Case Number: BC614836??? Hearing Date: August 18, 2016??? Dept: 98
PETER J. GARCIA, et al.,
Plaintiffs,
vs.
MALLI PATIBANDLA-RAO DBA E.M. PIZZA, INC., et al.,
Defendants.
CASE NO: BC614836
[TENTATIVE] ORDER RE: DEFENDANTS? MOTION TO STRIKE CERTAIN PORTIONS OF COMPLAINTDept. 98
1:30 p.m.
August 18, 2016
On March 30, 2016, Plaintiffs Peter J. Garcia and John Garcia (?Plaintiffs?) filed this action for alleged damages arising out of an April 3, 2014 assault and battery. Plaintiffs allege that they were stricken and kicked by Defendants Francisco Montes, Danny Egoavil, and Raymond Hill, employees of Defendant E.M. Pizza (?E.M. Pizza?). E.M. Pizza and Malli Patibandla-Rae (sued as Malli Patibandla-Rao dba E.M. Pizza, Inc.) (?Moving Defendants?) move to strike Plaintiffs? prayer for punitive damages.
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. Cal. Code of Civ. Proc. ? 435(b)(1). The Court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) 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. Id., ?? 436(a)-(b).
Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. Cal. Civ. Code ? 3294(a). ??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.? Id., ? 3294(c)(1). ??Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff?s rights, a level which decent citizens should not have to tolerate.? [citation].? Lackner v. North (2006) 135 Cal.App.4th 1188, 1210. They are ?typically awarded for intentional torts? while ?cases involving unintentional torts are far fewer.? Id., at 1212.
An employer is not 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, or was personally guilty of oppression, fraud, or malice. Cal. Civ. Code ? 3294(b).
Plaintiffs allege that the individual Defendants were acting within the course and scope of their employment with E.M. Pizza, that E.M. Pizza knew or reasonably should have known that the individual Defendants were not qualified to act professionally or would negligently or unprofessionally perform specific duties in a manner that would subject Plaintiffs to an undue risk of harm, and that E.M. Pizza failed to adequately train and supervise its subject employees. Compl., ?? 9, 40-42.
The Court finds these conclusory allegations against Moving Defendants to be insufficient to support the imposition of punitive damages. Therefore, Moving Defendants? Motion to Strike Plaintiffs? prayer for punitive damages as to them is GRANTED without prejudice to Plaintiffs seeking leave to amend their Complaint after further discovery.
Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 18th day of August, 2016
Hon. Holly J. Fujie
Judge of the Superior Court