Judge: Gary I. Micon, Case: 23CHCV02813, Date: 2024-12-31 Tentative Ruling
Case Number: 23CHCV02813 Hearing Date: December 31, 2024 Dept: F43
Dept.
F43
Date:
12-31-24
Case
# 23CHCV02813, Wolfe v. Wolfe, et al.
Trial
Date: None set.
DEMURRER AND MOTION TO STRIKE THIRD AMENDED COMPLAINT
MOVING
PARTY: Defendant Henry Mayo Newhall
RESPONDING
PARTY: Plaintiff Elliott Wolfe
RELIEF
REQUESTED
Sustain
Demurrer to the Third Amended Complaint:
·
5th Cause
of Action for Intentional Infliction of Emotional Distress
·
6th Cause
of Action for Elder Abuse
Motion
to Strike
·
Elder
Abuse: Punitive and Compensatory Damages [Prayer, Page 31, lines 25-28; Page
32, lines 5-6.]
·
Intentional
Infliction of Emotional Distress: Punitive Damages [Prayer, Page 31, line
23-24.]
·
Punitive Damages
Allegations: [Paragraphs 18-19, Pages 19-30.]
RULING: Demurrer is
overruled. Motion to strike is granted, in part, for all Punitive Damages, and
denied, in part, for Elder Abuse compensatory damages and attorney fees.
SUMMARY
OF ACTION
On
September 19, 2023, Plaintiff Elliott Wolfe (Plaintiff) filed this action
against Defendants Judith Wolfe, Jodi Rosen, David Rosen, Michelle Fluke, and
Michael Fluke, alleging six causes of action for Assault, Battery, Trespass to
Chattels, Conversion, Intentional Infliction of Emotional Distress, and Elder
Abuse. Defendants demurred to the
complaint, and the Court sustained the demurrers with leave to amend.
On
March 5, 2024, Plaintiff filed a First Amended Complaint (FAC) adding allegations
against new defendant Henry Mayo Newhall Memorial Hospital (Defendant) and its
employees, and a new cause of action.
Defendants Judith Wolfe, Jodi Rosen, David Rosen, Michael Fluke, and
Michelle Fluke demurred to the FAC, and Defendant Henry Mayo Newhall Memorial
Hospital filed a motion to strike. The
Court sustained the demurrers and granted the motion to strike with leave to
amend.
Plaintiff
filed his Second Amended Complaint (SAC) on July 24, 2024. Defendants Henry Mayo, Jodi Rosen, David
Rosen, Michelle Fluke, and Michael Fluke demurred to the SAC. The Court sustained Henry Mayo’s demurrer
with leave to amend and overruled the other demurrer.
Plaintiff
filed his Third Amended Complaint (TAC) on November 1, 2024.
The
TAC alleges that on October 3, 2022, Defendant’s employees approached Plaintiff
in an aggressive and threatening manner by reaching out their arms and hands in
preparation for grabbing Plaintiff’s arms. (TAC, ¶ 7.) Next, the TAC alleges that Defendant’s employees
grabbed Plaintiff, carried him outside of a medical facility, and dropped him
onto the ground. (TAC, ¶ 9.) Finally, the TAC alleges that Defendant’s employees
intentionally caused him physical harm and emotional distress. (TAC, ¶ 15.)
On
December 2, 2024, Defendant filed this demurrer and motion to strike punitive
damages and Elder Abuse compensatory damages and attorney fees from the TAC. Plaintiff filed an opposition on December 17,
2024. Defendant filed a reply on December
20, 2024.
MEET
AND CONFER
Before filing a demurrer or motion to strike, the
parties must meet and confer “in person, by telephone, or by video
conference.” (Code Civ. Proc., §§
430.41, subd. (a), 435.5, subd. (a).)
The moving party must file and serve a meet and confer declaration
stating either: “(A) The means by which the demurring party met and conferred
with the party who filed the pleading subject to demurrer, and that the parties
did not reach an agreement resolving the objections raised in the demurrer;” or
“(B) That the party who filed the pleading subject to demurrer failed to
respond to the meet and confer request of the demurring party or otherwise
failed to meet and confer in good faith.”
(Code Civ. Proc., § 430.41, subd. (a)(3).)
On
November 15, 2024, Defendant’s counsel, Tony Hsu, emailed Plaintiff’s counsel,
Michael Finley, to set up a time to meet and confer. (Declaration of Tony Hsu, Esq., ¶ 5.) Mr. Finley did not respond. (Ibid.) On November 21, 2024, Mr. Hsu sent a follow-up
email requesting times to meet and confer.
(Hsu Dec., ¶ 6.) The parties met
and conferred on November 22, 2024 but were unable to come to an
agreement. (Hsu Dec., ¶ 7.)
The
meet and confer requirement is met.
SUMMARY
OF ARGUMENTS
Defendant
demurs to the Fifth and Sixth Causes of Action on the ground that the TAC fails
to allege facts sufficient to support the causes of action. Rather than allege specific facts to support
his Intentional Infliction of Emotional Distress and Elder Abuse claims,
Plaintiff copied and pasted the same conclusory allegations Plaintiff uses to
support his Assault and Battery claims. These
allegations do not establish “extreme and outrageous” acts by Defendant or that
Plaintiff suffered “severe emotional distress.”
Further, Plaintiff admits he was not a patient at Defendant’s medical
facility and that Defendant was not his healthcare provider, meaning he lacks
standing to sue for Elder Abuse under the Elder Abuse Act. Further, Defendant also moves to strike
punitive damages allegations from the TAC because Plaintiff does not allege
facts showing oppression, fraud, or malice with the particularity to support
punitive damages against Defendant.
Plaintiff
opposes the demurrer and motion to strike claiming he pleads sufficient facts
to support his claims. Plaintiff did not
need to be a patient at Defendant’s health care facility to plead Elder
Abuse. Plaintiff alleges physical abuse
of an elder and infliction of mental suffering which do not require Plaintiff
to plead a special relationship. Plaintiff
pleads in specific detail the actions Defendant’s employees took in
aggressively approaching Defendant, lifting him up, dropping him on the ground,
and causing him to suffer severe or extreme emotional distress and heart
problems. Such conduct towards an
elderly 88-year-old man would cause severe and extreme emotional distress. The TAC sufficiently pleads oppression and
malice to support punitive damages. The
TAC provides dates, the actions taken, the fact that Defendant’s employees
acted (Plaintiff is currently unaware of names which he will learn during
discovery), that the employees intended their despicable conduct to injure
Plaintiff, and that Plaintiff suffered injuries and a disregard for his rights as
a result.
In
reply, Defendant reasserts its arguments and states that Plaintiff does not
support his arguments with legal authority. Plaintiff states that Defendant’s employees’
conduct was “extreme and outrageous” without acknowledging that the alleged
conduct occurred in order to defuse a physical altercation between Plaintiff
and defendant Jodi Rosen. Further,
Plaintiff provides no legal authority supporting his argument that a physical
heart condition rises to the level of “severe emotional distress.” Plaintiff relies on his own interpretation of
the Elder Abuse Act while completely ignoring California Supreme Court cases
which state Elder Abuse claims require a substantial caretaking or custodial
relationship involving an ongoing responsibility for one or more basic needs of
the elder patient. The Court should not
allow Plaintiff to amend his complaint for a fourth time.
ANALYSIS
Demurrer
A¿party
may respond to a pleading against it by demurrer on the basis of any single or
combination of eight enumerated grounds, including¿that¿“the pleading does not
state facts sufficient to constitute a cause of action” and is uncertain,
meaning “ambiguous and unintelligible.” (Code
Civ. Proc., § 430.10, subds. (e), (f).) The grounds for demurring
must be apparent from either the face of the complaint or a matter of which the
court may take judicial notice. (Code
Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39
Cal.3d 311, 318.)
The
purpose of a demurrer is to challenge the sufficiency of a pleading “by raising
questions of law.” (Postley v. Harvey
(1984) 153 Cal.App.3d 280, 286.) “In the
construction of a pleading, for the purpose of determining its effect, its
allegations must be liberally construed, with a view to substantial justice
between the parties.” (Code Civ. Proc.,
§ 452.) The court “treat[s] the demurrer
as admitting all material facts properly pleaded, but not contentions,
deductions or conclusions of fact or law[.]”
(Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court
liberally construes the complaint to determine whether a cause of action has
been stated. (Picton v. Anderson
Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)
Fifth
Cause of Action: Intentional Infliction of Emotional Distress
Defendant demurs to the fifth cause of action as
failing to plead facts sufficient to establish an Intentional Infliction of
Emotional Distress cause of action.
A cause of action for intentional infliction of
emotional distress must allege that (1) the defendant engaged in extreme and
outrageous conduct with the intention of causing, or reckless disregard of the
probability of causing, severe emotional distress to the plaintiff; (2) the
plaintiff actually suffered severe or extreme emotional distress; and (3) the
outrageous conduct was the actual and proximate cause of the emotional
distress. (Cervantez v. J.C. Penney
Co. (1979) 24 Cal.3d 579, 593; see also Potter v. Firestone Tire
& Rubber Co. (1993) 6 Cal.4th 965, 1001.)
Conduct is outrageous if it is so extreme that it
exceeds the bounds usually tolerated by a civilized community and is directed
at the Plaintiff. (Cervantez, supra,
24 Cal.3d at p. 593; Christensen v. Superior Court (1991) 54 Cal.3d 868,
903.) “Behavior may be considered
outrageous if a defendant (1) abuses a relation or position which gives him
power to damage the plaintiff’s interest; (2) knows the plaintiff is
susceptible to injury through mental distress; or (3) acts intentionally or
unreasonably with the recognition that the acts are likely to result in illness
through mental distress.” (Pulver v.
Avco Financial Services (1986) 182 Cal.App.3d 622, 637.)
“Severe emotional distress means ‘emotional distress
of such substantial quality or enduring quality that no reasonable [person] in
civilized society should be expected to endure it.’ [Citation.]” (Potter, supra, 6 Cal.4th at p.
821.) Severe emotional distress may include
“any highly unpleasant mental reaction such as fright, grief, shame,
humiliation, embarrassment, anger, chagrin, disappointment or worry.” (Fletcher v. Western National Life Ins.
Co. (1970) 10 Cal.App.3d 376, 397; cf. Wong
v. Tai Jing (2010) 189 Cal.App.4th 1354, 1377 [holding plaintiff’s allegations
that defendant’s online post was very emotionally upsetting and caused her to
lose sleep, have an stomach upset and generalized anxiety did not rise to the
level of “severe, lasting, or enduring” emotional distress].) Such distress must be reasonable and
justified under the circumstances. (Potter,
supra, 6 Cal.4th at p. 821.)
Defendant argues that the TAC does not depict any
“extreme and outrageous conduct” that would exceed the bounds tolerated in a
civilized community. Because this was
Plaintiff’s first encounter with Defendant’s employees, the employees had no
knowledge of Plaintiff’s peculiar susceptibility which would be
reasonable. Plaintiff fails to allege
any acts that would exceed those bounds.
Plaintiff opposes stating he pleads facts sufficient
to support the cause of action. Plaintiff
stated Defendant’s employees acts were intentional, unreasonable, and
outrageous, the date the conduct occurred, the specific conduct that caused
Plaintiff’s physical and mental suffering, and the resulting heart condition
and damages Plaintiff continues to treat. Plaintiff does not know the employees’ names but
will learn them during discovery.
The TAC alleges that on October 3, 2022, shortly
after defendant Jodi Rosen aggressively approached Plaintiff and pushed him,
Defendant’s employees intentionally and physically approached Plaintiff in an aggressive
and threatening manner, with their hands and arms outstretched as though they
were going to physically attack him which instilled fear in Plaintiff. (TAC, ¶¶ 14(c), 15.) The employees then physically attacked Plaintiff
by physically lifting him off the ground, carrying him a significant distance
in a manner that was physically painful and stressful to Plaintiff, and
dropping him on the ground outside in a manner that was physically and
emotionally dangerous for elderly Plaintiff to endure. (TAC, ¶ 15.)
As a result, Plaintiff suffered severe and extreme emotional distress,
including serious heart problems that required Plaintiff to be hospitalized and
to undergo ongoing medical treatment for his heart problems and emotional
distress. (Ibid.) Further, the TAC alleges that Plaintiff was
88 years old during this incident. (TAC,
¶ 1.)
The TAC sufficiently alleges facts to show
Defendant’s employees intentionally acted and that due to his age, they acted
unreasonably and outrageously and should have known a physical injury would
result from their actions. Considering
Plaintiff’s age and the employees’ conduct, the TAC sufficiently alleges a severe
physical injury: Plaintiff’s resulting heart condition. Further, the TAC alleges sufficient facts showing
that Defendant’s employees recognized that mental distress would result from
their actions toward Plaintiff, due to his age, and that Plaintiff suffers
enduring emotional distress. Plaintiff
alleges he continues to suffer serious heart problems and continues treatment
for these problems.
Accordingly, the TAC alleges facts sufficient to
support a claim for intentional infliction of emotional distress, and
Defendant’s demurrer to the Fifth Cause of Action is overruled.
Sixth
Cause of Action: Elder Abuse
The Elder Abuse Act’s purpose is to protect a
particularly vulnerable portion of the population from gross mistreatment in
the form of abuse and custodial neglect.
(Delaney v. Baker (1999) 20 Cal.4th 23, 33.) Elder abuse includes “physical abuse,”
“abandonment,” and “deprivation by a care custodian of goods or services that
are necessary to avoid physical harm or mental suffering.” (Welf. & Inst. Code, § 15610.07, subd.
(a)(1)-(2).) Although certain forms of
Elder Abuse require a special relationship, usually custodial, to exist between
plaintiff and defendant, physical abuse does not require such a relationship. (See Darrin v. Miller (2019) 32
Cal.App.5th 450, 455. Compare Welf.
& Inst. Code, §§ 15610.57 (Neglect), 15610.05 (Abandonment), with Welf.
& Inst. Code, § 15610.63 (Physical Abuse).)
To plead Elder Abuse for physical abuse under section
15610.63, the plaintiff must establish that (1) the defendant’s employee
physically abused him by describing the employee’s specific conduct; (2) the
plaintiff was 65 years old or older at the time of the conduct; (3) plaintiff
was harmed; and (3) defendant’s employee’s conduct was a substantial factor in
causing plaintiff’s harm, pain, or mental suffering. (CACI No. 3106.) Mental Suffering means “fear, agitation,
confusion, severe depression, or other forms of serious emotional distress that
is brought about by forms of intimidating behavior, threats,
harassment, or by deceptive acts performed or false or misleading
statements made with malicious intent to agitate, confuse, frighten, or cause
severe depression or serious emotional distress of the elder or dependent
adult.” (Welf. & Inst. Code, §
15610.53.) Physical abuse includes
assault, battery, and assault with a force likely to produce great bodily
injury. (Welf & Inst. Code, §
15610.63, subds. (a)-(c).)
To plead assault, the plaintiff must establish that (1)
the defendant did an act that by its nature would directly and probably result
in the application of force to a person; (2) the act was willful; (3) defendant
was aware of facts that would lead a reasonable person to realize that the act
by its nature would directly and probably result in the application of force to
someone; (4) when defendant acted, defendant had the present ability to apply
force to a person; and (5) defendant did not act in self-defense or defense of someone
else. (CACI No. 915; Penal Code, §
240.) “The terms application of force
and apply force mean to touch in a harmful or offensive manner.” (CACI No. 915.) To plead battery, the plaintiff must establish
that (1) the defendant’s employees willfully and unlawfully touched him in a
harmful or offensive manner; and (2) that the defendant did not act in
self-defense or in defense of others. (CACI
No. 960; Penal Code, § 242.) A person
commits an action willfully when the person acts on purpose. (CACI Nos. 915, 960.) It is not required that he or she intends to
break the law, hurt someone else, or gain any advantage. (Ibid.)
Defendant argues that Plaintiff cannot claim Elder
Abuse because the TAC admits that no custodial relationship existed between
Plaintiff and Defendant according to Winn v. Pioneer Medical Group, Inc.
and Delaney v. Baker. The TAC
also fails to allege sufficient facts showing fraud, malice, or oppression
within the meaning of Civil Code section 3294.
The TAC does not allege an intended course of conduct that caused an
injury to Plaintiff or despicable conduct showing a conscious disregard of the
probability of injury to Plaintiff.
Plaintiffs opposes asserting that a custodial
relationship is not required to plead Elder Abuse when based upon physical
abuse. The TAC pleads physical abuse and
mental suffering which do not require a custodial relationship to exist between
Plaintiff and Defendant.
In Winn v. Pioneer Medical Group, Inc. (2016),
the California Supreme Court held that Elder Abuse claims based on “neglect”
require the plaintiff to plead the existence of a caretaking or custodial
relationship. (63 Cal.4th 148.) Plaintiff bases his claim on physical abuse
which does not contain a statutory definition requiring the existence of a
custodial relationship between Plaintiff and Defendant. (See Welf. & Inst., § 15610.63.)
The TAC alleges that Defendant’s employees’ acts of
assault and battery committed against Plaintiff constitute physical abuse of an
elder under section 15610.63 and that Defendant’s employees’ acts of
intentional infliction of emotional distress committed against Plaintiff constitute infliction of mental suffering
upon an elder under section 15610.53.
(TAC, ¶ 17.)
The TAC alleges that on October 3, 2022, Defendant
and Defendant’s employees engaged in extreme and outrageous conduct with the
intention to cause or reckless disregard of the probability that their actions
would cause severe emotional distress to Plaintiff. (TAC, TAC, ¶¶ 14(c), 15.) Shortly after defendant Jodi Rosen
aggressively approached Plaintiff and pushed him, Defendant’s employees
physically approached Plaintiff in an aggressive and threatening manner, with
their arms and hands outstretched as though they were going to physically
attack Plaintiff which caused Plaintiff fear.
(TAC, ¶¶ 14(C), 15.) The
employees then physically attacked Plaintiff in a manner that was too rough for
elderly Plaintiff to endure by physically lifting him off the ground, carrying
him a significant distance in a manner that was physically painful and
stressful to Plaintiff, and dropping him on the ground outside in a manner that
was physically and emotionally dangerous for elderly Plaintiff to endure. (TAC, ¶ 15.)
As a result, Plaintiff suffered severe and extreme emotional distress,
including serious heart problems that required Plaintiff to be hospitalized and
to undergo ongoing medical treatment for his heart problems and emotional
distress. (Ibid.) Further, the TAC alleges Plaintiff was 88
years old during the alleged incident.
(TAC, ¶ 1.)
The TAC sufficiently alleges facts to show Plaintiff
suffered physical abuse because of Defendant’s employees’ actions. After defendant Rosen pushed Plaintiff,
Defendant’s employees intentionally acted by approaching Plaintiff with their
arms and hands outstretched in a threatening manner. Defendant’s employees then picked Plaintiff
up, transported him outside the medical facility, and dropped him on the
ground. The TAC alleges that Plaintiff
suffered fear as Defendant’s employees approached him and continues to suffer physical
heart issues due to these actions. Although
Plaintiff’s fear and emotional distress allegations do not rise to the level of
mental suffering, Plaintiff’s alleged resulting physical heart condition is sufficient
to show Defendant’s employees’ intentional actions were a substantial factor in
causing Plaintiff’s harm.
Accordingly, the TAC alleges facts sufficient to support
a claim for Elder Abuse, and Defendant’s demurrer to the Sixth Cause of Action
is overruled.
Duplicative Factual Allegations
Defendant also argues Plaintiff’s Fifth and Sixth
Causes of action fail to state claims because they are duplicative of
Plaintiff’s First and Second Causes of action.
Specifically, Defendant argues that Plaintiff realleges the same conclusory
statements to support these causes of action.
Defendant cites Shoemaker v. Myers to support
its contention that “claims which merely duplicate other claims in a pleading
are subject to demurrer.” (Demurrer, p.
8:8-9 [citing Shoemaker v. Myers (1990) 52 Cal.3d 1, 14].) Shoemaker stands for the proposition
that a cause of action cannot survive a demurrer if it is based upon
insufficient factual allegations whether the allegations are duplicative of a
separate cause of action or not. (Shoemaker,
supra, 52 Cal.3d at p. 24.) The
other cases Defendant cites discuss sustaining demurrers where the complaints
based several causes of action on the same factual allegations but failed to
allege additional facts necessary to establish separate causes of action such
as alleging a contract to establish breach of contract. (See Rodrigues v. Campbell Indus.
(1978) 87 Cal.App.3d 494.)
Plaintiff’s causes of action and requests for damages
arise from the same alleged conduct: Defendant’s employees intentionally and
aggressively approached elderly Plaintiff, lifted elderly Plaintiff, dropped
elderly Plaintiff on the ground outside, and, as a result, Plaintiff suffers
fear, emotional distress, and ongoing heart issues. As mentioned above, the TAC’s factual
allegations for both the Fifth and Sixth Causes of Action sufficiently allege
claims for Intentional Infliction of Emotional Distress and Elder Abuse.
Accordingly, Defendant’s demurrer on the grounds of
insufficient duplicative factual allegations is overruled.
Motion to Strike - §§ 435, 436, and 437
“Any
party, within the time allowed to respond to a pleading may serve and file a
notice of motion to strike the whole or any part thereof.” (Code Civ. Proc., § 435.) A court may strike from the complaint any
irrelevant, false, or improper matter.
(Code Civ. Proc., § 436, subd. (a).)
The court may also “[s]trike 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.” (Code Civ. Proc., §
436, subd. (b).) “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).)
A
complaint must plead ultimate facts to support punitive damages. (Clauson v. Superior Court (1998) 67
Cal.App.4th 1253, 1255; Antelope Valley Groundwater Cases 59
Cal.App.5th 241, 265 [“[T]he term
‘ultimate fact’ generally refers to a core fact, such as an essential element
of a claim.”].)
Punitive
Damages Allegations
Defendant moves to strike Plaintiff’s request for
punitive damages (Pages 19-30, paragraphs 18-19) from the TAC.
A
motion to strike punitive damages may lie where the alleged facts do not rise
to the level of “malice, fraud, or oppression” required to support punitive
damages. (Turman v. Turning Point of
Central California, Inc. (2010) 191 Cal.App.4th 53, 63.) To state a prima facie claim for punitive
damages, a complaint must set forth specific facts demonstrating the elements
stated in Civil Code section 3294. (College
Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721; see also Brousseau
v. Jarrett (1977) 73 Cal.App.3d 864, 872.)
Malice is “conduct 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.” (Id. at p. 725; Civ. Code, § 3294,
subd. (c)(1).) Oppression is “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 “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).) “Malice and
oppression may be inferred from the circumstances of a defendant’s
conduct.” (J. R. Norton Co. v.
General Teamsters, Warehousemen & Helpers Union, Local 890 (1989) 208
Cal.App.3d 430, 444.)
Because Plaintiff alleges claims against Defendant based
on conduct outside the healthcare facility or healthcare professional role, the
Court does not address Civil Code section 425.13 but does address Civil Code
section 3294, subdivision (b).
An employer is liable for punitive damages based on
the acts of its employee if 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, subd. (b).)
Plaintiff
alleges misconduct by Defendant’s employees but not its managing agents or
corporate officers with authority to bind the corporation. Plaintiff also fails to allege that Defendant
knew its employees were unfit for their positions, hired the employees, and
then authorized their alleged misconduct.
A corporate entity cannot be held liable for punitive damages resulting
from the acts of its employees or subcontractors unless, after knowledge or
opportunity to learn about the subcontractors’ actions, the corporate entity’s
managing agent “retains the wrongdoer in service.” (J. R. Norton Co. v. General Teamsters,
Warehousemen & Helpers Union, Local 890 (1989) 208 Cal.App.3d 430, 445
[holding Local Union liable for its team member’s actions because its president
knew of the member’s misconduct and failed to investigate the misconduct
claims].)
Accordingly, the TAC fails to allege facts sufficient
to support punitive damages, and the Court strikes Plaintiff’s general request
for punitive damages (TAC, ¶¶ 18-19.) from the TAC.
Intentional
Infliction of Emotional Distress: Punitive Damages
Defendant requests the Court strike Plaintiff’s
request for punitive damages based on his Intentional Infliction of Emotional
Distress claim—Prayer, Page 31, Lines 23-24: “5) For punitive and exemplary
damages in an amount to be determined by the court against each Defendant.”
Like the TAC’s general punitive damages allegations, Plaintiff’s
Intentional Infliction factual allegations are not sufficient to establish
Defendant’s liability for punitive damages due to its employees’ conduct. Plaintiff does not allege Defendant’s advance
knowledge of employee misconduct or conscious disregard and does not allege
facts showing Defendant’s corporate officers ratified or hired the employee
despite the misconduct.
Accordingly, the Court strikes Plaintiff’s request
for punitive damages for Intentional Infliction of Emotional Distress (Prayer,
Page 31, Lines 23-24) from the TAC.
Elder
Abuse: Punitive Damages, Compensatory Damages, and Attorney Fees
Defendant requests the Court strike Plaintiff’s
request for punitive damages, compensatory damages, and attorney fees based on Plaintiff’s
Elder Abuse Act claim:
Prayer, Page 31, Lines 25-28: “1) Damages
in an amount to be proven at trial, estimated at $485,000.00; 2) Attorney’s
fees in accordance with statute (Welfare & Institutions Code § 15657(a));
3) All costs of suit.”
Page 32, Lines 5-6: “6) For punitive and
exemplary damages in an amount to be determined by the court against each Defendant.”
To plead Elder Abuse punitive damages, the plaintiff
must establish physical abuse under Section 15610.63 and that the defendant
acted with recklessness, oppression, fraud, or malice in committing the
physical abuse. (Welf. & Inst., §
15657.) “The standards set forth
in subdivision (b) of Section 3294 of the Civil Code regarding the
imposition of punitive damages on an employer based upon the acts of an employee
shall be satisfied before any damages or attorney’s fees permitted under this
section may be imposed against an employer.”
(Welf. & Inst., § 15657, subd. (c).)
Similar to the deficiencies in the Plaintiff’s
general request for punitive damages, Plaintiff’s Elder Abuse factual
allegations are not sufficient to establish Defendant’s liability for punitive
damages due to its employees’ conduct.
Plaintiff does not allege Defendant’s advance knowledge of employee
misconduct or conscious disregard and does not allege facts showing Defendant’s
corporate officers ratified or hired the employee despite the misconduct.
Accordingly, the Court strikes Plaintiff’s request
for Elder Abuse punitive damages from the TAC (Prayer, Page 32, Lines 5-6).
However, Plaintiff’s Elder Abuse claim survives
Defendant’s demurrer and is sufficient to support compensatory damages and
attorney’s fees under section 15657, subdivision (a), and the Court denies
Defendant’s motion to strike compensatory damages and attorney fees from the
TAC (Prayer, Page 31, Lines 25-28).
CONCLUSION
Defendant’s demurrer is overruled for Plaintiff’s
Fifth and Sixth Causes of Action.
Defendant’s motion to strike is granted, in part, for
all punitive damages and denied, in part, for compensatory damages and
attorney’s fees for Plaintiff’s Elder Abuse claim.
Defendant to give notice.