18-CIV-02444 JOANN EREMEYEFF, ET AL. VS. BENEVOLENT AND PROTECTIVE ORDER OF THE ELKS OF THE UNITED STATES OF AMERICA, ET AL.

JOANN EREMEYEFF BENEVOLENT AND PROTECTIVE ORDER OF THE ELKS OF THE UNITED STATES OF AMERICA WILLIAM L. SCHMIDT

MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT BY BPO ELKS 2091 BUILDING ASSOCIATION, INC. TENTATIVE RULING:

Defendant’s Motion to Strike portions of Plaintiff’s second amended complaint is GRANTED, in part, without leave to amend.

Plaintiff has failed to set forth specific facts demonstrating malice or oppression by Defendant, as those terms are defined in Civ. Code § 3294. Further, although Plaintiff has attempted to add allegations relating to Defendants’ ratification of the actions of their employees, Plaintiff has nonetheless failed to set forth specific facts demonstrating authorization of wrongful conduct or advance knowledge of the likelihood of wrongful conduct by Defendants’ employees. Instead, Plaintiff presents conclusory allegations with respect to the Defendants’ conscious disregard of a known risk.

Plaintiff alleges Defendants’ acts constituted malice and oppression “because they subjected decedent to being unable to summon help when he became disabled,” and because they failed “to have a policy, or, alternatively, to enforce a policy ensuring that all guests were off the premises before the Lodge was closed for the night.” [SAC, ¶¶ 33-34] These allegations do not meet the definition of malice or oppression under Civil Code § 3294 because they do not indicate “despicable conduct” or that Defendants acted with a conscious disregard of the rights or safety of others. Notably, Plaintiff offers no authority indicating that claims for punitive damages have been permitted, or that punitive damages are recoverable, based on similar or analogous circumstances.

Further, Plaintiff alleges no specific facts indicating that Defendants, as corporate entities, authorized the wrongful conduct of its employees, or had advance knowledge of the likelihood they would cause injury. The following excerpt contains the pertinent allegations, which Plaintiff points to as support for authorization/advance knowledge:

35. Defendants, including their officers, directors, managing agents and employees knew the inherent risks of a steam room, including that (1) there is a risk of dehydrating the body, (2) time in the steam should be limited, (3) ingesting alcohol should be avoided and (4) people with certain medical conditions should not use steam rooms. Defendants knowingly and willfully ignored these risks to its members and guests.

36. The managing agents of Defendants, whose names are unknown to Plaintiffs at the present time, were those who exercised substantial independent authority and judgment in his or her corporate decision making such that his/her decisions ultimately determined corporate policy.

37. The managing agents, officers and/or directors of Defendants either committed the wrongful acts, or ratified the conduct of Defendants employees, which resulted in the death of Mr. Eremeyeff.

38. The Elks Lodge is liable for punitive damages based upon acts of its employee or employees (currently not known to Plaintiffs) because the Elks Lodge had advance knowledge of the unfitness of the employee(s) who either permitted Plaintiff to stay in the steam room after closing time and/or left the Lodge without inspecting the premises to ensure that all members and guests had left, and the Elks Lodge employed him, her, or them, with a conscious disregard of the rights or safety of its members and guests. Alternatively, officers, directors and/or managing agents of the Elks Lodge had advance knowledge and consciously disregarded, authorized, ratified or committed acts of oppression, fraud or malice.

[SAC ¶¶ 35-38] None of these allegations, which largely follow the language of Civil Code § 3294(b), provide specific facts indicating Defendants’ advance knowledge of the unfitness of its employees or authorization of the alleged wrongful conduct. Further, Plaintiff again fails to provide authority indicating that claims for punitive damages have been permitted against a corporate Defendant under similar or analogous circumstances.

Plaintiff also contends that the motion should be denied because Defendant has not quoted the portions of the complaint that it requests the court to strike, as required pursuant to CRC 3.1322. However, the rule does not apply where “the motion is to strike an entire paragraph.” Defendant has moved to strike paragraphs 33, 38, 51, and 61 of the second amended complaint, as well as paragraph 9 of the prayer for relief, in their entirety. Further, Plaintiff does not allege it did not have actual notice of the portions of the complaint that are sought to be stricken. Accordingly, Plaintiff’s argument fails with respect to these requests. Defendant’s motion to strike paragraphs 33, 38, 51, and 61 of the second amended complaint, as well as paragraph 9 of the prayer for relief, is therefore GRANTED.

Defendant’s notice also seeks to strike lines 8-9 of paragraph 48 of the second amended complaint. These lines, however, do not exist. Accordingly, Defendant’s motion to strike this portion of the complaint is DENIED.

Because the court has previously instructed Plaintiff to present specific facts to support the allegations pursuant to Civ. Code § 3294(b), and because Plaintiff has demonstrated its inability to do so, the motion to strike is granted without leave to amend.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.