Judge Audra Mori, Case 21STCV39302 2022-11-07 Tentative Ruling

Plaintiffs Oscar Bustamente Dorantes (“Dorantes”) and Maria Hernandez (collectively, “Plaintiffs”) filed this action against defendants 9232 Sepulveda Associates dba Sepulveda North Apartments, Patrick Hung-Sun-Hu (“Hu”), Joseph Rodriguez (“Rodriguez”), and Martha Perez (“Perez”) alleging causes of action for (1) negligence/gross negligence, (2) premises liability, and (3) damages for injury/death of companion animal. The complaint alleges that Perez leased an apartment owned and managed by Hu and 9232 Sepulveda Associates, and allowed her son, Rodriguez, to move into her apartment and reside with her at the premises. Plaintiffs allege that on November 10, 2019, Dorantes was walking his dog, Nova, when he was approached by Rodriguez without provocation. Rodriguez allegedly punched Dorantes multiple times. Thereafter, Dorantes entered the premises to go to his apartment when Rodriguez again approached Dorantes and kicked his dog in the head. After Plaintiffs rushed Nova to a veterinary clinic, Nova was pronounced dead. The complaint includes a prayer for punitive damages under Civil Code § 3340.

At this time, Defendants Hu and Sepulveda Operation LLC (“Sepulveda”) (collectively, “Defendants”) move to strike the prayer for punitive damages from the complaint. The motion is unopposed.

Defendants state that while the death of Plaintiffs’ dog is tragic, there is no dispute that it was Rodriguez that kicked their dog, not Defendants. Defendants assert that Rodriguez was Perez’s guest and invitee, and that at best, Plaintiffs allege that Defendants engaged in nonfeasance by failing to evict Rodriguez or prevent him from being at the property. Further, contend that the complaint fails to allege that Defendants committed any act intended to harm Plaintiffs or their dog.

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (CCP §§ 435; 436(a).) Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders. (CCP § 436(b).) A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer. (Pierson v Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).) In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers. (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.) California’s policy of liberal construction applies to motions to strike. (CCP § 452; see also Duffy v. Campbell (1967) 250 Cal.App.2d 662, 666 (noting that courts must resolve all reasonable doubts in favor of the pleading when considering a motion to strike).) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (CCP § 436.)

Civil Code § 3340 states: “For wrongful injuries to animals being subjects of property, committed willfully or by gross negligence, in disregard of humanity, exemplary damages may be given.” Accordingly, “one can be held liable for punitive damages if he or she willfully or through gross negligence wrongfully injures an animal. (Civ.Code, § 3340.) Intentionally maiming, mutilating, torturing, or wounding an animal also constitutes a crime.” (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1607.)

Additionally, Civil Code § 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 . . . .” “Malice” means 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. “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights. Finally, “fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the party of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civil Code §3294.)

Malice has long been interpreted to mean that malice in fact, as opposed to malice implied by law, is required. Malice in fact may be proved under § 3294 either expressly (by direct evidence probative on the existence of hatred or ill will) or by implication (by indirect evidence from which the jury may draw inferences). Thus it has been held that the “malice” required by §3294 implies an act conceived in a spirit of mischief or with criminal indifference towards the obligations owed to others. Where the defendant’s wrongdoing has been intentional and deliberate and has the character of outrage frequently associated with crime, all but a few courts have permitted the jury to award in the tort action “punitive” or “exemplary” damages. 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 order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. In ruling on a motion to strike, courts do not read allegations in isolation.” (Clauson v. Superior Ct. (1998) 67 Cal.App.4th 1253, 1255.) “To support an award of punitive damages on the basis of conscious disregard of the safety of others, a plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Penner v. Falk (1984) 153 Cal.App.3d 858, 867.)

Here, the third claim for injury/death of companion animal includes a prayer for punitive damages. The complaint alleges Defendants Hu and Sepulveda owned the subject property where Plaintiffs and Perez were residents, and where Perez allowed Rodriguez to reside with her. (Compl. ¶¶ 1-4.) After the incident and allegedly punching Dorantes, Rodriguez approached Dorantes a second time and kicked Dorantes’s dog, Nova, in the head, which resulted in Nova’s death. (Id. at ¶¶ 11-13.)

Plaintiffs are informed and believe and based thereon allege that on numerous occasions prior to November 10, 2019, Rodriguez had engaged in menacing, threatening and violent conduct, including actually assaulting and injuring individuals on the Premises. Based upon these past acts by Rodriquez, Plaintiffs and/or others had informed, warned and/or complained to Defendants that Rodriguez was unsafe and dangerous and a threat to the safety of residents and guests at the Premises.

Despite the repeated warnings and concerns and the actual knowledge of Rodriguez’ violent and dangerous behavior, Defendants did not take necessary action to prevent Rodriguez from residing at, inhabiting and/or otherwise routinely being at the Premises. To the contrary, Defendants repeatedly allowed Rodriguez to re-enter and continue to stay at the Premises.

Defendants and each of them allowed and/or failed to prevent Defendant Rodriguez’ violent and dangerous conduct, which constituted gross negligence and/or willful conduct that resulted in the injury to and death of Nova.

As a further direct and proximate result of the conduct of Defendants, and each of them, there resulted an injury to an animal, that was committed willfully or by gross negligence, in disregard of humanity, justifying an award of exemplary damages under Civil Code section 3340.

As Defendants contend, while the complaint alleges that Defendants failed to prevent Rodriguez from residing or being at the property, there are no specific factual allegations concerning anything Defendants did willfully, deliberately, or by gross negligence that injured Plaintiffs’ dog, Nova. Furthermore, there are no specific factual allegations showing any conduct by Defendants in allegedly failing to prevent Rodriguez from being at the apartment was done in “disregard of humanity.” In addition, there are no factual allegations to suggest that Defendants are liable for Rodriguez’s intentional conduct in kicking Nova, or that Defendants were aware of the probable consequences of their alleged conduct and willfully failed to avoid the consequences. (Penner, 153 Cal.App.3d at 867.) The conclusory allegation that Plaintiffs are informed and believe that Defendants were warned about Rodriguez’s alleged prior violent behavior is not sufficient alone to state a claim for punitive damages under Civil Code § 3340. (See Kimes v. Grosser (2011) 195 Cal.App.4th 1556, 1558, 1563 [owner of injured cat could recover punitive damages if neighbor’s shooting of cat was found to be intentional].)

The burden is on Plaintiff to show in what manner they can amend the complaint, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.) In this case, Plaintiffs do not oppose the motion, and thus, fail to show the complaint can successfully be amended to state a claim for punitive damages against Defendants Hu and Sepulveda.

Hon. Audra Mori

Judge of the Superior Court