Judge: Jill Feeney, Case: 22STCV11999, Date: 2022-08-09 Tentative Ruling

Case Number: 22STCV11999    Hearing Date: August 9, 2022    Dept: 30

Department 30, Spring Street Courthouse
August 9, 2022
Motion to Strike Portions of Plaintiff’s Complaint filed by Defendant Jaymer Suarez.


The motion to strike is granted.

If Plaintiff wished to amend the complaint, an amended complaint must be filed and served within 30 days.

An answer or other responsive pleading must be filed within 30 days after service of any amended complaint.

Moving party is ordered to provide notice and to file proof of service of such notice within five court days after the date of this order.


On April 8, 2022, Plaintiff filed his Complaint against Defendants Jaymer Suarez, Marcial D Suarez, Marcial D. Suarez as Trustee of the Suarez Family Trust, and Does 1 through 50 for strict liability, negligence, and premises liability. Plaintiff’s claim arises from a dog attack, which took place in December 2021. 

On May 26, Defendants filed their motion to strike portions of Plaintiff’s Complaint.

Summary of Arguments

Moving Arguments

Defendants seek to strike:

1. Paragraph 19 (Page 6, Line 9 through Line 16), which states, “In spite of defendants' knowledge of the dangerous characteristics of Mochi, and the previous attacks on other neighbors and emergency personnel, defendants displayed a conscious disregard for plaintiff’s safety by failing to secure, restrain, and muzzle Mochi while plaintiff and his coworkers were present. Defendants were knowledgeable of the probable dangerous consequences of allowing Mochi loose on their property without securing, restraining, and muzzling him. Defendants acted willfully and deliberately by failing to protect plaintiff from their dog.”
2. Paragraph 20 (Pages 6, Line 17 through Page 8 Line 22), which states, “The conduct of  Defendants, and each of them, was malicious and done so with a conscious disregard of Plaintiff’s rights to be free from such tortious and criminal behavior, and it constitutes oppression, fraud and/or malice pursuant to California Civil Code §3294. By reason thereof, Plaintiff are entitled to do seek punitive and exemplary damages against Defendants, and each of them in a sum according to proof at time of trial: . . .”
3. Prayer for Damages Number 5 (Page 10, Line 20), which states “For punitive and  exemplary damages according to proof.” 

Opposing Arguments

Plaintiff argues Defendants’ motion to strike is unfounded because the Complaint does contain facts sufficient to support a claim for punitive damages. Plaintiff points to facts including the dog’s size, strength, and past attack incidents. Plaintiff argues that the Complaint sufficiently shows Defendants knew about the dog’s propensities and failed to restrain him. Plaintiff additionally argues that clear and convincing evidence is not required to show that Defendant is guilty of malice or conscious disregard for the safety of others.

Reply Arguments

Defendants argue that Plaintiff’s opposition includes extrinsic evidence and other facts that should be disregarded. Defendants then argue that the Complaint does not support punitive damages because a finding for punitive damages requires both willful or conscious disregard of the safety of others and despicable conduct.  

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. (Code of Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. § 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.) 

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. (College Hospital, 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, subd. (a).) 
Allegations of negligence, gross negligence or recklessness are not sufficient to allege a claim for punitive damages. (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210-11.) As a point of comparison, gross negligence is defined as “the lack of any care or an extreme departure from what a reasonably careful person would do in the same situation to prevent harm to oneself or to others.” (CACI No. 425.)
“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.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725 [examining Civ. Code section 3294, subd. (c)(1)].) “A conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.) 

“As amended to include [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.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.) Despicable conduct is “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.) 

With respect to oppression, that is defined as conduct that is despicable and subjected a plaintiff to cruel and unjust hardship in knowing disregard of plaintiff’s rights. (CACI No. 3115.)   

“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. [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation. [Citation.]” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166 (footnote omitted).) 

Meet and Confer

Before filing a demurrer and motion to strike, the demurring and moving party is required to meet and confer with the party who filed the pleading demurred to and sought to be stricken in person or by telephone for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the issues in argued in the demurrer and motion to strike.  (See Code of Civ. Proc. §§ 430.41; 435.5.) 

Defendants properly met and conferred with Plaintiff telephonically prior to filing this motion. (Johnson Decl., ¶2.)


Defendants seek to strike references to willful or malicious conduct as support for punitive damages on the grounds that these allegations are conclusory. 

Plaintiff’s Complaint states that Defendants’ dog, Mochi, bit Plaintiff in December 2021 while he was working as an EMT transporting Defendant Jaymer Suarez. (Compl., ¶9.) Defendants knew Mochi was a big and strong dog, that they did not have the strength to control Mochi, and that Mochi could easily escape the confines of the house and fences around the property. (Id., ¶10.) Prior to this incident, Mochi previously bit, attacked, and nipped at other dogs and people, including Defendants. (Id., ¶11.) Mochi displayed these behaviors since he was a puppy. (Id.) Mochi also previously barked, growled, and attempted to attack other EMT personnel on the property. (Id., ¶20(A).) Two months prior to the incident, Mochi barked, snarled, lunged towards, and attempted to bite other EMT personnel. (Id.) Defendants failed to secure, restrain, or muzzle Mochi. (Id., ¶10.) 

Plaintiff’s Complaint has not demonstrated facts sufficient to support a claim for punitive damages. First, the alleged facts do show that Defendants willfully and deliberately ignored the probable consequences of failing to muzzle or restrain their dog. As alleged, Defendants knew of past incidents where their dog bit, attacked, and nipped at other dogs and people, including Defendants, their neighbors, and other EMTs. Despite knowing about these issues, Plaintiffs failed to restrain their dog. 

However, there is no evidence of Defendants’ despicable conduct. Although Defendants’ conduct could be described as negligent, even grossly negligent or reckless, there are no facts suggesting that Defendants failed to restrain their dog intending for others to be hurt. There are no facts to show that Defendant acted in a way that was so vile, base, contemptible, miserable, wretched, or loathsome that it would be looked down upon and despised by ordinary decent people. Absent additional facts, Plaintiff has not sufficiently alleged punitive damages.