Case Name: Jasen Silver v. Contemporary Services Corporation
Case No.: 17-CV-307337

Currently before the Court is the motion by defendant Contemporary Services Corporation (“Defendant”) to strike allegations regarding punitive damages and attorney fees from the complaint of plaintiff Jasen Silver (“Plaintiff”).

Factual and Procedural Background

This is an action for violations of the Fair Employment and Housing Act (the “FEHA”), violations of the Labor Code, unfair competition, and wrongful termination. On or about April 4, 2015, Defendant employed Plaintiff as a security guard. (Complaint, ¶ 7.) During his employment, Plaintiff was a non-exempt employee, who successfully fulfilled the demands of his position. (Id., at ¶¶ 8-9.) Plaintiff frequently worked in excess of eight hours a day and/or forty hours per week. (Id., at ¶ 10.) He also regularly worked more than five consecutive hours in a workday without being given meal breaks and rest periods. (Id., at ¶¶ 11-12.) Plaintiff alleges that Defendant failed to timely compensate him for all hours worked and failed to compensate him for overtime hours. (Id., at ¶¶ 13-17.)

In September 2015, Plaintiff met with his supervisors—Marlene and Calvin—regarding a possible promotion. (Complaint, ¶ 24.) Plaintiff was told that the interview “was only a formality and he already had the promotion.” (Ibid.) In addition, “Plaintiff was told that they would notify him when training was to begin for this new position.” (Ibid.)

On or about October 15, 2015, Plaintiff sustained a workplace injury. (Complaint, ¶ 18.) Plaintiff’s supervisor, Jesse Serna (“Serna”), instructed him to postpone seeking medical treatment because Defendant was short-staffed. (Id., at ¶ 19.) When Plaintiff returned to work on October 17, 2015, he passed out. (Id., at ¶ 20.) Plaintiff’s other supervisors—Marlon Gonzales (“Gonzales”), Andrew Young (“Young”), and Calvin—became aware of his condition, and Plaintiff sought treatment on Sunday, October 18, 2015. (Id., at ¶¶ 19-20.)

Thereafter, Plaintiff went on disability leave for approximately one month, and returned to work on November 26, 2015. (Complaint, ¶ 21.) Plaintiff’s supervisors—Serna, Gonzales, Young, and Calvin—failed to provide reasonable accommodations for his disability, required Plaintiff to engage in tasks that violated his work restrictions, and reduced the number of Plaintiff’s working hours. (Id., at ¶¶ 21-23.) Plaintiff complained to Defendant’s human resources representative, Monica Campbell (“Campbell”), regarding Defendant’s failure to provide him with reasonable accommodations, meal breaks, and rest periods. (Id., at ¶¶ 22 and 26.) Plaintiff also complained to Defendant’s counsel, Edward Kim (“Kim”). (Id., at ¶ 28.) However, nothing was done to address his concerns. (Id., at ¶¶ 22, 26, 28, 30.)
In December, 2015, Serna informed Plaintiff that Defendant “would not honor the promotion that he was previously promised.” (Complaint, ¶ 25.) In retaliation for his complaints to human resources, Plaintiff was terminated on or about February 26, 2016. (Id., at ¶ 27.)

Plaintiff alleges that Campbell, Serna, Young, Calvin, and Kim are managing agents who “exercised substantial independent authority and judgment in [their] corporate decision making [such] that … their decisions ultimately determine corporate policy.” (Complaint, ¶ 29.) “Plaintiff reported to … these individuals” and “these supervisors were responsible in the decision to terminate Plaintiff.” (Ibid.) “[T]hese managing agents acted fraudulently, maliciously [and/or] oppressively by (1) retaliating against Plaintiff for requesting reasoning [sic] accommodations; (2) by intentionally refusing to accommodate Plaintiff’s disability; (3) by instructing Plaintiff to delay seeking medical treatment; (4) by refusing to honor a promotion to Plaintiff that was offered to him prior to his disability; and (5) by wrongfully terminating Plaintiff for complaining about what he reasonably believed was illegal conduct in the workplace.” (Ibid.)

Based on the foregoing, Plaintiff filed a complaint against Defendant, alleging causes of action for: (1) disability discrimination in violation of the FEHA; (2) failure to engage in the interactive process in violation of the FEHA; (3) failure to accommodate disability in violation of the FEHA; (4) retaliation in violation of the FEHA; (5) failure to take all reasonable steps to prevent discrimination, harassment, and retaliation; (6) failure to provide rest periods; (7) failure to provide meal periods; (8) unpaid overtime wages; (9) waiting time penalties; (10) wage statement penalties; (11) violation of Labor Code sections 98.6 and 1102.5; (12) unfair competition; (13) violation of Labor Code section 2699; and (14) wrongful termination in violation of public policy.

On June 14, 2017, Defendant filed the instant motion to strike. Plaintiff filed papers in opposition to the motion on July 12, 2017.

Discussion

Pursuant to Code of Civil Procedure section 436, Defendant moves to strike allegations pertaining to (1) Plaintiff’s request for punitive damages and (2) Plaintiff’s request for attorney fees.

I. Requests for Judicial Notice

In connection with its moving papers, Defendant asks the Court to take judicial notice of: (1) the complaint filed in the case of Jasen Silver v. Contemporary Services Corporation (Los Angeles County Superior Court, Case No. BC633985) (“Prior Action”); (2) the first amended complaint filed in the Prior Action; (3) a notice of ruling filed by Defendant in the Prior Action; (4) Plaintiff’s request for dismissal filed in the Prior Action; and (5) the complaint filed in this case. In footnote two of its reply papers, Defendant also asks the Court to take judicial notice of (1) Plaintiff’s opposition papers filed in the Prior Action and (2) its reply papers filed in the Prior Action.

As an initial matter, Defendant’s request for judicial notice set forth in a footnote in its reply is procedurally improper because the request is not made in a separate document. (Cal. Rules of Ct., rule 3.1113(l) [a request for judicial notice must be made in a separate document listing the specific items for which notice is requested].)

Next, to the extent Defendant requests judicial notice of the complaint filed in this action, the request is simply unnecessary. The complaint is the pleading under review; consequently, its contents must necessarily be considered by the Court when ruling on Defendant’s motion to strike. (See Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn.1 [denying as unnecessary a request for judicial notice of pleading under review on demurrer].)

Finally, the documents filed in the Prior Action constitute records of the superior court which, as a general matter, are proper subjects for judicial notice. (See Evid. Code, § 452, subd. (d) [a court may take judicial notice of court records].) However, all judicially noticed documents must be necessary and relevant to a material issue under review. (See People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 (“Lockyer”); see also Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6.) Here, the documents filed in the Prior Action are not relevant to resolving the material issues raised by the motion to strike. The complaint and first amended complaint filed in the Prior Action are separate and distinct from the pleading under review. Moreover, even if the ruling on Defendant’s motion to strike in the Prior Action involved the same material issues raised by the instant motion, written trial court rulings have no precedential value. (See Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, 830–31 [declining to consider a written trial court ruling]; see also San Diego County Employees Retirement Ass’n v. County of San Diego (2007) 151 Cal.App.4th 1163, 1184 [“Retirement Association’s reliance on a 1998 superior court judgment is unhelpful. [Citation.] A trial court judgment cannot properly be cited in support of a legal argument, absent exceptions not applicable here.”]; Budrow v. Dave & Buster’s of California, Inc. (2009) 171 Cal.App.4th 875, 884–85 [declining to take judicial notice of a written trial court ruling]; Crab Addison, Inc. v. Super. Ct. (2008) 169 Cal.App.4th 958, 963 [same].) Thus, the court records are not proper subjects of judicial notice.

For these reasons, Defendant’s request for judicial notice is DENIED.

II. Legal Standard

Under Code of Civil Procedure section 436, a court may strike out any irrelevant, false, or improper matter inserted into any pleading or strike out all or 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.) The grounds for a motion to strike must appear on the face of the challenged pleading or from matters of which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).) In ruling on a motion to strike, the court reads the pleading as a whole, all parts in their context, and assuming the truth of all well-pleaded allegations. (See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 citing Clauson v. Super. Ct. (1998) 67 Cal.App.4th 1253, 1255.)

III. Punitive Damages

Defendant moves to strike the punitive damage allegations in paragraphs 29, 43-44, 54-55, 64-65, 74-75, 84-85, 133-134, 143-145, and 168-169, and in the prayer for relief at paragraph 5 because the allegations are not supported by facts constituting malice, oppression, or fraud.

Punitive damages may be recovered for violations of the FEHA. (See Monge v. Super. Court (1986) 176 Cal.App.3d 503, 509.) Pursuant to Civil Code section 3294, punitive damages may be recovered “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).) “Oppression” is defined as “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).) “Malice” is defined as “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).) Finally, “fraud” is defined as “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 or property or legal rights or otherwise causing injury.” (Civ. Code, § 3294, subd. (c)(3).)

Punitive damages cannot be pleaded generally; that is, the complaint must allege facts showing statutory “oppression,” “malice” or “fraud.” Conclusory allegations that the defendant acted “willfully,” “maliciously,” etc. or with “conscious disregard,” are insufficient to support a claim for punitive damages; the plaintiff must plead facts to support such a conclusion. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864.) Allegations must not be read in isolation, but in the context of facts alleged in the rest of the complaint. (Perkins v. Superior Ct. (1981) 117 Cal.App.3d 1, 6 (“Perkins”).)

Here, when read in its entirety, the Court finds that the complaint contains sufficient facts to support Plaintiff’s request for punitive damages. Though it is true, as Defendant insists, that pleading conclusions of law does not fulfill the requirement that a plaintiff must plead ultimate facts showing an entitlement to punitive damages in order to withstand a motion to strike such relief, of critical importance is whether “the complaint as a whole contain[s] sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief.” (See Perkins, supra, 117 Cal.App.3d at p. 6, italics added.) Thus, courts consider all of the allegations of the complaint in its entirety in order to determine whether an entitlement to punitive damages has been sufficiently pleaded. In the complaint, Plaintiff alleges that Defendant had knowledge of his disability, intentionally discriminated against him because of that disability, and thereafter failed to engage him in the interactive process and reasonably accommodate his disability. (Complaint, ¶¶ 18-29, 35, 38-39, 48-50, 58-60, 69-70.) Finally, Plaintiff claims that such conduct was intended to cause him injury which, if proven is sufficient to establish malice and support an award for punitive damages. (Id., at ¶¶ 43-44, 54-55, 64-65, and 74-75.)

Defendant also contends that there is no basis for punitive damages as Plaintiff fails to allege facts demonstrating that the alleged perpetrators were managing agents of Defendant.

“Generally, principal liability for punitive damages [does] not depend on employees’ managerial level, but on the extent to which they exercise substantial discretionary authority over decisions that ultimately determine corporate policy. [Citation.] Thus, to establish that an individual is a managing agent, a plaintiff seeking punitive damages must show that the employee exercised substantial discretionary authority over significant aspects of a corporation’s business. [Citation.] In this context, corporate policy refers to formal policies that affect a substantial portion of the company and that are of the type likely to come to the attention of corporate leadership.” (CRST, Inc. v. Super. Ct. (2017) 11 Cal.App.5th 1255, 1273 (“CRST”), internal quotation marks omitted.)

“The key inquiry thus concerns the employee’s authority to change or establish corporate policy. [Citation.] The fact that an employee has a supervisory position with the power to terminate employees under his or her control does not, by itself, render the employee a managing agent. [Citations.] Nor does the fact that an employee supervises a large number of employees necessarily establish that status. [Citation.]” (CRST, supra, 11 Cal.App.5th at p. 1273.)

According to the complaint, Plaintiff identifies Campbell, Serna, Young, Calvin, and Kim as managing agents who exercised substantial independent authority and judgment in their corporate decision making such that their decisions ultimately determined corporate policy. (Complaint, ¶¶ 29.) Here, the fact that these individuals are identified as managing agents that allegedly determined corporate policy appears to be sufficient to establish liability for punitive damages for pleading purposes. Whether or not they actually determined or establish such corporate policy remains a factual issue that cannot be resolved on a motion to strike.

Finally, Defendant argues that Plaintiff cannot recover punitive damages under Business and Professions Code section 17200 (the “UCL”). As Defendant persuasively argues, it is well-established that a violation of the UCL cannot serve as a basis for seeking punitive damages because its remedies are limited to injunctive relief and restitution. (See Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1148 (“Korea”).) Consequently, the punitive damages allegations in paragraphs 143-145 of the complaint are improper.

Based on the foregoing, the motion to strike the request for punitive damages is GRANTED IN PART and DENIED IN PART. The motion to strike the punitive damages allegations is GRANTED as to paragraphs 143-145 of the complaint. The motion is otherwise DENIED.

IV. Attorney Fees

Defendant moves to strike the attorney fees allegations set forth in the twelfth cause of action for violation of the UCL (i.e., paragraph 145) because Plaintiff cannot recover punitive damages under the UCL. Defendant also moves to strike the attorney fees allegations set forth in the fourteenth cause of action for wrongful termination in violation of public policy (i.e., paragraph 170) because Plaintiff is not entitled to attorney fees under Code of Civil Procedure section 1021.5.

With respect to the request for attorney fees made in connection with the twelfth cause of action, “the UCL does not authorize an award of attorney fees. No exception exists for UCL actions predicated on a statute that authorizes such an award.” (People ex rel. City of Santa Monica v. Gabriel (2010) 186 Cal.App.4th 882, 891; Korea, supra, 29 Cal.4th at p. 1148 [“attorney fees … are not available under the UCL ….”]; Cel–Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 179 [“Prevailing plaintiffs are generally limited to injunctive relief and restitution. [Citations.] Plaintiffs may not receive … attorney fees.”].) Consequently, the motion to strike paragraph 145 is well-taken.

With respect to the request for attorney fees made in connection with the fourteenth cause of action, Plaintiff identifies Code of Civil Procedure section 1021.5 as the statutory basis for attorney’s fees. “Code of Civil Procedure section 1021.5 ‘is a codification of the private attorney general doctrine adopted by the California Supreme Court.’ [Citation.] Section 1021.5 provides in relevant 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.’” (Snatchko v. Westfield, LLC (2010) 187 Cal.App.4th 469, 496, fn. 15 (“Snatchko”).)

“ ‘There is no requirement that the intent to seek attorney fees under section 1021.5 must be pleaded in the underlying action. [Citation.] Such fees are not part of the underlying cause of action, but are incidents to the cause and are properly awarded after entry of a … judgment ….’ [Citation.] As there was no requirement they be pled at all, the trial court erred in striking Snatchko’s prayer for attorney fees based on a failure to adequately plead their basis ….” (Snatchko, supra, 187 Cal.App.4th at p. 497.)

Here, Plaintiff explicitly states that he seeks attorney fees under Code of Civil Procedure section 1021.5. Because there is no requirement to plead any underlying basis for this request, it is inappropriate to strike the attorney fees allegations. Thus, the motion to strike paragraph 170 is not well-taken.

Accordingly, the motion to strike the request for attorney fees is GRANTED IN PART and DENIED IN PART. The motion to strike the attorney fees allegations is GRANTED as to paragraph 145 of the complaint. The motion is otherwise DENIED.