A Southern California man captured on video attacking an Uber driver has sued the driver for $5 million, claiming the video was recorded without his consent.
Former Taco Bell executive Benjamin Golden, 32, of Newport Beach was arrested in November and charged with misdemeanor assault and battery for allegedly hitting 23-year-old driver Edward Caban. In November, the driver sued Golden for more than $25,000 in damages.
Golden filed a cross-complaint last month, saying Caban illegally recorded him and posted the video to YouTube. The now-viral video captured by a dashboard-mounted camera shows Golden repeatedly striking Caban on the trip in Costa Mesa.
As a result of media coverage, Golden said he suffered emotional distress, humiliation and the loss of his job.
Golden's attorney Courtney Pilchman told CNBC that she will seek to have Caban's video of the attack barred from evidence in the criminal case against Golden. The recording was allegedly illegally made by the driver and should not be admitted as evidence, she said.
Golden, a former Taco Bell brand manager, has been charged by Orange County prosecutors with assault and battery in the criminal case.
The cross-complaint cites a section of California penal code that states a person cannot intentionally record a conversation with someone else "without the consent of all parties."
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Caban's attorney Rivers Morrell III described Golden's claims regarding the legal status of the recording as "disingenuous" and "totally bogus." He also told CNBC that Caban informed Golden he was recording the ride.
The cross-complaint comes after a statement in November in which Golden's attorney said he would like to "sincerely apologize."
The altercation near Baja Sharkeez on the Balboa Peninsula began shortly after Golden got into the back seat of Caban's car. The driver said Golden did not provide an address, appeared extremely intoxicated and refused to wear a seat belt.
In the video, Caban can be seen pulling over and telling the man to get out of the car or he will call police. The passenger then began striking Caban over the head and pulling his hair while cursing at him.
Caban, who has since quit working as an Uber driver, then sprayed the man with pepper spray.
If convicted of the criminal charges, Golden faces a maximum sentence of a year in jail and a $10,000 fine, prosecutors said. The Costa Mesa Police Department said Golden had been arrested on charges including public intoxication, but prosecutors declined to pursue that charge.
Uber makes a point to educate its driver's with safety tips for dealing with unruly passengers. No ride is anonymous, a spokeswoman for the company, Kayla Whaling told NBC Owned Television Stations. Uber has since removed the former Taco Bell executives account and will be flagged if he tries to sign up again.