Magallanes v. Superior Court
| Decision Date | 03 May 1985 |
| Citation | 213 Cal.Rptr. 547,167 Cal.App.3d 878 |
| Court | California Court of Appeals |
| Parties | Patricia MAGALLANES, Petitioner, v. The SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent; E.R. SQUIBB & SONS, INC., et al., Real Parties in Interest. Civ. B006504. |
Schlifkin & Papell, Robert S. Schlifkin and Steven J. Kleifield, Los Angeles, for petitioner.
Haight, Dickson, Brown & Bonesteel, Robert L. Dickson, Steven L. Hoch, Ralph A. Campillo and Debra E. Pole, Santa Monica, for real parties in interest E.R. Squibb & Sons, Inc., Merrell Nat. Laboratories and Armour Laboratories.
Crosby, Heafey, Roach & May, Richard J. Heafey, Peter W. Davis and James C. Martin, Oakland, for real party in interest, Eli Lilly and Co.
Overton, Lyman & Prince, Laurence H. Schnabel and Stephen E. Traverse, Los Angeles, for real party in interest, Abbott Laboratories.
Donald B. Caffray and Gary D. Fields, Long Beach, for real party in interest, The Upjohn Co.
Burris, Karp & Mooney and Donald S. Burris, Beverly Hills, for real party in interest, Emons Industries, Inc.
Adams, Duque, Hazeltine and Richard T. Davis, Jr., Los Angeles, for real party in interest Rexall Drug Co.
Gantz & Forer and Steven B. Stevens, Beverly Hills, for real party in interest Boyle & Co.
Chase, Rotchford, Drukker & Bogust and Howard A. Slavin, Los Angeles, for real party in interest William H. Rorer, Inc.
Gibson, Dunn & Crutcher, Los Angeles and Eric C. McCurdy for real party in interest McNeillab., Inc.
California Mfrs. Ass'n, Michael J. Breining, Sacramento, and David G. Owen, amici curiae for real parties in interest.
The question presented by this petition for writ of mandate is whether punitive damages may be awarded in a case based on the market share theory of liability enunciated in Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924 (cert. den. 499 U.S. 912, 101 S.Ct. 285, 66 L.Ed.2d 140) ("Sindell " ). We conclude they may not.
Petitioner Patricia Magallanes is the plaintiff in an action to recover damages for injuries she allegedly sustained, the development of cancer, by reason of her mother's ingestion of the drug diethylstilbestrol ("DES") while plaintiff was in utero. The defendants and real parties in interest ("defendants") are the alleged manufacturers and distributors of a substantial share of the DES available to plaintiff's mother at the time she ingested the substance.
In the first and fourth causes of action of her first amended complaint, plaintiff alleged, inter alia, that in manufacturing and distributing the DES the defendants acted with conscious disregard of the rights and safety of the general public; in her prayer she sought punitive, as well as compensatory, damages.
On August 11, 1983, the respondent trial court granted defendants' motions to strike plaintiff's punitive damage allegations. (Code Civ.Proc., § 436.) The court granted plaintiff leave to move to amend to allege such damages at any time more than six months prior to trial, and suggested that she conduct further discovery prior to so moving. The court ruled "that there should be identification of a particular defendant before punitive damages may be alleged." Plaintiff's subsequent motion for reconsideration was heard and denied.
This petition for writ of mandate seeks to compel the trial court to vacate its order of August 11, 1983, granting defendants' motions to strike the punitive damage allegations from the first amended complaint, and to enter a new order denying the motions to strike. We issued an alternative writ of mandate.
Plaintiff contends "that under established California law, and under the persuasive reasoning" of Morris v. Parke, Davis & Co. (1983) 573 F.Supp. 1324 ("Morris"), "punitive damages may be awarded in a 'market share' action" brought pursuant to Sindell.
Defendants challenge the timeliness of the petition, the sufficiency of petitioner's allegations of malice, and the persuasiveness of the decision in Morris, and controvert plaintiff's contention that punitive damages can be awarded in a Sindell type market share action.
Defendants contend plaintiff's motion for reconsideration failed to comply with the requirements of Code of Civil Procedure section 1008, subdivision (a), in that the motion was made more than ten days after plaintiff had knowledge of the order granting defendants' motions to strike, and, moreover, was not based upon an alleged different state of facts.
The facts stated by defendants are correct but we find that there is no error. The requirements of Code of Civil Procedure section 1008 are not jurisdictional and do not divest a court of its inherent power to correct its interim rulings. (Greenberg v. Superior Court (1982) 131 Cal.App.3d 441, 445, 182 Cal.Rptr. 466.)
The order of August 11, 1983, granting the motions to strike, was an interim ruling. The trial court had power to reconsider the ruling so long as no final judgment had been entered and the case was still pending before the court.
We find no abuse of discretion in the trial court's decision to entertain the motion for reconsideration. (Blue Mountain Development Co. v. Carville (1982) 132 Cal.App.3d 1005, 1013, 183 Cal.Rptr. 594.)
In its order granting defendants' motions to strike, the trial court ruled that the "[f]acts alleged at page 8, lines 1-12 [of the first amended complaint] are not sufficient to support a claim for punitive damages." In their return to the petition, certain of the defendants point to plaintiff's failure to amend to allege any additional facts supporting her claim for punitive damages.
At the outset of the August 11, 1983 hearing on the motions to strike, the trial court read into the record its proposed order, which included its ruling that the allegations supporting the claim for punitive damages were insufficient. Plaintiff then called the court's attention to the allegations contained in paragraphs XI and XII of the first amended complaint, and the court then ruled that the pertinent allegations in the complaint 1 were probably sufficient to support a claim for punitive damages. However, the court's original proposed ruling was incorporated into its minute order of August 13, 1983, with additional language requiring identification of a particular defendant before punitive damages may be sought.
In order to justify an award of punitive damages, the defendant must be guilty of oppression, fraud or malice. (Civ.Code, § 3294.) 2 "He must act with the intent to vex, injure or annoy, or with a conscious disregard of the plaintiff's rights." (Silberg v. California Life Ins. Co. (1974) 11 Cal.3d 452, 462, 113 Cal.Rptr. 711, 521 P.2d 1103.) In a personal injury action, "conscious disregard of safety [is] an appropriate description of the animus malus which may justify an exemplary damage award when nondeliberate injury is alleged." (Emphasis in original.) (G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 32, 122 Cal.Rptr. 218; see also Taylor v. Superior Court (1979) 24 Cal.3d 890, 895, 157 Cal.Rptr. 693, 598 P.2d 854.) The allegations in the complaint, reproduced in the margin, are sufficient to support a prayer for punitive damages.
The remaining, and essential question in this appeal is whether punitive damages can be imposed in an action in which liability is based upon market share. We begin our discussion by recognizing that the complaint in Sindell also contained a prayer for punitive damages as well as for compensatory damages. This fact was announced early in the decision (26 Cal.3d p. 595, 163 Cal.Rptr. 132, 607 P.2d 924) and not thereafter mentioned.
Defendants claim that the omission of reference to punitive damages thereafter indicates that the compensatory damage remedy fashioned by Sindell is the sole remedy available to a plaintiff who has been harmed by fungible goods, such as DES, whose producer the plaintiff cannot identify.
Plaintiff argues the theory of liability based on market share enunciated in Sindell is "little more than an extension", or "basically a slight adaptation", of the doctrine of Summers v. Tice (1948) 33 Cal.2d 80, 199 P.2d 1. In her petition plaintiff assumes that both Sindell and Summers are joint tortfeasor cases and characterizes them as such.
The entire Sindell opinion is cast in the context of compensatory damages. Save for the initial mention of the plaintiff's prayer there is nothing in Sindell that relates to punitive damages. The entire opinion is given to the fashioning of a logical and reasonable remedy which would enable the plaintiff to be compensated for the cost of her injuries.
We also note that Summers does not relate to punitive damages. It is limited to who should be liable for compensatory damages in the circumstances of that case.
Last, we note that neither Sindell nor Summers is a joint tortfeasor case. Summers is an independent tortfeasor case based upon the theory of alternative liability, while Sindell is an independent tortfeasor case based upon the new theory of market share liability.
The court in Sindell acknowledged the propriety of some adaptation of the rules of causation and liability to meet the changing needs of contemporary consumers harmed by fungible goods which cannot be traced to a specific producer. The court reasoned that "as between an innocent plaintiff and negligent defendants, the latter should bear the cost of the injury." (26 Cal.3d pp. 610-611, 163 Cal.Rptr. 132, 607 P.2d 924.) From a broader policy standpoint, defendants such as drug manufacturers "are better able to bear the cost of injury resulting...
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