Judge Christian R. Gullon, Case Number: 23PSCV03431, Date: 2024-02-01 Tentative Ruling

Judge: Christian R. Gullon, Case: 23PSCV03431, Date: 2024-02-01 Tentative Ruling

DEFENDANT HOME EXPRESS DELIVERY SERVICE, LLC dba TEMCO LOGISTICS’S MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT is GRANTED with 15 days leave to amend.

This is a wrongful termination case. Plaintiff BILL WELCH alleges the following against Defendant HOME EXPRESS DELIVERY SERVICE, LLC dba TEMCO LOGISTICS: Plaintiff began his employment with Defendant in November 2021 as a technician. On his first day (12/7/21), Plaintiff got in a car accident; Plaintiff was the passenger, and another company employee was the driver. Plaintiff was taken back to the warehouse and treated by “Industrial Athletes.” (¶17.) After weeks of pain, Defendant was put Plaintiff on light duty (e.g., sweeping), but Plaintiff could not endure that pain, so Defendant placed Plaintiff on temporary leave. (¶20.) Plaintiff’s temporary disability/medical leave was extended to 2/28/22. (¶23.) For the first time, during his 5/11/22 worker’s compensation claim deposition, Plaintiff learned he had been terminated on 1/21/22 for not providing medical documents as requested, which he always did. (¶¶24, 25.)

On November 3, 2023, Plaintiff filed suit asserting the following causes of action (COAs):

3. Disability Discrimination In Violation Of The FEHA (Govt’ Code § 12940, Et Seq.)

4. Failure To Engage In The Interactive Process In Violation Of The FEHA (Govt’ Code § 12940, Et Seq.)

5. Failure To Provide Reasonable Accommodation In Violation Of The FEHA (Govt’ Code § 12940, Et Seq.)

6. Failure To Prevent And/Or Remedy Discrimination/ Retaliation In Violation Of The FEHA (Govt’ Code § 12940, Et Seq.)

California Civil Code section 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .” (Civ. Code § 3294(a).)

“‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Id., § 3294(c)(2).) “‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Id., § 3294(c)(3).) “‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Id. § 3294(c)(1).) “Malice and oppression may be inferred from the circumstances of a defendant's conduct.” (Monge v. Superior Court (1986) 176 Cal.App.3d 503, 511, 222 Cal.Rptr. 64.)

A plaintiff must establish the defendant was aware of the probable dangerous consequences of his conduct and that he willfully and deliberately failed to avoid those consequences to support an award of punitive damages based on conscious disregard of the safety of others. (Penner v. Falk (1984) 153 Cal.App.3d 858, 867.) Punitive damages thus require more than the mere commission of a tort. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95.) Specific facts must be pleaded in support of punitive damages. (See Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-92.)

Should a plaintiff not make the allegations required by CCP section 3294, a party may move to strike the allegations pursuant to CCP section 436 subdivision (a) which provides that “The Court may, upon a notice made pursuant to section 435, or at any time in its discretion, and upon terms it deems proper: (a) strike out any irrelevant, false, or improper matter inserted in any pleading.” (Motion p. 2.)

Defendant seeks to strike allegations of malice, oppression, or fraud to support the prayer for or imposition of punitive damages as there are no specific factual allegations of such.

Here, while the court disagrees with Defendant that the allegations are conclusory,[2] the court agrees with Defendant that the allegations are insufficient to demonstrate malice, fraud, or oppression.

Plaintiff asserts its request for punitive damages based upon a variety of conduct: Plaintiff was never told he was fired, never asked to get written work restrictions almost a week after already being terminated, Defendant stayed in communication with Plaintiff after his termination indicating to him that he was still employed, and Defendant lied to him about the reason for termination stating instead that Plaintiff failed to provide documentation. (Opp. p. 8:4-9, see generally Complaint pp. 4-5.)

But Plaintiff has not explained how the aforementioned conduct constitutes as “despicable conduct” carried on by Defendant “with a willful and conscious disregard of the rights or safety” of Plaintiff. (Motion pp. 5-6.) Patently, lying to an employee about their termination is fraudulent, but fraud for purposes of punitive damages requires more than a mere showing of a misrepresentation but an intention of doing so to deprive the person of a property or legal right or otherwise causing injury. (§ 3294(c)(3).) Plaintiff’s complaint is silent as to Defendant’s intention.

In opposition, Plaintiff cites to two cases: Contreras-Velazquez v. Family Health Centers of San Diego, Inc. (2021) 62 Cal.App.5th 88, 106 and Colucci v. T-Mobile, USA, Inc. (2020) 48 Cal. App. 5th 442, WL 2059849. (Opp. pp. 6-7.) Both, however, are distinguishable. (See also Reply pp. 2-3.)

Colucci v. T-Mobile, USA, Inc. (2020) 48 Cal. App. 5th 442, WL 2059849 is equally unhelpful as that too involved an appeal from a judgment and involved the issue of whether the amount of punitive damages should be reduced. As noted above, the court’s concern on this motion to strike is whether Plaintiff has sufficiently pled facts, not evidence, but facts. Even assuming the case was procedurally similar, the facts undermine Plaintiff’s position that it has pled sufficient facts for punitive damages. In Colucci, the plaintiff suffered from an anxiety disorder that prevented him from performing his job in the crowded mall location, to which store manager stated, “this is the most ridiculous thing I've ever heard.” (Id. at p. 447.) Later, the plaintiff learned that employees were spreading inflammatory rumors and/or making defamatory statements about him (defamation incident). When the plaintiff asked the manager to investigate, the manager agreed to do so “but allowed the investigation to languish, telling Colucci he should “quit complaining” and that he had been “nothing but problems.” (Ibid.) Ultimately, the manager recommended to HR that T-Mobile terminate the plaintiff, “bypass[ing] T-Mobile's progressive discipline policy, which might have included a warning or less severe consequence before resorting to termination.” (Id. at p. 449.) Despite the plaintiff lodging a second internal complaint against the store manager, “[u]ndeterred, [the manager] proceeded with processing Colucci's termination.” (Ibid.) At trial, the jury agreed that the manager was a managing agent of T-Mobile and that the defendant’s actions were committed with malice or oppression. (Id. at p. 450.)

Here, however, Defendant’s employees made no such statements to Plaintiff or about Plaintiff. In fact, when Plaintiff was injured, an employee (Ray)[3] communicated with Plaintiff, did not make statements to other employees, and checked on Plaintiff. (See e.g., ¶23 [In response to Plaintiff’s 1/27/22 text that he isn’t sure if he can get back to limited duty, Ray responds “Let me know if I can help in anyway. Please send me a copy of the medical note so I can extend leave on our end.”].) As noted by Defendant, at most Ray’s text suggests carelessness (i.e., Ray was not aware of Plaintiff’s termination).

Therefore, absent statements or conduct made prior to termination, Plaintiff has not made sufficient allegations to support malice, fraud, or oppression.

Based on the foregoing, the MTS is GRANTED. Though Plaintiff does not seek leave to amend in its opposition, the court grants leave to amend. The court grants 15 days leave to amend.

[1] The parties met and conferred. (See Reynolds Decl., ¶3 [“On November 30, 2023, I met and conferred with Plaintiff’s counsel telephonically to discuss Temco’s contentions as laid out in the meet-and-confer letter. We spoke amicably and at length, but ultimately this call resulted in an impasse as to the issues described in the attached Motion to Strike.”].)

[2] For the most part, the allegations are not conclusory in that Plaintiff provides what Defendant did, e.g., Defendant did not inform Plaintiff of his termination. Effectively, its less of a matter of conclusive allegations but rather whether the allegations sufficiently allege Defendant’s intent. Thus, the court agrees with Plaintiff insofar as the specificity requirement is met. (Opp. p. 6.)

[3] The complaint does not state Ray’s position. (See ¶21 [“WELCH continued to keep in contact with TEMPCO’S safety [sic] Ray and his supervisor Moses.”].)