Judge Jill Feeney, Case 22STCV27127 2022-12-22 Tentative Ruling

This is an action for strict liability and negligence arising from a dog attack which took place in August 2020. Plaintiff Ruby Won filed her Complaint against Theona Taat Zhordania, Mojtaba Taat, and Maryam Taat on August 19, 2022.

On pages 2-3, First Cause of Action, ¶ 8, which reads as follows: “Exemplary damages are appropriate because defendants either knew or should have known the dog had dangerous and vicious propensities, ignoring all prior warnings to keep their dog restrained. Defendants’ failure to restrain their dog and to ensure their dog was securely leashed and tethered to prevent them from roaming free was in willful and wanton disregard of the safety, rights, and health of Plaintiff and the public at large. Defendants also failed to take other measures to warn of the vicious propensities of the dog, including but not limited to giving consent to Plaintiff to feed defendants’ dog.”

Plaintiff argues that her claim for punitive damages is properly pled because the Complaint alleges that Defendants’ failure to restrain their dog despite knowing of the dog’s vicious nature constitutes malicious conduct because they willfully and consciously disregarded Plaintiff’s safety.

Moving Defendants argue that the motion to strike should be granted because Plaintiff’s Complaint does not establish a willful and conscious disregard for Plaintiff’s rights. Additionally, negligence alone is not enough to support a claim for punitive damages.

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.)

Moving Defendants’ counsel emailed Plaintiff’s counsel requesting to meet and confer on this matter. (LaScola Decl., ¶5.) Counsel never received a response from Plaintiff’s Counsel. (Id., ¶6.) Defendant made a good faith attempt to meet and confer with Plaintiff prior to filing this motion.

Moving Defendants seek to strike references to punitive damages from Plaintiff’s Complaint on the grounds that the Complaint fails to state that Defendants acted with malice, oppression, or fraud.

Plaintiff’s Complaint states that on August 24, 2020, Defendants’ dog attacked Plaintiff without warning, breaking the skin, and biting and attacking Plaintiff around her face, chin, jaw, mouth, and teeth. (Complaint ¶7.) Defendants knew or should have known that the dog had vicious propensities. (Complaint ¶8.) Defendants failed to restrain the dog or ensure it was leashed and allowed it to roam free. (Id.) Defendants also failed to warn others of the dog’s vicious propensities even when they allowed Plaintiff to feed their dog. (Id.)

Plaintiff’s Complaint does not allege facts sufficient to support a claim for punitive damages. The Complaint does not allege that at the time of the attack the dog was not securely leashed and/or was roaming free. The complaint further does not allege facts indicating that Defendants knew of the dog’s vicious temperament and ignored prior warnings regarding the dog.

Without these allegations, the Court cannot conclude that the allegations demonstrate that Moving Defendants willfully and deliberately ignored the probable consequences of failing to restrain their dog and allowing it to roam free despite knowing of the dog’s vicious propensity.