Praveen Sevugan v. Presidio Brands, Inc. dba Every Man Jack

In early 2024, Defendant’s Board of Directed requested a brand health study for an ad run. Plaintiff worked closely with Glass Insights to run the study, which showed that a campaign with which Ms. Off had been involved was ineffective. Ms. Off did not provide feedback when Plaintiff showed her the results. At the request of the company’s crossfunctional leadership team, Plaintiff shared the results with that team. Ms. Off instructed Glass Insights to revise the findings and recommendations, chastised Plaintiff for sharing results with the team, and instructed Plaintiff to bury and hide the findings in the report.

Glass Insights adjusted some but not all of the report and Ms. Off threatened to fire Plaintiff if he shared the revised report with anyone. Ms. Off shared inaccurate information with the sales team when they asked for a copy of the report. Plaintiff told Ms. Off he did not think this was appropriate. Ms. Off subsequently removed him from the cross-functional leadership team which negatively impacted his ability to do his job and negatively impacted the company.

In April 2025, Ms. Off terminated Plaintiff’s employment, and then left her employment with the company the following month. Plaintiff believes he was replaced by the same Caucasian female candidate whose interview he had attended. The reason Ms. Off gave him for his termination was that he had engaged in “negative chatter about leadership” regarding Ms. Off and another female employee who had been promoted to a position above him. On information and belief, Ms. Off’s position was taken by the woman who had previously held the position on an interim basis, making the marketing team all Caucasian females.

Before he was terminated, Plaintiff complained to Ms. Off, an HR representative, and the CFO about the alleged discrimination and harassment he experienced.

Plaintiff asserts causes of action for retaliation, racial discrimination and harassment, gender discrimination, failure to prevent harassment, discrimination and retaliation, and wrongful termination.

III. Standard

The court may, upon a motion made pursuant to Code of Civil Procedure § 435, strike out any “irrelevant, false, or improper matter inserted in any pleading.” (Cal. Code Civ. Proc. § 436.) Improperly pled damages claims may be challenged by motion to strike. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 164.)

Punitive damages are generally available where a defendant is guilty of oppression, fraud or malice. (Civ. Code § 3294(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’; ‘oppression’ is ‘despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.’ ‘Despicable conduct’ is ‘conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.’ [Citation.] ‘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.’” (Colucci v. T-Mobile USA, Inc. (2020) 48 Cal.App.5th 442, 454-55 [citations omitted].) Evidence of negligence, gross negligence, or even recklessness is not sufficient to support an award of punitive damages. (Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 88.)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff . . . judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255 [citations omitted].) “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.” (Grieves, 157 Cal.App.3d at p. 166 [citations omitted].)

IV.

Discussion

A. Corporate Liability

Defendant moves to strike the punitive damages request on the ground that Plaintiff fails to allege sufficient facts to support an allegation that the acts at issue were committed by “an officer, director, or managing agent” as required for an award against a business entity, or that Defendant ratified the tortious acts.

Section 3294(b) provides: “An employer shall not be liable for [punitive] damages . . ., based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct. . . or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, [or] ratification ... must be on the part of an officer, director, or managing agent of the corporation.”

The last statement of subsection (b) has been construed to require that the officer, director, or managing agent be someone who exercises substantial discretionary authority over decisions that ultimately determine corporate policy. (See Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 714.) The corporate policy must be policy that affects a substantial portion of the company and the type likely to come to the attention of corporate leadership. “It is this sort of broad authority that justifies punishing an entire company for an otherwise isolated act of oppression, fraud, or malice.” (Id. at p. 715.) “The key inquiry thus concerns the employee’s authority to change or establish corporate policy.

The fact that an employee has a supervisory position with the power to terminate employees under his or her control does not, by itself, render the employee a managing agent. Nor does the fact that an employee supervises a large number of employees necessarily establish that status.” (CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 1255, 1273 [citations omitted].)

The court in CRST held that a fleet manager was not a managing agent where she served under an operations manager and her main responsibility was to dispatch drivers, while also handling personal issues between drivers and forwarding safety issues to the safety department.

The court in Roby held that the plaintiff’s supervisor was not a managing agent where she supervised four employees out of over 20,000. The Roby court then addressed the type of notice to a managing agent that is required to impose punitive damage liability on the employer under a ratification theory. The court noted that the plaintiff’s multiple complaints to her manager about her ongoing conflicts with her supervisor were insufficient to put the employer on specific notice that the supervisor was violating the plaintiff’s FEHA rights because she did not link the conflicts to her medical condition.

On the other hand, the plaintiff’s complaints to two mid-level managers, who the employer did not dispute were managing agents, were sufficient to show a managing agent became aware because the plaintiff expressly linked the harassment to her medical condition by advising the managers that the supervisor’s derogatory remarks had to do with her medical condition (sweats and nervous physical behavior). (Roby, 47 Cal.4th at p. 715.)

B. Ms. Off’s position with the company.

Plaintiff does not allege sufficient facts that Ms. Off herself was a managing agent who exercised substantial discretionary authority over decisions that ultimately determined Defendant’s corporate policy. Plaintiff alleges only that Ms. Off was Vice President of Marketing who had five people reporting to her, she removed Plaintiff from a cross functional leadership team and subsequently terminated him, and she promoted another team member within their team. He also alleges that there was a separate head of sales, other Vice Presidents, other officers, a Board of Directors, and a cross functional leadership team. (Id., ¶¶14, 23, 31, 38, 40, 42, 50.)

Plaintiff argues in his Opposition that he also alleges that Ms. Off controlled brand voice, messaging, pricing and innovation. However, the cited paragraph of the Complaint does not actually allege this. In paragraph 22, Plaintiff alleges that he found himself “ostracized and shut out from inclusion into key discussions and decisions including brand voice, messaging, pricing, innovation and marketing – essentially having his primary role as the Senior Brand Manager castrated and neutered by Ms. Off.” On its face, this paragraph does not allege, as Plaintiff claims, that Ms. Off “controlled” the brand voice, messaging, pricing, innovation, and marketing of the company.

Plaintiff argues that his allegations are similar to the facts in White v. Ultramar, Inc. (1999) 21 Cal.4th 563 and Davis v. Kiewit Pacific Co. (2013) 220 Cal.App.4th 358. In White, the court upheld the trial court’s finding that the plaintiff’s supervisor Salla was a managing agent where Salla could fire the plaintiff and was the zone manager who managed eight stores and at least 65 employees, individual store managers reported to her, and she reported to department heads in the company’s retail management department. (See White, 21 Cal.4th at p. 577.)

The court stated: “The supervision of eight retail stores and sixty-five employees is a significant aspect of Ultramar’s business. The testimony of Salla’s superiors establishes that they delegated most, if not all, of the responsibility for running these stores to her. The fact that Salla spoke with other employees and consulted the human resources department before firing plaintiff does not detract from her admitted ability to act independently of those sources. In sum, Salla exercised substantial discretionary authority over vital aspects of Ultramar’s business that included managing numerous stores on a daily basis and making significant decisions affecting both store and company policy.

In firing White for testifying at an unemployment hearing, Salla exercised substantial discretionary authority over decisions that ultimately determined corporate policy in a most crucial aspect of Ultramar's business.” (Ibid.)

In Davis, the court held that the plaintiff raised a triable issue of fact as to whether Preedy, the project manager for a large construction project, was a managing agent of the construction company who employed the plaintiff. The court stated: “Preedy, as the Project’s manager, was Kiewit’s top onsite manager. He had the responsibility to oversee and manage the $170 million project, including over 100 Kiewit employees working on the site. Preedy’s duties included interfacing with stakeholders on the Project, contract administration, operations and personnel oversight, and making sure the Project was completed according to the contract.

In performing those duties, a trier of fact could reasonably infer he exercised substantial authority and discretion regarding a broad range of issues involving the Project, including compliance with Kiewit’s policies and the hiring, supervision, and laying off of Project employees. Absent evidence showing that management of a $170 million project with supervision of 100 employees is an insignificant part of Kiewit’s business, a trier of fact could reasonably infer from the above evidence that Preedy ‘exercised substantial discretionary authority over [significant] aspects of [Kiewit’s] business’ and therefore was a managing agent of Kiewit.” (Id. at p. 370.)

The court also found that the plaintiff raised a triable issue of fact as to whether Lochner, the company’s EEO officer, was a managing agent, stating: “Lochner, as Kiewit’s EEO officer, had the duties and responsibilities to enforce its policies against discrimination, retaliation, and harassment based on gender and other protected classes . . . In his declaration, Lochner . . . . stated he ‘conducted training for staff employees (supervisory personnel); took and responded to employee complaints about EEO and other issues; and conducted or oversaw investigations regarding a variety of employee relations issues including alleged discrimination, retaliation and/or harassment.’” (Id. at pp. 372-373.)

The company policy manual also described Lochner’s duties as including the administration and coordination of the affirmative action program, investigations into complaints of discrimination and implementation of corrective action, the dissemination of EEO policy, the periodic review of employment records to make sure the program and policy are being administered on a nondiscriminatory basis, and the initiation of changes to the program and policies. (Id. at p. 373.)

White and Davis are distinguishable. In both cases, the individual at issue had significant authority and/or control over corporate policy. Here, Plaintiff alleges only that Ms. Off had five reports in a marketing team and could promote and terminate within that team, and could assign or remove the individuals reporting to her from a cross functional leadership team. These allegations are insufficient to allege that Off had the authority to change or establish corporate policy. (See CRST, 11 Cal.App.5th at p. 1273.)

C. Ms. Kees and Mr. Fox/Ratification

Plaintiff also alleges insufficient facts to show ratification by a managing agent. While Plaintiff alleges that he spoke with HR representative Kari Kees and CFO Steve Fox, there are no allegations that either has the ability to change or establish corporate policy. Title alone is not dispositive. (White, 21 Cal.4th at p. 577 [principal liability does not depend on managerial level]; Colucci, 48 Cal.App.5th at p. 453 [determination does not hinge on employee’s level in corporate hierarchy].) Further, with respect to Mr. Fox, Plaintiff alleges that Mr. Fox told him that these were issues that needed to be addressed by another person, i.e., the CEO. (Complaint, ¶50.) In other words, Plaintiff was told that Mr. Fox was not an individual who could address Plaintiff’s complaints or provide the attention or response Plaintiff was seeking.

In addition, Plaintiff does not specifically allege that he told either individual that he believed the allegedly offending conduct towards him was related to his race or gender. With respect to Ms. Kees, Plaintiff alleges only that he complained “about the gender and raced-based harassment and discrimination that he largely experienced at the hands of Ms. Off during his tenure at EMJ. This included Mr. Sevugan’s feelings of marginalization, gaslighting and ostracization as the only male and only minority on Ms.

Off’s team.” (Id., ¶49.) This allegation does not specify whether Plaintiff actually articulated facts to Ms. Kees that would put Ms. Kees on notice of discrimination or harassment based on race or gender. Similarly, as to Mr. Fox, Plaintiff alleges only that he complained to Mr. Fox “about how he felt discriminated against by and retaliated against by Ms. Off following various actions that she took against him beginning in late August 2024 as described herein as well as Mr. Sevugan’s subsequent demotion by Ms.

Off in February 2025.” (Id., ¶50.)

Again, this allegation does not specify whether Plaintiff made Mr. Fox aware of facts that had anything to do with Plaintiff’s race or gender. As a result, Plaintiff’s allegations in his current Complaint are insufficient to impose punitive damages liability against Defendant. (See Roby, 47 Cal.4th at p. 715; see also College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 726 [“Corporate ratification in the punitive damage context requires actual knowledge of the conduct and its outrageous nature”].)

V. Oppression, Fraud or Malice

Because the Court grants Defendant’s motion on the ground that Plaintiff has not alleged sufficient facts for purposes of corporate liability, the Court does not address Defendant’s additional arguments that Plaintiff fails to allege sufficient facts to support his allegations of oppression, fraud or malice.

I. Government Code Section 8547.8

Defendant moves to strike Plaintiff’s reference to Government Code Section 8547.8(c) on the ground that punitive damages under this section are available only to state employees. (Gov. Code Section 8547.2(b); 8547.8.) Plaintiff is not a state employee. Plaintiff does not oppose this part of Defendant’s motion. The motion to strike the reference to punitive damages under Section 8547.8 is granted, without leave to amend.

Parties must comply with Marin County Superior Court Local Rules, Rule 2.10(A), (B), which provides that if a party wants to present oral argument, the party must contact the Court at (415) 444-7046 and all opposing parties by 4:00 p.m. the court day preceding the scheduled hearing. Notice may be by telephone or in person to all other parties that argument is being requested (i.e., it is not necessary to speak with counsel or parties directly.) Unless the Court and all parties have been notified of a request to present oral argument, no oral argument will be permitted except by order of the Court. In the event no party requests oral argument in accordance with Rule 2.10(B), the tentative ruling shall become the order of the court.

IT IS ORDERED that evidentiary hearings shall be in-person in Department L. For routine appearances, the parties may access Department L for video conference via a link on the court website. Kindly turn your camera on when your case is called and make sure the party or lawyer making the appearance is properly identified on the screen.

FURTHER ORDERED that the parties are responsible for ensuring that they have a good connection and that they are available for the hearing while using the virtual remote courtroom. If the connection is inadequate, the Court may proceed with the hearing in the party’s absence. If it is determined that you are diving your car during the hearing, you will be removed from the virtual courtroom. (Yes, this happens).