Judge: John J. Kralik, Case: 24BBCV00455, Date: 2024-05-03 Tentative Ruling

Case Number: 24BBCV00455    Hearing Date: May 3, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Lena Mestrandrea (“Plaintiff”) alleges that on August 22, 2023 at approximately 1 P.M. at or near 4041 Whitset Avenue in Studio City, she was attacked and bit by Defendant Nancy Ming Ling Chen’s (“Defendant”) German Shepherd Mix dog.  Plaintiff alleges that she was jogging past Defendant on a public street when Defendant was unable to control her dog and, without warning or provocation, the dog viciously attacked and bit Plaintiff. 

The complaint, filed February 23, 2024, alleges causes of action for: (1) negligence; and (2) strict liability.

B.     Motion on Calendar

On April 3, 2024, Defendant filed a motion to strike the allegations and prayer for punitive damages in the complaint.    

On April 10, 2024, Plaintiff filed an opposition brief.

On April 26, 2024, Defendant filed a reply brief.

DISCUSSION

            Defendant moves to strike the allegations for punitive damages in paragraph 12, 16, 17, 23, and 27 from the complaint, as well as in the prayer for damages as item no. 4. 

            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. 

In the 1^st cause of action for negligence, Plaintiff alleges that Defendant had a duty to manage and control the dog with reasonable care and with due regard to other persons, like Plaintiff, and prevent it from attacking and biting persons on public property.  (Compl., ¶10.)  Plaintiff alleges that Defendant breached this duty by allowing the dog to charge at, attack, and bite Plaintiff on a public street, which constitutes negligence per se pursuant to the Los Angeles Municipal Code and County Code.  (Id., ¶11.)  Plaintiff alleges that she is entitled to general, special, actual, compensatory, and punitive damages, etc.  (Id., ¶¶12, 16.)  She alleges that Defendant’s conduct was malicious, oppressive, despicable, and carried out with a willful and conscious disregard for the rights and safety of others because Defendant knew or should have known about the dangerous propensity of her dog and she did nothing to control her dog.  (Id., ¶17.)  In the 2^nd cause of action for strict liability, Plaintiff alleges that Defendant owned and controlled the dog and Defendant knew or should have known about the dog’s dangerous propensities but took no measures to abate or eliminate the danger to Plaintiff.  (Id., ¶¶20-22.)  Plaintiff alleges that she is entitled to general, special, actual, compensatory, and punitive damages.  (Id., ¶¶23, 27.) 

The allegations in support of the request for punitive damages are not pled with the requisite specificity.  The allegations are generalized and do not allege particular facts showing that Defendant acted with oppression, malice, or despicable conduct.  At most, the allegations rise to the level of negligence—that Defendant failed to control her dog when Plaintiff was jogging past Defendant and her dog.  However, there are no allegations that Defendant acted intentionally or with willful and conscious disregard of Plaintiff’s right or safety.  Further, the allegations that Defendant knew or should have known that the dog had dangerous propensities is not alleged with particularity or supporting facts. 

The motion to strike the allegations for punitive damages is granted with leave to amend. In the alternative, Plaintiff may wish to see whether discovery produces any evidence that Plaintiff knew or should have known of the dangerous propensities of her dog.

CONCLUSION AND ORDER

Defendant Nancy Ming Ling Chen’s motion to strike the allegations and prayer for punitive damages in the complaint is granted with 20 days leave to amend. 

Defendant shall provide notice of this order. 

DATED: May 3, 2024                                                                        ___________________________

                                                                                          John Kralik

                                                                                          Judge of the Superior Court