Judge: Frank M. Tavelman, Case: 24NNCV05137, Date: 2025-01-31 Tentative Ruling

Case Number: 24NNCV05137    Hearing Date: January 31, 2025    Dept: A

MOTION TO STRIKE

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is required and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

David Elson (Plaintiff) brings this action against Gevorgyan Garnik Mark, trustee of the Gevorgyan Garnik Mark Family Trust (Mark) and Caroline Malmkivist (Malmkivist) (collectively Defendants). Plaintiff alleges he was attacked by a dog owned by Defendants when he was walking past the property located at 10244 Wheatland Ave., Shadow Hills, CA 91040 (the Subject Premises). Plaintiff’s Complaint states a single cause of action for Negligence.

Before the Court is a motion by Mark to strike Plaintiff’s request for punitive damages as stated in his Complaint. Plaintiff has not opposed the motion. Pursuant to C.R.C. Rule 8.54(c), a failure to oppose a motion may be deemed consent to its being granted.

ANALYSIS: 

I.                    LEGAL STANDARD 

To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code § 3294. (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) Per statute, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice, which are defined as follows:

(1)   “Malice” means 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.

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

(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(c)(1)-(3).)

Further, a plaintiff must assert facts with specificity to support the conclusion that a defendant acted with oppression, fraud, or malice as there is a heightened pleading requirement regarding a claim for punitive damages. (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)

II.                 MERITS

Facts

Plaintiff alleges that on April 13, 2024, he was walking near the Subject Premises when he was attacked by “defendants’ dog”. (Compl. p. 4.) Plaintiff’s Complaint names six dogs allegedly present at the Subject Premises, "Green, Tuva, Saga, Blue, Bob and Chewy” (hereinafter the dogs.) (Compl. p. 5.) Plaintiff does not allege which of the dogs is the one which bit him. Plaintiff further alleges that Defendants each “owned, trained, controlled, and possessed said dogs at the above premises.” (Id.)

Plaintiff alleges that Defendant’s knew the dogs were extremely dangerous and knew that they had previously brutally bitten and attacked others. (Compl. p. 5.) Plaintiff alleges that the dogs exhibited antisocial behaviors such as attacking humans, aggression, and territoriality. (Id.) Plaintiff also alleges that Defendants failed to put the dogs on a leash and did not inform Plaintiff of their dangerous propensities. (Id.) Plaintiff concludes, “That in doing the acts and things herein above alleged, defendants, and each of them, acted willfully and with malice and oppression.” (Compl. p. 5.)

Discussion

Here, Plaintiff’s claim for punitive damages is premised on his sole cause of action for Negligence. Mere negligence, even gross negligence, is not sufficient to justify an award for punitive damages. (Kendall Tacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.) Non-intentional conduct can only support a punitive damage award if the defendant intentionally performs an act, and that act is of such severity and shocking character that it warrants the same treatment as that accorded willful misconduct. (Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279.)

To properly plead entitlement to punitive damages Plaintiff must allege specific facts showing that a defendant (1) intentionally acted in some way and (2) that this action constitutes “despicable conduct” which is “so mean, vile, base, or contemptible that it would be looked down on and despised by reasonable people. (See CACI 3940, 3941.) Upon review of the allegations in the Complaint, the Court finds Plaintiff has not pled his prima facie claim.

The Court begins by noting that the Complaint contains no allegations as to the role each Defendant placed in the precipitating incident. The Complaint refers to all three Defendants in the aggregate with no allegation as to what actions each took. In making this motion, Mark states that he is the owner of the Subject Premises and Malmkivist is his lessee. (Antony Decl. ¶ 5.) This statement is presumably offered to show that Mark does not own the dogs and is merely the landlord for the Subject Premises. Such facts cannot be considered on this motion to strike as they do not appear on the face of the Complaint and are not judicially noticed. (See C.C.P. § 437(a).)

Even assuming the Complaint is correct to allege Mark owns the dogs, the facts speaking to punitive damages are still lacking. Plaintiff alleges (1) Defendants knew the dogs were aggressive and had attacked people before, (2) Defendants failed to leash the dogs, and (3) Defendants failed to warn him of the dogs. The Court finds none of these allegations are supported with specific facts.

Plaintiff’s allegation that Defendants knew the dogs were aggressive and had attacked people before is unsupported by any factual statements. Plaintiff simply does not allege how Defendants were aware of this. For instance, there are no allegations as to when these previous attacks occurred or whether neighbors complained that the dogs were aggressive. Without attendant facts, Plaintiff’s allegation as to Defendant’s knowledge is insufficiently conclusory.  (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042. (a plaintiff must assert facts with specificity to support the conclusion that a defendant acted with oppression, fraud, or malice as there is a heightened pleading requirement regarding a claim for punitive damages).

In the absence of any facts speaking to prior knowledge, allegations that Defendants failed to leash the dogs or warn Plaintiff of them also appear conclusory. Without facts showing how Defendants knew the dogs posed a risk of injury, their alleged failure to leash and failure to warn sound in nonfeasance rather than misfeasance.

In short, the Court finds Plaintiff’s allegations that Defendants acted “willfully with malice and oppression” to be conclusory and insufficient to state a prima facie claim for punitive damages. Accordingly, the motion to strike is GRANTED with 20 days’ leave to amend. Leave to amend is granted in so far as the Court finds it possible that Plaintiff could allege additional facts upon amendment speaking to Defendants alleged despicable conduct.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Gevorgyan Garnik Mark, trustee of the Gevorgyan Garnik Mark Family Trust’s Motion to Strike came on regularly for hearing on January 31, 2025, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO STRIKE IS GRANTED WITH 20 DAYS’ LEAVE TO AMEND.

DEFENDANT GEVORGYAN GARNIK MARK FAMILY TRUST  TO GIVE NOTICE.

IT IS SO ORDERED.