Judge Lee S. Arian, Case Number: 23STCV09688, Date: 2025-04-21 Tentative Ruling

This action arises from a dog bite incident that occurred on May 28, 2021, at 756 S. Normandie Avenue, #304, Los Angeles, CA 90005, where Plaintiff was allegedly bitten by Defendant Steve Waller’s dog. Defendant 756 S. Normandie Ave. LLC is alleged to have owned, managed, and controlled the subject premises. Plaintiff sets forth three causes of action for negligence, premises liability, and strict liability against all Defendants. Defendant 756 S. Normandie Ave. LLC now demurs to Plaintiff’s three causes of action and moves to strike Plaintiff’s allegation for punitive damages.

A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)¿When considering demurrers, courts read the allegations liberally and in context.¿ (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.)¿In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿“A demurrer tests the pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.) Before filing a demurrer, demurring party is also required to meet and confer with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (See Code Civ. Proc., § 430.41.)

Plaintiffs need allege only “ultimate facts.” Ludgat Ins. Co., Ltd. v. Lockheed Martin Corp., 82 Cal. App. 4th 592, 606 (2000). Thus, “each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” Pich v Lightbourne, 221 Cal. App. 4th 480, 495 (2013).

As to the first and second causes of action for negligence and premises liability, Defendant raises the same arguments that Plaintiff only alleges that Defendant “negligently, carelessly, recklessly, and/or wantonly managed, owned, maintained, operated, controlled, safeguarded, and designed the premises,” but fails to specify any particular actions Defendant failed to take or actions Defendant took that would constitute a failure to exercise reasonable care. Defendant further contends that the Complaint fails to allege that Defendant had actual or constructive knowledge of the dog’s dangerous propensities.

Defendant’s argument focuses on general language in the introductory sentence, namely, that Defendants “negligently, carelessly, recklessly, and/or wantonly managed, owned, maintained, operated, controlled, safeguarded and designed the premises”, without addressing the following contentions in the Complaint:

· A dog “known to have dangerous propensities was allowed to be left alone and/or unrestrained on the premises”;

· Defendants “knew or should have known about the dog’s propensity to bite/attack humans”;

· Defendants “failed to warn of the dangerous condition of the premises”; and

· Defendants “prematurely and/or incorrectly allowed foot traffic in the area where the dangerous condition existed.”

To a barely sufficient degree, primarily because ultimate facts may be pled in California, these allegations constitute sufficient factual contentions regarding what Defendants failed to do, namely, restrain or supervise a dangerous dog, warn others of the risk, and control access to the hazardous area. And, while the facts supporting the legal conclusion that Defendants “knew or should have known about the dog’s propensity to bite/attack humans” are missing, such allegations regarding knowledge are not required at the pleading stage because they are in the purview of the defendant at this time. (However, a lack of knowledge can form the basis for a summary judgment motion once the defendant has had an opportunity to discovery facts regarding knowledge.) Accordingly, the Court overrules Defendant’s demurrer to the first and second causes of action.

Strict liability under Civil Code § 3342 applies only to a defendant who owns the dog. (CACI No. 463.) The Complaint alleges that Steve Waller is the owner of the dog but includes no allegations that the corporate Defendant, 756 S. Normandie Ave. LLC, owned the dog. Absent allegations that the corporate Defendant owned the animal, Plaintiff fails to plead the necessary elements to impose strict liability.

Furthermore, Plaintiff fails to oppose the demurrer as to the third cause of action, and based on the allegations in the Complaint, it does not appear that Plaintiff can cure the defect to maintain a strict liability claim against Defendant. Accordingly, Plaintiff’s strict liability cause of action against the corporate Defendant is insufficient as a matter of law.

¿ The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.)¿

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code § 3294, subd. (a).)¿ Clear and convincing evidence requires proof making the existence of a fact highly probable— falls between the “more likely than not” standard commonly referred to as a preponderance of the evidence and the more rigorous standard of proof beyond a reasonable doubt.” (Conservatorship of O.B. (2020) 9 Cal.5th 989, 995.)

“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.” (Civil Code section 3294 (c)(1).) Under the statute, malice does not require actual intent to harm. Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of his or her conduct and he or she willfully fails to avoid such consequences. (Pfeifer v.John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) ‘Despicable’ is a powerful term that refers to circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’ (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)¿¿¿

A plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud, or malice.¿ To wit, there is a heightened pleading requirement regarding a claim for punitive damages.¿ (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.).)¿¿

California Code, Civil Code § 3294(b), which governs punitive damages against corporations, provides:

(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.

Plaintiff’s Complaint merely asserts that Defendants “knew or should have known about the dog’s propensity to bite/attack humans and allowed the dog to roam freely unattended on the property and to come in contact with others unattended such that Defendants are subject to punitive damages.” This allegation is conclusory and lacks the specificity necessary to support the requisite heightened pleading standard to allege a claim for punitive damages. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.).)

Second, Plaintiff does not allege any facts demonstrating that Defendant acted with intent to harm, or that Defendant’s conduct was despicable and done with conscious disregard of the safety of others. Mere knowledge of a dog’s alleged dangerous propensities and allowing the dog to be present on the premises, without more, does not rise to the level of malice or despicable conduct required to impose punitive damages.

Third, Plaintiff fails to allege facts showing that any officer, director, or managing agent of the corporate defendant 756 S. Normandie Ave. LLC authorized, ratified, or personally engaged in oppressive, fraudulent, or malicious conduct as required by Civil Code § 3294(b).

Furthermore, Plaintiff’s opposition does not address Defendant’s motion to strike. As such, the request to strike the punitive damages allegation is granted without leave to amend.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Lee S. Arian

Judge of the Superior Court