Judge: Yolanda Orozco, Case: 22STCV22981, Date: 2023-01-23 Tentative Ruling

Case Number: 22STCV22981    Hearing Date: January 23, 2023    Dept: 31

MOTION TO STRIKE PLAINTIFF’S

PUNITIVE DAMAGES CLAIM

TENTATIVE RULING 

Defendants’ Motion to Strike is GRANTED WITHOUT LEAVE TO AMEND as to the following: 

·       1st COA: Paragraph 23, page 6;

·       2nd COA: Paragraph 29, page 7;

·       3rd COA: Paragraph 36, page 8; and

·       Prayer for Relief, page 9, section C. 

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 operative First Amended 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 November 08, 2022, Defendants filed a Motion to Strike portions of Plaintiff’s FAC. 

On January 11, 2023, Defendants filed a Statement of Non Receipt of Opposition to Motion to Strike. No opposition has been received. 

MEET AND CONFER 

Before filing a demurrer or motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (Code Civ. Proc., §§ 430.41, 435.5.) “Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc., § 430.41, subd. (a)(4).)  

The meet and confer requirement has been met. (Horowitz Decl. ¶¶ 3, 4.) 

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(b)(1); Cal. Rules of Court (CRC), Rule 3.1322(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 of Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)¿¿¿ 
 

“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.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)¿¿ 

Discussion 

Defendants Move to Strike the following portions for Plaintiff’s FAC: 

·       1st COA: Paragraph 23, page 6: 

“By engaging in the acts alleged herein, Defendants acted oppressively, willfully, and maliciously with conscious disregard for Plaintiff and with intent to injure Plaintiff. Consequently, Plaintiff is entitled to punitive or exemplary damages under Section 3294 of the California Civil Code in an amount sufficient to punish Defendants, jointly and severally, and deter them and others similarly situated from repeating like acts in the future.” 

·       2nd COA: Paragraph 27, page 7: 

“By engaging in the acts alleged herein, Defendants acted oppressively, willfully, and maliciously with conscious disregard for Plaintiff and with intent to injure Plaintiff. Consequently, Plaintiff is entitled to punitive or exemplary damages under Section 3294 of the California Civil Code in an amount sufficient to punish Defendants, jointly and severally, and deter them and others similarly situated from repeating like acts in the future.” 

·       3rd COA: Paragraph 36, page 8: 

“By engaging in the acts alleged herein, Defendants acted oppressively, willfully, and maliciously with conscious disregard for Plaintiff and with intent to injure Plaintiff. Consequently, Plaintiff is entitled to punitive or exemplary damages under Section 3294 of the California Civil Code in an amount sufficient to punish Defendants, jointly and severally, and deter them and others similarly situated from repeating like acts in the future.” 

·       Prayer for Relief, page 9: 

“C. For punitive or exemplary damages under each of the First through Third Causes of Action in the amount to be proved at trial[.]” 

Allegations in FAC 

Plaintiff immigrated to the United States from the Republic of Korea (South Korea) in 2000 and pursued and received vocational training to become a pattern maker. (FAC ¶ 11.) Plaintiff has limited English skills. (FAC ¶ 11.) 

On February 15, 2022, Plaintiff was employed as a pattern maker for Defendants with a gross annual salary of $90,000.00. (FAC ¶ 10.)  During Plaintiff’s 90-day probationary period, Plaintiff did not receive any complaint regarding her work. (FAC ¶¶ 12,15.) During this time, Plaintiff worked overtime without compensation despite being a non-exempt employee in order to meet Defendants’ demands and made over forty (40) patterns, which was unusually high in the industry without negative feedback or complaints regarding her work. (FAC ¶¶ 12, 13.) 

During Plaintiff’s probationary period, a less skilled and substantially younger white female was hired part-time and for less pay. (FAC ¶ 14.) Plaintiff alleges that Anja eventually replaced Plaintiff when Plaintiff’s employment with Defendants was terminated on June 24, 2022. (FAC ¶ 16.) Defendants told Plaintiff was she was terminated due to complaints regarding her poor work, despite Plaintiff receiving no complaints. (FAC ¶ 15.) Plaintiff believes she was terminated due to her race, national origin, and/or age. (FAC ¶ 15.) 

The FAC is devoid of further or specific facts that show Defendants acted with malice, oppression, or fraud within the meaning of Civil Code section 3294.  Plaintiff needed to state specific facts, not just allegations, that establish that the Defendants acted maliciously, oppressively, or fraudulently. Plaintiff’s conclusory allegations that Defendants “acted oppressively, willfully, and maliciously” are conclusory allegations devoid of any factual assertions to put Defendant on notice of the kind of conduct charged against them. (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041.)  

Absent specific facts showing how the Defendants’ conduct was oppressive, willful, and malicious, the FAC fails to support a claim for punitive damages. 

Given that Plaintiff did not file an opposition to this Motion showing that amendment is possible and given the fact that Plaintiff has already been given the opportunity to amend her complaint, the Motion to Strike is GRANTED WITHOUT LEAVE TO AMEND. 

Conclusion 

Defendants’ Motion to Strike is GRANTED WITHOUT LEAVE TO AMEND as to the following: 

·       1st COA: Paragraph 23, page 6;

·       2nd COA: Paragraph 29, page 7;

·       3rd COA: Paragraph 36, page 8; and

·       Prayer for Relief, page 9, section C. 

Defendants to give notice.