Judge Lee S. Arian, Case Number: 22STCV24138, Date: 2023-11-08 Tentative Ruling

On July 26, 2022, Plaintiffs Chiquita Randle and The Estate of Huey Paul Randle, by and through its Successor-in-Interest, Chiquita Randle (collectively, “Plaintiffs”) filed a complaint against Defendants Vinodbhai C. Bhagat, Ramesh Bhagat, Hansa Bhagat, Ankur Patel, Krina Vinodbhai Bhagat, Akash Patel, Jignesh Patel, Town Motel, LP, Bhagat Investments Century, LLC and Does 1 to 50. The complaint arises from Defendant Vinodbhai allegedly striking decedent Huey Paul Randle with a motor vehicle while intoxicated.

On December 8, 2023, Plaintiffs filed the operative Second Amended Complaint (“SAC”) alleging causes of action for (1) negligence and (2) negligent hiring/retention/supervision/training.

On December 29, 2023, Defendants Ramesh Bhagat, Hansa Bhagat, Ankur Patel, Krina Vinodbhai Bhagat, Akash Patel, Jignesh Patel, Town Motel, L.P., and Bhagat Investments Century, LLC (“Bhagat Defendants”) and separately Defendant Vinodbhai C. Bhagat (“Defendant Vinodbhai”) filed the instant motions to strike punitive damages and attorney fees from the SAC. Plaintiffs oppose the motions, although the opposition to Vinodbhai’s motion was untimely. (The Court, in its discretion, will nonetheless consider that opposition.) The Bhagat Defendants and Defendant Vinodbhai filed separate replies.

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

Defendants argue that Plaintiffs’ SAC does not support punitive damages or attorney’s fees.

Civil Code § 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .” The court in Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95, found: “Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.”

“Malice” is defined in Civil Code §3294 to mean “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.” (Civ. Code § 3294(c)(1).) As the court noted in College Hospital v. Superior Court (1994) 8 Cal.4th 704, 713, Section 3294 was amended in 1987 to require that, where malice is based on a defendant’s conscious disregard of a plaintiff’s rights, the conduct must be both despicable and willful. The court in College Hospital held further that “despicable conduct refers to circumstances that are base, vile, or contemptible.” (Id. at 725 (citation omitted).)

An employer will not be liable for punitive damages based upon the acts of an employee of the employer, unless: (1) 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 (2) the employer ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. (Civ. Code § 3294(b).) As to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of a corporation. (Id.)

In the SAC, Plaintiffs allege that Defendant Vinodbhai was intoxicated and driving erratically and speeding when he struck decedent Randle and then knowingly fled the scene without rendering any assistance. (SAC, ¶27.) Plaintiffs further allege that the Bhagat Defendants are employers and/or partners of Vinodbhai and authorized, ratified, and encouraged Defendant Vinodbhai to become intoxicated at work and to operate a vehicle while intoxicated and under the influence of alcohol despite knowing that he was unfit for the specific tasks to be performed during the course of his employment and/or agency, namely the general safe operation of a vehicle. (SAC, ¶¶14, 25-26.) Plaintiffs also allege that the Bhagat Defendants were officers, directors, and managing agents of Defendants Town Motel, LP And Bhagat Investments Century, LLC. (SAC, ¶12.)

Taylor, supra, is instructive with respect to this set of facts because plaintiff alleges that Defendant Vinodbhai was intoxicated. The court in Taylor fell short of holding that punitive damages are always appropriate in cases involving driving while intoxicated. The Taylor court noted, “we have concluded that the act of operating a motor vehicle while intoxicated may constitute an act of ‘malice’ under §3294 if performed under circumstances which disclose a conscious disregard of the probable dangerous consequences.” (Id. at 892.)

In the subsequent decision of Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 89, the Court of Appeal held that driving while intoxicated does not always give rise to a claim for punitive damages: “[W]e do not agree that the risk created generally by one who becomes intoxicated and decides nevertheless to drive a vehicle on the public streets is the same as the risk created by an intoxicated driver’s decision to zigzag in and out of traffic at 65 miles per hour in a crowded beach recreation area at 1:30 in the afternoon on a Sunday in June. The risk of injury to others from ordinary driving while intoxicated is certainly foreseeable, but it is not necessarily probable.” (See also Busbom v. Superior Court (1980) 113 Cal.App.3d 550 [plaintiff alleged that defendant drove his pickup southbound in the northbound lane of the highway]; Peterson v. Superior Court (1982) 31 Cal.3d 147, 162 [defendant was alleged to be driving at speeds of greater than 100 miles per hour after consuming alcoholic beverages]; Sumpter v. Matteson (2008) 158 Cal.App.4th 928, 936 [defendant ran red light after ingesting drugs].)

Significantly, both Taylor and Dawes were decided prior to 1987, at which time the Legislature added the requirement to Civil Code § 3294 that conduct be “despicable” in order to support imposition of punitive damages under a malice/willful and conscious disregard of the rights or safety of others standard. There has been no subsequent decision holding that drinking and driving, without aggravating circumstances that make injury probable, gives rise to a claim for punitive damages.

While Plaintiffs allege that Defendant Vinodbhai was not only intoxicated at the time of the incident, but also drove erratically and was speeding, the allegations are conclusory and insufficient to support punitive damages. In fact, Plaintiffs appear to recognize that by going outside of the pleadings to argue why punitive damages may be appropriate. And yet, the facts they argue that may support a punitive damages allegation – Defendant Vinodbhai swerved to hit the Decedent and sped up when he saw him -- are not in the FAC. Plaintiffs simply have not met the specific pleading requirements necessary for a punitive damages claim. (Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1042 (a plaintiff must allege specific facts showing that the defendant has been guilty of malice, oppression or fraud).)

Further, as to the Bhagat Defendants, Plaintiffs have failed to allege sufficient facts upon which those defendants, as employers, would be subject to punitive damages. Plaintiffs do not make specific allegations nor allegations with particularity of what each defendant did to warrant punitive damages. No allegations set forth how they authorized, ratified or somehow encouraged Defendant Vinodbhai to drink at work and drive. More significantly, no allegations specify how they would know that Defendant Vinodbhai would not only drink and drive, but also engage in additional conduct to support punitive damages. No allegations support the proposition that the employer defendants ratified Defendant Vinodbhai ‘s wrongful conduct for which punitive damages could be awarded or were personally guilty of oppression, fraud, or malice. (Civ. Code § 3294(b).)

Accordingly, both motions to strike as to punitive damages are GRANTED. Because Plaintiffs have failed to explain how they could amend as to the Bhagat Defendants, the motion to strike is without leave to amend. As to Defendant Vinodbhai, because the argument to the Demurrer appears to provide the possibility that facts can be appropriately alleged to support punitive damages (albeit, the Court does not know if, in fact, that basis truly exists given Plaintiffs’ failure to so allege previously), the Court grants the motion to strike with 20 days for leave to amend.

Plaintiffs pray for attorney fees pursuant to CCP § 1021.4. Section 1021.4 provides the following: “In an action for damages against a defendant based upon that defendant's commission of a felony offense for which that defendant has been convicted, the court may, upon motion, award reasonable attorney's fees to a prevailing plaintiff against the defendant who has been convicted of the felony.”

Here, Plaintiffs allege that Defendant Vinodbhai was found guilty of two felonies: (1) hit and run driving resulting in death or serious injury to another person, in violation of Vehicle Code Section 20001(b)(2); and (2) driving with greater than a .08% Blood Alcohol Content in violation of Vehicle Code Section 23152(b). (SAC, ¶27.)

Bhagat Defendants argue that there are no allegations of felony convictions against them. The Court agrees. Thus, Bhagat Defendants’ motion to strike as to attorney fees is GRANTED.
Defendant Vinodbhai argues that the prayer is premature as the code provides for a motion for attorney fees. However, Defendant Vinodbhai does not provide any authority for this assertion. Accordingly, Defendant Vinodbhai’s motion to strike as to attorney fees is DENIED.

Defendant Vinodbhai’s motion to strike re punitive damages is GRANTED with leave to amend within 20 days of this ruling and DENIED re attorney fees.

Bhagat Defendants’ motion to strike is GRANTED in its entirety without leave to amend.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Lee S. Arian

Judge of the Superior Court