Judge Lee W. Tsao, Case Number: 23NWCV00979, Date: 2023-10-31 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV00979, Date: 2023-10-31 Tentative Ruling

Case Number: 23NWCV00979 Hearing Date: October 31, 2023 Dept: C

Julie Custudio v. National Polytechnic College, Inc., et al.

CASE NO.: 23NWCV00979

HEARING: 10/31/23

TENTATIVE ORDER

Defendant’s Motion to Strike is GRANTED. The Court finds that there is a reasonable possibly that an amendment may cure the defect in the pleadings. Thus, the Motion to Strike is GRANTED with 20 days leave to amend.

Moving party to give notice.

Background

From March 2022 to October 2022, Plaintiff alleges that while attending classes at Defendant National Polytechnic College, Inc. (“NP”) she was sexually harassed by Defendant Caesar Garzon (“Garzon”).

In a Complaint filed on March 29, 2023, Plaintiff alleged seven causes of actions on Defendants NP and Garzon (collectively “Defendants”) for:

1. Sex-Based Discrimination in Violation of The Unruh Civil Rights Act [Cal. Civil. Code § 51];

2. Sexual Harassment in Violation of The Unruh Civil Rights Act [Cal. Civil. Code § 51.9];

3. Violation of Cal. Education Code §§ 200, 201, 220;

4. Violation of Cal. Govt. Code § 11135;

5. Violation of Cal. Education Code § 66250 et seq;

6. Intentional Infliction of Emotional Distress); and

7. Negligent Infliction of Emotional Distress

On June 8, 2023, Defendant NP filed the instant motion to strike.

Legal Standard

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., section 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)¿The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (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. section 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)¿

Furthermore, § CCP 435.5 requires that “[b]efore filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone 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 resolves the objections to be raised in the motion to strike.” (Code Civ. Proc. § 435.5(a).) “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.) A request for punitive damages may be made pursuant to Civil Code § 3294(a) which provides that “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

Under the statute, 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” and oppression is defined as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Code Civ. Proc. § 3294(c)(1), (c)(2).) Although not defined by the statute, despicable conduct refers to circumstances that are base, vile, or contemptible. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) Also, “[u]nder the statute, malice does not require actual intent to harm…Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences…. [Citation.]” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) Furthermore, parties cannot recover attorney’s fees unless expressly authorized by a statute or contract. (Hom v. Petrou (2021) 67 Cal.App.5th 459, 464.)

Discussion

Defendant moves to strike portions of the Complaint seeking punitive damages against NP. (MTS p. 2.)

1. Page 6, lines 1-8: “When Defendants engaged in the acts alleged in this complaint, they acted with malice, oppression, and fraud. The acts taken toward Plaintiff were carried out in a deliberate, cold, callous, and intentional manner in order to injure and damage Plaintiff. Their actions were reprehensible and a blatant violation of the law. Defendants' conduct rose to the level of extreme indifference to Plaintiff's rights and rose to such a level that decent citizens should not have to tolerate. Defendants intended to oppress Plaintiff. Based on the foregoing, Plaintiff requests the assessment of punitive damages against Defendants in an amount appropriate to punish and make an example of Defendants.”

2. Page. 7, lines 11-18: “When Defendants engaged in the acts alleged in this complaint, they acted with malice, oppression, and fraud. The acts taken toward Plaintiff were carried out in a deliberate, cold, callous, and intentional manner in order to injure and damage Plaintiff. Their actions were reprehensible and a blatant violation of the law. Defendants' conduct rose to the level of extreme indifference to Plaintiff's rights and rose to such a level that decent citizens should not have to tolerate. Defendants intended to oppress Plaintiff. Based on the foregoing, Plaintiff requests the assessment of punitive damages against Defendants in an amount appropriate to punish and make an example of Defendants.”

3. Page 12, lines 9-16: “When Defendants engaged in the acts alleged in this complaint, they acted with malice, oppression, and fraud. The acts taken toward Plaintiff were carried out in a deliberate, cold, callous, and intentional manner in order to injure and damage Plaintiff. Their actions were reprehensible and a blatant violation of the law. Defendants' conduct rose to the level of extreme indifference to Plaintiff's rights and rose to such a level that decent citizens should not have to tolerate. Defendants intended to oppress Plaintiff. Based on the foregoing, Plaintiff requests the assessment of punitive damages against Defendants in an amount appropriate to punish and make an example of Defendants.”

4. Page 14, lines 6-7: “For an award of punitive damages, as allowed by law, and according to proof at trial.”

Defendant argues Plaintiff failed to assert any specific factual contentions by which punitive damages may be awarded against NP. (Mot, p. 5.) Defendant NP argues that Plaintiff’s Complaint does not allege that NP had advance knowledge of Defendant Garzon’s alleged unfitness or that NP employed Garzon “with a conscious disregard of the rights or safety of others” or that there are allegations as to which officer, director, or managing agent of National Polytechnic was responsible.

In Opposition, Plaintiff argues they have pleaded specific facts about actions by NP show repeated, intentional, malicious behavior. (Complaint, ¶¶ 9-12.) Moreover, Plaintiff argues that Defendant Garzon is still employed as an instructor and thus places Plaintiff and other female students at continued risk of being further sexually harassed. (Complaint, ¶ 13.)

In its’ Reply, NP argues that Plaintiff makes no allegations as to the name of any “officer, director or managing agent” and that the requirement of specificity – who, what, where and when is disregarded in her Complaint and Opposition. NP also contends that “Plaintiff’s argument that she has alleged specific facts by stating ‘Defendant allowed Garzon to remain as an instructor,’ falls flat.” (Reply, p. 2.) Defendant NP argues that Plaintiff’s allegations do not amount to factual assertions of advanced knowledge and conscious disregard of the rights or safety of others. NP notes that Plaintiff alleges in her Complaint that once Defendant NP was informed, NP conducted an investigation into Garzon and then placed him on administrative leave soon thereafter.

Pursuant to Sec. 3294(b), to prove a claim for punitive damages against an employer, Plaintiff must prove 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.” Furthermore, Sec. 3294(b) provides that with respect to a corporate employer such as National Polytechnic, “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.”

Plaintiff points to language in the Complaint that alleges Defendant allowed Garzon to remain as an instructor despite having knowledge of his misconduct, and that Defendant thus ratified his misconduct and put other female students, including Plaintiff, at risk of being sexually harassed by Garzon. (Complaint, ¶¶ 8-12.) However, an award of punitive damages must be predicated on actual injury or damages. (Kizer v. County of San Mateo (1991) 53 Cal.3d 139, 147; Fullington v. Equilon Enterprises, LLC (2012) 210 Cal.App.4th 667, 685.) Although Plaintiff alleges that Plaintiff or other students may be at risk, Plaintiff does not sufficiently allege any actions that occurred after the administrative leave. Instead, Plaintiff relies on actions occurring prior to the October 2022 meeting with administrators.

Moreover, Plaintiff contends that Garzon is believed to have a history of engaging in sexually inappropriate behavior. (Complaint, ¶¶ 8-12.) However, Plaintiff does not allege which corporate employee of NP had advance knowledge of this believed history. Further, Plaintiff does not allege that any corporate employee acted with conscious disregard, authorization, ratification or act of oppression, fraud, or malice. (Code of Civ. Proc. § 3294(b).)

Conclusion

Accordingly, Defendant’s Motion to Strike is GRANTED. The Court finds that there is a reasonable possibly that an amendment may cure the defect in the pleadings. Thus, the Motion to Strike is GRANTED with 20 days leave to amend.

Moving party to give notice.