Nelson v. Guardian Towing, Inc

• Court: District Court, S.D. California
• Decided: March 30, 2024
• Docket: 3:22-cv-00306
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Ethan NELSON, Case No.: 22-cv-0306-AGS-BLM

4 Plaintiff, ORDER GRANTING PARTIAL 5 v. SUMMARY JUDGMENT (ECF 27) 6 GUARDIAN TOWING, INC., et al., 7 Defendants. 8

9 While deployed overseas with the military, plaintiff learned that—back home—his 10 beloved pickup truck had been towed away. After the towing company later sold the truck 11 to defray its storage costs, plaintiff sued. The defense moves for summary judgment. 12 BACKGROUND1 13 Plaintiff Ethan Nelson’s “great-grandfather” bought a “1999 Toyota Tacoma” truck 14 that has since “been in the family for as long as [Nelson] can remember.” (ECF 33-2, 15 at 37–38, 67–68.) In 2016, the truck passed to Nelson as a high school “graduation gift.” 16 (Id. at 37–38.) Although the vehicle is two decades old, it has “sentimental value,” as 17 Nelson has nothing else “to really remember [his] great-grandpa by now.” (Id. at 142.) 18 By 2021, Nelson was an active-duty U.S. Marine stationed at Marine Corps Air 19 Station Miramar, when he “received orders to deploy to Okinawa, Japan.” (ECF 33, at 8.) 20 Just before that deployment, he parked his truck “in the parking lot of the MCAS Miramar 21 post exchange.” (Id. at 8–9.) Nelson “arranged for a friend to later move” his truck, but 22 23 24 1 Plaintiff’s “best evidence rule” objections are overruled. At “the 25 summary judgment stage, we do not focus on the admissibility of the evidence’s form. We instead focus on the admissibility of its contents.” Sandoval v. County of San Diego, 26 985 F.3d 657, 666 (9th Cir. 2021). Even if a document “violated the best evidence rule,” it 27 does “not preclude the district court from granting summary judgment,” as the document itself “does not have to be in a form that would be admissible at trial.” See Hughes v. United 28 1 that friend “failed” to do so. (Id. at 9.) Predictably, “MCAS Miramar authorities” 2 eventually requested that the truck be towed. (Id.) 3 Enter defendant Ali Ganji, the “owner and operator” of defendant Guardian Towing, 4 Inc. (ECF 33, at 7, 9.) Ganji “transported [the truck] to Guardian’s impound lot.” 5 (Id. at 10.) Later, the truck was “sold via lien sale,” much to Nelson’s dismay. (Id. at 12.) 6 A key dispute in this case is what defendants knew at the time of sale, particularly 7 about Nelson’s military status. The defense pleads ignorance. They explain that Guardian 8 Towing “utilizes the services of a company called LienTek Solutions, Inc.,” which 9 transmits a vehicle’s “identification number to the California Department of Motor 10 Vehicles.” (Id. at 10–11.) They believed that if “a vehicle is registered to a member of the 11 armed services,” the DMV will “report this information to LienTek, and LienTek will in 12 turn” notify defendants. (Id. at 11.) Defendants followed that process here, but LienTek 13 “gave no indication” the truck was owned by a servicemember. (Id. at 11–12.) 14 On the other hand, Ganji was the one who towed the truck off a military base. 15 (ECF 33, at 10.) And several weeks before the sale, Ganji handwrote a note in the file 16 stating that the truck’s registered owner “called. He’s deployed.” (ECF 33-2, at 230–31.) 17 Based on the loss of his truck, Nelson sued Ganji and Guardian Towing under the 18 federal Servicemembers Civil Relief Act and California’s Military and Veterans Code, 19 Rosenthal Act, and Unfair Competition Law, as well as for negligence and intentional 20 infliction of emotional distress. (ECF 1, at 8–10.) Defendants move for summary judgment 21 on most of these claims, as well as on Nelson’s requests for punitive and emotional-distress 22 damages. (See ECF 27-1.) 23 DISCUSSION 24 Summary judgment is proper when the record, taken in the light most favorable to 25 the nonmoving party, demonstrates that “there is no genuine dispute as to any material fact 26 and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A fact is 27 “material” if it “might affect the outcome of the suit.” Anderson v. Liberty Lobby, Inc., 28 1 477 U.S. 242, 248 (1986). An issue is “genuine” if “a reasonable jury could return a verdict 2 for the nonmoving party.” Id. 3 When the “nonmoving party will bear the burden of proof at trial,” the party urging 4 summary judgment shoulders the initial burden of demonstrating that “there is an absence 5 of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 6 317, 324–25 (1986). This may be accomplished by “‘showing’—that is, pointing out 7 through argument—the absence of evidence.” Fairbank v. Wunderman Cato Johnson, 8 212 F.3d 528, 532 (9th Cir. 2000). The burden then shifts to the nonmoving party to “go 9 beyond the pleadings and identify facts which show a genuine issue for trial.” Id. at 531. 10 A. Ganji’s Individual Liability 11 Defendants move for summary judgment on all claims against Ganji. They assume 12 “plaintiff is attempting to hold Mr. Ganji liable for the actions of Guardian on an alter ego 13 theory” without any “identification evidence to support” such a theory. (ECF 27-1, 14 at 10–12.) But plaintiff Nelson denies making “that argument.” (ECF 33-1, at 9.) Rather, 15 he insists that “Ganji is actually the person, the employee, the owner and operator of 16 Guardian, who took and approved of all actions to confiscate and sell Plaintiff’s vehicle 17 without a court order.” (Id.) 18 Plaintiff stands on much firmer ground. Under both California and federal law, the 19 rule is well settled: “Directors and officers of a corporation are not rendered personally 20 liable for its torts merely because of their official positions, but may become liable if they 21 directly ordered, authorized or participated in the tortious conduct.” Wyatt v. Union 22 Mortgage Co., 598 P.2d 45, 52 (Cal. 1970); Transgo, Inc. v. Ajac Transmission Parts 23 Corp., 768 F.2d 1001, 1021 (9th Cir. 1985) (“A corporate officer or director is, in general, 24 personally liable for all torts which he authorizes or directs or in which he participates, 25 notwithstanding that he acted as an agent of the corporation and not on his own behalf.” 26 (quotation marks omitted)). 27 It is undisputed that Ganji “remove[d] the subject pickup truck from MCAS 28 Miramar,” “transport[ed] it to Guardian’s impound lot,” and “made the decision to sell 1 [plaintiff’s] car.” (ECF 33, at 10–11; ECF 33-2, at 222.) Because Ganji participated in the 2 allegedly tortious conduct, he may be subject to personal liability. His summary-judgment 3 argument to the contrary is denied. 4 B. Rosenthal Act 5 California’s Rosenthal Fair Debt Collection Practices Act applies only to “consumer 6 credit transactions.” Traylor v. Wyndham Resort Dev. Corp., No. CV 16-7670 PSG 7 (AJWx), 2017 WL 5172240, at *3 (C.D. Cal. May 2, 2017) (citing Cal. Civ. Code § 1788.2 8 (b), (c), (e), (f)). Defendants argue there “was never any transaction between plaintiff and 9 defendant whereby defendant agreed to provide plaintiff with something on credit.” 10 (ECF 27-1, at 22.) Nelson responds that he “owed Defendants money for the storage of his 11 vehicle,” so “the storage was a service provided to [Nelson] on credit,” establishing a 12 consumer credit transaction. (ECF 33-1, at 14.) But merely owing money does not establish 13 the sort of “transaction” needed for liability. The Rosenthal Act focuses on debts incurred 14 from “‘consensual transactions’ for consumer goods or services.” Vartanian v. Portfolio 15 Recovery Assocs., LLC, No. 2:12-CV-08358-ODW, 2013 WL 877863, at *6 (C.D. Cal. 16 Mar. 7, 2013) (emphasis added). Defendants towed, kept, and sold Nelson’s truck without 17 his consent. As none of these were consensual transactions, defendants are entitled to 18 summary judgment on the Rosenthal Act claim. 19 C. Unfair Competition Law 20 California’s Unfair Competition Law provides for two forms of remedy. The 21 primary one is an injunction on “unfair competition,” while the other, “restitution,” “is 22 merely ancillary.” In re Tobacco Cases II, 192 Cal. Rptr. 3d 881, 900 (Ct. App. 2015) 23 (quotation marks omitted); see Cal. Bus. & Prof. Code § 17203. Before the UCL authorizes 24 either form of equitable relief, however, plaintiffs must lack “an adequate remedy at law.” 25 Sonner v. Premier Nutrition Corp., 971 F.3d 834, 844 (9th Cir. 2020). Defendants argue 26 that Nelson fails this requirement and thus seek summary judgment on the UCL claim. 27 In response, Nelson points out that his truck’s “sentimental value” is “more than any 28 amount of money could cover because I have nothing to really remember my great-grandpa 1 by now.” (ECF 33-2, at 142.) He contends that “the best way to make” him “whole” is by 2 “restitution—[1] returning the truck . . . , and [2] paying a monetary amount for Plaintiff’s 3 actual damages, including emotional distress.” (ECF 33-1, at 15.) As a threshold matter, 4 the legal issue turns not on whether restitution is the “best” remedy, but whether it (or, 5 preferably, injunctive relief) is the only adequate remedy. 6 With that in mind, let’s break down plaintiff’s proposed remedy to its constituent 7 parts: First, the truck’s return. That remedy is impossible for this Court to order, as a third 8 party “now has title” to the vehicle, and Nelson “has alleged no UCL violation against [the 9 new owner].” See Morris v. JPMorgan Chase Bank, N.A., 293 Cal. Rptr. 3d 417, 458 10 (Ct. App. 2022) (unpublished); see also In re National Mass Media Telecomm. Sys., Inc., 11 152 F.3d 1178, 1181 (9th Cir. 1998) (explaining that, when the “only remedy” demanded 12 is a return of property, but “a non-party now owns that property,” courts are “powerless” 13 to grant relief). In other words, this Court has no authority to compel the truck’s purchaser, 14 who is not before it, to sell. Alternatively, Nelson imagines that this “Court could order 15 Defendants to go find the purchaser of [Nelson]’s truck, buy it back, and return it” to him. 16 (ECF 33-1, at 15.) Even if this Court had that power, which is doubtful, it would not be 17 inclined to micromanage those negotiations or—worse yet—order defendant to pay any 18 price the purchaser demands. 19 The remainder of Nelson’s proposed remedy—a “monetary amount” for “actual 20 damages, including emotional distress”—sounds in law, not equity. The restitutionary 21 remedy available under the UCL is intended “to make whole, equitably, the victim of an 22 unfair practice.” Day v. AT & T Corp., 74 Cal. Rptr. 2d 55, 64 (Ct. App. 1998). The first 23 component of Nelson’s actual damages is the value of his vehicle. This he may obtain under 24 his SCRA cause of action—an “adequate remedy at law” that precludes him from “securing 25 equitable restitution for past harm under the UCL.” Sonner, 971 F.3d at 844. As for the 26 other component, “an award of money damages to compensate for . . . emotional distress 27 . . . constitutes a legal remedy.” Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853, 866 28 (9th Cir. 2017). It is thus not available under the UCL. 1 In short, Nelson has not shown that he is entitled to a UCL injunction or restitution, 2 let alone that his remedies at law are insufficient. The defense’s summary-judgment motion 3 is therefore granted on the UCL claim. 4 D. Intentional Infliction of Emotional Distress 5 To prove the tort of intentional infliction of emotional distress, plaintiffs must show, 6 among other things, that the defendant’s “extreme and outrageous” conduct (1) was 7 “directed primarily at them” and “was calculated to cause them severe emotional distress” 8 or (2) “was done with knowledge of their presence and of a substantial certainty that they 9 would suffer severe emotional injury.” Christensen v. Superior Ct., 820 P.2d 181, 204 (Cal. 10 1991). No one contends that any relevant conduct occurred “in the presence of” Nelson, as 11 he was deployed overseas at the time, so only the former theory is in play. Defendants say 12 their conduct was not “directed primarily at” Nelson, so his claim fails. 13 Nelson argues that the defendants’ conduct was directed at him because they “sold 14 his truck without a court order,” which led to his “emotional distress,” as he “had a 15 sentimental attachment to the truck.” (ECF 33-1, at 16.) But even if defendants had been 16 “substantially certain” the truck sale would cause “extreme emotional distress,” that would 17 not satisfy the stringent standard for conduct “directed primarily at” plaintiff. See 18 Christensen, 820 P.2d at 202. For example, the plaintiffs in Christensen plausibly alleged 19 that the defendants’ “mishandling of [their relatives’] remains . . . was intentional, was 20 outrageous, and was substantially certain to cause extreme emotional distress to relatives 21 and close friends of the deceased.” Id. at 201–02. The California Supreme Court held that 22 this was “not enough” for an intentional-infliction claim, as the allegations fell short of 23 establishing that “defendant’s misconduct was directed to and was intended to cause severe 24 or extreme emotional distress to a particular individual.” Id. at 202, 204. 25 Nelson’s facts are even weaker than those in Christensen. The Christensen 26 defendants were of course aware that “mutilating” human remains was “substantially 27 certain to cause extreme emotional distress” to someone. 820 P.2d at 186, 201–02. By 28 contrast, Nelson has not pointed to any evidence that defendants even knew that Nelson 1 had a strong sentimental attachment to his truck such that the sale would cause any 2 similarly extreme distress. (See ECF 1, at 6–7, 10.) Nor has Nelson identified any evidence 3 to support a claim that the defense “intended” to cause him severe emotional distress. 4 “The summary-judgment stage is the ‘put up or shut up’ moment in a lawsuit, when 5 the nonmoving party must show what evidence it has that would convince a trier of fact to 6 accept its version of events.” Arguedas v. Carson, No. 20-cv-2044-AGS-BGS, 2024 WL 7 253644, at *2 (S.D. Cal. Jan. 22, 2024). Nelson has come forward with no admissible 8 evidence that raises a triable issue about any outrageous defense conduct that was “directed 9 primarily at” him nor that was “calculated to cause” him “severe emotional distress.” See 10 Christensen, 820 P.2d at 204. Thus, his intentional-infliction claim fails. 11 E. Emotional-Distress Damages 12 Defendants seek summary judgment on Nelson’s request for emotional-distress 13 damages on the three remaining claims: negligence, the Servicemembers Civil Relief Act, 14 and the state Military and Veterans Code. 15 1. Negligence 16 In general, plaintiffs “may not recover emotional distress damages for a towed 17 vehicle” in a negligence case. Ingram v. City & Cnty. of San Francisco, No. A110540, 18 2005 WL 3445569, at *2 (Cal. Ct. App. Dec. 15, 2005) (citing Cooper v. Superior Ct., 19 200 Cal. Rptr. 746, 748 (Ct. App. 1984)). For negligence actions, California courts have 20 only awarded emotional-distress damages “arising solely out of property damage” after a 21 “threshold showing of some preexisting relationship.” Cooper, 200 Cal. Rptr. At 748; see 22 Windeler v. Scheers Jewelers, 88 Cal. Rptr. 39, 43 (Ct. App. 1970) (affirming emotional- 23 distress damages for the negligent loss of “old family rings” that were “cherished 24 mementos of [plaintiff’s] husband” because the parties had a contractual “bailment” 25 relationship). 26 Nelson has not shown that required relationship here. He instead advances two 27 arguments to dodge the sweep of the foregoing caselaw. First, he stresses that this action 28 involves “selling (not damaging)” property, which sets it apart from the “property damage” 1 precedents. (ECF 33-1, at 11.) That distinction seems irrelevant to the analysis. Nelson’s 2 injury arises from the deprivation of his property; the mode of disposal makes no 3 difference. For example, in Gonzales v. Personal Storage, Inc., 65 Cal. Rptr. 2d 473 4 (Ct. App. 1997), the court held that a self-storage facility’s negligence in the loss of 5 plaintiff’s “keepsakes, heirlooms and other personal belongings” could not justify 6 “damages for emotional distress.” Id. at 475, 479. Nelson tries to distinguish Gonzales by 7 noting that, “in this instance,” “there was a duty . . . not to sell his truck without a court 8 order.” (ECF 33-1, at 11 (emphasis added).) Yet Gonzales involved a similar legal “duty 9 to protect [plaintiff]’s property,” and the court nonetheless concluded that this obligation 10 “did not include a duty to protect [plaintiff] from emotional distress.” Id. at 479. So it is 11 here. 12 Nelson’s final rejoinder is that emotional-distress damages are “inherently a question 13 of fact to be determined by a jury” and thus “improper for a motion for summary 14 judgment.” (ECF 33-1, at 11.) Not so. “Although the amount of recoverable damages is 15 usually a question of fact,” the “existence of damages . . . is a question of law.” In re Sony 16 Gaming Networks & Customer Data Sec. Breach Litig., 996 F. Supp. 2d 942, 969 17 (S.D. Cal. 2014). Nelson cannot recover emotional-distress damages for negligence here. 18 2. Servicemembers Civil Relief Act 19 Defendants’ arguments against emotional-distress damages under the 20 Servicemembers Civil Relief Act are less persuasive. First, they believe that every court to 21 consider “the recoverability of emotional distress damages in a private right of action under 22 the SCRA has rejected recovery of such damages.” (ECF 27-1, at 18.) But that is not so. 23 See Kimball v. Orlans Assocs. P.C., 651 F. App’x 477, 479 (6th Cir. 2016) (referencing a 24 court-approved SCRA class-action settlement that provided “$35,000 for emotional 25 distress”). At any rate, the number of courts that have rejected emotional-distress damages 26 is less important than their rationale for doing so. Were the facts insufficient to justify such 27 damages? Or did the courts say that those damages were always legally foreclosed? 28 1 Defendants suggest that at least a couple cases imply that such damages are 2 unavailable in SCRA actions. Yet both cases were focused on a discrete SCRA provision 3 that effectively amended a contract between the parties, so the courts held that available 4 remedies were limited to those recoverable on a “breach of contract” claim. See Banaszak 5 v. CitiMortgage, Inc., No. 13-CV-13710, 2014 WL 4489497, at *5 (E.D. Mich. Sept. 10, 6 2014) (“[D]amages for emotional distress cannot be recovered in an action for breach of 7 contract.”); Newton v. Bank of McKenney, No. 3:11CV493-JAG, 2012 WL 1752407, 8 at *8–9 (E.D. Va. May 16, 2012) (same). By contrast, Nelson’s SCRA claim arises under 9 a different provision about “[e]nforcement of storage liens,” not a contract breach, and is 10 grounds for a separate cause of action. See 50 U.S.C. § 3958; see also id. § 4042 (providing 11 a civil private right of action for “[a]ny person aggrieved by a violation of this chapter”). 12 Finally, defendants urge the Court to “hold that forum state law . . . applies to 13 plaintiff’s SCRA cause of action,” which they think would preclude emotional-distress 14 damages. (ECF 27-1, at 18–19.) As defendants point out, if a federal statutory scheme 15 leaves matters “unaddressed,” courts presume they are “subject to the disposition provided 16 by state law.” O’Melveny & Myers v. FDIC, 512 U.S. 79, 85 (1994). But Congress did not 17 leave the matter of damages unaddressed in the SCRA. That law authorizes an aggrieved 18 party to “obtain any appropriate equitable or declaratory relief” and “recover all other 19 appropriate relief, including monetary damages.” 50 U.S.C. § 4042(a). Notwithstanding 20 the defense’s preference for state law, the Court must use federal law to interpret whether 21 the critical term “appropriate relief” includes emotional-distress damages. After all, 22 “[f]ederal law, not state law, governs [the] interpretation of federal statutes.” United States 23 v. Diaz, 838 F.3d 968, 972 (9th Cir. 2016). And defendants do not argue that emotional- 24 distress damages are otherwise unavailable under federal law. 25 Perhaps there are winning legal arguments to preclude emotional-distress damages 26 under the SCRA here, but the defense has not raised them. Thus, defendants have not 27 carried their burden of establishing that they are entitled to judgment as a matter of law on 28 this point. 1 3. Military and Veterans Code 2 Under California’s Military and Veterans Code, defendants may be liable for 3 exercising “any right to foreclose or enforce any lien on the property or personal effects of 4 a service member, including liens for storage” “during that person’s period of military 5 service.” Cal. Mil. & Vet. Code § 409.1(b). Any violations entitle plaintiffs to “actual 6 damages,” among other relief. Id. § 409.1(c). Relying on a case about common-law 7 negligence, defendants argue that California law renders plaintiff “incapable of recovering 8 emotional distress damages in connection” with this claim. (ECF 27-1, at 17.) But the 9 damages here are authorized by statute, not common law. And in California, “the term 10 actual damages includes damages for emotional distress.” McNairy v. C.K. Realty, 59 Cal. 11 Rptr. 3d 429, 433 (Ct. App. 2007); see also id. (collecting cases from California and 12 elsewhere interpreting “actual damages” to “include damages for mental distress”); Cavka 13 v. SoulCycle Inc., No. 8:16-cv-01821-JLS-KES, 2017 WL 2906034, at *4 (C.D. Cal. Jan. 14 30, 2017) (“California’s state courts have construed the term ‘actual damages’ to ordinarily 15 . . . include damages for mental suffering.” (cleaned up)). Defendants do not explain why 16 this Court should deviate from California’s normal practice. So, they are not entitled to 17 summary judgment regarding emotional-distress damages on this claim. 18 F. Punitive Damages 19 Nelson seeks punitive damages both for his federal Servicemembers Civil Relief Act 20 claim and for his state claims. (ECF 1, at 11-12.) Defendants state that Nelson is “incapable 21 of showing an entitlement to an award of punitive damages” because “there is 22 fundamentally no allegation defendants intended to harm plaintiff or violate any statutory 23 duty.” (ECF 27-1, at 19–20.) 24 1. SCRA—Punitive Damages 25 “Punitive damages” are “available for [a] willful and wanton violation of the 26 SCRA.” Gordon v. Pete’s Auto Serv. of Denbigh, Inc., 837 F. Supp. 2d 581, 587 (E.D. Va. 27 2011); see also Ensley v. Gene’s Wrecker Serv., Inc., No. 3:16cv713-MCR-CJK, 2019 WL 28 1063392, at *1 (N.D. Fla. Feb. 4, 2019), report and recommendation adopted, 1 No. 3:16cv713-MCR-HTC, 2019 WL 1059689 (N.D. Fla. Mar. 6, 2019); Durm v. 2 American Honda Fin. Corp., No. CIV. WDQ-13-0223, 2013 WL 6490309, at *7 n.25 3 (D. Md. Dec. 9, 2013) (same). “The key fact at issue with respect to punitive damages 4 under the SCRA is whether defendant knew plaintiff’s vehicle belonged to a 5 servicemember when it put the vehicle up for auction and then sold the vehicle to a third 6 party.” Ensley, 2019 WL 1063392, at *1 (cleaned up). 7 A reasonable jury could conclude that Ganji knew Nelson was a servicemember at 8 the time of sale. First, Ganji personally towed the truck off a military base. (ECF 33-2, 9 at 235.) Also, he had a long-distance phone conversation with Nelson two weeks before 10 selling Nelson’s truck. Specifically, on August 2, 2021, Ganji handwrote this note to his 11 file: “RO called. He’s deployed. He tried to give power of attorney to a friend.” (ECF 33-2, 12 at 230.) Ganji testified that “RO” stood for “Registered owner,” meaning “Ethan Nelson.” 13 (Id. at 230–31.) Despite this note, Ganji swore that he still “did not know” whether Nelson 14 was in the military. (Id. at 235.) Based on all this circumstantial evidence, however, a 15 reasonable jury could disagree. That is, at least by the time the lien cleared on “August 16, 16 2021,” a reasonable jury could infer Ganji was aware that Nelson was a servicemember 17 deployed overseas. (See id. at 240.) As there’s a reasonable dispute over Ganji’s knowledge 18 of Nelson’s military status, the case must proceed to trial to determine whether punitive 19 damages on the SCRA claim are merited. 20 2. State Claims—Punitive Damages 21 The analysis—and result—is different under California’s punitive-damages section. 22 Nelson argues that defendants “have engaged in despicable conduct,” “intentionally 23 ignor[ing] the rights” of “every servicemember.” (ECF 33-1, at 17.) For California claims 24 “not involving” a “contract,” plaintiffs can recover punitive damages, that is, “damages for 25 the sake of example and by way of punishing the defendant.”2 Cal. Civ. Code § 3294(a). 26 27 2 Because Nelson doesn’t meet the standard for them in any event, the Court need 28 1 To do so, plaintiffs must show, “by clear and convincing evidence,” that defendant is 2 “guilty of oppression, fraud or malice.” Cal. Civ. Code § 3294(a). So, “summary judgment” 3 on “the issue of punitive damages is proper only when no reasonable jury could find the 4 plaintiff’s evidence to be clear and convincing proof of malice, fraud or oppression.” Butte 5 Fire Cases, 235 Cal. Rptr. 3d 228, 235 (Ct. App. 2018), as modified on denial of reh’g 6 (July 26, 2018); see also Johnson Indus. Sales, Inc. v. Strema Sales Corp., 224 F. App’x 7 709, 711 (9th Cir. 2007) (affirming summary judgment because the evidence did “not reach 8 [Cal. Civ. Code § 3294’s] heightened level of burden of proof of clear and convincing 9 evidence of an intent to ‘cause injury’ to the plaintiff or of ‘despicable conduct’”). 10 Plaintiff’s “despicable conduct” argument might fit under the requirement to show 11 either malice or oppression. “‘Malice’ means conduct which is intended by the defendant 12 to cause injury to the plaintiff or despicable conduct which is carried on by the defendant 13 with a willful and conscious disregard of the rights or safety of others.” Cal. Civ. Code 14 § 3294(c)(1). “Oppression means despicable conduct that subjects a person to cruel and 15 unjust hardship in conscious disregard of that person’s rights.” Id. § 3294(c)(2). Under both 16 definitions, “the adjective ‘despicable’ is a powerful term” that denies punitive damages 17 “absent an intent to injure the plaintiff.” Butte Fire Cases, 235 Cal. Rptr. 3d at 237. A 18 “‘willful and conscious’ disregard of the plaintiffs’ interests” is not enough. Id. 19 Nelson’s proof is thus deficient, as it suggests nothing more than “willful and 20 conscious disregard.” As set out above, there is evidence in the record to support the 21 conclusion that defendants knew that Nelson was a deployed servicemember yet sold the 22 truck anyway. Even so, Nelson points to no additional evidence to suggest Ganji sold the 23 truck because he was motivated by an “intent to injure” Nelson. See Butte Fire Cases, 24 25 available for a Military and Veterans Code § 409.1 claim. See Carpenter v. Forest 26 Meadows Owners Assn., No. 1:09-CV-01918-JLT, 2011 WL 3207778, at *18 (E.D. Cal. 27 July 27, 2011) (suggesting that “§ 409.1” might be limited to “actual damages, reasonable attorney’s fees, and costs” because, unlike another part of the Military and Veterans Code, 28 1 }}235 Cal. Rptr. 3d at 237. The closest Nelson comes is stating: “Defendant admitted that it 2 || didn’t even attempt to determine whether Plaintiff was an active duty military member.” 3 || (ECF 33-1, at 17.) But even “reckless disregard” is not “enough to sustain an award of 4 ||punitive damages” under California Civil Code § 3294. See Butte Fire Cases, 5 Cal. Rptr. 3d at 236. Without more, a reasonable jury could not make the necessary 6 ||findings to section 3294’s exacting clear-and-convincing standard. Thus, summary 7 ||judgment is granted on punitive-damages requests arising from Nelson’s state-law claims. 8 — Nelson’s Summary-Judgment Request 9 In his opposition brief, Nelson seeks summary judgment on his SCRA and MVC 10 || claims. (ECF 33-1, at 13.) But the deadline for filing summary-judgment motions expired 11 |}over a month before Nelson submitted his opposition papers. (See ECF 10, at 3.) 12 scheduling order is not a frivolous piece of paper, idly entered, which can be cavalierly 13 disregarded by counsel without peril.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 14 || 604, 610 (9th Cir. 1992) (quotation marks omitted). That motion is summarily denied. 15 CONCLUSION 16 Thus, the Court GRANTS summary judgment for the defense on: 17 1. Rosenthal Fair Debt Collection Practices Act (claim 3). 18 2. Unfair Competition Law (claim 4). 19 3. Intentional infliction of emotional distress (claim 6). 20 4. Emotional-distress damages for the negligence claim. 21 5. Punitive damages on the remaining state claims only. 22 || Defendants’ motion is otherwise DENIED. 23 || Dated: March 30, 2024 24 5 Hon. ndrew G. Schopler United States District Judge 26 27 28 13