Judge: Daniel M. Crowley, Case: 22STCV26873, Date: 2023-02-22 Tentative Ruling

Case Number: 22STCV26873    Hearing Date: February 22, 2023    Dept: 28

Defendant Peter Singer’s Motion to Strike

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND

On August 18, 2022, Plaintiff Jose Luis Cifuentes (“Plaintiff”) filed this action against Defendant Peter Singer (“Defendant”) for strict liability and negligence.

On December 23, 2022, Plaintiff filed the FAC.

On January 19, 2023, Defendant filed a Motion to Strike to be heard on February 22, 2023.

Trial is scheduled for February 15, 2024.

PARTY’S REQUESTS

Defendant requests the Court strike the request for punitive damages.

Plaintiff requests the Court deny the motion.

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 while walking on public property, Defendant’s unleashed pitbulls attacked him. Plaintiff claims that the dogs were unsupervised, as neither Defendant nor anyone else was near the dogs at the time of the attack, nor did anyone attempt to separate the dogs from Plaintiff. Plaintiff states that Defendant should have known that pitbulls are inherently dangerous and unpredictable.

The Court finds the facts, as pled, do not give rise to punitive damages. Plaintiff alleges that the dogs were intentionally allowed to roam public streets unleashed and unsupervised. Punitive damages require a showing of malice, oppression or fraud. 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 to cause injury here, and there are no additional circumstances that give rise to ‘despicable conduct’. The mere fact that dogs were unsupervised and unleashed does not constitute ‘despicable conduct’. The fact the dogs in question were pitbulls does not present aggravating circumstances that would elevate this to despicable conduct, as California courts do not rely solely upon a dog’s breed to determine if it is dangerous. (Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1371-1372.) The Court grants the motion to strike.

CONCLUSION

Defendant Peter Singer’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.