordingly, the demurrer is overruled as to Plaintiff Kenneth Johnson’s negligence cause of action.

Demurrer – Peculiar Risk

“The doctrine of peculiar risk is a judicially created exception to the common law rule that a person hiring an independent contractor to perform inherently dangerous work is generally not liable to third parties for injuries resulting from the work.”  (Tverberg v. Fillner Construction, Inc. (2010) 49 Cal.4th 518, 525.) Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 258 [citations and emphasis omitted].)  “A peculiar risk . . . is a risk which the employer should recognize as likely to arise in the course of the ordinary and usual method of the work, or the particular method which the employer knows that the contractor will adopt.”  (Ibid. [citations and quotations omitted].)  The doctrine of peculiar risk is a form of vicarious liability.  (Id. at pp. 261-262 [citation omitted].)

Plaintiff Kenneth Johnson alleges the following facts in the FACDefendants Sony, Topanga, and Bernard hired each other as employees or independent contractors.  (FAC, 2.)  The peculiar risk Defendants Sony, Topanga, and Bernard subjected Plaintiff Kenneth Johnson to is based on Defendants Sony’s, Topanga’s, and Bernard’s negligence.  (See FAC, ¶¶ 26-27.)  Plaintiff Kenneth Johnson was hired to simulate hanging from a helicopter landing gear above the ground.  (See FAC, ¶¶ 12-15.)  Defendants Sony, Topanga, and Bernard knew the simulation of hanging from a helicopter landing gear above the ground would, and did, result in a special risk of harm to Plaintiff Kenneth Johnson.  (FAC, 29.)  Defendants Sony, Topanga, and Bernard consciously decided to not take specific safety measures to avoid the special risk of harm to Plaintiff Kenneth Johnson.  (FAC, 30.)  This caused Plaintiff to suffer harm.  (FAC, ¶¶ 31-34.)

The Court finds sufficient facts have been stated to allege liability against Defendants Sony, Topanga, and Bernard based on the peculiar risk doctrine.  When read in context, the allegations in the complaint show Defendants Sony, Topanga, and Bernard hired each other as independent contractors.  Also, Plaintiff Kenneth Johnson was hired by either Defendants Sony, Topanga, or Bernard to simulate hanging from a helicopter landing gear.  As such, the peculiar risk doctrine is applicable.

Defendants Sony, Topanga, and Bernard do not present authority stating the pleading standard for alleging liability based on the peculiar risk doctrine requires Plaintiff Kenneth Johnson to state he was hired as an independent contractor.  Rather, Plaintiff Kenneth Johnson may make inconsistent or alternative allegations.  (See Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402.) and in context, the allegations show Plaintiff Kenneth Johnson was hired either as an employee or an independent contractor.  (See FAC, ¶¶ 12-15.)  Thus, the demurrer must be overruled as to Plaintiff Kenneth Johnson’s cause of action based on the doctrine of peculiar risk.

Demurrer – Ultrahazardous Activity

“The doctrine of ultrahazardous activity provides that one who undertakes an ultrahazardous activity is liable to every person who is injured as a proximate result of that activity, regardless of the amount of care he uses.”  (Pierce v. Pacific Gas & Electric Co. (1985) 166 Cal.App.3d 68, 85.)  The determination of whether an activity is considered ultrahazardous requires a judge to analyze six fact intensive factors.  (See Edwards v. Post Transportation Co. (1991) 2228 Cal.App.3d 980, 983-984.)  “[T]he issue of whether an activity is ultrahazardous cannot be decided on demurrer.”  (SKF Farms, supra, 153 Cal.App.3d at p. 906.)

Plaintiff Kenneth Johnson alleges the following facts in the FAC.  The simulation of being pulled through the air while holding on to a helicopter landing gear was an ultrahazardous activity.  (FAC, 37.)  Defendants Sony, Topanga, and Bernard consciously decided to not make the scene safe despite having control, direction, management, supervision, and authority over the scene.  (FAC, ¶¶ 16, 36-39.)  This caused Plaintiff Kenneth Johnson to be injured.  (Ibid.)

The Court finds sufficient facts have been alleged to state a cause of action for strict liability based on Defendants Sony’s, Topanga’s, and Bernard’s engagement in an ultrahazardous activity.  Defendants Sony, Topanga, and Bernard do not present authority stating Plaintiff Kenneth Johnson has to plead specific facts as to causation.  Accordingly, the demurrer must be overruled as to Plaintiff Kenneth Johnson’s ultrahazardous activity cause of action.

Motion to Strike – Punitive Damages

The Court finds sufficient facts have been alleged to pray for punitive damages against Defendant BernardDefendant Bernard controlled the scene and understood that Plaintiff Kenneth Johnson would be propelled in the air simulating the incredibly dangerous act of hanging from a helicopter landing gear.  Defendant Bernard consciously decided to not provide adequate safety precautions to prevent Plaintiff Kenneth Johnson from being injured.  These allegations show Defendant Bernard as aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences in causing injuries to Plaintiff Kenneth Johnson.  Such conduct, considering the high probability of substantial injuries from being propelled in the air, is despicable.

However, Plaintiff Kenneth Johnson has not alleged malice among Defendants Sony’s or Topanga’s corporate leaders.  These corporate entities can only be liable for punitive damages based on the conduct of their corporate leaders.  As such, punitive damages are properly struck against Defendants Sony and Topanga.

CONCLUSION

The demurrer is OVERRULED.

The motion to strike is GRANTED as to Defendant Bernard.

The motion to strike is DENIED as to Defendants Sony and Topanga.

Plaintiff Kenneth Johnson’s prayer for punitive damages against Defendant Bernard in paragraph 7 of the prayer is STRIKEN.

Plaintiff Kenneth Johnson may file a second amended complaint with twenty days’ of this ruling.

Defendants Sony, Topanga, and Bernard are ordered to give notice of this ruling.

The parties are directed to the header of this tentative ruling for further instructions.



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