Case Name: Jeremy Korpas v. Elite Show Services, et al.

Case No.: 17CV311874

I. Background

This action arises from a physical altercation between Jeremy Korpas (“Plaintiff”) and multiple security guards employed by defendant Elite Show Services (“Elite”), including defendant Anthony Gonzales (“Gonzales”), during a concert at Levi’s Stadium.

According to the allegations of the First Amended Complaint (“FAC”), during the concert, Plaintiff left a VIP seating area and was prevented from reentering by a security guard who forcefully removed the wristband used by Plaintiff to originally gain access to the area. Following an unsuccessful attempt to speak to that security guard’s supervisor, Plaintiff watched the remainder of the concert from another area. At the end of the concert, Plaintiff again approached the VIP area in an attempt to rejoin the group with whom he had originally been watching the concert. As Plaintiff called for his girlfriend, Gonzales grabbed Plaintiff from behind without warning and attempted to handcuff him. At the same time, the security guard who previously denied Plaintiff access to the VIP area tackled Plaintiff and pinned him to the ground, as additional guards held down his legs. Gonzales wrenched Plaintiff’s arms behind his back and handcuffed him while shouting and threatening Plaintiff aggressively. Gonzales then lifted Plaintiff from the ground by the handcuffs and dragged him towards two uniformed Santa Clara police officers for further questioning. They instructed Gonzales to remove the handcuffs, and Plaintiff was taken to the side of the stage where his personal information and photograph were collected. Plaintiff was then informed he would be required to attend a “fan conduct class” at his own expense if he wished to be allowed back to the stadium in the future.

Plaintiff asserts the following causes of action against Elite, as well as various other defendants: (1) battery; (2) assault; (3) negligent hiring, supervision, and retention; (4) negligence; (5) false imprisonment; (6) intentional infliction of emotional distress; and (7) vicarious liability. Plaintiff also requests an award of punitive damages.

Elite previously brought a motion to strike the prayer for punitive damages and related allegations from the original complaint, which the Court granted with leave to amend. Plaintiff responded by filling the FAC. Elite once again brings a motion to strike the prayer for punitive damages and related allegations.

II. Request for Judicial Notice

Plaintiff filed a request for judicial notice of the FAC in support of his opposition. Evidence Code section 452, subdivision (d) states that the court may take judicial notice of “[r]ecords of any court of this state.” The FAC is a court record, and is therefore a type of document subject to judicial notice. However, it is unnecessary to request judicial notice of a pleading that the court must necessarily consider and treat as true when ruling on the motion. (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].) Therefore, the request for judicial notice is DENIED.

III. Motion to Strike

Elite’s motion to strike is made pursuant to Code of Civil Procedure sections 435 and 436. Code of Civil Procedure section 436 provides a court may strike out “out any irrelevant, false, or improper matter inserted in any pleading” 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.”

Elite cites both provisions of Code of Civil Procedure section 436 in their motion. As Elite was previously advised, the ground that a matter is not drawn in conformity with the law is not an appropriate basis for challenging the sufficiency of a claim for punitive damages. (See Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528 [ground that a pleading is not drawn or filed in conformity with the law properly used to challenge pleadings filed in violation of a deadline, court order, or requirement of prior leave of court].) Instead, such a challenge may be raised on the ground that a court may strike out “any irrelevant, false, or improper matter inserted in a pleading.” (Code Civ. Proc., §§ 431.10, subds. (b)-(c), 436, subd. (a); see also Weil and Brown, Cal. Practice Guide: Civ. Proc. Before Trial (The Rutter Group 2017), §§ 7:177-7:185.2.) Elite’s argument does fall within a valid ground, and the Court will consider it. However, Elite is admonished for ignoring the Court’s previous recitation of the law.

This motion to strike is a follow up to a prior similar motion by Elite. In Elite’s prior motion Elite argued Plaintiff had not provided sufficient allegations to plead malice by the Elite or its employees. The Court rejected the contention that the allegations of malice were insufficient. However, the Court agreed with Elite’s argument that Plaintiff had not adequately alleged authorization or ratification of the violence by an officer, director or managing agent. Because such ratification or authorization is necessary to award punitive damages against a corporation, the Court granted the motion to strike on that basis. Thereafter, Plaintiff amended the complaint to address the issue of corporate approval or ratification of the conduct.

Here, Elite again argues Plaintiff has not alleged sufficient facts to support a claim of punitive damages based upon malice. Additionally, Elite argues the allegations supporting punitive damages are conclusory. Last, Elite posits Plaintiff has not plead sufficient facts to impose punitive damages on a corporation through approval by a corporate officer, director, or managing agent. In their reply Elite raises a new argument, that punitive damages cannot be sought for a negligence claim. Points raised for the first time in reply briefs are generally not considered for due process reasons. (See In re Tiffany Y. (1990) 223 Cal.App.3d 298, 302-303; see also Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764; REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500].) As such, the Court declines to consider this new argument.

With regard to the first argument, Elite asserts that malice is reserved for extraordinary circumstances, and Plaintiff has failed to make any factual allegations supporting punitive damages. To obtain punitive damages, a plaintiff must plead a defendant is guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a)(1).) Malice is defined by 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).)

The Court’s previous ruling is instructive. In the previous motion the Court determined the facts as pleaded were sufficient to support malice, and accordingly denied the motion to strike. In sum, the Court agrees with its prior ruling on the issue of malice. Accordingly, the motion to strike cannot be granted based on lack of allegations supporting malice. The Court need not address whether Plaintiff has also plead oppression or fraud, because malice is sufficient to entitle Plaintiff to punitive damages. (See Civ. Code, § 3294, subd. (a)(1).)

With regard to the second argument, Elite asserts conclusory allegations are insufficient to support a motion to strike. Conclusory allegations or conclusions of law may be sufficient if they are supported by other facts placed in context by other facts. (See Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.) The important consideration is whether the complaint contains “sufficient facts to apprise the defendant of the basis upon which the plaintiff is seeking relief.” (Ibid.) Here, Plaintiff has pleaded facts showing malice, and when viewed in context, the allegations advise Elite of the basis under which relief is sought. Therefore, the motion to strike cannot be granted based upon this argument. Additionally, Elite relies upon Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 366, which discusses a demurrer and does not mention either motions to strike or punitive damages. This citation does not assist Defendant’s argument.

With regard to the final argument, Elite argues that Plaintiff has not sufficiently pleaded corporate ratification of the guards’ actions. Specifically, Elite argues that Plaintiff has not alleged a corporate managing agent, which must be someone higher than a mere supervisor, ratified the guards’ violent interaction with Plaintiff. According to Elite, there can be no punitive damages against the corporation, absent additional allegations describing how a managing agent ratified the conduct at issue.

To obtain punitive damages from an employer for acts of an employee, a plaintiff must show that the “employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of 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. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code, § 3294, subd. (b).)

As a threshold matter, Plaintiff has not included any allegations of personal guilt by a corporate officer, director, or managing agent. Thus, Plaintiff proceeds on a theory that a managing agent ratified or authorized the malicious conduct, rather than engaged in it personally.

Corporate ratification has two subparts. First a person involved must qualify as an officer, director or managing agent of the corporation who can subject the corporation to punitive damages. (See Civ. Code, § 3294, subd. (b).) Second, the person must do something that authorizes or ratifies the conduct. (See Ibid.)

As to the first issue, a corporation can be subjected to punitive damages by an employee with substantial discretionary authority over corporate policy. (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 576–577 [“a plaintiff seeking punitive damages would have to show that the employee exercised substantial discretionary authority over significant aspects of a corporation’s business”].) To qualify, a person must do more than merely supervise others. (Ibid.)

Plaintiff has added allegations designed specifically to identify the managing agent it alleges approved the conduct. Plaintiff now alleges: “Elite Show Services’ officers, directors, and managing agents, including but not limited to John Kontopuls and Gus Kontopuls” had authority to determine corporate policy.” (FAC, ¶ 75.) While these allegations could be more detailed, they mirror the relevant standard and identify a party able to subject the corporation to punitive damages. (See White v. Ultramar, Inc., supra, 21 Cal.4th at 576–577.)

This brings the analysis to the second part of corporate ratification, what action was taken by the managing agent. To ratify an action, an officer, director, or managing agent must actually know of the conduct, and its outrageous nature. (See College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 726.) Corporate employers can ratify conduct by failing to intervene when they know tortious conduct is ongoing. (See College Hospital Inc. v. Superior Court, supra, 8 Cal.4th at 726 [discussing various cases finding ratification based on failure to intervene or investigate].) A failure to fire or investigate an employee after a violent incident can show ratification. (See Greenfield v. Spectrum Investment Corp. (1985) 174 Cal.App.3d 111, 121 [failing to fire employee after he assaulted a customer sufficient to show ratification].)

Plaintiff alleges that officers, directors and managing agents “had advance knowledge of the unfitness of Elite Show Services’ employees, including but not limited to Anthony Gonzales, having received multiple prior complaints” of excessive force. (FAC, ¶ 75.) Plaintiff further alleges that these managing agents “authorized and ratified their employees’ use of excessive physical force[,]” having prior knowledge of it from the multiple complaints. (Ibid.) According to Plaintiff, Elite’s managing agents ratified their employees’ use of excessive physical force by “‘turning a blind eye’ to reports of violence.” (Ibid.) Allegedly, managing agents failed to reprimand or remove violent employees. Finally, Plaintiff alleges that the directors, officers, or managing agents, “created a corporate culture where” their employees could “use excessive physical force and violence against concertgoers with impunity.” (Ibid.)

The Court presumes the allegations are true when ruling on a motion to strike. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) These allegations are sufficiently particular to allege corporate approval or ratification through failure to intervene and stop a pattern of violence by their employees. (See College Hospital Inc. v. Superior Court, supra, 8 Cal.4th at 726.) Whether Plaintiff can prove such with evidence is a question to be resolved later. (See StreetScenes v. ITC Entertainment Group, Inc., supra, 103 Cal.App.4th at 242.)

IV. Conclusion

In conclusion, the motion to strike is DENIED.