This case was last updated from Los Angeles County Superior Courts on 07/08/2019 at 15:25:27 (UTC).

DELIA PERDUE ET AL VS MOBILE MODULAR DEVELOPMENT INC ET AL

Case Summary

On 06/16/2015 DELIA PERDUE filed a Labor - Wrongful Termination lawsuit against MOBILE MODULAR DEVELOPMENT INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are HOLLY E. KENDIG and ELAINE LU. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5415

  • Filing Date:

    06/16/2015

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Wrongful Termination

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

HOLLY E. KENDIG

ELAINE LU

 

Party Details

Plaintiffs and Petitioners

PERDUE DELIA

PERDUE-CALDERA DINA

HINOJOSA ROBERTO

Defendants and Respondents

DAYZ HOLDINGS LLC

DOES 1-25

DRAGOS MARA

MMLB ASSOCIATES

MOBILE MODULAR DEVELPMENT INC

DEFALCO JOHN A

Not Classified By Court

JOHNSON MICHAEL M.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

THE CABRERA LAW FIRM

CABRERA SERGIO T

Defendant and Respondent Attorneys

BEAM GREGORY B. ESQ.

LOFGREN DOUGLAS W.

LOFGREN DOUGLAS WARREN

BEAM GREGORY BRUCE ESQ.

 

Court Documents

DISCOVERY PLAN OF MMLB ASSOCIATES, DAYZ HOLDINGS, LLC, AND MARA DRAGOS

5/8/2018: DISCOVERY PLAN OF MMLB ASSOCIATES, DAYZ HOLDINGS, LLC, AND MARA DRAGOS

DEFENDANT MOBILE MODULAR DEVELOPMENT, INC.'S STATUS REPORT AND DISCOVERY PLAN

5/8/2018: DEFENDANT MOBILE MODULAR DEVELOPMENT, INC.'S STATUS REPORT AND DISCOVERY PLAN

Minute Order

9/5/2018: Minute Order

Motion for Order

10/22/2018: Motion for Order

Declaration

1/4/2019: Declaration

Stipulation - No Order

1/16/2019: Stipulation - No Order

Declaration

4/22/2019: Declaration

Declaration

4/22/2019: Declaration

Memorandum

6/6/2019: Memorandum

Certificate

6/6/2019: Certificate

Opposition

6/13/2019: Opposition

SUMMONS

6/16/2015: SUMMONS

ORDER TO SHOW CAUSE HEARING AND CASE MANAGEMENT CONFERENCE

6/18/2015: ORDER TO SHOW CAUSE HEARING AND CASE MANAGEMENT CONFERENCE

PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION OF SERGIO T CABRERA

11/25/2015: PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION OF SERGIO T CABRERA

NOTICE OF CONTINUED CASE MANAGEMENT CONFERENCE

3/18/2016: NOTICE OF CONTINUED CASE MANAGEMENT CONFERENCE

NOTICE RE: CONTINUANCE OF HEARING

8/26/2016: NOTICE RE: CONTINUANCE OF HEARING

CIVIL DEPOSIT

8/30/2016: CIVIL DEPOSIT

Minute Order

11/14/2017: Minute Order

115 More Documents Available

 

Docket Entries

  • 07/03/2019
  • Notice (of Entry of Order); Filed by MMLB Associates (Defendant)

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  • 06/27/2019
  • at 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Ex Parte Application (for Immediate Temporary Stay and for Clarification of the Court's April 23, 2019 Discovery Order; Memorandum of Points and Authorities; Declaratio of Douglas W. Lofgren In Support) - Not Held - Taken Off Calendar by Court

    Read MoreRead Less
  • 06/27/2019
  • at 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Motion for Reconsideration

    Read MoreRead Less
  • 06/27/2019
  • Minute Order ( (Hearing on Ex Parte Application for Immediate Temporary Stay ...)); Filed by Clerk

    Read MoreRead Less
  • 06/27/2019
  • Order (RE: COURT?S MOTION FOR RECONSIDERATION OF THE APRIL 23, 2019 ORDER GRANTING PLAINTIFF?S MOTION TO COMPEL FURTHER DISCOVERY RESPONSES); Filed by Clerk

    Read MoreRead Less
  • 06/19/2019
  • Declaration (of Douglas W. Lofgren in Support of Defendant MMLB Associates' Response to Plaintiff's Opposition to Ex Parte Application for Immediate Temporary Stay and for Clarification of the Court's April 23, 2019 Discovery Order; and the Court's Motion); Filed by Mara Dragos (Defendant); MMLB Associates (Defendant)

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  • 06/19/2019
  • Reply (Defendant MMLB Associates' Response to Plaintiff's Opposition to Ex Parte Application for Immediate Temporary Stay and for Clarification of the Court's April 23, 2019 Discovery Order; and the Court's Motion for Reconsideration); Filed by MMLB Associates (Defendant)

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  • 06/18/2019
  • at 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Motion to Compel Further Discovery Responses - Not Held - Vacated by Court

    Read MoreRead Less
  • 06/18/2019
  • at 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Motion to Compel Further Discovery Responses - Not Held - Vacated by Court

    Read MoreRead Less
  • 06/13/2019
  • at 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Motion to Compel Discovery (not "Further Discovery") - Not Held - Continued - Court Congestion

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227 More Docket Entries
  • 10/16/2015
  • CASE MANAGEMENT STATEMENT

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  • 07/15/2015
  • First Amended Complaint; Filed by Delia Perdue (Plaintiff); Dina Perdue-Caldera (Plaintiff)

    Read MoreRead Less
  • 07/15/2015
  • First Amended Complaint: (1) Associational Employment Discrimination in Violation of the FEHA - Government Code 12940(a) (2) Aiding and Abetting Employment Discrimination in Violation of the FEHA - Government Code 12940(I) (3) Harassment in Violation etc.; Filed by ROBERTO HINOJOSA (Plaintiff); Delia Perdue (Plaintiff); Dina Perdue-Caldera (Plaintiff)

    Read MoreRead Less
  • 07/15/2015
  • FIRST AMENDED COMPLAINT: ASSOCIATIONAL EMPLOYMENT DISCRIMINATION IN VIOLATION OF THE FEHA - GOVERNMENT CODE 12940(A); ETC.

    Read MoreRead Less
  • 06/18/2015
  • ORDER TO SHOW CAUSE HEARING AND CASE MANAGEMENT CONFERENCE

    Read MoreRead Less
  • 06/18/2015
  • OSC-Failure to File Proof of Serv; Filed by Clerk

    Read MoreRead Less
  • 06/16/2015
  • Complaint; Filed by ROBERTO HINOJOSA (Plaintiff); Delia Perdue (Plaintiff); Dina Perdue-Caldera (Plaintiff)

    Read MoreRead Less
  • 06/16/2015
  • SUMMONS

    Read MoreRead Less
  • 06/16/2015
  • COMPLAINT FOR DAMAGES FOR: (I) ASSOCIATIONAL EMPLOYMENT DISCRIMINATION IN VIOLATION OF THE FEHA GOVERNMENT CODE 12940(A); ETC

    Read MoreRead Less
  • 01/07/2015
  • Proof of Service (not Summons and Complaint); Filed by Delia Perdue (Plaintiff); Dina Perdue-Caldera (Plaintiff)

    Read MoreRead Less

Tentative Rulings

Case Number: BC585415    Hearing Date: July 07, 2020    Dept: 26

IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION.

Superior Court of California

County of Los Angeles

Department 26

delia perdue; dina perdue-caldera; and roberto hinojosa,

Plaintiffs,

v.

Mobile Modular development, inc., et al.

Defendants.

Case No.: BC585415

Hearing Date: July 7, 2020

[TENTATIVE] order RE:

Defendants MMLB associates’, and dayz holdings, llc.’s motions to Strike

Procedural Background

On June 16, 2015[1], plaintiffs Delia Perdue and Roberto Hinojosa (collectively ‘Plaintiffs’) filed the instant wrongful termination action against defendants Mobile Modular Development, Inc. (“Mobile Modular”), MMLB Associates (“MMLB”), and DayZ Holdings, LLC (“DayZ”) (collectively “Defendants”).[2] On August 30, 2016, Plaintiffs filed a second amended complaint. Defendants MMLB and DayZ brought a motion for summary judgment or in the alternative summary adjudication challenging in part the sufficiency of the pleadings with respect to Plaintiffs’ claim for punitive damages. On March 2, 2020, the court granted this portion of Defendants’ motion and found that the Second Amended Complaint lacked factual allegations to support punitive damages. In doing so, the court granted Plaintiffs five days leave to amend as to punitive damages.

On March 16, 2020, Plaintiffs filed a Third Amended Complaint (‘TAC’) against Mobile Modular, MMLB, and DayZ alleging causes of action for (1) age discrimination under Gov. Code section 12940, subdivision(a); (2) associational employment discrimination under Government Code section 12940, subdivision (a); (3) retaliation under Government Code section 12940, subdivision(h); (4) aiding and abetting employment discrimination under Government Code section 12940, subdivision(i); (5) wrongful termination in violation of public policy; (6) waiting time penalties under Labor Code sections 202, 203; (7) failure to pay earned wages in a timely manner under Labor Code sections 204, 206, 218.5, 218.6; (8) failure to furnish wage hour statements under Labor Code sections 226, 226.3; (9) failure to maintain payroll records under Labor Code sections 226, 1174, 1174.5; (10) failure to pay minimum compensation under Labor Code section 1194; (11) failure to pay overtime compensation under Labor Code sections 510, 1194; and (12) unfair competition under Business and Professions Code section 17200.

At a final status conference on March 16, 2020, Defendants indicated that they would be filing motions to strike or demurrers to the TAC. The court continued the final status conference to March 30, 2020 and ordered Defendants to file any motion to strike the TAC or demurrer to the TAC by March 20, 2020. (See Minute Order 3/16/20; Beam Decl. ¶ 5; Lofgren Decl. ¶ 2.) The hearing was originally set for March 24, 2020. (Beam Decl. ¶ 5.) However, due to the COVID-19 pandemic, this hearing was continued until June 22, 2020. (Minute Order 3/30/20.)

On March 20, 2020, Mobile Modular filed a motion to strike portions of the TAC. On March 26, 2020, Plaintiffs filed an opposition to Mobile Modular’s motion to strike portions of the TAC. On March 30, 2020, MMLB and DayZ filed identical motions to strike portions of the TAC.[3] On June 9, 2020, Plaintiffs filed an opposition to MMLB’s and DayZ’s motions to strike. On June 15, 2020, MMLB and DayZ filed their reply. On June 22, 2020, the court continued the hearing for supplemental briefing on punitive damages. In addition, on June 22, 2020, Plaintiffs dismissed Mobile Modular with prejudice.

On June 26, 2020, Plaintiffs filed supplemental briefing. On June 30, MMLB and DayZ filed their supplemental reply. For judicial efficiency, the Court will rule on the remaining two motions to strike in one order.

Legal Standard

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer (i.e., words, phrases, prayer for damages, etc.). (See CCP §§ 435-437.) A party may file a motion to strike in whole or in part within the time allowed to respond to a pleading, however, if a party serves and files a motion to strike without demurring to the complaint, the time to answer is extended. (CCP §§ 435(b)(1), 435(c).)

A motion to strike lies only where the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (CCP § 436.) The grounds for moving to strike must appear on the face of the pleadings or by way of judicial notice. (CCP § 437.)

Discussion

MMLB and DayZ each move to strike paragraphs 15, 17-30, 32-39, 41, 43, 45, 47-51, 63 (the words “and demoted him from ‘Assistant Manager’ to ‘Maintenance’”), 65-69, 83-91, 98-106, 113-121, and Prayer for judgment, item (7): ”For punitive damages as allowed by law.”

As a preliminary matter the Court notes that Plaintiffs have agreed to strike paragraphs 16 and 21. (Opposition to Mobile Modular’s Motion p. 12:16, p. 12:27.) Plaintiffs have further agreed to strike paragraph 22. (Opposition to MMLB’s and DayZ’s Motions p. 12:26.) Accordingly, the Court strikes paragraphs 16, 21, and 22.

Meet and Confer

Code of Civil Procedure section 435.5 requires that “[b]efore filing a motion to strike demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (CCP § 435.5(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Id. at(a)(2).) The demurring party must also file and serve a declaration detailing the meet and confer efforts. (Id. at (a)(3).)  If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading. (Id. at (a).) However, “[a] determination by the court that the meet and confer process was insufficient is not grounds to grant or deny the motion to strike.” (Id. at (c)(4).) Further, this requirement does not apply to a motion to strike “brought less than 30 days before trial.” (Id. at (d)(4).)

Here, at the time the motions were filed, the trial was set for April 27, 2020,[4] and MMLB and DayZ filed this motion on March 30, 2020 -- less than thirty days before the trial date at the time. Accordingly, the meet and confer requirement does not apply to MMLB and DayZ’s motions to strike.

Timeliness

After expiration of the time in which a pleading can be amended, the pleading can only be amended by obtaining the permission of the court, by filing a noticed motion for leave. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613.) Thus, “[i]f an amended pleading is filed after the time allowed, an order striking the amended pleading must be obtained by noticed motion” to strike the improper pleadings. (Cal. Rules of Court, Rule 3.1320(i).) As the Court has the discretion to “[s]trike 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.” (CCP § 436(b).) However, the Court also has the discretion to accept untimely amendments to pleadings without a noticed motion. (Harlan v. Department of Transportation (2005) 132 Cal.App.4th 868, 873.)

In the Court’s March 2, 2020, order on MMLB’s and DayZ’s summary judgment motion the Court specified that Plaintiffs had five days leave to amend.[5] The time to amend a pleading “runs from the service of notice of the decision or order, unless the notice is waived in open court, and the waiver entered in the minutes.” (CCP § 472b.) Here, the Clerk mailed notice of the motion on March 2, 2020. As notice was provided by mail the time to amend the pleadings was extended by another five calendar days. Accordingly, the deadline to amend the pleadings was March 12, 2020. Plaintiffs’ Third Amended Complaint filed on March 16, 2020 was thus untimely. However, no defendant has pointed to any prejudice it has suffered as a result of Plaintiffs’ four-day delay in filing the Third Amended Complaint. Further, the court notes that this period of delay occurred during a period of uncertainty caused by the COVID-19 pandemic and immediately preceded the court’s closure due to the COVID-19 crisis. Thus, the court, in its discretion, declines to strike the TAC on these grounds.

Beyond the Scope of the Leave to Amend

Defendants contend that the paragraphs that Plaintiffs have added go beyond the scope of the leave to amend granted by the court, specifically, that many of the added paragraphs are irrelevant, include new claims of disability by Plaintiff Perdue, and include claims of other lawsuits against Defendants.

When leave to amend is granted, “‘[t]he plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.’” (Zakk v. Diesel (2019) 33 Cal.App.5th 431, 456, [internal citation omitted].) However, a new cause of action may be proper when it “directly responds to the court's reason for sustaining the earlier demurrer.” (Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.)

Here, the Court sustained non-statutory judgment on the pleadings on the grounds that the second amended complaint did not include sufficient factual allegations to support punitive damages.

Management and Operational Information

MMLB and DayZ contend that paragraphs 15, 17, 18, 19, 20, 22, 23, 24, 25, 26, 27, 28, 30, 32, 34, 41 (the word “disabling”), 43, 45, 47, 48, 50, 51, 54, 63, 65, 66, 67, 68, 85, 86, 90, 98, 100, 101 (first two sentences), 105, 115, 120, are irrelevant and beyond the scope of the leave to amend as these paragraphs only relate to the ownership and management of the park.

Under Code of Civil Procedure section 436, the Court has the discretion to “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (CCP § 436(a).) However, a refusal to strike irrelevant matter does not constitute error when no substantial right has been affected by it. (Higgins v. San Diego Sav. Bank The description of Defendants’ operation of the mobile home park and the management and oversight of employees contained in the paragraphs to which Defendant object is relevant to Defendants’ awareness of actions taken against Plaintiffs and Defendants’ liability for the acts of their agents and officers. These allegations thus impact Defendants’ liability for punitive damages. To the extent that these added paragraphs may not be strictly relevant to punitive damages, they are relevant as to the causes of action in the TAC. Moreover, no substantial right is affected by the addition of these paragraphs to the TAC as they relate only to the manner in which Defendants managed and operated the park. The Court declines to strike these paragraphs.

Extraneous Lawsuits

MMLB and DayZ move to strike information about a former Mobile Modular employee who worked at a different mobile home park, Willowick Royal who filed a claim for unpaid wages in 2013. (See TAC ¶¶ 29, 33, 49, 83, 89, and 113.)

Defendants contend that these claims are irrelevant to the claim for punitive damages and to the actual claims set forth in the TAC.[6] In opposition, Plaintiffs contend that these paragraphs are relevant to show Defendants’ pattern and practice.

It is well established that “me too” evidence may be admissible to prove intent even if defendant’s alleged conduct occurred outside plaintiff’s presence and at times other than when plaintiff was employed. (Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855, 870.) Plaintiffs’ pleading of similar claims against Defendants is directly relevant to claims of punitive damages. (See State Farm Mut. Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408, 409, [Whether “the conduct involved repeated actions or was an isolated incident” is relevant to punitive damages.]) However, the paragraphs at issue allege only that former employees filed prior lawsuits involving similar claims against Mobile Modular. (TAC ¶¶ 83, 98, 113.) There are no allegations of prior lawsuits against MMLB or DayZ. As Mobile Modular is no longer party to this suit, the lawsuits against Mobile Modular are no longer relevant to the action against MMLB or DayZ. Accordingly, MMLB’s and DayZ’s motions to strike these paragraphs are granted.

Additional Claims as to Preston Perdue

Defendants contends that paragraphs 86, 101, 116 of the TAC are not relevant as they concern Preston Perdue, who is not a party to the action. Additionally, Defendants state that because these paragraphs allege failure to engage in the interactive process or failure to provide reasonable accommodation, which were not part of the second amended complaint, they should be stricken. In opposition, Plaintiffs contend that these paragraphs (in addition to paragraphs 45, 47, 48, 50, 51, 86, 101, and 116) “are relevant to punitive damages in that they show that Mobile Modular refused to file a workers’ compensation claim on behalf of disabled injured employee Preston Perdue, that the refusal was discriminatory, that Mobile Modular refused to engage in an interactive process after requested, but instead hired a lawyer, who terminated plaintiffs.” (Opposition p.13:5-9.) The court finds that these paragraphs are relevant as to Defendants’ intent with respect to Plaintiffs’ causes of action for associational discrimination, retaliation and wrongful termination. Accordingly, these allegations are relevant to punitive damages. Defendants’ motions to strike these paragraphs are denied.

Plaintiff Roberto Hinojosa

MMLB and DayZ move to strike paragraphs 69, 89, 90, 104, 105, 119, 120 on the grounds that they do not relate to the claim for punitive damages.

However, Defendants’ statements and actions in terminating Hinojosa are relevant to Defendants’ intent and willfulness and are thus relevant to punitive damages. Moreover, the court finds that no substantial right is affected by the addition of these paragraphs in the TAC. The Court declines to strike these paragraphs.

False Allegations

MMLB and DayZ move to strike paragraphs 86, 87, 101, 102, and 117 of the TAC, which allege that Preston Perdue was fired and that Plaintiff Delia Perdue was fired while her husband was disabled. MMLB and DayZ move to strike these paragraphs on the ground that they are demonstrably false because Plaintiffs allege elsewhere that Preston Perdue died before Plaintiffs were terminated.

The TAC alleges that Preston Perdue fell and sustained disabling injuries on January 21, 2015. (TAC ¶ 41.) On March 21, 2015, Preston Perdue passed away. (TAC ¶ 56.) Plaintiff Delia Perdue was terminated on March 31, 2015. (TAC ¶ 59.) However, the TAC also alleges that although March 31, 2015 was Plaintiff Delia’s last day of employment, Delia was told of her termination on March 2, 2015. (TAC ¶ 52.) Accordingly, there is an explanation for the apparent inconsistency, and the alleged inconsistency in the allegations is an insufficient ground for striking these paragraphs. Defendants’ motions to strike these paragraphs are denied.

Plaintiff Delia Perdue’s Claims of Disability

MMLB and DayZ move to strike paragraphs 35, 36, 37, 38, 39, 83, 84, 98, 99, 113 and 114 of the TAC, which allege that Delia Perdue became physically disabled during her time working at the park on the grounds that these paragraphs allege irrelevant information as neither the Second Amended Complaint nor the Third Amended Complaint includes any cause of action for disability discrimination, failure to engage in an interactive process, or failure to provide a reasonable accommodation.

In opposition, Plaintiff argues that this evidence is relevant to show the willful intent of Defendants and their pattern and practice of wrongful discriminatory conduct.

The paragraphs at issue allege that Plaintiff Delia Perdue underwent knee surgery and was visibly disabled from October 13, 2014 through December 6, 2014. (TAC ¶¶ 35-38.) During this time, Defendants did not engage in the interactive process to see what accommodations she needed. (TAC ¶ 39.) Plaintiff alleges that this has been a pattern of conduct by Defendants. (TAC ¶¶ 83, 98, 113.) Paragraphs 84, 99, and 114 pertain to Plaintiff Delia Perdue’s request for an interactive process for Preston Perdue after his injury.

Each of these allegations is potentially relevant to show a pattern of practice, specifically, repeated failure and/or refusal to engage in the interactive process and to make reasonable accommodations. As such, these allegations shed light on Defendants’ intent in connection with Plaintiffs’ associational discrimination, retaliation, and wrongful termination claims. Accordingly, these paragraphs fall within the scope of leave granted by the Court.

Punitive Damages

Defendants move to strike punitive damages on grounds that Plaintiffs plead insufficient facts to support such recovery.

California Civil Code section 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .” (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. at (c)(1).) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Id. at (c)(2).) “‘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.” (Id. at (c)(3).) Punitive damages thus require more than the mere commission of a tort. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95.)

The Court of Appeal has held that as a matter of law, “wrongful termination, without more, will not sustain a finding of malice or oppression.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 717; cf. Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1288, fn. 14 [“‘[P]unitive damages should not be allowable upon evidence that is merely consistent with the hypothesis of malice, fraud, gross negligence or oppressiveness.’”].) “‘Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or “malice,” or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.’ [Citation.]” (Taylor, supra, 24 Cal.3d at 894–895, [italics omitted].) As such, specific facts must be pleaded in support of punitive damages. (See Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-92.)

Court have found a basis for punitive damages in wrongful termination and employment discrimination cases where defendants have engaged in conduct designed to hide the wrongful, discriminatory conduct. For example, in Cloud v. Casey (1999) 76 Cal.App.4th 895, 90 Cal.Rptr.2d 757, a female employee was passed over for promotion because of her gender. The court upheld the employer’s liability for punitive damages because the employer not only denied the plaintiff a promotion based on gender, but also then attempted to hide its illegal reason for the denial with a false explanation. The court explained that it was this fabrication that constituted the despicable conduct. (Id. at p. 912.) More recently, in Colucci v. T-Mobile USA, Inc. (2020) 48 Cal.App.5th 442, the Court of Appeals found that punitive damages were supported as there was evidence that the defendant company attempted to hide its reason for terminating the plaintiff. 

Here, the TAC does not sufficiently allege a basis for punitive damages against the remaining defendants, MMLB and DayZ. The TAC alleges that on January 21, 2015, Preston Perdue fell while working and was disabled and injured. (TAC ¶ 41.) On February 21, 2015, Plaintiff Delia Perdue emailed Mobile Modular requesting to talk about Preston Perdue’s condition as he would not be able to get back to a hundred percent. (TAC ¶ 47.) On March 2, 2015, Defendants met and planned to terminate Preston Perdue and Plaintiff Delia Perdue with a final date of March 31, 2015 and a severance package including a release of claims. (TAC ¶ 51.) Plaintiffs allege that Mobile Modular attempted to mislead Plaintiffs with their statements that MMLB and DayZ would be firing everyone, including Mobile Modular, and that the only one who would not be terminated would be Plaintiff Roberto Hinojosa. (TAC ¶¶ 52-53.) Plaintiffs further allege that on April 3, 2015, Mobile Modular likewise misrepresented to Plaintiff Delia Perdue that MMLB and DayZ had fired her because Mobile Modular services had been “cut back to record keeping and not providing on site management.” (TAC ¶ 62.) However, on June 16, 2015, Plaintiff Roberto Hinojosa “was still employed by Mobile Modular at Daleview Mobile Home Estates, despite Mobile Modular’s representation that their services were ‘cut back to record keeping and not providing on site management.’” (TAC ¶ 64.) Taking these allegations as true, which the court must do for purposes of these motions to strike, these allegations support an inference that Mobile Modular’s actual reason for terminating Plaintiff Delia Perdue was due to Preston Perdue’s injury and Delia Perdue’s request for an interactive process for Preston Perdue after his injury and that Mobile Modular willfully hid this reason from Plaintiffs with a series of misrepresentations not MMLB or DayZ. However, all of these allegations of fraud and deceit are directed against Mobile Modular -- not against MMLB or DayZ. Thus, these allegations do not support a claim of punitive damages against MMLB or DayZ.

The TAC also fails to allege conduct that rises to the level of malice or oppression. As to Plaintiff Roberto Hinojosa, the malicious or oppressive conduct alleged is that MMLB and DayZ caused him to be “juggled” and “played ping pong” with him and then eventually wrongfully terminated him. (TAC ¶¶ 69, 89, 104, 119, 120.) As stated above, wrongful termination without more does not support a claim of punitive damages. Despite Plaintiffs’ creative word choices, constantly changing the supervisor who is supposed to give directions to Plaintiff Hinojosa does not constitute malice or oppression.

As to Plaintiff Delia Perdue, the TAC alleges that Plaintiff Delia Perdue was charged the highest rent and utilities in the park and then was wrongfully terminated. (TAC ¶¶ 86, 87.) The TAC is silent, however, as to the amount of rent Delia was paying before Preston’s passing. Thus, the TAC does not allege any change in the rental rate comparing the period before Delia’s termination and after her termination. Charging a renter a high amount of rent and utilities -- even if higher than the other residents in the mobile home park -- does not rise to the level of malicious or oppressive conduct. Thus, the TAC’s allegation that Delia was charged the highest rental rate and utilities in the entire park does not itself rise to the level of malice or oppression.

Plaintiffs’ allegation that MMLB and DayZ willfully and wrongly terminated Plaintiffs by itself does not support a claim of punitive damages. Accordingly, MMLB’s and DayZ’s motion to strike the prayer for punitive damages is GRANTED.

CONCLUSION AND ORDER

Based on the forgoing, MMLB’s and DayZ’s motions to strike are GRANTED WITHOUT LEAVE TO AMEND as to paragraphs 16, 21, 22, 29, 33, 49, 83, 89, 113, and the prayer for punitive damages of the TAC.

Defendants’ motions to strike are otherwise DENIED. MMLB and DayZ are to answer within 10 days.

The Final Status Conference remains set for August 24, 2020 at 9:00 am. The trial remains set for September 8, 2020 at 9:30 am.

Moving Defendants are ordered to provide notice of this order and file proof of service of such within 5 days.

DATED: July 7, 2020 ___________________________

Elaine Lu

Judge of the Superior Court


[1] The Court notes that the time to bring a civil case to trial under Code of Civil Procedure 583.310 has been extended by six months pursuant to Emergency Rule 10(a) of the California Rules of Court.

[2] The Court notes that the original action included Dina Perdue-Caldera as a plaintiff and Mara Dragos as a defendant. On February 18, 2020, Dina Perdue-Caldera dismissed all claims against all defendants with prejudice. Additionally, on February 18, 2020, plaintiffs Delia Perdue, and Roberto Hinojosa dismissed all causes of action against Mara Dragos with prejudice.

[3] In light of the then impending trial date, the court set an abbreviated briefing schedule for these motions to strike. The court finds that Counsel for MMLB and DayZ was understandably unable to file the motions by the original March 20, 2020 deadline due to the COVID-19 pandemic. (Lofgren Decl. ¶ 2.) Accordingly, the court will consider MMLB’s and DayZ’s motions to strike..

[4] The trial was continued after MMLB and DayZ filed their motions. (Minute Order 3/30/20.)

[5] As the order did not specify five court days, time is calculated by calendar days. (Cal. Rules of Court, Rule 1.10; CCP § 12.)

[6] Defendants also argue that Plaintiffs’ allegation that these other lawsuits are the “same as with this lawsuit” (TAC ¶¶ 83, 98, and 113) is false because Plaintiffs do not allege identical causes of action. However, these allegations are reasonably construed to imply that the claims raised in this action share the same or similar factual basis as with two other lawsuits.

Case Number: BC585415    Hearing Date: June 22, 2020    Dept: 26

IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION.

Defendants Mobile modular development inc.’s, MMLB associates’, and dayz holdings, llc.’s motions to Strike

Procedural Background

On June 16, 2015[1], plaintiffs Delia Perdue and Roberto Hinojosa (collectively ‘Plaintiffs’) filed the instant wrongful termination action against defendants Mobile Modular Development, Inc. (“Mobile Modular”), MMLB Associates (“MMLB”), and DayZ Holdings, LLC (“DayZ”) (collectively “Defendants”).[2] On August 30, 2016, Plaintiffs filed a second amended complaint. Defendants MMLB and DayZ brought a motion for summary judgment or in the alternative summary adjudication challenging in part the sufficiency of the pleadings with respect to Plaintiffs’ claim for punitive damages. On March 2, 2020, the court granted this portion of Defendants’ motion and found that the Second Amended Complaint lacked factual allegations to support punitive damages. In doing so, the court granted Plaintiffs five days leave to amend as to punitive damages.

On March 16, 2020, Plaintiffs filed a Third Amended Complaint (‘TAC’) against Mobile Modular, MMLB, and DayZ alleging causes of action for (1) age discrimination under Gov. Code section 12940, subdivision(a); (2) associational employment discrimination under Government Code section 12940, subdivision (a); (3) retaliation under Government Code section 12940, subdivision(h); (4) aiding and abetting employment discrimination under Government Code section 12940, subdivision(i); (5) wrongful termination in violation of public policy; (6) waiting time penalties under Labor Code sections 202, 203; (7) failure to pay earned wages in a timely manner under Labor Code sections 204, 206, 218.5, 218.6; (8) failure to furnish wage hour statements under Labor Code sections 226, 226.3; (9) failure to maintain payroll records under Labor Code sections 226, 1174, 1174.5; (10) failure to pay minimum compensation under Labor Code section 1194; (11) failure to pay overtime compensation under Labor Code sections 510, 1194; and (12) unfair competition under Business and Professions Code section 17200.

At a final status conference on March 16, 2020, Defendants indicated that they would be filing motions to strike or demurrers to the TAC. The court continued the final status conference to March 30, 2020 and ordered Defendants to file any motion to strike the TAC or demurrer to the TAC by March 20, 2020. (See Minute Order 3/16/20; Beam Decl. ¶ 5; Lofgren Decl. ¶ 2.) The hearing was originally set for March 24, 2020. (Beam Decl. ¶ 5.) However, due to the COVID-19 pandemic, this hearing was continued until June 22, 2020. (Minute Order 3/30/20.)

On March 20, 2020, Mobile Modular filed a motion to strike portions of the TAC. On March 26, 2020, Plaintiffs filed an opposition to Mobile Modular’s motion to strike portions of the TAC. On March 30, 2020, MMLB and DayZ filed identical motions to strike portions of the TAC.[3] On June 9, 2020, Plaintiffs filed an opposition to MMLB’s and DayZ’s motions to strike. On June 15, 2020, MMLB and DayZ filed their reply. For judicial efficiency, the Court will rule on all three motions to strike in one order.

Legal Standard

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer (i.e., words, phrases, prayer for damages, etc.). (See CCP §§ 435-437.) A party may file a motion to strike in whole or in part within the time allowed to respond to a pleading, however, if a party serves and files a motion to strike without demurring to the complaint, the time to answer is extended. (CCP §§ 435(b)(1), 435(c).)

A motion to strike lies only where the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (CCP § 436.) The grounds for moving to strike must appear on the face of the pleadings or by way of judicial notice. (CCP § 437.)

Discussion

Mobile Modular moves to strike paragraphs 15-18, 20-21, 29-30, 32-39, 45, 47-51, 63 (lines 13-14 starting with “demoted him …”), 67-69, 83-86, 88-91, 98-101, 103-106, 113-116, 118-121, 137, and Prayer for relief, at paragraph 7 (“For punitive damages as allowed by law”). MMLB and DayZ each move to strike paragraphs 15, 17-30, 32-39, 41, 43, 45, 47-51, 63 (the words “and demoted him from ‘Assistant Manager’ to ‘Maintenance’”), 65-69, 83-91, 98-106, 113-121, and Prayer for judgment, item (7): ”For punitive damages as allowed by law.”

As a preliminary matter the Court notes that Plaintiffs have agreed to strike paragraphs 16 and 21. (Opposition to Mobile Modular’s Motion p. 12:16, p. 12:27.) Plaintiffs have further agreed to strike paragraph 22. (Opposition to MMLB’s and DayZ’s Motions p. 12:26.) Accordingly, the Court strikes paragraphs 16, 21, and 22.

Meet and Confer

Code of Civil Procedure section 435.5 requires that “[b]efore filing a motion to strike demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (CCP § 435.5(a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Id. at(a)(2).) The demurring party must also file and serve a declaration detailing the meet and confer efforts. (Id. at (a)(3).)  If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading. (Id. at (a).) However, “[a] determination by the court that the meet and confer process was insufficient is not grounds to grant or deny the motion to strike.” (Id. at (c)(4).) Further, this requirement does not apply to a motion to strike “brought less than 30 days before trial.” (Id. at (d)(4).)

Here, at the time the motions were filed, the trial was set for April 27, 2020,[4] and MMLB and DayZ filed this motion on March 30, 2020 -- less than thirty days before the trial date at the time. Accordingly, the meet and confer requirement does not apply to MMLB and DayZ’s motions to strike. With regard to Mobile Modular’s motion to strike it does not appear that any meet and confer effort occurred. However, due to the temporal proximity of the trial date and the abbreviated motion schedule set by the court, the court will consider the merits of Mobile Modular’s motion.

Timeliness

Mobile Modular first moves to strike on the grounds that Plaintiffs failed to file the Third Amended Complaint within the five days granted for leave to amend.

After expiration of the time in which a pleading can be amended, the pleading can only be amended by obtaining the permission of the court, by filing a noticed motion for leave. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613.) Thus, “[i]f an amended pleading is filed after the time allowed, an order striking the amended pleading must be obtained by noticed motion” to strike the improper pleadings. (Cal. Rules of Court, Rule 3.1320(i).) As the Court has the discretion to “[s]trike 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.” (CCP § 436(b).) However, the Court also has the discretion to accept untimely amendments to pleadings without a noticed motion. (Harlan v. Department of Transportation (2005) 132 Cal.App.4th 868, 873.)

In the Court’s March 2, 2020, order on MMLB’s and DayZ’s summary judgment motion the Court specified that Plaintiffs had five days leave to amend.[5] The time to amend a pleading “runs from the service of notice of the decision or order, unless the notice is waived in open court, and the waiver entered in the minutes.” (CCP § 472b.) Here, the Clerk mailed notice of the motion on March 2, 2020. As notice was provided by mail the time to amend the pleadings was extended by another five calendar days. Accordingly, the deadline to amend the pleadings was March 12, 2020. Plaintiffs’ Third Amended Complaint filed on March 16, 2020 was thus untimely. However, Mobile Modular fails to point to any prejudice it has suffered as a result of Plaintiffs’ four-day delay in filing the Third Amended Complaint. Further, the court notes that this period of delay occurred during a period of uncertainty caused by the COVID-19 pandemic and immediately preceded the court’s closure due to the COVID-19 crisis. Thus, the court, in its discretion, declines to strike the TAC on these grounds.

Beyond the Scope of the Leave to Amend

Defendants contend that the paragraphs that Plaintiffs have added go beyond the scope of the leave to amend granted by the court, specifically, that many of the added paragraphs are irrelevant, include new claims of disability by Plaintiff Perdue, and include claims of other lawsuits against Defendants.

When leave to amend is granted, “‘[t]he plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.’” (Zakk v. Diesel (2019) 33 Cal.App.5th 431, 456, [internal citation omitted].) However, a new cause of action may be proper when it “directly responds to the court's reason for sustaining the earlier demurrer.” (Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.)

Here, the Court sustained non-statutory judgment on the pleadings on the grounds that the second amended complaint did not include sufficient factual allegations to support punitive damages.

Management and Operational Information

Mobile Modular contends that paragraphs 15, 17, 18, 20, 30, 32, 34, 45, 47, 48, 50, 51, 63 ("and demoted him from Assistant Manager to Maintenance"), 67, 68, 85, 90, 100, 105, 115 and 120, of the TAC are irrelevant and beyond the scope for leave to amend as they merely add general background facts concerning the manner in which Defendants managed and operated the park. Similarly, MMLB and DayZ contend that paragraphs 15, 17, 18, 19, 20, 22, 23, 24, 25, 26, 27, 28, 30, 32, 34, 41 (the word “disabling”), 43, 45, 47, 48, 50, 51, 54, 63, 65, 66, 67, 68, 85, 86, 90, 98, 100, 101 (first two sentences), 105, 115, 120, are irrelevant and beyond the scope of the leave to amend as these paragraphs only relate to the ownership and management of the park.

Under Code of Civil Procedure section 436, the Court has the discretion to “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (CCP § 436(a).) However, a refusal to strike irrelevant matter does not constitute error when no substantial right has been affected by it. (Higgins v. San Diego Sav. Bank The description of Defendants’ operation of the mobile home park and the management and oversight of employees contained in the paragraphs to which Defendant object is relevant to Defendants’ awareness of actions taken against Plaintiffs and Defendants’ liability for the acts of their agents and officers. These allegations thus impact Defendants’ liability for punitive damages. To the extent that these added paragraphs may not be strictly relevant to punitive damages, they are relevant as to the causes of action in the TAC. Moreover, no substantial right is affected by the addition of these paragraphs to the TAC as they relate only to the manner in which Defendants managed and operated the park. The Court declines to strike these paragraphs.

Extraneous Lawsuits

Mobile Modular moves to strike information about a former Mobile Modular employee who worked at a different mobile home park, Willowick Royal who filed a claim for unpaid wages in 2013. (See TAC ¶¶ 29, 33, 49, 83, 89, and 113.) MMLB and DayZ likewise move to strike the same paragraphs.

Defendants contend that these claims are irrelevant to the claim for punitive damages and to the actual claims set forth in the TAC.[6] In opposition, Plaintiffs contend that these paragraphs are relevant to show Defendants’ pattern and practice.

It is well established that “me too” evidence may be admissible to prove intent even if defendant’s alleged conduct occurred outside plaintiff’s presence and at times other than when plaintiff was employed. (Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855, 870.) Plaintiffs’ pleading of similar claims against Defendants is directly relevant to claims of punitive damages. (See State Farm Mut. Auto. Ins. Co. v. Campbell (2003) 538 U.S. 408, 409, [Whether “the conduct involved repeated actions or was an isolated incident” is relevant to punitive damages.]) Accordingly, the court finds that the added allegations concerning a former Mobile Modular employee with similar claims against Mobile Modular are relevant to willfulness and malice, and thus, to punitive damages.[7]

Additional Claims as to Preston Perdue

Defendants contends that paragraphs 86, 101, 116 of the TAC are not relevant as they concern Preston Perdue, who is not a party to the action. Additionally, Defendants state that because these paragraphs allege failure to engage in the interactive process or failure to provide reasonable accommodation, which were not part of the second amended complaint, they should be stricken. In opposition, Plaintiffs contend that these paragraphs (in addition to paragraphs 45, 47, 48, 50, 51, 86, 101, and 116) “are relevant to punitive damages in that they show that Mobile Modular refused to file a workers’ compensation claim on behalf of disabled injured employee Preston Perdue, that the refusal was discriminatory, that Mobile Modular refused to engage in an interactive process after requested, but instead hired a lawyer, who terminated plaintiffs.” (Opposition p.13:5-9.) The court agrees that these paragraphs are relevant as to Defendants’ intent and willfulness, especially with respect to Plaintiffs’ causes of action for associational discrimination, retaliation and wrongful termination. Accordingly, these allegations are relevant to punitive damages. Defendants’ motions to strike these paragraphs are denied.

Plaintiff Roberto Hinojosa

Mobile Modular moves to strike paragraphs 90, 105 and 120 of the TAC stating that these are not relevant to the claim for punitive damages. MMLB and DayZ move to strike paragraphs 69, 89, 90, 104, 105, 119, 120 on the grounds that they do not relate to the claim for punitive damages.

However, Defendants’ statements and actions in terminating Hinojosa are relevant to Defendants’ intent and willfulness and are thus relevant to punitive damages. Moreover, the court finds that no substantial right is affected by the addition of these paragraphs in the TAC. The Court declines to strike these paragraphs.

False Allegations

Mobile Modular also argues that the second sentence of each of paragraphs 86, 101 and 116, which alleges that Preston Perdue was fired and that Plaintiff Delia Perdue was fired while her husband was disabled, is false. Mobile Modular argues that this allegation is false because Preston Perdue died before Plaintiff’s were terminated. MMLB and DayZ move to strike the TAC at paragraphs 86, 87, 101, 102, and 117 on the same grounds.

The TAC alleges that Preston Perdue fell and sustained disabling injuries on January 21, 2015. (TAC ¶ 41.) On March 21, 2015, Preston Perdue passed away. (TAC ¶ 56.) Plaintiff Delia Perdue was terminated on March 31, 2015. (TAC ¶ 59.) However, the TAC also alleges that although March 31, 2015 was Plaintiff Delia’s last day of employment, Delia was told of her termination on March 2, 2015. (TAC ¶ 52.) Accordingly, there is an explanation for the apparent inconsistency, and the alleged inconsistency in the allegations is an insufficient ground for striking these paragraphs. Defendants’ motions to strike these paragraphs are denied.

Plaintiff Delia Perdue’s Claims of Disability

Mobile Modular moves to strike paragraphs 35, 36, 37, 38, 39, 83, 84, 98, 99, 113 and 114 of the TAC, which allege that Delia Perdue became physically disabled during her time working at the park. MMLB and DayZ also move to strike these paragraphs on the grounds that these paragraphs allege irrelevant information as neither the Second Amended Complaint nor the Third Amended Complaint includes any cause of action for disability discrimination, failure to engage in an interactive process, or failure to provide a reasonable accommodation.

In opposition, Plaintiff argues that this evidence is relevant to show the willful intent of Defendants and their pattern and practice of wrongful discriminatory conduct.

The paragraphs at issue allege that Plaintiff Delia Perdue underwent knee surgery and was visibly disabled from October 13, 2014 through December 6, 2014. (TAC ¶¶ 35-38.) During this time, Defendants did not engage in the interactive process to see what accommodations she needed. (TAC ¶ 39.) Plaintiff alleges that this has been a pattern of conduct by Defendants. (TAC ¶¶ 83, 98, 113.) Paragraphs 84, 99, and 114 pertain to Plaintiff Delia Perdue’s request for an interactive process for Preston Perdue after his injury.

Each of these allegations appear relevant to punitive damages in potentially showing a pattern of practice, specifically, repeated failure and/or refusal to engage in the interactive process and to make reasonable accommodations. As such, these allegations shed light on Defendants’ intent and willfulness in connection with Plaintiffs’ associational discrimination, retaliation, and wrongful termination claims. Accordingly, these paragraphs fall within the scope of leave granted by the Court.

Punitive Damages

Defendants move to strike punitive damages on grounds that Plaintiffs plead insufficient facts to support such recovery.

California Civil Code section 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .” (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. at (c)(1).) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Id. at (c)(2).) “‘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.” (Id. at (c)(3).) Punitive damages thus require more than the mere commission of a tort. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95.)

The Court of Appeal has held that as a matter of law, “wrongful termination, without more, will not sustain a finding of malice or oppression.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 717; cf. Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1288, fn. 14 [“‘[P]unitive damages should not be allowable upon evidence that is merely consistent with the hypothesis of malice, fraud, gross negligence or oppressiveness.’”].) “‘Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or “malice,” or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.’ [Citation.]” (Taylor, supra, 24 Cal.3d at 894–895, [italics omitted].) As such, specific facts must be pleaded in support of punitive damages. (See Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-92.)

Court have found a basis for punitive damages in wrongful termination and employment discrimination cases where defendants have engaged in conduct designed to hide the wrongful, discriminatory conduct. For example, in Cloud v. Casey (1999) 76 Cal.App.4th 895, 90 Cal.Rptr.2d 757, a female employee was passed over for promotion because of her gender. The court upheld the employer’s liability for punitive damages because the employer not only denied the plaintiff a promotion based on gender, but also then attempted to hide its illegal reason for the denial with a false explanation. The court explained that it was this fabrication that constituted the despicable conduct. (Id. at p. 912.) More recently, in Colucci v. T-Mobile USA, Inc. (2020) 48 Cal.App.5th 442, the Court of Appeals found that punitive damages were supported as there was evidence that the defendant company attempted to hide its reason for terminating the plaintiff. 

Here, the TAC sufficiently alleges a basis for punitive damages. In particular, the TAC alleges that on January 21, 2015, Preston Perdue fell while working and was disabling injured. (TAC ¶ 41.) On February 21, 2015, Plaintiff Delia Perdue emailed Mobile Modular requesting to talk about Preston Perdue’s condition as he would not be able to get back to a hundred percent. (TAC ¶ 47.) On March 2, 2015, Defendants met and planned to terminate Preston Perdue and Plaintiff Delia Perdue with a final date of March 31, 2015 and a severance package including a release of claims. (TAC ¶ 51.) However, Plaintiffs allege that Defendants attempted to mislead Plaintiffs with their statements that MMLB and DayZ would be firing everyone, including Mobile Modular, and that the only one who would not be terminated would be Plaintiff Roberto Hinojosa. (TAC ¶¶ 52-53.) Plaintiffs further allege that on April 3, 2015, Mobile Modular likewise misrepresented to Plaintiff Delia Perdue that MMLB and DayZ had fired her because Mobile Modular services had been “cut back to record keeping and not providing on site management.” (TAC ¶ 62.) However, on June 16, 2015, Plaintiff Roberto Hinojosa “was still employed by Mobile Modular at Daleview Mobile Home Estates, despite Mobile Modular’s representation that their services were ‘cut back to record keeping and not providing on site management.’” (TAC ¶ 64.) Taking these allegations as true, which the court must do for purposes of these motions to strike, these allegations support an inference that Defendants’ actual reason for terminating Plaintiff Delia Perdue was due to Preston Perdue’s injury and Delia Perdue’s request for an interactive process for Preston Perdue after his injury and that Defendants willfully hid this reason from Plaintiffs with a series of misrepresentations. Accordingly, Defendants’ motions to strike punitive damages are denied.

TRIAL AND FINAL STATUS CONFERENCE DATES Due to the COVID-19 pandemic and current unavailability of civil jurors, the June 22, 2020 final status conference and trial date will have to be continued. The parties should be prepared to address the resetting of the final status conference and trial, likely in September 2020.

CONCLUSION AND ORDER

Based on the forgoing, Defendants’ motions to strike are GRANTED only as to paragraphs 16, 21, and 22 of the TAC. Defendants’ motions to strike are otherwise DENIED.  Defendants are to answer within 10 days.

The trial is continued to September ___, 2020 at 9:30 am. The final status conference is continued to August ___, 2020 at 9:00 am. All discovery and motion cut-off dates are continued based on the new trial date.

Moving Defendants are ordered to provide notice of this order and file proof of service of such within 5 days.

[1] The Court notes that the time to bring a civil case to trial under Code of Civil Procedure 583.310 has been extended by six months pursuant to Emergency Rule 10(a) of the California Rules of Court.

[2] The Court notes that the original action included Dina Perdue-Caldera as a plaintiff and Mara Dragos as a defendant. On February 18, 2020, Dina Perdue-Caldera dismissed all claims against all defendants with prejudice. Additionally, on February 18, 2020, plaintiffs Delia Perdue, and Roberto Hinojosa dismissed all causes of action against Mara Dragos with prejudice.

[3] In light of the then impending trial date, the court set an abbreviated briefing schedule for these motions to strike. The court finds that Counsel for MMLB and DayZ was understandably unable to file the motions by the original March 20, 2020 deadline due to the COVID-19 pandemic. (Lofgren Decl. ¶ 2.) . Accordingly, the court will consider MMLB’s and DayZ’s motions to strike..

[4] The trial was continued after MMLB and DayZ filed their motions. (Minute Order 3/30/20.)

[5] As the order did not specify five court days, time is calculated by calendar days. (Cal. Rules of Court, Rule 1.10; CCP § 12.)

[6] Defendants also argue that Plaintiffs’ allegation that these other lawsuits are the “same as with this lawsuit” (TAC ¶¶ 83, 98, and 113) is false because Plaintiffs do not allege identical causes of action. However, these allegations are reasonably construed to imply that the claims raised in this action share the same or similar factual basis as with two other lawsuits.

[7] Defendants provide evidence that these other actions against Defendants were unsuccessful. On a motion to strike, the court is constrained to a review of the pleadings, and Defendants’ argument based on evidence is beyond the scope of the instant motion. At most, this argument will go to the weight of this as evidence -- not whether the allegations are properly included within the TAC. (See Beam Decl. ¶ 6.)

Case Number: BC585415    Hearing Date: February 21, 2020    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

delia perdue; dina perdue-caldera; and roberto hinojosa,

Plaintiffs,

v.

Mobile Modular development, inc., et al.

Defendants.

Case No.: BC585415

Hearing Date: February 21, 2020

[TENTATIVE] order RE:

Defendant Mobile modular development inc.’s motion for SUMMARY ADJUdiCATION

Procedural Background

On August 30, 2016, Plaintiffs Delia Perdue, Dina Perdue-Caldera, and Roberto Hinojosa (collectively “Plaintiffs”) filed the operative second amended complaint against Defendants Mobile Modular Development, Inc., MMLB Associates, Dayz Holdings, LLC, Mara Dragos, and Does 1 through 25 for (1) age discrimination under Gov. Code section 12940, subdivision(a); (2) associational employment discrimination under Government Code section 12940, subdivision (a); (3) retaliation under Government Code section 12940, subdivision(h); (4) aiding and abetting employment discrimination under Government Code section 12940, subdivision(i); (5) harassment and failure to prevent harassment under Government Code section 12940, subdivisions (j-k); (6) wrongful termination in violation of public policy; (7) intentional infliction of emotional distress; (8) fraud and intentional deceit; (9) waiting time penalties under Labor Code sections 202, 203; (10) failure to pay earned wages in a timely manner under Labor Code sections 204, 206, 218.5, 218.6; (11) failure to furnish wage hour statements under Labor Code sections 226, 226.3; (12) failure to maintain payroll records under Labor Code sections 226, 1174, 1174.5; (13) failure to pay minimum compensation under Labor Code section 1194; (14) failure to pay overtime compensation under Labor Code sections 510, 1194; (15) unpaid wages of deceased spouse under Probate Code section 13600; (16) unfair competition under Business and Professions Code section 17200. Of these causes of action, Defendant Mara Dragos is not included in the first, second, third, sixth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, and sixteenth causes of action. Mobile Modular Development Inc. is not included in the fourth cause of action.

On December 16, 2016, Plaintiffs dismissed the fifth and eighth causes of action of the Second Amended Complaint as to defendants MMLB Associates, Dayz Holdings, LLC, and Mara Dragos with prejudice.

On December 6, 2019, Defendant Mobile Modular Development, Inc. (“Mobile Modular”) filed the instant motion for summary adjudication. No opposition has been filed.

Mobile Modular moves for summary adjudication against Delia Perdue as to the fifteenth cause of action, and for summary adjudication against Dina Perdue-Caldera as to all of the causes of action.

On February 18, 2020, Delia Perdue dismissed the fifteenth cause of action as to Mobile Modular with prejudice.[1] On February 18, 2020, Dina Perdue-Caldera dismissed the entirety of the Second Amended Complaint as to all defendants.

CONCLUSION AND ORDER

As Plaintiffs have voluntarily dismissed all of the causes of action at issue in the instant motion for summary adjudication, Mobile Modular Development, Inc.’s motion for summary adjudication is MOOT.

Mobile Modular is ordered to provide notice of this order and file proof of service of such.

DATED: February 21, 2020 ___________________________

Elaine Lu

Judge of the Superior Court


[1] Plaintiff Delia Perdue also dismissed the fifth, seventh, and eighth causes of action as to Mobile Modular with prejudice. Plaintiff Roberto Hinojosa on the same day dismissed the fifth, seventh, and eighth causes of action as to Mobile Modular with prejudice.

__________________________________________________________________________________________

Superior Court of California

County of Los Angeles

Department 26

delia perdue; dina perdue-caldera; and roberto hinojosa,

Plaintiffs,

v.

Mobile Modular development, inc., et al.

Defendants.

Case No.: BC585415

Hearing Date: February 21, 2020

[TENTATIVE] order RE:

Defendant Mara Dragos’s MOTIONs FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUdiCATION

Procedural Background

On August 30, 2016, Plaintiffs Delia Perdue, Dina Perdue-Caldera, and Roberto Hinojosa (collectively “Plaintiffs”) filed the operative second amended complaint against Defendants Mobile Modular Development, Inc., MMLB Associates, Dayz Holdings, LLC, Mara Dragos, and Does 1 through 25 for (1) age discrimination under Gov. Code § 12940(a); (2) associational employment discrimination under Government Code section 12940, subdivision (a); (3) retaliation under Government Code section 12940, subdivision(h); (4) aiding and abetting employment discrimination under Government Code section 12940, subdivision(i); (5) harassment and failure to prevent harassment under Government Code section 12940, subdivisions (j-k); (6) wrongful termination in violation of public policy; (7) intentional infliction of emotional distress; (8) fraud and intentional deceit; (9) waiting time penalties under Labor Code sections 202, 203; (10) failure to pay earned wages in a timely manner under Labor Code sections 204, 206, 218.5, 218.6; (11) failure to furnish wage hour statements under Labor Code sections 226, 226.3; (12) failure to maintain payroll records under Labor Code sections 226, 1174, 1174.5; (13) failure to pay minimum compensation under Labor Code section 1194; (14) failure to pay overtime compensation under Labor Code sections 510, 1194; (15) unpaid wages of deceased spouse under Probate Code section 13600; (16) unfair competition under Business and Professions Code section 17200. Of these causes of action, Defendant Mara Dragos is not included in the first, second, third, sixth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, and sixteenth causes of action. Mobile Modular Development Inc. is not included in the fourth cause of action.

On December 16, 2016, Plaintiffs dismissed the fifth and eighth causes of action of the Second Amended Complaint as to defendants MMLB Associates, Dayz Holdings, LLC, and Mara Dragos with prejudice.

On December 6, 2019, defendant Mara Dragos filed a motion for summary judgment or in the alternative summary adjudication as to all Plaintiffs and all causes of action that pertain to Mara Dragos, the fourth cause of action, seventh cause of action, and to punitive damages. On February 3, 2020, Mara Dragos filed a notice of errata to correct citations in their moving papers.

On February 18, 2020, Plaintiff Dina Perdue-Caldera dismissed the entirety of the second amended complaint as to all defendants with prejudice. On February 18, 2020, Plaintiffs Delia Perdue and Roberto Hinojosa dismissed the entirety of the second amended complaint as to Mara Dragos with prejudice.

CONCLUSION AND ORDER

As no causes of action remain against her, Mara Dragos’s motion for summary judgment or in the alternative for summary adjudication is MOOT.

Moving Party is to give notice.

DATED: February 21, 2020 ___________________________

Elaine Lu

Judge of the Superior Court