2017-00220165-CU-PO

Stephanie Hawthorne vs. John Robert Fox

Nature of Proceeding: Motion to Strike

Filed By: Covarrubias, Mariel

Defendant Massage Envy Franchising, LLC’s (“MEF”) Motion to Strike Improper Allegations Contained in Plaintiff’s Complaint is DENIED.

MEF seeks to strike portions of the Complaint pertaining to punitive damages on the grounds that Plaintiff offers nothing beyond conclusory, boilerplate allegations.

A court tests the adequacy of a punitive damages allegation by way of a motion to strike. (Grieves v. Superior Court (1984) 157 Cal. App. 3d 159, 164.) Under Code of Civil Procedure section 435, a defendant, within the time to respond to a complaint, may file a motion to strike the whole or any part of the pleading. (Code Civ. Proc. § 435, subd. (b)(1).) Under section 436, the court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading” as well as “all or part of any pleading not drawn or filed in conformity with the laws of this state. (Code Civ. Proc. § 436, subds. (a) and (b).)

Civil Code section 3294(a)-(b) provides that an employer shall not be liable for exemplary/punitive damages 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,” and the advance knowledge/ratification was “on the part of an officer, director, or managing agent of the corporation.”

The Court finds the Complaint includes factual allegations sufficient for punitive damages purposes against MEF. Plaintiff has alleged MEF employed defendant Fox even though it “had actual knowledge of Defendant John Robert Fox’s malicious and despicable propensities to touch, feel, sexually assault, grope, harass, and/or rape women, including but not limited to female massage customers.” (Complaint at ¶¶ 13-15, 20.) Plaintiff alleges MEF “recklessly disregarded the probability of causing severe emotional distress to Plaintiff which resulted from taking no steps to prevent JOHN ROBERT FOX from sexually harassing Plaintiff or engaging in unwanted, harmful, and offensive sexual contact with Plaintiff. Defendants MASSAGE ENVY FRANCHISING, LLC, and R & S BARNES ENTERPRISES, INC. in fact took no measures to prevent JOHN ROBERT FOX from engaging in unwanted, harmful, and offensive sexual contact with Plaintiff.” (Complaint at ¶ 20.)

The Court does not agree that these allegations are insufficiently boilerplate or conclusory. Further, pursuant to section 3294, there are two ways MEF may allege facts in support of punitive damages, and they have satisfied the first. The foregoing allegations sufficiently allege MEF had advance knowledge of Mr. Fox’s unfitness, yet employed him with a reckless disregard for the safety of others. MEF need not also allege the conduct was ratified by an officer, director, or managing agent of MEF.

MEF’s motion to strike is DENIED.