Case Number: BC526367    Hearing Date: September 16, 2014    Dept: 93

Superior Court of California
County of Los Angeles
Department 93

FOTIOS KATES, et al.,

Plaintiff(s),
v.

L.A. CHECKER CAB COOPERATIVE, INC., et al.,

Defendant(s).
Case No.: BC526367

Hearing Date: September 16, 2014

[TENTATIVE] ORDER RE:
DEFENDANTS L.A. CHECKER CAB COOPERATIVE, INC. AND KONSTANTING CHICHANGYAN’S MOTION TO STRIKE PORTIONS OF PLAINTIFFS’ FIRST AMENDED COMPLAINT

Defendants L.A. Checker Cab Cooperative, Inc. and Konstanting Chichangyan’s Motion to Strike Portions of Plaintiff’s Complaint is DENIED as to the allegations against Defendant Chichagyan and GRANTED with 20 days’ leave to amend as to the allegations against Defendant LA Checker Cab Cooperative, Inc.

Background

On May 14, 2014, the motion to strike the punitive damages allegations in the original Complaint filed by Defendants L.A. Checker Cab Cooperative, Inc. and Konstanting Chichangyan came for hearing. The Court granted the motion to strike with leave to amend. Plaintiffs filed a First Amended Complaint (“FAC”) on June 3, 2014, which is the subject of this Motion to Strike.

Defendants move to strike the punitive damages allegations in the FAC in paragraphs 16, 17, 24, 25, 30, 35, and in the prayer for damages. They argue first that the allegations in the FAC that Defendant Chichangyan caused the accident while using her cell phone do not support a claim for punitive damages. In addition, Defendant L.A. Checker Cab Cooperative, Inc. (“Checker Cab”) argues that there are no allegations that an officer, director or managing agent of Checker Cab authorized or ratified the conduct that injured Plaintiffs.

Legal Standard

Cal. Civil Code Section 3294 authorizes the recovery of punitive damages in non-contract cases “where the defendant has been guilty of oppression, fraud, or malice, express or implied . . . . ” 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. (Taylor v. Superior Court (1979) 24 Cal. 3d 890, 894; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.)

In Taylor, the California Supreme Court held that driving while intoxicated can, under certain circumstances, support an award of punitive damages because it evidences malice. (24 Cal.3d at 892.) Specifically, the complaint in Taylor alleged that:
[Defendant ] Stille is, and for a substantial period of time had been, an alcoholic “well aware of the serious nature of his alcoholism” and of his “tendency, habit, history, practice, proclivity, or inclination to drive a motor vehicle while under the influence of alcohol”; and that Stille was also aware of the dangerousness of his driving while intoxicated.

The complaint further alleged that Stille had previously caused a serious automobile accident while driving under the influence of alcohol; that he had been arrested and convicted for drunken driving on numerous prior occasions; that at the time of the accident herein, Stille had recently completed a period of probation which followed a drunk driving conviction; that one of his probation conditions was that he refrain from driving for at least six hours after consuming any alcoholic beverage; and that at the time of the accident in question he was presently facing an additional pending criminal drunk driving charge.

(Id. at 893.)

Similarly, in Dawes v. Superior Court (Mardian) (1980) 111 Cal.App.3d 82, 89-90, the Court found that the punitive damages allegations were supported where the defendant was not only intoxicated, but was alleged to have made a “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.” (Id. at 89.) The Court distinguished these facts from allegations of “ordinary intoxicated driving” where a defendant gets intoxicated knowing that he was going to drive on a public highway, which would not be sufficient for a punitive damages claim. (Id. at 89-90.)

With respect to liability of Checker Cab, Cal. Civil Code Section 3294(b) provides:

An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless 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.

Allegations in the FAC

In the Complaint, Plaintiff alleged the following conduct by Defendant Chichangyan giving rise to the instant action:

On or about August 14, 2013, Plaintiffs, KATES and PAVLOVIC, were passengers in the TAXI owned by CHECKER and being driven by CHICHAGYAN, near or at the intersection of Hilgard Avenue and Comstock Avenue, in the City of Los Angeles. At that time, CHICITAGYAN, while talking on a cell phone or otherwise using a handheld electronic device, all in violation of law, failed to yield the right of way when making a left turn in the face of an oncoming Cadillac STS, causing the TAXI to be impacted on its right side by the Cadillac STS.

Plaintiffs are informed and believe and based thereon alleges, that at all times herein mentioned, each of the Defendants were the agents and/or employee and/or joint venturer and/or partner of each of the remaining Defendants, and in doing the things herein alleged, were acting within the course and scope of such agency/employment/joint venture/partnership and with the permission and consent of his/her co-defendants.

(Complaint ¶¶6, 9, 12, 19.) The Court ruled that these allegations were insufficient to seek punitive damages because they did not allege facts demonstrating a conscious disregard for Plaintiffs’ safety, as opposed to conduct that created a possibility of harm to Plaintiffs.

In the FAC, Plaintiffs have alleged additional facts in an effort to demonstrate that Defendant Chichagyan’s conduct was in willful, oppressive and in conscious disregard of their safety, as follows:
(a) upon information and belief, CHICHAGYAN had been trained, instructed and advised not to use any type of hand-held device while driving a taxi with passengers on board, that driving while using a hand-held device was against the law, that driving while using a hand-held device creates a physical and mental impairment that equals if not exceeds a blood alcohol content greater than the legal limit, that he made a decision to drive down the highway at significant speed, navigating in and out of traffic, including making a left turn in front of oncoming traffic while so physically and mentally incapacitated, and that consequently he was aware that his sharply impaired physical and mental faculties and his conduct made his vehicle particularly dangerous to [Plaintiffs], particularly since the vehicle exposed [Plaintiffs] to great force and speed.

(FAC ¶¶16, 24.)

Plaintiffs also allege additional facts with respect to Defendant LA Checker Cab’s conduct, as follows:
(a) upon information and belief, CHECKER had trained, instructed and advised CHICHAGYAN not to use hand-held devices while driving passengers, or either failed to do so, but then CHECKER tolerated, condoned or encouraged CHICHAGAYAN and other drivers to use hand-held devices to navigate their way around Los Angeles; (b) CHECKER was aware that CHICHAGYAN and other drivers would use their hand-held devices while driving with passengers, subjecting those passengers to a great risk of probable harm, yet failed to take any action to stop such illegal practices; and (c) CHECKER ratified the conduct of CHICHAGYAN by not terminating him from employment or taking any action to reprimand him or to remediate his practice of using hand-held devices while driving passengers.

(FAC ¶¶16, 24.)

Discussion

In both Taylor and Dawes, the Courts found a level of conduct that they described as malicious or “conceived in a spirit of mischief or with criminal indifference towards the obligations of others.” (Taylor, supra, 24 Cal.3d 894.) The additional facts alleged by Plaintiffs in the FAC take Defendant Chichagyan’s conduct to the level of maliciousness. The FAC specifically alleges that Defendant Chichagyan received training and instruction on the dangers of driving while using a handheld cell phone, such that he was aware that using a handheld cell phone would create a risk of harm to others by creating a physical and mental impairment. The FAC goes on to allege that despite knowing he was driving under a physical and mental impairment by virtue of his handheld cellphone use, Defendant Chichagyan drove at a significant rate of speed in and out of traffic, ultimately turning in front of the Cadillac CTS that struck his cab. This alleged conduct is similar to that in Dawes where the driver was not only intoxicated, but drove in a dangerous manner zigzagging in and out of traffic at 65 miles per hour in a crowded beach recreation area on a summer Sunday, such that “the jury could infer that he knowingly disregarded the substantial certainty of injury to others.” (Dawes, supra, 111 Cal.App.3d at 90.)

With respect to the conduct of Defendant LA Checker Cab, the FAC alleges that despite training its drivers not to use handheld cell phones, “tolerated, condoned or encouraged” such use because it was aware its drivers were using handheld cell phones, and did nothing to stop these practices. This is sufficient to allege that Defendant Checker Cab ratified Defendant Chichagyan’s conduct, but it is not sufficient to allege that the action was taken by an officer, director, or managing agent – or other person who could bind Defendant Checker Cab, as required by Cal. Civil Code Section 3294(b).

Therefore, the Motion to Strike is DENIED as to the allegations against Defendant Chichagyan, and GRANTED with leave to amend as to the allegations against Defendant LA Checker Cab Cooperative, Inc.
Defendants are ordered to give notice.

DATED: September 16, 2014
_________________________
Hon. Gail Ruderman Feuer
Judge of the Superior Court