Potter v. Gustafson

26-1550967 Defendants) regarding allegations in the Complaint filed by plaintiff Michael Jordan Jr. McQuade (Plaintiff). As set forth more fully below, the motion is GRANTED, in part, and DENIED, in part.

The court may strike out any irrelevant, false or improper matter asserted in any pleading. (Code of Civ. Proc. § 436, subd. (a).) A motion to strike is the proper vehicle to attack a claim for punitive damages. (Code of Civ. Proc. §§ 435-436; Truman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.) A plaintiff may recover exemplary or punitive damages where it is proven that “the defendant has been guilty of oppression, fraud or malice.” (Civ. Code § 3294, subd. (a).)

Allegations against City: Plaintiff does not oppose the motion to strike punitive damages and references to “age” in paragraph 149 of the Complaint. The motion is therefore GRANTED as to these allegations against the City.

Allegations against Cherene: In addition to any other available remedy, an individual can be held personally liable for harassing another employee in violation of California Fair Employment and Housing Act (FEHA). (Gov. Code § 12940, subd. (j)(3); McClung v. Employment Develop. Dept. (2004) 34 Cal.4th 467, 475.) Punitive damages may be awarded in civil actions for FEHA violations. (Commodore Home Systems, Inc. v. Sup. (Brown)(1982) 32 Cal.3d 211, 221; Myers v. Trendwest Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1435-1436; see e.g.

Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1137, 1167 [affirming award of punitive damages against individual for sexual harassment].) Here, Plaintiff alleges Cherene was his direct supervisor and subjected him to harassment throughout his employment, including making derogatory remarks and criticizing his speech related to his disability. (Compl. ¶¶ 14-24.) The Court finds the allegations are sufficient to support malice and/or oppression. The motion is therefore DENIED as to punitive damages alleged against Cherene.