Case Name: Jeremy Korpas v. Elite Show Services, et al.
Case No.: 17CV311874

I. Background

This action arises from the detention of Jeremy Korpas (“Plaintiff”) by a security guard employed by Elite Show Services (“Elite”) during a concert at Levi’s Stadium.

According to the allegations of the First Amended Complaint (“FAC”), during the concert Plaintiff left a VIP area and was prevented from reentering by a security guard who forcefully removed the wristband Plaintiff used to originally gain access to the area. After removing the wristband, the guard yelled at Plaintiff and bumped him backward. The guard’s aggressive demeanor and actions caused Plaintiff to fear for his safety. Following an unsuccessful attempt to speak to that security guard’s supervisor, Plaintiff watched the remainder of the concert from another area.

At the end of the concert, Plaintiff again approached the VIP area in an attempt to rejoin the group with whom he had originally been watching the concert. As Plaintiff called for his girlfriend, a guard employed by Elite named Anthony Gonzalez (“Gonzalez”) grabbed him from behind and attempted to handcuff him. At the same time, the security guard who previously denied Plaintiff access to the VIP area tackled Plaintiff and pinned him to the ground as additional guards held down his legs. Gonzalez wrenched Plaintiff’s arms behind his back and handcuffed him while aggressively shouting at and threatening him. Gonzalez then lifted Plaintiff from the ground by the handcuffs and dragged him towards two Santa Clara police officers for further questioning. They instructed Gonzalez to remove the handcuffs, and Plaintiff was taken to the side of the stage where his personal information and photograph were collected. Plaintiff was then informed he would be required to attend a “fan conduct class” at his own expense if he wished to be allowed back to the stadium in the future.

Plaintiff asserts the following causes of action against various defendants, including Elite, Gonzalez, and Doe defendants 1-50: (1) battery; (2) assault; (3) negligent hiring, supervision, and retention; (4) negligence; (5) false imprisonment; (6) intentional infliction of emotional distress; and (7) vicarious liability. Aaron Moore (“Moore”) was not specifically named as a defendant, but Plaintiff subsequently filed a Doe amendment to the FAC identifying him as Doe 1. Before the Court is Moore’s motion to strike punitive damage allegations from the FAC and request for sanctions under Code of Civil Procedure section 128.5.

II. Meet and Confer Requirement

Prior to filing a motion to strike, the moving party must meet and confer with the party who filed the challenged pleading to determine whether an agreement can be reached that would resolve the objections to the pleading. (Code Civ. Proc., § 435.5, subd. (a).) If an agreement cannot be reached and a motion to strike is filed, the demurring party must file a declaration stating the means by which he or she met and conferred with the party who filed the pleading. (Code Civ. Proc., § 435.5, subd. (a)(3).)

Here, Moore did not file a meet and confer declaration with his motion to strike. As such, the Court cannot ascertain whether Moore attempted to meet and confer or did not engage in any such efforts. In either case, he failed to file the required declaration. Thus, Moore did not comply with Code of Civil Procedure section 435.5. With that said, an insufficient meet and confer process is not a basis for denial of a motion to strike. (Code Civ. Proc., § 435.5, subd. (a)(4).) Accordingly, the Court will consider the merits of the motion despite this procedural defect. Moore is admonished to comply with Code of Civil Procedure section 435.5 in the future.

III. Request for Judicial Notice

Plaintiff filed a request for judicial notice of two court orders on two prior motions to strike brought by Gonzalez and Elite in this case. Plaintiff cites the orders in support of the motion to strike and the request for sanctions. Evidence Code section 452, subdivision (d) states that the court may take judicial notice of court records. The Court’s prior orders in this case are therefore subject to judicial notice. Accordingly, the request for judicial notice is GRANTED.

IV. Merits of the Motion to Strike

Moore moves to strike the following portions of the FAC relating to punitive damages: (1) page 15, lines 1-5, paragraph 79; (2) page 19, lines 8-12, paragraph 110; (3) page 20, lines 11-15, paragraph 115; and (4) page 22, prayer for relief, paragraph 2.

On a motion to strike portions of a pleading under Code of Civil Procedure section 435, a court may strike out any irrelevant or improper matter inserted in the pleading. (Code Civ. Proc., § 436, subd. (a).) A claim for punitive damages that is inadequately plead can be challenged by a motion to strike. (Code Civ. Proc., § 431.10, subds. (b), (c); Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164 (“Grieves”).)

The standard for alleging punitive damages is well established. “In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294.” (Turman, supra, 191 Cal.App.4th at 63.) Punitive damages are recoverable where the defendant is guilty of malice, oppression or fraud. (Civ. Code, § 3294, subd. (a).) In order “[t]o support punitive damages, the complaint . . . must allege ultimate facts of the defendant’s oppression, fraud, or malice.” (Cyrus v. Havenson (1976) 65 Cal.App.3d 306, 316-317.)

Although Plaintiff makes a conclusory statement that defendants are guilty of oppression, fraud, or malice, there are no corresponding factual allegations in connection with the instant motion that support fraud. Furthermore, neither party suggests fraud is a predicate to the punitive damage claims. Thus, the Court limits its discussion to malice and oppression.

Malice is conduct intended by a defendant to cause injury to the plaintiff, or despicable conduct by a defendant done with a willful and conscious disregard of the rights and safety of others. (Civ. Code, § 3294, subd. (c)(1).) Oppression is despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Civ. Code, § 3294, subd. (c)(2).) Despicable conduct is defined as conduct so vile, base, or loathsome it would be looked down upon by ordinary people. (Mock v. Miller’s Mut. Ins. Co. (1992) 4 Cal.App.4th 306, 331.)

Moore presents two arguments in support of his motion to strike the punitive damages allegations. First, he asserts that punitive damages are not available in negligence actions, and the prayer for punitive damages should therefore be stricken. Second, he contends the FAC does not include sufficient allegations about his conduct to ascertain if there is a basis for punitive damages.

A. No Punitive Damages Based Upon Negligence

Moore argues the third and fourth causes of action for negligence cannot support an award of punitive damages and the prayer for punitive damages must therefore be struck.

Moore’s argument is based upon the faulty premise that negligent conduct can never be a basis for punitive damages. While it is true that conduct which is merely negligent does not support punitive damages, Moore’s argument overstates this principle. (See G.D. Searle & Co. v. Superior Ct. (1975) 49 Cal.App.3d 22, 31-32; Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1288.) Punitive damages are typically based on intentional torts due to the similarities between the intent requirements for intentional torts and the requirements for pleading punitive damages allegations as set forth in Civil Code section 3294. (See College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 712-14 (“College Hospital”).) Even so, “[n]onintentional torts may also form the basis for punitive damages when the conduct constitutes conscious disregard of the rights or safety of others.” (Peterson v. Superior Court (“Peterson”) (1982) 31 Cal.3d 147, 158.) There is an established test for determining when negligence rises to the level of malice and therefore supports punitive damages: “In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Id. at p. 895–896.) Moore ignores this test in his motion, and fails to explain how the allegations in the FAC do not meet it.

Even assuming Moore was correct that punitive damages could never be awarded in a negligence action, this would not require striking the prayer for punitive damages because they could be awarded based upon other causes of action. A complaint must include “the relief to which the pleader claims to be entitled.” (Code Civ. Proc., § 425.10, subd. (a)(2).) Thus, a prayer for relief properly includes the sum of all relief sought with respect to all causes of action. (See Ibid.) Malice can be shown not only by ignoring a probable dangerous consequence, but also by tortious conduct intended to cause injury. (Civ. Code, § 3294, subd. (c)(1).) As noted above, punitive damages can be awarded based upon intentional torts, and the intent requirements for intentional torts are similar to the requirements for this second method of showing malice. (See College Hospital, supra, 8 Cal.4th at 712-14.)

Here, not all the causes of action alleged against Moore are for negligence. Plaintiff alleges several intentional torts against him. Thus, even if the negligence cause of action could not support punitive damages, the prayer for punitive damages would still not be stricken for that reason. Accordingly, Moore’s first argument is not sufficient to grant the motion to strike.

B. Lack of Specific Allegations Regarding Moore in the FAC

Moore argues there are no allegations in the FAC regarding his personal conduct and that, absent some specific allegations directed towards him, he “has no way of knowing what conduct Plaintiff is actually attributing to him, let alone whether such alleged conduct… warrants a prayer for punitive damages.” (Opp., p. 8:16-18.)

To allege punitive damages, “[n]ot only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.” (Grieves, supra, 157 Cal.App.3d at 166.) Moore is correct that the FAC does not describe what specific conduct is attributed to him. Although Plaintiff substituted Moore for Doe 1, he did not amend the pleadings to add any allegations describing specific conduct committed by Moore. Plaintiff merely alleges that, “each of the fictitiously named defendants was negligent or are otherwise legally responsible in some other actionable manner for the events and happenings referred to in this Complaint, and that Plaintiff’s injuries and damages as alleged in this Complaint were caused by that negligence or wrongful conduct.” (FAC, ¶7.) The FAC does not allege what role Moore played in the detention of Plaintiff, or what actions Moore allegedly took that justify punitive damages.

Plaintiff does not address this issue directly in opposition. Instead, he appears to assume he alleged Moore was an employee of Elite, such that punitive damages are warranted. The FAC does not actually allege that Moore is an employee of Elite. The grounds for a motion to strike must appear on the challenged pleading. (Code Civ. Proc., § 437.) Furthermore, even assuming Moore was an employee of Elite, this would not per se entitle Plaintiff to punitive damages against him. Plaintiff would still need to allege facts illustrating why punitive damages are appropriate against Moore. (See Grieves, supra, 157 Cal.App.3d at 166.)

Plaintiff also argues the Court ruled on two previous “nearly identical” motion malice was adequately pled as to Elite and its employees. (Opp., p. 7:5-12.) This argument appears to be made both in opposition to the motion to strike and in support of the request for sanctions. The previous motions were not identical to the instant one. The Court previously found sufficient facts were alleged to support malice with respect to Gonzalez, based upon his actions in detaining Plaintiff. The FAC does not state Moore took actions similar to Gonzalez. The Court also ruled Plaintiff alleged sufficient facts to support malice on the part of Elite. The Court reasoned that punitive damages against Elite were adequately alleged based upon corporate ratification of the actions of its employee Gonzalez or a failure to intervene to prevent a known pattern of violence by its employees. Up until this point, the Court had no cause to consider if punitive damages were appropriate as to Moore, or any natural person except Gonzalez.

Accordingly, Moore’s second argument is sufficient to grant the motion to strike because there are insufficient factual allegations to support punitive damages against him.

C. Conclusion

The motion to strike is GRANTED, with 10 days leave to amend.

V. Request for Monetary Sanctions

Plaintiff requests monetary sanctions in the amount of $3,487.50, pursuant to Code of Civil Procedure section 128.5. Code of Civil Procedure section 128.5 provides that “[a] trial court may order a party, the party’s attorney, or both to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.” (Code Civ. Proc., § 128.5, subd. (a).)

The request for sanctions would is denied on the merits, as plaintiff has not shown that the motion to strike was made in bad faith, was frivolous, or was solely intended to cause unnecessary delay. To the contrary, the Court finds the motion with merit and will grant it, with leave to amend.

Plaintiff’s request for monetary sanctions under Code of Civil Procedure section 128.5 is therefore DENIED.