Judge Teresa A. Beaudet, Case Number: 23STCV10172, Date: 2024-06-25 Tentative Ruling

Plaintiff Christopher Castro (“Plaintiff”) filed this action on May 5, 2023 against Defendant Dongalen Enterprises, Inc. d/b/a Interstate Plastics (“Defendant”). The Complaint alleges causes of action for (1) disability discrimination, (2) failure to provide reasonable accommodation, (3) failure to engage in the interactive process, (4) retaliation in violation of FEHA, (5) failure to prevent discrimination and retaliation, (6) whistleblower retaliation,

(7) violation of California Family Rights Act (“CFRA”) rights, (8) “CFRA rights retaliation,”

(9) wrongful termination in violation of public policy, and (10) negligent hiring, retention, and supervision.

Defendant now moves to strike portions of Plaintiff’s Complaint. Plaintiff opposes.

As an initial matter, on May 30, 2024, Plaintiff filed an amended opposition to Defendant’s motion to strike. However, Plaintiff does not appear to cite any order authorizing

The Court notes that on April 26, 2024, the Court issued an Order continuing the hearing on the instant motion. The April 26, 2024 Order noted that “Defendant’s counsel’s declaration does not demonstrate that the parties met and conferred in person, by telephone, or by video conference…Defendant is¿ordered to meet¿and confer¿with Plaintiff within 10 days of the date of this order.¿If the parties are unable to resolve the pleading issues¿or if the parties are otherwise unable to meet and confer in good faith, Defendant is to¿thereafter¿file and serve¿a declaration setting forth the efforts to meet and confer in compliance with Code of Civil Procedure section 435.5, subdivision (a)(3) within 15 days of this order.” (April 26, 2024 Order at p. 2.)[1] However, the Court’s April 26, 2024 Order did not provide that Plaintiff may file an amended opposition to the instant motion. Thus, the Court will consider the original opposition filed on April 15, 2024 herein.

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.)

In the Complaint, Plaintiff alleges that “[o]n or around October 2014, Plaintiff began his employment with INTERSTATE PLASTICS in Norwalk, California. At the time of his termination, Plaintiff was employed by INTERSTATE PLASTICS as a ‘Saw Operator’ working full time. Plaintiff’s employment lasted until March 16, 2022, when he was wrongfully terminated.” (Compl., ¶ 10.)

“In or around November 2021, Plaintiff requested baby bonding leave to care for his newborn child.” (Compl., ¶ 12.) “On November 19, 2021, Renee Barajas (‘Ms. Barajas’) of Human Resources approved Plaintiff’s leave from November 18, 2021, through February 10, 2022.” (Compl., ¶ 13.) “[O]n or about November 19, 2021, Plaintiff commenced his baby bonding leave,” and “[o]n or about February 7, 2022, Plaintiff returned to with [sic] INTERSTATE PLASTICS as a Saw Operator.” (Compl., ¶¶ 14-15.)

“On or around February 21, 2022, Plaintiff informed his supervisor Sal Corona (‘Mr. Corona’) that he was suffering from back, shoulder, and wrist pain and he was unable to come into work that day.” (Compl., ¶ 16.) “Later that day, Plaintiff provided INTERSTATE PLASTICS with a note placing him off work from February 21, 2022, through March 21, 2022.” (Compl., ¶ 17.) “On March 2, 2022, Ms. Barajas confirmed receipt of Plaintiff’s medical note and informed him that he had largely exhausted his protected leave and would provide him with no additional leave beyond the thirty days company policy allows.” (Compl., ¶ 18.)

“On March 16, 2022, Ms. Barajas inquired if Plaintiff would be released back to work the following week. Plaintiff informed Ms. Barajas that his doctor had not yet released him. In response, Ms. Barajas stated, ‘We unfortunately won’t be able to keep your job open for you then as you’ve exhausted all leaves.’” (Compl., ¶ 19.) “Plaintiff then pleaded for his job, begging Ms. Barajas to ‘[p]lease reverse the termination so that I can be employed during this difficult time in my life.’” (Compl., ¶ 20.) “On March 17, 2022, Plaintiff again requested he not be terminated and informed Ms. Barajas that his healthcare provider would provide monthly updates regarding his ability to return to work. Nonetheless, Ms. Barajas responded that wasn’t going to change her mind and upheld Plaintiff’s termination.” (Compl., ¶ 21.)

“On March 18, 2022, Ms. Barajas [sic] Plaintiff, ‘You said you would not be released back to work on Monday. I was willing to hold your job for a month, and Monday is the month mark. Are you going to be fully released on Monday?’” (Compl., ¶ 22.) “Plaintiff responded he would not be cleared to return the following Monday and provided INTERSTATE PLASTICS with another medical note excusing him from work March 18, 2022 through April 18, 2022. Unsatisfied with this medical note, Ms. Barajas continued to question Plaintiff’s leave and demanded to know whether Plaintiff would be released with or without restrictions.” (Compl., ¶ 23.) “Plaintiff informed Ms. Barajas that his doctor did not know whether he would be released without restriction until closer to his return-to-work date.” (Compl., ¶ 24.)

“On March 21, 2022, Ms. Barajas confirmed Plaintiff’s termination. Ms. Barajas stated, ‘I needed a full release by today. We gave you 3 months which are required for the birth of your child, and an extra month today. Your next appointment is another month away with still no guarantee of a full release. We don’t know what that note will look like.’” (Compl., ¶ 25.) Plaintiff alleges that “[a]s a result, INTERSTATE PLASTICS wrongfully terminated Plaintiff because of his disability and in retaliation for him taking legally protected leave under CFRA.” (Compl., ¶ 26.)

Plaintiff seeks punitive damages in connection with each of the causes of action of the Complaint. (Compl., ¶¶ 48, 59, 69, 79, 88, 101, 112, 122, 129, 137.) Defendant moves to strike paragraphs 29, 30, 31, and 32 of the Complaint, as well as paragraph 3 of the Prayer for Relief of the Complaint.

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. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 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.” (Id., § 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).)

Defendant argues, inter alia, that “Plaintiff’s Complaint contains no factual allegations of ‘despicable conduct’ by Defendant. Plaintiff does not even allege sufficient facts that give rise to the level of malice, oppression or fraud with regards to any of his causes of action.” (Mot. at p. 6:26-28.) Defendant cites to Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715, where the Court of Appeal noted that “[d]espicable conduct is conduct that is…so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people…Such conduct has been described as [having] the character of outrage frequently associated with crime.” (Internal quotations and reference to [Citation.] omitted.) The Scott Court found that “[t]he only evidence of wrongful conduct directed toward Scott was her termination for an improper reason. This evidence was insufficient to support a finding of despicable conduct, because such action is not vile, base or contemptible. Nor do we find this evidence shows a conscious and deliberate disregard of plaintiff’s interests. ‘Conscious disregard of rights is conduct by a defendant who is aware of the probable dangerous consequences of such conduct to plaintiff’s interests and wilfully and deliberately fails to avoid those consequences.’” (Id. at p. 716.) The Scott Court further noted as follows:

“In Cloud v. Casey (1999) 76 Cal.App.4th 895 [90 Cal. Rptr. 2d 757], a female employee was passed over for promotion because of her gender. The court held the employer was liable for punitive damages because it denied the plaintiff a promotion based on gender, then attempted to hide the illegal reason for denying the promotion with a false explanation, and that it was this fabrication that constituted the despicable conduct. (Id. at p. 912.)

Based upon the foregoing cases, we conclude that wrongful termination, without more, will not sustain a finding of malice or oppression. There was no evidence Phoenix attempted to hide the reason it terminated Scott. It admitted to terminating her because she would not enroll the McMaster child. Likewise, there was no evidence Phoenix engaged in a program of unwarranted criticism to justify her termination. Because there was nothing more than a wrongful termination here, punitive damages were not warranted, and the trial court should have granted defendant’s motion for judgment notwithstanding the verdict on the issue of punitive damages.” (Scott v. Phoenix Schools, Inc., supra, 175 Cal.App.4th at p. 717.)

In the opposition, Plaintiff does not appear to address the Scott case.[2] Here, Plaintiff similarly alleges that he was wrongfully terminated. (Compl., ¶ 10.) However, Plaintiff does not appear to allege that Defendant “attempted to hide the reason it terminated [Plaintiff]” or “engaged in a program of unwarranted criticism to justify [Plaintiff’s] termination.” (Scott v. Phoenix Schools, Inc., supra, 175 Cal.App.4th at p. 717.) As set forth above, the Scott Court concluded that “wrongful termination, without more, will not sustain a finding of malice or oppression.” (Ibid.)

In the opposition, Plaintiff cites to Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 417, where the Court of Appeal noted that “[a]n employee sued his employer for various discrimination claims under the California Fair Employment and Housing Act…Among other things, the jury found the employer liable for its failure to engage in an ‘interactive process’ to determine reasonable accommodation for the employee’s disability. The jury found the employer not liable, however, for the claim it failed to provide a reasonable accommodation for the employee’s disability. Here we conclude these jury findings require different proofs and are not inconsistent.” The Court of Appeal in Wysinger also noted that “ACSC contends there is no evidence to support punitive damages because its conduct did not involve malice, oppression or fraud. Punitive damages are properly awarded ‘when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’ ACSC knew its older managers objected to its compensation reduction plan. Jurors could reasonably infer it used pretexts to deny Wysinger a transfer and created a hostile work environment in retaliation for his EEOC complaint. Kane told Wysinger, ‘[W]e are going to crush’ the managers opposed to the plan. He told Coleman, ‘It doesn’t matter what you did for this company in the last 30 … years. None of that matters. And you can die at your desk. We’ll replace you tomorrow. Nobody cares.’ The jury could find that this callous and retaliatory conduct merits an award of punitive damages.” (Id. at p. 428 [internal citation omitted].)

Plaintiff asserts that here, he “properly pleaded facts alleging Defendant engaged in malicious or oppressive conduct so as to justify his punitive damages allegations: Defendant was aware of Plaintiff’s disability and his need for a reasonable accommodation in the form of medical leave, however Defendant explicitly held Plaintiff’s protected CFRA leave against him when engaging the supposed ‘interactive process,’ ignored Plaintiff’s pleas for his job, denied him medically necessary and reasonable work accommodations (because of his previous CFRA leave), belittled and demeaned his need for accommodation, required him to be fully healed before returning to work, and ultimately terminated his employment because of his disability and prior CFRA leave. Such a deliberate and retaliatory course of conduct by Defendant demonstrates a ‘conscious disregard’ for Plaintiff’s safety sufficient to sustain a claim for punitive damages.” (Opp’n at pp. 7:24-8:5.)

In the reply, Defendant counters that “Plaintiff did not allege lodging any complaints to the EEOC or any other governing agency, prior to his termination…Additionally, Plaintiff does not allege he was subjected to any harassing comments, let alone ones that display the cruel indifference as exemplified in Wysinger.” (Reply at p. 5:3-6.)

In the opposition, Plaintiff also cites to Monge v. Superior Court (1986) 176 Cal.App.3d 503, 509, where the Court of Appeal noted that “[t]he next question is whether a cause of action for sexual employment discrimination may, under law, sustain recovery of punitive damages. The clear answer is that it may.” The Monge Court further found that “[u]nder any formulation of the pleading standard, the above quoted allegations of the underlying complaint, read as a whole, sufficiently allege a deliberate intent on the part of defendants to sexually harass and then to retaliate against plaintiffs, causing them to suffer significant mental anguish on the job without regard for their right to be free from such oppressive and hostile employment conditions. This concisely pleads defendants’ actions as having an unequivocally evil and mischievous motive.” (Id. at p. 511.)

Based on the foregoing, the Court finds that Defendant has not demonstrated that the Complaint does not allege sufficient facts to demonstrate “malice,” “oppression,” or “fraud” for purposes of Plaintiff’s request for punitive damages.[3]

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

[1]On May 13, 2024, Defendant’s counsel filed a supplemental declaration stating, inter alia, that “[o]n May 9, 2023 I met telephonically with Plaintiff’s counsels Ariel Vento and Justin Hanassab to meet and confer per the Court’s order. During this call I requested that Plaintiff withdraw his plea for punitive damages against Defendant for the reasons outlined in Defendant’s memorandum of points an authorities in support of its Motion to Strike parts of Plaintiff’s Complaint. Plaintiff’s counsel confirmed that they would not amend their complaint to remove the … plea for punitive damages.” (Suppl. Chavez Decl., ¶ 2.)

[2]The Court also notes that Plaintiff’s amended opposition filed on May 30, 2024 does not appear to address the Scott case.

[3]Defendant argues for the first time in the reply that “Plaintiff has not sufficiently alleged any officer, director, or managing agent of Dongalen perpetrated, authorized or ratified unlawful conduct.” (Reply at p. 5:8-9.) The Court notes that “¿[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.¿” (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453¿.) Thus, the Court declines to consider the arguments raised for the first time in Defendant’s reply.

Superior Court of California

County of Los Angeles

Department 50