Judge: Audra Mori, Case: 22STCV18518, Date: 2022-08-24 Tentative Ruling

Case Number: 22STCV18518    Hearing Date: August 24, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Kevin Segovia (“Plaintiff”) filed this action against Defendant Tomer Marudi (“Defendant”) damages relating to a dog bite incident.  The complaint alleges claims for statutory strict liability (Civil Code § 3342), common law strict liability, and negligence.  The complaint includes a prayer for punitive damages. 

Defendant, at this time, moves to strike the prayer for punitive damages in the complaint.  Plaintiff opposes the motion, and Defendant filed a reply.

2. Motion to Strike

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.)  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 § 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.)

“'Despicable' is a powerful term that refers to circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.”’  (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725; accord Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287 [“ ‘Despicable conduct’ is defined [in jury instruction] as ‘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.’ ”].)  Punitive damages are “typically awarded for intentional torts” while “cases involving unintentional torts are far fewer.”  (Lackner v. North (2006) 135 Cal.App.4th 1188, 1212.)  “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.”  (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166.)  “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, quoting Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.)

“The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness.”  (Civ. Code, § 3342(a).)  This statute imposes strict liability on the dog's owner.  (Johnson v. McMahan (1998) 68 Cal.App.4th 173, 175-76.)

Here, Defendant contends there are no factual allegations in the complaint to support a claim for punitive damages.  Defendant argues the complaint contains only general and conclusory allegations of negligence, and there are not facts to constitute vicious or malicious conduct of a despicable nature. 

Regarding the incident, the complaint alleges in relevant part that the dog attack occurred when Plaintiff was walking down a public road and encountered a dog without leash.  (Compl. ¶ 8.)  The dog had allegedly escaped from Defendant’s premises because of Defendant’s negligence, and that “without provocation and without notice, the DOG suddenly and viciously attacked the PLAINTIFF.”  (Ibid.)  Further, the complaint alleges:

10. Defendants knowingly permitted a dangerous DOG to be present on the PREMISES and were aware of their dangerous and aggressive tendencies.

11. Defendants’ conduct was willful and malicious by knowingly permitting the DOG on the PREMISES initially and/or in permitting the DOG to remain on the PREMISES despite its dangerous and aggressive tendencies.

12. Defendants’ conduct was willful and malicious by allowing the DOG to remain on the PREMISES after the incident occurred and after receiving notice of its dangerous and aggressive tendencies.

(Id. at ¶¶ 10-12.)  Prior to the alleged attack, Defendant knew the dog had attacked other humans and animals previously.  (Id. at ¶¶ 21-22.) 

            The complaint alleges in a conclusory manner that Defendant knowingly permitted a dangerous dog to be present on Defendant’s premises, that the dog previously attacked other humans and animals, and that due to Defendant’s negligence it escaped Defendant’s premises.  As Defendant argues, there are no specific facts alleged to support these allegations.  There are no factual allegations showing Defendant willfully and deliberately failed to avoid the consequences of the dog’s alleged dangerous nature.  (See Penner, 153 Cal.App.3d at 867.)  While the complaint alleges the dog escaped from Defendant’s premises, it is specified that this was due to Defendant’s negligence; there are no facts alleged to show that Defendant willfully or deliberately allowed the dog to escape.  There are otherwise no factual allegations showing circumstances that are base, vile or contemptible, or aggravating factors showing conduct with the character of outrage or crime.  (See College Hospital Inc., 8 Cal.4th at 725; see also Tomaselli, 25 Cal.App.4th at 1287.)  The court finds Plaintiff’s allegations do not rise to the level of malice, fraud, or oppression, as defined by the Code. 

The motion to strike the request for punitive damages and related allegations is granted.      

The burden is on Plaintiff to show in what manner he or she 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, Plaintiff requests leave to amend the complaint.  However, Plaintiff does not offer any facts or argument as to how the complaint can be amended to state a claim for punitive damages against Defendant.  It is not the Court’s burden to guess as to whether the above defects can be cured.   

Therefore, the motion is granted without leave to amend.  If Plaintiff appears at the hearing and articulates how the complaint can be amended to state a claim for punitive damages, the Court will be inclined to granted 20 days leave to amend. 

Defendant is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 24^th day of August 2022