Judge: Elaine W. Mandel, Case: 22SMCV02214, Date: 2023-05-08 Tentative Ruling

Case Number: 22SMCV02214    Hearing Date: May 8, 2023    Dept: P

Tentative Ruling

Ansari et al. v. Zahedi et al., Case No. 22SMCV02214

Hearing Date May 8, 2023

Defendants’ Motion to Strike Portions of Plaintiffs’ Complaint

In this dog bite case, defendants move to strike two paragraphs supporting the negligence cause of action, the cause of action for common law strict liability and requests for punitive damages, attorney’s fees and costs.

Negligence allegations

Defendants move to strike paragraphs nine and ten, which state “[o]n July 25, 2021 the Defendants and each of them could reasonably have anticipated that the DOG would cause injury to Plaintiff Maryam Ansari by attacking and biting Plaintiff,” and “On July 25, 2021, the Defendants and each of them had sufficient opportunity to prevent the DOG from attacking and biting Plaintiff MARYAM ANSARI but failed to exercise reasonable care to control and contain the DOG and prevent the attacking and biting.” There is no basis for striking these allegations. They support elements of the negligence cause of action. DENIED.

Second Cause of Action

A common law strict liability cause of action may be maintained “if the owner of a domestic animal that bites or injures another person knew or had reason to know of the animal’s vicious propensities.” Priebev. Nelson (2006) 39 Cal.4th 1112, 1115. Defendants argue plaintiffs fail to allege specific facts showing the owners knew the dog had vicious propensities. The complaint alleges defendants “knew or had reason to know that the DOG had a dangerous propensity, to wit, the habit of viciously biting humans.” Complaint ¶15. This allegation is sufficiently specific for pleading purposes and must be treated as true. DENIED.

Punitive Damages

Punitive damages are available upon a showing of fraud, malice or oppression. Cal. Civ. Code 3294(c)(1). When punitive damages are based on an unintentional tort, a plaintiff must prove “despicable” conduct, i.e. circumstances that are “base, vile, or contemptible.” College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.

Plaintiffs have not alleged sufficient facts to establish malice, oppression or despicable conduct. There is no allegation defendants intentionally caused their dog to bite plaintiff; knowledge of the dog’s vicious propensities does not, without more, constitute despicable conduct. GRANTED with ten days leave to amend.

Attorney’s Fees/Costs of Suit

Defendants argue plaintiffs agreed to voluntarily remove these damages, but the emails defendants present are insufficient (exhibit A). There were negotiations regarding removal of fees and costs; without knowing the substance of those negotiations, the court cannot conclude plaintiffs agreed to remove these damages categories. DENIED.