Pending - Other Pending
Personal Injury - Motor Vehicle
DANIEL M. CROWLEY
THERESA M. TRABER
CHRISTOPHER K. LUI
WILSHON NICOLETTE BIRDSONG
WILSON CEDRIC LAMONT
JOHNSON DAVID WAYNE
COMBINED TRANSPORT INC
PURCELL BYRON MICHAEL
DUBRAWSKI PETER ANDREW
5/9/2022: Motion in Limine - MOTION IN LIMINE NO. 11 TO EXCLUDE IMPROPER LAY OPINIONS AND CONCLUSIONS
5/9/2022: Motion in Limine - MOTION IN LIMINE NO. 10 TO EXCLUDE TESTIMONY, EVIDENCE OR OPINIONS REGARDING THE LIABILITY OF COMBINED TRANSPORT, INC.
5/9/2022: Motion in Limine - MOTION IN LIMINE NO. 14 TO EXCLUDE PLAINTIFF CEDRIC WILSON'S LOSS OF CONSORTIUM CLAIM
5/9/2022: Motion in Limine - MOTION IN LIMINE NO. 6 TO EXCLUDE THE CUMULATIVE TESTIMONY OF PLAINTIFF'S RETAINED EXPERT WITNESSES
5/9/2022: Motion in Limine - MOTION IN LIMINE TO EXCLUDE PLAINTIFF'S RETAINED EXPERT LEW GRILL
5/9/2022: Motion in Limine - MOTION IN LIMINE NO. 4 PRECLUDING PLAINTIFF'S RETAINED EXPERTS FROM OFFERING ANY OPINIONS NOT TESTIFIED TO IN DEPOSITION
5/9/2022: Motion in Limine - MOTION IN LIMINE NO. 3 TO LIMIT PLAINTIFF NICOLETTE BIRDSONG WILSON'S MEDICAL DAMAGES
5/9/2022: Motion in Limine - MOTION IN LIMINE NO. 15 TO EXCLUDE EVIDENCE OF WEALTH OR FINANCIAL CONDITION
5/9/2022: Motion in Limine - MOTION IN LIMINE NO. 9 TO EXCLUDE TESTIMONY, EVIDENCE, OR OPINIONS REGARDING LIABILITY OF DAVID WAYNE JOHNSON
5/9/2022: Motion in Limine - MOTION IN LIMINE NO. 7 TO PRECLUDE ANY EVIDENCE OF INDEPENDENT THEORIES OF LIABILITY AGAINST COMBINED TRANSPORT, INC.
5/9/2022: Motion in Limine - MOTION IN LIMINE NO. 13 TO EXCLUDE ALL WITNESSES EVIDENCE OR CONTENTIONS NOT IDENTIFIED IN DISCOVERY
5/9/2022: Motion in Limine - MOTION IN LIMINE NO. 2 TO PRECLUDE THE USE OF THE REPTILE THEORY
5/9/2022: Motion in Limine - MOTION IN LIMINE NO. 1 TO PRECLUDE REFERENCE TO DEFENDANTS' LIABILITY INSURANCE
5/9/2022: Motion in Limine - MOTION IN LIMINE NO. 12 TO EXCLUDE STATEMENTS MADE AS PART OF EFFORT TO COMPROMISE OR RESOLVE CLAIMS
5/9/2022: Motion in Limine - MOTION IN LIMINE NO. 5 TO EXCLUDE CUMULATIVE TESTIMONY
5/18/2022: Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)
8/12/2022: Motion in Limine - MOTION IN LIMINE NO. 9 EXCLUDE TESTIMONY EVIDENCE OR OPINIONS RE LIABILITY OF DEFENDANT DAVID WAYNE JOHNSON
8/12/2022: Motion in Limine - MOTION IN LIMINE NO. 8 TO EXCLUDE PLAINTIFFS' RETAINED EXPERT LEW GRILL
Hearing01/12/2023 at 08:30 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial[+] Read More [-] Read Less
Hearing12/29/2022 at 10:00 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference[+] Read More [-] Read Less
Docketat 08:30 AM in Department 28; Jury Trial - Not Held - Advanced and Continued - by Court[+] Read More [-] Read Less
DocketNotice of Ruling; Filed by COMBINED TRANSPORT, INC (Defendant); DAVID WAYNE JOHNSON (Defendant)[+] Read More [-] Read Less
Docketat 10:00 AM in Department 28, Daniel M. Crowley, Presiding; Final Status Conference - Held - Continued[+] Read More [-] Read Less
Docketat 08:30 AM in Department 28; Hearing on Ex Parte Application (for an Order Excluding all Witnesses and Exhibits Disclosed After Deadline to File Trial Documents or Continue Trial) - Held - Motion Granted[+] Read More [-] Read Less
DocketMinute Order ( (Final Status Conference; Defendants David Wayne Johnson and C...)); Filed by Clerk[+] Read More [-] Read Less
DocketMotion in Limine (PLAINTIFFS MOTION IN LIMINE NO. 7 TO EXCLUDE EVIDENCE, MENTION OR ARGUMENT THAT PLAINTIFF HAD MEDICAL INSURANCE; DECLARATION OF JULIO C. NAVARRO); Filed by NICOLETTE BIRDSONG WILSHON (Plaintiff); CEDRIC LAMONT WILSON (Plaintiff)[+] Read More [-] Read Less
DocketMotion in Limine (PLAINTIFFS MOTION IN LIMINE NO. 6 TO EXCLUDE THE TRAFFIC COLLISION REPORT FROM EVIDENCE; DECLARATION OF JULIO C. NAVARRO); Filed by NICOLETTE BIRDSONG WILSHON (Plaintiff); CEDRIC LAMONT WILSON (Plaintiff)[+] Read More [-] Read Less
DocketOpposition (PLAINTIFFS RESPONSE TO DEFENDANTS EX PARTE APPLICATION FOR AN ORDER TO CONTINUE TRIAL; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JULIO C. NAVARRO); Filed by NICOLETTE BIRDSONG WILSHON (Plaintiff); CEDRIC LAMONT WILSON (Plaintiff)[+] Read More [-] Read Less
DocketCIVIL DEPOSIT[+] Read More [-] Read Less
DocketAnswer; Filed by DAVID WAYNE JOHNSON (Defendant); COMBINED TRANSPORT, INC (Defendant)[+] Read More [-] Read Less
DocketANSWER OF DEFENDANT DAVID WAYNE JOHNSON TO PLAINTIFFS' COMPLAINT[+] Read More [-] Read Less
DocketANSWER OF DEFENDANT COMBINED TRANSPORT, INC. TO PLAINTIFFS' COMPLAINT[+] Read More [-] Read Less
DocketAnswer; Filed by Defendant/Respondent[+] Read More [-] Read Less
DocketPROOF OF SERVICE SUMMONS[+] Read More [-] Read Less
DocketProof-Service/Summons; Filed by Plaintiff/Petitioner[+] Read More [-] Read Less
DocketSUMMONS[+] Read More [-] Read Less
DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)[+] Read More [-] Read Less
DocketComplaint; Filed by NICOLETTE BIRDSONG WILSHON (Plaintiff); CEDRIC LAMONT WILSON (Plaintiff)[+] Read More [-] Read Less
Case Number: ****6306 Hearing Date: April 26, 2022 Dept: 28
Motion for Summary Adjudication
Having considered the moving, opposition, and reply papers the Court rules as follows.
On September 19, 2017, Plaintiffs Nicolette Birdsong Wilson (“Nicolette”) and Cedrice Lamont Wilson (“Cedric”) against Defendants David Wayne Johnson (“Johnson”) and Combined Transport Inc. (“CT”) for motor vehicle, general negligence, and loss of consortium.
On October 26, 2017, CT filed its answer. On April 16, 2018, Johnson filed his answer.
On April 12, 2021, Plaintiffs filed the First Amended Complaint for motor vehicle negligence, general negligence, negligent supervision, negligence per se via the violation of 4 Title 49 sections, and loss of consortium. On May 12, 2021, Defendants filed their answer.
On December 10, 2021, Defendants filed a Motion for Summary Adjudication to be heard on April 26, 2022. On April 8, 2022, Plaintiffs filed an opposition. On April 15, 2022, Defendants filed a reply.
Trial is currently set for June 1, 2022.
Defendants request the Court grant Summary Adjudication, in their favor, on the following causes of action: third cause of action for negligent supervision, fourth cause of action for negligence per se – violation of 49 C.F.R. 385.5, fifth cause of action for negligence per se – violation of 49 C.F.R. 392.3, sixth cause of action for negligence per se – violation of 49 C.F.R. 395.8(k), and seventh cause of action for negligence per se – violation of 49 C.F.R. 396.11. This request is made on the basis that these causes of action allege theories of liability against CT other than vicarious liability for the actions of employee Johnson; as CT has already admitted vicarious liability for Johnson’s acts, these are precluded by common law.
Plaintiffs request the Court deny Defendants’ request.
The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)
As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)
Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)
If a defendant employer admits vicarious liability for any negligent driving by an employee, a Plaintiff cannot still pursue a negligent entrustment claim. (Diaz v. Carcamo (2011) 51 Cal. 4th 1148, 1152.) Admission of vicarious liability removes the legal issue of establishing vicarious liability from the case. (Id. at 1155.)
“No matter how negligent an employer was in entrusting a vehicle to an employee, however, it is only if the employee then drove negligently that the employer can be liable for negligent entrustment, hiring, or retention. If the employee did not drive negligently, and thus is zero percent at fault, then the employer's share of fault is zero percent. That is true even if the employer entrusted its vehicle to an employee whom it knew, or should have known, to be a habitually careless driver with a history of accidents.” (Id. at 1159-1160.)
Plaintiffs allege that Johnson’s tractor-trailer, while employed by CT, contacted Plaintiff’s vehicle from the rear, resulting in damages. Parties stipulated that Johnson is liable for the subject incident, and that CT is vicariously liable for Johnson’s actions at the time of the incident. (UMF 6.) The issue of CT’s vicarious liability is settled. Thus, any claims made for purposes of establishing vicarious liability should be dismissed.
Plaintiffs’ third through seventh causes of action are all alternative methods of independently establishing CT’s liability. These involve negligent supervision, below-standard safety management controls, allowance of a fatigued driver to operate a commercial vehicle, failing to maintain a record of an operator’s duty status, and failure to require inspection reports, respectively.
In identifying whether the Diaz ruling should apply to these causes of action, the Court applies the following logic. In Diaz, the deciding factor as to whether an admission of vicarious liability should bar additional causes of action was not limited to whether a cause of action imposed vicarious or direct liability on the defendant employer. Instead, it was based upon whether the cause of action could have been brought if not for the defendant driver’s own negligence, intertwining the two under Prop 51.
Here, all of the identified causes of action are only actionable due to the defendant driver Johnson’s own alleged negligence. Had the crash never occurred, there would be no causation or damages for Plaintiffs’ claim. As such, the Court finds that the Diaz ruling applies to all identified causes of action. As such, CT’s stipulated vicarious liability should provide a basis for summary adjudication as to the third through seventh causes of action.
Plaintiffs argue that Diaz does not apply to eliminating an employer’s liability for their own willful and wanton conduct, and thus these causes of action should not be dismissed. However, as discussed above, these causes of action are clearly intertwined with Johnson’s alleged negligence. Plaintiffs would have no basis for their claims without said alleged negligence. As such, the Court grants the motion.
Defendants David Wayne Johnon and Combined Transport, Inc.’s Motion for Summary Adjudication as to the Third through Seventh Causes of Action is GRANTED.
Moving party is ordered to give notice of this ruling.
Moving Party is ordered to file the proof of service of this ruling with the Court within five days.
The parties are directed to the header of this tentative ruling for further instructions.
Case Number: ****6306 Hearing Date: April 14, 2022 Dept: 28
The Court wants to know whether there was an Informal Discovery Conference held concerning the subject discovery motion. The Court also wants Plaintiff's counsel to address the timing of the instant motion relative to the discovery and law and motion cut offs in effect in this matter.
Case Number: ****6306 Hearing Date: March 30, 2022 Dept: 28
The motion to compel further responses to discovery is denied. The motion was filed after the discovery cut-off. The last day to bring a motion to compel in this matter was 11/23 (Code of Civ. Proc. section 2024.020.) The motion was filed 12/1.
Case Number: ****6306 Hearing Date: November 23, 2021 Dept: 28
Defendants Combined Transport, Inc. and David Wayne Johnson’s Motion to be Continue Trial and Related Dates
Having reviewed the motion and Opposition, the Court rules as follows.
On September 19, 2017, Plaintiffs Nicolette Birdsong Wilson and Cedric Lamont Wilson (“Plaintiffs”) filed a Complaint against Defendants David Wayne Johnson; Combined Transport, Inc.; and DOES 1 – 100, inclusive (collectively, “Defendants”), alleging 3 causes of action arising from a motor vehicle collision that occurred on June 23, 2016.
On April 12, 2021, Plaintiffs filed a First Amended Complaint alleging 8 causes of action against the same Defendants for the same conduct.
On October 27, 2021, Defendants filed this instant motion to continue trial and related dates.
On November 9, 2021, Plaintiffs filed an Opposition.
Trial is set for December 8, 2021.
Defendants request the Court continue the trial date to August 10, 2022, on the basis that Plaintiffs filed a First Amended Complaint on April 12, 2021, for which additional discovery is needed. Defendants also contend that additional time is needed to bring a motion for summary adjudication, and that failing to continue the matter will result in prejudice against Defendants.
CRC 3.1332(b) provides, as follows: “A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.”
CRC 3.1332(c) provides, in pertinent part, as follows: “Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance.”
CRC 3.1332(d) provides, as follows:
In ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination. These may include:
(1) ; The proximity of the trial date; (2) ; Whether there was any previous continuance, extension of time, or delay of trial due to any party; (3) ; The length of the continuance requested; (4) ; The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) ; The prejudice that parties or witnesses will suffer as a result of the continuance; (6) ; If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) ; The court's calendar and the impact of granting a continuance on other pending trials; (8) ; Whether trial counsel is engaged in another trial; (9) ; Whether all parties have stipulated to a continuance; (10) ; Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) ; Any other fact or circumstance relevant to the fair determination of the motion or application.
On September 19, 2017, Plaintiff filed a Complaint against Defendants, alleging Negligence, Motor Vehicle Negligence, and Loss of Consortium, all arising from a motor vehicle collision that occurred on June 23, 2016. On November 5, 2020, Plaintiffs filed a motion for leave to file a First Amended Complaint. On April 6, 2021, the Court granted the motion. On April 12, 2021, Plaintiffs filed their First Amended Complaint against the same defendants, alleging Negligence, Motor Vehicle Negligence, Negligent Supervision, Loss of Consortium, and 4 causes of action for Negligence Per Se arising from a variety of statutory bases.
Defendants contend that good cause exists for a continuance. Defendants assert that Plaintiffs’ refusal to withdraw their cause of action for Negligent Supervision and causes of action Negligence Per Se under the various code sections constitutes a significant and unanticipated change in the status of the case, resulting in the case not being ready for trial. It is not clear to the Court how refusing to withdraw causes of action represents a change in the case; Defendants were informed of these causes of action more than one year ago, when Plaintiffs originally served their motion for leave to file their amended complaint. Moreover, Plaintiffs assert that they never represented to Defendants or to the Court that they would be withdrawing those causes of action, only that they would be open to discussing a stipulation that would address liability, which could have an effect on the causes of action. Plaintiffs contend that the stipulation Defendants sent the following day, which did not contain a signature line for Plaintiffs and which Defendants have previously represented in their ex parte application does not require Plaintiffs’ consent, is not a true stipulation between the parties. Plaintiffs have not withdrawn the causes of action that Defendants attempted to unilaterally stipulate to as being moot.
Defendants also argue that they will be prejudiced, as they have not had an opportunity to complete the discovery necessary to defendant against the claims made in the FAC and also will not be able to bring a motion for summary adjudication of these issues. The Court is not convinced by this argument. As Plaintiffs properly point out, if Defendants are admitting vicarious liability then summary adjudication in regards to the causes of action that would be rendered moot. As noted, Defendants knew more than one year ago that Plaintiffs were seeking to bring these new causes of action. The FAC has been the operative complaint for seven months now.
The Court also finds that this is not the first time a continuance has been requested. Defendants have filed three ex parte apps for continuances, two of which were granted and one of which was well after Plaintiffs had informed Defendants of their intent to bring new causes of action in their FAC.
The Court does not find that there is good cause for a continuance in this matter, or that the lack of a continuance will meaningfully prejudice Defendants.
The motion is DENIED.
Defendants Combined Transport, Inc. and David Wayne Johnson’s Motion to be Continue Trial and Related Dates is DENIED.
Defendants Combined Transport, Inc. and David Wayne Johnson are ordered to give notice.
The parties are directed to the header of this tentative ruling for further instructions."
Case Number: ****6306 Hearing Date: October 14, 2021 Dept: 28
The Court is inclined to deny these motions for the reasons offered in Plaintiff's Supplemental Opposition. 1) the requests are vague as to what holding Defendant is referring to, and 2) and more dispositive, if Defendant Combined won't admit that Defendant Johnson was in the course and scope, why would Diaz v. Carcamo even apply?
For these reasons, the Court's tentative is to deny Defendant's motions."
Case Number: ****6306 Hearing Date: April 6, 2021 Dept: 28
Motion for Leave to Amend Complaint
Having considered the moving, opposing, and reply papers, the Court rules as follows.
On September 19, 2017, Plaintiffs Nicollette Birdsong Wilson and Cedric Lamont Wilson (“Plaintiffs”) filed a complaint against Defendants David Wayne Johnson and Combined Transport Inc. (collectively “Defendants”). Plaintiffs allege general negligence, motor vehicle negligence, and loss of consortium in the complaint arising from an automobile collision that occurred on June 23, 2016.
On November 5, 2020, Plaintiffs filed a motion for leave to file a first amended complaint (“FAC”) to allege additional causes of action pursuant to California Code of Civil Procedure section 473, subdivision (a)(1).
Trial is set for December 8, 2021.
Plaintiffs Nicollette Birdsong Wilson and Cedric Lamont Wilson asks the Court for leave to file a FAC to allege five causes of action sounding in negligence, punitive damages, and attorneys fees and heightened damages as allowed under California Welfare and Institutions Code section 15657.
Under California Rules of Court Rule, rule 3.1324, subdivision (a), a motion to amend a pleading shall (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.
Under California Rule of Court, rule 3.1324, subdivision (b), a separate declaration must accompany the motion and must specify (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was not made earlier.
California Code of Civil Procedure section 473, subdivision (a)(1) provides, in relevant part: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”
“This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.) Ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature. The court, however, does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment. (See California Casualty General Ins. Co., supra, 173 Cal.App.3d at p. 281 [overruled on other grounds by Kransco, supra, 23 Cal.4th 390].)
The Court finds the motion has been timely filed. .
New Causes of Action
Plaintiffs seek to allege five new causes of action. First, negligent supervision against Defendant Combined Transport, Inc. Second, negligence per se for a violation of Title 49 Code of Federal Regulations, section 385.5 against all defendants. Third, negligence per se for a violation of Title 49 Code of Federal Regulations, section 392.3 against all defendants. Fourth, negligence per se for a violation of Title 49 Code of Federal Regulations, section 395.8, subdivision (k) against all defendants. Fifth, negligence per se for a violation of Title 49 Code of Federal Regulations, section 396.11 against all defendants.
The Court considers each of the causes of action to determine whether sufficient facts have been stated to allege each cause of action.
Defendant Combined Transport, Inc. argues Plaintiffs’ negligent supervision cause of action fails pursuant to Diaz v. Carcamo (2011) 51 Cal.4th 1148 because Defendant Combined Transport, Inc. admits vicarious liability for its employee’s acts. The Court finds this to be an inappropriate juncture to consider extrinsic evidence to determine the validity of Plaintiffs’ causes of action. This argument is more properly suited in summary adjudication proceeding.
Negligence Per Se Causes of Action
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.)
Negligence per se is not a distinct cause of action, but merely creates a presumption affecting the standard of care for negligence. (Johnson v. Honeywell Internat. Inc. (2009) 179 Cal.App.4th 549, 555.) Negligence per se creates a presumption of a person’s failure to exercise due care when: (1) the person violated a statute, ordinance, or regulation, (2) the violation causes harm, (3) the statute, ordinance, or regulation violated was designed to prevent the harm that resulted, and (4) the person who was harmed is of the class of persons the statute, ordinance, or regulation was adopted to protect. (Cal. Evid. Code, ; 669; Ramirez v. Nelson (2008) 44 Cal.App.4th 908, 917-918.)
Defendants’ sole argument against Plaintiffs’ negligence per se causes of action is that negligence per se is not a cause of action, but rather an evidentiary presumption. This is true. However, it is in the interest of justice to allow the amendment and view the negligence per se causes of action as merely additional counts of Plaintiffs’ negligence cause of action.
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 deceive. An 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.’” Ibid. [citing College Hospital, Inc., supra, 8 Cal.4th 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]].)
Plaintiffs seek punitive damages specifically against Defendant Combined Transport, Inc. under the negligent supervision cause of action. In that cause of action, Plaintiffs allege Defendant Combined Transport, Inc. failed to maintain the tractor-trailer that caused the underlying collision and hired an unfit driver who caused the collision (FAC, ¶¶ 53-57.) More specifically, Defendant Johnson was unfit to drive because he failed to submit federally mandated driver logs to Defendant Combined Transport, Inc. ¶¶ 57, 61.)
The Court finds these allegations to be insufficient to seek punitive damages. There is no allegation showing Defendant Combined Transport, Inc.’s corporate leaders acted with malice, oppression, or fraud. The fact that Defendant Johnson did not submit driving logs does not show Defendant Combined Transport, Inc. knew the probable dangerous consequences of Defendant Johnson’s driving for Defendant Combined Transport, Inc.
Damages Pursuant to California Welfare & Institutions Code section 15657
California Welfare and Institutions Code section 15657 allows for additional damages when a defendant is liable for elder abuse, neglect, or abandonment. Here, there are no allegations of such conduct. Plaintiffs argue these allegations were wrongfully included and, rather, requests for punitive damages should have been included instead. The Court finds that it cannot simply view the section 15657 violations as requests for punitive damages considering the notice issues that would be posed to Defendants of the new allegations sought. Therefore, the Court finds the California Welfare and Institutions Code section 15657 allegations and any replacement punitive damages requests cannot be allowed in the FAC.
The motion for leave to file a FAC is GRANTED.
Plaintiffs are ordered to file and serve the proposed FAC attached as Exhibit 1 to Julio C. Navarro’s declaration with the following edits: (1) all allegations of punitive damages must be stricken and (2) all allegations of damages pursuant to California Welfare and Institutions Code section 15657 must be stricken.
Plaintiffs are ordered to give notice of this ruling.
Plaintiffs are ordered to file the proof of service of this ruling with the Court within five days.
The parties are directed to the header of this tentative ruling for further instructions.
Case Number: ****6306 Hearing Date: February 11, 2020 Dept: 28
Motion to for Leave to Conduct a Mental Examination
Having considered the moving papers, the Court rules as follows.
On September 19, 2017, Plaintiffs Nicolette Birdsong Wilson and Cedric Lamont Wilson (“Plaintiffs”) filed a complaint against Defendants David Wayne Johnson and Combined Transport, Inc. (“Defendants”). The complaint alleges motor vehicle and general negligence for an automobile collision that occurred on June 23, 2016.
On January 17, 2020, Defendants filed a motion to compel Plaintiff Nicolette Birdsong Wilson to submit to a neuropsychological examination pursuant to California Code of Civil Procedure section 2032.320.
Trial is set for June 5, 2020.
Defendants ask the Court to compel Plaintiff Nicolette Birdsong Wilson to appear for a neuropsychological examination because she has placed her mental health into question.
California Code of Civil Procedure section 2032.220, subdivision (a) states: “In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied: (1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive. (2) The examination is conducted at a location within 75 miles of the residence of the examinee.”
California Code of Civil procedure section 2032.310 states: “(a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court. (b) A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (c) Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action.”
California Code of Civil Procedure section 2032.320 states: “(a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown. . . . (d) An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.”
Defendants argue good cause exists for a neuropsychological examination because Plaintiff Nicolette Birdsong Wilson alleges to be suffering from headaches, depression, anxiety, and fibromyalgia onset caused by trauma. (McIntyre Decl., ¶ 4, Exh. B.)
The Court finds there is good cause for grant the motion. Plaintiff Nicolette Birdsong Wilson has placed her mental state at issue by seeking damages due to her mental injuries.
The motion is GRANTED.
Plaintiff Nicolette Birdsong Wilson is ordered to appear for medical examination by psychologist/neurologist F. David Rudnick as follows:
Date: Within 30 days of this ruling or on a date mutually agreeable between the parties.
Time: On a time mutually agreeable between the parties.
Location: 501 Santa Monica Boulevard, #509, Santa Monica, California 90401.
Nature: this examination shall consist of a battery of tests ordinarily performed by neuropsychologists in similar contexts. No diagnostic test or procedure is to be painful, protracted, or intrusive.
Defendants are ordered to give notice of this ruling.
Get Deeper Insights on Court Cases