KHOURI VS FISHER INDUSTRIES

Negligence Per Se (Evid. Code § 669): The FAC’s first cause of action for negligence includes a theory of negligence per se under Evid. Code § 669. To establish negligence per se, a plaintiff must show: (1) the defendant violated a statute, ordinance, or regulation; (2) the violation proximately caused death or injury; (3) the death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and (4) the plaintiff was “one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” (Evid. Code § 669.) “The first two elements are normally questions for the trier of fact and the last two are determined by the trial court as a matter of law.” (Jacobs Farm/Del Cabo, Inc. v. Western Farm Services, Inc. (2010) 190 Cal.App.4th 1502, 1526.)

Here, Plaintiff bases his negligence per se theory, in part, on Vehicle Code §§ 21718(a), 22504(a), and 22523(a)-(b), which generally “prohibit stopping/standing/parking or abandoning vehicles on freeways or roadways in unincorporated areas.” (FAC ¶ 25.) Defendants argue these statutes should not apply to construction equipment staged in a permitted highway work zone. Defendants argue that Plaintiff’s interpretation would bar any construction vehicle from parking on a roadway, and that result is “absurd.” Defendants also argues that the Vehicle Code itself expressly contains an exception for persons “actually engaged in maintenance or construction on freeway property.” (Veh. Code § 21718(a)(3).)

Here, however, whether Defendants’ conduct constitutes unlawful stopping, standing, or abandoning a “vehicle” on a freeway is a question that involves both statutory interpretation and factual context. The FAC alleges that Defendants left the “SUBJECT GRADER, heavy unattended construction equipment, on or immediately adjacent to temporary K-rails” in the freeway’s clear-recovery zone. (FAC ¶ 12.) The determination of whether a contractor’s actions qualify for the “actually engaged” exception is a question of fact that depends on the nature of the contractor’s operations and the state of the worksite.

Plaintiff also relies on Cal-OSHA regulations (Cal. Code of Regs., tit. 8, §§1598-1599) for his negligence per se claim. Defendants argue that these regulations are intended to protect only employees, but not the public. However, Plaintiff relies on Elsner v. Uveges (2004) 34 Cal.4th 915, in which the California Supreme Court held that Cal-OSHA provisions are admissible “to establish a standard or duty of care in all negligence and wrongful death actions, including third party actions.” (Id. at 928.) The statute no longer limits the use of these regulations to actions between an employee and their employer.

Punitive Damages (Civ. Code § 3294): In order to plead punitive damages, a plaintiff must plead allegations of fraud, malice, or oppression with sufficient particularity. (Hilliard v. AH Robbins Co. (1983) 148 Cal.App.3d 374, 392; Civ. Code, § 3294(a).) Generally, claims for punitive damages must be pleaded with particularity as to the facts constituting the alleged egregious conduct. (G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.) However, the court may read the complaint as a whole so that conclusory allegations may be sufficient when read in context with the facts alleged as to the defendant’s wrongful conduct. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6-7.)

“Malice” is defined in the statute as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code §3294(c)(1).) “Oppression” is defined as “despicable conduct that subjects to a cruel and unjust hardship in conscious disregard of that person’s rights. (Id. (c)(2).) “Fraud” is “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Id., (c)(3).)

In G.D. Searle & Co v. Superior Court (1975) 49 Cal.App.3d 22, 32-33, the court suggested that conscious disregard of safety may justify punitive damages when nondeliberate injury is alleged. Thereafter, in Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896, relying on Searle, the California Supreme Court ruled that conscious disregard of safety may constitute malice if the plaintiff establishes that “the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.”

As stated in College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725, the court stated that for malice, there is more than just a requirement of a willful and conscious disregard, but must include a despicable conduct. The court stated despicable was “base, vile, or contemptible.” (Id.) The court in Lackner v. North (2006) 135 Cal.App.4th 1188, 1210-1212 discussed the history of punitive damages. The Lackner court stated that at the time Taylor was decided, section 3294 had no definition of malice. (Id. at 1210-1211.)

It pointed to the fact that in 1980, the Legislature amended section 3294 to include the definition of malice under Taylor, which required proof that the defendant’s conduct was despicable and willful, with the former representing a new limitation on punitive damages. (Id. at 1211.) In 1987, the Legislature again amended section 3294 to increase the burden of proof. (Id. at 1211-1212.)

The court noted that since punitive damages were to punish the defendant, they were typically awarded in intentional tort cases, e.g., assault, battery, false imprisonment, IIED, defamation, nuisance intentionally maintained, fraud, trespass, conversion, civil rights, insurer’s bad faith, wrongful termination and job discrimination, and products liability. (Id. at 1212.) For unintentional torts, the courts looked at various factors to determine whether the conduct was despicable. (Id.)

Here, the FAC alleges that: Over an extended period before the incident, the private Defendants received repeated NCRs [Non-Conformance Report issued by Caltrans], CEM-4601 safety reviews, and warnings identifying serious work-zone safety deficiencies: non-conforming K-rail placement/gaps/inadequate support; missing contrast striping/barrier delineation; missing construction-entrance and “Trucks Entering/Exiting” signs; and equipment operating/staged dangerously close to live traffic without adequate control. (FAC ¶ 72.) The FAC also alleges that “warnings were first issued as early as April 2023,” and “Defendants chose to continue substantially the same unsafe operations prioritizing production and profit over motorist safety.” (Id. ¶ 73.)

Defendants argue that the FAC pleads only negligence. Here, however, the FAC pleads Defendants’ decision to ignore repeated official warnings for over a year, allegedly for profit over safety. If proven, this could constitute “despicable conduct” carried on with “conscious disregard” for motorist safety. These are sufficient to support malice.

When the defendant is a corporation, a plaintiff seeking punitive damages must establish that the wrongful act was committed by the corporation itself or that the corporation is vicariously liable for the act. Civ. Code § 3294(b) strictly limits the imposition of punitive damages against a corporate employer. A corporation is liable for punitive damages based on the acts of an employee only if: (1) the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others; or (2) the employer authorized or ratified the wrongful act of the employee; or (3) the employer was itself guilty of oppression, fraud, or malice. (Civ.

Code § 3294(b).) The advance knowledge, ratification, or act of oppression, fraud, or malice must be on the part of an “officer, director, or managing agent of the corporation.” (Ibid.) Here, Plaintiff argues that: (1) Alves was a managing agent, and (2) that Fisher’s corporate management ratified the misconduct.

A “managing agent” includes those corporate employees who “exercise substantial independent authority and judgment in their corporate decision-making so that their decisions ultimately determine corporate policy.” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 566-567.) This limitation ensures punitive damages are imposed only for conduct reflecting the corporate “state of mind” or the intentions of corporate leaders, not for the malicious acts of a low-level employee. (Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167.)

Here, the FAC alleges Alves was a project superintendent with “discretionary policy authority over safety, equipment staging, traffic control, and regulatory response” and that he “personally received/responded to NCRs.” (FAC ¶ 74.) It also alleges that Alves “made or ratified decisions to continue operations and staging” without implementing required corrections. (Id.) These allegations suggest that Alves had the authority to influence safety policies for this project and to decide the company’s regulatory responses. At the pleading stage, these are sufficient to create a factual issue as to whether he exercised the type of “substantial discretionary authority” under the White standards. (White v. Ultramar, Inc., supra, 21 Cal.4th at 573.) The court should deny the motion to strike these allegations.

An employer may also be liable for punitive damages where its management ratifies the employee’s misconduct. (Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 272.) Ratification is the subsequent adoption of an unauthorized act. (Anderson v. Fay Improvement Company (1955) 134 Cal.App.2d 738, 748.) It is essentially a matter of assent. (Bate v. Marsteller (1959) 175 Cal.App.2d 573, 582.) It requires that the principal act with full knowledge of all material facts. (Id.) “This knowledge is equally necessary whether the ratification be express or implied.” (Id.) “Whether an employer has ratified an employee’s conduct is generally a factual question.” (Ventura v. ABM Industries Inc, supra, 212 Cal.App.4th at 272.)

Here, the FAC alleges that “FISHER’s...corporate management and safety personnel were aware via NCRs, CEM-4601s, internal reports, and Caltrans communications that serious hazards were repeatedly identified over months/years yet failed to allocate adequate resources or shut down unsafe configurations, choosing to press forward in conscious disregard of risks.” (FAC ¶ 76, emphasis added.) These allegations plead both the knowledge of the conduct and the adoption of the conduct (by failing to take corrective actions and continuing operations). At the pleading stage, these allegations are sufficient.

Motion to Strike is DENIED in its entirety.

Defendants to file an answer in 10 days.

Case Management Conference to be held regarding future court dates.

9. CASE # CASE NAME HEARING NAME LICHTENBERG VS MOTION TO DISQUALIFY PLAINTIFFS’ CVPS2603288 GOKTEPE ATTORNEY Tentative Ruling: No tentative ruling, per stipulation of the parties, the motion will be vacated for Plaintiffs to hire new counsel.