Judge Daniel M. Crowley, Case Number: 24STCV14426, Date: 2024-12-09 Tentative Ruling

Defendants Precise Air Systems, Inc.’s and Greg Khachekian’s motion to strike portions of Plaintiff David Leache’s complaint is granted with 20 days leave to amend.

Defendants Precise Air Systems, Inc. (“PAS”) and Greg Khachekian (“Khachekian”) (collectively, “Defendants”) move to strike portions of Plaintiff’s Complaint pertaining to punitive damages, specifically: (1) ¶41, Lines 20-24; (2) ¶76, Lines 11-16; and (3) Prayer ¶6, Lines 18-19. (Notice of MTS, pgs. 1-2; C.C.P. §§425.10, 435, 436, 437.)

Before filing a motion to strike, the moving party must meet and confer in person, by telephone, or by video conference with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading and obviate the need for filing the motion. (C.C.P. §435.5(a).)

The moving party shall file and serve with the motion to strike a declaration stating either of the following: (A) The means by which the moving party met and conferred with the party who filed the pleading subject to motion, and that the parties did not reach an agreement resolving the objections raised in the motion to strike. (B) That the party who filed the pleading subject to motion failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith. (C.C.P. §435.41(a)(3).)

Defendants’ counsel declares that on August 6, 2024, he attempted to meet and confer with Plaintiff’s counsel telephonically and was unable to reach him. (Decl. of Hagopian ¶4.) Defendants’ counsel declares that he attempted to reach Plaintiff’s counsel numerous times. (See Decl. of Hagopian ¶¶5-6, 8.) Defendants’ counsel declares that on August 7, 2024, he received an email reply from Plaintiff’s counsel, to which he responded on August 20, 2024, laying out Defendants’ grounds for a motion to strike and seeking a time to meet and confer telephonically, to which he did not receive a response. (See Decl. of Hagopian ¶¶8-9.) Defendants’ counsel’s declaration is sufficient under C.C.P. §435.41(a). Therefore, the Court will consider Defendants’ motion to strike.

Plaintiff filed his operative Complaint on June 10, 2024 against Defendants alleging eight causes of action: (1) retaliation in violation of Labor Code §1102.5; (2) wrongful termination in violation of public policy; (3) recovery for civil penalties under PAGA; (4) failure to furnish wage and hour statements under Labor Code §§226 and 226.3; (5) failure to pay wages in a timely manner in violation of Labor Code §204; (6) waiting time penalties Labor Code §§201, 202, and 203; (7) failure to indemnify/reimburse necessary expenditures incurred during discharge of work duties Labor Code §2802; and (8) unfair competition.

Defendants filed the instant motion to strike on September 6, 2024. Plaintiff filed his opposition on November 22, 2024. As of the date of this hearing no reply has been filed.

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” or any pleading or part thereof “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (C.C.P. §436.)

Defendants move to strike portions of the Complaint pertaining to recovery of punitive damages (Complaint ¶¶41, ¶76, Prayer ¶6). (Notice MTS, pg. 2; C.C.P. §§425.10, 435, 436, 437.)

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 Cent. Cal., 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.) “Despicable Conduct” is conduct that is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715.)

Plaintiff fails to sufficiently allege malice in his causes of action to support his request for punitive damages. Plaintiff’s cause of action for Whistleblower Retaliation fails to allege specific facts demonstrating an intent to cause injury to Plaintiff or despicable conduct with the willful and conscious disregard of the rights safety of others. (See Complaint ¶¶30-36, 60-68.) Further, the cause of action fails to allege any specific facts demonstrating despicable conduct that subjected Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiff’s rights. (See Complaint ¶¶30-36, 60-68.)

Accordingly, Moving Defendants’ motion to strike Plaintiff’s request for punitive damages from the Complaint is granted with 20 days leave to amend.

Hon. Daniel M. Crowley

Judge of the Superior Court