Judge: Teresa A. Beaudet, Case: 21STCV40070, Date: 2023-03-09 Tentative Ruling

Case Number: 21STCV40070    Hearing Date: March 9, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

            Background

On November 1, 2021, Plaintiff Jennifer Gerace (“Plaintiff”) filed this action against Defendant Alexander Rivkin, MD, Inc., a California corporation doing business as Westside Aesthetics (“Defendant”).

On May 10, 2022, the Court issued an Order sustaining without leave to amend Defendant’s demurrer to the second cause of action of the original Complaint for violation of Penal Code section 496. The Court also granted Defendant’s motion to strike paragraphs 36, 42, and paragraph 2 of the Complaint’s prayer for relief, with leave to amend.[1] Defendant’s motion to strike paragraph 22 of the Complaint was denied as moot.

Plaintiff filed the operative First Amended Complaint (“FAC”) on May 26, 2022. The FAC asserts causes of action for (1) failure to pay wages, (2) breach of written agreement, (3) waiting time penalties, (4) Labor Code section 1102.5, (5) wrongful termination, (6) violation of Labor Code section 226.8, (7) failure to provide itemized wage statements, and (8) failure to timely provide personnel records. 

In the FAC, Plaintiff alleges that in December 2019, she was hired by Defendant in the position of clinical aesthetician. (FAC, ¶ 5.) Defendant operates a cosmetic medical practice. (FAC, ¶ 5.) Plaintiff’s hiring was pursuant to a written employment offer, which provided that Plaintiff would receive commission payments based on services and product sales generated by Plaintiff. (FAC, ¶ 5.) On repeated occasions, Plaintiff requested a report detailing all sales she generated and calculations of her earned commissions. (FAC, ¶ 6.) Defendant repeatedly claimed it would provide such a report and provided excuses as to why such reports had not yet been provided. (FAC, ¶ 6.) Plaintiff continued to request the report, and it became increasingly apparent to Plaintiff that she was being underpaid her earned commission wages. (FAC, ¶¶ 7, 11.) After months elapsed, and multiple requests for a report detailing Plaintiff sales and earned commissions continued to be dismissed, Plaintiff had no reasonable alternative but to resign. (FAC, ¶ 13.)

Defendant now moves to strike portions of the FAC. Plaintiff opposes.

Discussion

A court may strike any “irrelevant, false, or improper matter¿inserted in any pleading” or any part of a pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.) “The grounds for a motion to strike shall 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.)  

Defendant moves to strike the punitive damages allegations from the FAC. A motion to strike may lie where the facts alleged do not rise to¿the level of “malice,¿oppression¿or fraud” required to support a punitive damages award. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63-64.)¿“‘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.” (Civ. Code,    § 3294, subd. (c)(1).) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).) “‘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)(3).) 

Here, the punitive damages allegations are asserted in connection with the fourth cause of action for violation of Labor Code section 1102.5(b), the fifth cause of action for wrongful termination in violation of public policy, and in the prayer for relief. Defendant asserts that the FAC does not allege facts sufficient to establish malice, fraud, or oppression.   

But Plaintiff now alleges that “Defendant continued to induce Plaintiff into working for Defendants on the false promise that she was paid accurately and that a commissions report would be provided to her. Rather, Defendants knowingly and willfully paid Plaintiff less than she was due through deception and false statements.” (FAC, ¶¶ 32, 38.)[2] Plaintiff further alleges that “Defendants knowingly and willfully misappropriated money from Plaintiff,” and that “[i]t was intentional in that Defendants opted to pay less to Plaintiff than computed by Defendant’s computer system.” (FAC, ¶¶ 32, 38.) The Court finds that Plaintiff has sufficiently alleged “malice,” “oppression,” and “fraud” for purposes of her request for punitive damages.  

Defendant also asserts that Plaintiff has not pled any facts which show authorization, ratification, advance knowledge, or malice by an officer, director or managing agent of Defendant. Pursuant to Civil Code section 3294, subdivision (b), “[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.”

But Plaintiff alleges that “[i]n taking the actions alleged herein, Defendants acted with malice, fraud and oppression, and in reckless disregard of Plaintiff’s rights, which was authorized or ratified by an officer, director, or managing agent of Defendants (Alexander Rivkin and Jonas Essoufi.)” (FAC, ¶¶ 32, 38.) The Court finds that this is sufficient at the pleading stage.

Conclusion

Based on the foregoing, Defendant’s motion to strike is denied.

Defendant is ordered to file and serve its answer to the FAC within 10 days of the date of this Order.¿¿  

Defendant is ordered to give notice of this Order.   

DATED:  March 9, 2023                                ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court