Judge Kerry Bensinger, Case Number: 24STCV15776, Date: 2024-10-22 Tentative Ruling

MOVING PARTY: Defendants Fathers of St. Charles dba Villa Scalabrini Retirement Center & Special Care Unit, et al.

This is a FEHA case. In 1989, Fathers of St. Charles, doing business as Villa Scalabrini Retirement Center and Special Care Unit (Fathers of St. Charles), a residential care and skilled nursing facility, hired Ricardo Alas (Alas or Plaintiff) as the Director of activities. Father Adilso Balen and (Father Adilso) and Ardeshir Afshar (Afshar) were Alas’s supervisors. Alas alleges he was passed over for a promotion for which he was qualified, was discriminated against for communicating in Spanish among residents, and was wrongfully terminated after a pretextual investigation into an allegation of abuse made by a resident against Alas.

On June 24, 2024, Plaintiff commenced this action against Fathers of St. Charles, Adilso Balen, and Ardeshir Afshar (collectively, Defendants). On August 16, 2024, Plaintiff filed the operative pleading, the First Amended Complaint (FAC), alleging causes of action for:

8. Failing to Take Al Reasonable Steps to Prevent Discrimination, Harassment, Or Retaliation in Violation of FEHA;

10. Violation of Labor Code § 232.5 (Retaliation For Reporting Working Conditions);

The second and eleventh causes of action are the only causes of action alleged against individual defendants Father Adilso and Afshar. Plaintiff seeks punitive and exemplary damages.

On September 18, 2024, Defendants filed this Motion to Strike Portions of Plaintiff’s FAC. Those portions all relate to punitive and exemplary damages.

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.¿ (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)¿ On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.¿ (Code Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)¿¿

“The grounds for a motion to strike are limited to matters appearing on the face of the challenged pleading or matters which must or may be judicially noticed. (§ 437, subd. (a); Evid. Code, §§ 451, 452.).” (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 20.)¿

1. Villa Scalabrini Statement of Information filed with the State of California, Secretary of State (Request for Judicial Notice (RJN) 1);

2. Entity Status Letter issued by the California Franchise Tax Board regarding Fathers of St. Charles (RJN 2);

3. Statement of Information dated May 23, 2024, regarding Fathers of St. Charles (RJN 3);

4. Domestic Corporation Annual Report, dated March 28, 2024 and filed with the State of Illinois, Secretary of State (RJN 4).

The request is GRANTED. (Evid. Code, § 452, subds. (c), (h).) The court takes judicial notice of the foregoing documents but not the truth of the statements contained therein to the extent those statements are reasonably subject to dispute. (Lockley v. Law Office of Cantreel, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882-83.)

Defendants seek an order striking paragraphs 18, 27, 34, 41, 50, 57, 65, 73, 80, 106, and paragraph 2 of the prayer for relief of the FAC. Defendants contend that the court must strike the punitive and exemplary damages allegations because Plaintiff has not filed a motion pursuant to Code of Civil Procedure (CCP) section 425.14. With respect to defendant Villa Scalabrini, the court agrees.

CCP section 425.14 provides, “[n]o claim for punitive or exemplary damages against a religious corporation or religious corporation sole shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive or exemplary damages to be filed. The court may allow the filing of an amended pleading claiming punitive or exemplary damages on a motion by the party seeking the amended pleading and upon a finding, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established evidence which substantiates that plaintiff will meet the clear and convincing standard of proof under Section 3294 of the Civil Code.”

Here, Fathers of St. Charles establishes it is a religious corporation. The Domestic Corporation Annual Report filed with the Secretary of State in the State of Illinois (RJN 4), states as relevant here, “THE PURPOSES FOR WHICH THE CORPORATION [Fathers of St. Charles] IS ORGANIZED ARE TO OPERATE EXCLUSIVELY FOR RELIGIOUS, CHARITABLE, EDUCATIONAL, AND SCIENTIFIC PURPOSES, INCLUDING OPERATING FOR THE SUPPORT OF THE PROVINCE OF ST. JOHN THE BAPTIST OF THE MISSIONARIES OF ST.CHARLES, A RELIGIOUS CONGREGATION OF THE CATHOLIC CHURCH.” (Emphasis in original.)

The foregoing language is clear. Accordingly, Plaintiff was required under CCP section 425.14 to seek leave of court to make allegations supporting punitive and exemplary damages. Having not done so, the punitive and exemplary damages allegations as to Fathers of St. Charles are stricken.

However, as to defendants Father Adilso and Afshar, the court is not persuaded that CCP section 425.14 operates to foreclose punitive damages against individual defendants. Defendants do not cite any authority showing CCP section 425.14 applies in this context.

Nonetheless, the court finds there are insufficient facts to sustain the punitive damages allegations against individual defendants.

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. (Civ. Code § 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.” (Id.) 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; see also Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1228 [“Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probably dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences”].)

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.) 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.)

Here, the sum of the facts alleged in support of punitive damages against individual defendants amount to four events: (1) another employee told Plaintiff that Father Adilso stated there were too many old people working for Villa Scalabrini (FAC, ¶ 14b); (2) Afshar once told Plaintiff to stop speaking Spanish around the residents because it made them uncomfortable (FAC, ¶ 14d); (3) Plaintiff was not considered for a promotion for which he was qualified and which was given to a younger, less qualified employee; and (4) after a resident accused Plaintiff of abuse, Father Adilso suspended Plaintiff, conducted a three-day investigation, and thereafter, terminated Plaintiff’s employment (FAC, ¶¶ 14i, 14j, 15). Plaintiff further alleges the investigation into alleged abuse was pretextual. (FAC, ¶ 15.)

These allegations are insufficient. As alleged, Father Adilso’s and Afshar’s comments regarding the age of the employees and Plaintiff speaking Spanish do not alone rise to the level of malice, fraud, or oppression. They are also untethered to the one adverse employment action identified in the FAC: Plaintiff’s termination. And, as to Father Adilso’s decision to terminate Plaintiff’s employment, such an action gives rise to liability to the employer, Fathers of St. Charles, rather than Father Adilso himself.

Accordingly, the motion is GRANTED. Paragraphs 18, 27, 34, 41, 50, 57, 65, 73, 80, 106, and paragraph 2 of the prayer for relief of the FAC are stricken. Leave to amend is DENIED without prejudice. Plaintiff may seek leave to allege punitive damages against Defendant Fathers of St. Charles pursuant to CCP section 425.16. As to individual defendants, Plaintiff may seek leave to allege punitive damages if more facts are learned through discovery.

Kerry Bensinger

Judge of the Superior Court

[1] Defendants requested judicial notice of the first document with their motion, and requested judicial notice of the latter three documents along with their reply.