March 20, 2008

Fotheringham v. Avery Dennison: Unpublished Opinion Reverses Summary Adjudication on Punitive Damages Claim

The Second Appellate District, Division Seven, issued this unpublished opinion yesterday reversing the trial court's summary adjudication of the plaintiff's punitive damages claim. The court held that the defendant's summary adjudication motion was deficient because it rested on argument alone and failed to allege facts showing that the plaintiff could not recover punitive damages. The court highlighted the difference between California and federal standards regarding summary judgment/adjudication motions:

"Pointing out through argument, as Avery Dennison has done, that Fotheringham has no evidence of malice and oppression or of the requisite managing agent conduct is inadequate. . . . 'Whereas, under federal law, "pointing out through argument" [citation] may be sufficient [citation], under state law, it is not.' (Id. at p. 855, fn. omitted.) As Avery Dennison did not meet its initial burden in moving for summary adjudication of this claim, the trial court erred in granting summary adjudication here."

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