Judge Daniel M. Crowley, Case Number: 22STCV22675, Date: 2023-08-04 Tentative Ruling

Defendant Peace Over Violence’s motion to strike Plaintiff Shirley Alvarado-Del Aguila’s claims for punitive damages in her second amended complaint is granted without leave to amend.

Defendant Peace Over Violence (“POV”) (“Defendant”) moves to strike portions of Plaintiff Shirley Alvarado-Del Aguila’s (“Alvarado Del-Aguila”) (“Plaintiff”) second amended complaint (“SAC”), specifically the claims for punitive and exemplary damages pursuant to C.C.P. §435(b)(1). (Notice of Motion, pgs. 1-7; C.C.P. §§431.10(b), 436.) Defendant’s motion is made on the grounds that the requests for punitive damages are improper because they constitute demands for relief not supported by the SAC’s allegations. (Notice of Motion, pg. 5.)

Defendant filed the instant motion on September 27, 2023. Plaintiff filed her opposition on January 25, 2024. Defendant filed its reply on January 31, 2024.

Defendant’s 1/31/24 evidentiary objections to the Declaration of Ken Boyd (“Boyd”) are sustained as to Nos. 1, 2, 3, 4, 5, and 6.

C.C.P. §436 provides that the Court may, upon a motion made pursuant to C.C.P. §435, or at any time within its discretion and upon terms it deems proper, “strike out any irrelevant, false, or improper matter inserted in any pleading.” (C.C.P. §436(a).)

Defendant moves to strike the following sections and prayer for relief from the SAC: (1) ¶62 (“In committing the foregoing acts, Defendants POV and/or Does 1-25, acted in a despicable, oppressive, and malicious manner with the express intent of injuring or damaging Plaintiff or with conscious disregard of Plaintiff’s rights and with the intent to vex, injure, and annoy Plaintiff, such as to constitute oppression, fraud, or malice under California Civil Code section 3294, thereby entitling Plaintiff to punitive and exemplary damages against Defendants in a sum appropriate to punish and make an example out of Defendants.”); (2) ¶63 (“The acts of oppression, fraud, or malice against Plaintiff were engaged in by agents and employees of Defendants POV and/or Does 1-25. Defendants POV and/or Does 1-25 had advance knowledge of the unfitness of employees and/or agents who acted with malice, oppression, or fraud and employed them with a conscious disregard of the rights or safety of Plaintiff, and/or authorized or ratified the wrongful conduct for which an award of punitive damages is sought, and/or was personally guilty of oppression, fraud, or malice. The advance knowledge and conscious disregard, authorization, ratification, or act of oppression, fraud, or malice was committed by or on the part of an officer, director, or managing agent of Defendants POV and/or Does 1-25, thereby entitling Plaintiff to punitive and exemplary damages against Defendants in accordance with California Civil Code section 3294 in a sum appropriate to punish and make an example out of Defendants. The specifics of the oppression fraud, or malice are discussed in ¶¶ 18-25, 29-32, and 35-49 above.”); (3) ¶71 (“In committing the foregoing acts, Defendants POV and/or Does 1-25, acted in a despicable, oppressive, and malicious manner with the express intent of injuring or damaging Plaintiff or with conscious disregard of Plaintiff’s rights and with the intent to vex, injure, and annoy Plaintiff, such as to constitute oppression, fraud, or malice under California Civil Code section 3294, thereby entitling Plaintiff to punitive and exemplary damages against Defendants in a sum appropriate to punish and make an example out of Defendants.”); (4) ¶72 (“The acts of oppression, fraud, or malice against Plaintiff were engaged in by agents and employees of Defendants POV and/or Does 1-25. Defendants POV and/or Does 1-25 had advance knowledge of the unfitness of employees and/or agents who acted with malice, oppression, or fraud and employed them with a conscious disregard of the rights or safety of Plaintiff, and/or authorized or ratified the wrongful conduct for which an award of punitive damages is sought, and/or was personally guilty of oppression, fraud, or malice. The advance knowledge and conscious disregard, authorization, ratification, or act of oppression, fraud, or malice was committed by or on the part of an officer, director, or managing agent of Defendants POV and/or Does 1-25, thereby entitling Plaintiff to punitive and exemplary damages against Defendants in accordance with California Civil Code section 3294 in a sum appropriate to punish and make an example out of Defendants. The specifics of the oppression fraud, or malice are discussed in ¶¶ 18-25, 29-32, and 35-49 above.”); (5) ¶82 (“In committing the foregoing acts, Defendants POV and/or Does 1-25, acted in a despicable, oppressive, and malicious manner with the express intent of injuring or damaging Plaintiff or with conscious disregard of Plaintiff’s rights and with the intent to vex, injure, and annoy Plaintiff, such as to constitute oppression, fraud, or malice under California Civil Code section 3294, thereby entitling Plaintiff to punitive and exemplary damages against Defendants in a sum appropriate to punish and make an example out of Defendants.”); (6) ¶83 (“The acts of oppression, fraud, or malice against Plaintiff were engaged in by agents and employees of Defendants POV and/or Does 1-25. Defendants POV and/or Does 1-25 had advance knowledge of the unfitness of employees and/or agents who acted with malice, oppression, or fraud and employed them with a conscious disregard of the rights or safety of Plaintiff, and/or authorized or ratified the wrongful conduct for which an award of punitive damages is sought, and/or was personally guilty of oppression, fraud, or malice. The advance knowledge and conscious disregard, authorization, ratification, or act of oppression, fraud, or malice was committed by or on the part of an officer, director, or managing agent of Defendants POV and/or Does 1-25, thereby entitling Plaintiff to punitive and exemplary damages against Defendants in accordance with California Civil Code section 3294 in a sum appropriate to punish and make an example out of Defendants. The specifics of the oppression fraud, or malice are discussed in ¶¶ 18-25, 29-32, and 35-49 above.”); (7) ¶91 (“In committing the foregoing acts, Defendants POV and/or Does 1-25, acted in a despicable, oppressive, and malicious manner with the express intent of injuring or damaging Plaintiff or with conscious disregard of Plaintiff’s rights and with the intent to vex, injure, and annoy Plaintiff, such as to constitute oppression, fraud, or malice under California Civil Code § 3294, thereby entitling Plaintiff to punitive and exemplary damages against Defendants in a sum appropriate to punish and make an example out of Defendants.”); (8) ¶92 (“The acts of oppression, fraud, or malice against Plaintiff were engaged in by agents and employees of Defendants POV and/or Does 1-25. Defendants POV and/or Does 1-25 had advance knowledge of the unfitness of employees and/or agents who acted with malice, oppression, or fraud and employed them with a conscious disregard of the rights or safety of Plaintiff, and/or authorized or ratified the wrongful conduct for which an award of punitive damages is sought, and/or was personally guilty of oppression, fraud, or malice. The advance knowledge and conscious disregard, authorization, ratification, or act of oppression, fraud, or malice was committed by or on the part of an officer, director, or managing agent of Defendants POV and/or Does 1-25, thereby entitling Plaintiff to punitive and exemplary damages against Defendants in accordance with California Civil Code section 3294 in a sum appropriate to punish and make an example out of Defendants. The specifics of the oppression fraud, or malice are discussed in ¶¶ 18-25, 29-32, and 35-49 above.”); (9) ¶100 (“In committing the foregoing acts, Defendants POV and/or Does 1-25, acted in a despicable, oppressive, and malicious manner with the express intent of injuring or damaging Plaintiff or with conscious disregard of Plaintiff’s rights and with the intent to vex, injure, and annoy Plaintiff, such as to constitute oppression, fraud, or malice under California Civil Code § 3294, thereby entitling Plaintiff to punitive and exemplary damages against Defendants in a sum appropriate to punish and make an example out of Defendants. The specifics of the oppression fraud, or malice are discussed in ¶¶ 18-25, 29-32, and 35-49 above.”); (10) ¶101 (“The acts of oppression, fraud, or malice against Plaintiff were engaged in by agents and employees of Defendants POV and/or Does 1-25. Defendants POV and/or Does 1-25 had advance knowledge of the unfitness of employees and/or agents who acted with malice, oppression, or fraud and employed them with a conscious disregard of the rights or safety of Plaintiff, and/or authorized or ratified the wrongful conduct for which an award of punitive damages is sought, and/or was personally guilty of oppression, fraud, or malice. The advance knowledge and conscious disregard, authorization, ratification, or act of oppression, fraud, or malice was committed by or on the part of an officer, director, or managing agent of Defendants POV and/or Does 1-25, thereby entitling Plaintiff to punitive and exemplary damages against Defendants in accordance with California Civil Code section 3294 in a sum appropriate to punish and make an example out of Defendants.”); (11) ¶109 (“In committing the foregoing acts, Defendants POV and/or Does 1-25, acted in a despicable, oppressive, and malicious manner with the express intent of injuring or damaging Plaintiff or with conscious disregard of Plaintiff’s rights and with the intent to vex, injure, and annoy Plaintiff, such as to constitute oppression, fraud, or malice under California Civil Code § 3294, thereby entitling Plaintiff to punitive and exemplary damages against Defendants in a sum appropriate to punish and make an example out of Defendants.”); (12) ¶110 (“The acts of oppression, fraud, or malice against Plaintiff were engaged in by agents and employees of Defendants POV and/or Does 1-25. Defendants POV and/or Does 1-25 had advance knowledge of the unfitness of employees and/or agents who acted with malice, oppression, or fraud and employed them with a conscious disregard of the rights or safety of Plaintiff, and/or authorized or ratified the wrongful conduct for which an award of punitive damages is sought, and/or was personally guilty of oppression, fraud, or malice. The advance knowledge and conscious disregard, authorization, ratification, or act of oppression, fraud, or malice was committed by or on the part of an officer, director, or managing agent of Defendants POV and/or Does 1-25, thereby entitling Plaintiff to punitive and exemplary damages against Defendants in accordance with California Civil Code section 3294 in a sum appropriate to punish and make an example out of Defendants. The specifics of the oppression fraud, or malice are discussed in ¶¶ 18-25, 29-32, and 35-49 above.”); and (13) Prayer ¶4 (“punitive damages, according to proof, on each cause of action for which such damages are available . . ..”).

Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Civ. Code §3294(a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Id.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Id.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud, or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

“Conduct which warrants punitive damages must be of ‘such severity or shocking character [as] warrants the same treatment as accorded to willful misconduct – conduct in which defendant intends to cause harm.’” (Woolstrum v. Mailloux (1983) 141 Cal.App.3d Supp. 1, 10, quoting Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 286.) “[C]onclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or

implied,’ within the meaning of section 3294.” (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)

Plaintiff’s SAC fails to allege specific statements or acts demonstrating the alleged termination was done out of spite or malice because of Plaintiff’s cancer diagnosis. (See SAC ¶¶21, 25; Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 717 [“[W]rongful termination, without more, will not sustain a finding of malice or oppression.”]; Taylor v. Superior Court of Los Angeles County (1979) 24 Cal.3d 890, 894-895 [“Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.”].) Further, Plaintiff’s allegation of intentional misrepresentation merely concludes that Defendant’s Executive Director/CEO Patti Giggans (“Giggans”) “later and intentionally lied about this April 14, 2022[,] telephone call with Plaintiff. Specifically, Giggans lied that during this call Plaintiff said that Plaintiff had already moved to North Carolina and did not have any plans to return when in fact Plaintiff has said no such thing. Giggans (and POV) used this lie as pretext to justify the termination of Plaintiff and thereby protect POV against liability and deny Plaintiff her right to not be discriminated against based on her disability and medical condition.” (SAC ¶21.)

Plaintiff’s argument analogizing the facts in the instant case to the facts in Cloud v. Casey (1999) 76 Cal.App.4th 895, is unavailing. In Cloud, executives made specific statements indicating they did not promote the employee because of her gender. The court considered “direct statements by Mr. Casey and other executives that the company had never had a woman in that position, that it was not comfortable to have a woman in that position, that men do not like smart competent women working for them, and that perhaps gender was a factor in the decision.” (Cloud, 76 Cal.App.4th at pg. 911.) The Cloud Court found sufficient evidence to support the jury’s punitive damages verdict based on direct evidence of the executives’ gender discrimination.

Here, unlike in Cloud, Plaintiff does not allege any direct, specific statement or act from Giggans or POV to support the allegation that Plaintiff was terminated because of her cancer diagnosis and relies merely on pretext and allegations of discrimination. (Turman, 191 Cal.App.4th at pg. 65 [“Appellant persists that the

punitive damages allegations are adequately pled, relying primarily on the underlying facts associated with the cause of action for gender discrimination. . . . [S]uch facts do not rise to the level of malice, oppression or fraud necessary under Civil Code section 3294 to state a claim for punitive damages.”].)

Further, Plaintiff’s allegation of “intentional lies” based on information and belief that Giggans approved POV’s Human Resources Manager, Sonia Taizan’s (“Taizan”) “May 20, 2022 email prior to it being sent despite knowing that it contained the foregoing false statements” does not support an allegation of punitive damages because the email correspondence between Taizan and Plaintiff that is attached to the SAC lacks evidence of malice, oppression, or fraud. Taizan’s email merely states, “Upon communicating that Peace Over Violence would not be able to approve the reque[s]t [to work remotely from North Carolina], it wa[s] agreed upon with you to officially send [sic] your termination after May 5th. You requested this be done to coordinate with the ending of your [s]tate di[s]ability benefit[s.] Peace Over Violence agreed to your reque[s]t t[o] wait until May 5th.” (SAC ¶¶36-37, Exh. E at pg. 47.) Taizan’s email alleges POV’s reasonable belief and reliance on Plaintiff’s representations that she already lived in North Carolina. A misunderstanding between an employer and an employee does not support a claim for punitive damages, nor does a failure to investigate the misunderstanding.

Plaintiff has had three opportunities to allege a claim for punitive damages and has failed to make a viable allegation. (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 618-619 [properly denying leave to amend after plaintiff given three opportunities to plead a viable cause of action]; Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 994-995 [properly sustaining third demurrer to complaint without leave to amend, having provided plaintiff “ample opportunity” to cure defect in complaint].)

Accordingly, Defendant’s motion to strike Plaintiff’s request for punitive and exemplary damages from her FAC is granted without leave to amend.

Hon. Daniel M. Crowley

Judge of the Superior Court