Case Number: BC536239    Hearing Date: August 01, 2014    Dept: 73

8/1/14
Dept. 73
Rafael Ongkeko, Judge presiding

TATARYAN vs. NORTH AMERICAN SECURITY, INC., et al. (BC536239)

Counsel for defendants/moving parties: Eulalio Garcia, Brian Fong (Gordon, etc.)
Counsel for plaintiff/opposing party: Carney Shegerian (Shegerian, etc.)

TENTATIVE RULING:
Defendants’ motion to strike (filed 7/10/14) portions of plaintiff’s second amended complaint (SAC) is denied as to attorney fees; granted, with 10 days’ leave to amend as to punitive damages.

NOTE: The operative complaint is the SAC deemed filed pursuant to a stipulation and order, but plaintiff has not filed a stand-alone original of the SAC as required by the court’s minute order of 7/7/14. Plaintiff is ordered to do this forthwith.

DISCUSSION:

Defendant seeks an order striking the attorneys’ fees and punitive damage allegations contained in the first and third causes of action and in the prayer.

The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. CCP §436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP §437.

Attorneys’ fees
“There is no requirement that a party plead that it is seeking attorney fees, and there is no requirement that the ground for a fee award be specified in the pleadings.” Yassin v. Solis (2010) 184 Cal.App.4th 524, 533.

Regarding attorneys’ fees (¶26 and prayer ¶4) Plaintiff alleges he seeks attorneys’ fees pursuant to CCP §1021.5. Section 1021.5 provides, in pertinent part:

Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any. …” (Emphasis added.)

Defendants seek an order striking the fee allegations on grounds Plaintiff does not seek a benefit to a sizable class and his substantial request for recovery of his own damages shows that recovery of his fees was not necessary to bring this litigation. Defendants’ argument is not that Plaintiff has not adequately pled a claim for attorneys’ fees but in fact that he cannot prove his entitlement to fees under this code section. On a motion to recover fees under this code section, Plaintiff would be required to demonstrate the satisfaction of all necessary criteria. See Satrap v. Pacific Gas & Electric Co. (1996) 42 Cal.App.4th 72, 79. All of the cases cited by Defendant concern an assessment of the record and Plaintiff’s recovery. No cases regarding pleading have been addressed. At this stage, the court cannot make the determination necessary to assess the application of these factors.

Further, that Plaintiff chose to abandon his FEHA claims and seek a common law claim for wrongful termination in violation of public policy does not warrant an order striking these allegations. While it is true that Plaintiff cannot avail himself of the fee provisions under FEHA, that he has not pled a FEHA claim has no bearing on his ability to recover fees under Section 1021.5. As Plaintiff argues, fees may be recovered under Section 1021.5 where common law wrongful termination has been alleged. See Robinson v. City of Chowchilla (2011) 202 Cal.App.4th 382.

Punitive damages
Regarding punitive damages (¶¶27, 38 and prayer ¶2), Defendants argue Plaintiff has not pled facts demonstrating the requisite fraud, malice or oppression, arguing Plaintiff has pled nothing more than the assertion that Defendant Lemus did not like him. “In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Sup. Ct. (1998) 67 Cal. App. 4th 1253, 1255.) The definitions of the elements of punitive damages are as follows:

“ ‘Malice’ “ is defined in the statute as conduct “intended by the defendant to cause injury to plaintiff, or despicable conduct that is carried on by the defendant with a willful and conscious disregard for the rights or safety of others.” (Civ.Code, § 3294, subd. (c)(1); College Hospital, supra, 8 Cal.4th at p . 725.) “ ‘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’ “ is “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).)

Turman v. Turning Point Of Central Cal., Inc. (2010) 191 Cal.App.4th 53, 63.
Alleging that persons acted “with the permission and consent” of all defendants including corporate defendants is sufficient to plead corporate employer liability for punitive damages. O’Hara v. Western Seven Trees Corp. (1977) 75 Cal.App. 3d 798, 806. For determining employers’ liability for punitive damages, ratification may be shown by circumstantial, or direct, proof of corporate agents’ adopting or approving employees’ actions, such as employers’ failing to fully investigate or discipline, after being informed of employees’ wrongful actions. Roberts v. Ford Aero. & Communications Corp. (1990) 224 Cal. App. 3d 793, 801.

Plaintiff alleges Defendant Lemus was a managing agent, in that he “was vested with substantial discretionary authority to carry out the business of [NAS] and thus is a managing agent . . . [he] was able to change working schedules and assignments without approval . . . determine if employee received discipline, and if so what for of discipline, for violation of company policy and was able to excuse a violation of said policies.” (¶16.) While these allegations may be sufficient to allege that Lemus was a managing agent, Plaintiff does not allege specifically what Lemus role was in his termination especially considering the inclusion of allegations that upper management sent letters indicating Plaintiff should be reinstated but unnamed administrative supervisors have refused. (¶11.) Further, Plaintiff alleges mainly that Lemus “did not like him.” He does not allege that Lemus transferred him, continued to supervise him, or terminated him. Thus, the Plaintiff’s punitive damage allegations are insufficient.

Plaintiff shall have 10 days’ leave to amend to address punitive damage allegations only.

Unless waived, notice of ruling by moving party.