SIMPAD ZABOUNIAN VS BRIAN BEJARANO, AN INDIVIDUAL, ET AL.

Tentative Rulings

Case Number: *******0244 Hearing Date: September 22, 2022 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On August 23, 2019, plaintiff Simpad Zabounian (“Plaintiff”) filed this action against defendants BNG Security, Brian Bejarano, Viva Hollywood Lounge, The Study Hollywood fka Viva Hollywood Lounge, Project Club LA fka Viva Hollywood Lounge, and DWG International, Inc. Plaintiff alleges he was severely beaten by Bejarano on May 5, 2018, at approximately 12:30 a.m.

On February 13, 2020, Plaintiff amended the Complaint to add The Jet Group, LLC dba Viva Hollywood Lounge dba The Study Hollywood dba Project Club LA as Doe 1.

On June 28, 2022, Viva Hollywood Lounge and The Jet Group, Inc. (collectively, “Defendants”) filed this motion to compel Plaintiff’s deposition on July 10, 2022. Defendants also requested sanctions including attorneys’ fees and court reporter fees for Plaintiff’s failure to appear at a previously noticed deposition.

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action. (Code Civ. Proc., 2025.010.) A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying. (Code Civ. Proc., 2025.280, subd. (a).) “If, after service of a deposition notice, a party . . . without having served a valid objection . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.” (Code Civ. Proc., 2025.450, subd. (a).) The motion shall be accompanied by a meet and confer declaration under Section 2016.040 or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. (Id., subd. (b)(2).)

Where a motion to compel a party’s appearance and testimony at deposition is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition and against the deponent, unless the court finds the one subject to sanctions acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Code Civ. Proc., 2025.450, subd. (g)(1).) On motion of a party who, in person or by attorney, attended at the time and place specified in the deposition notice in the expectation that the deponent’s testimony would be taken, the court shall impose a monetary sanction in favor of that party and against the deponent. (Code Civ. Proc., 2025.450, subd. (g)(2).)

On September 9, 2022, Plaintiff filed an opposition brief and argued that Defendants’ motion was moot because Plaintiff’s deposition was taken and completed on August 24, 2022. Plaintiff also argues that Defendants and counsel did not meet and confer prior to filing the motion and that Plaintiff’s failure to appear on the unilaterally noticed date was justified and necessary.

Defendants’ meet and confer declaration does not show that defense counsel met and conferred with Plaintiff’s counsel prior to filing this motion. Furthermore, Plaintiff’s failure to attend the deposition unilaterally noticed by Defendants was due to Plaintiff’s counsel’s unavailability. Plaintiff’s counsel declares that he was at the federal building conducting personal/family business for a scheduled and prepaid vacation. (Mitilian Decl., 3.)

In light of the foregoing, Defendants’ motion to compel is DENIED and Defendants’ request for sanctions is DENIED.

Moving party to give notice.

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.

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Case Number: *******0244 Hearing Date: December 16, 2021 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. INTRODUCTION

On August 23, 2019, plaintiff Simpad Zabounian filed this action against defendant Viva Hollywood Lounge (“Defendant”), Brian Bejarano (“Bejarano”), BNG Security, DWG International, Inc., The Study Hollywood fka Viva Hollywood Lounge, and Project Club fka Viva Hollywood Lounge. Plaintiff alleges that on May 5, 2021, he was severely beaten by Bejarano and other Doe individuals working as security guards, bouncers, or doormen for Defendant. Plaintiff asserts that Defendant negligently failed to provide security and prevent excessive force, and failed to adequately supervise and train Bejarano and the other Doe defendants. Plaintiff also asserts causes of action for assault, intentional infliction of emotional distress, battery, and premises liability.

On November 9, 2021, Defendant filed this motion to strike. In the notice of motion, Defendant requests that the Court strike Plaintiff’s request for exemplary damages, including the prayer for punitive damages on page 3, Item 14a(2) of the Complaint; page 8, paragraph 8; page 10, paragraph 9; page 12, paragraph 8; page 14, paragraph 5; and the attachment for exemplary damages. However, in the conclusion, Defendant’s request is far more expansive and seeks to strike 23 parts of Plaintiff’s Complaint. While some portions of the Complaint should be stricken, Defendant’s request in its entirety is improper, as further explained below.

1. LEGAL STANDARD

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”].) 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.)

1. DISCUSSION

Meet and Confer

“Before filing a motion to strike . . . the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ Proc., ; 435.5, subd. (a).) If no agreement is reached, the moving party shall file and serve with the motion to strike a declaration stating either: (1) the means by which the parties met and conferred and that the parties did not reach an agreement, or (2) that the party who filed the pleading failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith. (Code Civ. Proc., ; 435.5, subd. (a)(3).)

Defense counsel Lorin D. Snyder declares that on October 26, 2021, she sent an e-mail to Plaintiff’s counsel requesting that Plaintiff withdraw the claim for punitive damages without prejudice. (Snyder Decl., ¶ 3.) However, Plaintiff’s counsel refused to stipulate to such a withdrawal. (Ibid.)

The meet and confer did not take place in person or over the telephone as required. Accordingly, the meet and confer requirement is not satisfied. The Court proceeds to analyze the motion on its merits but cautions that failure to meet and confer in the future as required by the Code of Civil Procedure will result in the motion being taken off calendar.

Punitive Damages

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, ; 3294, subd. (a).) “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others. (Civ. Code, ; 3294, subd. (c)(1).) “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’ [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.) “As amended to include [despicable], the [Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Id.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)

Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.” (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155; see also Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1228 [“Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probably dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences”].)

An employer shall not be liable for punitive damages based on the acts of an employee, 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 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).)

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice. (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal. App. 3d 949, 958.) The allegations supporting a request for punitive damages must be alleged with specificity; conclusory allegations without sufficient facts are not enough. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)

Here, Plaintiff asserts claims against Defendant for direct liability (negligent supervision, premises liability, negligence) as well as vicarious liability for Bejerano’s alleged intentional torts. However, Plaintiff fails to identify specific facts identifying any officer, director, or managing agent who: (1) acted with oppression, fraud, or malice; (2) had advance knowledge of Bejerano’s unfitness and employed him with conscious disregard, or (3) authorized or ratified Bejerano’s conduct. Accordingly, Plaintiff’s request for punitive or exemplary damages against Defendant is inappropriate and must be stricken. However, Plaintiff’s request for general damages remains insofar as it is directed against Bejarano and the other individuals.

Nevertheless, Defendant’s motion is overbroad in that it requests the Court strike allegations that are simply factual, and not allegations that pray for punitive damages. For example, Defendant inappropriately requests that the Court strike the allegation that Bejerano “was an employee, agent and/or authorized representative of a list of various defendants (collectively, TAVERN DEFENDANTS”). (See e.g., Motion at 10:8-9, 10:12-21.) Therefore, Defendant’s motion is only GRANTED in part.

1. CONCLUSION

Defendant’s motion is GRANTED only as to the following:

• The following text from pp. 8 ¶ 8, p. 10 ¶ 9; and p. 12 ¶ 18: “Plaintiff is informed and believes and based thereon alleges TAVERN DEFENDANTS had advance knowledge of the unfitness of ASSAILANT DEFENDANTS, including Brian Bejarano, yet hired and/or employed ASSAILANT DEFENDANTS with an intentional disregard of the rights and safety of others, and/or ratified ASSAILANT DEFENDANTS’ conduct thereby warranting the imposition of punitive damages against TAVERN DEFENDANTS in an amount not less than $3,500,000.”

• Page 15, ¶¶ 3-4.

Moving party to give notice.

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.

Case Number: *******0244    Hearing Date: July 21, 2020    Dept: 27