Case Name: Barrett v. Khalsa, et al.
Case No.: 17-CV-315607

This is a negligence action initiated by plaintiff Curtis Barrett (“Barrett”) against defendants Total Transit, Inc. dba Discount Cab (“Discount Cab”) and one of its cab drivers, Gurmail Singh Khalsa (“Khalsa”) (collectively “Defendants”).

According to the allegations of the complaint (“Complaint”), Khalsa, while driving a vehicle owned by Discount Cab, struck Plaintiff on his motorcycle. Prior to the accident, Khalsa made one unsafe lane change, without using a turn signal, in conscious disregard for the safety of others and in violation of Vehicle Code section 21658, subdivision (a). He struck Plaintiff while making a second similarly unsafe lane change. After striking Plaintiff, Khalsa did not stop and continued driving in violation of Vehicle Code section 20001, subdivision (a). As Khalsa’s employer, Discount Cab failed to properly instruct and train him as to how to safely change lanes and stop his vehicle after being involved in an accident.

Plaintiff asserts five causes of action for: (1) negligence; (2) negligence per se; (3) “statutory liability/Permissive Use”; (4) negligent entrustment; and (5) negligent hiring/retention.

Defendants presently demur to the second, fourth, and fifth causes of action and move to strike portions of the pleading. Plaintiff opposes both matters.

As a preliminary matter, Defendants argue Plaintiff’s opposition should be disregarded because it was untimely filed and served pursuant to Civil Procedure section 1005, subdivision (b), which provides a party must file and serve opposition nine court days prior to the hearing. While an opposition may not be rejected for filing on the ground it was untimely submitted, the court may, in its discretion, refuse to consider it. (See Cal. Rules of Court, rule 3.1300(d).)

Here, the hearing date is April 3, 2018; thus, the opposition should have been filed and served nine court days before that date on March 20, 2018. However, the opposition was not filed and served until March 21, 2018, one day later. With that said, the Court will not disregard the opposition because Defendants do not claim they were prejudiced by the delay and were able to file a reply addressing the merits of the opposition

I. Demurrer

A. Second Cause of Action

The second cause of action for negligence per se alleges Khalsa violated Vehicle Code sections 20001, 21658, and 22107 by negligently driving and fleeing the accident. Defendants demur to this cause of action on the grounds of another action pending and failure to state sufficient facts to constitute a cause of action.

Defendants advance a single argument, apparently contending it is applicable to both grounds for demurrer. Defendants preliminarily assert negligence per se is not actually a cause of action, but rather is just an evidentiary presumption. As a result, Defendants characterize the second cause of action as simply a negligence claim. Defendants insist that because the second cause of action is for negligence, it is identical to the first cause of action for negligence. Defendants then take the position that the identical causes of action impermissibly seek redress for the same primary right. Defendants’ argument is flawed regardless of whether it is asserted on the ground of another action pending or failure to state sufficient facts.

As to the ground of another action pending, it is clearly inapplicable here. A demurrer on that ground is also known as a plea in abatement. (County of Santa Clara v. Escobar (2016) 244 Cal.App.4th 555, 564.) “To ‘abate’ a right of action is to suspend its prosecution due to some impediment that, without defeating the underlying cause of action, prevents the present maintenance of a suit.” (Ibid., original italics.) Thus, a demurrer on this particular statutory ground is a request to suspend or stay a lawsuit based on the pendency of another lawsuit. (Ibid.) “A demurrer raising this objection to a second action between the same parties ‘is strictly limited so that . . . the defendant must show that the parties, cause of action, and issues are identical, and that the same evidence would support the judgment in each case.’ [Citation.]” (Pitts v. City of Sacramento (2006) 138 Cal App 4th 853, 856, italics omitted.)
Defendants do not argue there is another lawsuit requiring suspension of the instant case. In fact, they do not discuss abatement whatsoever. Rather, they interpret the ground of another action pending as authorizing the dismissal of individual causes of action within the same pleading. This interpretation is erroneous. The law is well-established that the ground of another action pending is only implicated in cases where there is more than one lawsuit between the same parties. Here, there is only one action. As such, the demurrer is meritless to the extent it is brought on the ground of another action pending.

The demurrer is also misguided to the extent it is brought on the ground of failure to state sufficient facts to constitute a cause of action. While it is true that negligence per se is not an independent cause of action and is an evidentiary presumption (see Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285), that alone does not render the pleading defective. Although the first and second causes of action are based on the same facts, they are based on two separate theories of liability: negligence and negligence per se. (See Ramirez v. Nelson (2008) 44 Cal.4th 908, 917 [describing negligence per se as a theory of liability predicated on statutory violations].) Plaintiff is allowed to plead different theories of liability.

Even if a plaintiff could not plead different theories, Defendants’ demurrer would still be misplaced because redundancy between causes of action in the same pleading is not a basis for sustaining a demurrer. (See Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 890 (“Blickman”).) Consequently, the demurrer is not sustainable on the basis the second cause of action is duplicative of the first.

In light of the above, the demurrer to the second cause of action on the grounds of another action pending and failure to state sufficient facts is OVERRULED.

B. Fourth and Fifth Causes of Action

The fourth cause of action for negligent entrustment is predicated on Discount Cab authorizing Khalsa to use its vehicle even though he was unfit to operate it. (Complaint, ¶¶ 65-66.) The fifth cause of action for negligent hiring/retention alleges Discount Cab negligently hired, supervised, and retained Khalsa because he was unfit to perform the work for which he was hired, i.e. driving a cab. (Id. at ¶ 76.) These causes of action are only asserted against Discount Cab. Discount Cab demurs to both on the ground of another action pending, arguing they are identical because a cause of action for negligent hiring rarely differs from a claim for negligent hiring. There are three problems with this argument.
First, for the same reasons stated above, the ground of another action pending is inapplicable here and a duplicative cause of action is not a basis for demurrer. (See Blickman, supra, 162 Cal.App.4th at p. 890.)
Next, Discount Cab challenges both causes of action. It makes no sense to sustain the demurrer as to both causes of action because they are identical; the result would be that Plaintiff is unable to assert any negligent hiring or retention cause of action. Thus, the demurrer could not be sustained as to both causes of action even if Defendants’ argument had merit.

Last, the case Discount Cab relies upon is inapposite. Relying exclusively on Diaz v. Carcamo (2011) 51 Cal.4th 1148 (“Diaz”), Discount Cab asserts all negligent hiring and negligent entrustment causes of action are identical. While the Court of Appeal did state in Diaz that negligent hiring and negligent entrustment causes of action “rarely differ[] in substance,” it did not state they are identical nor was the court evaluating a demurrer. (Diaz, supra, 51 Cal.4th at p. 1157.) Instead, the court was analyzing whether a claim for negligent entrustment or hiring, which are both based on a defendant’s direct liability, required a different approach for allocating comparative fault than a negligence cause of action predicated on a defendant’s vicarious liability. (Ibid.) In that context, the court stated negligent hiring and negligent entrustment causes of action rarely differ such that they may be similarly analyzed. (Ibid.) As such, Diaz does not stand for the proposition that the two causes of action are identical, rendering them subject to demurrer.
Moreover, negligent hiring and negligent entrustment are distinct theories of holding an employer liable. “Liability for negligent hiring . . . is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees. Negligence liability will be imposed on an employer if it knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139–40, internal citations and quotations omitted.) In contrast, negligent entrustment more narrowly provides that an automobile owner may be liable if he or she “has entrusted a car to an incompetent, reckless, or inexperienced driver[.]” (Allen v. Toledo (1980) 109 Cal.App.3d 415, 420.) These are two separate theories of liability that Plaintiff may allege.
Accordingly, the demurrer to the fourth and fifth causes of action on the ground of another action pending is OVERRULED.

II. Motion to Strike

Defendants move to strike the following portions of the Complaint consisting of entire paragraphs relating to Plaintiff’s request for punitive damages and discrete allegations that they acted in conscious disregard for the safety of the public and/or Plaintiff: (1) paragraph 20, lines 20-21; (2) paragraph 27, line 12; (3) paragraph 28; (4) paragraph 32, line 7; (5) paragraph 34, line 13; (6) paragraph 34, lines 17-19; (7) paragraph 41; (8) paragraph 55; (9) paragraph 73; (10) paragraph 82; and (11) paragraph 4 of the prayer for relief.

On a motion to strike portions of a pleading under Code of Civil Procedure section 435, a court may strike out any irrelevant or improper matter inserted in the pleading. (Code Civ. Proc., § 436, subd. (a).) Irrelevant matter includes a demand for judgment requesting relief not supported by the allegations of the complaint. (Code of Civ. Proc., § 431.10, subds. (b), (c).)

Civil Code section 3294, subdivision (a) provides that punitive damages are recoverable where the defendant is guilty of malice, oppression or fraud. In order “[t]o support punitive damages, the complaint . . . must allege ultimate facts of the defendant’s oppression, fraud, or malice.” (Cyrus v. Havenson (1976) 65 Cal.App.3d 306, 316-317, internal citations omitted.) Simply pleading the terms malice, oppression or fraud alone is insufficient to support a claim for punitive damages; in other words, such damages cannot be pleaded generally. (Blengen v. Superior Court (1981) 125 Cal.App.3d 959, 963 (“Blengen”).) Plaintiff’s request for punitive damages is expressly predicated on malice and oppression. (See Complaint, ¶ 28.)

Malice is conduct intended by a defendant to cause injury to the plaintiff or despicable conduct which is carried on by a defendant with a willful and conscious disregard of the rights and safety of others. (Civ. Code, § 3294, subd. (c)(1).) Oppression is despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. (Civ. Code, § 3294, subd. (c)(2).) Despicable conduct is defined as conduct so vile, base, or loathsome it would be looked down upon by ordinary people. (Mock v. Miller’s Mut. Ins. Co. (1992) 4 Cal.App.4th 306, 331.)

Defendants first insist punitive damages may not be awarded because they are not typically awarded in connection with negligence claims, and those are the only types of claims at issue here. In their analysis, Defendants separate the wrongs at issue into two categories: Khalsa’s driving itself, including changing lanes without signaling and reckless driving, and his fleeing the scene of the accident. Defendants assert Khalsa’s driving cannot be a basis for awarding punitive damages because the pleading reflects it was simply reckless behavior without the requisite wrongful intent. Defendants also maintain his fleeing the scene cannot be a basis for awarding punitive damages because there are no allegations Plaintiff suffered additional harm as a result thereof.

Typically, mere negligence—or even gross negligence—is not sufficient to justify an award of punitive damages. (Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894.) Punitive damages may only be based on a negligence cause of action if the plaintiff otherwise alleges malice as defined in Civil Code section 3294. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896 (“Taylor”).) Here, there are no allegations that Defendants actually intended to cause injury. Thus, to plead malice, Plaintiff must allege despicable conduct. (See Civ. Code, § 3924, subd. (c).) To do so, Plaintiff must allege Defendants: (1) were aware of the probable dangerous consequences of their conduct; and (2) willfully and deliberately failed to avoid those consequences. (See Taylor, supra, 24 Cal.3d at pp. 895-896.) The purported malicious act must be performed with knowledge that harm to others was substantially certain or at least highly probable. (Schroeder v. Auto Driveaway (1974) 11 Cal.3d 908, 922.)

Khalsa’s reckless driving does not support a claim for punitive damages because the pleading reflects such driving amounts to, at most, gross negligence. While Plaintiff alleges Defendants acted in conscious disregard of others’ safety in general terms, he must also plead facts supporting that general allegation. (See Blengen, supra, 125 Cal.App.3d at p. 963.) Here, the only fact alleged in connection with Khalsa’s driving is that he switched lanes twice without using a turn signal. (See Complaint, ¶¶ 20-21.) This activity, on its own, does not rise to the level of despicable conduct or adequately support Plaintiff’s conclusion that Khalsa acted despicably.

In addition, Khalsa’s fleeing the scene does not justify an award of punitive damages. Critically, entitlement to punitive damages must be connected to the damage caused by a defendant’s actions. (Clark v. McClurg (1932) 215 Cal. 279, 282.) Here, there are no allegations connecting Khalsa’s fleeing the accident to any injury suffered by Plaintiff. Further, there are no allegations that Khalsa was actually aware of the accident and consciously decided to drive away; Plaintiff only alleges Khalsa looked behind him after the accident. (Complaint, ¶ 23.) As such, the pleading does not reflect Defendants engaged in any despicable behavior.

Therefore, Plaintiff fails to allege any malicious or oppressive conduct to support a claim for punitive damages.
Next, Defendants argue Plaintiff failed to allege entitlement to an award of punitive damages against Discount Cab because there are no allegations that an officer, director, or managing agent knew or ratified the purported oppressive or malicious conduct.

To obtain punitive damages from an employer for acts of an employee, a plaintiff must show 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 act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code, § 3294, subd. (b).) Plaintiff does not allege personal knowledge of Khalsa’s unfitness by any corporate officer, director, or managing agent. Thus, Plaintiff must allege ratification or authorization by a qualifying individual to plead entitlement to punitive damages.

While the Complaint generally alleges a managing agent and/or supervisor authorized or ratified Khalsa’s actions (Complaint, ¶ 28), such allegations are completely conclusory. There are no specific allegations regarding Discount Cab’s authorization or ratification. “For purposes of determining an employer’s liability for punitive damages, ratification generally occurs where, under the particular circumstances, the employer demonstrates an intent to adopt or approve oppressive, fraudulent, or malicious behavior by an employee in the performance of his job duties.” (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 726.) “Corporate ratification in the punitive damages context requires actual knowledge of the conduct and its outrageous nature.” (Ibid.) There are no allegations describing Discount Cab’s ratification or authorization of Khalsa’s behavior, i.e. that it actually knew of the specific conduct. More detailed allegations are required to plead a claim for punitive damages. (See Blengen, supra, 125 Cal.App.3d at p. 963.) Consequently, the claim for punitive damages is insufficiently alleged as to Discount Cab on the basis Plaintiff fails to allege a qualifying individual authorized or ratified the purported oppressive or malicious conduct.

In light of the above, the motion to strike is GRANTED in its entirety with 20 days leave to amend after service of notice of entry of this signed order.

The Court shall prepare the Order.