Judge: Edward B. Moreton, Jr, Case: 25SMCV00719, Date: 2025-04-24 Tentative Ruling

Case Number: 25SMCV00719    Hearing Date: April 24, 2025    Dept: 205

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

BACKGROUND

This case arises from personal injuries suffered from a dog attack.  Plaintiff Marissa Melnick was riding her bicycle on Mandeville Canyon Road.  Defendant Nicole Maloney was walking her dog off-leash.  The dog ran towards Plaintiff and attacked her, causing Plaintiff to fall off her bike and to suffer severe injuries (including “bleeding from her face”).  Ms. Maloney allegedly fled the scene, rendering no aid to Plaintiff and violating the law requiring her to remain on scene.  Plaintiff claims Ms. Maloney’s fleeing the scene demonstrates knowledge of her wrongdoing and was an attempt to avoid accountability for her actions.      

Nicole and her husband, Defendant Robert Maloney, allegedly knew of their dog’s predisposition to chase after cyclists and pedestrians and to impede their path of travel and had previously been told to leash their dog.  Plaintiff claims Defendants consciously disregarded the risks of harm to Plaintiff when they walked their dog off-leash, entitling Plaintiff to punitive damages. 

This action ensued.  Plaintiff filed a single claim for negligence against Defendants.

This hearing is on Defendants’ motion to strike Plaintiff’s allegations that Defendants acted in “knowing disregard” or “conscious disregard” and prayer for punitive damages.  Defendants argue that Plaintiffs’ punitive damages allegations are conclusory and unsupported by the alleged facts.

MEET AND CONFER

Code Civ. Proc. § 435.5 requires that before the filing of 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 motion to strike for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the motion to strike.  (Code Civ. Proc., § 435.5(a).)  The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., §435.5(a)(2).)  Thereafter, the moving party shall file and serve a declaration detailing its meet and confer efforts.  (Code Civ. Proc., §435.5(a)(3).)  Defendants submit the Declaration of Christina Morovati who attests she called Plaintiff’s counsel to meet and confer on March 19, 2025, but Plaintiff’s counsel was not available.  Defense counsel then left her number with a paralegal, but she did not receive a call back.  On these facts, the Court concludes Defendants satisfied their meet and confer requirements of Code Civ. Proc. §435.5.

LEGAL STANDARD

The court may, upon 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).)  The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc. § 436, 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.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 (“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”).)  The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

DISCUSSION

Defendants move to strike Plaintiff’s allegations of conscious or knowing disregard and prayer for punitive damages.  Defendants argue Plaintiff has only stated a claim for negligence, which cannot support a claim for punitive damages.  The Court agrees.  

“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.”  (Clauson v. Superior Court (1998) 67 Cal.App.4^th 1253, 1255.)  “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 Court (1984) 157 Cal.App.3d 159, 166 (citations omitted).) 

Allegations that merely plead the statutory phraseology are wholly insufficient to state a basis for recovery of punitive damages.  (Smith v. Superior Court (1992) 10 Cal.App.4^th 1033, 1041.)  Conclusory characterizations of defendant’s conduct as willful, intentional or fraudulent is a patently insufficient statement of the necessary factual grounds for punitive damages.  (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)   

Cal. Civ. Code section 3294 provides the basis upon which punitive damages can be recovered.  Punitive damages may only be sought where there is clear and convincing evidence that the defendant has been guilty of malice, oppression or fraud:

(c)(1)   “Malice” means conduct which is intended 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.

(c)(2)   “Oppression” means despicable conduct that subjects a person to cruel and unjust                        hardship in conscious disregard of that person’s rights.

(c)(3)   “Fraud” means an intentional misrepresentation, deceit or concealment of a                      material fact known to the defendant with the intention on the part of the                                                      defendant of thereby depriving a person of property or legal rights or otherwise

causing injury.

(Civ. Code §3294.)

Section 3294 was amended in 1987 to increase the burden of proof required in order to allege a punitive damages claim as well as to raise the level of misconduct necessary for an award of punitive damages.  The California Supreme Court has ruled that the insertion of the word “despicable” in section 3294 created a “new substantive limitation on punitive damage awards.”  (College Hospital Inc. v. Superior Court (1994) 8 Cal.4^th 704, 725.)  “Despicable” means conduct that is “so vile, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.”  (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4^th 702, 715.)  “Such conduct has been described as having the character of outrage frequently associated with [a] crime.”  (Id.)

Punitive damages are disfavored by public policy and are allowed only under the most extreme circumstances and in the “clearest of cases.”  (Woolstrum v. Mailloux (1983) 141 Cal.App.3d Supp. 1, 9.)  “To contain the generosity and emotionality of juries, appellate courts have set the threshold high in defining situations in which punitive damages can be given.  Conduct which may be characterized as unreasonable, negligent, grossly negligent or reckless does not satisfy the highly culpable state of mind warranting punitive damages.  Conduct which warrants punitive damages must be of such severity or shocking character [as] warrants the same treatment as accorded willful misconduct – conduct in which defendant intends to cause harm.”  (Id. at 10 (internal quotations and citations omitted).)

Facts constituting only negligence are insufficient to support a claim for punitive damages. (Robbins v. Roques (1932) 128 Cal.App. 1, 7.) A complaint sounding in negligence, and not intentional conduct, is insufficient to justify a claim for punitive damages. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 167.)  Factual allegations of intentional acts are required to justify a claim of punitive damages. (Kiseskey v. Carpenters’ Trust of Southern California (1983) 144 Cal.App.3d 222, 234.) 

Here, Plaintiff has brought only a single claim for negligence, which does not entitle her to punitive damages.  As to Mr. Maloney, moreover, he was not walking the dog nor did he flee the scene, and it is not clear how he acted with malice, oppression or fraud.  While Plaintiff claims each Defendant authorized and ratified the conduct of the other, there are no specific facts alleged as to how Mr. Maloney authorized and ratified the conduct of his wife on the date of the dog attack.

CONCLUSION AND ORDER

Based on the foregoing, the Court grants Defendants’ motion to strike, with 20 days leave to amend. 

IT IS SO ORDERED.

DATED: April 24, 2025                                                        ___________________________

Edward B. Moreton, Jr.

Judge of the Superior Court