Judge: Peter A. Hernandez, Case: 24STCV18365, Date: 2025-01-15 Tentative Ruling

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Case Number: 24STCV18365    Hearing Date: January 15, 2025    Dept: 34

 

1.               Defendant Centene Management Company LLC’s Demurrer to Plaintiff Tamra Jett’s First Amended Complaint is SUSTAINED in part as to Plaintiff’s 10th and 11th causes of action, and OVERRULED in part as to Plaintiff’s 1st, 2nd, 7th, 9th, and 19th causes of action.

 

2.               Defendant Centene Management Company LLC’s Motion to Strike Portions of Plaintiff Tamra Jett’s First Amended Complaint is GRANTED.

 

The court will inquire at the hearing whether leave to amend should be granted.

 

Background

 

            On July 24, 2024, Plaintiff Tamra Jett (“Plaintiff”) filed a complaint against Defendants Centene Inc., Amy Ellis, and Jennifer Grove arising from Plaintiff’s employment.

 

             On September 30, 2024, Plaintiff filed a First Amended Complaint (“FAC”) against Defendant Centene Management Company LLC alleging causes of action for:

 

1.               Breach of Implied-in-Fact Employment Contract;

2.               Breach of the Implied Covenant of Good Faith and Fair Dealing;

3.               Wrongful Termination in Violation of Public Policy and FEHA Based on Disability;

4.               Disability Discrimination in Violation of FEHA;

5.               Failure to Accommodate in Violation of FEHA;

6.               Failure to Engage in Interactive Process in Violation of FEHA;

7.               Hostile Work Environment;

8.               Violation of FEHA and Government Code, §§ 12920, 12921, 12940(a), Sex/Gender Discrimination;

9.               Wrongful Termination, Violation of FEHA and Government Code, §§ 12920, 12921 and 12940, Combined Disability, Sex/Gender and Race Discrimination;

10.            Intentional Infliction of Emotional Distress;

11.            Negligent Infliction of Emotional Distress;

12.            Violation of Business & Professions Code, §§ 17200 et seq., Misclassification as an Exempt Employee;

13.            Failure to Pay Overtime Wages;

14.            Violation of Labor Code, §§226.7, 512 and 2698 et seq., Failure to Provide Meal Breaks;

15.            Violation of California Labor Code, §§226.7, 512, Failure to Provide Rest Breaks;

16.            Violation of California Labor Code, §§201, 202 and 203, Failure to Timely Pay Wages Due at Termination;

17.            Violation of Labor Code, §§226, 1174 and 1175 and IWC Wage Order #1, Knowing and Intentional Failure to Comply with Itemized Wage Statement Provisions;

18.            Failure to Pay Minimum Wages, California Labor Code, §§1194, 1197 and 1197.1; and

19.            Illegal Record Keeping.

 

On October 31, 2024, Defendant Centene Management Company LLC filed this Demurrer and Motion to Strike to Plaintiff’s FAC. On January 2, 2025, Plaintiff filed oppositions. On January 8, 2025, Centene filed replies.

 

On November 4, 2024, the court granted the parties’ Stipulation to Add Defendant Centene Management Company LLC (“Centene”) and Dismiss Defendants Centene Inc., Amy Ellis, and Jennifer Grove.

 

1.               Demurrer

 

Legal Standard

 

            “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of” various grounds listed in statute. (Code Civ. Proc., § 430.10.)

 

            When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

 

            Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

 

Discussion

 

            Centene demurs, pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f), to the 1st, 2nd, 7th, 9th, 10th, 11th, and 19th causes of action in Plaintiff’s FAC, on the basis that Plaintiff fails to state facts sufficient to constitute causes of action and that they are uncertain.

 

1st Cause of Action – Breach of Implied-in-Fact Employment Contract

“The standard elements of a claim for breach of contract are ‘(1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom. [Citation.]’ [Citation]” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.) A claim for breach of contract is subject to demurrer if it cannot be determined from the pleading whether the alleged contract was oral, written, or implied by conduct. (Code Civ. Proc. § 430.10(g).) 

“A cause of action for breach of implied contract has the same elements as does a cause of action for breach of contract, except that the promise is not expressed in words but is implied from the promisor’s conduct.” (Yari v. Producers Guild of America, Inc. (2008) 161 Cal.App.4th 172, 182.)

Centene contends that any employment agreement with Plaintiff was terminable at will, and points to Labor Code section 2922 which “establishes a presumption of at-will employment if the parties have made no express oral or written agreement specifying the length of employment or the grounds for termination.” (Demurrer, at p. 10 citing Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 677.) Centene argues that Plaintiff asserts vague allegations that she entered into an implied-in-fact contract with Centene which is insufficient to establish an implied agreement not to discharge Plaintiff at will. (Id., at p. 10.) Additionally, Centene argues that Plaintiff does not allege facts supporting a meeting of the minds as Centene did not agree that Plaintiff could only be discharged for good cause. (Id., at p. 11.)

In opposition, Plaintiff argues that the FAC alleges sufficient facts to overcome the presumption of at-will employment. (Opp., at p. 5.)

In reply, Centene contends that Plaintiff’s opposition attempts to bolster the factual allegations pled in the FAC by stating new facts which cannot be considered in ruling on a demurrer. (Reply, at p. 2.) As to the first cause of action, Centene continues to argue that inadequate facts were pled in Plaintiff’s FAC to support her cause of action for an implied-in-fact employment contract. (Ibid.)

Plaintiff has properly alleged the existence of an implied-in-fact contract with Centene. Plaintiff has alleged the duties and responsibilities carried out during her employment. (FAC, ¶¶ 1-35.) Plaintiff has also alleged that Plaintiff’s employment contract was subject to implied provisions in which Centene could not terminate Plaintiff or subject her to discipline absent good cause. (Id., ¶ 38.) For the purposes of a demurrer, Plaintiff has alleged sufficient facts to support the cause of action for breach of an implied contract. Any uncertainty regarding Plaintiff’s allegations may be remedied through discovery. “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Centene’s demurrer is overruled as to Plaintiff’s first cause of action.

2nd Cause of Action - Breach of the Implied Covenant of Good Faith and Fair Dealing

            The elements for breach of the implied covenant of good faith and fair dealing are: (1) existence of a contract between plaintiff and defendant; (2) plaintiff performed his contractual obligations or was excused from performing them; (3) the conditions requiring defendant’s performance had occurred; (4) the defendant unfairly interfered with the plaintiff’s right to receive the benefits of the contract; and (5) the plaintiff was harmed by the defendant’s conduct. (Merced Irr. Dist. V. County of Mariposa (E.D. Cal. 2013) 941 F.Supp.2d 1237, 1280 [discussing California law].) The covenant of good faith and fair dealing is implied by law in every contract, and it acts “as a supplement to the express contractual covenants, to prevent a contracting party from engaging in conduct which (while not technically transgressing the express covenants) frustrates the other party’s rights to the benefits of the contract.” (Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1031-1032.)

            Centene contends that as argued previously, Plaintiff does not sufficiently allege the existence of any employment agreement with Centene or Centene’s consent to it as required to support Plaintiff’s cause of action for a breach of the implied covenant of good faith and fair dealing. (Demurrer, at p. 12.)

 

            In opposition, Plaintiff argues that as alleged in the FAC a contract existed between the parties which creates an inherent duty to not unfairly frustrate the employee’s rights under the contract. (Opp., at p. 7.)

 

            In reply, Centene continues to argue that Plaintiff fails to allege that a contract existed between the parties for the implied covenant to apply. (Reply, at p. 4.)

 

            As the court found that Plaintiff sufficiently alleged that an implied contract existed with Centene, Plaintiff sufficiently alleges that an implied covenant of good faith and fair dealing applies. Moreover, Plaintiff sufficiently alleges Centene’s breach of the covenant. (FAC, ¶¶ 44-52.)

Centene’s demurrer is overruled as to Plaintiff’s second cause of action.

7th Cause of Action – Hostile Work Environment

 

            The elements for a hostile work environment are: (1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome harassment; (3) the harassment complained of was based on membership in the protected class; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior. Further, for hostile work environment harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment (Fisher v. Penninsula Hospital (1989) 214 Cal.App.3d 590, 608.)

 

            Centene argues that Plaintiff did not sufficiently plead a cause of action for a hostile work environment as Plaintiff fails to allege that any protected basis was the reason for the alleged harassment. (Demurrer, at p. 12.) Additionally, Centene argues that the alleged harassing conduct was clearly part of Centene’s management tasks, such as counseling Plaintiff, requiring Plaintiff to meet deadline, and assigning particular projects to Plaintiff. (Ibid.)

 

            In opposition, Plaintiff argues that the treatment from Centene by Plaintiff’s manager was blatant harassment and discrimination after Plaintiff returned from her trip to Mexico. (Opp., at p. 8.) Plaintiff contends that she has alleged severe and pervasive harassment based on her race and gender which materially altered the terms and conditions of her employment. (Id., at p. 9.)

 

            In reply, Centene argues that the FAC does not include any allegations that Plaintiff’s alleged harassment was based on her race and gender. (Reply, at p. 5.) Centene also contends that the conduct of which Plaintiff complains of is the type of conduct necessary to carry out the supervisor’s job. (Ibid.) Additionally, Centene argues that the alleged harassment conduct began after Plaintiff was disciplined for taking an unauthorized trip to Mexico and not prior when she worked under the supervision of managers of the same gender and race as Plaintiff undermining that these protected factors did not motivate any harassing behavior. (Ibid.)

 

            Throughout Plaintiff’s FAC, Plaintiff alleges that she was discriminated against for her race and gender. (FAC, ¶ 50, 115, 119.) Plaintiff incorporates by reference paragraph 50 of the complaint to her cause of action for a hostile work environment. (Id., ¶ 88.) Plaintiff then sufficiently alleges that such harassment created a hostile work environment. (Id., ¶ 88.) Centene’s contention that the conduct Plaintiff complains of is not harassment is not an appropriate inquiry for the court to decide through a demurrer.

Centene’s demurrer is overruled as to Plaintiff’s seventh cause of action.

9th Cause of action – Wrongful Termination, Violation of FEHA and Government Code, §§ 12920, 12921 and 12940, Combined Disability, Sex/Gender and Race Discrimination

 

            Centene argues that it is unclear what Plaintiff intended to allege as her ninth cause of action as seen by the title making it uncertain. (Demurrer, at p. 13.) Centene also argues that term “combined disability” is not clarified and that Plaintiff does not refer to her race anywhere in the FAC. (Ibid.) Additionally, Centene argues that Plaintiff’s ninth cause of action is duplicative of Plaintiff’s fourth cause of action for disability discrimination and eighth cause of action for sex and gender discrimination. (Ibid.)

 

            In opposition, Plaintiff argues that her ninth cause of action is for wrongful termination followed by the grounds for such claim in the title. (Opp., at p. 9) Plaintiff also argues that the term “combined disability” is defined in paragraph 112 of the FAC and that Plaintiff’s FAC alleges that she is a person of color. (Ibid.) Plaintiff contends that her ninth cause of action is not duplicative as the theories of recovery pled are different. (Ibid.)

 

            In reply, Centene argues that there is no recognized cause of action for wrongful termination and Centene is entitled to know the grounds for such claims. (Reply, at p. 5.) Centene also contends that paragraph 112 of the FAC does not explain the term “combined disability” making it unclear for Centene to know the misconduct that it is being accused of. (Id., at p. 6.) Lastly, Centene argues that Plaintiff alleging she is a person of color is not sufficiently specific for Centene to appropriate defend against the allegations. (Ibid.)

 

            To establish a wrongful termination claim, plaintiff must show: (1) he was employed by the company; (2) the company terminated his employment; (3) a violation of public policy substantially motivated the discharge; and (4) the discharge caused harm to him. (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 643.) To that extent, a plaintiff will also need to demonstrate the existence of a public policy that (a) is derived from regulatory, statutory or constitutional authority, (b) inures to the public interest generally, (c) is well-established at the time of discharge, and (d) is fundamental and substantial. (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 74-80.)

 

            Plaintiff sufficiently alleges a cause of action for wrongful termination. Plaintiff alleges that her termination violated policies under FEHA pursuant to California Government Code sections 12920, 12921, and 12940(a). (FAC, ¶¶ 112, 119, 121.) As such, Plaintiff’s allegations are sufficient to put Centene on notice of the basis for the instant claim.

Centene’s demurrer is overruled as to Plaintiff’s ninth cause of action.

10th and 11th Causes of Action – Intentional and Negligent Infliction of Emotional Distress

 

            “The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, citation and ellipses omitted.) 

 

            “The law of negligent infliction of emotional distress in California is typically analyzed by reference to two theories of recovery: the ‘bystander’ theory and the ‘direct victim’ theory. The negligent causing of emotional distress is not an independent tort, but the tort of negligence. The traditional elements of duty, breach of duty, causation, and damages apply. Whether a defendant owes a duty of care is a question of law.” (Spates v. Dameron Hosp. Ass’n (2003) 114 Cal.App.4th 208, 213, ellipses, quotation marks, brackets, and paragraph breaks omitted.) 

 

            Centene argues that the California Workers’ Compensation Act preempts Plaintiff’s causes of action for intentional or negligent infliction of emotional distress as Plaintiff’s claims arose out of and in the court of Plaintiff’s employment with Centene. (Demurrer, at p. 13.) Centene also contends that even if Plaintiff’s claims were not preempted, Plaintiff’s claims for emotional distress fail as the alleged conduct by Centene of terminating Plaintiff’s employment is not extreme and outrageous. (Id., at p. 16.)

 

            In opposition, Plaintiff argues that her emotional distress claims are not preempted by the Workers’ Compensation Act as these claims are based on the same conduct used to allege claims for discrimination and wrongful termination. (Opp., at p. 10.) Additionally, Plaintiff contends that the question of whether Centene’s conduct is extreme and outrageous is one for the jury to decide. (Id., at p. 12.) Plaintiff also argues that the conduct of Centene’s supervising staff alleged by Plaintiff is extreme and outrageous. (Ibid.)

 

            In reply, Centene continues to make the same preemptive arguments to Plaintiff’s emotional distress claims. (Reply, at p. 6.)

 

Generally, and with limited exceptions, California's Workers' Compensation Act (“WCA”) is the exclusive remedy for injuries arising out of and in the course of employment. (Claxton v. Waters (2004) 34 Cal.4th 367, 372-373.) This typically bars any suit from moving forward because of the rule that the WCA is the exclusive remedy. Labor Code section 3600, subdivision (a) provides that, subject to certain particular exceptions and conditions, workers’ compensation liability, “in lieu of any other liability whatsoever” will exist “against an employer for any injury sustained by his or her employees arising out of and in the course of the employment.”  (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 708.)  The basis for the exclusivity rule in workers’ compensation law is the “presumed compensation bargain” pursuant to which the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability.  (Ibid.)  The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort against the employer.  (Ibid.)  Also, under this rule, the employer is insulated from common law vicarious liability to an employee for the acts of another employee, under Labor Code section 3601, subdivision (c).  (Iverson v. Atlas Pacific Engineering (1983) 143 Cal.App.3d 219, 227.) 

 

“[T]hese provisions establish that the liability of employers … for ‘industrial injury which results in occupational disability or death’ is limited to workers’ compensation remedies. [Citation.] Where ‘the essence of the wrong is personal physical injury or death, the action is barred by the exclusiveness clause no matter what its name or technical form if the usual conditions of coverage are satisfied.’ [Citation.] In other words, the exclusivity provisions encompass all injuries ‘collateral to or derivative of’ an injury compensable by the exclusive remedies of the WCA. [Citation.] Thus, the trigger for workers’ compensation exclusivity is a compensable injury. An injury is compensable for exclusivity purposes if two conditions exist. First, the statutory conditions of compensation must concur. (See § 3600, subd. (a).) For example, if the injury arises ‘out of and in the course of the employment, the exclusive remedy provisions apply notwithstanding that the injury resulted from ... intentional conduct ... even though the ... conduct might be characterized as egregious.’ [Citation.] Second, the injury must cause a ‘disability or the need for medical treatment.’ [Citation.] ‘ “Injury” includes any injury or disease ....’ (§ 3208.) Therefore, ‘the exclusive remedy provisions apply only in cases of such industrial personal injury or death,’ and the workers’ compensation system subsumes all statutory and tort remedies otherwise available for such injuries. [Citation.]”  (Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 813-814.)  

 

Here, Plaintiff’s claim for wrongful termination and discrimination under FEHA do not arise out of the normal course of employment. (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 90–91 [“In sum, absent further guidance from our Supreme Court, we are unwilling to abandon the long-standing view that unlawful discrimination and retaliation in violation of FEHA falls outside the compensation bargain and therefore claims of intentional infliction of emotional distress based on such discrimination and retaliation are not subject to workers' compensation exclusivity.”].)  Accordingly, Plaintiff’s FEHA claims and other claims which are based on the same conduct do not fall within the workers compensation exclusivity.

 

Additionally, for “[c]onduct to be outrageous[, it] must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.”  (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.)  “[W]hether conduct is outrageous is ‘usually a question of fact’ … [however] many cases have dismissed intentional infliction of emotional distress cases on demurrer, concluding that the facts alleged do not amount to outrageous conduct as a matter of law.” (Bock v. Hansen (2014) 225 Cal.App.4th 215, 235, [internal citations omitted].)  “‘Behavior may be considered outrageous if a defendant (1) abuses a relation or position that gives him power to damage the plaintiff’s interests; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress. . . .’” (Molko v. Holy Spirit Ass’n (1988) 46 Cal.3d 1092, 1122, superseded by statute as noted in Aguilar v. Atlantic Richfield Co. (2001)¿25 Cal.4th 826, 853, fn. 19 [internal citation omitted].)  “[T]he requisite emotional distress may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry.”  (Fletcher v. Western National Life Ins. Co.¿(1970) 10 Cal.App.3d 376, 397.)  However, “[m]anaging personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society. A simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged.”¿ (Janken v. GM Hughes Electronics¿(1996) 46 Cal.App.4th 55, 80.) 

 

Here, Plaintiff’s FAC alleges that Centene, through the supervising staff, discriminated against Plaintiff based on her race, gender, and disability which led to an alleged wrongful termination causing Plaintiff severe emotional distress. (FAC, ¶¶ 122-135.)  The court finds that, while Plaintiff sufficiently alleges wrongful intent, Plaintiff’s termination is merely management of personnel which is not extreme or outrageous conduct as a matter of law.  (Janken, supra, 46 Cal.App.4th at p.80.) 

As such, Centene’s demurrer is sustained as to Plaintiff’s tenth and eleventh causes of action.

19th Cause of Action – Illegal Record Keeping

 

            Centene argues that Plaintiff’s cause of action for illegal record keeping consists of allegations that are too conclusive to state a claim. (Demurrer, at p. 16.) Additionally, Centene contends that the FAC fails to indicate the records at issue and the illegalities that took place. (Id., at p. 17.) Centene also argues that if Plaintiff’s claim is in reference to wage statements, it is duplicative of Plaintiff’s 17th cause of action. (Ibid.)

 

            In opposition, Plaintiff argues that her cause of action for illegal record keeping relates to Centene’s misclassification of Plaintiff as an exempt employee under Labor Code section 226 by failing to keep track of the actual hours worked by Plaintiff. (Opp., at p.13.) As such, Plaintiff claims that this cause of action is separate from Plaintiff’s 17th cause of action. (Id., at p. 14.)

 

            In reply, Centene argues that it is not apparent if the only records Plaintiff alleges were not lawfully kept are her wage statements and why they were not part of Plaintiff’s 17th cause of action for failure to comply with itemized wage statement provisions making her 19th cause of action uncertain. (Reply, at p. 8.)

 

            To state a cause of action for failure to provide accurate itemized wage statements, the plaintiff must allege facts demonstrating that the defendant employer failed to comply with the requirements for wage statements set forth in Labor Code section 226, subdivision (a). Labor Code section 226 subdivision (a) provides that an employer must keep and provide accurate itemized statements of wages to its employees.¿ (Lab. Code § 226(a); Luben v. The Wackenhut Corp. (2016) 5 Cal.App.5th 926, 932.)¿¿ 

 

            The court finds that Plaintiff sufficiently pled for a cause of action for violation of Labor Code section 226. Although the court does note find that Plaintiff’s 19th cause of action could have been brought through its 17th cause of action which is based under the same statutory provision, Plaintiff’s claims involve different allegations and constitute separate causes of action.  

As such, Centene’s demurrer is overruled as to Plaintiff’s nineteenth cause of action.

2.     Motion to Strike

 

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.)

 

Discussion

 

            Centene moves to strike Plaintiff’s request for punitive damages.

 

            Punitive damages may be recovered upon a proper showing of malice, fraud, or oppression. (Civ. Code, § 3294(a).) “Malice” is defined as conduct intended to cause injury to a person or despicable conduct carried on with a willful and conscious disregard for the rights or safety of others. (Turman v. Turning Point of Cent. Cal., Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct subjecting a person to cruel and unjust hardship, in conscious disregard of the person’s rights. (Ibid.) “Fraud” is an intentional misrepresentation, deceit, or concealment of a material fact known by defendant, with intent to deprive a person of property, rights or otherwise cause injury. (Ibid.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud, or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

 

“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.) “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.” (Ibid.) “In ruling on a motion to strike, courts do not read allegations in isolation.” (Ibid.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud or malice. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1042.)

            Here, there are no specific allegations as to oppression, fraud, or malice by Centene. Nor are there specific allegations of oppression, fraud, or malice beyond the alleged misconduct by Centene’s supervising staff. Rather, the complaint only alleges generic allegations that Centene acted with oppression, fraud, or malice. (FAC, ¶¶ 73, 80, 87, 100, 110, 121.)

 

            Accordingly, Centene’s motion is granted.  

 

Conclusion

 

1.               Defendant Centene Management Company LLC’s Demurrer to Plaintiff Tamra Jett’s First Amended Complaint is SUSTAINED in part as to Plaintiff’s 10th and 11th causes of action, and OVERRULED in part as to Plaintiff’s 1st, 2nd, 7th, 9th, and 19th causes of action.

 

2.               Defendant Centene Management Company LLC’s Motion to Strike Portions of Plaintiff Tamra Jett’s First Amended Complaint is GRANTED.

 

The court will inquire at the hearing whether leave to amend should be granted.