Judge: Michelle Williams Court, Case: 21STCV38141, Date: 2022-09-09 Tentative Ruling

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Case Number: 21STCV38141    Hearing Date: September 9, 2022    Dept: 74

21STCV38141           YESENIA LOPEZ vs COASTAL DEVELOPMENTAL SERVICES FOUNDATION

Motion by Defendant Coastal Developmental Services Foundation DBA Westside Regional Center to Strike Portions of Plaintiff Yesenia Lopez’s Second Amended Complaint

TENTATIVE RULING:  The motion is GRANTED with leave to amend as to paragraphs 45, 54, 64 and the prayer for “punitive and exemplary damages, according to proof” as well as the phrase “[i]n doing the acts herein described, Mr. Garcia and Defendants acted with fraud, malice, and/or oppression in unreasonably reneging Plaintiff’s reasonable accommodation, and ultimately firing Plaintiff. Accordingly, Plaintiff is entitled to punitive damages against Defendants in an amount which will be proven at trial” contained in paragraphs 36, 46, 55, 65. The motion is otherwise DENIED.  Plaintiff shall have 20 days leave to amend.

Background

On October 14, 2021, Plaintiff Yesenia Lopez filed this employment action against Defendant Coastal Developmental Services Foundation dba Westside Regional Center. On April 21, 2022, Plaintiff filed the operative Second Amended Complaint asserting causes of action for: (1) disability discrimination; (2) failure to accommodate disability; (3) retaliation in violation of FEHA; and (4) wrongful termination in violation of public policy.

Motion

On May 20, 2022, Defendant Coastal Developmental Services Foundation filed a motion to strike allegations related to punitive damages from the Second Amended Complaint: paragraphs 34-36, 45-46, 54-55, 64-65 and the prayer for relief.

Opposition

In opposition, Plaintiff argues the SAC alleges sufficient facts to sustain a claim for punitive damages.

Reply

In reply, Defendant reiterates its arguments in the initial motion that the allegations are insufficient.

Meet and Confer

The motion is accompanied by the declaration of Lea Patricia L. Francisco which satisfies the requirements of Code of Civil Procedure section 435.5.

Motion to Strike

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 of Civ. Proc. § 435(b)(1); Cal. Rules of Court, rule 3.1322(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. § 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

“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. [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation. [Citation.]” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “Pleading in the language of the statute is not objectionable when sufficient facts are alleged to support the allegation.” (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6-7.)

“An 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(b).) “Civil Code section 3294, subdivision (b) sets forth the circumstances under which an employer may be held liable for punitive damages based upon acts of an employee. They include the employer's (1) advance knowledge of the employee's unfitness; (2) authorization or ratification of the wrongful conduct; and (3) personal culpability. Moreover, a corporate employer may be liable only if the knowledge, authorization, ratification or act was on the part of an officer, director or managing agent of the corporation.” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 167.) 

Punitive Damages

Defendant contends the allegations in the SAC do not establish malice, fraud, or oppression and are insufficient to state a claim for punitive damages against an entity such as Defendant.

Defendant’s motion is overbroad as it includes properly alleged factual allegations relevant to the retaliation claim. Plaintiff’s use of adjectives such as maliciously and callously, while insufficient to support the punitive damages claim absent accompanying facts in support thereof, do not render the entire factual allegation containing those adjectives subject to a motion to strike. The allegations are not irrelevant, false, or improper matter. (Code Civ. Proc. § 436.) The motion is DENIED as to paragraph 35, which alleges “Defendants’ managing agents, Cesar Garcia and Julien Hernandez, both of whom having had the requisite authority over Plaintiff in the terms and conditions of her employment, maliciously and callously retaliated against Plaintiff because of her need for a reasonable accommodation, oppressing Plaintiff’s rights under California law, and ultimately, causing Plaintiff to be wrongfully terminated by Defendant.” 

Similarly a majority of paragraphs 36, 46, 55, and 65, cited in Defendant’s Notice of Motion contain properly stated factual allegations: “Defendants had full knowledge of Cesar Garcia and Julien Hernandez’s actions and ratified the same. On at least one occasion, Defendants’ human resources department corrected Mr. Garcia’s aggressive attempts to artificially cancel Plaintiff’s reasonable accommodation. However, human resources ultimately failed to protect Plaintiff who was later wrongfully terminated because of her protected status.” Accordingly, the motion to strike is DENIED as to the quoted language in paragraphs 36, 46, 55, and 65.

As to the prayer for punitive damages and the allegations directly related thereto, the Court also finds the allegations insufficient.

Plaintiff alleges she was “scrutinized,” “unfairly criticized,” would be called “at random times to make sure she was working” while working from home, had a program installed on her computer “which would time out after only a few minutes of inactivity,” by Julien Hernandez and was unilaterally told she could only work from home one day per week instead of two by Cesar Garcia. (SAC ¶¶ 13, 15,  18.) The SAC alleges the work from home issue was resolved by HR and does not allege Plaintiff experienced a reduction in her work from home schedule. (Id. ¶¶ 18-19.) Plaintiff alleges she experienced general “hostility [and] micromanagement” and her “employment was summarily terminated” on January 2, 2020 after returning from the holidays. (Id. ¶¶ 20-21.)

The SAC fails to allege facts beyond those necessary to state the asserted causes of action under FEHA and therefore does not provide a sufficient basis for the imposition of punitive damages. (See Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 620 (“As pled, the only possible viable cause of action is for retaliation based upon SPPH’s refusal to renew Dr. Fisher's office lease. Even though punitive damages are available in a civil action under FEHA where the defendant was guilty of oppression, fraud or malice under Civil Code section 3294 [Citation], the facts of this case do not support punitive damages.”); Taylor v. Superior Court (1979) 24 Cal.3d 890, 894 (“Something more than the mere commission of a tort is always required for punitive damages.”).) The allegations do not rise to the level of despicable conduct required to support a punitive damages claim based upon malice or oppression. (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331 (“‘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.”).)

Additionally, the allegations are insufficient to state a claim for punitive damages against Defendant. Plaintiff summarily alleges Defendant’s ratification. (SAC ¶¶ 36, 46, 55, 65 (“Defendants had full knowledge of Cesar Garcia and Julien Hernandez’s actions and ratified the same.”).) However, the supporting facts demonstrate the opposite: “Defendants’ human resources department corrected Mr. Garcia’s aggressive attempts to artificially cancel Plaintiff’s reasonable accommodation.” (Ibid. See also SAC ¶ 18 (“Defendants’ human resources department corrected Mr. Garcia”); SAC ¶ 19 (“HR confirmed to Plaintiff that she could continue to work the modified schedule as an accommodation.”); Fisher, supra, 214 Cal.App.3d at 621 (“Ms. Fisher will have to plead facts to show that SPPH ratified those acts pursuant to Civil Code section 3294, subdivision (b).”).)

Similarly, the allegation that Defendants’ Human Resources corrected Garcia undermines Plaintiff’s summary allegation that he is a managing agent. (SAC ¶ 35; Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167–168 (“‘corporate policy’ is the general principles which guide a corporation, or rules intended to be followed consistently over time in corporate operations. A ‘managing agent’ is one with substantial authority over decisions that set these general principles and rules.”).) Authority over Plaintiff’s employment is not enough. (Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 421–422 (“In an attempt to show Lawicki was a managing agent, Zurian argues Lawicki had immediate and direct control over her with the responsibility for supervising her performance. However, the fact Zurian reported to Lawicki and that he had the authority to terminate her merely reflect Lawicki was Zurian’s supervisor, not that he was a managing agent.”).)

Accordingly, the motion to strike is GRANTED as to paragraphs 45, 54, 64 and the prayer for “punitive and exemplary damages, according to proof” as well as the phrase “[i]n doing the acts herein described, Mr. Garcia and Defendants acted with fraud, malice, and/or oppression in unreasonably reneging Plaintiff’s reasonable accommodation, and ultimately firing Plaintiff. Accordingly, Plaintiff is entitled to punitive damages against Defendants in an amount which will be proven at trial” contained in paragraphs 36, 46, 55, 65.