Case Number: BC541138??? Hearing Date: July 21, 2016??? Dept: 91
Motion by Defendants, Home Depot U.S.A., Inc. and Claude Achkar for Summary Adjudication of Plaintiff?s Claim for Exemplary Damages, filed on 5/6/16, is DENIED. Defendant has not met its burden of establishing it is entitled to judgment based on the material facts proffered.
Cal. Code Civ. Proc. ? 437c(p)(2).
Defendant has not met its burden of establishing that Plaintiff does not have nor cannot obtain evidence to support a claim for punitive damages. In ruling on a motion for summary adjudication, the material issues are determined by the allegations of the pleading. Lewinter v. Genmar Industries, Inc. (1994) 26 Cal.App.4th 1214, 1223. Materiality depends on the issues of the case, and ?what matters are at issue is determined by the pleadings, the rules of pleadings, and the substantive law. [Citation.] ?The complaint measures the materiality of the facts tendered in a defendant’s challenge to the plaintiff’s cause of action.?? Eriksson v. Nunnink, (2011) 191 Cal. App. 4th 826, 848.
Additionally, where summary judgment is based on absence of evidence as Defendants argue here, Defendants must make an affirmative showing by way of direct or circumstantial evidence that the Plaintiff not only does not have but cannot reasonably expect to obtain a prima facie case. Hagen v. Hickenbottom (1995) 41 Cal. App. 4th 168, 186. More than bare argument is required. Travelers Cas. & Sur. Co v. Superior Court (1998) 63 Cal.App.4th 1440.
In support of the claim for punitive damages, Plaintiff generally alleges that Defendants knew of the dangerous condition posed by the use of older and/or damaged carts, but did not repair, replace, or otherwise provide customers with better designed carts in order to lower its operating costs. Complaint ? 17.
The complaint alleges that Defendants allowed the dangerous condition to continue in complete disregard of the safety of its customers for the sole purpose of lowering costs and maximizing profits. Complaint ? 19. Plaintiff further alleges that Defendants? policies and deliberate failure to take necessary precautions exposed customers to the risk of serious physical and emotional injuries and/or death. Complaint, ? 20.
There is some authority for the proposition that evidence showing a Defendant?s inattention to danger, and lack of concern of the harmful consequences, coupled with evidence showing a Defendant?s ?overriding concern for a minimum-expense operation, regardless of the peril involved? is sufficient to establish the evil motive necessary to warrant imposition of punitive damages. Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 288.
Assuming that elevating profit motive over the safety of consumers supports a claim for punitive damages in this instance, Plaintiff must also show that a corporate employer can be liable for the acts of an employee if the employer ratified the tortious conduct or was otherwise personally guilty of oppression fraud or malice. Civ Code ? 3294(b).
None of Defendants? material facts attempt to negate the allegations that Defendants knowingly used dangerous, older, and damaged courts, in disregard for the safety of their customers for the ?sole purpose of lowering costs and maximizing profits.? Complaint ? 19. Nor do the material facts relate to the issue of employer ratification.
Defendant asserts that Plaintiff did not provide evidence to support the punitive damage allegations in response to Defendant?s Request for Production of Documents. Fact 7. However, none of the requests concerned production of documents relevant to Plaintiff?s claim for punitive damages.
Instead the requests concerned production of evidence pertinent to Plaintiff?s medical care and treatment, photographs of the store, products involved, or of Plaintiff?s injuries, incident reports, communication with Home Depot, recorded statements, and documents supporting future medical damages or wage loss. Request 7 asks for documents showing that other hardware stores do not ?display large or heavy material for loading and transport solely by the customer.? Motion, E, 9:25-27. This fact is not material to Plaintiff?s punitive damages claim. Thus, Facts 7 and 8 are not relevant.
Defendant finally asked for documents to support the claim that the cart was defectively designed. None of these requests ask Plaintiff to produce documents to support the claim for punitive damages.
Facts 9 and 10 are relevant to the loading of materials by customers without assistance from Defendants? employees. While this may be relevant to the negligence claim, the loading of materials without store assistance is not the basis for the punitive damages claims.
Facts 1-16, proffered by Defendants in support of the motion, are all immaterial to Plaintiff?s claim for punitive damages. Defendants have not met its initial burden of showing that Plaintiff has no evidence, nor can Plaintiff obtain evidence to support the claim for punitive damages.
Moving party is ordered to give notice.