Case Number: BC679475 Hearing Date: September 23, 2019 Dept: 37

HEARING DATE: September 23, 2019

CASE NUMBER: BC679475

CASE NAME: Gregory John Genco, Jr. v. Hollywood Palladium Theater, et al.

TRIAL DATE: May 19, 2020

PROOF OF SERVICE: OK

DEFENDANT’S MOTION TO STRIKE PORTIONS OF THE PLAINTIFF’S THIRD AMENDED COMPLAINT

MOVING PARTY: Defendant Live Nation Worldwide, Inc.

OPPOSING PARTY: Plaintiff Gregory John Genco, Jr.

MOTION: Filed July 16. 2019

OPPOSITION: Filed August 20, 2019

REPLY: Filed September 16, 2019

TENTATIVE: The motion to strike portions of Plaintiff’s third amended complaint is DENIED. Plaintiff’s counsel to give notice.

BACKGROUND

This case arises from allegations that Plaintiff Gregory John Genco, Jr. (“Genco”) was assaulted and battered while and immediately after he suffered from a seizure during a concert hosted at the Hollywood Palladium Theater in Hollywood, California on October 13, 2016. Plaintiff alleges that shortly after arriving at the venue, unbeknownst to him out and out of his control, he suffered a seizure and fell on the floor while the concert was ongoing. The Complaint alleges that Plaintiff was still seizing on the floor when he was approached by a number of Hollywood Palladium’s staff and security guards who started asking Plaintiff about his fall and how it happened. The Complaint further alleges that Plaintiff’s lack of response and uncontrollable body movements caused by his seizure was misinterpreted as combative behavior. The Complaint alleges that due to this misinterpretation, Hollywood Palladium staff and security guard attempted to arrest Plaintiff by physically and violently attacking him.

According to the Complaint, Plaintiff was forced to the floor, handcuffed, and forced outside of the venue by security guard and paramedics. The Complaint further alleges that was eventually transferred by ambulance and was admitted to Hollywood Presbyterian Medical Center, where he was allegedly treated for injuries to his knees, hands, fingers, wrists, back, and left forehead and for abrasions over his arms and face caused by Defendant’s agents.

The third amended complaint (“TAC”) alleges causes of action for: (1) negligence; (2) premises liability; (3) negligent hiring of employee/agent; (4) negligent retention of employee/ agent; (5) intentional infliction of emotional distress; (6) assault; (7) battery; and (8) false imprisonment.

Defendant Live Nation now moves the court to strike portions of the TAC that relate to Plaintiff’s request for punitive damages on the grounds that Plaintiff fails to state any specific facts to support the imposition of punitive damages against Live Nation.

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.)

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).) The subject motion meets this requirement. (Not. Mot. at pp. 1-6.)
II. ANALYSIS

Defendant Live Nation moves this court for an order striking various, identified portions of the TAC, which Defendant Live Nation contends are inappropriate and irrelevant conclusory allegations in support of a request for punitive damages. (Not. Mot. at p. 2.)

“To support punitive damages, the complaint … must allege ultimate facts of the defendant’s oppression, fraud, or malice.” (Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316-317 (Cyrus).) “ ‘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).)

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.) “In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. (Courtesy Ambulance Service v. Superior Court (1992) 8 Cal.App.4th 1504, 1519 ; Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 91.) 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.)

An employer may be statutorily liable for punitive damages in action arising from tortious conduct of employee in three situations: (1) when an employee was guilty of oppression, fraud or malice, and the employer with advance knowledge of the unfitness of the employee employed him or her with a conscious disregard of the rights or safety of others, (2) when an employee was guilty of oppression, fraud or malice, and the employer authorized or ratified the wrongful conduct, or (3) when the employer was itself guilty of the oppression, fraud or malice. (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128.)

Prior to the instant motion to strike, the court granted Defendant Live Nation’s motion to strike portions of the First Amended Complaint (“FAC”) that contained allegations relating to Plaintiff’s request for punitive damages. (Minute Order, August 28, 2018.) After reviewing the allegations of the FAC, the court concluded that the FAC did not support an award for punitive damages against Live Nation as a corporate employer on the grounds that the FAC did not allege advanced knowledge or ratification by a Live Nation officer, director, or managing agent (Ibid.) Accordingly, the court granted the motion to strike with 20 days leave to amend to specifically allow Plaintiff the opportunity to plead facts regarding knowledge and/or ratification by an officer, director, or managing agent of Live Nation. (Ibid.)

In accordance with the court’s ruling, Plaintiff filed a TAC that attempts to address the issues that caused the court to grant Defendant Live Nation’s previous motion to strike. In the TAC, Plaintiff adds new allegations stating that at the time of the incident, Live Nation was on notice of its employees, security guards, and agents’ propensity for violence and illegal conduct based on their prior, similar acts of violence against other Hollywood Palladium Theater patrons. (TAC ¶ 34-36.) Moreover, the TAC alleges that despite having advanced knowledge and awareness of the unfitness of their security guards, staff, employees, and agents, Live Nation nonetheless continued to employ them in conscious disregard of the rights or safety of others, including Plaintiff. (Ibid.) Additionally, the TAC also includes new allegations that Live Nation’s officers, directors, and/or managing agents authorized, directed, approved, and/or ratified the wrongful conduct committed by its security guards, staff, employees, and agents by failing to terminate or reprimand them after the prior violent incidences or otherwise take reasonable measures to prevent such unlawful conduct from occurring in the future. (TAC ¶¶ 40-42.)

At the pleading stage, the court finds that these allegations that Live Nation had advance knowledge of the unfitness of their security guards, staff, and employees based on prior similar acts of violence, but nonetheless employed them in conscious disregard of the rights or safety of others and without reprimanding them or disciplining them for their acts of violence or taking reasonable measures to prevent future misconduct is sufficient to support a request for punitive damage. (Monge v. Superior Court (1986) 176 Cal.App.3d 503, 40 [determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint.].)

Accordingly, the motion to strike portions of the TAC is DENIED. Plaintiff’s counsel to give notice.