Judge Theodore R. Howard, Case 21-1216802 2022-07-20 Tentative Ruling

Judge: Theodore R. Howard, Case: 21-1216802, Date: 2022-07-20 Tentative Ruling

The motion by defendant Joseph S. Grant (“defendant”) to strike the punitive damages claim (Item 4 in the prayer for relief) from the complaint by plaintiff Caroline Alatorre (“plaintiff”) is DENIED.

Procedural Deficiency

The moving party failed to comply with CCP §435.5(a)(3). He did not file a proper declaration regarding the meet and confer efforts by the parties. Mention was only made in the Memo of P&A, and the attempt to meet and confer was perfunctory.

Despite the failing, the court will rule on the merits. (CCP §435.5(a)(4)).

Merits

Defendant moves to strike the punitive damages claim from the prayer for relief in this action where plaintiff alleges that defendant, knowing he had herpes for at least 8 years, a highly contagious sexually transmitted disease, affirmatively denied his positive herpes infection when asked by the plaintiff and knowingly engaged in unprotected sexual intercourse which resulted in plaintiff becoming infected with the disease. (Complaint ¶¶11, 12, 15, 19, 20 and 24).

An intentional tort, such as fraudulent concealment will support an award of punitive damages. (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1137)

“The elements of a claim for fraudulent concealment require the plaintiff to show that: “(1) the defendant ... concealed or suppressed a material fact, (2) the defendant [was] under a duty to disclose the fact to the plaintiff, (3) the defendant ... intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff [was] unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Citation omitted.) The duty to disclose may be established where there is a confidential relationship between the parties, defendant has made a representation which was likely to mislead due to the nondisclosure, there is active concealment of undisclosed matters, or one party has sole knowledge of or access to material facts and knows such facts are not known to or discoverable by the other party. (Citation omitted.)” (Prakashpalan, supra, 223 Cal.App.4th at p. 1130; See also Lovejoy v. At & T Corp (2001) 92 Cal.App.4th 85, 93)

People who know or should know they have genital herpes have a duty to avoid sexual contact with an unaffected person or warn potential partners before sexual contact occurs. (Behr v. Redmond (2011) 193 Cal.App.4th 517, 525). The duty exists even if the person with herpes limits sexual contact to times when the disease is asymptomatic because it can spread even in the absence of an active outbreak. (Ibid.)

Taking the complaint as a whole and all parts in context (Kaiser Foundation Health Plan, Inc. v. Superior Court (2012) 203 Cal.App.4th 696, 704) plaintiff has sufficiently pled a claim for fraudulent concealment and thus for punitive damages as well.

The complaint alleges that defendant knew he had herpes for at least 8 years (that would date back to 2011), that knowing he had herpes (and thus was under a duty to disclose that to the plaintiff) not only failed to tell the plaintiff that he had herpes but actually told her that he did not have any sexually transmitted diseases and failed to use protection during intercourse, that plaintiff relied on defendant’s representations and engaged in unprotected sex, and as a result was harmed by contracting the contagious disease.

Defendant argues that missing from the allegations are facts showing an intent to harm the plaintiff, but punitive damages may also be recovered where there is a conscious disregard for the safety of others which satisfies the ingredient of malice, an evil motive. (Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 289). An individual who knows he has herpes but who intentionally denies that fact to have unprotected sex with another shows a conscious disregard for the safety of the other. Those facts are sufficiently pled in this complaint.

The motion is DENIED.

Defendant to give Notice of Ruling.