Hughes vs. Orange County

For this reason, the court will not decide questions of fact on demurrer. (See Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1556.)

Instead, the court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” (Serrano v. Priest (1971) 5 Cal.3d 584, 591, citation omitted; see Blank v. Kirwan (1985) 39 Cal.3d 311, 318).

Therefore, the court will not consider facts that have not been alleged in the complaint unless they may be reasonably inferred from the matters alleged or are proper subjects of judicial notice. (Hall v. Great W. Bank (1991) 231 Cal.App.3d 713, 718 fn.7.)

However, “where facts appearing in attached exhibits or judicially noticed documents contradict, or are inconsistent with, the complaint's allegations, we must rely on the facts in the exhibits and judicially noticed documents.” (Jimenez vs. Mrs. Gooch’s Natural Foods Markets, Inc. (2023) 95 Cal.App.5th 645, 653.)

Although courts should take a liberal view of inartfully drawn pleadings, (see Code Civ. Proc., § 452), it remains essential that a pleading set forth the actionable facts relied upon with sufficient precision to inform the responding party of the matters that the pleading party is alleging, and what remedies or relief is being sought, (see Leek v. Cooper (2011) 194 Cal.App.4th 399, 413).

Bare conclusions of law devoid of any facts are insufficient to withstand demurrer. (Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 481; see Code Civ. Proc., § 425.10, subd. (a).)

1st Cause of Action (Violation of the Tom Bane Civil Rights Act)

The 1st Cause of Action for Violation of the Tom Bane Civil Rights Act is asserted against only Defendant Capitulo and Defendant Tiffany Williams.

The Tom Bane Civil Rights Act (Tom Bane Act) states:

If a person or persons, whether or not acting under color of law, interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state, the Attorney General, or any district attorney or city attorney may bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California, in order to protect the peaceable exercise or enjoyment of the right or rights secured.

An action brought by the Attorney General, any district attorney, or any city attorney may also seek a civil penalty of twenty-five thousand dollars ($25,000). If this civil penalty is requested, it shall be assessed individually against each person who is determined to have violated this section and the penalty shall be awarded to each individual whose rights under this section are determined to have been violated.

(Civil Code, § 52.1, subd. (b).)

In order to make out a claim under the Tom Bane Act, “[a] plaintiff must show (1) intentional interference or attempted interference with a state or federal constitutional or legal right, and (2) the interference or attempted interference was by threats, intimidation, and coercion.” (Allen v. City of Sacramento (2015) 234 Cal. App. 4th 41, 67.)

In addition, statutory causes of action must be pleaded with particularity. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.) Thus, a plaintiff “must set forth factual allegations that sufficiently state all required elements of [a] cause of action . . . and, [a]llegations must be factual and specific, not vague or conclusory.” (Rakestraw v. Cal. Physicians’ Serv. (2000) 81 Cal. App. 4th 39, 43.)

Here, the 4AC fails to allege how Defendant Capitulo acted in any manner to threaten, intimidate, or coerce Plaintiff.

Plaintiff makes the same arguments that he made in response to the demurrers to the Third Amended Complaint.

Plaintiff asserts that the 4AC alleges that “Defendants” acted “violently with respect to Plaintiff’s property by

improperly altering and destroying Plaintiff’s property [death investigation files] in an effort to deprive Plaintiff of his interest and rights.” (4AC, ¶ 44.)

While Plaintiff uses the word “violently” in this allegation, when read in context, it is clear that the violence, if any, was done to the investigation files and not to Plaintiff.

Thus, this allegation is insufficient to make out any interference by way of threat, intimidation, or coercion to Plaintiff, as the Tom Bane Act requires.

Plaintiff also contends that the 4AC pleads that “Defendants threatened and intimidated Plaintiff with sanctions in an effort to deprive Plaintiff of his interests and rights to Serette’s death investigatory files.” (4AC, ¶ 45)

When this paragraph is read is read in its entirety, it is clear that this refers to statements that Defendants made that they would seek sanctions in legal proceedings.

These are not the kinds of threats, intimidation, or coercion that the Tom Bane Act is intended to protect against and they are, in any case, protected by the Litigation Privilege. (See Civil Code, § 47; Rubin v. Green (1993) 4 Cal.4th 1187, 1193 [“[C]ommunications with ‘some relation’ to judicial proceedings have been absolutely immune from tort liability by the privilege codified as section 47(b).”].)

Further, the 4AC fails to allege, with the specificity required for a statutory violation, that Defendant Capitulo made any threats or committed any acts of intimidation or coercion.

The court will sustain the demurrer to the 1st Cause of Action as to Defendant Capitulo.

2nd Cause of Action (Intentional Infliction of Emotional Distress), 4th Cause of Action (Conversion), and 5th Cause of Action (Trespass to Chattels)

These causes of action are asserted against all Defendants.

Defendant OC and Defendant OCSD

The court previously sustained the demurrer of Defendant OC and Defendant OCSD to the 2nd, 4th, and 5th Causes of Action without leave to amend. (See ROA #336.)

Therefore, it is improper for Plaintiff to reassert these claims against Defendant OC and Defendant OCSD in the 4AC.

For this reason, the court will sustain the demurrer to the 2nd, 4th, and 5th Causes of Action as to Defendant OC and Defendant OCSD.

Defendant Capitulo

“It is a well-settled rule that ‘there is no common law governmental tort liability in California; and except as otherwise provided by statute, there is no liability on the part of a public entity for any act or omission of itself, a public employee, or any other person.’” (Green Valley Landowners Assn. v. City of Vallejo (2015) 241 Cal.App.4th 425, 441–442, quoting Cowing v. City of Torrance (1976) 60 Cal.App.3d 757, 761.)

Specifically, Government Code section 815 states:

Except as otherwise provided by statute:

(a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.

(Gov. Code, § 815.)

As the Court of Appeal has explained:

[B]ecause under the Tort Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Thus, “to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.”

(Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795, quoting Peter W. v. San Francisco Unified School Dist. (1976) 60 Cal.App.3d 814, 819; Soliz v. Williams (1999) 74 Cal.App.4th 577, 585.)

In addition, a complaint must allege “a mandatory statutory duty as required by Government Code section 815.” (Cochran v. Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 410, fn.2.) Where “[n]either [the] complaint actually alleges any duty on the part of the City. . . nor . . . any facts in support of the purported duties,” the complaint is subject to demurrer. (Ibid.)

The Court of Appeal has specifically held that:

Duty cannot be alleged simply by stating “defendant had a duty under the law”; that is a conclusion of

law, not an allegation of fact. The facts showing the existence of the claimed duty must be alleged. Since the duty of a governmental agency can only be created by statute or “enactment,” the statute or “enactment” claimed to establish the duty must at the very least be identified.

(Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802, citations omitted.)

Defendant Capitulo argues that Plaintiff has failed to specifically identify the statute or enactment that creates government liability and/or a statutory duty to support these causes of action.

In response, Plaintiff relies upon the same arguments he made in opposing the demurrers to the Third Amended Complaint.

Plaintiff points to the fact that the 4AC cites to Government Code section 815.2.

That provision states:

A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.

(Gov’t Code, § 815.2, subd. (a).)

However, Section 815.2 creates a basis to place liability upon a public entity for the acts or omissions of their employees. It does not create a basis for liability upon the employee.

Here, the 4AC contains no allegations that Defendant Capitulo is a public entity or that Defendant Capitulo is liable for the acts or omissions of her employees.

Plaintiff also cites to Government Section 820, which does apply to the employees of a public entity: “Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.” (Gov’t Code, § 820, subd. (a).)

However, as the court previously ruled, the 4AC does not contain sufficient allegations to show that Defendant Capitulo is liable “to the same extent as a private person”

for intentional infliction of emotional distress, conversion, or trespass to chattels.

The elements of a cause of action for intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress from the defendant’s outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050- 1051.)

The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages. (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.)

Finally, the elements of a cause of action for trespass to chattels are (1) the plaintiff’s possession of the property, (2) the defendant’s intentional interference with the plaintiff’s use of the property, (3) without the plaintiffs consent, and (4) damages. (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1566-1567.)

While the 4AC mentions a conversation that Plaintiff had with Defendant Tiffany Williams (Defendant Williams) and attaches communications between Plaintiff and Defendant Williams and Defendant Capitulo, (see 4AC, ¶¶ 11, 51, Exh.s D-E, G), the 4AC does not contain any allegations that Defendant Capitulo engaged in any extreme or outrageous conduct, converted Plaintiff’s property, or interfered with Plaintiff’s use of his property

As the court previously noted in sustaining the demurrers to the Third Amended Complaint, the communications attached to the 4AC merely informed Plaintiff that records had been destroyed or redacted — i.e., the communications responded to Plaintiff’s inquiries. There are no allegations of fact to show that Defendant Capitulo destroyed the records or that any alleged destruction was outside the scope of employment or against policy.

In short, the 4AC does not allege any actions taken by Defendant Capitulo that would support a cause of action for intentional infliction of emotional distress, conversion, or trespass to chattels.

The court will sustain the demurrer to the 2nd, 4th, and 5th Causes of Action as to Defendant Capitulo.

3rd Cause of Action (Negligence)

This cause of action is asserted against all Defendants.

“The elements of a cause of action for negligence are well established. They are ‘(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.’” (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 834, quoting 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 732, pp. 60-61, italics original.)

“Duty ‘is an essential element’ of the tort of negligence.” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529, quoting Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.)

“The existence and scope of duty are legal questions for the court,” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 467, 477), which the court makes on a case-by-case basis, (see Isaacs v. Huntington Mem’l Hosp. (1985) 38 Cal.3d 112, 124.)

Here, the 4AC alleges that “defendants had a statutory duty to preserve Serette’s death investigatory files.” (4AC, ¶ 60.) However, the 4AC fails to state the basis of this duty.

The 4AC cites to Government Code section 815.6, (see id., ¶ 61), but that provision only states that:

Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.

(Gov’t Code, § 815.6.)

However, neither the 4AC or Plaintiff point to any “enactment” that required Defendants to preserve the investigatory files.

The 4AC also points to Civil Code section 1714(a). (See id., ¶ 61.)

That provision only states the general rule of negligence that “[e]veryone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the

management of his or her property or person . . . .” (Civil Code, § 1714, subd. (a).) It says nothing about a duty to preserve investigatory files.

The 4AC does assert that, based “on the Breach of Contract allegation below,” there exists “a contractual duty to preserve Serette’s death investigatory files.” (Id., ¶ 60, bold original.)

However, as the court has determined previously and determines again below, Plaintiff’s breach of contract claim fails as well.

In any case, the economic loss rule bars the recovery in tort for breach of a duty based purely on contract, (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988 [“[T]he economic loss rule provides: [W]here a purchaser's expectations in a sale are frustrated because the product he bought is not working properly, his remedy is said to be in contract alone, for he has suffered only ‘economic’ losses.”].)

The court will sustain the demurrer to the 3rd Cause of Action.

6th Cause of Action (Breach of Contract)

The court previously overruled Defendant OC’s and Defendant OCSD’s demurrer to the 6th Cause of Action, (see ROA #337), and they do not seek here to challenge the 6th Cause of Action here.

However, Defendant Capitulo does demur to the 6th Cause of Action of the 4AC.

While Supreme Court has determined that a tort claim for spoliation of evidence may not be brought in this state because there is no general tort duty to preserve evidence, it has recognized that a duty to preserve evidence may exist independent of general tort law:

We observe that to the extent a duty to preserve evidence is imposed by statute or regulation upon the third party, the Legislature or the regulatory body that has imposed this duty generally will possess the authority to devise an effective sanction for violations of that duty. To the extent 3rd parties may have a contractual obligation to preserve evidence, contract remedies, including agreed-upon liquidated damages, may be available for breach of the contractual duty.

(Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 464 477.)

As the Court of Appeal noted, “[a] contractual remedy may give rise to some of the same burdens and costs as would a spoliation tort remedy, but we cannot negate a contractual obligation based on policy considerations other than specific grounds such as illegality (Civ. Code, §§ 1598, 1599, 1608, 1667) and unconscionability (Civ. Code, § 1670.5).” (Coprich v. Superior Court (2000) 80 Cal.App.4th 1081, 1092.)

The Court of Appeal also has stated that the duty to preserve evidence may arise not only from contract, but also from promissory estoppel. (See Rosen v. St. Joseph Hospital of Orange County (2011) 193 Cal.App.4th 453, 461 [“[I]f the defendant enters upon an affirmative course of conduct affecting the interests of another, he is regarded as assuming a duty to act, and will thereafter be liable for negligent acts or omissions . . . .”].)

Therefore, the court will consider whether the 4AC properly makes out a cause of action for breach of contract, which “is comprised of the following elements: (1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.)

The court also will determine whether the 4AC states the elements of a promissory estoppel claim, which are: “(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) his reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.” (Laks v. Coast Fed. Sav. & Loan Ass’n (1976) 60 Cal.App.3d 885, 890.)

Here, the 4AC fails to allege the Defendant Capitulo entered into a contract with Plaintiff.

The 4AC does plead that “[t]he agents of Defendant Orange County, including Tiffany Williams, Jessica Capitulo, and other DOES, assured that Orange County and Orange County Coroner’s office would retain Serette’s files for Plaintiff Albert Hughes III.” (4AC, p 81.)

The fact that the 4AC alleges that Defendant Capitulo was acting as the agent of Defendant OC and that Defendant Capitulo promised that Defendant OC and the Orange County Coroner’s office (and not Defendant Capitulo herself) would retain the investigatory files, makes it clear

that Defendant Capitulo was acting in her capacity as an employee and/or agent of Defendant OC or Defendant OCSD.

Thus, the 4AC contains no allegations to support a promissory estoppel claim against Defendant Capitulo. In other words, the 4AC fails to plead that Defendant Capitulo made a clear and unambiguous promise that she would take any action (or refrain from taking any action).

The court will sustain the demurrer to the 6th Cause of Action as to Defendant Capitulo.

Uncertainty

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Demurrers for uncertainty “are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Fin. Indus. Regulatory Auth. (2012) 208 Cal.App.4th 1125, 1135.) “[A] demurrer for uncertainty will not be sustained where the facts claimed to be uncertain or ambiguous are presumptively within the knowledge of the demurring party.” (Ching v. Dy Foon (1956) 143 Cal.App.2d 129, 136.)

“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.)

Defendants argue that the 4AC is uncertain as to Defendant Capitulo because it fails to allege whether Plaintiff is bringing this action against Defendant Capitulo in her official or personal capacity.

However, in light of the fact that the court has sustained the demurrer as to all claims asserted against Defendant Capitulo, it is not necessary for the court to address this issue, except to state that, to the extent Plaintiff amends the complaint, he should be mindful of the need to be clear whether Defendant Capitulo is being sued in her official or personal capacity.

Leave to Amend

“It is an abuse of the trial court's discretion to sustain a demurrer without leave to amend if there is a reasonable possibility the plaintiff can amend the complaint to allege any cause of action.” (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711.) 1227.)

However, it is the plaintiff's “burden to establish how the complaint can be amended to state a valid cause of action.” (Sanowicz v. Bacal (2015) 234 Cal.App.4th 1027, 1044.) In order to meet this burden, a plaintiff may submit a proposed amended complaint or enumerate facts and demonstrate how those facts establish a cause of action. (See Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 890.)

The trial court properly sustains a demurrer without leave to amend where plaintiff fails to meet its burden. (Jensen v. Home Depot (2018) 24 Cal.App.5th 92, 97.) “[N]otwithstanding the liberal policy favoring amendment of complaints, upon sustaining a demurrer to a first amended complaint, the court may deny leave to amend when the plaintiff fails to demonstrate the possibility of amendments curing the first amended complaint's defects.” (Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 579.)

Plaintiff has requested leave to amend the 4AC.

However, with respect the 1st, 2nd, 4th, and 5th Causes of Action, Plaintiff has made multiple attempts to state a viable cause of action and has failed each time. Nor does Plaintiff propose any specific amendments that would cure the deficiencies in these causes of action.

Therefore, the court will deny leave to amend as to the 1st, 2nd 4th, and 5th Causes of Action.

However, with respect to 3rd and 6th Causes of Action, this is the first time the court has sustained a demurrer to these causes of action and Plaintiff has not had a prior opportunity to amend.

Thus, the court will grant leave to amend as to the 3rd and 6th Causes of Action.

The parties are reminded that, when leave to amend is granted upon the sustaining of a demurrer, amendments are limited to the issues addressed in the court’s ruling and generally may not include amendments to causes of action not addressed in the ruling or the addition of new causes of action. (See Community Water Coalition v. Santa Cruz County Local Agency Formation Com. (2011) 200 Cal.App.4th 1317, 1329 [“It is the rule that when a trial

court sustains a demurrer with leave to amend, the scope of the grant of leave is ordinarily a limited one. It gives the pleader an opportunity to cure the defects in the particular causes of action to which the demurrer was sustained, but that is all.”].)

Motion to Strike

Defendants Orange County’s, Orange County Sheriff’s Department’s, and Jessica Capitulo’s Motion to Strike Punitive Damages to Plaintiff’s Fourth Amended Complaint is GRANTED with 15 days leave to amend.

If Plaintiff Albert Hughes III does not amend the 4th Amended Complaint within the period of time stated above, Defendants Orange County and Orange County Sheriff’s Department shall file an answer or other pleading in response to the remaining cause of action of the 4th Amended Complaint within 10 days of the expiration of the period of time to amend. (See Cal. Rules of Court rule 3.1320(j).)

Pending Motion

Defendant Orange County (Defendant OC), Defendant Orange County Sheriff’s Department (Defendant OCSD), and Defendant Jessica Capitulo (Defendant Capitulo) move to strike the requests for punitive damages contained Paragraphs 1, 49, and 83 of the Fourth Amended Complaint for Damages (4AC) filed by Plaintiff Albert Hughes III.

Timeliness of Reply

As an initial matter, Plaintiff objects that Defendants’ reply was filed late. (See ROA #590.)

However, Defendants’ reply papers were filed and served on May 22, 2026, which is 5 court days before the hearing and therefore timely. (See ROA #586; Code Civ. Proc., s 1005, subd. (b) [“All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.].)

Further, Plaintiff does not point to any prejudice that he suffered.

Therefore, the court will overrule the objection and consider Defendants’ reply papers.

Standard for Motion to Strike

A party may move to strike out any irrelevant, false, or improper matter inserted in any pleading or strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.)

“Irrelevant” matters include: allegations not essential to the claim, allegations neither pertinent to nor supported by an otherwise sufficient claim, or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).)

A party may also request to strike legal conclusions. (Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:179 (2010).) Specifically, conclusory allegations that are not supported by factual allegations in the complaint may be stricken. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.)

For example, prayers for relief that lack factual foundation may be stricken from a complaint. (See Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63 [trial court properly struck prayer for punitive damages where complaint failed to allege sufficient facts to show that defendant acted with malice, oppression, or fraud].)

The grounds for a motion to strike must appear on the face of the pleading or from matters which the court may judicially notice. (See Code Civ. Proc., § 437.)

However, pleadings are to be construed liberally with a view to substantial justice. (Code Civ. Proc., § 452; Weil & Brown, Cal. Prac. Guide, Civil Proc. before Trial, ¶ 7:197 (2010).)

“In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. In ruling on a motion to strike, courts do not read allegations in isolation.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255, citations omitted.)

Striking Punitive Damages

To obtain punitive damages, a plaintiff must plead and prove one of the following: malice, oppression, or fraud. (See Civil Code, § 3294, subd. (a).)

“Malice” is defined as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful

and conscious disregard of the rights or safety of others.” (Civil Code, § 3294, subd. (a)(1).)

“Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Civil Code, § 3294, subd. (a)(2).)

“Fraud” is defined as “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.” (Civil Code, § 3294, subd. (a)(3).)

In order to survive a motion to strike, a complaint must not only allege in general terms oppression, fraud, or malice, but also plead ultimate facts in support. (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.”], citations omitted.)

Conduct carried on with a willful and conscious disregard of the rights or safety of others, but that is not “despicable,” will not support an award of punitive damages. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)

“Despicable conduct” refers to circumstances that are so vile, base, or contemptible that it would be looked down on and despised by reasonable people. (Ibid.; Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715.) Such conduct has been described as “having the character of outrage frequently associated with crime.” (Scott v. Phoenix Schools, Inc., supra, 175 Cal.App.4th at p. 715.)

“Consequently, to establish malice, ‘it is not sufficient to show only that the defendant's conduct was negligent, grossly negligent or even reckless.’” (Bell v. Sharp Cabrillo Hospital (1989) 212 Cal.App.3d 1034, 1044, quoting Flyer's Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155.)

“The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages. . . . Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff's rights, a level which decent citizens should not have to tolerate.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210, citations and quotation marks omitted.)

In addition, to recover punitive damages against a

corporate defendant based on the acts of its employee, the plaintiff must plead facts showing that the employer “had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or [wrongful] act must be on the part of an officer, director, or managing agent of the corporation.” (Civil Code, § 3294, subd. (b).)

The court previously granted Defendant OC’s and Defendant OCSD’s motion to strike the allegations regarding and prayer for relief for punitive damages without leave to amend. (See ROA #336.)

Therefore, it is improper for Plaintiff to reassert these allegations and request against Defendant OC and Defendant OCSD in the 4AC.

For this reason, the court will grant the motion to strike as to Defendant OC and Defendant OCSD.

With respect to Defendant Capitulo, the court has sustained the demurrer as to every cause of action asserted against her.

Thus, there is no cause of action asserted against Defendant Capitulo upon which a request for punitive damages may be premised.

The court will grant the motion to strike as to Defendant Capitulo as well.

Leave to Amend

In ruling on a motion to strike, the court employs the same liberality to amend as used for demurrers. As long as there is a reasonable possibility that plaintiffs can cure the defects, leave to amend is appropriate. (See Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 168; Price v. Dames & Moore (2001) 92 Cal.App.4th 355, 360.)

However, it is the plaintiff's “burden to establish how the complaint can be amended to state a valid cause of action.” (Sanowicz v. Bacal (2015) 234 Cal.App.4th 1027, 1044.) In order to meet this burden, a plaintiff may submit a proposed amended complaint or enumerate facts and demonstrate how those facts establish a cause of action. (See Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 890.)

The trial court properly sustains a demurrer without leave to amend where plaintiff fails to meet its burden. (Jensen v. Home Depot (2018) 24 Cal.App.5th 92, 97.) “[N]otwithstanding the liberal policy favoring amendment of complaints, upon sustaining a demurrer to a first amended complaint, the court may deny leave to amend when the plaintiff fails to demonstrate the possibility of amendments curing the first amended complaint's defects.” (Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 579.)

Plaintiff has requested leave to amend the 4AC.

Plaintiff proposes to add a reference to Civil Code section 3294, and a conclusory allegation that Defendants acted in a malicious, oppressive, and fraudulent manner.

However, Plaintiff’s additions do not include any ultimate facts that would support the award of punitive damages.

Further, the only claims that Plaintiff could assert against Defendants, after amending the complaint in response to the demurrer, are the 3rd Cause of Action for negligence and the 6th Cause of Action for promissory estoppel.

It is unclear how Plaintiff could justify punitive damages on the basis of either of those causes of action. (See Krusi v. Bear, Stearns & Co. (1983) 144 Cal.App.3d 664, 680 [“[M]ere negligence, which — even if gross, or reckless — cannot justify punitive damages.”]; CalFarm Ins. Co. v. Krusiewicz (2005) 131 Cal.App.4th 273, 277 [“Punitive damages are not recoverable under a claim of promissory estoppel.”].)

Therefore, the court will deny leave to amend as to allegations regarding and prayer for relief for punitive damages.

Defendants shall give notice of these rulings.