Judge: David B. Gelfound, Case: 23CHCV02179, Date: 2024-04-10 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assistant in North Valley Department F49, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2249.  Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org.
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Case Number: 23CHCV02179    Hearing Date: April 10, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

DEMURRER WITH MOTION TO STRIKE

Motion filed: 3/8/24

MOVING PARTY: Defendant Kinetix Physical Therapy, Inc. (“Kinetix”)

RESPONDING PARTY: Plaintiff Megan McCormick (“Plaintiff”)

NOTICE: ok 

RELIEF REQUESTED: An order from this Court granting Kinetix’s Demurrer and striking punitive damages and prejudgment interest against it in the Prayer for Relief.

TENTATIVE RULING: The demurrer is OVERRULED. The Motion to Strike is GRANTED IN PART without leave to amend.

BACKGROUND

This action arises from allegations of sexual misconduct against Plaintiff during her physical therapy sessions. The named defendants include the alleged tortfeasor and his employer, Kinetix, at the time of the alleged sexual misconduct.

On July 24, 2023, Plaintiff initiated this action against Defendants Kinetix, Waldo Bote Leoncio (“Leoncio”), and Does 1 through 100.

Subsequently, on February 7, 2024, Plaintiff filed her First Amended Complaint (“FAC”) in response to Defendant Kinetix’s demurrer filed on October 4, 2023, rendering the October 4, 2023, demurrer moot. The FAC alleges seven causes of action: (1) Negligence; (2) Gross Negligence; (3) Negligent Hiring, Supervision, or Retention; (4) Assault; (5) Battery; (6) Sexual Battery; and (7) Negligent Infliction of Emotional Distress. Following this, on March 28, 2024, Defendant Leoncio filed his Answer to the FAC.

On March 8, 2024, Defendant Kinetix (“Kinetix” or the “Moving Defendant”) filed the instant Demurrer with Motion to Strike (the “Demurrer”).

            On March 26, 2024, Plaintiff filed her Opposition to Demurrer and Motion to Strike. Subsequently, the Demurring Defendant replied on April 4, 2024.

ANALYSIS

 “It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  A general demurrer is proper, and typically used, where the plaintiff fails to allege “facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e); Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1004.)

“The sufficiency of a cause of action is evaluated by presuming all of the material factual allegations in the complaint are true.” (Aubry v. TriCity Hospital Dist. (1992) 2 Cal 4th 962, 966 – 967 (Aubry).) In ruling on a demurrer, a court may consider facts that are properly subject to judicial notice.” (Arroyo v. Plosay, 225 Cal. App. 4th 279.) In ruling on a demurrer, the allegations of the complaint must be liberally construed, with a view to substantial justice between the parties. (Glennen v. Allergan, Inc. (2016) 247 Cal.App.4th 1, 6.) Nevertheless, while "[a] demurrer admits all facts properly pleaded, [it does] not [admit] contentions, deductions or conclusions of law or fact." (George v. Automobile Club of Southern California (2011) 201 Cal.App.4th 1112, 1120, 135.) Additionally, “[a] complaint otherwise good on its face is subject to demurrer when facts judicially noticed render it defective.” (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.)

“It is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103.) And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. (Blank v. Kirwan, supra, 39 Cal.3d at 318.)” Aubry, supra, 2 Cal. 4th 962, 967.)

A.    Meet and Confer

            A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., section 430.41(a).) A failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., sections 430.41 (a)(4).)

Defendant Kinetix claims that it made an effort to meet and confer with Plaintiff for the purpose of avoiding this Demurrer and Motion to Strike. Specifically, Kinetix sent a meet and confer letter to Plaintiff’s counsel on February 26, 2024, aiming to discuss the matters outlined in the Demurrer and Motion to Strike. (Kirkpatrick Decl., ¶ 5, Kim Decl., ¶ 5.) The parties then engaged in a telephonic meet and confer on March 4, 2024. Following this discussion, Kinetix sent a draft stipulation on March 6, 2024, proposing to dismiss the attorney fees portion of Plaintiff’s prayer for relief. Despite this effort, the parties did not reach an agreement. (Kirkpatrick Decl., ¶¶ 7-9, Kim Decl., ¶¶ 7-9.)

Based on these actions, the Court concludes that the meet and confer requirements have been sufficiently met.

1.      Notice of Demurrer

Here, Plaintiff contends that Defendant’s Notice of Demurrer “fails to state what grounds, if any, the Moving Party is alleged moving the Court for an order, arguing “A Notice for a Demurrer in California must distinctly specify the grounds for challenging the pleading[,]” thus not in compliance with Code of Civil Procedure section 430.10, and California Rules of Court, rule 3.1320(a). (Opp’n., at p. ii.)

Code of Civil Procedure section 430.10 provides, “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds[.]”

Similarly, California Rules of Court rule 3.1320(a) sets forth “Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.”

On the contrary, Defendant argues that these two sections refer to the requirements for the contents of the Demurrer, rather than the Notice. Specifically, Defendant references to California Rules of Courts rule 3.1320(c) which states, “(c) Notice of hearing[:] A party filing a demurrer must serve and file therewith a notice of hearing that must specify a hearing date in accordance with the provisions of Code of Civil Procedure section 1005 and, if service is by electronic means, in accordance with the requirements of Code of Civil Procedure section 1010.6(a)(4) and rule 2.251(h)(2).”

Based on the wording of the Codes and Rules cited by both parties, the Court agrees with Defendant’s interpretation that requirements for stating grounds of Demurrer is not mandated for the Notice of the Demurrer. Plaintiff does not provide other legal authorities to support her position. Consequently, the Court finds Plaintiff’s argument unpersuasive.

Therefore, the Court concludes that the Demurring Party has satisfied the notice requirement in accordance with applicable California Rules of Court rule 3.1320(c).

B.     Demurrer

1.      Notice of Demurrer

Here, Plaintiff contends that Defendant’s Notice of Demurrer “fails to state what grounds, if any, the Moving Party is alleged moving the Court for an order, arguing that “A Notice for a Demurrer in California must distinctly specify the grounds for challenging the pleading,” thereby not complying with Code o Civil Procedure section 430.10, and California Rules of Court, rule 3.1320(a). (Opp’n., at p. ii.)

Code of Civil Procedure section 430.10 provides, “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds[.]” Similarly, California Rules of Court rule 3.1320(a) stipulates, “Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.”

Contrarily, Defendant posits that these sections address the requirements for the content of the Demurrer itself, not the Notice. Defendant points to California Rules of Courts rule 3.1320(c) which states, “(c) Notice of hearing[:] A party filing a demurrer must serve and file therewith a notice of hearing that must specify a hearing date in accordance with the provisions of Code of Civil Procedure section 1005 and, if service is by electronic means, in accordance with the requirements of Code of Civil Procedure section 1010.6(a)(4) and rule 2.251(h)(2).”

Upon reviewing the cited Codes and Rules of Corut, the Court agrees with Defendant’s interpretation, determining that requirement to state the grounds of Demurrer does not extend to the Notice of the Demurrer. Plaintiff has not presented additional legal authorities to bolster her position, rendering her argument unconvincing.

Therefore, the Court concludes that the Moving Party has satisfied the notice requirements as mandated by the applicable California Rules of Court rule 3.1320(c).

2.      First Cause of Action - Negligence

            “The elements of a cause of action for negligence are duty, breach, causation, and damages.” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529). “Negligence may be generally pleaded, but there are limits to the generality with which the plaintiff is allowed to state a cause of action. The complaint must indicate the acts or omissions which the plaintiff claims were negligently performed.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 60.).

Here, the FAC details pertinent facts, including that Plaintiff was sent to the Moving Defendant, Kinetix, for physical therapy due to a work-related injury (Compl., ¶ 1); that Plaintiff was not informed by Kinetix of Defendant Leoncio’s lack of licensure as required by the State of California (Ibid); that Kinetix misrepresented Leoncio as a licensed therapist (Id., ¶ 4); and that Kinetix either knew of should have known of the licensure status of Leoncio through a pre-employment background check (Id., ¶ 8).  Furthermore, the FAC alleges that after several sessions of treatment by Leoncio, which were approved and ratified by Kinetix, a female staff member reported the Leoncio‘s inappropriate physical contact to management. (Id., ¶ 9.) This misconduct led to the Plaintiff being unable to continue her physical therapy and needed some time off due to the emotional distress it caused. (Id., ¶ 11.)

Kinetix maintains that Leoncio was hired not as a licensed therapist but an aide, which does not require him to be licensed. (Dem., at 2.) However, this contention, when assessed alone, only amounts to a dispute over a pleaded fact. Consequently, this contention is not considered by the Court at the demurrer stage. Courts assess the sufficiency of a cause of action by presuming the truth of all material factual allegations, (see Aubry, supra, 2 Cal 4th at 966-967), making this argument irrelevant.

Additionally, Kinetix makes an incomplete argument that Plaintiff’s FAC provides insufficient facts due to alleged contradictory pleadings (Dem, at 2, 6), specifically that Plaintiff was made aware by staff that Leoncio was an aide and not a physical therapist. However, this does not inherently contradict or invalidate other allegations that Leoncio was presented as a licensed therapist by Kinetix. The FAC articulates that it was only after several treatment sessions and a subsequent staff intervention that Plaintiff was informed of Leoncio’s actual status, which does not demonstrate contradictory pleading. (FAC., ¶¶ 9, 15).

Furthermore, Kinetix’s assertion that their later contemplation of terminating Leoncio for his inappropriate behavior contradicts the allegation of ratification of Leoncio’s action is unfounded. The FAC clearly states that Kinetix informed Plaintiff about their plan to terminate Leoncio after the alleged misconduct and multiple sessions for which the FAC pleads that Kinetix “ratified, accepted benefits of, condoned, lauded, acquiesced, authorized, and otherwise approved” these prior actions. (Compl., ¶ 7.)

The argument also fails to address the possibility of stating a cause of action under any legal theory, as is outlined in Barquis v. Merchants Collection Assn, supra, 7 Cal.3d at 103, “[I]T is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory.”

 The FAC alleges Kinetix’s breach of duty through multiple negligent actions, including misrepresentation of Leoncio’s qualifications, and failure to take any steps to investigate or to remove Leoncio from the position, which suffices to plead a cause of action for negligence. 

Consequently, the Court concludes the FAC has sufficiently pleaded the cause of action for negligence. Therefore, the Court OVERRULES the Demurrer as the first cause of action.

3.      Second Cause of Action – Gross Negligence

California law does not recognize an independent cause of action for gross negligence. Rather, gross negligence is pleaded by alleging the traditional elements of negligence: duty, breach, causation, and damages. To set forth a claim for “gross negligence” the plaintiff must also allege conduct by the defendant involving either “want of even scant care” or “an extreme departure from the ordinary standard of conduct.” Gross negligence connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results. (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640 [quotations/citation omitted].) Whether conduct constitutes gross negligence is generally a question of fact, depending on the nature of the act and the surrounding circumstances shown by the evidence – i.e., whether the conduct could be found to constitute gross negligence. (Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 555.)

Given the Court’s previous conclusion that Plaintiff has sufficient pleaded a cause of action for negligence, it now considers the additional allegations pertinent to gross negligence.

Here, Plaintiff alleges that Defendant Kinetix neglected to the state mandate for physical therapists to be licensed (Compl., ¶¶ 2, 4, 6, 7, 8, 9, and 13-17); failed to mitigate the unreasonable risk of harm from its employee required to be registered as a sex offender; (Id., ¶ 20), and made material misrepresentation to the public (Ibid.)

Kinetix does not deny that it had legal obligations under California Business and Professions Code to verify the licensure of physical therapists, it argues, however, that the FAC does not specify the applicable section of the Business and Professional code. (Reply, at 2.) Furthermore, Kinetix maintains that at the time of or prior to Plaintiff’s allegations, Leoncio was not a sex offender and was hired as an aide not a therapist. (Dem., at 6-7.)

In reviewing a demurrer, the Court must consider the facts pleaded in the complaint, assuming their truth and interpret them liberally, in addition to facts subject to judicial notice. (See Arroyo v. Plosay, Supra; Glennen v. Allergan, Inc, Supra.) Consequently, the Court finds that the omission of a specific section of the Business and Professions Code in the FAC does not justify sustaining a demurrer. Moreover, the Court does not evaluate additional or disputed facts not presented in the FAC or in judicial notice. 

Therefore, the Demurrer does not persuasively demonstrate that the FAC fails to allege sufficient facts to constitute a cause of action for gross negligence.

The Court OVERRULES the Demurrer with respect to the second cause of action.

4.      Third Cause of Action – Negligent Hiring, Supervision, or Retention

In California, an employer may be liable to a third party for negligently hiring or retaining an unfit employee. (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836.) Negligent hiring/retention is a theory of direct liability—not vicarious liability. (J.W. v. Watchtower Bible and Tract Society of New York, Inc. (2018) 29 Cal.App.5th 1142, 1163.)

A negligent hiring, supervision, or retention cause of action requires the following elements: (1) the employer’s hiring, supervising, or retention of an employee; (2) the employee’s incompetence or unfitness; (3) the employer’s knowledge or reason to believe that undue risk of harm would exist because of the employment; and (4) the occurrence of harm related to the employee’s incompetence or unfitness. (Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1213-1214; Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054, 1055 [“[t]he cornerstone of a negligent hiring theory is the risk that the employee will act in a certain way and the employee does act in that way. Plaintiff has failed to allege those necessary facts.”].)

“Liability for negligent hiring ... is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees.” (Evan F. v. Hughson United Methodist Church, supra.) Liability for negligent ... retention of an employee is one of direct liability for negligence, not vicarious liability. (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815.) (See CACI 426.)

Here, the FAC avers that Kinetix hired Leoncio (Compl., ¶ 27), who was incompetent or unfit for his role due to lacking license as required by state law and due to his status as a registered sexual offender (Compl., ¶ 28.) Moreover, it further alleges that Kinetix should know or would have discovered Leoncio’s status if a pre-employment background check was performed. (Ibid.) Furthermore, Plaintiff alleges facts to have been sexually harassed by Leoncio. (Id., ¶¶ 2, 9, 14, 15, 21.)

Kinetix argues that it could not have known that Leoncio was a sex offender at his time of hire, as he was not a sex offender then. (Dem. at 8.) While Kinetix concedes the hiring of Leoncio, fulfilling the first element of the cause of action, the Court, adhering to the standard applicable to demurrer review, does not consider Kinetix’s contention regarding Leoncio’s status. The review process requires assuming the truth of the complaint’s factual allegations and does not permit evaluation of contested facts not evident from the face of the complaint.  

Accordingly, the Court concludes that the FAC sufficiently pleads the third cause of action, OVERRULING the Demurrer.

5.      Seventh Cause of Action – Negligence Infliction of Emotional Distress

The doctrine of “negligent infliction of emotional distress (NIED)” is not a separate tort or cause of action. It simply allows certain persons to recover damages for emotional distress only on a negligence cause of action even though they were not otherwise injured or harmed. (See Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 928.)

Here, Kinetix challenges the sufficiency of the FAC on the grounds that Plaintiff does not qualify as a direct victim of Kinetix’s action, nor does she meet the criteria for a bystander under the NIED doctrine. (Dem. at 10, Reply, at 4.)

However, Plaintiff’s claims for Negligence, Gross Negligence, and Negligent Hiring, Supervision, and Retention aim to establish direct liability actions against Kinetix. The FAC has already been found to contain adequate factual allegations to support these causes of action. Given that NIED facilitates the recovery of damages for emotional distress within the framework of these established negligence claims, Defendant’s argument – that Plaintiff was not a direct victim – without further legal substantiation, essentially presents an unsupported conclusion rather than a factual or legal analysis.

Consequently, considering the established principles surrounding NIED and the sufficient pleadings presented in the FAC, the Court finds the argument presented by Kinetix to be without merit.

Therefore, the Court OVERRULES the Demurrer regarding the seventh cause of action.  

6.      Fourth, Fifth, and Six Causes of Action – Battery, Assault, Sexual Battery

Kinetix argues that it cannot be held liable for Assault, Battery, and Sexual Battery, under the doctrine of respondeat superior, citing case law to support its position. (Dem., at 9.)

In her Opposition, Plaintiff points out that these causes of action are levied against Leoncio exclusively, not Kinetix, thereby rendering Kinetix’s argument irrelevant. (Opp’n., at 10.) In response, Kinetix acknowledges this clarification, states to provide no further argument, contingent on Plaintiff’s assertion being accurate. (Reply, at 4.)

Upon review, the Court notes that the operative FAC evidently does not allege against Kinetix for these three causes of actions. Therefore, the Court deems Kinetix’s initial argument pertaining to these actions moot.

C.    Motion to Strike

"The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 ["Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded"].) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).)

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.  (Code Civ. Procs., § 3294, subd. (a).)  “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others.  (Civ. Code, § 3294, subd. (c)(1).)  “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’  [Citation.]”  (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.)  

“As amended to include [despicable], the [Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests.  The additional component of ‘despicable conduct’ must be found.”  (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)  The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.”  (Ibid.)  Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.  Such conduct has been described as ‘having the character of outrage frequently associated with crime.’”  (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)  Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.”  (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155.)

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice.  (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.)  “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages.  (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.) (Underlines added.) Moreover, conclusory allegations are not sufficient to support a claim for punitive damages.  (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)

1.      Notice of Motion to Strike

“Any party, within the time allowed to respond to a pleading may serve and file a notice to strike the whole or any part thereof[.]” (Code Civ. Proc., § 435, subd., (b)(1).)

California Rules of Court rule 3.1322 (a) provides that “[a] notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.”

            Here, Kinetix’s Notice of Motion (the “Notice”) states, “Defendant specifically requests that the Court strike all requests for punitive damages. Statutory authority for this motion lies in Code of Civil Procedure section 435.” (Kinetix’s Notice of Motion, at 2.) Notably, the Notice does not quote in full the portion sought to be stricken, nor does it number the specification consecutively.  Given these omissions, the Court interprets the Motion as one to “strike an entire paragraph, cause of action, count, or defense,” in line with California Rules of Court rule 3.1322(a).

            The FAC makes one singular request for punitive damage, under paragraph 2 of the Prayer for Relief. (FAC, at 11.) The Court’s review does not extend to arguments pertaining to other paragraphs within the FAC, as they do not comply with the notice requirements stipulated by the Rules of Court.

2.      Punitive Damages

“[T]he imposition of punitive damages upon a corporation is based upon its own fault.¿ It is not imposed vicariously by virtue of the fault of others.”¿ (City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal.App.3d 31, 36.) “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive.¿ An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees.¿ But the law does not impute every employee’s malice to the corporation.¿ Instead, the punitive damages statute requires proof of malice among corporate leaders: the officers, directors, or managing agents.”  (Cruz v. Home Base (2000) 83 Cal.App.4th 160, 167.) (Citations omitted and quotations omitted.)¿  

Plaintiff argues that the Defendant Kinetix fails to read the FAC as a whole, which purportedly provides sufficient factual basis for punitive damages in the prayer. (Opp’n., at 2.)

Although the Court has previously found that the FAC sufficiently outlines direct liability causes of action against Kinetix, it notes an absence of specific allegations detailing malice, fraud, or oppression by Kinetix’s officers, directors, or managing agents. The allegations lie in negligence, gross negligence, negligent hiring, supervision, and retention, and include a uniform paragraph across these causes of action. It alleges, “Plaintiff is informed and believes and based thereon alleges that the outrageous conduct of Defendants described above was done with malice, fraud, and oppression and with conscious disregard for her rights and with the intent, design, and purpose of injuring her. Defendants, through its officers, managing agents and/or its supervisors, authorized, condoned and/or ratified the unlawful conduct of all of the other Defendants named in this action. By reason thereof, Plaintiff is entitled to punitive or exemplary damages from all Defendants in a sum according to proof at trial. By reason thereof, Plaintiff is entitled to punitive or exemplary damage in sum be determined at trial.” (FAC, ¶ 17, 24, 31.) 

However, the Court concludes that these allegations, while aimed at establishing the grounds for punitive damages, do not meet the required threshold to substantiate claims of malice, fraud, or oppression. Referencing Kendall Yacht Corp. v. United California Bank, supra, the Court emphasizes that mere negligence, even gross negligence, is not sufficient to justify such an award for punitive damages. Furthermore, the Court finds the paragraphs asserting malice, fraud, and oppression, to be conclusory, lacking factual basis to support such claims.

3.      Leave to Amend

The burden is on the plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.) 

Here, Plaintiff has not sought leave to amend. Despite previously filing the FAC in response to Defendant’s October 4, 2023, Demurrer with Motion to Strike – which rendered the initial demurrer moot – the FAC still does not adequately allege facts that would support a claim for punitive damages against Defendant Kinetix. Therefore, the Court finds there is no reasonable possibility that this deficiency in the FAC can be cured.

Accordingly, the Motion to Strike is GRANTED IN PART without leave to amend.

CONCLUSION

Defendant Kinetix Physical Therapy’s Demurrer is OVERRULED.  Defendant to file an answer within ten days.

Defendant Kinetix Physical Therapy’s Motion to Strike is GRANTED IN PART, without leave to amend.

The Court specifically strikes the request “For exemplary and punitive damages according to proof” as to Defendant Kinetix Physical Therapy.