Judge: Gail Killefer, Case: 22STCV40230, Date: 2023-03-14 Tentative Ruling
Case Number: 22STCV40230 Hearing Date: March 14, 2023 Dept: 37
HEARING DATE: March 14, 2023
CASE NUMBER: 22STCV40230
CASE NAME: Whitney Waters. v. Epps & Coulson, LLP., et al.
MOVING PARTIES: Defendants, Epps & Coulson, LLP,
and Dawn Coulson
OPPOSING PARTY: Plaintiff Whitney Waters
TRIAL DATE: None
PROOF OF SERVICE: OK
MOTION: Defendants’ Motion to Strike Portions
of Plaintiff’s Complaint
OPPOSITION: March 1, 2023
REPLY: March 7, 2023
TENTATIVE: Defendants’ motion to strike is granted.
Plaintiff is provided 30 days leave to amend from this date. Defendants are to give
notice.
Background
This is an action arising out of the former employment of Whitney
Waters (“Plaintiff”) with Defendant Epps & Coulson, LLP (“Firm Defendant”)
as a paralegal. Plaintiff’s Complaint alleges that she began working for
Defendant on June 27, 2022 and that she was subjected to a hostile, harassing
work environment during her employment by one of Firm Defendant’s partners,
Defendant Dawn Coulson (“Coulson”).
Plaintiff’s operative Complaint alleges eight causes of
action: (1) FEHA discrimination based on race—against Firm Defendant only; (2) hostile
work environment harassment in violation of FEHA; (3) FEHA retaliation—against
Firm Defendant only; (4) retaliation in violation of Labor Code §§ 232.5; (5) retaliation
in violation of Labor Code §§ 1102.5—against Firm Defendant only; (6) failure
to prevent discrimination, retaliation, and harassment in violation of FEHA;
(7) wrongful termination in violation of FEHA—against Firm Defendant only; and (8)
wrongful termination in violation of public policy.
Defendants now move to strike the following from Plaintiff’s
Complaint:
1.
Page 9, lines 2-8: “their outrageous conduct was
fraudulent, malicious, oppressive, and was done in wanton disregard for the
rights of Plaintiff…” and “Plaintiff should, therefore, be awarded exemplary
and punitive damages against each Defendant in an amount to be established that
is appropriate to punish each Defendant and deter others from engaging in such
conduct.”
2.
Page 10, lines 21-27: “their outrageous conduct
was fraudulent, malicious, oppressive, and was done in wanton disregard for the
rights of Plaintiff…” and “Plaintiff should, therefore, be awarded exemplary
and punitive damages against each Defendant in an amount to be established that
is appropriate to punish each Defendant and deter others from engaging in such
conduct.”
3.
Page 12, lines 21-25: “in a despicable,
oppressive, fraudulent, malicious, deliberate, egregious and inexcusable manner
and in conscious disregard for the rights and safety of … thereby justifying an
award of punitive damages in a sum appropriate to punish and make an example of
Defendants.”
4.
Page 14, lines 17-23: “their outrageous conduct
was fraudulent, malicious, oppressive, and was done in wanton disregard for the
rights of Plaintiff…” and “Plaintiff should, therefore, be awarded exemplary
and punitive damages against each Defendant in an amount to be established that
is appropriate to punish each Defendant and deter others from engaging in such
conduct.”
5.
Page 16, lines 6-11: “their outrageous conduct
was fraudulent, malicious, oppressive, and was done in wanton disregard for the
rights of Plaintiff…” and “Plaintiff should, therefore, be awarded exemplary
and punitive damages against each Defendant in an amount to be established that
is appropriate to punish each Defendant and deter others from engaging in such
conduct.”
6.
Page 18, lines 6-12: “their outrageous conduct
was fraudulent, malicious, oppressive, and was done in wanton disregard for the
rights of Plaintiff…” and “Plaintiff should, therefore, be awarded exemplary
and punitive damages against each Defendant in an amount to be established that
is appropriate to punish each Defendant and deter others from engaging in such
conduct.”
7.
Prayer for Relief, Page 18, lines 21-23, request
for punitive damages.
Plaintiff opposes the motion.
Discussion
I.
Meet and Confer
Effective January 1, 2018, a
party filing a motion to strike must meet and confer in person or by telephone
with the party who filed the pleading that is subject to the motion and
identify all of the specific allegations that it believes are subject to be
stricken and identify with legal support the basis of the deficiencies. (CCP § 435.5(a).)
Defendants submit the declaration
of their attorney, Jeffrey A. Cohen (“Cohen”) to demonstrate that they have
fulfilled their meet and confer obligations prior to bringing the instant
motion. Cohen attests that on February 7 and 8, 2023, he spoke with Plaintiff’s
counsel, Mr. Taylor White to discuss the issues raised in the instant motion. (Cohen
Decl., ¶¶ 2-3.) Cohen attests that the parties were not able to come to an
agreement. (Id.) The Cohen Declaration is sufficient for purposes of CCP
§ 435.5.
II.
Legal Standard
Pursuant to CCP § 436, “the court
may, upon a motion made pursuant to Section 435, or at any time in its
discretion, and upon terms it deems proper: (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 must “appear on the face of the
challenged pleading or from any matter of which the court is required to take
judicial notice.” (CCP § 437.)
Motions to strike are used to
challenge defects in the pleadings not subject to demurrer. (Ferraro
v. Camarlinghi (2008) 161 Cal.App.4th 509, 529 [recognizing that an
objection that the complaint failed to state facts sufficient to constitute a cause
of action is ground for a general demurrer, not a motion to strike.].) Any party may move to strike the whole or any
part of a pleading within the time allotted to respond to the pleading. (CCP § 435(b)(1).) The allegations of a complaint “must be
liberally construed, with a view to substantial justice between the
parties.” (CC§ 452.) The court “read[s] allegations of a pleading
subject to a motion to strike as a whole, all parts in their context, and
assume[s] their truth.” (Clauson v. Sup. Ct. (1998) 67
Cal.App.4th 1253, 1255 (Clauson).)
III.
Analysis
Plaintiff
may recover damages “in an action from breach “not arising from contract” if
Plaintiff proves by clear and convincing evidence that Defendant acted with
malice, oppression, or fraud. (Civ. Code, § 3294(a).) “Malice means 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(c)(1).) “Oppression’ means
despicable conduct that subjects a person to cruel and unjust hardship in
conscious disregard of that person's rights.”
(Civ. Code, § 3294(c)(2).) “Fraud
means 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(c)(3).) A plaintiff’s “conclusory
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.)
An
employer may not be held liable for punitive damages based on the acts of its
employee “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.” (Civ. Code, § 3294(b).) “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.” (Ibid.)
Defendants contend that Plaintiff’s punitive
damage allegations are improper because Plaintiff’s Complaint fails to allege
malice, oppression or fraud with sufficient specificity, and relies only on
“pure conclusory allegations without foundation.” (Motion, 5-6.)
In opposition, Plaintiff contends that the
Complaint pleads malice, oppression or fraud sufficiently because the Complaint
pleads Plaintiff was subjected to racially offensive comments, which were
“intended to cause Plaintiff injury (mentally, emotionally, and financially)”
and were done “with a willful disregard of Plaintiff’s rights.” (Opposition, 4-7.)
In reply, Defendants contend again that
Plaintiff’s contentions are purely arguments and offer “no substantive facts”
beyond Plaintiff’s “self-serving, subjective perception that takes ‘offense’ at
non-discriminatory comments regarding her hair...” (Reply, 1-2.)
Here, the Complaint alleges that “shortly
after Plaintiff began her employment with Defendant,” she faced several
offensive comments by Coulson regarding her hair, which “Plaintiff
considered... to be a part of her cultural identity as an African-American...”
(Complaint, ¶¶ 10-11.) Following these comments, Plaintiff made the decision to
remove her braids, and faced further comments by Coulson made allegedly in
front of the entire office. (Complaint, ¶¶12-13.)
“Following the meeting in August 2022 where Plaintiff raised her
concerns with Ms. Coulson about Ms. Coulson’s racially discriminatory comments,
Ms. Coulson began to put additional pressure on Plaintiff in the workplace and
treat Plaintiff in a much more hostile manner. Plaintiff felt as if Ms. Coulson
was now treating her more harshly and with less respect simply because
Plaintiff had raised legitimate concerns about Ms. Coulson’s hurtful comments
in the workplace. Although Plaintiff wanted to simply continue performing her
job without any further discriminatory or retaliatory treatment, the work
environment became so hostile that Plaintiff felt the need to raise her
complaints about Ms. Coulson’s conduct and comments towards her to Defendant’s
Accounting Manager, Lynnette Vavrek. On August 29, 2022, Plaintiff sent a
follow-up complaint via email to Ms. Vavrek regarding Ms. Coulson’s
discriminatory comments towards her. In response to Plaintiff’s email, Ms.
Vavrek informed Plaintiff that she would investigate Plaintiff’s complaints.”
(Complaint, ¶14.)
The Complaint further alleges Plaintiff was
terminated three days later on September 1, 2022. (Complaint, ¶15.)
Given the foregoing, the court finds that
Plaintiff’s punitive damage allegations are improperly alleged. As described
above, Plaintiff’s Complaint alleges, in support of her request for punitive
damages, that Defendants’ acted with intent to cause her injury and willfully
disregarded her rights as an employee in making these alleged comments and
creating a hostile work environment. However, the Complaint fails to allege
with any specificity how Defendant’s actions in making the comments, creating
the allegedly hostile work environment, or allegedly retaliating against her were
malicious, oppressive or fraudulent, other than statements to that effect.
Further, the Complaint includes no further allegations about the Firm
Defendant’s ratification of such conduct.
“In order to survive a motion to strike an
allegation of punitive damages, the ultimate facts showing an entitlement to
such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998)
67 Cal. App. 4th 1253, 1255.) Conclusory allegations, devoid of any factual
assertions, are insufficient to support a conclusion that parties acted with
oppression, fraud or malice. (Smith v. Sup. Ct. (1992) 10 Cal. App. 4th
1033, 1042.) Accordingly, such allegations are insufficient to maintain
allegations for punitive damages.
Accordingly, Defendants’ motion is granted.
Conclusion
Defendants’ motion
to strike is granted. Plaintiff is provided 30 days leave to amend from this
date.