TENTATIVE

Defendant’s motion to strike punitive damages against it is GRANTED with 30 days leave to amend.  Moving party is ordered to give notice. 

Request for Judicial Notice

Defendant seeks judicial notice of: (1) Status Review Report dated January 17, 2019, in the pertinent juvenile dependency matter in the Superior Court County of Los Angeles, Juvenile Court, case number CK31931B.

Plaintiff seeks judicial notice of: (1) First Amended Complaint in John (Lojhk) Doe v. Haynes Family of Programs, Inc. 23PSCV01717; and (2) Second Amended Complaint in John RD Doe v. Haynes Family of Programs, Inc. (2018) BC700918 (L.A. Super. Ct. April 5, 2018).

Both parties’ request is GRANTED as to the existence of these documents, but not to the truth of the matters asserted within the documents. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565).

Legal Standard

Pursuant to Code of Civil Procedure, section 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.” (Code Civ. Proc., § 437.)

Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading. (Code Civ. Proc., § 435, subd. (b)(1).) The allegations of a complaint “must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 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).)

Discussion

Meet and Confer

The motion to strike is accompanied by the declaration of Richard R. Clouse, which satisfies the meet and confer requirement. (Code Civ. Proc. § 435.5.)

Merits

Defendant moves to strike portions of Plaintiff’s SAC praying for punitive damages, arguing that plaintiff has failed to plead allegations which give rise to punitive damages.

“To support punitive damages, the complaint ... must allege ultimate facts of the defendant's oppression, fraud, or malice.” (Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316-317 (Cyrus).) “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.)

A “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied,’ ” and inadequate to support punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872 (Brousseau).)

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”].)

An employer shall not be liable for punitive damages based on the acts of an 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 damages are awarded, or was personally guilty of oppression, fraud, or malice. 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. (Civ. Code, § 3294, subd. (b).)

Here, the SAC alleges that Decedent Nicholas Perez, a resident, was found unresponsive in his cottage at the Haynes campus. It was later determined that Decedent had died from a drug overdose.

Defendant had employed at least two staff members to oversee the cottage where Decedent was housed. Defendant had a policy to check in on its residents every 10 minutes during the employees’ shifts. However, on the night Decedent died, it was discovered that one staff member was asleep on the job and the other staff member left the campus altogether.

After Decedent’s death, Defendant’s staff falsified bedroom check logs and indicated that they conducted room checks throughout their shift but later admitted under questioning they did not perform checks.

The Court finds that Plaintiff’s allegations in the SAC fail to rise to malice, oppression, or fraud. Plaintiff only alleges that Defendant’s staff members fell asleep on the job, left the campus, and falsified records. These isolated incidences without more do not state a claim for punitive damages. To the extent Plaintiff alleges Defendant’s employees engaged in fraud by falsifying records, these allegations lack requisite factual specificity.

In addition, as Defendant is a corporation, there are no allegations showing that Defendant’s officer, director, or managing agent 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, or was personally guilty of oppression, fraud, or malice.

Plaintiff also pled that “Defendants were fully aware and on notice that there had been prior incident(s) of persons(s) being injured by their failure to provide care and supervision. It was because of this known danger that Defendants' own rules, policies, procedures, regulations, contracts, licenses, permits and agreements, as well as City, State and/or Federal laws, statutes and/or regulations, provided, directed and/or instructed that: (1) camera footage must be reviewed to ensure that staff conducted safety check on the clients during their shifts; and (2) bar codes must be installed on each bedroom door to complete a client safety check.” However, these allegations are conclusory and not pled with requisite specificity. What prior incidents had there been? Moreover, there must be specific factual allegations that show Defendant’s officer, director, or managing agent had advance knowledge that the specific employee at issue in this case was unfit, and they employed that employee with a conscious disregard of the rights or safety of others; or that an officer, director, or managing agent authorized or ratified the conduct -- e.g., by knowing about these prior incidents and failing to take action, or having a pattern of withholding specific types of care; or personally engaging in the conduct at issue -- e.g., the falsification of records by an officer, director, or managing agent.

Plaintiff asks for judicial notice of complaints in other cases against Defendant to establish “notice or advanced knowledge.” However, it is unclear how judicial notice could cure the defects of the pleadings here. None of the information in Plaintiff’s request for judicial notice is pled in the SAC. If Plaintiff is attempting to show a corporate pattern of withholding care, this should be alleged in any amended pleading.

Plaintiff requests leave to amend. As this is the first motion to strike and there is a reasonable possibility of amendment, the Court will allow leave to amend.

Conclusion

Accordingly, Defendant’s motion to strike punitive damages against it is GRANTED with 30 days leave to amend.