Judge: Armen Tamzarian, Case: 22STCV13106, Date: 2023-03-20 Tentative Ruling

Please notify Department 52 via email at smcdept52@lacourt.org and indicate that the parties are submitting on the tentative ruling. Please provide the attorney's name and represented party. Please notify the opposing side via email if submitting on the Court's tentative ruling.

Case Number: 22STCV13106    Hearing Date: March 20, 2023    Dept: 52

Defendant Jeff Sharp’s Demurrer and Motion to Strike Portions of Second Amended Complaint

Demurrer

Defendant Jeff Sharp demurs to the seventh cause of action alleged in plaintiff Maureen Martinez’s second amended complaint.  Plaintiff labels this cause of action “gender discrimination and age discrimination in violation of Civil Code, § 51 et seq.”

Defendant demurred on the grounds that the second amended complaint does not state a cause of action under the Unruh Civil Rights Act, Civil Code section 51.  The court sustained the entity defendants’ demurrer without leave to amend on that basis. 

Plaintiff’s opposition does not argue the second amended complaint states sufficient facts for a cause of action under the Unruh Civil Rights Act.  Instead, she argues she can amend her complaint to state sufficient facts for a cause of action under Civil Code section 51.9, which is not part of the Unruh Civil Rights Act.   (Brown v. Smith (1997) 55 Cal.App.4th 767, 774–775; see Stamps v. Superior Court (2006) 136 Cal.App.4th 1441, 1450 [“ ‘By its own terms, the Unruh Civil Rights Act comprises only section 51.’ ”].)  Civil Code section 51.9 prohibits “sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or … other verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe” (subd. (a)(2)) in “a business, service, or professional relationship” between the parties (subd. (a)(1)). 

After a successful demurrer, where “there is a reasonable possibility that the defects can be cured by amendment, leave to amend must be granted.”  (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.)  The plaintiff bears the burden of “demonstrat[ing] how the complaint can be amended.”  (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711.) 

In her opposition, plaintiff proposes amendments that may suffice to state a cause of action under Civil Code section 51.9 against defendant Jeff Sharp.  The court finds that plaintiff has shown a reasonable possibility of amending the seventh cause of action to cure its defects.

Motion to Strike

            Defendant Jeff Sharp moves to strike three portions of the second amended complaint regarding punitive damages.  Courts may strike allegations related to punitive damages where the facts alleged “do not rise to the level of malice, oppression or fraud necessary” to recover punitive damages under Civil Code section 3294.  (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64.)  Conclusory allegations are not enough.  (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)  The complaint must make “factual assertions supporting a conclusion [defendants] acted with oppression, fraud or malice.”  (Ibid.)  

Plaintiff’s second amended complaint does not allege sufficient facts to recover punitive damages from defendant Jeff Sharp.  The second amended complaint makes few specific allegations about Jeff Sharp as opposed to the other defendants.  Many of the relevant allegations are about his wife’s conduct, not his.  The second amended complaint alleges Sharp required plaintiff and her staff to attend meetings where Sharp’s wife promoted pornography.  (SAC, ¶¶ 48-53.)  Sharp’s wife would tell others about her pornographic content and the “sexual acts that she participates in.”  (¶ 49.)  Plaintiff further alleges “Katie Sharp would come by the office unannounced and sit in the producer’s offices and tell them about her sex life.”  (¶ 51.)  “Jeff and Katie Sharp would tell plaintiff that it was mandatory that her staff attend the meetings, even though they felt harassed because Katie Sharp was selling her porn site during the office meetings.”  (¶ 53.)  Plaintiff also alleges that in June 2019, Sharp gave “plaintiff a letter threatening termination because her husband had a ‘financial interest’ in an independent agency.”  (¶ 60.)

This alleged conduct by Sharp and his wife may have been inappropriate, unwelcome, and unprofessional, but it is not despicable.  The second amended complaint’s allegations do not rise to the level of malice, oppression, or fraud necessary for punitive damages.

Disposition

            Defendant Jeff Sharp’s demurrer to plaintiff’s seventh cause of action is sustained with leave to amend. 

Defendant Jeff Sharp’s motion to strike portions of the second amended complaint is granted with leave to amend.   The court hereby strikes paragraphs 356, 357, and 464 of the second amended complaint as against defendant Jeff Sharp only. 

Plaintiff shall file the third amended complaint no later than April 25, 2023.