Case Number: BC546582    Hearing Date: January 05, 2015    Dept: 37

TENTATIVE RULING

The demurrer of defendant Landon Summey (“Summey”) to the 1st, 2nd, 3rd and 4th causes of action as asserted by plaintiff Megan Wallace (“Wallace”) is SUSTAINED with 20 days leave to amend.

The accompanying motion to strike punitive damages is GRANTED with 20 days leave to amend.

Counsel for moving defendant to give notice.

INTRODUCTION

This action arises out of alleged child sexual abuse perpetrated by defendant minor J.S. (the 13 year old biological son of defendant Michelle Chaisson and moving defendant Summey) against plaintiff H.C. (the 9 year old biological son of plaintiff Megan Wallace and defendant James Chaisson). Plaintiff has brought the action on her own behalf and on behalf of her minor son. Subsequent to the filling of the action, Wallace was appointed as guardian ad litem for her minor son.

Plaintiffs allege that H.C. was residing with his biological father James Chaisson and his wife Michelle Chaisson. On April 2 or 3, 2014, Michelle Chaisson made a report of child sexual abuse to the Los Angeles County DCFS as having been perpetrated by J.S. upon H.C. Upon further investigation, it was determined that J.S. had committed lewd acts upon H.C. on multiple occasions during 2014 and possibly earlier, which are described in the allegations of the complaint, on multiple occasions during 2014 and possibly earlier. Plaintiffs allege that J.S. had at least one prior allegation of sexual molestation made against him, but J.S. and H.C. were allowed to be left unsupervised and unattended at the Chaisson home.

Defendant Landon Summey’s demurrer is directed at all four causes of action as asserted by Megan Wallace individually. Summey also moves to strike the allegations and prayers for punitive damages. The basis of the demurrer is that plaintiff Wallace has not alleged any facts to support damages on her own behalf. The basis of the motion to strike is that the complaint fails to allege facts showing that he personally engaged in conduct that would subject him to punitive damages and the limitation of Civil Code § 1714.1 which sets forth the circumstances under which a parent may be vicariously liable for the actions of a minor child. Plaintiffs filed an opposition to the demurrer and motion to strike and sought leave to amend in the event the demurrer was sustained and the motion to strike granted.

For the reason set forth below, the demurrer is sustained and the motion to strike granted, in each case with 20 days leave to amend.

In addition, there is an issue as to the legal representation of the plaintiff minor. Plaintiff Wallace, who is not an attorney and filed the action in propria, cannot represent the Plaintiff minor. As noted in Judge Deirdre Hill’s minute order of November 4, 2104, the Plaintiff was directed to have a substitution of counsel on file by January 2, 2015. Counsel has submitted an opposition, but it appears that a substitution of attorney has not yet been filed. In light of the opposition, the court assumes that counsel will shortly file a substitution. This matter will be addressed at the hearing.

ANALYSIS

DEMURRER

Status of Legal Representation for the Minor

Plaintiff Megan Wallace initially filed the complaint in this action in propria persona on behalf of herself individually and her minor son, H.C. Shortly before Summey’s demurrer and motion to strike were filed, Wallace submitted an application and order for appointment of guardian ad litem, which was approved by Commissioner Robert Harrison on August 7, 2014. Also, on August 4, 2014, a Notice of Limited Scope Representation was filed by attorney Debra J. Burdette of the Law Offices of Debra J. Burdette. The notice provides that Ms. Burdette would be representing WALLACE for appointment as guardian ad litem only, “No Court Appearances.” Under California law, a non-lawyer appointed as guardian ad litem cannot represent a minor in propria persona. (J.W. v. Superior Court (1993) 17 Cal.App.4th 958.) However, as noted above, counsel has filed oppositions to the pending matters, and if not filed by the hearing, the court will discuss the status of the substitution of counsel at the hearing.

No Factual Allegations of Harm/Damage to Plaintiff Megan Wallace

As argued in the demurrer, each of the causes of action alleged in the complaint requires an essential element of damage. However, no facts are alleged showing that Wallace personally sustained any injury compensable pursuant to the causes of action asserted (as opposed to her son, H.C.).

Therefore, for Wallace to properly allege claims on her own behalf she must allege that she personally sustained an injury, which she has not done in the complaint. Accordingly, Summey’s demurrer to the 1st, 2nd, 3rd and 4th causes of action as brought by Wallace on her own behalf is SUSTAINED with 20 days leave to amend.

MOTION TO STRIKE

Civil Code section 3294 authorizes the recovery of punitive damages in non-contract cases “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice ….” “‘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.” “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Finally, “‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the party of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civil Code §3294.)

Punitive damages are appropriate if the defendant’s acts are reprehensible, fraudulent or in blatant violation of law or policy. (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017.)

In this case, as argued in Summey’s motion to strike, the allegations in the complaint are insufficient to demonstrate that he personally engaged in any malicious, oppressive or fraudulent conduct. The only allegations are that Summey is J.S.’s biological father and, therefore, he is vicariously liable for the tortious acts of J.S. This is not sufficient to allege entitlement to punitive damages against Summey.

Moreover, as argued by Summey, Civil Code section 1714.1 sets forth the statutory basis for imposition of liability against parents and guardians for the willful misconduct of a minor child. First, liability is only imputed to a “parent or guardian having custody and control” of the minor. (Civil Code §1714.1, subd. (a).) The allegations in the complaint are that J.S. resided with defendants James and Michelle Chaisson. There is no allegation that Summey had custody and control of J.S. Second, joint and several liability of the parent is limited to $25,000 and “further limited to medical, dental and hospital expenses incurred by the injured person, not to exceed twenty-five thousand dollars ($25,000).” There is no indication in the complaint that the damages or injuries sustained by H.C. are so limited.

Therefore, the motion to strike the allegations and prayer for punitive damages is GRANTED with 20 days leave to amend.