Case Number: BC694330 Hearing Date: May 23, 2018 Dept: 61

Defendants Phillips Graduate University and James Lott’s Demurrer to Plaintiff Veronica Everett-Boyce’s Complaint is SUSTAINED, with leave to amend, as to the First, Second, Third, Fifth, Sixth, Eighth, and Ninth Causes of Action. The Demurrer is SUSTAINED with 20 days leave to amend as to the Fourth Cause of Action for all defamatory statements other than the April 5, 2017 email regarding implications as to Plaintiff’s honesty, and OVERRULED as to that email. The Demurrer is also OVERRULED as to Plaintiff’s Seventh Cause of Action for NIED.

Defendants Phillips Graduate University and James Lott’s Motion to Strike Portions of Plaintiff Veronica Everett-Boyce’s Complaint is DENIED as to the prayer for punitive damages and accompanying allegations of malice, oppression, and fraud, and GRANTED, with leave to amend, as to the request for attorney’s fees.

DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) A court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 (“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”))

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

1. TITLE IX — FIRST CAUSE OF ACTION

Defendants argue that Plaintiff cannot maintain her First Cause of Action under Title IX because she has not alleged facts constituting actionable quid-pro-quo sexual discrimination, sexual harassment, or retaliation. (Demurrer at p. 6.) Defendants likewise argue that there are no allegations that PGU was on notice of the alleged conduct. (Demurrer at pp. 8–9.)

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .” (20 U.S.C. § 1681, subd. (a).) A private right of action under Title IX is allowed against an educational institution in receipt of federal funds if the institution acts with “deliberate indifference” to the prohibited conduct. (Gebser v. Lago Vista Independent School Dist. (425 U.S. 274, 290.)

“[A] quid pro quo sexual harassment claim under Title IX requires proof of three elements: (1) the rejection of sexual advances; (2) a tangible school-related (as opposed to employment) consequence; and (3) a causal connection between the two.” (Papelino v. Albany College of Pharmacy of Union University (2d Cir. 2011) 633 F.3d 81, 89.) “In the education context, a tangible consequence occurs when some benefit or adverse action, such as a change in a grade, is made to depend upon providing sexual favors to someone in authority.” (Ibid.)

Conversely, a claim for Title IX discrimination via a hostile educational environment must establish sexual harassment “that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” (Davis Next Friend LaShonda D. v. Monroe County Bd. of Educ. (1999) 526 U.S. 629, 649.)

As an initial matter, the court notes that most of the allegations concerning Lott’s alleged harassment indicate that the conduct took place in open email chains, often in which a senior PGU official was copied or actively participating. (Complaint ¶¶ 27–28.) The Complaint also alleges that PGU delayed the grievance procedure until after Plaintiff graduated, did not follow grievance policy, and ultimately dismissed Plaintiff’s claims. (Complaint ¶¶ 40–41.) Accordingly, the court cannot dismiss Plaintiff’s claims on the grounds that no deliberate indifference was shown — if in fact the conduct alleged on the part of Lott amounted to quid pro quo harassment or created a hostile educational environment.

The court concludes that Plaintiff has not alleged any quid-pro-quo harassment claim, for two reasons. First, Plaintiff has not alleged that she rejected any sexual advances from Lott; only that she turned down a request that she and another student attend brunch, and offered to act as her chair after her former advisor left PGU. (Papelino, supra, 633 F.3d at p. 89.) Although the Complaint alleges that these offers were motivated by Lott’s ambivalent sexism, it is unclear how the covert motivation for these acts, absent circumstances indicating something more is requested, could transform them into requests for sexual favors. Second, even construing these events as sexual advances for the purposes of this Demurrer, Plaintiff must also allege “some benefit or adverse action, such as a change in a grade, is made to depend upon providing sexual favors to someone in authority.” (Ibid.) Here, it is not alleged that Lott’s emails after Plaintiff’s rejection of his brunch invitation and offer to be her chair had any tangible effect on the opportunities or benefits provided by the school, other than the opportunity to be free from Lott’s comments; Plaintiff completed her portfolio and graduated, and she does not allege any material interference in these processes on the part of Lott.

The court likewise concludes that Plaintiff does not allege severe and pervasive conduct sufficient to state a hostile environment claim. The allegations of the Complaint reveal that (1) Lott invited Plaintiff and another student to brunch, and they declined; (2) that Lott informed Plaintiff that her chair would be departing PGU before it was announced, and offered to act as her chair; (3) that Lott implied that Plaintiff may have lied to Sobel about getting permission for her to “hood” Plaintiff at commencement; (4) that Lott openly criticized Plaintiff’s drafted commencement address; and (5) that Lott explained the above to students after Plaintiff filed her grievance, and asked them to intervene by writing letters to the administration on his behalf. Although the court does not doubt that these circumstances would be obnoxious and aggravating for anyone in Plaintiff’s position, these allegations do not rise to the level of what is actionable harassment under Title IX. The personnel sniping that is alleged here rather conforms to the sadly normal standards for workplace politics in academia.

Numerous federal courts have rejected Title IX harassment claims in circumstances far more egregious than alleged here. (See Hendrichsen v. Ball State University (7th Cir. 2004) 107 Fed.Appx. 680 [holding insufficient severe or pervasive conduct where professor acted in an obsessive manner, singled student out for attention, sent notes and flowers, and on some occasions lurked outside apartment]; R.S. v. Board of Educ. Of Hastings-On-Hudson Union Free School Dist. (2d Cir. 2010) 371 Fed.Appx. 231 [sexual emails from student to student not actionable Title IX harassment]; Keskinidis v. University of Massachusetts Boston (D. Mass. 2014) 76 F.Supp.3d 254 [professor did not commit severe or pervasive sexual harassment when, during one counseling session, he repeatedly implied via innuendo and gesture that student could improve her grade with sexual favors]; Klemencic v. Ohio State University (E.D. Ohio 1998) 10 F.Supp.2d 911 [holding that coach’s two requests that student athlete go out with him were not severe or pervasive].)

By contrast, the cases cited by Plaintiff in support of her claims are not similar, and in fact all involved circumstances bordering on or constituting sexual battery. (Opposition at p. 2; See, e.g., T.Z. v. City of New York (E.D.N.Y. 2009) 634 F.Supp.2d 263, 272 [plaintiff’s alleged conduct constituted “a serious sexual assault that qualifies as a class D felony under New York law”].) Although that sort of conduct is not strictly necessary to allege a Title IX claim, those cases do little to support Plaintiff’s claims here, in which no physical conduct or overtly sexual conduct of any kind is alleged.

The Demurrer to the First Cause of Action for Violations of Title IX is therefore SUSTAINED, with leave to amend.

2. UNRUH CIVIL RIGHTS ACT — SECOND CAUSE OF ACTION

Defendants challenge Plaintiff’s Second and Third Causes of Action under the Unruh Civil Rights Act and Civil Code § 51.9 largely for the same reasons as her Title IX claim: the conduct she alleges constitutes neither a denial of any benefit on account of her sex, nor sexual harassment. (Demurrer at pp. 9–11.)

The Unruh Civil Rights Act provides that “[a]ll persons within the jurisdiction of this state . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever,” regardless of “their sex,” among other characteristics. (Civ. Code § 51, subd. (b).) Civil Code § 51.9 prohibits sexual harassment in the context of “a business, service, or professional relationship between the plaintiff and defendant,” and includes relationships like that of “administrator,” “teacher,” or those “substantially similar to these or other named professionals. (Civ. Code § 51.9 subd. (a)(1)(C), (E), (F).) The statute defines harassment where “[t]he defendant has made sexual advances, solicitations, sexual requests, demands for sexual compliance by the plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual nature or of a hostile nature based on gender, that were unwelcome and pervasive or severe.” (Civ. Code § 51.9, subd. (a)(2).)

The court agrees once more with Defendants that Plaintiff has not alleged any deprivation of an advantage, facility, privilege, or service on the part of PGU, other than the privilege of not being subject to Lott’s alleged harassment. Because harassment under Civil Code § 51.9 must be “pervasive or severe,” as under Title IX, the same ruling applies to Plaintiff’s claim under this statute as under her First Cause of Action.

The Demurrer is therefore SUSTAINED as to the Second and Third Causes of Action, with leave to amend.

3. DEFAMATION — FOURTH CAUSE OF ACTION

Defendants argue that Plaintiff cannot sustain a cause of action for defamation because the alleged defamatory statements were not actionable statements of fact, or were only defamatory by implication or innuendo, and special damages must be pleaded. (Demurrer at pp. 11–16.)

“The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” (Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1369.)

“A publication which is reasonably susceptible of a defamatory meaning on its face is actionable without proof of special damages.” (Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1441.) “A statement is not libelous on its face if “the defamatory meaning would appear only to readers who might be able to recognize it through some knowledge of specific facts and/or circumstances, not discernible from the face of the publication, and which are not matters of common knowledge rationally attributable to all reasonable persons.” (Id. at p. 1442.)

Although statements of fact may be actionable as libel, statements of opinion are constitutionally protected. That does not mean that statements of opinion enjoy blanket protection. On the contrary, where an expression of opinion implies a false assertion of fact, the opinion can constitute actionable defamation. The crucial question of whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court. Only once the court has determined that a statement is reasonably susceptible to such a defamatory interpretation does it become a question for the trier of fact whether or not it was so understood. The question is whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.

(Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 695–96, internal quotation marks and citations omitted.)

The statements alleged by Plaintiff to be defamatory are as follows:

Statements published by email on April 5, 2017, when Lott stated that Professor Sobel “may have been misled by [Plaintiff], which, if true, is most disappointing.” (Complaint ¶ 27); that he was “both saddened and chagrined by the unnecessary Machiavellian methods [of Plaintiff] to achieve this outcome.” (Complaint ¶ 27); that “a lie was told by either you [Sobel] or [Plaintiff] to achieve a specific goal,” and that he “chose to believe [Kaucher] is telling the truth,” which meant “that either you [Sobel] or [Plaintiff] is not telling the truth.” (Complaint ¶ 28.)

The following statement published by email on April 19, 2017, from Lott to Plaintiff and Kaucher regarding Plaintiff’s draft of her address: “I don’t know how this got by me, but I never discussed with you nor reviewed your [plaintiffs] draft commencement speech. This is a role that all department chairs are responsible for regarding this exercise. (I assume you did not see the attached memo.) No matter, though, as I have received a copy of your draft, and you need to make corrections that are in line with the attached rubric, which are: (1) to comply with the maximum length requirement and (2) to ‘represent the experience of your entire cohort, do not make it just about you….’ Regarding the former, you run overtime. Regarding the latter, you are the center piece [sic] of what you have written, and that is not acceptable.” (Complaint ¶ 30.)

Statements published by email to Plaintiff’s cohorts on April 21, 2017, when Lott stated: he had not “received and signed off on a draft speech” per the attached guidelines; he had “asked [Plaintiff] to get a new draft to [him] ASAP, as the draft that found its way to [him] was out of compliance with this guidance”; that he “looked forward to receiving a revised draft directly from [Plaintiff] soon” but “just wanted to keep you all in the status loop”; that “we have plenty of time — two weeks — to get a two-minute address crafted, reviewed and approved in time for delivery at commencement”; and that “even so, you may want to reach out to [Plaintiff] to see how you may assist her with this task,” although “it may already be too late to get this in our commencement program that will be sent out to print momentarily.” (Complaint ¶ 31.)

Statements published in an email from Lott to Plaintiff and copied to other PGU staff on April 21, 2017, stating that Plaintiff’s revised address was a “tremendous improvement” but that “about half her speec” still “centered on her,” and that Plaintiff needed to “show true humility” and that her classmates ‘did not give [her] this moment to talk about yourself or to talk about them as they relate to you . . . what they experienced in your orbit.” (Complaint ¶ 33.)

Lott’s email of April 22, 2017, to the recipients of Plaintiff’s April 21, 2017 grievance to the effect that he felt his relationship with Plaintiff went “beyond the role of teacher to be her mentor, big brother or father, even in the manner in which [he] counseled her.” (Complaint ¶ 36.)

Unknown defamatory statements made on May 6, 2017. (Complaint ¶ 95.0

The court agrees with Defendants that all of Lott’s communications concerning the quality of Plaintiff’s commencement address, concerning his mentorship of Plaintiff, and the unspecified remarks of May 6, 2017, do not constitute actionable statements of fact for the purposes of a defamation claim. First, Plaintiff cannot pursue a claim for defamation if she does not plead the substance of the defamatory publication. (5 Witkin, Cal. Proc. 5th Plead § 739 [Pleading Exact Words of Other Matter] (2008).) Thus the alleged statements of May 6, 2017, the substance of which are not pleaded, are not actionable until the substance is provided.

Second, the court finds that all alleged statements regarding early drafts of Plaintiff’s commencement address are non-actionable statements of opinion. Whether Plaintiff’s commencement address was overlong or too focused on herself falls within the realm of subjective criticism which educators and editors are ordinarily expected to provide regarding papers submitted to them. The opinions proffered on Plaintiff’s address, in correspondence with relevant guidelines and rubrics, are not reasonably susceptible to implications regarding Plaintiff’s overall competence or intelligence. Similar comments in the context of employee evaluations have been held to be non-actionable. (See Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958, 971 [finding no defamation in “a difference of opinion between an employer and an employee about the quality of the employee’s work”].) Here, the distance between the opinions expressed and any factual implication regarding Plaintiff’s overall competence was even greater, as Plaintiff has expressed no hope of making a profession of drafting commencement addresses.

The court likewise does not see how Lott’s statement regarding his father-like mentorship of Plaintiff can be regarded as defamatory, or as a statement of fact.

However, the court agrees that Lott’s emails regarding Plaintiff’s actions to obtain Sobel as her chair might constitute defamation. Statements regarding Plaintiff’s “Machiavellian” actions, interpreted in the context of other statements that either she or Sobel were lying, are reasonably interpreted as statements of fact regarding Plaintiff’s honesty. (See Carver v. Bonds (2005) 135 Cal.App.4th 328, 346 [“Calling someone a liar can convey a factual imputation of specific dishonest conduct capable of being proved false.”].)

It has been held that “each publication of a defamatory statement gives rise to a new cause of action for defamation.” (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1242.) The court may therefore sustain or overrule the demurer as to each defamatory statement alleged. (Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119 [“A demurrer must dispose of an entire cause of action to be sustained.”.)

As such The Demurrer is therefore SUSTAINED, with leave to amend, to all of Lott’s comments other than those regarding Plaintiff’s honesty in attempting to make Sobel her chair. The Demurrer is OVERRULED as to the emails of April 5, 2017, regarding Plaintiff’s means of obtaining a new person to “hood” her at commencement.

4. INVASION OF PRIVACY — FIFTH CAUSE OF ACTION

Defendants demurrer to Plaintiff’s Fifth Cause of Action for Invasion of Privacy, which in substance appears to amount to a claim for public disclosure of private facts. (Complaint ¶¶ 105–106; Opposition at pp. 9–10.)

The elements of public disclosure of private facts are “(1) public disclosure, (2) of a private fact, (3) which would be offensive and objectionable to the reasonable person, and (4) which is not of legitimate public concern.” (Taus v. Loftus (2007) 40 Cal.4th 683, 717.) “A court determining the existence of “offensiveness” would consider the degree of intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder’s motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded.” (Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1483–84.)

The court agrees with Defendants’ argument that none of the disclosures alleged by Plaintiff were “offensive” or concerned “private facts.” The emails concerning who Plaintiff wished to “hood” her at commencement concerned no matters but those that were open and relevant to all the participants concerned. Nor were any emails concerning Plaintiff’s progress on the commencement address private or offensive, as the quality and completion of a commencement address that Plaintiff had been elected to give concerned no private matter. (Complaint ¶ 26.) The letter in which Lott described his mentorship relation with Plaintiff was sent only to recipients of Plaintiff’s grievance and concerned the substance of that grievance, and as such was not a disclosure of anything private under the circumstances. Finally, the alleged statements made by Lott to his class on May 6, 2017, are not sufficiently definite in character to support a claim for public disclosure of private facts. Plaintiff may be granted leave to amend to flesh out what she claims was discussed on that occasion.

Defendants’ Demurrer to the Fifth Cause of Action is SUSTAINED, with leave to amend as described above.

5. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS — SIXTH CAUSE OF ACTION

Defendants argue that Plaintiff has not pleaded outrageous conduct sufficient to maintain a claim for intentional infliction of emotional distress (“IIED”). (Demurrer at pp. 19–20.)

“‘The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by *229 the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Miller v. Fortune Commercial Corporation (2017) 15 Cal.App.5th 214, 228–29, internal citations and alterations omitted.)

The court agrees with Defendants that Plaintiffs have not alleged any outrageous conduct, for the same reasons she has not alleged any harassment, discrimination, or invasion of privacy. The statements plausibly constituting defamation are not sufficiently outrageous to state a claim for IIED.

The Demurrer to the Sixth Cause of Action for IIED is therefore SUSTAINED, with leave to amend.

6. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS — SEVENTH CAUSE OF ACTION

Defendants demurrer to the negligent infliction of emotional distress (“NIED”) claim on the grounds that it is not an independent cause of action. (Demurrer at p. 21.) The claim alleged in the Complaint however is properly construed as a negligence claim, with emotional distress as the damages. (Complaint ¶¶ 122–27.) This is how one is supposed to plead an NIED claim. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072 [“We have repeatedly recognized that the negligent causing of emotional distress is not an independent tort, but the tort of negligence.”].) Defendants have made no arguments as to the sufficiency of the elements of negligence which Plaintiff has pleaded here.

The Demurrer to the Seventh Cause of Action for NIED is therefore OVERRULED.

7. NEGLIGENT HIRING — EIGHTH CAUSE OF ACTION

Defendants argue that the Eighth Cause of Action for Negligent Hiring must be dismissed because no factual basis is alleged such that PGU ought to have been on notice of a particular risk or hazard with a particular employee. (Demurrer at p. 21, citing Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054 [“Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.”].) The court agrees that in the Complaint as presently stated alleges no facts such that PGU ought to have been on notice of any unfitness on the part of Lott or Kaucher.

The Demurrer to the Eighth Cause of Action is therefore SUSTAINED with leave to amend.

8. TORT OF ANOTHER — NINTH CAUSE OF ACTION

Defendants argue that Plaintiff cannot assert a claim for attorney’s fees under the “tort of another” doctrine. (Demurrer at pp. 21–22.)

“Ordinarily, pursuant to the American rule, a party must pay for its own attorney fees unless a contract or statute provides authority for recovery of attorney fees from a litigation opponent. The tort of another doctrine holds that a person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney’s fees, and other expenditures thereby suffered or incurred. The tort of another doctrine is not really an exception to the American rule, but simply an application of the usual measure of tort damages.” (Mega RV Corporation v. HWH Corporation (2014) 225 Cal.App.4th 1318, 1337, internal citations and quotation marks omitted.)

The tort of another doctrine does not apply here. Plaintiff sues PGU and Lott as joint tortfeasors, effectively for the same conduct and the same transactions. The tort of another doctrine applies in different circumstances, such as “[w]hen a paid escrow holder has . . . negligently made it necessary for the vendor of land to file a quiet title action against a third person.” (Prentice v. north Am. Title Guaranty Corp., Alameda Division (1963) 59 Cal.2d 618, 621.) That is not the situation presented here.

The Demurrer to the Ninth Cause of Action is SUSTAINED, without leave to amend.

MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court Rule 3.1322.)

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and strike out all 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. (Code Civ. Proc., § 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

Defendants move to strike the prayer for punitive damages. (Motion at p. 17)

Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code § 3294.) The terms are defined as:

“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.

“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.

Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be recovered in an action for negligence or other nonintentional torts if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court (1994) 8 Cal.4th 794, 713 (“College Hospital”).)

The court has overruled Defendants’ challenge to at least one of Plaintiff’s defamation claims, related to Plaintiff being implicitly labeled a liar. The Complaint alleges that Lott failed to use reasonable care and was reckless as to the truth or falsity of the statement. (Complaint ¶ 97.) Kaucher, PGU’s provost, was privy to this communication. The court therefore finds that Plaintiff has adequately alleged a claim for punitive damages based on malicious conduct and corporate ratification. The Motion to Strike is DENIED as to the prayer for punitive damages.

Defendants also move to strike Boyd’s request for attorney’s fees, on the grounds that her claims under Title IX, the Unruh Civil Rights Act, and Civil Code § 51.9 and 52, which might provide a basis for fees, are defective. (Motion at pp. 19–26.)

Each party to litigation must generally bear their own attorney’s fees, “except as attorney’s fees are specifically provided for by statute.” (Code Civ. Proc. § 1021.) The only argument offered as to attorney’s fees by Plaintiff is that her claims under Title IX, the Unruh Civil Rights Act, and Civil Code § 51.9 and 52 are valid. (Opposition at p. 5.) As the court has found these claims to be insufficiently pleaded, the Motion to Strike Plaintiff’s request for attorney’s fees is GRANTED, with leave to amend.