Judge: David B. Gelfound, Case: 24CHCV01223, Date: 2024-08-15 Tentative Ruling

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Case Number: 24CHCV01223    Hearing Date: August 15, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT

Motion filed: 4/5/24

MOVING PARTY: Defendant Marat Harutyunyan (“Defendant” or “Harutyunyan”)

RESPONDING PARTY: Plaintiff Bumdo Choi (“Plaintiff” or “Choi”)

NOTICE: OK¿¿¿ 

RELIEF REQUESTED: An order from this Court striking the portions of the Complaint concerning punitive damages.

TENTATIVE RULING: The motion is GRANTED WITH 20 DAYS’ LEAVE TO AMEND.

BACKGROUND

This action arises from an alleged dog bite incident that occurred on November 28, 2023.

On April 5, 2024, Plaintiff filed a Complaint against Defendant, alleging two causes of action: (1) Strict Liability, and (2) Negligence.

On June 24, 2024, Defendant filed the instant Motion to Strike Portions of the Complaint (the “Motion”).

Subsequently, on July 17, 2024, Plaintiff filed an Opposition and Defendant replied on August 8, 2024.

ANALYSIS

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading.  (Code Civ. Proc., § 436, subd. (a); Stafford v. Shultz, 42 Cal. 2d 767, 782 (1954) [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)  An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint.  (Code Civ. Proc., § 431.10, subd. (b).)  The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice.  (Code Civ. Proc., § 437.)

A.    Procedural Requirements

1.      Meet and Confer

“Before filing a motion to strike ... the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.”  (Code Civ. Proc. § 435.5, subd. (a).)  If no agreement is reached, the moving party shall file and serve with the motion to strike a declaration stating either: (1) the means by which the parties met and conferred and that the parties did not reach an agreement, or (2) that the party who filed the pleading failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith.  (Code Civ. Proc. § 435.5, subd. (a)(3).) 

Here, Defendant’s counsel attests that the prior handling attorney, Andrew Kornoff, met and conferred with Plaintiff’s counsel regarding the issues raised in the Motion (Camacho Decl. ¶ 3.) However, the parties were unable to resolve the issues. (Ibid.)

Accordingly, the Court finds that the requirement for meet and confer declaration has been met, pursuant to Code of Civil Procedure section 435.5, subdivision (a)(3).

2.      Timeliness

“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 [e.g., 30 days after the service of the complaint or cross-complaint unless extended by court order or stipulation.]” (Code Civ. Proc. § 435, subd. (b)(1).)”

“The parties shall meet and confer at least 5 days before the date a motion to strike must be filed. If the parties are unable to meet and confer at least 5 days before the date the motion to strike must be filed, the moving party shall be granted an automatic 30-day extension of time within which to file a motion to strike, by filing and serving, on or before the date a motion to strike must be filed, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the motion to strike was previously due, and the moving party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.” (Code Civ. Proc., § 435.5, subd. (a)(2).) (Underlines added.)

Here, Defendant asserts that the summons and complaint were served via substituted service on April 13, 2024, where a copy of the summons and complaint was mailed on the same day. (Reply at p. 2, also see 4/15/24 Proof of Service.) Pursuant to Code of Civil Procedure section 415.20, subdivision (b), service in this manner is deemed complete on the 10th day after the mailing, establishing the service completion date as April 23, 2024. Therefore, Defendant’s motion to strike must be filed by May 30, 2024, which is calculated 30 days after the service. (Code Civ. Proc., § 435, subd. (b)(1).)

Furthermore, Defendant’s former counsel’s declaration dated May 9, 2024, attests that “On May 2, 2024 I sent a letter to Plaintiff’s Counsel, Jason Lee, discussing the same.... After discussing the matter with Mr. Lee, we have not been able to resolve the issues mentioned in the letter.” (Kornoff Decl. ¶ 2.)

This declaration indicates that the parties did meet and confer on May 2, 2024; however, failing to reach an agreement. Accordingly, the automatic 30-day extension, which is reserved for situations where the parties were unable to meet and confer (at least five days prior to the deadline), is not triggered in this case. This leads the Court to conclude that the Motion was filed untimely.

Nevertheless, the Court exercises its discretion to consider the Motion to Strike even if it was not timely filed. (Code Civ. Proc., § 436, subd. (a).)

B.     Motion to Strike

Defendant moves to strike the following matter from Plaintiff’s Complaint:

1.      Page 2, Paragraph 7: “Exemplary damages are appropriate because defendants either

knew or should have known the DOG had dangerous and vicious propensities because defendants’ DOG had growled, lunged, and attacked other pedestrians as well.”;

2.      Page 3, Paragraph 7: “Defendants failure to restrain their DOG and to ensure their DOG was securely leashed and tethered to prevent the DOG from roaming free among the public was in willful and wanton disregard of the safety, rights and health of Plaintiff and the public at large.” And

3.      Page 4, Prayer for Relief, Paragraph 4: “For exemplary damages according to proof.

1.      Pleading Standard for Punitive Damages

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice.  (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) 

Punitive damages have been authorized by statute since 1872 in tort actions “where the tortious event involves an additional egregious component - ‘oppression, fraud, or malice.’ (Civ. Code, § 3294, subd. (a).)” (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 712 (College Hospital).) “[T]he Legislature has made it more difficult for plaintiffs to plead and prove such claims,” (id. at p. 712) including by amending section 3294 in 1987 “by increasing the plaintiff's burden of proving punitive damages at trial to ‘clear and convincing evidence.’” (Weisman v. Blue Shield of California (1984) 163 Cal.App.3d 61, 65, fn. 3 (Weisman).)

For plaintiffs attempting to prove malice by showing a ‘conscious disregard’ of their rights as opposed to an actual intent to harm, the Act imposed additional requirements of ‘despicable’ and ‘willful’ defense conduct.” (College Hospital, supra, 8 Cal.4th at p. 713.) Malice is defined in Civil Code section 3294b subdivision (c)(1), as “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.” (Underlines added.) The addition of “willful” “arguably conformed the literal words of the statute to existing case law formulations” that “malice involves awareness of dangerous consequences and a willful and deliberate failure to avoid them.” (Id. at p. 725.) As amended to include the word “despicable,” the statute plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs' interests. The additional component of ‘despicable conduct’ must be found.” (Ibid.)

The allegations supporting a request for punitive damages must be alleged with specificity; conclusory allegations without sufficient facts are not enough.  (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)

            Here, Defendant argues that Plaintiff’s Complaint fails to plead sufficient factual allegations to support a prayer for punitive damages, as it alleges in a conclusory manner that Defendant “knew or should have known the DOG had dangerous and vicious propensities” and that the dog “growled, lunged and attacked other pedestrians as well.” (Mot. at p. 5, Compl. ¶ 7.) Defendant maintains that there are no facts are alleged to show that Defendant willfully and deliberately failed to restrain the dog and ensure the dog was securely leashed and tethered. (Mot. at p. 5.)

            In response, Plaintiff contends that “the term ‘malice’ as used in [Civil Code section 3294] includes not only a malicious intention to injure the specific person harmed, but [also] conduct evincing ‘a conscious disregard of the probability that the actor’s conduct will result in injury to others,” citing Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 808; Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 88; Taylor v. Superior Court (1928) 21 Cal.3d 910, 922; Schoroeder v. Auto Driveway Co. (1974) 11 Cal.3d 908, 922-923; Silberg v. California Life Ins. Co. (1974) 11 Cal.3d 452, 462; Pease v. Beech Aircraft Corp. (1974) 38 Cal.App.3d 450, 465; and Barth v. B.F. Goodrich Tire Co. (1968) 265 Cal.App.2d 228, 240-241. (Opp’n. at p. 3.)

            Moreover, Plaintiff argues that the Complaint sufficiently pleads facts, stating, “At all times mentioned, defendant(s) were, and still are, the owners of a certain domestic animal, namely a medium to large size dog, resembling an American Pit Bull Terrier dog (“DOG”), which caused the injuries and damages of which Plaintiff complains. Defendant(s)’s DOG had a vicious nature, disposition and propensity that was known or should have been known by defendant(s).” (Compl. ¶ 5.)

            The Court notes that the cases relied upon by Plaintiff were all decided before the 1987 addition of “despicable conduct” to Civil Code section 3294, subdivision (c)(1). “‘Despicable conduct’ is defined ... 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.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)

            Consequently, the Court determines that the pleadings regarding the breed of the dog and that “[the dog] growled, lunged and attacked other pedestrians as well” do not sufficiently allege a subjective intent to harm by Defendant. Furthermore, even if facts were alleged showing Defendants’ knowledge of the probable consequence of failing to restraint the dog, there are no facts support that Defendant’s conduct, namely the failure to restrain the dog and ensure the dog was securely leashed and tethered, is “so vile, base, contemptible, miserable, wretched or loathsome.”

            Additionally, the Complaint alleges strict liability and negligence, and punitive damages are “typically awarded for intentional trots” while “cases involving unintentional torts are far fewer.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1212; see also Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958 [Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages.]) Here, Plaintiff has not provided any case involving a dog bite where the court found the defendant’s actions despicable for the purpose of awarding punitive damages, which would have provided a basis for comparison.

            Accordingly, the Court finds that the portions of the Complaint that Defendant seeks to strike are mostly conclusory without sufficient facts to meet the pleading standards for punitive damages.

            Therefore, the Court GRANTS WITH LEAVE TO AMEND the Motion to Strike.

CONCLUSION

The Motion to Strike is GRANTED WITH LEAVE TO AMEND.

The Court strikes paragraph 7 from the Complaint in its entirety.

The Court also strikes paragraph 4 from the Complaint’s Prayer for Relief.

Plaintiff is GRANTED 20 DAYS LEAVE TO AMEND the complaint relating to the punitive damages.

Moving party to give notice.