Case Number: EC066340 Hearing Date: July 27, 2018 Dept: A

Akopian v Specialty Eye Care Medical Center

MOTION FOR SUMMARY JUDGMENT/ADJUDICATION

Calendar: 12

Case No: EC066340

Hearing Date: 7/27/18

Action Filed: 3/29/17

Trial: 8/13/18

MP:

Defendants Specialty Eye Care Medical Center, Inc. and Dr. Haroutun Hovanesian

RP:

Plaintiff Lilt Akopian

ALLEGATIONS IN THE COMPLAINT:

Plaintiff Lilit Akopian is a 27-year-old, Caucasian female. In April 2011, Defendants Specialty Eye Care Medical Center, Inc. (“SEC”) and Dr. Haroutun Hovanesian (“Dr. Hovanesian”) hired Plaintiff as a non-exempt employee to work as a receptionist. She alleges that on October 25, 2016, while working, a patient approached her and rudely inquired to see Dr. Hovanesian. She alleges the patient complained about her and Dr. Hovanesian became visibly upset, violently grabbed Plaintiff’s arm and dragged her out of the examination room. Plaintiff thereafter filed this wage and hour action, which also includes claims for Dr. Hovanesian’s physical contact with Plaintiff.

The SAC, filed October 5, 2017, alleges causes of action for: (1) common law battery; (2) common law assault; (3) constructive discharge in violation of public policy; (4) failure to provide rest periods (Labor Code, §226.7 and Wage Order); (5) failure to pay all wages earned for labor no later than the payday for the next regular payroll period (Labor Code, §204); (6) failure to maintain records (Labor Code, §§558, 1174, 1174.5, 2699, 2699.3, 2699.5, and Wage Order); (7) failure to provide complete and accurate wage statements (Labor Code, §226 et seq.); (8) failure to pay all wages upon separation of employment (Labor Code, §§201-203); (9) IIED; (10) NIED; (11) conversion; (12) violation of Business & Professions Code, §17200 et seq.; and (13) violation of Private Attorney General Act (PAGA, Labor Code, §2698 et seq.).

Plaintiff filed a request for dismissal of the 6th and 11th causes of action, which was entered on July 13, 2018.

REQUESTED RELIEF:

Defendants move for summary on the SAC on the ground that each cause of action fails. Alternatively, Defendants move for summary adjudication as to each cause of action alleged in the SAC, as well as punitive damages.

DISCUSSION:

Battery (1st cause of action)

“The elements of a cause of action for battery are: (1) the defendant touched the plaintiff, or caused the plaintiff to be touched, with the intent to harm or offend the plaintiff; (2) the plaintiff did not consent to the touching; (3) the plaintiff was harmed or offended by the defendant’s conduct; and (4) a reasonable person in the plaintiff’s position would have been offended by the touching.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.)

Defendants argue that Dr. Hovanesian did not twist Plaintiff’s arm and drag her out of the exam room. Dr. Hovanesian testified in his deposition that during the incident, he took Plaintiff’s arm and escorted her out because the elderly patient in the office had been crying. (Fact 17, 22.) He states that he did not intend to hurt or offend Plaintiff and considered her a loved employee. (Fact 17.) He provides evidence that Plaintiff testified that she did not know what Dr. Hovanesian’s intent in touching her may have been. (Fact 17.) Defendants also argue that Plaintiff was not damages because she provides conflicting testimony about her injury since she stated that her forearm was red through the next day and that it was red only for 2 hours, plus she did not seek medical treatment for her arm injury. (Fact 23.)

In opposition, Plaintiff provides her own deposition testimony, wherein she states that Dr. Hovanesian used one hand to grab her arm, twisted it, threw/pushed her causing her to lose her balance, and then walked her out of the room. (Fact 17; Pl.’s Fact 72; Akopian Depo. at 192:5-193:18.) She also states that she did not consent to Dr. Hovanesian touching her in this manner. (Pl.’s Fact 75.) Based on the evidence provided, there is an indication that Dr. Hovanesian intended to touch Plaintiff in order to remove her from the office, away from a distressed patient.

Defendants request in the moving papers that the Court “give credence to Dr. Hovanesian’s version of the facts and find that a reasonable person’s sense of dignity would not be offended by what took place.” (Mot. at p.15.) However, by way of this request, Defendants seek to discount any evidence offered by Plaintiff in dispute—which is her right in opposing a motion for summary judgment and/or summary adjudication. According to Plaintiff, Dr. Hovanesian did not merely escort her out, but he allegedly twisted her arm and pushed her out of the room. As this is a motion for summary judgment and/or summary adjudication, the Court will not “give credence” to one particular party’s set of facts, but will employ the proper rules under CCP §437c.

Thus, considering Plaintiff’s evidence submitted in opposition, the Court finds that Plaintiff has provided evidence and arguments showing that there is a triable issue of material fact with regard to the battery cause of action. (See CCP §437c(b).) There is a triable issue of material fact regarding whether Dr. Hovanesian grabbed Plaintiff and twisted her arm, and his intent to harm her.

Accordingly, the Court will deny the motion as to the first cause of action for battery.

Defendants request that if the Court finds a triable issue of material fact, then the Court should transfer this case to a limited jurisdiction court since her damages are minimal. Such a request needs to be reserved for a motion for reclassification and upon a showing that the amounts sought in the remainder of the causes of action are insufficient to bring this action within the jurisdictional limit of an unlimited case.

Assault (2nd cause of action)

“The elements of a cause of action for assault are: (1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed she was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant’s conduct; (4) the plaintiff was harmed; and (5) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 890.)

Defendants argue that Plaintiff cannot show that Dr. Hovanesian intended to inflict a harmful or offensive contact based on the same reasons as the battery cause of action. (See Fact 17.)

As discussed above, the evidence shows there is a triable issue of material fact regarding whether Dr. Hovanesian intended to and did in fact touch Plaintiff in an offensive manner.

As such, the Court will deny the motion as to the second cause of action for assault.

Constructive discharge in violation of public policy (3rd cause of action)

“Constructive discharge occurs when the employer’s conduct effectively forces an employee to resign.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244.) A constructive discharge is not a tort or a breach of contract, but a doctrine that transforms what is ostensibly a resignation into a firing. (Id. at 1251.) To establish a constructive discharge, an employee must plead and prove, by the preponderance of the evidence, that: “the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled to resign.” (Id.) The requisite knowledge or intent must exist on the part of either the employer or those persons who effectively represent the employer, i.e., its officers, directors, managing agents, or supervisory employees. (Id.)

Intolerable conditions mean conditions giving rise to the resignation are sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job. (Id. at 1246.) In Turner, the Supreme Court recognized that every job has its frustrations and challenges, but that an employee is protected from unreasonably harsh conditions, in excess faced by her coworkers. (Id. at 1247.) “In order to amount to a constructive discharge, adverse working conditions must be unusually ‘aggravated’ or amount to a “continuous pattern” before the situation will be deemed intolerable.[] In general, ‘[s]ingle, trivial, or isolated acts of [misconduct] are insufficient’ to support a constructive discharge claim.” (Id.)

Defendants argue that there is no statute or public policy that prevents an employer from separating and escorting an employee away from an argument with an elderly patient. Defendants provide evidence that Plaintiff was escorted away from an elder patient (Fact 17), and argue that this did not amount to unusually aggravated conduct such that a reasonable employee would have quit. Defendants also provide evidence from Plaintiff’s deposition testimony where she testified that she did not have any complaints during her first three years of working with Defendants. (Fact 31-32.)

In the opposition and the SAC, Plaintiff argues that Dr. Hovanesian’s assault and battery (as well as Defendants’ Labor Code violations) are sufficient to establish a public policy upon which this cause of action is based. Plaintiff relies on her assault and battery claims pursuant to common law and Penal Code, §240 et seq. (which criminalizes assault and battery in California). As discussed above, there is a triable issue of material fact regarding the viability of the assault and battery claims.

In addition, while the October 5, 2016 incident appears to be an isolated incident, Plaintiff argues that this in fact was an unusually aggravated condition. She submits evidence that after the incident, she filed a police report on October 17, 2016, after coming out of her shock to inform the police of what had occurred. (Fact 26; Pl.’s Decl., ¶5, Ex. 1.) Plaintiff also disputes Defendants’ evidence that she had no issues with working at Defendants’ office previously. Plaintiff provides additional pages of her deposition testimony, showing that in her latter two years of working for Defendants, she was unsatisfied with her employment because she would get yelled at and blamed for things she did not do and would get singled out by Dr. Hovanesian during meetings. (Pl.’s Fact 31-32.) She states that following the October 5, 2016 incident, she left Defendants’ office because she no longer felt comfortable, given all that had transpired, and was given no choice but to leave. (Pl.’s Fact 32.)

As such, Plaintiff has raised triable issues of material fact regarding whether this incident constitutes an unusually aggravated condition, and whether her last two years with Defendants amounted to a continuous pattern of adverse working conditions.

Thus, the Court will deny the motion as to the third cause of action for constructive discharge in violation of public policy.

Failure to provide rest periods in violation of Labor Code, §226.7 and Wage Order (4th cause of action)

Labor Code, §226.7 provides that an employer shall not require an employee to work during a meal or rest or recovery period mandated by statute or applicable work order, etc. If an employer’s failure to provide an employee with a meal or rest or recovery period in accordance with state law, the employer shall pay the employee one additional hour of pay at the employer’s regular rate of compensation for each workday that the meal or rest or recovery period is not provided. Ordinarily, an employee may take a 10 minute rest period per 4 hours or major fraction thereof worked. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1028.)

Defendants argues that they did not prevent Plaintiff from taking a rest break. SEC argues that it authorizes employees to take all required meal and rest breaks. (Fact 14.) Defendants provide Plaintiff, Theresa Sarafyan (supervisor), and Anna Arzumanyan’s (SEC employee) testimony, showing that Plaintiff and SEC employees were entitled to meal and rest breaks, they knew they did not need to seek permission to take such breaks, and Plaintiff knew she was entitled to take breaks based on viewing other employees. (Fact 4-6.) Defendants argue that Plaintiff did not request rest breaks, was not prevented from taking them, and did not complain about the rest break policy. (Fact 8-11.)

In opposition, Plaintiff argues that Defendant did not have a written policy regarding rest breaks at the time she was employed. Plaintiff cites to Dr. Hovanesian’s deposition testimony wherein he confirms no written policy existed (until recently), and that the rest break policy at the time Plaintiff was employed would be implemented by way of meetings. (Pl.’s Fact 47.) Plaintiff provides her own deposition testimony, where she testified that she was unaware she could take a 10-minute rest period throughout the day. (Pl.’s Fact 49.) Though she states that no one had told her she could not take a break, no one had informed that she had the right take breaks. She also states that SEC did not provide her or other employees with guidance or rules on its rest break policy, like other companies she had worked for in the past did had informed her. (Pl.’s Fact 51.)

Thus, Plaintiff has raised a triable issue of material fact regarding whether a rest break policy existed and its terms, and whether Plaintiff was given rest break periods in compliance with the law (or otherwise compensated for missed rest breaks).

Defendants also argue that Plaintiff used to work as a receptionist for Alzge Insurance for a year where she took all her meal and rest breaks. They argue that at that time, she knew she did not need to seek permission to take a rest break and thus she understands she can take rest breaks when she wants to. (Fact 15.) The Court notes that Plaintiff’s conduct at a prior employer has no bearing on SEC’s rest break policy (written or unwritten).

Finally, Defendants argue that Plaintiff is only pursuing rest break violation claims because of this incident. However, this is not enough to establish that Plaintiff’s Labor Code violation claim is not viable. The Labor Code does not require the intent of Plaintiff as an element to establish whether a violation of the code occurred.

The Court will deny the motion as to the fourth cause of action.

Failure to pay all wages earned for labor no later than the payday for the next regular payroll period in violation of Labor Code, §204 (5th cause of action); Failure to provide complete and accurate wage statements in violation of Labor Code, §226 et seq. (7th cause of action); and Failure to pay all wages upon separation of employment in violation of Labor Code, §§201-203 (8th cause of action)

Labor Code, §204(b)(1) provides: “Notwithstanding any other provision of this section, all wages earned for labor in excess of the normal work period shall be paid no later than the payday for the next regular payroll period.”

Labor Code, §226(a) requires employers to furnish to his employee, semimonthly or at the time of each payment of wages, an accurate itemized statement of wages in writing showing: “(1) gross wages earned, (2) total hours worked by the employee …, (3) the number of piece-rate units earned and any applicable piece rate if the employee is paid on a piece-rate basis, (4) all deductions, provided that all deductions made on written orders of the employee may be aggregated and shown as one item, (5) net wages earned, (6) the inclusive dates of the period for which the employee is paid, (7) the name of the employee and only the last four digits of his or her social security number or an employee identification number other than a social security number, (8) the name and address of the legal entity that is the employer …, and (9) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee ….”

Labor Code, §201(a) provides that if an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.

Defendants argue that the fifth, seventh, and eighth causes of action fail because they are derivative of the fourth cause of action for rest break violations. Defendants argue that since the rest break claim should fail, these causes of action should fail.

As discussed above, there is a triable issue of material fact regarding the rest break claim. As these causes of action are derivative to the rest break claim, the Court will deny the motion as to the fifth, seventh, and eighth causes of action.

Failure to maintain records in violation of Labor Code, §§558, 1174, 1174.5, 2699, 2699.3, 2699.5, and Wage Order (6th cause of action); and Conversion (11th cause of action)

Plaintiff filed a request for dismissal of the sixth and eleventh causes of action, which was entered on July 13, 2018. As such, the motion is moot as to the sixth and eleventh cause of action.

Intentional infliction of emotional distress (9th cause of action)

The elements of IIED are: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff suffered severe or extreme emotional distress; and (4) the plaintiff’s injuries were actually and proximately caused by the defendant’s outrageous conduct. (Vasquez v. Franklin Mgmt. Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.) A defendant’s conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Kelley v. Conco Cos. (2011) 196 Cal.App.4th 191, 215-16.) The defendant’s conduct must have been intended to inflict injury or engaged in which the realization that injury would occur. (Id.) IIED liability does not extend to “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” (Id.) Severe emotional distress means emotional distress of such substantial or enduring quality or that no reasonable person in civilized society should be expected to endure it. (Kelley, supra, 196 Cal.App.4th at 215-16.)

Defendants argue that Dr. Hovanesian had no desire to inflict emotional distress on Plaintiff. (Fact 17.) In his deposition, Dr. Hovanesian testified that he did not intend to reprimand Plaintiff since she was one of his loved employees, but that his only intention was to address the issue between his patient and Plaintiff. (Fact 17; Hovanesian Depo. at p.76.) Defendants also argue that Plaintiff cannot show she suffered emotional distress since she has not been treated by a medical professional and does not intend to seek such treatment. (Fact 23.) At most, Defendants argue that Plaintiff has testified at her deposition that she has discomfort working with males. (Fact 30.) In further support that Plaintiff has not suffered severe emotional distress, Defendants show that Plaintiff completed her AA degree at Glendale Community College after resigning from SEC and obtained employment at VisionMax. (Fact 27, 28.) This evidence is sufficient for Defendants to uphold their burden in showing that Dr. Hovanesian did not intend to cause her emotional distress, or that Plaintiff did not in fact suffer severe emotional distress.

In opposition, Plaintiff argues she was emotionally injured from Dr. Hovanesian’s actions and her resulting unemployment. She states she could no longer work in an environment with other males and that her job at VisionMax was only female. (Pl.’s Fact 30, 85-86, 90.) She states she feels like Dr. Hovanesian intentionally meant to harm her because there were other ways of reprimanding an employee. (Pl.’s Fact 91.)

Here, Plaintiff has not raised a triable issue of material fact. Though she “feels” like Dr. Havonesian intended to cause her injury, there is no actual evidence supporting the fact that he intended to cause her emotional distress. A further read of Plaintiff’s deposition testimony shows that she states she did not know if Dr. Havonesian intended to harm her and she stated that one would need to ask Dr. Havonesian himself. (See Pl.’s Depo. at pp.265-266.) Thus, she has not effectively disputed this element.

Plaintiff also has not raised a triable issue of material fact regarding damages. She argues she was emotionally harmed and that she is making a claim for back-wages, loss of future earnings, penalties, rest breaks, and emotional distress. While Plaintiff seeks damages for Labor Code violations, Plaintiff has alleged separate causes of action for such damages and penalties. Further, Plaintiff has not shown that she did in fact suffer damages due to severe or extreme emotional distress. Her deposition confirms this, as she states that she has not seen a doctor or taken medication for her emotional injuries, is not making other claims for emotional injuries other than being able to find a better work environment, and is not seeking any monetary compensation for emotional distress. (Pl.’s Depo. at 228:1-10, 235:21-236:25, 253:7-10.)

As such, Plaintiff has not raised a triable issue of material fact regarding this cause of action. Thus, the Court will grant the motion for summary adjudication as to the ninth cause of action.

Negligent Infliction of Emotional Distress (10th cause of action)

NIED is not an independent tort, but is the tort of negligence; thus, the traditional elements of duty, breach of duty, causation, and damages apply. (Spates v. Dameron Hosp. Assn. (2003) 114 Cal.App.4th 208, 213.) NIED is typically analyzed by reference to 2 theories: (1) the bystander theory; and (2) the direct victim theory. (Id.) Under the bystander theory, a duty is owed in a limited class of cases where the plaintiff is: (1) closely related to the injury victim, (2) present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness. (Id.) Under the direct victim theory, a duty is owed directly to the plaintiff that is “assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.” (Id.) The duty owed by an individual can have three alternative origins: “(1) a duty imposed on the defendant by law, (2) a duty assumed by the defendant, or (3) a duty arising out of a preexisting relationship between plaintiff and defendant.” (Benson v. Superior Court (2010) 185 Cal.App.4th 1179, 1187.)

According to the allegations of the complaint, Plaintiff would be a “direct victim” of the incident that occurred.

Defendants do not argue whether they owed Plaintiff a duty of care, but only focus on the element of damages. They rely on the same evidence as above regarding the IIED claim, arguing that Plaintiff has not suffered emotional distress to a degree that no reasonable person should be expected to endure it.

In opposition, Plaintiff argues that Defendants owed her a duty of care because Plaintiff was employed by them. She argues that Dr. Hovanesian breached this duty of care by grabbing her arm, twisting it, and dragging/pushing her out of the examination room on October 5, 2016. (Pl.’s Fact 17, 72-73.) She argues this caused her harm and emotional distress.

However, as discussed above, Plaintiff has not shown what damages she suffered as a result of her generalized claim for “emotional distress.” Again, Plaintiff has not raised a triable issue regarding whether she suffered emotional distress and damages resulting thereto.

As such, the Court will grant the motion for summary adjudication as to tenth cause of action.

Violation of Business & Professions Code, §17200 et seq. (12th cause of action)

The purpose of the UCL is to protect both consumers and competitors by promoting fair competition in commercial markets for goods and services. (Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 986.) Section 17200 defines unfair competition to mean and include “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by [the false advertising law (§ 17500 et seq.)].” (Id.) Since section 17200 is written in the disjunctive, a business act or practice need only meet one of the three criteria, i.e., unlawful, unfair, or fraudulent, to be considered unfair competition under the UCL. (Id.)

Defendants argue that this cause of action also fails because it is predicated on the battery, assault, and Labor Code violation claims. They argue that because these causes of action are without merit, this cause of action too lacks merit.

However, as discussed above, there are triable issues of material fact regarding these causes of action. As such, there is a triable issue of material fact regarding whether Defendants’ alleged battery, assault, and Labor Code violations were unfair and unlawful.

Accordingly, the Court will deny the motion as to the twelfth cause of action.

Violation of Private Attorney General Act (PAGA, Labor Code, §2698 et seq.) (13th cause of action)

Labor Code, §2699 provides that any provision of the Labor Code that provides for a civil penalty to be assessed and collected by the LWDA for a violation of the code, may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of herself and other current or former employees.

Defendants also argue that Plaintiff failed to exhaust administrative requirements of Labor Code, §2699.3 by failing to give proper notice to the LWDA. Section 2699.3 provides that an aggrieved employee or representative shall give written notice by online filing with the LWDA and by certified mail to the employer in violation of the code, including facts and theories to support the allegation.

Defendants argue that Plaintiff’s notice only set forth in a conclusory manner the code sections upon which she intended to seek penalties, but did not give specific facts and/or theories supporting the alleged violations. (Mot., Ex. C.)

A review of Exhibit C reveals that in her letter to the LWDA, Plaintiff listed the Labor Code violation, a statement regarding her employer’s failure to follow the specific code sections, and a brief recitation of the relevant code sections and her intention to seek PAGA civil penalties. This letter to the LWDA provides sufficient notice and basic facts of what claims Plaintiff intended to file against Defendants.

Next, Defendants argue that this cause of action fails because this cause of action is dependent on Plaintiff’s fourth to eighth causes of action for Labor Code violations. As discussed above, there are triable issues of material fact regarding these causes of action and whether Defendants provided rest breaks or compensated Plaintiff properly for missed rest breaks.

Thus, the Court will deny the motion as to the thirteenth cause of action.

Punitive Damages

“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294(a).) “‘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(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(c)(2).) “Despicable conduct” refers to conduct that is “base, vile, or contemptible.” (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 [quotation marks omitted].) “‘Fraud’ means 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(c)(3).)

Defendants argue that Plaintiff lacks clear and convincing evidence of fraud, oppression, or malice to sustain a punitive damages claim because Dr. Hovanesian sought to protect his elderly patient by escorting Plaintiff away from the examination room, and did not intend to harm Plaintiff in the process. (Fact 17, 21.)

In opposition, Plaintiff argues that there is clear and convincing evidence of conduct supporting punitive damages because Dr. Hovanesian’s actions were premeditated, which is evidenced by the fact that he summoned her in the examination room and she was reprimanded in front of the patient. She argues that at most, Dr. Hovanesian’s actions were despicable and carried on with a willful and conscious disregard to her rights sand safety.

Based on the facts and evidence presented by Defendants, they have upheld their burden of providing evidence that Dr. Hovanesian did not act with malice, oppression, or fraud such as to warrant an imposition of punitive damages against it. There is no indication of malice such that Dr. Hovanesian intended to cause Plaintiff injury nor is there a showing of despicable conduct that is base, vile, or contemptible. Furthermore, there are no indications of oppression or fraud by Defendants. While Dr. Hovanesian may have touched Plaintiff’s arm and walked out of the examination office with her, there is no showing that any harm caused was done maliciously in order to cause Plaintiff injury.

In opposition, Plaintiff has failed to raise a triable issue of material fact with respect to the issue of punitive damages. At most, Plaintiff’s evidence amounts to a showing of assault and battery, which might support such claim, but as set forth here does not rise to the level of imposing punitive damages.

As such, the Court will grant the motion for summary adjudication as to the issue of punitive damages.

RULING:

Deem the motion for summary judgment and/or summary adjudication moot as to the 6th and 11th cause of action because Plaintiff dismissed these causes of action on July 13, 2018.

Deny the motion for summary judgment and/or summary adjudication as to the first, second, third, fourth, fifth, seventh, eighth, twelfth, and thirteenth causes of action.

Grant the motion for summary adjudication as to the ninth (IIED and tenth (NIED) causes of action, and the issue of punitive damages.