Case Number: BC659458 Hearing Date: January 12, 2018 Dept: 31

Defendant FPI Management, Inc.’s Motion to Strike Portions of Plaintiff’s First Amended Complaint is DENIED in its entirety. Defendant has ten days to answer the SAC.

Defendant FPI requests the court take judicial notice of Plaintiff’s First Amended Complaint, Plaintiff’s opposition to FPI’s motion to strike portions of the FAC, the court’s order on FPI’s motion to strike, and the operative SAC. As to the court documents at issue, the request is GRANTED as to the operative SAC only. (RJN Ex. D.) (Evid. Code § 452(d).) The remaining documents filed in this action are irrelevant to whether the SAC is properly subject to a motion to strike. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 n.2 (“any matter to be judicially noticed must be relevant to a material issue.”).)

Defendant FPI improperly requests the court take judicial notice of the fact that it “manages properties in multiple states” and “manages hundreds of properties in California.” Neither of these facts are the proper subject of judicial notice. (Evid. Code §§ 451 452.) The request is DENIED as to Exhibit E.

Defendant FPI moves the court to strike Plaintiff’s allegations in the SAC relating to punitive damages and all references to overtime.

Punitive Damages

To support punitive damages, the complaint asserting one of those causes of action must allege ultimate facts of the defendant’s oppression, fraud, or malice.” (Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316-17.) For example, the complaint in Brousseau v. Jarrett, which the court held was “a patently insufficient statement of ‘oppression, fraud, or malice, express or implied’”, as it stated:

Defendant engaged in the conduct described in the second count ‘intentionally, wilfully, fraudulently, and with a wanton, reckless disregard for the possible injuries [sic] consequences … and as a result of … said intentional, wilful, wanton, reckless, oppressive, and fraudulent conduct, plaintiff is entitled to exemplary damages. . . .

((1977) 73 Cal.App.3d 864, 869 & 872.)

“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.) “Despicable conduct’ is conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.” (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 331.) “Pleading in the language of the statute is not objectionable when sufficient facts are alleged to support the allegation.” (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6-7.)

FPI contends that SAC fails to allege facts sufficient to establish malice, fraud, or oppression within the meaning of Civil Code § 3294 and failed to allege facts sufficient to impose punitive damages against a corporate employer.

The SAC alleges Plaintiff was hired by Defendant Security Specialists (SAC ¶ 14), and Defendant FPI “managed” the property. (SAC ¶ 16.) Defendant FPI allegedly “supervised and directed a substantial amount of Plaintiff’s duties.” (Ibid.). On May 12, 2016, the SAC alleges Plaintiff was called into a meeting with the management of both Security Specialists and FPI. (SAC ¶¶ 22-23.) The managers, including Rosie and Marcelo on behalf of FPI, allegedly “interrogated Plaintiff on his knowledge of asbestos issues and related complaints on the 2901 East Olympic Boulevard property and ordered him to name all employees with knowledge of said issues.” (SAC ¶ 24.) Plaintiff alleges this interrogation was “hostile” and constituted “harassment.” (Ibid.) Management from FPI “told Plaintiff that they needed all names of people who knew about the asbestos issue and directly threatened to terminate Plaintiff if he did not disclose said names.” (Ibid.) Plaintiff alleges he refused to help Defendants cover up the workplace safety issues. (SAC ¶ 26.) Defendants ordered Plaintiff “to return to the office and was informed that he was removed from the property because of his knowledge of the asbestos issue and was terminated.” (SAC ¶ 27.) The SAC also alleges “[t]hroughout Plaintiff’s employment, Defendants required him to work through his meal time and rest periods,” which included “defendant FPI’s management persistently interrupting and forcing him to cut short and work through his mealtime and rest periods.” (SAC ¶ 30.)

“An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless 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.” (Civ. Code § 3294(b).) “Civil Code section 3294, subdivision (b) sets forth the circumstances under which an employer may be held liable for punitive damages based upon acts of an employee. They include the employer’s (1) advance knowledge of the employee’s unfitness; (2) authorization or ratification of the wrongful conduct; and (3) personal culpability. Moreover, a corporate employer may be liable only if the knowledge, authorization, ratification or act was on the part of an officer, director or managing agent of the corporation.” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 167.) The conduct identified above as sufficient to establish malice is specifically attributed to FPI’s management. (SAC ¶¶ 20-30.)

“[T]he Legislature intended the term “managing agent” to include only those corporate employees who exercise substantial independent authority and judgment in their corporate decisionmaking so that their decisions ultimately determine corporate policy. The scope of a corporate employee’s discretion and authority under our test is therefore a question of fact for decision on a case-by-case basis.” (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 566–67.) The SAC now identifies the managing agents who participated in the conduct alleged on behalf of Defendant FPI, Rosie and Marcelo, last names unknown, and alleges facts which, if proven, would establish them as managing agents under the statute. (SAC ¶ 5. See White, supra at 575.) FPI’s contention that these individuals were not managing agents is a factual argument properly raised in a motion for summary judgment or at trial. The court finds the SAC adequately alleges facts supporting the imposition of punitive damages upon Defendant FPI. The motion to strike is DENIED as to Item Nos. 1 and 2 listed in the Notice of Motion.

References to Overtime

Defendant once again seeks to strike all references in the SAC that Plaintiff worked “overtime.” However, the SAC specifically alleges Plaintiff worked more than eight hours a day and more than 40 hours a week and was not properly compensated for additional hours worked. (SAC ¶¶ 29-30.) Defendant’s reliance on a non-binding federal authority to contend further specificity is needed is unpersuasive. “The rules of pleading require, with limited exceptions not applicable here, only general allegations of ultimate fact. The plaintiff need not plead evidentiary facts supporting the allegation of ultimate fact. A pleading is adequate so long as it apprises the defendant of the factual basis for the plaintiff’s claim.” (McKell v. Washington Mut., Inc. (2006) 142 Cal.App.4th 1457, 1469–70 (internal citations omitted).) The SAC sufficiently alleges Defendant’s failure to compensate Plaintiff for overtime hours worked. The motion is DENIED as to Item Nos. 3-9 in the Notice of Motion.

Defendant has 10 days to answer the SAC.

Plaintiff is ordered to give notice.