Judge: Anne Hwang, Case: 22STCV26980, Date: 2023-11-07 Tentative Ruling

Case Number: 22STCV26980    Hearing Date: November 7, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

On August 19, 2022, Plaintiff Cesar Maciel (Plaintiff) filed a complaint against Defendants United Nationwide Security Services, Robert Soesoe, Yong Kim, and Does 1 to 50 alleging negligent hiring, retention, and supervision, negligence, assault, battery, and intentional infliction of emotional distress (IIED).

Defendants United Nationwide Security Services and Robert Soesoe (Defendants) now move to strike references to punitive damages in the negligent hiring, assault, battery, and IIED causes of action and in the prayer for relief. Plaintiff opposes and Defendants reply.

LEGAL STANDARD

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper.  (Code Civ. Proc. §§ 435; 436(a).)  Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders.  (Code Civ. Proc. § 436(b).)  A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer.  (Pierson v Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).)  In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers.  (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.)  The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.”  (Code Civ. Proc. § 436.) 

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a).)  “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others.  (Civ. Code, § 3294, subd. (c)(1).)  “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’  [Citation.]”  (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.)    

“As amended to include [despicable], the [Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests.  The additional component of ‘despicable conduct’ must be found.”  (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) (emphasis added.)  The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.”  (Ibid.)  Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.  Such conduct has been described as ‘having the character of outrage frequently associated with crime.’”  (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)  Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.”  (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155.) 

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice.  (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.)  “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages.  (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.) Moreover, conclusory allegations are not sufficient to support a claim for punitive damages.  (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) 

When seeking damages from an employer, an employer is not liable for punitive damages arising from an employee’s actions pursuant to Civil Code section 3294(a) unless 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 authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. (Civ. Code § 3294(b).) With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation. (Id.)¿ 

MEET AND CONFER

“Before filing a motion to strike . . . the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.”  (Code Civ. Proc., § 435.5, subd. (a).)  If no agreement is reached, the moving party shall file and serve with the motion to strike a declaration stating either: (1) the means by which the parties met and conferred and that the parties did not reach an agreement, or (2) that the party who filed the pleading failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith.  (Code Civ. Proc., § 435.5, subd. (a)(3).)  

According to the Declaration of Phillip Hwang and attached exhibit, it appears the parties met over the telephone prior to bringing this motion. (Hwang Decl. ¶ 2–3, Exh. A.) Therefore, the meet and confer requirement has been satisfied.

ANALYSIS

As an initial matter, since a motion to strike is limited to the face of the complaint, the Court will not consider Plaintiff’s exhibits attached to his opposition.

Defendants move to strike the following lines from the Complaint:

Page 3, line numbers 22-23: “… maliciously punched him...”

Page 7, line numbers 5-7: “…as they knew or should’ve known of SOESOE’s violent propensities; uncontrollable temper and likelihood to commit assault on patrons of LAX Liquor.” Page 8, line numbers 3-6: “…they knew or should have known of SOESOE’s violent propensities, uncontrollable temper and prejudice toward PLAINTIFF and his companion.”

Page 9, line numbers 3-5: “…as they knew or should have known of SOESOE’S violent propensities, uncontrollable temper and prejudice toward PLAINTIFF and his companion.” Prayer for Relief, Page 10, line numbers: 15-16: “5. For punitive and exemplary damages;” Prayer for Relief, Page 10, line numbers: 23-24: “5. For punitive and exemplary damages;” Prayer for Relief, Page 11, line numbers: 4-5, “5. For punitive and exemplary damages;”

Negligent Hiring

Here, on page 3, line numbers 22-23: “… maliciously punched him...” is included in the Negligent Hiring cause of action against Defendant United Nationwide Security Services, Inc. (“United”). However, Plaintiff does not pray for punitive damages for this cause of action. (See Complaint, 9.) Therefore, since Plaintiff does not seek punitive damages for Negligent Hiring, the motion to strike “maliciously punched him” is denied.

Defendant United

The following portions of the complaint all generally allege that United is vicariously liable for Soesoe’s action because they knew or should have known of his dangerous propensities.

Page 7, line numbers 5-7: “…as they knew or should’ve known of SOESOE’s violent propensities; uncontrollable temper and likelihood to commit assault on patrons of LAX Liquor” is found in the fifth cause of action for assault. Page 8, line numbers 3-6 contains a similar allegation: “…they knew or should have known of SOESOE’s violent propensities, uncontrollable temper and prejudice toward PLAINTIFF and his companion.” Page 9, line numbers 3-5 states: “…as they knew or should have known of SOESOE’S violent propensities, uncontrollable temper and prejudice toward PLAINTIFF and his companion.”

However, since United is a corporate employer, Plaintiff must allege that the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice was on the part of an officer, director, or managing agent of the corporation. (Civ. Code § 3294(b).) Here, there is no allegation in the fifth, sixth, or seventh cause of action that an officer, director, or managing agent of the corporation knew of and consciously disregarded Soesoe’s unfitness. Therefore, the motion to strike page 7, line numbers 5-7: “…as they knew or should’ve known of SOESOE’s violent propensities; uncontrollable temper and likelihood to commit assault on patrons of LAX Liquor” and the corresponding prayer for punitive damages (page 10:15-16) is granted.

For the same reason, the motion to strike page 8, line numbers 3-6 “…they knew or should have known of SOESOE’s violent propensities, uncontrollable temper and prejudice toward PLAINTIFF and his companion” and corresponding prayer for punitive damages (page 10:23-24) is granted.

For the same reason, the motion to strike page 9, line numbers 3-5 states: “…as they knew or should have known of SOESOE’S violent propensities, uncontrollable temper and prejudice toward PLAINTIFF and his companion” and the corresponding prayer for punitive damages (page 11:4-5) is granted.

The burden is on Plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.)  Here, it is reasonably possible for Plaintiff to amend the complaint. Therefore, the motion to strike is granted in part with leave to amend.

Defendant Robert Soesoe

As to Defendant Robert Soesoe, Plaintiff has alleged enough facts to support a claim for punitive damages for the Assault, Battery, and IIED causes of action. In each of these causes of action, Plaintiff alleges that “[a]fter Plaintiff and his companions placed their bicycles at the edge of the store near the entrance in order to shop, Defendant Robert Soesoe began shouting expletives at the both of them. After a brief encounter, and with no provocation at all, SOESOE hit and struck Plaintiff multiple times, resulting Plaintiff to completely fall on his back and head, rendering him unconscious.” (Complaint ¶¶ 36, 40, 45.)

Here, Plaintiff seeks punitive damages for intentional torts, rather than mere negligence. Additionally, the ultimate facts stated in the complaint demonstrate that Soesoe hit and struck Plaintiff without provocation. Therefore, the events are described as intentional and contain the “character of outrage frequently associated with crime.” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.) Therefore, the motion to strike punitive damages for the fifth, sixth, and seventh causes of action as to Defendant Robert Soesoe, is denied.

CONCLUSION AND ORDER

Defendants’ motion to strike is DENIED in part and GRANTED in part with leave to amend. Any amended complaint shall be filed and served within 30 days.

Defendants shall provide notice of the Court’s ruling and file a proof of service of such.