Judge: Michael E. Whitaker, Case: 22STCV21242, Date: 2022-12-07 Tentative Ruling

Case Number: 22STCV21242    Hearing Date: December 7, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiffs Vanessa Jung Tirman, as Personal Representative of the Estate of Jonathon Dongin Jung, Jung Sik Jung and Insoon Jung, both individually and as Beneficiaries and Successors-in-Interest to The Estate of Jonathan Dongin Jung (collectively, Plaintiffs) sued Defendants The Bicycle Casino, Inc., dba “The Bicycle Hotel & Casino”, and Parkwest Bicycle Casino, LLC, based on the death of Decedent Jonathan Dongin Jung (Decedent) during his apprehension by casino security officers. 

On July 29, 2022, Plaintiffs filed a First Amended Complaint (FAC) which is the operative Complaint.  Defendant The Bicycle Casino, LP, erroneously sued as Parkwest Bicycle Casino LLC (Moving Defendant), moves to strike portions of Plaintiffs’ FAC.  Plaintiffs oppose the motion.  Moving Defendant replies.

ANALYSIS

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.  (Code Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

1. PARKWEST BICYCLE CASINO

Moving Defendant requests the Court strike Defendant Parkwest Bicycle Casino, LLC, from the FAC, as an improperly named party.  Pursuant to Code of Civil Procedure, section 473, subdivision (a)(1), “[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of the party.” 

Moving Defendant advances the declaration of Bryan Aghakahani, Counsel for Moving Defendant, who avers “Parkwest Bicycle Casino” is not the property entity and is a wrongly named Defendant.  (Declaration of Bryan Aghakhani, ¶ 2, 10.) 

Notwithstanding, for purposes of ruling on a motion to strike, the Court must “accept the truth of material facts properly pleaded in the operative complaint, but not contentions, deductions, or conclusions of fact or law.”  (Hacker v. Homeward Residential, Inc. (2018) 26 Cal.App.5th 270, 276.)  Here, Plaintiffs have asserted:  “Plaintiffs are informed and believe, and on that basis allege, that at all times material to the allegations of this Complaint, Defendant Parkwest Bicycle Casino LLC was, and is, a Limited Liability Company organized under the laws of the State of California, having its principal place of business in Bell Gardens, California, within Los Angeles County, which is situated within this judicial district.”  (See FAC, ¶ 16.)

For pleading purposes, the Court finds Plaintiffs’ allegations withstand Moving Defendant’s motion to strike Parkwest Bicycle Casino as a properly named party in the action. 

2. PUNITIVE DAMAGES

In ruling on a motion to strike punitive damages, “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.)  To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294.  (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)  Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a).)   As set forth in the Civil Code,

(1) “Malice” means 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.  (2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.  (3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

(Civ. Code, § 3294, subd. (c)(1)-(3), emphasis added.) 

Further, a plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud or malice.  To wit, there is a heightened pleading requirement regarding a claim for punitive damages.  (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)  “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.  When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him.” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].)  In Anschutz Entertainment Group, Inc. v. Snepp, the Court of Appeal noted that the plaintiffs’ assertions related to their claim for punitive damages were “insufficient to meet the specific pleading requirement.”  (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [plaintiffs alleged “the conduct of Defendants was intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiff's rights. Plaintiff's injuries were exacerbated by the malicious conduct of Defendants. Defendants' conduct justifies an award of exemplary and punitive damages”]; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“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”].) 

Finally, “the imposition of punitive damages upon a corporation is based upon its own fault. It is not imposed vicariously by virtue of the fault of others.” (City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal.App.3d 31, 36.) “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive. An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees. But the law does not impute every employee’s malice to the corporation. Instead, the punitive damages statute requires proof of malice among corporate leaders: the officers, directors, or managing agents.” (Cruz v. Home Base (2000) 83 Cal.App.4th 160, 167 [cleaned up].)

Foremost, the Court notes that Plaintiffs fail to allege specific facts amounting to malice, oppression or fraud among Moving Defendant’s corporate leaders:  officers, directors or managing agents.  In pertinent part, Plaintiffs allege in the amended complaint:

• “Defendants were assisting, facilitating, encouraging and otherwise condoning its security personnel’s negligent and reckless conduct, and, as such, are liable for such negligent and reckless behavior.”

   

• “The negligent acts and omissions alleged herein were taken by managing agents and/or officers of Defendants and/or ratified by managing agents and/or officers of Defendant, namely, Defendants’ casino managers and supervisors, security personnel managers and supervisors, and facilities supervisors and managers. In so doing, said managing agents and/or officers of Defendants acted with oppression and malice as those terms are used in section 3294 of the California Civil Code. As such, Plaintiffs are entitled to an award of punitive damages.”

   

  (See FAC, ¶¶ 56, 61; see also FAC, ¶¶ 68, 75, 88.)  Yet, these assertions lack the factual specificity required to claim punitive damages against Moving Defendant.  Simply pronouncing that managing agents or officers of Moving Defendant engaged in malicious, oppressive or fraudulent acts or omissions, or ratified such acts or omissions of others, is inadequate. 

   

  Further, Moving Defendant asserts the FAC fails to specifically allege conduct which amounts to malice, oppression or fraud.  Specifically, Moving Defendant argues Plaintiffs allege only conclusory allegations which do not meet the high bar that pleading punitive damages requires.  Moving Defendant attests that Plaintiffs fail to plead the security officers did anything beyond normal security measures with respect to Decedent, and do not demonstrate the security officers intended to harm Decedent or acted with an extreme intentional conscious disregard of Decedent’s rights and safety. 

   

  In opposition, Plaintiffs argues the FAC plainly alleges that the security officers engaged in despicable conduct with a willful and conscious disregard for Decedent’s rights and safety.  The FAC alleges the following:

   

• Upon visiting the Bicycle Casino on July 24, 2021, Decedent suffered from a mental health episode and had difficulty controlling his emotions.  (FAC, ¶ 33.)

• “[Decedent’s] mental health episode was only verbal.  He did not strike or otherwise contact any other patron or Bicycle Casino employee.”  (FAC, ¶ 34.)

• “A five-man security personnel team approached [Decedent] and demanded that he leave the building.”  (FAC, ¶ 36.)

• “[Decedent] complied with security personnel’s demands to leave, and vacated the casino and hotel buildings.”  (FAC, ¶ 37.)

• “. . . security personnel pursued and menaced [Decedent] even after he exited the casino and hotel buildings.”  (FAC, ¶ 39.)

• Despite the fact Decedent voluntarily vacated the casino and was returning to his car, security personnel continued to harass and pursue Decedent.  (FAC, ¶¶ 42, 43.)

• In the parking lot, Decedent “began to run, but tripped and fell to the ground.”  (FAC, ¶ 45.)

• “Thereafer, after [Decedent] had fallen to the ground, security personnel surrounded [Decedent] and jumped on top of him while he laid on his stomach in a prone position. Against [Decedent’s] will, security personnel then bent [Decedent’s] legs back at the knee, pinning them to his buttocks, while others were simultaneously squatting and kneeling on [Decedent’s] back. Security personnel also handcuffed [Decedent’s] hands behind his back while he was held in the prone position. [Decedent] was assaulted and restrained in this manner for approximately three minutes, despite having vomited and becoming unresponsive.”  (FAC, ¶ 46.)

(See also FAC (in full detail), ¶¶ 33-48.)   Plaintiffs also allege that the security officers failed to timely provide or call for emergency aid and medical assistance for Decedent who was apparently suffering from a mental health crisis and was injured.  (See FAC, ¶ 52.) 

            When viewing the entire FAC in whole and in context, for pleading purposes, the Court finds that Plaintiffs have advanced sufficient facts to state a prima facie claim for punitive damages.

Yet Moving Defendant argues punitive damages are not recoverable here because Decedent did not survive long enough after the subject incident to incur economic damages.  Damages in a survival cause of action are limited to loss or damage the decedent sustained or incurred before death and do not include damages for pain, suffering, or disfigurement. (Code Civ. Proc., § 377.34; Mega Life and Health Insurance Co. v. Superior Court (2009) 172 Cal.App.4th 1522, 1525,  fn.3.)  Moving Defendant highlights paragraph 6 of the FAC which states Decedent “died there on the asphalt.”  (FAC, ¶ 6.)  Moving Defendant argues that this serves as an admission that Decedent did not survive for any amount of time after the subject incident and thus could not have sustained any economic damages.

In opposition, Plaintiffs argue that in the duration between security personnel initially asking Decedent to vacate the casino premises and ending in security personnel kneeling on Decedent’s back, pinning him to the ground of the parking lot, where he vomited and became unresponsive, Decedent suffered economic damages.  Because Decedent may have suffered from economic damages preceding his death, Plaintiffs may pursue associated punitive damages.  For pleading purposes, the Court agrees.

3. ATTORNEYS’ FEES

Moving Defendant moves to strike Plaintiffs’ prayer for attorneys’ fees.  Per Code of Civil Procedure section 1033.5, attorney’s fees are only allowable as costs under Section 1032 “when authorized by any of the following: (A) Contract. (B) Statute. (C) Law.” (Code of Civ. Proc., § 1033.5, subd. (a)(4)(D)(10).)  

Here, Plaintiffs do not allege a contractual, statutory, or legal basis for an award of attorney’s fees. (See FAC.) 

4. EXPERTS’ FEES

Moving Defendant moves to strike Plaintiffs’ prayer for experts’ fees, arguing that fees for expert witnesses must be ordered by the Court.  Code of Civil Procedure section 1033.5, subdivision (a) sets forth items that are allowable as costs.¿ Allowable costs under Section 1033.5 must be “reasonably necessary to the conduct of this litigation rather than merely convenient or beneficial to its preparation” and “reasonable in amount.” (Code Civ. Proc., § 1033.5, subds. (c)(2), (3).) 

Although the Court agrees that Plaintiffs’ potential collection of expert’s fees will require a prerequisite motion or application for costs, for pleading purposes, the Court finds that Plaintiffs’ prayer for recoverable experts’ fees is proper.

CONCLUSION AND ORDER

Therefore, the Court grants, in part, with leave to amend Moving Defendant’s motion to strike Plaintiffs’ claims and prayer for punitive damages, and prayer for attorneys’ fees in the FAC. 

Further, the Court denies, in part, Moving Defendant’s motion to strike Plaintiffs’ prayer for reasonable experts’ fees and Defendant Parkwest Bicycle Casino, LLC as a party. 

Plaintiffs shall file and serve an amended complaint in conformance with the Court’s ruling within 20 days of the notice of the Court’s ruling.  Moving Defendant shall provide notice of the Court’s ruling and file a proof of service of such.