Judge Jill Feeney, Case 22STCV27127 2023-03-22 Tentative Ruling

The parties are ordered to appear at the hearing. At that time, the Court will set an OSC RE: Dismissal for Failure to Serve Proof of Service with Respect to Defendant Maryam Taat.

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.

Moving Defendants move to strike paragraph 8 of Zhordania’s FACC and paragraph 4 of the prayer for relief on the grounds that the FACC fails to allege facts sufficient to support the demand for punitive damages.

Plaintiff argues in opposition that the FAC sufficiently pleads facts that Moving Defendants knew their dog was a large pit bull who had a history of attacking another animal and allowed the dog to roam freely around Plaintiff. Plaintiff argues that such conduct rises to the level of malice through their willful and conscious disregard for the safety of another.

Moving Defendants argue that the FAC fails to state facts sufficient to show that Defendants acted with a willful and conscious disregard for Plaintiff’s rights. Moving Defendants also argue that the FAC fails to establish that they had the requisite knowledge to engage in willful misconduct.

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 Civ. Proc., section 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. section 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, section 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, 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.)

“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).)

Mere negligence, even gross negligence, is not sufficient to justify an award for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal.App.3d 949, 958.) 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.)

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. (Code of Civ. Proc. sections 430.41; 435.5.)

The FAC states that Defendants own a large pit bull named Remy who had a vicious nature, disposition, and propensity which Defendants knew of or should have known of. (FAC ¶5.) On August 24, 2020, Remy attacked Plaintiff without warning, breaking the skin, and attacking Plaintiff around her face, chin, jaw, mouth, and teeth. (FAC ¶7.) Defendants were aware that Remy had previously attacked and bit another dog without provocation, causing injuries to the dog. (FAC ¶8.) Remy had attempted to bite another friend of Defendant Maryam Taat without warning or provocation. (FAC ¶8.) Despite knowing of Remy’s vicious propensities, Defendants allowed Plaintiff to feed Remy and get close to him. (FAC ¶8.) As a result of Defendants failing to restrain Remy, Plaintiff was injured. (FAC ¶9.)

The FAC shows that Defendants knew that Remy had previously injured another dog and attempted to bite another person. Despite knowing of Remy’s tendencies, Defendants allowed Plaintiff to get close to Remy and feed him. These facts demonstrate that Defendants acted with a conscious disregard for Plaintiff’s rights because they knew of Remy’s previous behavior and allowed Remy to get near Plaintiff.

However, the facts must also show that Defendants’ behavior was despicable to sustain a claim for punitive damages. Here, the facts do not show Defendants' conduct rose to the level of despicable conduct, particularly where it is not alleged that Remy ever actually bit another person. Although Defendants’ conduct could be described as negligent, even grossly negligent, allowing Plaintiff to feed and get near Remy alone does not rise to the level of conduct 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, the Court cannot find that punitive damages are sufficiently alleged.