Judge: Daniel M. Crowley, Case: 22STCV11396, Date: 2022-08-10 Tentative Ruling

Case Number: 22STCV11396    Hearing Date: August 10, 2022    Dept: 28

Defendant Melody Bar, LLC’s Motion to Strike

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND

On April 4, 2022, Plaintiffs Anthony Hightower, Jr. (“Hightower”), Tyrone Carter (“Carter”) and Joel Espinoza (“Espinoza”) filed this action against Defendant Melody Bar, LLC (“Defendant”) for assault, battery, negligence, negligent hiring and supervision, intentional inflection of emotional distress and violation of the Bane Act.

On July 7, 2022, Defendant filed a Motion to Strike to be heard on August 10, 2022. On July 28, 2022, Plaintiffs filed an opposition. On August 2, 2022, Defendant filed a reply.

Trial is currently scheduled for October 2, 2023.

PARTY’S REQUESTS

Defendant requests the Court strike Plaintiffs’ request for punitive damages.

Plaintiffs request the Court deny the motion.

LEGAL STANDARD

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof, but this time limitation shall not apply to motions specified in subdivision (e).”  (CCP § 435(b)(1), italics added.)  “A notice of motion to strike must be given within the time allowed to plead, and if a demurrer is interposed, concurrently therewith, and must be noticed for hearing and heard at the same time as the demurrer.”  (CRC 3.1322(b), italic added.)  “The defendant shall answer the amendments, or the complaint as amended, within 30 days after service thereof, or such other time as the court may direct, and judgment by default may be entered upon failure to answer, as in other cases.”  (CCP § 471.5(a).)

“The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”  (CCP § 437(a).)  The court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.”  (Ivanoff, supra, 9 Cal.App.5th p. 725.)  The court “assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.”  (Id.)  “The court does not, however, assume the truth of contentions, deductions or conclusions of law.  [Citation.]”  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

Code of Civil Procedure § 436 states that “[t]he court may, upon a motion made pursuant to Section 435, or at any time at its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or any order of the court.”

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code Section 3294. (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal. 4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code § 3294 (a).) “Malice is defined in the statute as conduct 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." (Coll. Hosp., Inc., supra, 8 Cal. 4th at 725 [examining Civ. Code § 3294(c)(1)].)

“[S]imple negligence will not justify an award of punitive damages.” (Spencer v. San Francisco Brick Co. (1907) 5 Cal.App.126, 128.) Civil Code § 3294(a) states: “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” “[E]ven gross negligence, or recklessness is insufficient to warrant an award of punitive damages.” (Dawes v. Superior Court (1980) 111 Cal App 3d 82, 87.)

“It is a settled rule of the law of agency that a principal is responsible to third persons for the ordinary contracts and obligations of his agent with third persons made in the course of the business of the agency and within the scope of the agent’s powers as such, although made in the name of the agent and not purporting to be other than his own personal obligation or contract.” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1178.) 

“[A]n employer may be liable for an employee’s act where the employer . . . subsequently ratified an originally unauthorized tort. [Citations.] The failure to discharge an employee who has committed misconduct may be evidence of ratification. [Citation.] The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery. [Citations.] Whether an employer has ratified an employee’s conduct is generally a factual question. [Citation.]” (Ventura v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 272.)

DISCUSSION

Plaintiff’s complaint alleges that Plaintiffs, while patrons of Defendant, were assaulted and battered by Defendant’s security staff. Defendant argues that Plaintiffs have failed to plead requisite specific facts demonstrating Defendant’s alleged malice, oppression or fraud as they do not identify the actual officer, director or managing agent who allegedly authorized/ratified the wrongful conduct.

Under CCP §3294, an employer shall not be liable for punitive damages based on the acts of an employee unless the employer either had advanced knowledge of the unfitness of the employee and employed them with conscious disregard for the safety of others or authorized or ratified the wrongful conduct, or was personally guilty or fraud, oppression, or malice. Plaintiffs’ complaint does not allege any of the above. There are no facts providing that the security guard was employed with conscious disregard for the safety of others, that the conduct was authorized or ratified, or that the employer was personally guilty of fraud, oppression, or malice. As such, the Court grants the motion.

Plaintiffs assert that their allegation that “Defendants, and each of their acts and/or omissions were either committed by, authorized, ratified, or otherwise approved...by Defendant...since Defendant’s security personnel was acting within the scope of their employment for Defendant.” As articulated above, this is not sufficient to meet the pleading standard for punitive damages under CCP §3294. Plaintiffs must plead facts beyond a simple allegation that the employees were acting within the scope of employment. There must be actual facts to indicate the allegation asserted, rather than a conclusory statement.

CONCLUSION

Defendant Melody Bar, LLC’s Motion to Strike is GRANTED, with 30 days leave to amend.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.