Judge Lee S. Arian, Case Number: 23STCV19614, Date: 2024-01-31 Tentative Ruling

This is an action arising from Plaintiff Victor Douglas (“Plaintiff”) being verbally and physically assaulted at a 7-Eleven store, by a store employee, on May 29, 2022. On August 16, 2023, Plaintiff filed a complaint against Defendants The Eleventh Dimension, Inc. (“Defendant”) and DOES 1 through 50, alleging causes of action for: (1) assault and battery, (2) negligent hiring, supervision, or retention of employees, (3) respondent superior, and (4) punitive damages.

On December 22, 2023, Defendant filed and served a demurrer to the third and fourth causes of action in the complaint. Also, on December 22, 2023, Defendant filed and served a motion to strike punitive damages allegations from the complaint.

Both the demurrer and motion to strike are unopposed. Any opposition was required to have been filed and served at least nine court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).)

“A demurrer tests the sufficiency of a complaint as a matter of law.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) “[T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.” (Ibid.) “[A] demurrer accepts as true all well pleaded facts and those facts of which the court can take judicial notice but not deductions, contentions, or conclusions of law or fact.” (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) Although courts construe pleadings liberally, sufficient facts must be alleged to support the allegations plead to survive a demurrer. (Rakestraw v. California Physicians' Serv. (2000) 81 Cal.App.4th 39, 43.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Ibid.) “If there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Defendant’s counsel attempted to meet and confer with Plaintiff’s counsel via email and telephone. (Goldstein Decl., ¶¶ 2-3; Exhibit A.)

The Court will still assess the merits of the demurrer. However, the Court reminds the parties to comply with the Code of Civil Procedure.

Defendant contends that the third cause of action in the complaint fails because respondent superior is not itself a cause of action but rather a theory of vicarious liability.

“Under the doctrine of respondeat superior, an employer is vicariously liable for the torts of its employees committed within the scope of the employment.” (CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 1255, 1260.) Respondeat superior is a theory of vicarious liability and is not an independent cause of action. (Id. at p. 1264; see also Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.)

Here, Plaintiff has asserted a cause of action for “respondent superior,” however, such cause of action is not an independent cause of action. Also, given that the demurer is unopposed there is an inference it has merit. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

The Court therefore SUSTAINS Defendant’s demurrer to the third cause of action in the complaint WITHOUT LEAVE TO AMEND. Plaintiff has not met his burden in showing that there is a reasonable possibility that the third cause of action can be amended to state a sufficient cause of action.

Defendant asserts that the fourth cause of action in the complaint fails because a cause of action for punitive damages is not an independent cause of action.

“In California there is no separate cause of action for punitive damages.” (McLaughlin v. National Union Fire Ins. Co. (1994) 23 Cal.App.4th 1132, 1164.) A plaintiff “must still prove the underlying tortious act causing actual, presumed or, where the difficulty lies in fixing the amount of damages with certainty, nominal damages.” (Ibid.)

Here, the Court finds that punitive damages is not a separate, independent cause of action under McLaughlin, supra, 23 Cal.App.4th 1132, 1164.

Therefore, the Court SUSTAINS Defendant’s demurrer to the fourth cause of action in the complaint WITHOUT LEAVE TO AMEND. The demurrer is unopposed and, as such, Plaintiff has not met his burden in showing a reasonable possibility that the fourth cause of action can be amended to state a sufficient cause of action.

“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, subd. (b)(1).) A court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436, subd. (a).) A court may “[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).)

“Before filing a motion to strike . . . the moving party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to the motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a).) “A determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike.” (Code Civ. Proc., § 435.5, subd. (a)(4).)

The meet and confer requirement has been met as to the motion to strike. Defendant’s counsel met and conferred with Plaintiff’s counsel via email and telephone. (Goldstein Decl., ¶¶ 2-3; Exhibit A.)

Initially, the Court finds that Defendant’s motion to strike is procedurally non-compliant.

“A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.” (Cal. Rules of Court, Rule 3.1322, subd. (a).)

Here, the Notice of Motion does not state which portions of the complaint that Defendant seeks to be strike. Instead, Defendant only indicates that “[t]he request for punitive damages is invalid as a matter of law.” (Motion to Strike, 2:8.)

Upon review of the complaint, Plaintiff makes punitive damages allegations as to the fourth cause of action and the prayer for relief in the complaint. It appears that Defendant seeks to strike punitive damages from the prayer for relief in the complaint as it asserts that the “prayer requires clear and convincing evidence.” (Motion, 4:7.) Defendant also contends that “the Court must strike Plaintiff’s request for punitive damages against [Defendant].” (Motion, 4:18-19.)

Although the notice of motion is improper, the Court assumes that Defendant seeks to only strike the reference to punitive damages from the prayer for relief in the complaint. The Court will assess the motion to strike on the merits; however, the Court reminds Defendant to comply with the California Rules of Court.

“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.) California Civil Code, Section 3294 authorizes punitive damages upon a showing of malice, fraud, or oppression. Malice is defined as either “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.” (Civil Code § 3294(c)(1).) “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.” (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal. App. 4th 306, 331.) Fraud under California Civil Code, Section 3294(c)(3) “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.” California Civil Code, Section 3294(c)(2) defines oppression as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Specific facts must be pled in support of punitive damages. (Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-392.) Facts must be pled to show that a defendant “act[ed] with the intent to vex, injure or annoy, or with a conscious disregard of the plaintiff’s rights.” (Silberg v. California Life Ins. Co. (1974) 11 Cal.3d 452, 462.) Conduct that is merely negligent will not support a claim for punitive damages. (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1288.)

An employer will not be liable for punitive damages based upon the acts of an employee of the employer, unless: (1) 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 (2) the employer ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. (Civ. Code § 3294(b).) As 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 a corporation. (Id.)

The Court finds that Plaintiff has not alleged sufficient facts showing malice, fraud, or oppression to warrant the imposition of punitive damages. The complaint only makes conclusory allegations as to punitive damages and does not set forth specific facts. Moreover, although Defendant is a corporate employer, the complaint neither alleges that an officer, director, or managing agent of Defendant had any advance knowledge of the unfitness of the employee who purportedly assaulted Plaintiff nor alleges that such a party authorized or ratified such conduct.

Therefore, the Court GRANTS Defendant’s motion to strike with 20 days leave to amend. Also, the motion to strike is unopposed which leads to the inference that it has merit under Sexton, supra, 58 Cal.App.4th 1403, 1410.

The Court SUSTAINS the demurrer of Defendant to the third and fourth causes of action in the complaint WITHOUT LEAVE TO AMEND.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Lee S. Arian

Judge of the Superior Court