Judge: Margaret L. Oldendorf, Case: 23AHCV00070, Date: 2023-11-29 Tentative Ruling


Case Number: 23AHCV00070    Hearing Date: November 29, 2023    Dept: P

 

 

 

 

 

 

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

NORTHEAST DISTRICT

 

THE ESTATE OF CLAUDIA RUSSO, CHRISTINA CARRASCO, JAMES RUSSO, and JOSEPH RUSSO,

 

                                      Plaintiffs,

 

                      vs.

 

EISENHOWER HEALTHCARE LLC dba Pasadena Grove Health Center, and DOES 1 through 10, inclusive,

 

                                   Defendants.

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Case No.: 23AHCV00070

 

 

[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION TO STRIKE

 

Date:   November 29, 2023

Time:  8:30 a.m.

Dept.:  P

 

         

          I.        INTRODUCTION

This motion to strike turns on two issues: (1) whether punitive damages are in violation of CCP Section 425.13, and (2) whether plaintiffs’ claims provide a basis on which to grant punitive damages.

Here, Plaintiffs Estate of Claudia Russo (Estate), Christina Carrasco (Carrasco), James Russo (James) and Joseph Russo (Joseph) are the estate of Decedent Claudia Russo and her surviving three children, respectively. Plaintiffs allege that Defendant Eisenhower Healthcare LLC. (Eisenhower) operated and owned Pasadena Grove Health Center, a Skilled Nursing Facility. Plaintiffs allege that Decedent Claudia Russo was seriously injured and died from a fall at Pasadena Grove. Plaintiffs allege Defendants breached their duty of care towards Decedent. The complaint sets forth one cause of action for wrongful death - negligence.

In the motion to strike now before the Court, Defendant Eisenhower urges that (1) punitive damages are in violation of Code of Civil Procedure Section 425.13; (2) the complaint does not set forth facts sufficient under Civil Code Section 3294 to support  punitive damages; and (3) the complaint does not set forth facts constituting authorization or ratification on the part of the employer, as required by Civil Code section 3294(b) to recover punitive damages against an employer. The motion to strike is unopposed, and it is GRANTED.

 

          II. MEET AND CONFER
           Defendant’s counsel, David J. Ozeran, declares that on August 14, 2023, he called Plaintiff’s counsel in an attempt to meet and confer. He left Plaintiff’s counsel a message. (Ozeran Declaration ¶ 3.) Ozeran declares he called again on August 15, 2023 and left a second message. (Id.) Ozeran further declares that on August 16, 2023, his secretary faxed a proposed stipulation striking punitive damages from the complaint to Plaintiff’s attorney. (Id.) On August 17, 2023, Ozeran’s secretary faxed Plaintiff’s attorney a draft of the instant motion to strike and Ozeran attempted to reach Plaintiff’s attorney by phone. (Id.) Plaintiff’s attorney, Vazken Agemian, did not return Ozeran’s calls or otherwise respond.

          Counsel’s declaration is sufficient for meet and confer requirements. (CCP § 435.5(a).)

 

III.     LEGAL STANDARD

          Code Civ. Proc. Section 436 permits trial courts to strike out any irrelevant, false, or improper matter inserted in a pleading:

“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.” (CCP § 436.)

 

IV.     ANALYSIS

          A. Portions of the Complaint at Issue

Defendant seeks to strike the following portions of the Complaint:

¶ 1, p. 2:7 – “or punitive damages.”

¶ 14, p. 4:23-24 – “or punitive damages.”

          B. Punitive Damages

“‘In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294.’ (Citation.)” (Today IV’s Inc. v. Los Angeles County MTA (2022) 83 Cal.App.5th 1137, 1193.) Civil Code section 3294 provides that on a non-contract cause of action, a plaintiff may recover punitive damages when they prove “by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice” (CC § 3294(a).)  Oppression, fraud and malice are defined as: “(1) ‘Malice’ means 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. (2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (3) ‘Fraud’ 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.” (CC § 3294(c).) Punitive damages are appropriate if the defendant's acts are reprehensible, fraudulent or in blatant violation of law or policy. (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017.)

          Eisenhower urges that punitive damages are not appropriate here, as it would contravene CCP Section 425.13. (Motion, p. 4: 2-3.) CCP Section 425.13 provides”[i]n any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages 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 damages to be filed.” (CCP § 425.13(a).) In support, Eisenhower cites Central Pathology Service v. Superior Court. Central Pathology Service provides that “[w]henever an injured party seeks punitive damages for an injury that is directly related to the professional services provided by a health care provider acting in its capacity as such, then the action is one “arising out of the professional negligence of a health care provider,” and the party must comply with section 425.13(a).” (Central Pathology Service v. Superior Court (1992) 3 Cal.4th 181, 191-192, citations omitted.) Additionally, Eisenhower urges that application of CCP Section 425.13 is broad. (Motion, p. 5: 13-19, referencing Cooper v. Superior Court (1997) 56 Cal. App.4th 744.) This argument is well taken, as the Complaint is one for negligence of Eisenhower dba Pasadena Grove, a healthcare provider, in its capacity as a healthcare provider. The Complaint alleges that Defendants “had a duty to provide CLAUDIA RUSSO with the degree of care that a reasonable SNF [skilled nursing facility] would provide, to wit, monitor and record CLAUDIA RUSSO’S condition.” (Complaint ¶ 11.) Plaintiffs allege that Defendants then breached that duty by failing to prevent Decedent Claudia Russo’s fatal fall. (Complaint ¶ 13.)

To the extent that Plaintiffs are seeking punitive damages in connection with their cause of action for negligence, they cannot do so unless the Court enters an order allowing punitive damages as set forth in CCP Section 425.13.

Secondly, Eisenhower notes that factual assertions are required to support a claim for punitive damages. (Smith v. Sup. Ct. (1992) 10 Cal.App.4th 1033, 1042, see also Grieves v. Superior Court (1984) 157 Cal.3d 159, 166; Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894.) It then urges that the complaint does not set forth either the language of CC section 3294 or facts demonstrating that the code section applies. (Motion, p. 6: 2-3.) This argument is well taken, as the complaint does not reference CC section 3294 or otherwise contains allegations upon which the Court may grant punitive damages.

Thirdly, Eisenhower urges that Subsection (b) of the Civil Code was not complied with. (Motion, p.7: 6-8.) Civil Code Section 3294(b) provides that an employer shall not be responsible for the oppression, malice or fraud of an employee giving rise to punitive damages 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.” (CC § 3294(b).) In support, Eisenhower cites Merlo v. Standard Life & Accident Ins. Co. of CA and Ebaugh v. Rabkin, supra, for the proposition that an employer is not responsible for the punitive damages sought against an employee unless the employer ratified the employee’s act. (Merlo v. Standard Life & Accident Ins. Co. of Calif. (1976) 59 Cal. App.3d 5; Ebaugh v. Rabkin (1972) 22 Cal. App.3d 891, 895; see also Grieves, supra at 168.) This argument is well taken, as the Complaint does not allege that Eisenhower ratified the allegedly negligent conduct of its employees or otherwise had advance knowledge of their alleged unfitness.

Accordingly, the Court grants the motion to strike in full.

 

 

 

 

 

 

 

IV.     CONCLUSION

          Defendant Eisenhower’s motion to strike is granted with respect to these portions of the complaint: p.2: line 7, p. 4: line 23-24.

          Eisenhower is ordered to provide notice of this ruling. 

 

         

Dated:                                                              _______________________________

                                                                              MARGARET L. OLDENDORF

                                                                       JUDGE OF THE SUPERIOR COURT