Case Number: BC688686 Hearing Date: June 06, 2018 Dept: 4

MOVING PARTY: Defendants Samuel Rodriguez and Frontline Protection, Inc.

RESPONDING PARTY: Plaintiff Gino Iniguez

Motion to Strike Portions of Complaint

The court considered the moving and opposition papers.

BACKGROUND

On December 29, 2017, plaintiff Gino Iniguez filed a complaint against defendants Club DB Lounge and Samuel Rodriguez for negligent hiring, retention, and supervision, premises liability, assault, battery, and IIED.

On February 2, 2018, plaintiff filed an amendment designating Hayke Gevorkyan as Doe 1.

On March 9, 2018, plaintiff filed an amendment designating Frontline Protection Inc. as Doe 2.

LEGAL STANDARD

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. CCP § 436(a). The court may also strike 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. CCP § 436(b). 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.

Civil Code § 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .” The Court in Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95, found:

“Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.”

“’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.” Civil Code § 3294(c)(1).

As the Court noted in College Hospital v. Superior Court (1994) 8 Cal.4th 704, 713, Section 3294 was amended in 1987 to require that, where malice is based on a defendant’s conscious disregard of a plaintiff’s rights, the conduct must be both despicable and willful. The Court in College Hospital held further that “despicable conduct refers to circumstances that are base, vile, or contemptible.” Id. at 725 (citation omitted).

A claim for punitive damages may not be based on conclusory allegations of oppression, fraud or malice, but instead must be based on factual allegations which support such a conclusion. See Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1041-1042 (Court of Appeal issued peremptory writ directing trial court to issue order striking plaintiff’s prayer for punitive damages because “[t]he sole basis for seeking punitive damages are . . . conclusory allegations” which were “devoid of any factual assertions supporting a conclusion [defendants] acted with oppression, fraud or malice”).

DISCUSSION

Defendants Samuel Rodriguez and Frontline Protection, Inc. request that the court strike paras. 19 and 39 and prayer for relief at para. 6 for punitive damages.

In the complaint, plaintiff alleges that defendant Rodriguez was a security guard employed by defendants, working at Club DB, and acting within the course and scope of his employment. Complaint, ¶5. On December 23, 2016, at approximately 23:00, plaintiff was at Club DB as a patron. Id., ¶11. Plaintiff had exited the property and was attempting to gain re-entry to the property. He was denied re-entry by Rodriguez. Id., ¶12. After a verbal altercation, Rodriguez punched plaintiff in the face and tackled plaintiff to the ground. Id., ¶13. Club DB has a history and reputation of hiring and retaining unfit, incompetent, and violent security guards. Id., ¶14. Plaintiff alleges that Rodriguez was unfit, incompetent, and uncontrollably violent to perform the work of a security guard, for which he was hired. Id., ¶22.

Defendants argue that the allegations are insufficient to support a claim for punitive damages. As to Rodriguez, defendants contend that the allegations do not rise to the level of malice. As to Frontline, defendants contend the allegations are insufficient under CCP §3294(b).

The court finds that the allegations are insufficient as to individual defendant Rodriguez to support a claim for punitive damages. Based on the circumstances alleged, the allegations do not show that Rodriguez intended to cause injury to plaintiff or despicable conduct which was carried on by Rodriguez with a willful and conscious disregard of the rights or safety of others. Plaintiff alleges that he was attempting re-entry to the club and that there was a verbal altercation between plaintiff and Rodriguez, who was acting as a security guard, and presumably, attempting to prevent plaintiff from re-entering the club.

The court also finds that the allegations are insufficient as to Frontline. “An employer shall not be liable for [punitive] damages. . . 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 for 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.” Civil Code § 3294(b). “[T]he imposition of punitive damages upon a corporation is based upon its own fault. It is not imposed vicariously by virtue of the fault of others.” City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal. App. 3d 31, 36. “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive. An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees. But the law does not impute every employee’s malice to the corporation. Instead, the punitive damages statute requires proof of malice among corporate leaders: the ‘officer[s], director[s], or managing agent[s].’” Cruz v. Home Base (2000) 83 Cal. App. 4th 160, 167 (citation omitted). As to ratification, “[a] corporation cannot confirm and accept that which it does not actually know about.’” Id. (citing to College Hospital, supra, at 726 (for ratification sufficient to justify punitive damages against corporation, there must be proof that officers, directors, or managing agents had actual knowledge of the malicious conduct and its outrageous character).

Although plaintiff alleges that Rodriguez was acting in the course and scope of employment as a security guard, the allegations that Frontline had advance knowledge of the unfitness of Rodriguez as a security guard are conclusory. Further, as stated above, Rodriguez’s conduct does not rise to the level of malice.

The motion is therefore GRANTED WITH 20 DAYS LEAVE TO AMEND. The court STRIKES paras. 19 and 39 and prayer for relief at para. 6 for punitive damages.

Moving defendants are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: June 6, 2018

_____________________________

Dennis J. Landin

Judge of the Superior Court