Case Number: BC720455 Hearing Date: November 27, 2018 Dept: 3

SET HAYRAPETIAN,

Plaintiff(s),

vs.

HENRY MAYO NEWHALL HOSPITAL, et al.,

Defendant(s).

Case No.: BC720455

[TENTATIVE] ORDER GRANTING THE MOTION TO STRIKE

Dept. 3

1:30 p.m.

November 27, 2018

The Motion to Strike Portions of the Complaint as to punitive damages is GRANTED with twenty days’ leave to amend.

I. Background Facts

On September 4, 2018, plaintiff Set Hayrapetian (“Plaintiff”) filed the instant Complaint against defendants Henry Mayo Newhall Hospital (“Defendant”), G4S Solutions Inc. (“G4S”), and Does 1 through 100 (collectively “Defendants”) alleging causes of action for (1) negligence – premises liability, (3) assault and battery, (3) intentional infliction of emotional distress, (4) negligent infliction of emotional distress, and (5) negligent hiring, training, supervision, and retention of employees.

The Complaint alleges that on September 2, 2018, while Plaintiff was a patient at Henry Mayo Newhall Hospital, Plaintiff and Doe Security Guard got into an altercation where plaintiff was punched multiple times on the left side of his face and head. (Complaint, ¶ 12-16.) Thereafter, Plaintiff was placed in restraints by security guards. (Complaint, ¶ 17.)

On October 24, 2018, Defendant Henry Mayo Newhall Memorial Hospital filed a demurrer and a motion to strike. On November 9, 2018, Plaintiff filed an opposition to the motion to strike. Plaintiff has not filed an opposition to the demurrer. Defendant filed a reply to the opposition to the motion to strike.

The Court notes that the parties stipulated to withdraw the demurrer and resolve all issues except the motion to strike with regard to punitive damages.

II. Motion to Strike

Defendant moves to strike the following from the Complaint: (1) Paragraph 58, line 23: “punitive damages”; (2) Paragraph 58, line 28: “punitive damages”; and (3) Prayer, Paragraph 4, line 12: “punitive damages.”

A motion to strike punitive damages allegations, specifically, may lie where the facts alleged do not rise to the level of “malice, fraud or oppression” required to support a punitive damages award. (See e.g., Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.)

Civil Code § 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. (Civil Code § 3294(a).)

Malice is defined as either 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. (Civil Code § 3294(c)(1).) 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, [citation omitted].) Punitive damages thus require more than the mere commission of a tort. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95.) Specific facts must be pled in support of punitive damages. (See Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-92.)

Subdivision (b) of section 3294 provides that an employer shall not be liable for punitive damages based upon acts of an employee, 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. Further, if it is a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.

Here, the allegations pointed to in Plaintiff’s opposition do not support an award of punitive damages. Plaintiff points to Paragraphs 38, 41, 42, and 47. Paragraph 38 deals with the Doe guards’ alleged assault of Plaintiff and does not mention Defendant. Paragraph 41 only states that the Doe guards were acting within the scope of their employment and Defendant failed to stop the alleged attack. Paragraph 42 alleges that Defendants did not exercise reasonable care and were grossly reckless in their supervision and control of the premises. Paragraph 47 alleges that Defendant acted in conscious disregard for the safety of Plaintiff. These allegations do not support an award of punitive damages because they do not amount to ratification or advance knowledge. Further, Defendant is a corporate employer and there are no allegations of any action by an officer, director, or managing agent of the corporation. Accordingly, the motion to strike punitive damages is GRANTED with 20 days’ leave to amend.

Moving Party is ordered to give notice.