Judge: John J. Kralik, Case: 24BBCV00134, Date: 2024-04-19 Tentative Ruling
Case Number: 24BBCV00134 Hearing Date: April 19, 2024 Dept: NCB
North Central District
MARIA FELDMAN, Plaintiff, v.
JOANNA JOHNSON, Defendant. |
Case No.: 24BBCV00134
Hearing Date: April 19, 2024 [TENTATIVE] ORDER RE: DEMURRER; MOTION TO STRIKE
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BACKGROUND
A. Allegations
Plaintiff Maria Feldman (“Plaintiff”) alleges that on August 19, 2022, she was lawfully walking her leashed chihuahua along the sidewalk when Defendant Joanna Johnson (“Defendant”) and her two dogs were barreling down the sidewalk approaching Plaintiff. Plaintiff alleges that Defendant’s Bernedoodle broke free from Defendant’s grasp and lunged at Plaintiff’s person, knocking her to the ground. Plaintiff alleges that as she fell to the ground, she attempted to break her fall by putting out her dominant hand to avoid more severe injury to her face or head and neck. Plaintiff alleges that she suffered a broken bone in her dominant, right hand.
The complaint, filed January 17, 2024, alleges causes of action for: (1) negligence; (2) NIED; (3) IIED; and (4) gross negligence.
B. Motions on Calendar
On March 25, 2024, Defendant filed a demurrer to the complaint and a motion to strike portions of the complaint.
On April 3, 2024, Plaintiffs filed opposition briefs.
On April 15, 2024, Defendant filed untimely reply briefs.
DISCUSSION RE DEMURRER
Defendant demurs to the 2nd, 3rd, and 4th causes of action alleged in the complaint.
A. 2nd cause of action for NIED
An NIED claim is not an independent tort, but the tort of negligence. (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509.) A cause of action for NIED may be brought under two general instances: (1) where Plaintiff is a bystander and seeks to recover damages as percipient witness to the injury of another; or (2) where Plaintiff is a direct victim in that the emotional distress damages result from a duty owed the plaintiff that is assumed by defendant or imposed on the defendant as a matter of law, or that arises out of the relationship between the two. (Id. at 1509-10.) “A defendant may be liable in tort for negligently inflicting emotional distress on persons to whom the defendant owes a duty of care. That duty can have three alternative origins: (1) a duty imposed on the defendant by law, (2) a duty assumed by the defendant, or (3) a duty arising out of a preexisting relationship between plaintiff and defendant.” (Benson v. Superior Court (2010) 185 Cal.App.4th 1179, 1187.)
In the 2nd cause of action, Plaintiff alleges that Defendant breached a preexisting duty to act as a reasonable person towards Plaintiff such that she is entitled to emotional distress damages. (Compl., ¶22.) Plaintiff alleges that it was foreseeable that Defendant’s failure to fulfil her duties would result in Plaintiff’s emotional distress. (Id., ¶23.)
Defendant demurs to the NIED cause of action, arguing that there is no independent tort and cause of action for NIED. While NIED is a subspecies of negligence, it may be alleged separately from a negligence claim and this Court ordinarily allows NIED claims to be pleaded as a separate cause of action. Thus, the demurrer will not be sustained on this basis.
Defendant also argues that Plaintiff is not a bystander or direct victim. In the complaint, Plaintiff has not alleged any facts showing that she is entitled to relief as a bystander—i.e., that she was a percipient witness to the injury of another. With respect to a direct victim theory, Plaintiff alleges that there is a general duty for Defendant to act reasonably, but Plaintiff has not alleged a duty that Defendant assumed, a duty that was imposed on Defendant as a matter of law, or that Plaintiff and Defendant had a preexisting relationship upon which a duty was owed. As such, the demurrer to the 2nd cause of action is sustained. As this is Plaintiff’s first attempt at the pleading, the Court will allow Plaintiff a single opportunity to amend.
B. 3rd cause of action for IIED
The elements of intentional infliction of emotional distress are: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff suffered severe or extreme emotional distress; and (4) the plaintiff’s injuries were actually and proximately caused by the defendant’s outrageous conduct. (Vasquez v. Franklin Mgmt. Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.) In order to avoid a demurrer, the plaintiff must allege with great specificity, the acts which she believes are so extreme as to exceed all bounds of behavior usually tolerated in a civilized community. (Id.)
Conduct to be outrageous must be so extreme as to exceed all bounds of behavior usually tolerated in a civilized community. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.) In addition, the outrageous conduct must be of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind. (Id.) “Although emotional distress may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry [citation], to make out a claim, the plaintiff must prove that emotional distress was severe and not trivial or transient.” (Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1376.) Such distress must be “of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004.)
In the 3rd cause of action, Plaintiff alleges that Defendant knew that the Bernedoodle she attempted to control was reactive and posed a risk of safety to others because she had been advised previously by her dog trainer. (Compl., ¶27.) Plaintiff alleges that despite this information, Defendant proceeded to take the Bernedoodle onto a public sidewalk without recommend restraints, and with an additional dog, which increased the likelihood of Defendant to lose control of her Bernedoodle. (Id.) Plaintiff alleges that Defendant did this knowing there would be other persons present, which shows that she had a disregard for the safety of others. (Id.) Plaintiff alleges that Defendant’s failure constituted an intentional or extreme disregard for Plaintiff’s safety when Defendant was fully aware that her dog was untrained. (Id., ¶28.)
Defendant argues that the act of walking her dogs was “hardly ‘outrageous’” and that there are no allegations that Defendant’s dog has a history for breaking free from his collar or jumping on other persons. (Opp. at p.6.) Defendant also argues that she had no ill will towards Plaintiff or animosity, and had no intentional plan to allow her dog to break free. (Id.) Finally, Defendant argues that there are no supporting allegations regarding Plaintiff’s knowledge about the Bernedoodle’s dog trainer and that the complaint does nothing more than make “salacious unsupported accusations.” (Id. at p.7.)
Most of Defendant’s arguments contain extrinsic facts that are outside the pleading. The demurrer tests the pleading alone and not the evidence or other extrinsic matters which do not appear on the face of the pleading or cannot be properly inferred from the factual allegations of the complaint. (Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal.App.3d 496, 499.) To the extent that Defendant argues that her acts were not outrageous or that she had no ill will are better argued beyond the pleading stage, where evidence may be considered. At the pleading stage, the Court will accept the truth of the allegations.
Defendant also argues that there are no facts regarding what severe emotional distress Plaintiff suffered. The “mere allegation that the plaintiffs suffered severe emotional distress, without facts indicating the nature or extent of any mental suffering incurred as a result of the defendant's alleged outrageous conduct, fail[s] to state a cause of action for intentional infliction of emotional distress.” (Pitman v. City of Oakland (1988) 197 Cal.App.3d 1037, 1047.) “The allegation that plaintiff suffered shame, humiliation and embarrassment without further factual explanation does not meet the requirement of specificity….” (Id.) In the 3rd cause of action, Plaintiff alleges that she suffered injury, harm or damages, including extreme mental distress, anguish, and diminishment of her quality of life. (Compl., ¶28.) The allegations fail to allege the nature or extent of her mental suffering. As such, the Court will sustain the demurrer to the 3rd cause of action with leave to amend so that Plaintiff may allege additional facts regarding the emotional distress that she suffered.
C. 4th cause of action for Gross Negligence
“Gross negligence is pleaded by alleging the traditional elements of negligence: duty, breach, causation, and damages. [Citation.] However, to set forth a claim for ‘gross negligence’ the plaintiff must allege extreme conduct on the part of the defendant. [Citation.] The conduct alleged must rise to the level of ‘either a “want of even scant care” or “an extreme departure from the ordinary standard of conduct.” ’ ” (Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082 [internal quotation marks omitted].)
In the 4th cause of action, Plaintiff alleges that strict liability is imposed for dog bites pursuant to Civil Code, § 3342 and that while this action did not include a dog bite, Plaintiff’s injuries were the result of a direct, unsolicited physical contact by Defendant’s dog. (Compl., ¶¶30-31.) Plaintiff alleges that Defendant knew her dog could not be in public with proper restraints as recommended by a dog trainer, but Defendant proceeded to take out her dog in public, which went beyond negligence and constituted reckless, wanton, or outrageous behavior such as to warrant punitive damages. (Id., ¶32.)
The allegations of the 4th cause of action fail to rise to the level beyond ordinary negligence. While Plaintiff attempts to compare the subject incident to a dog bite, Civil Code, § 3342 does not apply to the facts of this case. As stated in section 3342(a), “The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness.” The dog bite contemplated in section 3342 is based on the viciousness of the dog and prior knowledge of such viciousness by the dog’s owner. In contrast, a dog that approaches or jumps an individual might not have vicious tendencies, but may be a poorly trained dog that was larger in size or heavier than the person it jumped. Based on the allegations of the complaint, Plaintiff has not provided facts showing that Defendant engaged in extreme conduct that rose to the level of want of even scant care or an extreme departure from the ordinary standard of care. At best, the allegations simply rise to the level of ordinary negligence.
The demurrer to the 4th cause of action is sustained. The Court will allow Plaintiff a single opportunity to amend this cause of action, but Plaintiff should carefully consider whether a gross negligence cause of action is appropriate based on the facts of this case as a claim for negligence has been alleged in the 1st cause of action.
DISCUSSION RE MOTION TO STRIKE
Defendant moves to strike portions of the complaint.
First, Defendant argues that Plaintiff has alleged improper and irrelevant facts in the complaint that Defendant’s dog “barrel[ed] down the sidewalk”; that three weeks prior to the incident, Defendant had been advised by her dog trainer that she should refrain from walking her Bernedoodle until property trained and that she should use a harness or choke collar; and that despite knowing the risks, Defendant attempted to walk her dog without proper restrain, which amounted to her wanton and willful disregard for the safety of others. (See Compl., ¶¶11, 13, 14, 19.)
Defendant argues that the term “barreling” makes it sound like she and her dog were out of control, which she argues is false. While Defendant may dispute this term as the proper facts of the case, the Court accepts the allegations as true at the pleading stage and will not strike the allegation in paragraph 11. Defendant also argues that Plaintiff has not identified who the dog trainer was by name or when she had any conversation with the dog trainer. However, such facts are better determined at the discovery stage. If Defendant denies that any dog trainer existed or wants to seek more information about the identity of the dog trainer, Defendant should propound written discovery to ascertain such facts. The motion to strike these allegations is denied.
Second, Defendant moves to strike the allegations of the IIED cause of action in paragraphs 27 and 28. In light of the ruling on the demurrer to the 3rd cause of action, the motion to strike the allegations of the IIED cause of action is moot.
Third, Defendant moves to strike the NIED cause of action, arguing that no NIED cause of action exists. This too was addressed by the demurrer. The motion to strike is moot as to the 2nd cause of action in light of the ruling on the demurrer.
Fourth, Defendant moves to strike the gross negligence cause of action. Again, the motion to strike is moot in light of the ruling on the demurer.
Fifth, Defendant moves to strike the allegations for punitive damages. A complaint including a request for punitive damages must include allegations showing that the plaintiff is entitled to an award of punitive damages. (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) A claim for punitive damages cannot be pleaded generally and allegations that a defendant acted "with oppression, fraud and malice" toward plaintiff are insufficient legal conclusions to show that the plaintiff is entitled to an award of punitive damages. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) Specific factual allegations are required to support a claim for punitive damages. (Id.)
Civil Code § 3294 authorizes a plaintiff to obtain an award of punitive damages when there is clear and convincing evidence that the defendant engaged in malice, oppression, or fraud. Section 3294(c) defines the terms in the following manner:
(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.
The Court has reviewed the complaint and finds that the allegations for punitive damages are lacking the requisite specificity required to seek such damages. While Plaintiff alleges that Defendant’s actions or inactions were reckless and a wanton, willful disregard to other’s safety, the allegations are conclusory. As discussed above, Plaintiff has at most alleged that Defendant was negligent when walking her dog, but Plaintiff’s allegations fail to rise to the level of malicious, oppressive, or fraudulent behavior. Thus, the motion to strike the allegations for punitive damages is granted with leave to amend.
CONCLUSION AND ORDER
Defendant Joanna Johnson’s demurrer to the 2nd, 3rd, and 4th causes of action in the complaint is sustained with 20 days leave to amend. The motion to strike the allegations for punitive damages is granted with 20 days leave to amend. The remainder of the motion to strike is denied.