Judge Jill Feeney, Case 22STCV11999 2023-01-13 Tentative Ruling

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.

1. Paragraph 19 (Page 6, Line 9 through Line 16), which states, “despite their knowledge of Mochi's dangerous propensities. More importantly, defendants failed to inform or warn plaintiff of the dangers posed by Mochi and when Mochi did attack plaintiff, defendants failed to act in any way to stop the attack and to control their dog. 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, “Defendant Jaymer Suarez, as the owner of the dog, acted with malice and in reckless and conscious disregard for the safety of others, and engaged in despicable conduct contrary to that of ordinary decent people. His conscious and reckless disregard for the safety of plaintiff and others is more despicable because he knew that he was disabled and unable to control his dog, to any extent, when others were present, and also knew that both his parents, defendant Marcial and Virginia Suarez, were elderly and ill and unable to control Mochi when others were around. Based on the facts herein alleged, punitive and exemplary damages are warranted in an amount to be determined at the time of trial. Plaintiffs claim for punitive and exemplary damages includes, but is not limited to, the following factual allegations.: . . .”

Plaintiff argues Defendants’ motion to strike is unfounded because the FAC contains facts showing Defendants repeatedly failed to supervise Mochi during EMT visits despite being substantially certain an attack would take place.

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).)

“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 § 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.)

“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).)

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 met and conferred via email. (Johnson Decl., ¶2.) Although this is insufficient because meet and confer communications must take place via telephone or in person, failure to meet and confer is not a basis denying the motion.

As before, Plaintiff’s First Amended Complaint states that Defendants’ dog, Mochi, bit Plaintiff in December 2021 while he was working as an EMT transporting Defendant Jaymer Suarez. (FAC, ¶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.)

The FAC now also states EMTs repeatedly asked Defendants to restrain Mochi, but Defendants refused. (FAC ¶11.) Defendant Jaymer Suarez also knew he was disabled and unable to control Mochi and that his parents were too elderly and ill to control Mochi. (Id., ¶20.) On one prior occasion, Mochi bit an EMT who was pushing the gurney with Jaymer Suarez on the gurney. (Id.) EMTs visited the house on 39 different occasions, during which Mochi growled, snarled, and barked at them. (Id.) EMTs repeatedly asked that mochi be restrained, muzzled, or locked up while EMTs were in the house. (Id.) EMTs would carry equipment into the house and be required to be in close proximity to Mochi. (Id.) Defendants never took action to restrain, muzzle, or lock up Mochi on these visits. (Id.) One day after the subject attack, Mochi was removed from Defendants’ property and relocated. (Id.)

Plaintiff’s FAC supports a claim for punitive damages. 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. The FAC states additional facts that EMTs repeatedly asked Defendants to restrain Mochi during their 39 visits to the house and Defendants refused to do so. Defendants also knew that they did not have the strength to restrain Mochi once he was around other people. Despite knowing about Mochi’s prior attacks and aggressive behavior, Defendants refused to restrain their dog.

The FAC now allege facts that would show Defendants willfully disregarded the rights and safety of others. Defendants refused to restrain Mochi despite multiple requests from EMTs even knowing Mochi exhibited hostile behavior, had attacked EMTs on previous occasions, and that EMTs were required to be near Mochi when visiting the house. Moreover, the Court cannot say as a matter of law that Defendants’ behavior was not despicable under the circumstances alleged here.