Judge: Deborah C. Servino, Case: 30-2021-01204874, Date: 2022-12-02 Tentative Ruling

Defendants Apro, LLC and Macland Investments’ motion to strike portions of Plaintiffs Sammy Ibrahim, Abdel Tayyeb, and Khaled Maree’s Second Amended Complaint (“SAC”) is granted in part without leave to amend and denied in part as set forth below. 

Applicable Law

Pursuant to Code of Civil Procedure section 436, the court may:

(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 an order of the court.

“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.” (Code Civ. Proc., § 437, subd. (a).) “[J]udges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)

Punitive Damages

Plaintiffs may recover exemplary damages in an action for the breach of an obligation not arising from contract if Plaintiffs prove by clear and convincing evidence that Defendants are “guilty of oppression, fraud, or malice.” (Civ. Code, § 3294, subd. (a).) Malice is defined as “conduct which is 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.” (Civ. Code, § 3294, subd. (c)(1).) Oppression is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).) Fraud is defined as “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, § 3294, subd. (c)(3).)

Punitive damages cannot be pled in conclusory terms, instead the facts supporting a claim for punitive damages must be set out clearly, concisely, and with particularity. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.) However, “it has long been recognized that ‘(t)he distinction between conclusions of law and ultimate facts is not at all clear and involves at most a matter of degree.’” (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.) “What is important is that the complaint as a whole contain sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief.” (Ibid.) In ruling on a motion to strike, the Court should “read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255; see Perkins v. Superior Court, supra, 117 Cal.App.3d at p. 6 [“stricken language must be read not in isolation, but in the context of the facts alleged in the rest of petitioner’s complaint.”].)

“When the defendant is a corporation, ‘[a]n award of punitive damages against a corporation . . . must rest on the malice of the corporation’s employees.’” (Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 164 [citing Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167].)

An employer shall not be liable for punitive damages “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).)

In paragraph 17, Plaintiffs allege:

Plaintiffs are informed and believe that patrons have complained to Defendants' employees about dangerous and/or threatening persons on the property, including persons who appear to be gang-affiliated. Plaintiffs are informed and believe that the police have been summoned to Defendants' business location more than any surrounding location, for reasons including assaults, robberies, shoplifting, and stabbings. Plaintiff is informed and believes that operators of businesses located on the same street state that this location is a known location of illegal conduct, including assaults and violence committed as against patrons, and that it is so dangerous that they refuse to visit that location at night. Nor is this dangerous condition a temporary situation; merely by way of example, a review of records reveals at least one robbery occurring at Defendants' location, at night, within the last week (3/24/21 7:50 PM, incident number 202140702).

In the SAC, Plaintiff alleges that Defendants, through their managers and those in control, adopted a company-wide policy to forego safety training or provide any other safety measures.  Plaintiff claims that “Defendant MAC is the owner and officer of Defendant MacLand Investments.”  They allege he had notice that the business location was dangerous and intentionally elected not to provide training with respect to handling criminal incidents or confrontations.  They claim that this decision was solely for monetary reasons.  Also, Plaintiffs allege that “Defendant acted with complete disregard for the probably harm to Plaintiffs and Defendants’ patrons.” (SAC, at ¶¶ 40-41.)

In Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, the Court of Appeal upheld an award of punitive damages in a slip and fall case.  The plaintiff slipped and fell at a gas station and introduced evidence that Defendant’s overriding concern was for a minimum expense operation.  Defendant’s employees communicated the dangerous condition daily to supervisory personnel to no avail.  The court found that Defendant, through its managerial personnel showed a conscious disregard for the safety of others, which was akin to a finding of malice.  Similar to the Nolin case and taking the allegations of the SAC as true, Plaintiffs sufficiently allege in the SAC that Defendants’ managing agent (“MAC”) acted in a way demonstrating a conscious disregard of Plaintiffs’ rights.

Accordingly, Defendants’ motion to strike the punitive damages allegations and prayer for punitive damages (Item Nos. 2-15 in the motion) is denied.

“Defendant Bhupinder Mac” 

Plaintiffs name a “Defendant Bhupinder Mac” in paragraph 6 of the SAC.  There is no such defendant who has been named in this action pursuant to the procedural requisites set forth in the Code of Civil Procedure.  Accordingly, the Court strikes paragraph 6 of the SAC and references to “Defendant” MAC in paragraph 41 without leave to amend.

Attorney Fees

Plaintiffs request attorney fees in their prayer for relief.  No contract, statute or law has been identified that provides for an award of attorney fees. In opposition, Plaintiffs do not state any arguments related to the claim for attorney fees.  As a result, the motion is granted without leave to amend with respect to the prayer for attorney fees.

No later than December 19, 2022, Defendants shall file their answers to the SAC. 

Defendants shall give notice of the ruling.

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