Judge: David B. Gelfound, Case: 24CHCV01306, Date: 2024-08-07 Tentative Ruling

Case Number: 24CHCV01306    Hearing Date: August 7, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

DEMURRER WITH MOTION TO STRIKE

Motion filed: 6/17/24

MOVING PARTY: Defendants Omid Vesal, M.D. (“Dr. Vesal”) d/b/a Irvine Urgent Care (“IUC”) and Carlos Ernesto Monge (“Monge”) (collectively, “Defendants”)

RESPONDING PARTY: Plaintiff Summer Hopkins (“Hopkins” or “Plaintiff”)

NOTICE: OK.

RELIEF REQUESTED: An order sustaining Defendants’ demurrer to the Third, Fourth, Fifth, Sixth, and Twelfth Causes of Action in Plaintiff’s Complaint and to strike portions of the Complaint.

TENTATIVE RULING: The demurrer is SUSTAINED. The motion to strike is GRANTED IN PART. Plaintiff is GRANTED LEAVE TO AMEND.

BACKGROUND

This action arises from alleged harassment, discrimination, retaliation, and multiple Labor Code and Fair Employment and Housing Act (“FEHA”) violations by the employer Defendants.

On April 11, 2024, Plaintiff filed the Complaint against Defendants, alleging the following causes of action: (1) Hostile Work Environment Sexual Harassment, (2) Failure to Prevent and Remedy Harassment, (3) Disability Discrimination in Violation of FEHA, (4) Failure to Accommodate in Violation of FEHA, (5) Failure to Engage in the Interactive Process in Violation of FEHA, (6) Retaliation in Violation of FEHA, (7) Assault & Battery, (8) Violation of Labor Code §§ 233, 234, and 246.5, (9) Violation of Labor Code §§ 226.7 and 512 (Failure to Provide Adequate Meal & Rest Breaks), (10) Violation of Labor Code § 226(a) (Inaccurate Wage Statements), (11) Violation of Labor Code §§ 200-204 (Waiting Time Penalties), and (12) Violation of Labor Code §§ 1102.5 and 98.6.

On July 24, Plaintiff filed her Oppositions to Demurrer and Motion to Strike, respectively. Defendants replied to each on July 30, 2024.

ANALYSIS

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal 3d 311, 318.) No other extrinsic evidence can be considered.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747 (Hahn).)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dep’t of Water & Power (2006) 144 Cal. App. 4th 1216, 1228.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.  (Donabedian v. Mercury Ins. Co. (2004) 116 Cal. App. 4th 968, 994.) 

“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  (SKF Farms v. Superior Ct. (1984) 153 Cal. App. 3d 902, 905.)  “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  (Hahn, supra, 147 Cal.App.4th at 747.)

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, 42 Cal. 2d 767, 782 (1954) [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) 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).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

A.    Demurrer

1)      Meet and Confer Requirement

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).)

            Here, Defendants have satisfied this requirement (Hodges Decl. ¶¶ 2-3.)

2)      Third Cause of Action – Disability Discrimination in Violation of FEHA

An employer is liable under Government Code sections 12940 and 12926.1 (FEHA) for discrimination because of an employee’s disability when: (1) the plaintiff has a disability or medical condition or was regarded as suffering from a disability; (2) the plaintiff could perform the essential duties of the job with or without reasonable accommodations; (3) the defendant made an adverse employment decision; and (4) the decision was because of plaintiff’s actual or perceived disability or medical condition. ((Faust v. Cal. Portland Cement Co.  (2007) 150 Cal.App.4th 864, 886; King v. United Parcel Service, Inc.  (2007) 152 Cal.App.4th 426, 432; Jensen v. Wells Fargo Bank (2000) 85 Cal. App. 4th 245, 254.)

i)                   Qualifying Disability

A physical disability under FEHA includes “[h]aving any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that” both affects one or more of the body's major systems and “[l]imits a major life activity.” (Gov. Code § 12926, subd. (m)(1).)  Major life activity is “broadly construed” and includes working. (Gov. Code § 12926, subd. (m)(1)(B)(iii).) FEHA protects individuals not only from discrimination based on an existing physical disability, but also from discrimination based on a potential disability or the employer's perception that the individual has an existing or potential disability. (Gov. Code §§ 12926, subd. (m)(4), (5), 12926.1, subd. (b).)

To show disability, the plaintiff must demonstrate condition makes “difficult” work or some major life activity; and, to show one is regarded as having a disability, one must be regarded as having a condition making major life activity difficult, or as having a condition that may become disabling (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 46-47).

            Here, the Complaint alleges that Plaintiff became employed by Defendant IUC in or around July 2023. (Compl. ¶ 10.) Subsequently, Plaintiff’s employment with IUC was terminated. Plaintiff believes the decision to terminate her employment was substantially caused by her medical condition, and her refusal to entertain Defendant Monge’s sexual advances. Additionally, Plaintiff was never given a reason for the termination of her employment, nor did she ever receive a termination letter. (Id. ¶ 25.)

            Furthermore, the Complaint alleges that on or about February 1, 2024, a previous cyst that Plaintiff had in her ovaries began causing her severe pain. Plaintiff believed that the cyst had ruptured. Therefore, Plaintiff sent Monge, Bryan, and the owner of IUC, Dr. Vesal, a text message informing them that she was in severe pain and was unable to come to work due to the serious medical condition. (Compl. ¶ 21.) “Dr. Vesal responded to Plaintiff’s text message and instructed her to call him. Plaintiff responded by stating, ‘I’ll call you in a second I’m crying in pain right now.’ Plaintiff also assured Dr. Vesal that she had trained her co-worker, Vivianna (Last Name Unknown) (hereinafter ‘Vivianna’), to handle Plaintiff’s tasks for the day.” (Id. ¶ 23.)

            In their Demurrer, Defendants argue that Plaintiff’s alleged medical condition is not protected under FEHA as the first and only mention of Plaintiff’s “serious medical condition” occurred on February 1, 2024, and that the Complaint alleges Plaintiff only needed a single sick day to recover from her severe pain. (Reply, at p. 3, Compl. ¶¶ 22, 75.) Defendants also contend that although Plaintiff believed that her pain on February 1, 2024, was related to a previous cyst that Plaintiff had in her ovaries, the Complaint does not identify any ongoing need for time off or for accommodation. (Id. at p. 5.)

            The Court notes that FEHA’s definition of disability does not exclude all temporary, nonchronic impairments. (See Diaz v. Federal Express Corp. (C.D.Cal.2005) 373 F.Supp.2d 1034, 1046-1053.) However, a “disability” does not include conditions with “little or no residual effects, such as the common cold; seasonal or common influenza; minor cuts, sprains, muscle aches, soreness, bruises, or abrasions; non-migraine headaches, and minor and non-chronic gastrointestinal disorders.” (Cal. Code Regs., tit. 2, § 11065, subd. (d)(9)(B).)

Here, the Complaint only alleges that on February 1, 2024, Plaintiff experienced severe pain and was unable to work. (Compl. ¶ 21.) However, the Complaint does not allege an ongoing medical condition or any residual effects that limited some major life activities. (See Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 348 (Arteaga) [Pain alone without some corresponding limitation on activity is insufficient to establish a disabling impairment.”])

Plaintiff contends that this case is distinguishable from Arteaga because her symptoms from her ruptured ovarian cyst were so severe that it was difficult to achieve the activity of even laying down and standing still, much less working. (Opp’n. at p. 8.) However, these conditions and residual effects were not alleged on the face of the Complaint. There is also no pleading of any diagnosis of the medical condition as an alleged disability.

Consequently, the Court finds that the medical condition as alleged in the Complaint is inadequate to qualify as a protected disability under FEHA.

ii)                 IUC’s Knowledge of Plaintiff’s Alleged Disability

Plaintiff must show that Defendants knew of her alleged physical disability. “An adverse employment decision cannot be made ‘because of’ a disability, when the disability is not known to the employer.” (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236.)

An employer “knows an employee has a disability when the employee tells the employer about his condition, or when the employer otherwise becomes aware of the condition, such as by observation. The employer needs only to know the underlying facts, not the legal significance of those facts." (See Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 592.)

 “‘Where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer, ... the initial burden rests primarily upon the employee ... to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.’” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013.)

Here, the Complaint alleges that Plaintiff sent Defendants Monge and the owner of the IUC, Vesal, a text message informing them that she was in severe pain and unable to come to work. (Comp. ¶ 21.) Plaintiff responded to Dr. Vesal by texting, “I’ll call you in a second I’m crying in pain right now, and stating that she was very ill. (Id. ¶¶ 22, 24.)

However, the Complaint does not allege that Plaintiff mentioned the underlying facts that her pain was related to a previous ovarian cyst condition. Combined with Plaintiff’s request for taking one-day of sick leave to recover from her pain (Compl. ¶ 22.), the Court determines that these allegations do not sufficiently state that Defendants became aware of any underlying facts other than pain. Without the knowledge of underlying facts, the Complaint has not shown that Defendants either knew any actual or perceived working limitation.   

            Based on the above, the Complaint has failed to state all elements of this Cause of Action, leading to the Court’s sustainment of the Demurrer.

            Therefore, the Court SUSTAINS the Demurrer as to the Third Cause of Action.

3)      Fourth Cause of Action – Failure to Accommodate in Violation of FEHA

A cause of action for failure to accommodate in the interactive process under FEHA requires an employer “to make reasonable accommodation for the known” physical disability. (Gov. Code, § 12940, subd. (m).) (Underlines added.)

            As previously analyzed, the Court finds that the Complaint has failed to state the common elements of the FEHA causes of action, specifically, Plaintiff’s qualifying disability and Defendants’ knowledge of the physical disability.

            Consequently, the Court SUSTAINS the Demurrer as to the Fourth Cause of Action.

4)      Fifth Cause of Action – Failure to Engage in the Interactive Process in Violation of FEHA

Similar to the Fourth Cause of Action, Government Code section 12940, subdivision (n), requires an employer who receives a request for an accommodation to “engage in a timely, good faith, interactive process” with an employee “with a known” physical disability. (Underlines added.)

For the same reasons stated in the previous analysis, the Court SUSTAINS the Demurrer as to the Fifth Cause of Action.

5)      Sixth Cause of Action – Retaliation in Violation of FEHA

Government Code section 12940, subdivision (h), provides that it is unlawful for an employer to take adverse employment action against “any person because the person has opposed any practices forbidden [by the FEHA] or because the person has filed a complaint, testified, or assisted in any proceeding under [the FEHA].”

An employer is liable if it knew or should have known of coworker retaliatory conduct and either participated in and encouraged the conduct, or failed to take reasonable actions to end it. (Kelley v. Conco Companies (2011) 196 Cal.App.4th 191, 213, see also Joaquin v. City of L.A. (2012) 202 Cal.App.4th 1207, 1230 (Joaquin) [“retaliatory intent is an essential element of a cause of action for unlawful retaliation under FEHA.”].)

            The Complaint alleges that on February 1, 2024, her staffing manager Bryan (“Bryan”) sent her a text message stating that “Dr. Vesal had instructed him to terminate Plaintiff’s employment.” Plaintiff was never given a reason for the termination of her employment, nor did she ever receive a termination letter. Plaintiff believes the decision to terminate her employment was substantially caused by her medical condition, as well as her refusal to entertain Defendant Monge’s sexual advances. (Compl. ¶ 111.) Additionally, the Complaint alleges that “[s]aid retaliation was and is in violation of § 12940 of the California Government Code because Plaintiff’s termination was motivated, at least in part, by her complaints about MONGE’s sexual harassment and/or her request for an accommodation for her disability.” (Id.  ¶ 112.)

            Plaintiff’s Sixth Cause of Action is based on two protected activities under FEHA – namely her complaint about Monge’s sexual harassment and her request for an accommodation for her alleged disability. (Comp. ¶ 112.)

            As the Court has previously determined that the Complaint does not sufficiently establish a qualifying disability or that Defendants had knowledge of such a disability, it concludes that Plaintiff’s request for one-day sick leave, based solely on an instance of severe pain without further facts, does not constitute a basis for the retaliation under the Sixth Cause of Action.

            However, the Court finds that Plaintiff’s complaint about Monge’s sexual harassment falls within the FEHA’s protected activities under Government Code section 12940, subdivision (j)(1), which sets forth, in relevant part, that “[it is an unlawful employment practice] for an employer ... to harass an employee.” (Gov. Code § 12940, subd. (j)(1), also see Gov. Code § 12940, subd. (j)(4)(C) [“For the purpose of this subdivision, “harassment” because of sex includes sexual harassment, gender harassment[.]])

Nevertheless, Plaintiff must also plead “retaliatory intent” by Defendants. (Joaquin, supra, 202 Cal.App.4th at p. 1230.) The Complaint has failed to provide any factual allegations supporting this element, merely asserting that the determination of her employment was “

substantially caused by her medical condition, as well as her refusal to entertain Defendant MONGE’s sexual advances.” (See Compl. ¶ 25.)

By failing to allege this essential element of a cause of action for unlawful retaliation under FEHA, the Court must sustain the demurrer, pursuant to Code of Civil Procedure section 430.10, subdivision (e).

            Accordingly, the Court SUSTAINS the Demurrer as the Six Cause of Action.

6)      Twelfth Cause of Action – Retaliation in Violation of Labor Code Sections §§ 98.6 and 1102.5

Labor Code section 98.6 prohibits retaliation against an employee for exercising rights protected by the Labor Code. (Lab. Code § 98.6; Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 87.)

The prima facie showing of retaliation under Labor Code section 1102.5(b) (Whistleblowing) requires the following elements: (1) the plaintiff engaged in a protected activity, (2) the employer subjected the plaintiff to adverse employment action, and (3) there is a causal link between the two. (Patten v. Grant Joint Union High School Dist.  (2005) 134 Cal.App.4th 1378, 1384; Hansen v. Cal. Dept. of Corrections and Rehab. (2008) 171 Cal.App.4th 1537, 1546.) Liability under labor code whistleblower provision requires plaintiffs to show that retaliation was a “contributing factor” in their termination, demotion, or other adverse action. This means plaintiffs may satisfy their burden of proving unlawful retaliation even when other, legitimate factors also contributed to the adverse action. (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 713; see, e.g., State Comp. Ins. Fund v. Ind. Acc. Com. (1959) 176 Cal.App.2d 10, 17.)

Protected activity is the disclosure of or opposition to “a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation, not just local employer policies. (Mueller v. County of L. A. (2009) 176 Cal.App.4th 809, 821-822.)

            Defendants argue that Plaintiff does not identify any particular whistleblower activity. (Reply at p. 7.)

The Court disagrees. Firstly, as discussed above, sexual harassment in a work environment is a violation of Government Code section 12940, subdivision (j). Secondly, the Legislature made another amendment to section 1102.5(b) in 2013, expanding its protections to include an employee's disclosure made “to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance.” (Stats. 2013, ch. 781, § 4.1; See id., § 5.) Consequently, section 1102.5 protects Plaintiff’s report and complaint directly to the employer, in addition to public agencies.

However, the Complaint lacks the necessary allegations to establish that Plaintiff’s protected activity (her right not to be harassed) was a contributing factor in Defendants’ decision to terminate her employment. Instead, Plaintiff alleges an interaction prior to her termination where Defendant Dr. Vesal queried via text message asking if Plaintiff believed that he should “accept the frustration of a recent inconsistent operation.” (Compl. ¶ 177.) This allegation can be inferred to mean that the termination could have been predicated on reasons unrelated to Plaintiff’s complaint, thereby further weakening the required causal link between her protected activity and the termination.

            Therefore, the Court SUSTAINS the Demurrer as to the Twelfth Cause of Action.

B.     Motion to Strike

Defendants move to strike (the “Motion”) the following portions of Plaintiff’s Complaint:

1.      “Said actions justify the imposition of punitive damages in that Defendants committed the acts alleged herein maliciously, fraudulently, and oppressively, with the wrongful intention of injuring Plaintiff, from an improper and evil motive amounting to malice, and in conscious disregard of Plaintiff’s rights. Based upon the foregoing, Plaintiff is entitled to recover punitive damages from Defendants, and each of them, in an amount according to proof.” (Compl. ¶ 43 [as to the First Cause of Action].)

2.      “Said actions justify the imposition of punitive damages in that Defendant IRVINE URGENT CARE committed the acts alleged herein maliciously, fraudulently and oppressively, with the wrongful intention of injuring Plaintiff, from an improper and evil motive amounting to malice, and in conscious disregard of Plaintiff’s rights.” (Compl. at p. 12, lines 11-14 [portion of ¶ 60] [as to the Second Cause of Action].)

3.      “Based upon the foregoing, Plaintiff is entitled to recover punitive damages from Defendants, and each of them, in an amount according to proof.” (Compl. at p. 12, lines 16-17 [as to the Second Cause of Action].)

4.      “Said actions also justify the imposition of punitive damages in that Defendant committed the acts alleged herein maliciously, fraudulently, and oppressively, with the wrongful intention of injuring Plaintiff, from an improper and evil motive amounting to malice, and in conscious disregard of Plaintiff’s rights. Based upon the foregoing, Plaintiff is entitled to recover punitive damages from Defendants, and each of them, in an amount according to proof.” (Compl. ¶ 71 [as to the Third Cause of Action])

5.      “Said discrimination and/or refusal to accommodate/engage in the interactive process was wrongful and justifies the imposition of punitive damages since decision to terminate Plaintiff’s employment because she needed one (1) day off to recover from the pain of her disability was against public policy. Defendant intentionally failed to accommodate Plaintiff, acted maliciously, fraudulently and oppressively, with the wrongful intention of injuring Plaintiff. Defendant acted with an evil purpose, in an intentional and deliberate manger, in violation of Plaintiff’s civil rights, and/or with conscious disregard of Plaintiff’s rights. Based upon the foregoing, Plaintiff is entitled to recover punitive damages from Defendants, and each of them, in an amount according to proof.” (Compl. ¶ 82 [as to the Fourth Cause of Action].)

6.      “Said discrimination and/or refusal to accommodate/engage in the interactive process was wrongful and justifies the imposition of punitive damages since the failure to accommodate Plaintiff’s disability and engage in the interactive process was against public policy. Defendant intentionally failed to engage in the interactive process, with the wrongful intention of injuring Plaintiff. Defendant acted with an evil purpose, in an intentional and deliberate manner, in violation of Plaintiff’s civil rights, and/or with conscious disregard of Plaintiff’s rights. Based upon the foregoing, Plaintiff is entitled to punitive damages from Defendants, and each of them, in an amount according to proof.” (Compl. ¶ 94 [as to the Fifth Cause of Action].

7.      “Said retaliation was wrongful and justifies the imposition of punitive damages since it was against public policy. Defendant intentionally retaliated against Plaintiff on account of her protected activity, and in doing so, Defendant acted maliciously, fraudulently, and oppressively, with the wrongful intention of injuring Plaintiff. Based upon the foregoing, Plaintiff is entitled to recover punitive damages from Defendants, and each of them, in an amount according to proof.” (Compl. ¶ 181 [as to the Twelfth Cause of Action]. And,

8.      "For punitive damages;" (Compl., at p. 35, line 1; Prayer, ¶ 6.)

1)      Meet and Confer

“Before filing a motion to strike ... the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc. § 435.5, subd. (a).) If no agreement is reached, the moving party shall file and serve with the motion to strike a declaration stating either: (1) the means by which the parties met and conferred and that the parties did not reach an agreement, or (2) that the party who filed the pleading failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith. (Code Civ. Proc. § 435.5, subd. (a)(3).)

Here, Defendants have satisfied the meet and confer requirements. (Hodge Decl. ¶¶ 2-3.)

2)      Motion to Strike Punitive Damages

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.)

“Malice” is defined as conduct intended by the defendant to cause injury to the plaintiff or despicable conduct 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.)

“Oppression” is defined in as “despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).) The term “despicable” has been defined in the case law as actions that are “base,” “vile,” or “contemptible.” (See, e.g., Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal. App. 4th 847, 891.)

“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.) The allegations supporting a request for punitive damages must be alleged with specificity; conclusory allegations without sufficient facts are not enough. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)

            “An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code, § 3294, subd. (b).)

i)                   Paragraphs 43 and Portions of Paragraph 60 In the Complaint

Here, Defendants argue that the corporate Defendant IUC cannot be directly liable for punitive damages as Plaintiff has not alleged that IUC knew of, ratified, or authorized Monge’s behavior, or that it engaged in despicable conduct toward Plaintiff. (Mot. at p. 8.)

            In response, Plaintiff contends that advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice should be imputed on IUC under Civil Code section 3294, subdivision (b), as Monge is a managing agent of IUC. (Opp’n. at p. 4.)

            The Complaint alleges that Defendant IUC is, and at all times herein mentioned has been, a California Medical Corporation (Compl. ¶ 7), and “Defendant MONGE was, at all times herein mentioned, a Partner and Manager at IRVINE URGENT CARE[.]” (Id.  ¶ 8.)

            The Court assumes the truth of the allegation and determines that the imputation is implicated based on the above allegations. Defendants’ dispute over Monge’s exact role within the corporation does not overcome the presumption under the reviewing standards for a motion to strike.

            Furthermore, the Complaint has alleged specific facts to support a pleading that Monge’s alleged sexual harassing conduct was malicious and oppressive (Compl. ¶¶ 14-20, also see Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 618 [“sexual harassment is often inherently oppressive and malicious.” [internal citation omitted.]]

            Accordingly, the Court DENIES the Motion as to paragraph 43 and portions of paragraph 60 in the Complaint.

ii)                  Paragraphs 71, 82, 94, and 181

In the above-listed paragraphs, Plaintiff seeks punitive damages for alleged FEHA and Labor Code violations against defendant IUC in relation to the Third, Fourth, Fifth, and Twelfth Causes of Action.

            Given that the Court has sustained Defendants’ Demurrer to these causes of action, it concludes that punitive damages are consequently unavailable.

            Accordingly, the Court GRANTS the Motion as to paragraphs 71, 82, 94, and 181.

iii)               Pray Paragraph 6 – “For Punitive Damages”

As the Court has denied the Motion to Strike Punitive Damages as to the First and Second Causes of Action, it concludes that the Complaint’s prayer for punitive damages under these two causes of action is justified.

            Accordingly, the Court DENIES the Motion as to the Pray paragraph 6.

C.    Leave to Amend

Leave to amend must be granted if “there is a reasonable possibility that the defect can be cured by amendment.” (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.)

Here, Plaintiff has sought leave to amend. The Court determines that there is a reasonable possibility that the defects analyzed above under the Demurrer or the Motion to Strike may be cured by amendment. 

Based on the reasons above, the Court GRANTS Plaintiff 30 days LEAVE TO AMEND.

CONCLUSION

Defendants’ Demurrer is SUSTAINED as to the Third, Fourth, Fifth, Sixth, and Twelfth Cause of Action.

Defendants’ Motion to Strike is GRANTED as to paragraphs 71, 82, 94, and 181 in the Complaint.

Defendants’ Motion to Strike is DENIED as to paragraph 43, and portions of paragraph 60 in the Complaint, and paragraph 6 in the Prayer.

Plaintiff is GRANTED 30 DAYS LEAVE TO AMEND as to the Third, Fourth, Fifth, Sixth, and Twelfth Cause of Action, including the paragraphs 71, 82, 94, and 181 contained therein.

Moving party to give notice.