Gencal Newport Lido, LLC vs. Restor Physical Therapy, Inc.

Punitive Damages

Defendant TMS contends that the Complaint fails to allege facts supporting a claim of oppression, fraud, or malice, and Plaintiff does not allege that any officer, director, or managing agent of TMS committed, authorized, or ratified any such conduct.

To plead a claim to recover punitive damages, a plaintiff must plead and show one of the following bases for imposition of exemplary damages, i.e. malice, oppression, or fraud. (Civ. Code, § 3294(a), (c).) To plead a claim to recover punitive damages against an employer based on the acts of an employee, a plaintiff must plead facts showing 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.” (Civ. Code, § 3294(b).)

At the pleading stage, the complaint may rely on ultimate facts of fraud, oppression or malice. (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1055.)

Here, the Complaint alleges sufficient facts to support the punitive damages claim, including fraudulent concealment and actions on the part of an officer, director, or managing agent of Defendant TMS. (See FAC ¶¶ 61-73.)

No later than 10 days after service of the notice of ruling, Defendant TMS shall file and serve an answer or other response to the Complaint.

Plaintiff to give notice.

6 Gencal OFF CALENDAR Newport Lido, LLC vs. Restor Physical Therapy, Inc.