Judge: Yolanda Orozco, Case: 22STCV22981, Date: 2022-10-14 Tentative Ruling
Case Number: 22STCV22981 Hearing Date: October 14, 2022 Dept: 31
MOTION TO STRIKE PLAINTIFF’S
PUNITIVE DAMAGES ALLEGATIONS IS GRANTED
Background
On July 08, 2022 Plaintiff Rachel Sungwon filed a Complaint against Velvet Apparel, LLC; Henry Hirschowiz (collectively “Defendants”) and Does 1 to 20.
The Complaint alleges causes of action for:
(1) Discrimination Based On Race And National Origin (Cal. Gov’t Code § 12940(a))
(2) Discrimination Based On Age (Cal. Gov’t Code § 12940(a))
(3) Wrongful Termination In Violation Of Public Policy
(4) Unfair Business Practice In Violation Of California Business & Professions Code Section 17200 et seq.
On August 09, 2022, Defendants filed a Motion to Strike portions of Plaintiff’s Complaint and prayer for punitive damages.
On October 03, 2022, Plaintiff filed an opposition. Defendants filed a Reply on October 06, 2022.
Legal Standard
Any party, within the time allowed to respond to a pleading, may serve and file a notice of
motion to strike the whole or any part thereof. (Code of Civ. Proc., § 435, subd. (b)(1); Cal.
Rules of Court, rule 3.1322, subd. (b).) The court may, upon a motion or at any time in its
discretion and upon terms it deems proper: (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, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)
Before filing a motion to strike, the moving party is required to meet and confer with the party
who filed the pleading sought to be stricken, in person or telephonically, for the purposes of
determining whether an agreement can be reached through a filing of an amended pleading that
would resolve the objections to be raised in the motion to strike. (Code Civ. Proc., § 435.5, subd. (a).)
MEET AND CONFER
Defense counsel asserts that he reached out to Plaintiff’s counsel and left a message regarding the punitive damage allegations and prayer for punitive damages. (Horwitz ¶ 3.) Plaintiff’s counsel responded that he believed the Complaint sufficiently alleged facts for punitive damages. (Id.) No resolution was reached. (Id. ¶ 4.) Thus, the meet and confer requirement is met.
Discussion
Defendants Move to Strike the following portions for Plaintiff’s Complaint:
· 1st COA: Paragraph 22, page 6
· 2nd COA: Paragraph 28, page 7
· 3rd COA: Paragraph 35, page 8
· Prayer for Relief, page 9, Item C.
Plaintiff asserts that the fact that she was terminated based on her race, national origin, and/or age is evidence of Defendants’ willful and conscious disregard of the rights of Plaintiff as an employee. However, the above assertion is a legal conclusion devoid of specific facts to show that the Defendants’ conduct was willful. Plaintiff needs to state specific facts, not just allegations, that establish that the Defendants acted maliciously, oppressively, or fraudulently.
The Complaint alleges that Plaintiff worked over eight hours a day and forty hours per week without overtime compensation despite being a non-exempt employee. (Compl. ¶ 12.) Plaintiff also alleges she completed the 90-day probationary period successfully and became a regular employee. (Id.) Plaintiff also alleges that Plaintiff did not receive any warning or notice from anyone that her work was not satisfactory. (Id. ¶ 13.) In fact, during the four months she was employed she made over forty patterns, which was unusually high in the industry. (Id.) Plaintiff alleges that during the 90-day probationary period, a part-time pattern maker named Anja, who is a white female, younger than Plaintiff, and with less experience, was hired to replace Plaintiff. (Id. ¶ 14.) With no warning or notice that Defendants were not satisfied with her work, Plaintiff was terminated by Defendant Hirschowitz who asserted he had received many complaints regarding her poor work. (Id. 13.) Plaintiff asserts that her termination was pretextual and that Anja was selected to replace Plaintiff because Anja was a white and younger employee who could be paid less. (Id. ¶ 15.)
The allegations above are insufficient to show that Defendants’ are guilty of malice, oppression, or fraud within the meaning of Civil Code section 3294. (See Smith v. Superior Court (1992) 10 Cal.App. 4th 1033, 1042.) The basis for punitive damages must be pled with specificity; conclusory allegations devoid of any factual assertions are insufficient. (Id.)
“Malice” is defined in section 3294(c)(1) as “conduct which is intended by the defendant to cause injury” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” “Oppression” is defined in section 3294(c)(2) as “despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.” The term “despicable” has been defined in the case law as actions that are “base,” “vile,” or “contemptible.” (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal. App. 4th 847, 891.) “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).)
The mere allegation that Defendants terminated Plaintiff because of her race, national origin, and/or age is insufficient to support a claim for punitive damages under the facts Plaintiff alleges. Defendants’ conduct such as not paying overtime, firing Plaintiff without a warning her of her work performance, or the allegation that Plaintiff was replaced by a younger, white female for less pay, are not so “vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.) “Punitive damages are proper only 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.’ [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.) “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949,
958.)
“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.)¿ Since this is Plaintiff’s first Complaint, the Defendants’ Motion to Strike is GRANTED WITH LEAVE TO AMEND. The following will be stricken from the Complaint pending the filing of an amended pleading:
· 1st COA: Paragraph 22, page 6
· 2nd COA: Paragraph 28, page 7
· 3rd COA: Paragraph 35, page 8
· Prayer for Relief, page 9, Item C.
Conclusion
Defendants’ Motion to Strike is GRANTED WITH 20 DAYS’ LEAVE TO AMEND as to the following:
· 1st COA: Paragraph 22, page 6
· 2nd COA: Paragraph 28, page 7
· 3rd COA: Paragraph 35, page 8
· Prayer for Relief, page 9, Item C.
Defendants to give notice.