Case Number: BC690091 Hearing Date: June 01, 2018 Dept: 37

CASE NAME: Shlosberg v. Ralphs Grocery Company, et al.

CASE NO.: BC690091

HEARING DATE: 6/1/18

DEPARTMENT: 37

CALENDAR NO.: 7

FILING DATE: 1/18/18

FSC/TRIAL DATE: None

NOTICE: OK

SUBJECT: Motion to Strike Punitive Damages and Public Entity Vicarious Liability from Plaintiff’s Complaint

MOVING PARTY: Defendant Hughes Market, Inc.[1]

OPPOSING PARTY: None
COURT’S TENTATIVE RULING

The court GRANTS Defendant’s motion in-part and STRIKES the following portions of the Complaint: (1) Paragraph 44: “menace, fraud, deceit”; (2) Paragraph 47; (3) Paragraph 49; (4) Paragraph 58; (5) Paragraph 63: “and malicious”; (6) Paragraph 66; (7) Paragraph 99; and (8) Paragraph 107; (9) Paragraph 110 and (10) Prayer Paragraph e. The court grants Plaintiff 30 days leave to amend to allow Plaintiff to plead ultimate facts to support his punitive damages claims and allegations regarding public entity vicarious liability. The motion is otherwise DENIED. Counsel for Defendant to give notice.
STATEMENT OF THE CASE

This case arises from allegations that Defendant Hughes Market, Inc. (dba Ralphs, incorrectly named and served as Ralphs Grocery Company) (“Ralphs”) falsely imprisoned and violated the rights of Plaintiff Simon Shlosberg (“Shlosberg”). Plaintiff alleges that he was aggressively ordered to leave the Ralphs store at 320 W. Colorado Blvd. Pasadena, CA 91105 (the “Store”) on August, 3, 2017 and October 22, 2017 because of the presence of Plaintiff’s service dog, leading him to suffer a severe panic attack that resulted in emotional damages.

Plaintiff filed the Complaint on January 18, 2018 alleging 9 causes of action for: (1) false imprisonment; (2) assault; (3) intentional infliction of emotional distress; (4) violation of Civil Code, § 51 (the Unruh Civil Rights Act); (5) violation of Civil Code, § 54 (the Blind and Disabled Persons Act); (6) violation of Business and Professions Code, §§ 17200, et seq. (the Unfair Competition Act, “UCL”); (7) negligence; (8) negligent hiring, retention, and supervision and (9) vicarious liability.

Defendant Ralphs moves to strike the punitive damages allegations of each cause of action of the Complaint. Plaintiff did not file an opposition and does not respond to the motion.
DISCUSSION
I. Legal Standard

Code of Civil Procedure, section 436 provides:

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper:

(a) Strike out any irrelevant, false, or improper matter inserted in any pleading.

(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.

(Code Civ. Proc., § 436.)

Motions to strike are used to challenge defects in the pleadings not subject to demurrer. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529 (Ferraro).) Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading. (Code Civ. Proc., § 435, subd. (b)(1).) The grounds for a motion to strike must appear on the face of the challenged pleading or from any matter of which the Court is required to take judicial notice. (Id., § 437, subd. (a).) On a motion to strike, the court “read[s] allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume[s] their truth.” (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255.)
II. Analysis
A. Procedural Issues

A notice of motion to strike a portion of the pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, or defense. (Cal. Rules of Court, rule 3.1322(a).)

As an initial matter, the court notes that the notice of the motion only requests the court strike paragraphs 44, 47-49 of the first cause of action; paragraph 58 of the second cause of action; paragraphs 63 and 66 of the third cause of action; paragraph 99 of the seventh cause of action; paragraph 107 of the eighth cause of action and paragraph 110 of the ninth cause of action. (Not. 2.) Accordingly, these are the only paragraphs the court will consider on the subject motion. (See Cal. Rules of Court, rule 3.1322(a).)
B. Plaintiff’s Punitive Damages Claims

Civil Code, section 3294 provides, in relevant part, that a plaintiff may seek punitive damages “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice….” (Civ. Code, § 3294, subd. (a).) “Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294 subd. (c)(1).) “Oppression’ means 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).) “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)(3).)

Section 3294, subdivision (b) states:

An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer 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 or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.

(Civ. Code, § 3294, subd. (b).)

To survive a motion to strike a request for punitive damages, “the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson, supra, 67 Cal.App.4th at p. 1255; accord, Blegen v. Superior Court (1981) 125 Cal.App.3d 959, 963.) “Pleading in the language of the statute is not objectionable when sufficient facts are alleged to support the allegation.” (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6-7.) However, a “conclusory characterization of defendant’s conduct as intentional, willful and fraudulent is a patently insufficient statement of ‘oppression, fraud, or malice, express or implied,’ ” and inadequate to support punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872 (Brousseau).)

Defendant contends that the Complaint fails to plead specific facts in support of his claim for punitive damages. Plaintiff has not filed an opposition and does not respond to this motion. The court has reviewed the allegations of the Complaint and agrees that Plaintiff has not alleged specific facts of malice, oppression or fraud sufficient to support his punitive damages claim. (See Brousseau, supra, 73 Cal.App.3d at p. 872.) Nevertheless, the court recognizes that the identified paragraphs contain allegations in addition to the claims of malice, oppression, or fraud. Defendant has not presented argument or evidence sufficient to demonstrate that these additional paragraphs (paragraphs 58, 60 and 110) or portions of paragraphs (44 and 63) are irrelevant, false, or improper matter on this basis.

Defendant additionally contends that the punitive damages claim fails because the Complaint does not plead specific facts of ratification. Defendant cites Cruz v. Home Base (2000) 83 Cal.App.4th 160, 167-168 to argue that a “managing agent” must be an employee with authority to establish corporate policy and substantial authority over decisions that set corporate general principles and rules. The court agrees that Plaintiff has not specifically identified the individual who allegedly ratified Defendant’s employees’ actions as is required to claim punitive damages against a corporate defendant. (See Compl. ¶ 48; Civ. Code, § 3294, subd. (b).) This would provide an additional basis to grant the motion to strike. [2]

Accordingly, the court GRANTS Defendant’s motion in-part and STRIKES the following portions of the Complaint: (1) paragraph 44: “menace, fraud, deceit”; (2) paragraph 47; (3) paragraph 49; (4) paragraph 58; (5) paragraph 63: “and malicious”; (6) paragraph 66; (7) paragraph 99; and (8) paragraph 107 and (9) Prayer paragraph e. The remaining paragraphs of the Complaint identified in the notice do not directly relate to Plaintiff’s request for punitive damages and the court DENIES the motion in-part on this basis. The court GRANTS Plaintiff 30 days leave to amend to allow Plaintiff to plead sufficient ultimate facts of malice, oppression, or fraud and ratification to state his claim for punitive damages.
C. Plaintiff’s Allegations of Vicarious Liability

Under the doctrine of respondeat superior, an employer may only be held vicariously liable for torts committed by an employee within the scope of employment. (See Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208 (Mary M.).) The plaintiff bears the burden to prove that the employee’s tortious conduct was committed within the scope of employment. (Id. at p. 209.) “A risk arises out of the employment when ‘in the context of that particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.” (Ibid.) “[T]he inquiry should be whether the risk was one ‘that may fairly be regarded as typical of or broadly incidental’ to the enterprise undertaken by the employer. [Citation.]” (Ibid.)

“Ordinarily, the determination of whether an employee has acted within the scope of employment presents a question of fact; however, it becomes a question of law when ‘the facts are undisputed and no conflicting inferences are possible.’ ” (Mary M., supra, 54 Cal.3d at p. 213.) “In some cases, the relationship between an employee’s work and wrongful conduct is so attenuated that a jury could not reasonably conclude that the act was within the scope of employment.” (Ibid.)

Defendant contends that the ninth cause of action for vicarious liability should be stricken as Defendant is not a public entity. Motions to strike are used to challenge defects in the pleading not subject to demurrer. (Ferraro, supra, 161 Cal.App.4th at p. 529.) Defendant request that the court strike the ninth cause of action, such an argument is more appropriately the subject of a general demurrer or a motion for judgment on the pleadings. Furthermore, the court notes that Defendant has not requested the court strike all the paragraphs of the ninth cause of action. As such, the court will only consider whether paragraph 110 comprises improper matter on the subject motion. (See Code Civ. Proc., § 436.)

Paragraph 110 of the Complaint quotes and relates to Government Code, section 815.2, which relates to vicarious liability by a public entity. (Compl. ¶ 110, quoting Gov. Code, § 815.2.) Defendant contends that Paragraph 110 of the Complaint is irrelevant matter because it is not a public entity. While Defendant argues that Ralphs is “clearly” not a public entity; Ralphs does not identify any portion of the pleading or matter of which the court may take judicial notice that would support this assertion. Nevertheless, the court recognizes that the Complaint alleges claims against “Ralphs Grocery Company” and that the Complaint does not contain any allegations that Ralphs is a public entity. (See Compl. ¶ 4.) Accordingly, viewing the allegations of the Complaint in context, the court finds that the Complaint, on its face, does not allege that Ralphs is a public entity. Paragraph 110 of the Complaint is therefore irrelevant matter.

For these reasons, the court GRANTS the motion in-part as to this paragraph, with 30 days leave to amend to allow Plaintiff to plead ultimate facts to support a claim for public entity liability. The court DENIES the motion to the extent Defendant seeks to strike the vicarious liability allegations of the Complaint or the ninth cause of action, as Defendant has not demonstrated that Plaintiff’s vicarious liability allegations are improper.

[1] Defendant submits the Declaration of Jennifer W. Naples (“Naples Decl.”) in support of the subject motion. Naples attests to sending Plaintiff a meet and confer letter regarding Defendant’s intention to file a motion to strike. (Naples Decl. ¶ 3, Ex. A.) A meet and confer under Code of Civil Procedure, section 435.5, subdivision (a) must be in person or by telephone. (Code Civ. Proc., § 435.5, subd. (a).) Nevertheless, as a determination that the meet and confer process was insufficient does not constitute grounds to grant or deny a motion to strike, the court will consider the subject motion on its merits as the meet and confer letter set forth the grounds of the motion. (See id., § 435.5, subd. (a)(4); Naples Decl. Ex. A.)

[2] Plaintiff’s failure to specifically identify the ratifying individual, however, does not render Paragraph 48 of the Complaint irrelevant, false, or improper matter as Plaintiff alleges a theory of vicarious liability. (See Compl. ¶¶ 23, 36, 111.) The vicarious liability allegations will be addressed further below.