Judge: Michael E. Whitaker, Case: 22STCV20616, Date: 2023-01-19 Tentative Ruling

Case Number: 22STCV20616    Hearing Date: January 19, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiffs Deiler Arriaza and Maritza Botello (collectively, Plaintiffs) sued Defendants El Zarape Cocina on Melrose Inc. (Defendant) based on alleged violent and physical altercation which occurred at Defendant’s restaurant.  Defendant moves to strike Plaintiff’s claim for punitive damages and related portions of the First Amended Complaint (FAC).  Plaintiffs oppose the motion.  Defendant replies.

ANALYSIS

1. MOTION TO STRIKE

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.)

In ruling on a motion to strike punitive damages, “judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294.  (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)  Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a).)   As set forth in the Civil Code,

(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.

(Civ. Code, § 3294, subd. (c)(1)-(3), emphasis added.) 

Further, a plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud or malice.  To wit, there is a heightened pleading requirement regarding a claim for punitive damages.  (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)  “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.  When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him.” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].)  In Anschutz Entertainment Group, Inc. v. Snepp, the Court of Appeal noted that the plaintiffs’ assertions related to their claim for punitive damages were “insufficient to meet the specific pleading requirement.”  (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [plaintiffs alleged “the conduct of Defendants was intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiff's rights. Plaintiff's injuries were exacerbated by the malicious conduct of Defendants. Defendants' conduct justifies an award of exemplary and punitive damages”]; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.  Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim”].) 

            In addition, “[t]he imposition of punitive damages upon a corporation is based upon its own fault.  It is not imposed vicariously by virtue of the fault of others.”  (City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal.App.3d 31, 36.)  “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive.  An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees.  But the law does not impute every employee’s malice to the corporation.  Instead, the punitive damages statute requires proof of malice among corporate leaders:  the officers, directors, or managing agents.”  (Cruz v. Home Base (2000) 83 Cal.App.4th 160, 167 [cleaned up].) 

            Moreover, “[a]n employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, 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 the 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).)

Defendant moves to strike Plaintiffs’ claim for punitive damages.  Defendant argues the FAC fails to plead acts of malice, oppression, or fraud.  Plaintiffs’ FAC alleges in relevant part the following:

• Defendants' behavior was malicious, as they engaged in despicable conduct that willfully and consciously disregarded Plaintiff’s rights and physical health. This despicable conduct was also oppressive because it subjected Plaintiff to cruel and unjust hardship for the rest of his life.

• Defendants, and each of them, individually and/or by and through an officer, director, or managing agent, including but not limited to Defendants and DOES 1-10, authorized or ratified the conduct for which punitive damages are sought and/or are personally guilty of oppression and malice. Notably, the restaurant owner, Beto, was aware of all material facts relevant to these allegations as (i) Beto spoke to the waitress immediately prior to the subject incident, and (ii) remained in correspondence with Plaintiff Arriaza after the fact. Beto was provided, through correspondence with Arriaza, all facts relevant to the dispute including, but not limited to, pictures of Arriaza’s severe injuries. Despite knowledge of the events, Beto failed to fire and/or take any action against the waitress who perpetrated the series of acts described herein.

• Moreover, Beto did not retain any surveillance footage of the subject incident. Upon information and belief, Plaintiffs allege that Defendants had possession of the surveillance footage but intentionally failed to take the steps necessary to retain the footage.

(FAC, ¶¶ 35-37, 42-44, 52-54, 60-62, 67-69, 74-76.)

In opposition, Plaintiff argues that the owner of the Defendant restaurant’s failure to take disciplinary action against the waitress who facilitated the violent interaction and failure to retain surveillance footage of the subject incident amounts to ratification of the waitress’s actions. 

As an alternate theory to respondeat superior, an employer may be liable for an employee's act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort. The failure to discharge an employee who has committed misconduct may be evidence of ratification.  The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery.  Whether an employer has ratified an employee's conduct is generally a factual question.

(Baptist v. Robinson (2006) 143 Cal.App.4th 151, 169–170 [cleaned up].) 

            Although Plaintiffs are correct that an employer may be liable for an employee’s tortious conduct for purposes of imposing punitive damages through ratification, Plaintiffs’ allegations are ambiguous as to what Beto, the owner knew about his employee’s tortious conduct.  Did Beto know about the employee’s rude service or did Beto know (before or after) about the employee orchestrating the battery of Plaintiff Arriaza, or did he know about both the rude service and the battery?  Simply alleging that Beto “remained in correspondence with Plaintiff Arriaza after the fact. Beto was provided, through correspondence with Arriaza, all facts relevant to the dispute including, but not limited to, pictures of Arriaza’s severe injuries” without specificity, and then failed to take any action against the employee, is insufficient to a determination at the pleading stage that Beto “ratified” the tortious conduct of the employee.  Based upon the current state of allegations, the Court cannot determine whether Beto ratified the employee’s rude service and/or the arrangement of the battery, to support the punitive damages claim. 

1. LEAVE TO AMEND

Plaintiffs have the burden of showing in what manner the amended complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action.  (See The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.)  The plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim.  (See PGA West Residential Assn., Inc. v Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.)  Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.”  (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].) 

Here, Plaintiffs have failed to meet their burden to show how the amended complaint could be amended to establish a claim for punitive damages against Defendant.  Plaintiffs’ opposition to the motion sets forth generalized statement that leave to amend should be granted, without providing in particular what factual allegations Plaintiffs can and will assert to cure the deficiencies with their claim for punitive damages vis-à-vis Defendant. 

CONCLUSION AND ORDER

Therefore, the Court grants Defendant’s motion to strike without leave to amend. Defendant shall provide notice of the Court’s ruling and file a proof of service of such.