Judge: Daniel M. Crowley, Case: 21STCV17434, Date: 2023-01-27 Tentative Ruling

Case Number: 21STCV17434    Hearing Date: January 27, 2023    Dept: 28

Defendants Christopher Laurence and Maurice Zeitlin’s Motion to Strike

Having considered the moving papers, the Court rules as follows. 

BACKGROUND

On May 7, 2021, Plaintiff Timothy Gitlin (“Plaintiff”) filed this action against Defendants Christopher Laurence (“Laurence”) and Maurice Zeitlin (“Zeitlin”) for general negligence, premises liability and strict liability.

On January 3, 2023, Defendants filed a Motion to Strike to be heard on January 27, 2023.

There is no currently scheduled trial date.

PARTY’S REQUESTS

Defendants request the Court strike the request for punitive damages.

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, but this time limitation shall not apply to motions specified in subdivision (e).”  (CCP § 435(b)(1), italics added.)  “A notice of motion to strike must be given within the time allowed to plead, and if a demurrer is interposed, concurrently therewith, and must be noticed for hearing and heard at the same time as the demurrer.”  (CRC 3.1322(b), italic added.)  “The defendant shall answer the amendments, or the complaint as amended, within 30 days after service thereof, or such other time as the court may direct, and judgment by default may be entered upon failure to answer, as in other cases.”  (CCP § 471.5(a).)

“The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”  (CCP § 437(a).)  The court looks to whether “the complaint alleges facts sufficient to state a cause of action or discloses a complete defense.”  (Ivanoff, supra, 9 Cal.App.5th p. 725.)  The court “assume[s] the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.”  (Id.)  “The court does not, however, assume the truth of contentions, deductions or conclusions of law.  [Citation.]”  (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

Code of Civil Procedure § 436 states that “[t]he court may, upon a motion made pursuant to Section 435, or at any time at its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or any order of the court.”

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code Section 3294. (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal. 4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code § 3294 (a).) “Malice is defined in the statute as conduct 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." (Coll. Hosp., Inc., supra, 8 Cal. 4th at 725 [examining Civ. Code § 3294(c)(1)].)

DISCUSSION

Plaintiff alleges that Defendants’ dog bit him while he was lawfully delivering packages to their property. Plaintiff alleges that because Laurence knew or should have known about the dog’s propensity to bite/attack humans, but still allowed to dog to come in contact with others unattended.

The Court finds the facts, as pled, do not give rise to punitive damages. Plaintiff provides no aggravating factors that would demonstrate malice. Malice is either intent to cause injury to plaintiff OR despicable conduct which is carried on by defendant with a willful and conscious disregard for the rights of others. There are no allegations of intent here, and there are no additional circumstances that give rise to ‘despicable conduct’. Plaintiff has simply alleged that by virtue of bringing a strict liability claim against Laurence, Plaintiff is entitled to punitive damages. The Court disagrees and grants the motion to strike.

CONCLUSION

Defendants Christopher Laurence and Maurice Zeitlin’s Motion to Strike is GRANTED, with 30 days leave to amend.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.