Opposition To Defendants Motion To Strike Punitive DamagesMotionCal. Super. - 2nd Dist.March 18, 2020Electronically FILED by Superior Court of California, County of Los Angeles on 07/16/2020 01:30 PM Sherri R. Carter, Executive Officer/Clerk of Court, by S. Bolden,Deputy Clerk T. JOSHUA RITZ & ASSOCIATES, INC. 1|| ATTORNEYS-AT-LAW 14724 Ventura Blvd Ste 510 2|| Sherman Oaks CA 91403 T: 818.788.1123 31| F: 818.788.1126 www.rrhllp.com T. JOSHUA RITZ, BAR NO. 172364 LALEH B. SHOKOHI, BAR NO. 320852 4 5 || ATTORNEYS FOR PLAINTIFF 7 SUSANA VENTURA 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF LOS ANGELES 10 CASE NO. 20STCV11055 ‘SUSANA VENTURA, (Assigned for all purposes to the - Plaintiff, Hon. Susan Bryan-Deason at Dept. 52) PLAINTIFF SUSANA VENTURA’S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE PUNITIVE STIRLING ACADEMY, INC., a California) DAMAGES 16|| corporation doing business as STIRLING BEHAVIORAL HEALTH INSTITUTE, 17|| and DOES 1 through 100, INCLUSIVE, T. Jo sh ua Ri tz & As so ci at es , In c. A t t o r n e y s - A t - L a w T: 81 8. 78 8. 11 23 F: 81 8. 78 8. 11 26 w w w . rr hl lp .c om DATE: July 30, 2020 TIME: 11:00 a.m. DEPT: 52 Defendants. Complaint Filed: March 18, 2020 —_ — co N o r ” Ne er ” Ne er ” Ne er ” ee r” ee ” ee ” ee ” N e ” Ne e” N ae ” a ” Na r” N r ” ee r” N e a e ” N e ” Na e” N e ” Me r” se r” se n ss a” c t sc se ee ? s s a ’ PLAINTIFF SUSANA VENTURA’S OPPOSITION TO DEFENDANT’S MOTION TO STRIKE T. Jo sh ua Ri tz & As so ci at es , In c. A t t o r n e y s - A t - L a w T: 81 8. 78 8. 11 23 F: 81 8. 78 8. 11 26 ww w. rr hi lp .c om BS ~~ O N On 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II IIT III. TABLE TO CONTENTS DI TEER HEAR TTC NINE tcsnsesnstsemscotesosc cet ao 5 ARO S50 hmmm 1 FACTS. cetera eee seers ee sbeebs ae sbe ete e abet este ere ere sens entesesreoneens 2 ATRIUM 55.5000 smcrsosns 766.595.0505 455 058 500 558405 mh rem rms wom oy Ag AE A Gr 4 A. The Complaint Adequately Alleges Malicious Conduct ...........c.covvvrverrvnnennene. 11 B. Defendant Is Liable for The Actions of Its Supervisorial and Managing Agents ii PLAINTIFF SUSANA VENTURA’S OPPOSITION TO DEFENDANT’S MOTION TO STRIKE T. Jo sh ua Ri tz & As so ci at es , In c. A t t o r n e y s - A t - L a w T: 81 8. 78 8. 11 23 F: 81 8. 78 8. 11 26 w w w . rr hl lp .c om oN NN O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493 ......oooiiiveiieiiieieceeeeceeceeeie s 4 Brousseau v. Jarrett (1977) 73 Cal. App. 3d 864 ....c..voovveviieiieierecre cree eevee 8 Christian Research Institute v. Alnor (2007) 148 Cal. App. 4th 71 ....ccovevrieierinicrerenene, 7 Commodore Home Systems, Inc. v. Sup.Ct. (Brown) (1982) 32 Cal.3d 211, 214-2151, 4, 5 Cyrus v. Haveson (1976) 65 Cal. App. 3d 306 ...covevivieriiiiiieiiciece cre r eres 9 G. D. Searle & Co. v. Superior Court (1975) 49 Cal. App. 3d 22....cocvvvviviivviiriiecienenne, 10 Grieves v. Superior Court (1984) 157 Cal. App. 3d 159... cece, 8 Henzel v. Singer Co. (1982) 138 Cal APD.30 290 woos smsmmsssns sus suamsms swan sanorsn casas wa 52 4 Magallanes v. Superior Court (1985) 167 Cal. App. 3d 878 ..ccevivveeiieeeeeee creer, 10 McDonell v. American Trust Co. (1955) 130 Cal. App. 2d 296 ....c.cocvvvvvivveireccieceenenen, 10 Monge v. Superior Ct. (1986) 176 Cal.App.3d S503 ..ceiiiviiiieiicciecee cece, 4,5,6 Perkins v. Superior Court (1981) 117 CalLApp.3d 1 .covverereciicieeecie e 6,7, 11 Perkins v. Superior Ct. (1981) 117 Cal.APP.3d L..ueeoiieiiiiicieeiecceceeece creer 4 Roby v. McKesson (2009) 47 Cal.dth 686........c.eeevvveeirieeeeicieecreeiie cr scents eevee er s 12 Smith v. Superior Court (1992) 10 Cal. App. 4th 1033 ...cocviiiiiieiieccceeeee eee 7 Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 .....cccovvevrevriveeiiseciee creer 4 Taylor v. Superior Ct. (1979) 24 Cal.3d 890 .....cceeveivieeiriiiiiieiiiceceereeere e 11 Federal Cases Ackerman v. Western Electric Co. (N.D. Cal. 1986) 643 F. Supp. 836.....cccccvvevrvevenennn. 11 iii PLAINTIFF SUSANA VENTURA’S OPPOSITION TO DEFENDANT’S MOTION TO STRIKE T. Jo sh ua Ri tz & As so ci at es , In c. A t t o r n e y s - A t - L a w T: 81 8. 78 8. 11 23 F: 81 8. 78 8. 11 26 ww w. rr hl lp .c om H W © 9 ON \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Statutes Cal. Civ. Code § 3294(Q) c.uvvvviriirieeieeeeceieeree er s ees passim Cal. Civ. Proc. COE § 430 cuuuriiuiaieeeeeirieeeeeeeere c ive seein sess stssts artes enna ste saesenentense ens 1 Cal. Civ. COA § 3294(D) ...ovuevivririeieieiieiisiesiee sree eestor erst st sees ene seas 12 iv PLAINTIFF SUSANA VENTURA’S OPPOSITION TO DEFENDANT’S MOTION TO STRIKE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 L INTRODUCTION In support of a misguided motion to strike, defendant repeatedly miscites the law, relies on authorities entirely distinguishable from an employment discrimination case and, in an apparent confusion about whether it is seeking to strike a request for punitive damages or certain allegations or both, offers no basis at all for striking entire paragraphs of the complaint as referenced in the motion’s notice. A motion to strike may arise from “irrelevant, false or improper matter inserted in any pleading.” Cal. Civ. Proc. Code § 436. In this regard, a motion to strike may be used as a “scalpel” —to cut out any “irrelevant, false or improper” allegations. Cal. Civ. Proc. Code § 436(a). “Irrelevant matter” includes allegations that are “neither pertinent to nor supported by an otherwise sufficient claim or defense.” Defendant makes no effort to articulate why any allegation in the complaint is “irrelevant, false or improper.” The motions memorandum of points and authorities is silent on the topic, while the motion’s notice identifies ten paragraphs it wants stricken from the complaint for no identified reason at all. The allegations within these paragraphs are all either factual in nature or legal conclusions that pertain to the specific claims in this case. None of the allegations are shown or otherwise argued to be irrelevant, false or improper. The motion entitles itself a motion to strike punitive damages. So, it is likely defendant’s counsel just got confused or carried away when requesting in the notice alone that ten paragraphs of the complaint be stricken for no identified reason. A motion to strike may also be directed at a request for punitive damages, e.g., a claim sued upon that would not support an award of punitive damages as a matter of law such as promissory note actions or claims against governmental entities. See Cal. Civ. Code § 3294(a); Commodore Home Systems, Inc. v. Sup.Ct. (Brown) (1982) 32 Cal.3d 211, 214-215. This appears to be the real purpose of the motion and it attempts to advance this goal by misstating the law, the procedural posture of the motion and otherwise relying on cases that do not even resemble discrimination lawsuits (the cases relied upon by defendant are primarily attempts by plaintiffs to include punitive damages 1 PLAINTIFF SUSANA YENTURA’S OPPOSITION TO DEFENDANT’S MOTION TO STRIKE T. J o s h u a Ri tz & As so ci at es , In c. At to rn ey s- At -L aw T: 81 8. 78 8. 11 23 F: 81 8. 78 8. 11 26 w w w . rr hi lp .c om © J A n D \O 10 11 12 13 14 I3 16 17 18 19 20 21 22 23 24 25 26 2d 28 when suing professionals for negligence). But beyond just relying on manifestly distinguishable authorities, the motion actively misstates the standard for pleading punitive damages. Complaints do not establish or prove anything. Plaintiffs are not required to establish or prove anything at the commencement of a lawsuit. There is no statute, decisional authority, regulation, executive order or royal proclamation that sets forth a “stringent” pleading standard that requires plaintiffs to specify detailed facts that establish or prove the right to recover punitive damages. Plaintiffs are required to allege claims that include the right to recover punitive damages and to allege facts consistent with those claims and otherwise supportive, if proved, that the defendant acted with evil motive. The present complaint does just that by offering a detailed factual account that leaves no doubt and no question that, if proven, the defendant acted maliciously when discriminating against plaintiff Ventura, retaliating against her and wrongfully terminating her — leading her principal tormentor, defendant’s Executive Director, to sadistically proclaim, in writing, “Great!” II. FACTS Plaintiff Susana Ventura worked for defendants as a receptionist and was an exemplary employee for two years and five months. (See Compl. §9). On or about November 21, 2018, Susana Ventura was forced to go on medical leave due to her deteriorating mental health because defendant’s Executive Director, Stephen Lovato, had for many months “tormented her” by sexually harassing her and otherwise making “comments about women that were hostile and vile.” (See Compl. § 10). As a result of the Executive Director’s conduct, Ms. Ventura’s psychiatrist diagnosed her with anxiety, insomnia and clinical depression. (See Compl. § 10). Ms. Ventura told her immediate supervisor, defendant’s Administrator, Chris Lewis, that her physician was requiring her to go on medical leave in response to her deteriorating mental health. (Compl. § 10). Ms. Ventura was initially placed on medical leave from November 21, 2018 to November 30, 2018; upon re-evaluation her leave was extended into the month of December 2018. (Compl. § 11). Ms. Ventura notified defendant’s Administrator Mr. 2 PLAINTIFF SUSANA VENTURA’S OPPOSITION TO DEFENDANT’S MOTION TO STRIKE T. Jo sh ua Ri tz & As so ci at es , In c. A t t o r n e y s - A t - L a w T: 81 8. 78 8. 11 23 F: 81 8. 78 8. 11 26 w w w . rr hl lp .c om Oo 0 3 AN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lewis of her extended leave into December 2018 via email and attached a doctor’s note. (See Compl. § 12). Six minutes later, Mr. Lewis responded, “For our planning purposes, because it is crazy busy, are you planning to come back to work on December 10?” (See Compl. § 12). Ms. Ventura was taken aback because she knew this was not true, “as she shared her position with two other individuals and knew there would be no shortage of coverage.” (See Compl. § 12). In the month of December 2018, Ms. Ventura’s physician continued extending her leave for mental health reasons, leading defendant’s Administrator, Chris Lewis, to inquire whether she was going to be placed on disability. (Compl. § 13). Later in the month of December 2018, Ms. Ventura’s medical leave was further extended by her physician through January 25, 2019 and she communicated via email directly. Five minutes later, Mr. Lewis responded and once again asked, “are you planning to return? (Compl. 4 14). The complaint alleges: “Because of their frequent exchanges, Mr. Lewis knew Plaintiff intended to return to work and knew she was battling anxiety and depression attributable to the Executive Director’s appalling conduct, of which there were multiple victims. It seemed Administrator Chris Lewis had received “marching orders” to create a false record. (Compl. 9 14). On or about January 4, 2019, Mr. Lewis emailed plaintiff that since he did not hear from her—not true—regarding her return date, even though he received a doctor’s note placing plaintiff on medical leave through January 25, 2019, “the [company] has decided that when people are going out on long term leave of any kind, [the company] will be taking back company equipment and keys to the building and suite.” (Compl. § 15). “At this point, Plaintiff felt dismayed, as though she was being punished for taking medical leave that was necessary for her health and overall well-being” that was in response to the sexual harassment by defendant’s Executive Director. (See Compl. 15). As Ms. Ventura prepared on the morning of January 25, 2019, to send to Mr. Lewis a doctor’s note extending her medical leave, plaintiff received an email from Mr. Lewis terminating her in the middle of her protected medical leave period. (Compl. 3 PLAINTIFF SUSANA YENTURA’S OPPOSITION TO DEFENDANT’S MOTION TO STRIKE T. Jo sh ua Ri tz & As so ci at es , In c. At to rn ey s- At -L aw T: 81 8. 78 8. 11 23 F: 81 8. 78 8. 11 26 w w w . r r h l l p . c o m 16). When Ms. Ventura was terminated while taking protected medical leave in response to the Executive Director’s misconduct, the same Executive Director “expressed joy, i.e., ‘Great!’” in an email when he learned Mr. Lewis had communicated the termination to Ms. Ventura. (Compl. § 73). III. ARGUMENT Plaintiff Ventura is entitled fo plead the right to recover punitive damages in connection with her claims under the California Fair Employment & Housing Act and related torts. When determining whether a complaint pleads facts sufficient to warrant a request for punitive damages at the pleadings stage, the challenged allegations must be read in context with all of the facts alleged in the complaint and theories being pled. Monge v. Superior Ct. (1986) 176 Cal.App.3d 503, 510. Even though certain language may plead legal conclusions, when read in context with the facts alleged in the complaint, these legal conclusions satisfy the requisite requirements for pleading a request to recover punitive damages. Monge v. Superior Ct. (1986) 176 Cal.App.3d 503, 510; Perkins v. Superior Ct. (1981) 117 Cal.App.3d 1, 6-7. Section 3294 of the Civil Code allows for recovery of punitive damages in all civil actions "not arising from contract." In contrast to the cases relied upon by defendants in their motion, all of plaintiff's causes of action are “not based upon contract” within the meaning of section 3294 of the Civil Code and rely on a statutory or intentional tort basis for recovering punitive damages. Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 215 (racial discrimination and harassment in employment conditions is noncontractual action allowing punitive damages award); Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 177-178; Hentzel v. Singer Co. (1982) 138 Cal.App.3d 290, 304 (wrongful discharge from employment and breach of implied-in- law covenant of good faith and fair dealing warrants prayer for punitive damages); Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 497 n. 1 (intentional infliction of emotional distress arising from racial harassment warrants the right to plead punitive damages). 4 PLAINTIFF SUSANA VENTURA’S OPPOSITION TO DEFENDANT’S MOTION TO STRIKE T. J o s h u a Ri tz & As so ci at es , In c. At to rn ey s- At -L aw T: 81 8. 78 8. 11 23 F: 81 8. 78 8. 11 26 w w w . r rh ll p. co m EE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In Commodore Home Systems, Inc., the California Supreme Court held that civil actions based upon employment discrimination may include requests to recover punitive damages under the general provisions of section 3294 of the Civil Code. Commodore Home Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 220-221. This is so because section 3294 applies generally to all noncontractual causes of action and the act does not suggest any legislative intent to preclude such damages to civil litigants. In Monge v. Superior Court (1986) 176 Cal. App. 3d 503, 506, the Court of Appeal upheld a plaintiff’s right to plead the right to recover punitive damages for conduct constituting employment discrimination, the intentional infliction of emotional distress and wrongful termination. In Monge, the key facts amounted to the following: The first amended complaint alleges that while plaintiff Allison Patton (Patton) was operating a computer terminal in the course of her employment with defendant Crown Gibralter Graphic Center, Inc. (Crown) the message "How about a little head?" was displayed on the screen. Patton believed that the president, vice president and another corporate officer of defendant corporation had conspired to create the message, and that it was directed to her as a sexual proposition. Patton promptly complained to her immediate supervisor, plaintiff Martha Monge. Monge transmitted the complaint of sexual harassment to defendant officers who were her supervisors. Defendant officers allegedly ratified the act by refusing to investigate or correct it. They also engaged upon a systematic course of retaliation by "[creating] an intimidating, hostile and offensive working environment for each of the Plaintiffs" that "changed Plaintiffs’ working environment, hours, lunch and other privileges, and demoted the Plaintiffs to lesser positions, all in retaliation against the Plaintiffs for their complaints regarding sexual harassment. As a result of defendants' conduct, Monge, who was pregnant, was hospitalized for tension and emotional distress. 5 PLAINTIFF SUSANA VENTURA'’S OPPOSITION TO DEFENDANT’S MOTION TO STRIKE T. Jo sh ua Ri tz & As so ci at es , In c. A t t o r n e y s - A t - L a w T: 81 8. 78 8. 11 23 F: 81 8. 78 8. 11 26 ww w. rr hl lp .c om Id. at 506-507. These facts alone — the only specific fact being the message left on a computer — were held sufficient for the plaintiffs in Monge to plead punitive damages. The Court of Appeal held: In determining whether a complaint states facts sufficient to sustain punitive damages, the challenged allegations must be read in context with the other facts alleged in the complaint. Further, even though certain language pleads ultimate facts or conclusions of law, such language when read in context with the facts alleged as to defendants’ conduct may adequately plead the evil motive requisite to recovery of punitive damages. Id. at 510; citing Perkins v. Superior Court (1981) 117 Cal. App.3d 1, 6-7. Accordingly, the Court of Appeal emphasized in its holding: “It follows that where an action is pleaded under the Fair Employment and Housing Act for sexual employment discrimination, the same opportunity to plead and recover punitive damages exists.” Id. at 509. Monge elaborates: Under any formulation of the pleading standard, the above quoted allegations of the underlying complaint, read as a whole, sufficiently allege a deliberate intent on the part of defendants to sexually harass and then to retaliate against plaintiffs, causing them to suffer significant mental anguish on the job without regard for their right to be free from such oppressive and hostile employment conditions. This concisely pleads defendants’ actions as having an unequivocally evil and mischievous motive. Id. at 511. Perkins provides the highly pertinent example of the pleading standard in the context of a motion to strike punitive damage allegations. Perkins v. Superior Court 6 PLAINTIFF SUSANA VENTURA’S OPPOSITION TO DEFENDANT’S MOTION TO STRIKE T. J o s h u a Ri tz & As so ci at es , In c. A t t o r n e y s - A t - L a w T: 81 8. 78 8. 11 23 F: 81 8. 78 8. 11 26 w w w . r r h l l p . c o m Oo 0 3 O N un Bs 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 21 28 (1981) 117 Cal.App.3d 1, 6-7. In Perkins, the complaint alleged defendants "wrongfully and intentionally" invaded plaintiff's privacy and terminated his telephone service "in retaliation" for prior complaints lodged by plaintiff. The complaint also generally alleged that defendants were guilty of "oppression, fraud and malice." Perkins read the complaint as a whole and held that the alleged conclusions of fact or law considered in the context of alleged wrongful conduct "in retaliation" pleaded an evil motive sufficient to sustain a plea for punitive damages. Id. In contrast, all of defendants’ authorities are manifestly distinguishable. Except for one case, all of the judicial opinions address complaints where the plaintiff is seeking the right to plea for punitive damages under a negligence or similar tort theory. The one case cited that involves employment discrimination, the federal district court’s ruling addressed the plaintiff’s showing after a bench trial; not the right to plead punitive damages in a complaint. In Christian Research Institute v. Alnor (2007) 148 Cal. App. 4th 71, 76, the complaint alleged defamation and the right to recover punitive damages required malice; a SLAPP motion required the plaintiff to prove their allegations of malice. Plaintiffs, however, have failed to demonstrate a probability of prevailing by clear and convincing evidence that Alnor made the challenged statement with “actual malice.” Id. at 84. Here there is no SLAPP motion imposing a burden on the plaintiff to establish the likelihood of prevailing. Christian Research Institute is neither a FEHA case nor a pleadings authority. Christian Research Institute addresses the evidentiary burden for recovering punitive damages, not pleading it. In Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1035, the plaintiff filed an action for professional negligence. The complaint simply alleged that her lawyer “failed to adequately represent her and her property” and was otherwise “devoid of any 7 PLAINTIFF SUSANA VENTURA’S OPPOSITION TO DEFENDANT’S MOTION TO STRIKE T. J o s h u a Ri tz & As so ci at es , In c. At to rn ey s- At -L aw T: 81 8. 78 8. 11 23 F: 81 8. 78 8. 11 26 w w w . r r h l l p . c o m © 3 ON \O 10 11 2 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 factual assertions” concerning ill motive. Id. at 1041-1042. Smith has no remote applicability to a plaintiff pleading a right to recover punitive damages because of intentional discrimination under the FEHA. Smith simply stands for the unremarkable proposition that professional negligence claims do not entitle a plaintiff, absent exceptional facts, to plea a right to recovery punitive damages, unlike a plaintiff pursuing a FEHA claim. Similarly, in Grieves v. Superior Court (1984) 157 Cal. App. 3d 159, 162-163, the plaintiffs filed suit for medical malpractice and attempted to plea punitive damages. Throughout their amended complaint petitioners refer to real parties’ negligence. They make not a single assertion of intentional conduct. In one instance only do they allege conduct which may be very liberally construed as wilful or malicious, i.e., that defendants knew or should have known Cheryl desired a tubal ligation only if the baby was born without any abnormalities. But the sentence immediately following alleges in failing to effectuate Cheryl's desire, real parties' conduct "fell below the community standard of care and practice," i.e., a negligence standard . . . . we cannot ignore the recurring theme underlying petitioners’ claim, i.e., that real parties’ conduct was, at most, negligent. Another case cited by defendants, Brousseau v. Jarrett (1977) 73 Cal. App. 3d 864, 867 is also wildly inapplicable to the present complaint. Brousseau entails a medical malpractice lawsuit, id. at 867, where the “plaintiff seeks the sums of $ 3,897.11 in special damages and $ 250,000 in punitive damages.” Id. at 868-869. The sole basis for recovering punitive damages is that the physician preparing a medical report in response to a car accident should have outlined greater harm. Predictably, the plaintiff was not permitted to plea punitive damages under a dubious medical malpractice claim 11 8 PLAINTIFF SUSANA VENTURA’S OPPOSITION TO DEFENDANT’S MOTION TO STRIKE T. Jo sh ua Ri tz & As so ci at es , In c. At to rn ey s- At -L aw T: 81 8. 78 8. 11 23 F: 81 8. 78 8. 11 26 ww w. rr hl lp .c om SS N O Y Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 where even a strong version of the claim would not entitle a plaintiff to recover punitive damages. Still another authority cited by defendants that bears no relationship to a discrimination claim, in Cyrus v. Haveson (1976) 65 Cal. App. 3d 306, the plaintiff pled claims that do not automatically include a right to recover punitive damages: Exemplary damages are sought in the first, second, third, fourth, and fifth causes of action. In each instance, $ 10,000 is claimed. The first cause of action is for breach of contract and thus does not support a claim of punitive damage. . . . . The second cause of action alleges forcible entry and detainer. . . . . The third cause of action alleges conversion of personal property . ... The fourth cause of action asserts trespass and . . . . The fifth cause of action, while captioned one for intentional infliction of emotional distress, contains no allegation that defendants intended to inflict emotional distress on plaintiff. Absent that allegation, the fifth cause of action is nothing more than a restatement of the causes of action for forcible entry and detainer, trespass, and conversion. We thus consider the sufficiency of the pleading to support punitive damages as claimed in its second, third, and fourth causes of action as amplified by the fifth. There is no allegation that defendants intentionally, as opposed to negligently or mistakenly, disregarded plaintiff's right to possession or were aware that she had not received a notice to quit. No wrongful motive or purpose is stated in the complaint. Id. at 316-317 (emphasis added). In contrast, plaintiff Ventura repeatedly pleads intentional wrongdoing. Yet another authority cited by defendants that has nothing to do with a discrimination victim’s right to plead punitive damages, in Magallanes v. Superior Court 9 PLAINTIFF SUSANA VENTURA’S OPPOSITION TO DEFENDANT’S MOTION TO STRIKE T. J o s h u a Ri tz & As so ci at es , In c. At to rn ey s- At -L aw T: 81 8. 78 8. 11 23 F: 81 8. 78 8. 11 26 w w w . r rh ll p. co m w r BA W N ~N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (1985) 167 Cal. App. 3d 878, 880-881, the plaintiff brought an action to recover damages for injuries she allegedly sustained, the development of cancer, by reason of her mother's ingestion of the drug diethylstilbestrol (DES) while plaintiff was in utero. In Magallanes the Court of Appeal simply had concerns about the plaintiff’s right to recover punitive damages: We conclude that the foregoing public policy considerations, i.e., preservation of the rights of future claimants to compensatory damages, the potential for overkill, the punitive effect of numerous and substantial compensatory awards to present and future claimants, the attenuated deterrent effect of long belated awards, and the inherent unfairness of punitive damages in the market share scheme, preclude such damages in market share liability cases. Id. at 889-890. Defendant’s remaining authorities are also inapposite: G. D. Searle & Co. v. Superior Court (1975) 49 Cal. App. 3d 22,32, a product liability case where the defendant is not alleged to have “knowledge of the dangerous potential of its product.” McDonell v. American Trust Co. (1955) 130 Cal. App. 2d 296, 300, a defective roof case where the gist of the claim is that defendants refused to repair. “Those facts do not spell an intentional tort (a conscious, deliberate intent to injure the plaintiffs) or conduct so recklessly disregardful of the rights of others (sometimes characterized as wanton or wilful misconduct) as would show the "malice" in fact which the statute (Civ. Code, § 3294) requires as a predicate for punitive in addition to actual damages.” I 1! 10 PLAINTIFF SUSANA VENTURA’S OPPOSITION TO DEFENDANT’S MOTION TO STRIKE T. J o s h u a Ri tz & As so ci at es , In c. A t t o r n e y s - A t - L a w T: 81 8. 78 8. 11 23 F: 81 8. 78 8. 11 26 w w w . r r h l i p . c o m Oo 0 9 O Y n n BA 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The one and only authority cited by defendants that involves a discrimination claim is Ackerman v. Western Electric Co. (N.D. Cal. 1986) 643 F. Supp. 836, 857 where the holding addresses whether plaintiff proved their right to recover punitive damages after the conclusion of a bench trial. Defendants’ motion to strike is utterly devoid of supportive authority for good reason — there is none. A plaintiff alleging discrimination is entitled to plea for the recovery of punitive damages. The plaintiff need not prove their ability to recover punitive damages or meet any special pleading requirement other than alleging discriminatory or otherwise malicious motive. At the pleadings stage, plaintiff is entitled to include a request for punitive damages and ultimately will need to present evidence at a later stage — whether at trial or in response to a motion for summary judgment or a motion in limine or a motion for nonsuit — that establishes, or shows she could establish, a right to recover punitive damages. But there is no stringent standard for FEHA plaintiffs to plead punitive damages. Defendants’ recitation of entirely distinguishable cases demonstrates there is no authority to support defendant’s fabricated legal standard. A. The Complaint Adequately Alleges Malicious Conduct Administrator Lewis, upon being asked to reasonably accommodate plaintiffs disability and corresponding medical leave, chose instead to terminate her. Dr. Lovato, who tormented plaintiff, reacted to Mr. Lewis’s malicious behavior by declaring, “Great!” Plaintiff was on a protected disability medical leave when she was wrongfully terminated after months of complaining to Mr. Lewis about Dr. Lovato’s discriminatory and harassing conduct. Civil Code § 3294 defines “oppression” as “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” In Perkins v. Superior Court, the plaintiff pled facts that described a “knowing and deliberate state of mind from which a conscious, disregard of [plaintiff's rights might be inferred -a state of mind which would sustain an award of punitive damages.” Id. at 6 citing Taylor v. Superior Ct. (1979) 24 Cal. 3d 890. Mr. Lewis, upon receiving his “marching orders” to terminate plaintiff’s employment rather than accommodate her 11 PLAINTIFF SUSANA VENTURA’S OPPOSITION TO DEFENDANT’S MOTION TO STRIKE T. J o s h u a Ri tz & As so ci at es , In c. A t t o r n e y s - A t - L a w T: 81 8. 78 8. 11 23 F: 81 8. 78 8. 11 26 w w w . r r h l i p . c o m NN O n A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 disability, had a conscious disregard of plaintiff’s rights. Moreover, Dr. Lovato’s reaction of joy to plaintiff’s wrongful termination after tormenting her is consistent with an evil motive. B. Defendant Is Liable for The Actions of Its Supervisorial and Managing Agents California Civil Code § 3294(b) provides that employers may be responsible for punitive damages when an officer, director, or managing agent of the employer authorizes or ratifies the wrongful conduct or otherwise engages in the conduct. Plaintiff alleges supervisor Chris Lewis and Executive Director Lovato engaged in wrongful conduct in violation of the FEHA or otherwise ratified the conduct of each other in this regard. These allegations alone warrant plaintiff’s right to plead her right to seek the recovery of punitive damages. Plaintiff complained to supervisor Chris Lewis about Executive Director Dr. Lovato’s sexual harassment and gender discrimination towards her and his subsequent and ongoing retaliation since plaintiff began complaining about him. (Compl. § 13). Mr. Lewis also had first-hand knowledge that Dr. Lovato’s misconduct towards plaintiff caused her to develop and suffer from mental health conditions necessitating medical leave for stress, anxiety, depression and insomnia. (Compl. § 13). As alleged in her complaint, plaintiff complained to Mr. Lewis about Dr. Lovato’s workplace misconduct. As the California Supreme Court held in Roby v. McKesson (2009) 47 Cal.4th 686, 715, a plaintiff’s complaint to two mid-level managers (the head of a district center and regional human resource director) was sufficient to support jury’s inference that employer was aware of and ratified unlawful conduct. Supervisor Lewis acted maliciously when he refused to accommodate plaintiff's protected disability leave, refused to participate in a good-faith interactive process with her and callously disregarded plaintiff’s complaints about Executive Dr. Lovato’s harassing and discriminatory conduct (which led to her mental health issues). The complaint outlines an employee suffering mental harm 2a SC because of an Executive Director’s “vile” behavior towards women. The complaint then 12 PLAINTIFF SUSANA VENTURA'’S OPPOSITION TO DEFENDANT’S MOTION TO STRIKE T. J o s h u a Ri tz & As so ci at es , In c. At to rn ey s- At -L aw T: 81 8. 78 8. 11 23 F: 81 8. 78 8. 11 26 w w w . r r h l l p . c o m H W OO co 3 ON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 carefully details her medical leave in response to her mental health condition and the Administrator’s effort to create a false record culminating in the decision to terminate her while on medical leave and, in response, her tormentor — Executive Director Lovato — expressing joy at her termination by proclaiming in writing, “Great!” IV. CONCLUSION Therefore, for all the above reasons, plaintiff Susana Ventura respectfully requests defendant’s motion to strike be denied in its entirety. In the event the Court is inclined to grant defendant’s motion in whole or in part, plaintiff respectfully requests she be given leave to amend her complaint. Respectfully Submitted, Dated: July 16, 2020 T. JOSHUA RITZ 7 T. JOSHUA RITZ LALEH B. SHOKOHI ATTORNEYS FOR PLAINTIFF SUSANA VENTURA ASS OCIATES, INC. A 13 PLAINTIFF SUSANA VENTURA'’S OPPOSITION TO DEFENDANT’S MOTION TO STRIKE Co 0 1 O N ni B L N N O N N N N N N N NN r e t pm s a b m p m pe d mh pe p e 0 N N nN bh W N = O Y N Y R W NN = o PROOF OF SERVICE — 1013a STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the county of Los Angeles, State of California; I am over the age of 18 years and not a party to the within action; my business address is 14724 Ventura Blvd., Suite 510, Sherman Oaks, CA 91403 On July 16, 2020, I served true copies of the following document (s) described as: PLAINTIFF SUSANA VENTURA'’S OPPOSITION TO DEFENDANT’S MOTION TO STRIKE PUNITIVE DAMAGES on the interested parties in this action to: Alicia R. Kennon, Esq. Cristine S. Capitulo, Esq. WOOD, SMITH, HENNING & BERMAN LLP 9333 Fairway View Place, Suite 200 Rancho Cucamonga, CA 91730-3824 akennon@wshblaw.com ccapitulo@wshblaw.com BY MAIL: I enclosed the document(s) in a sealed envelope/package addressed to the addressee(s) designated and placed it for mailing, following our ordinary business practices. I am readily familiar with the mailing practice of my place of employment in respect to the collection and processing of correspondence and pleadings for mailing. It is deposited with the United States Postal Service on that same day in the ordinary course of business with postage fully prepaid. BY HAND DELIVERY: On the above date, I delivered such envelop(s) by hand to the addressee (5s). BY FEDERAL EXPRESS/OVERNIGHT: I caused such envelope(s) to be delivered via Federal Express Overnight to the addressee(s) designated. X __ BY EMAIL: by electronic mail transmission to the email address(es) listed. (STATE) Ideclare under the penalty of perjury under the laws of X _ the State of California that the foregoing is true and correct. Executed on July 16, 2020, Sherman Oaks, California. Claudia Arellano PROOF OF SERVICE
