Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this elder abuse/personal injury case and its proceedings.)
Allen has properly alleged wrongful misconduct on the part of an officer, director, or managing agent of defendant.
The Cal. Welf. and Instit. Code §15657.5(b)(2) provides that a plaintiff must satisfy the requirements of Cal. Civ. Code §3294(b) before any damages or attorney fees allowed under the EADACPA may be imposed against the employer.
Under section 3294(b) of the Civil Code, an employer may be deemed liable for punitive damages based upon the acts of an employee if:
(1) The employer had advanced knowledge of the unfitness of the employee and employed him/her with a conscious disregard of the rights or safety of others;
(2) The employer authorized or ratified the wrongful conduct for which the damages are awarded; or
(3) The employer was personally guilty of oppression, fraud, or malice.
For pleading purposes, an general allegation of agency is sufficient in overcoming a demurrer, as an allegation of agency is one of ultimate fact.. Kiseskey v. Carpenters’ Trust for So. California (1983) 144 Cal. App. 3d 222, 235, 192 Cal. Rptr. 492. Here, Allen alleges that the conduct of defendant’s employees was carried out by a managing agent, or by an officer or director of defendants. He also alleges that A managing agent, officer, or director of defendant authorized and ratified each defendant’s conduct. Therefore, the court should overrule Defendant’s demurrer with respect to Allen’s cause of action for violation of the EADACPA.
THE COURT SHOULD OVERRULE DEFENDANT’S DEMURRER AND MOTION TO STRIKE WITH RESPECT TO ALLEN’S CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Allen has properly stated a cause of action for intentional infliction of emotional distress. 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’s suffering severe or extreme emotional distress;
(3) Actual and proximate causation.
Miller v. National Broadcasting Co. (1986) 187 Cal. App. 3d 1463, 232 Cal. Rptr. 668. It is not essential that a jury find a malicious or evil purpose. It is enough that defendant [D]evoted little or no thought to probable consequences of his [her] conduct. KOVR-TV, Inc. v. Superior Court, (1995) 31 Cal. App. 4th 1023, 1031-1032, Cal. Rptr. 2d 431. Conduct is extreme and outrageous when it [E]xceeds all bounds of [of decency] usually tolerated by a decent society, [and is] of a nature which is especially calculated to cause, and does cause, mental distress. Molko v. Holy Spirit Assn. (1988) 46 Cal. 3d 1092, 1122, 252 Cal. Rptr. 122, citing Cole v. Fail Oaks Fire Protection Dist. (1987) Cal. 3d 148, 155, 233 Cal. Rptr. 308. Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him/her the power to damage the plaintiff’s interest, (2) knows the plaintiff is susceptible to injuries through mental distress, or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress. Lagies v. Copley (1980) 110 Cal. App. 3d 958, 972, 110 Cal. App. 3d 958.
If a cause of action for assault or battery is established, a plaintiff may recover for damages for emotional distress that are the result of the acts complained of. State Rubbish Etc. Assn.v. Siliznoff (1982) 38 Cal. 2d 330, 338, 240 P2d 282. In Mendez v. Superior Court, (1988) 206 Cal. App. 3d 557,573,253 Cal. Rptr. 73 , the court noted that it could not “[C]onceive of a circumstance where a cause of for … battery, or harassment could accrue devoid of any consequential emotional distress.” (See Part 5 of 7.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.