Case Number: BC546777    Hearing Date: September 30, 2014    Dept: 93

Superior Court of California
County of Los Angeles
Department 93

YONG YU REN,

Plaintiff(s),
v.

JC CHINA GATE, INC. DBA GREAT WALL RESTAURANT, et al.,

Defendant(s). Case No.: BC546777

Hearing Date: September 30, 2014

[TENTATIVE] ORDER RE:
DEFENDANTS JC CHINA GATE, INC. DBA GREAT WALL RESTAURANT AND ANDY LIU’S MOTION TO STRIKE PUNITIVE DAMAGES IN PLAINTIFF’S COMPLAINT

Defendants JC China Gate, Inc. dba Great Wall Restaurant and Andy Liu’s Motion to Strike Punitive Damages in Plaintiff’s Complaint is GRANTED IN PART, with 20 days’ leave to amend.

Background

In this action, Plaintiff Yong Yu Ren alleges he was struck and kicked by Defendant Andy Liu, the general manager of JC China Gate, Inc. dba Great Wall Restaurant (“Great Wall Restaurant”) while patronizing the establishment. Defendants Great Wall Restaurant and Liu move to strike the request for punitive damages on the grounds that the alleged facts do not support a finding that the conduct at issue was “despicable,” and therefore do not support an award of punitive damages.

Allegations in the Complaint

Plaintiff alleges that he was battered by Defendant Liu while seated in the dining room of the Great Wall Restaurant, as follows:

On or about May 24, 2103, in the Premises at Los Angeles, California, Defendants LIU and DOES 1 through 25, acting as agents of Defendants JC CHINA and DOES 26 through 50, and each of them, struck and kicked MR. REN.

In doing the acts alleged above, Defendants LIU and DOES 1 through 25 acted with the intent to make contact with MR. REN’s person.

As a proximate result of the afore-mentioned acts of Defendants JC CHINA, LIU and DOES 1 through 50, MR. REN suffered, inter alia, a displaced and depressed orbital fracture of the left eye, facial lacerations requiring over twelve (12) stitches resulting in multiple left eyebrow scars, including a 17 X 2 mm scar that is erythematous, depressed, widened and numb to palpation and moderate to severe hematomas and contusions of the head and face.

(Complaint ¶¶8-10.)

With respect to the claim for punitive damages, Plaintiff alleges:

The afore-mentioned conduct of Defendants Lui and DOES 1 through 25 was willful and malicious and was intended to oppress and cause injury to MR. REN. MR. REN is therefore entitled to an award of exemplary and punitive damages.

In doing the acts herein alleged, Defendants . . . were personally guilty of oppression, fraud or malice.

(Complaint ¶¶13-14.)

Discussion

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,” 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.)

Indeed, “Malice” is specifically defined in section 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.” (Code.Civ.Proc., §3294(c)(1).) “Oppression” similarly refers to “despicable conduct.” (Id., §3294(c)(2).) As the Court held in College Hospital v. Superior Court (1994) 8 Cal.4th 704, 713, relied on by Defendants, Section 3294 was amended in 1987 to require that, where malice is based on a defendant’s conscious disregard of 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 (citing to 4 Oxford English Dict. (2d ed. 1989), p. 529).)

Defendant argues that the allegations in the Complaint do not demonstrate despicable or malicious conduct, citing to cases mostly in the negligence context, and none involving a battery. In Grieves, supra, the Court held that the trial court should have stricken the punitive damages prayer with leave to amend where the plaintiff alleged that the doctor who delivered her baby was negligent in performing a tubal ligation where her direction was to do so only if the baby was born without abnormalities. (157 Cal.App.3d at 167.) The Court found there was no allegation of intentional conduct to support a punitive damages claim, but granted leave to amend. (Id. at 167-68.)
Defendant Liu and Does 1 through 25

In this case, the Complaint alleges that Defendants Liu and Does 1 through 25 committed an intentional tort — battery – by striking and kicking Plaintiff, and causing him significant injuries. (Complaint ¶¶8-11.) The courts have held that an intentional tort can support a request for punitive damages:
Because punitive damages are imposed “for the sake of example and by way of punishing the defendant” (§ 3294, subd. (a)), they are typically awarded for intentional torts such as assault and battery, false imprisonment, intentional infliction of emotional distress, defamation, nuisance intentionally maintained, fraud, trespass, conversion, civil rights violations, insurer’s breach of covenant of good faith, wrongful termination and job discrimination, and products liability cases.

(Lackner v. North (2006) 135 Cal.App.4th 1188, 1212 (emphasis added).)

Plaintiff points to the allegations regarding the extent of the injuries he suffered. Defendants never address these allegations in their motion to strike, nor do the cases to which they cite involve an attack similar to the one allegedly inflicted upon Plaintiff. Plaintiff alleges that the battery caused “a displaced and depressed orbital fracture of the left eye, facial lacerations requiring over twelve (12) stitches resulting in multiple left eyebrow scars … and moderate to severe hematomas and contusions of the head and face.” (Complaint ¶10.)

The description of the injuries suffered by Plaintiff is sufficiently shocking to suggest that Defendants’ conduct was outrageous and driven by an intent severely to injure Plaintiff. Alternatively, an attack giving rise to such injuries can be described as “despicable.” Therefore, the motion to strike the request for punitive damages with respect to the conduct of Defendant Liu and Does 1 through 25 is denied.

Defendant JC China and Does 26 through 50

Neither Plaintiff nor Defendants specifically address whether Plaintiff has sufficiently alleged a cause of action to support punitive damages against Defendant Liu’s employer JC China. Plaintiff alleges that Liu acted as an agent of JC China in having struck and kicked Plaintiff Ren. (Complaint ¶8.) The only other allegation as to Defendant JC China to support punitive damages against the corporation is that Defendant Liu was a “managing agent” of Defendant JC China and Does 26 through 50, and that they were “personally guilty of oppression, fraud or malice.” (Complaint ¶14.) The Court finds that the allegations supporting punitive damages against Defendant JC China and Does 26 through 50 does not have sufficient specificity and, on this basis, the motion to strike the allegations as to JC China and Does 26 thorugh 50 is granted with leave to amend.

As the Court held in College Hospital, supra:
“California has traditionally allowed punitive damages to be assessed against an employer (or principal) for the acts of an employee (or agent) only where the circumstances indicate that the employer himself was guilty of fraud, oppression, or malice.” (8 Cal.4th at 723.) The Court held further that the term “managing agent” assumes “that such individual was acting in a corporate or employment capacity when the conduct giving rise to the punitive damages claim against the employer occurred.” (Id.) In College Hospital, the Court held that the plaintiff had alleged only conclusory allegations regarding whether the individual who committed the alleged conduct was acting in the scope of employment, finding instead that the individual was “acting in his personal capacity and for his own private benefit when he allegedly exploited [plaintiff] Laura.” (Id. at 724.)

Similarly, as the court held in Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 289: “California follows the rule … which provides punitive damages can properly be awarded against a principal because of an act by an agent if, but only if (a) the principal authorized the doing and the manner of the act, or (b) the agent was unfit and the principal was reckless in employing him, or (c) the agent was employed in a managerial capacity and was acting in the scope of employment, or (d) the employer or a manager of the employer ratified or approved the act.” (citations omitted.)

In this case there are only conclusory allegations that Defendant Lui acted in his corporate or employment capacity and that JC China was “personally guilty of oppression, fraud or malice” when he struck and kicked Defendant. (Complaint ¶14.) Accordingly, the motion to strike the punitive damages allegation as to the corporate defendants is granted.

However, because Plaintiff has not yet amended the complaint in response to a motion to strike or demurrer, and it is possible that Plaintiff may be able to allege sufficient facts to show that Defendant was acting in scope of his employment when he struck and kicked Plaintiff with sufficient allegations to support a punitive damages claim, the Court grants leave to amend. (See Grieves, supra, 157 Cal.App.3d at 168 (“An amendment should be allowed where the defect, though one of substance, may possibly be cured by supplying omitted allegations, and the plaintiff has not had a fair opportunity to do so ….”)(emphasis in original).)

Defendant is ordered to give notice.

DATED: September 30, 2014

_________________________
Hon. Gail Ruderman Feuer
Judge of the Superior Court