Judge: Thomas D. Long, Case: 22STCV07210, Date: 2023-03-09 Tentative Ruling

Case Number: 22STCV07210    Hearing Date: March 9, 2023    Dept: 48

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On February 28, 2022, Plaintiff Basilia Puerto (individually and as Successor in Interest of decedent Javier Jaime Puerto) filed this action against Defendant Auxiliary Residential Care, Inc. dba Mariposa Homa (erroneously sued as Auxiliary Residential Care Incorporated and Mariposa Home).

On July 15, 2022, Defendant filed a motion to strike portions of the first amended complaint (“FAC”).  Plaintiff filed the FAC on July 27, 2022.

The court may, upon a motion or at any time in its discretion: (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, subds. (a)-(b).)

A.        Plaintiff Has Not Adequately Alleged a Basis For Punitive Damages.

Defendant moves to strike the prayer for punitive damages.  “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.  [Citation.]  Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]”  (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166, fn. omitted.) 

The FAC alleges that Defendant left the decedent lying in his urine and feces while overly sedated, failed to obtain timely medical care, failed to comply with physicians’ specific orders, and failed to report or treat a severe infection that worsened to necrosis.  (FAC ¶ 25.)  These facts, if proven, would support a finding of recklessness or oppression.  Moreover, Defendant did not demur to the cause of action for Violation of the Elder Abuse and Dependent Adult Civil Protection Act, thereby conceding that it properly alleges the required recklessness, fraud, malice, or oppression for that cause of action.

However, a corporate employer can be liable for punitive damages only when an officer, director, or managing agent of the corporation 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, authorized or ratified the wrongful conduct, or was personally guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (b).)  The allegations that Defendant “had advance knowledge of the unfitness of their employees charged with decedent’s care, but nevertheless employed and continued to employ them with conscious disregard for the rights and safety of decedent, and authorized and/or ratified their neglect of decedent” are conclusory and insufficient.  (FAC ¶ 26; see FAC ¶ 5.)

The motion to strike is granted on this ground, with 20 days’ leave to amend.

B.        Defendant Has Not Shown That Requests For Prejudgment Interest Must Be Stricken.

Defendant moves to strike the prayer for prejudgment interest.  (Motion at p. 2.)  Prejudgment interest may be awarded when damages are certain or capable of being made certain by calculation, and the right to recover is vested in the person upon a particular day.  (Civ. Code, § 3287, subd. (a).)  “[I]nterest cannot be awarded prior to judgment when the amount of damages cannot be ascertained except on conflicting evidence.”  (Conderback, Inc. v. Standard Oil Co. of Cal., Western Operations (1966) 239 Cal.App.2d 664, 689.)  Defendant argues that Plaintiff’s damages are not known or able to be calculated except on conflicting evidence.  (Motion at p. 8.)

Plaintiff contends that Civil Code section 3291 permits prejudgment interest because “it is lawful for the plaintiff in the complaint [brought to recover damages for personal injury] to claim interest on the damages alleged as provided in this section.”  (Opposition at p. 10, quoting Civ. Code, § 3291.)  Civil Code section 3291 governs interest calculations after a plaintiff’s section 998 offer is rejected and the plaintiff later obtains a more favorable judgment.  When that occurs, the judgment bears interest calculated from the date of the plaintiff’s first 998 offer, which is necessarily before judgment.

At this pleading stage, the Court declines to strike the requests for prejudgment interest.  In any event, if Plaintiff prevails in this action, she will still have to prove entitlement to prejudgment interest.  The mere request for interest does not mean that it will be awarded if such an award is not proper.

The motion to strike is denied on this ground.

C.        Defendant Has Not Shown Any Ground For Striking Requests for Post-Judgment Interest.

Defendant moves to strike requests for post-judgment interest because Plaintiff did not provide a statutory basis.  (Motion at pp. 2, 8.)  However, Defendant also did not provide a basis for striking these requests.  Moreover, by statute, post-judgment interest automatically accrues on a money judgment on the date of entry of the judgment.  (Code Civ. Proc., § 685.020.)  There is nothing improper about Plaintiff’s request for post-judgment interest.

The motion to strike is denied on this ground.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit.  Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

         Dated this 9th day of March 2023