Case Number: BC677048 Hearing Date: March 20, 2018 Dept: 50

Superior Court of California

County of Los Angeles

Department 50

XIAOFANG ZUO, et al.,

Plaintiffs,

vs.

A MAX INVESTMENT CORP., et al.,

Defendants.

Case No.:

BC 677048

Hearing Date:

March 20, 2018

Hearing Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

DEFENDANTS’ MOTION TO STRIKE PORTION OF PLAINTIFFS’ COMPLAINT

Background

Plaintiffs Xiaofang Zuo and Yukai Zhang (jointly, “Plaintiffs”) filed the instant action on September 26, 2017 against Defendants A Max Investment Corp. dba Chengdu Laozao Hotpot and Qian Z. Lunceford (jointly, “Defendants”). Plaintiffs’ Complaint alleges various violations of the wage and hour provisions of the Labor Code as well as a cause of action for conversion and unfair competition (the “Complaint”).

Defendants now move to strike the portions of the Complaint referencing disgorgement of profits and punitive damages. No opposition to the motion was filed.

Discussion

A court may strike any “irrelevant, false, or improper matter inserted in any pleading” or any part of a 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.) A motion to strike may lie where the facts alleged do not rise to the level of “malice, oppression or fraud” required to support a punitive damages award. ((See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63-64.) “’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” and “’[o]ppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” ((Civ. Code, § 3294(c).)

As part of the unfair competition cause of action, Plaintiffs allege that Defendants “enriched themselves with unfair benefits and illegal profits at the expense of Plaintiffs…” and therefore should be “disgorged of any and all profits, direct or indirect….” (Compl., ¶¶ 88, 90.) However, “nonrestitutionary disgorgement of profits is not an available remedy in an individual action under the UCL.” ((Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1152.) The instant action is an individual action (as opposed to a class action), and the remedy Plaintiffs are seeking is properly characterized as nonrestitutionary disgorgement of profits. ((See Korea Supply Co. v. Lockheed Martin Corp., supra, 29 Cal.4th at p. 1149 [“an order for restitution is one ‘compelling a UCL defendant to return money obtained through an unfair business practice to those persons in interest from whom the property was taken, that is, to persons who had an ownership interest in the property or those claiming through that person.”].) Therefore, the allegations regarding disgorgement are properly stricken from the Complaint.

With regard to the punitive damages allegations, Defendants correctly note that “punitive damages are not recoverable when liability is premised solely on the employer’s violation of the Labor Code statutes that regulate meal and rest breaks, pay stubs, and minimum wage laws.” ((Brewer v. Premier Golf Properties, LP (2008) 168 Cal.App.4th 1243, 1252.) Here, the punitive damages claim is pled as part of Plaintiffs’ conversion cause of action, even though the actual allegations constituting the conversion cause of action have to do with Defendants’ failure to pay Plaintiffs’ wages. Regardless of whether wage and hour violations could give rise to tort liability for conversion, the Court finds that no allegations have been made to support a finding of malice, fraud, or oppression. The Complaint only contains a conclusory statement of Plaintiffs’ entitlement to punitive damages. Therefore, the punitive damages allegations are properly stricken.

Conclusion

For the foregoing reasons, Defendants’ motion to strike portions of Plaintiffs’ Complaint is granted. Defendants’ answer to the Complaint is due in 10 days from the date of this Order.

Defendants are ordered to provide notice of this Order.

DATED: March 20, 2018 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court