Judge Lee W. Tsao, Case Number: 22NWCV01757, Date: 2023-05-25 Tentative Ruling

Judge: Lee W. Tsao, Case: 22NWCV01757, Date: 2023-05-25 Tentative Ruling

Case Number: 22NWCV01757 Hearing Date: October 24, 2023 Dept: C

GILFILLIAN v. RIKE, ET AL.

CASE NO.: 22NWCV01757

HEARING: 10/24/23 @ 9:30 a.m.

TENTATIVE RULING

Defendant TINA RIKE and BLESSINGS FAMILY CHILD CARE’s motion to strike portions of Plaintiff DANIEL GILFILLIAN’s first amended complaint is GRANTED with 20 days leave to amend.

Moving party to give notice.

This negligence action was filed by Plaintiff DANIEL GILFILLIAN (Plaintiff), a minor by and through his Guardian Ad Litem, MONIQUE NASTASSIA PRINGLE, against Defendants TINA RIKE and BLESSINGS FAMILY CHILD CARE (Defendants). Defendant Rike operates a day care center from her home where she cared for Plaintiff Gilfillian. On March 16, 2021, Plaintiff Gilfillian (age 4 at the time) was in the backyard when he was attacked and injured by Defendant Rike’s unrestrained dog. Plaintiff’s operative first amended complaint (FAC) was filed on June 23, 2023 and asserts the following causes of action: (1) strict liability (animal with known dangerous propensity); (2) negligence; (3) negligent infliction of emotional distress; and (4) premises liability.

Defendants move to strike punitive damages from Plaintiff’s FAC.

Defendants’ motion to strike Plaintiff’s first amended complaint:

Legal Standard

The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper, strike out any irrelevant, false, or improper matter inserted in any pleading or strike out 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. (CCP § 436.) The grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice (e.g., the court's own files or records). (CCP § 437.)

In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. (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. (CC § 3294(a).)

Punitive damages thus require more than the mere commission of a tort. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95.) Specific facts must be pled in support of punitive damages. (Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-392.) A “conclusory characterization of [a] defendant’s conduct as intentional, willful and fraudulent [is] [a] patently insufficient statement of oppression, fraud, or malice.” (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 865.) Facts must be pled to show that a defendant “act[ed] with the intent to vex, injure or annoy, or with a conscious disregard of the plaintiff’s rights.” (Silberg v. California Life Ins. Co. (1974) 11 Cal.3d 452, 462.) “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.” (G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.) Conduct that is merely negligent will not support a claim for punitive damages. (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1288.)

Discussion

Defendants move to strike punitive damages from portions of Plaintiff’s FAC located on: (1) page 6, lines 10-14, paragraph 32; (2) page 7, lines 19-23; page 7, lines 26-27; page 8, lines 1-7, paragraph 43; (3) page 9, lines 11-14, paragraph 52; (4) page 9, lines 15-23, paragraph 53; (5) page 10, lines 21-24, paragraph 59; and (6) prayer for punitive damages on page 12, line 13, paragraph 4. Defendants argue that the FAC fails to support an award for punitive damages because Plaintiff does not allege that Defendants were aware that the dog had previously bitten other people or had a propensity to engage in harmful behavior prior to the subject incident.

In opposition, Plaintiff argues that the Department of Social Services previously ordered Defendants to isolate the dog from the children in their care, Defendants had a policy of not allowing the dog to roam freely among the children, and the dog had a “plethora of medical issues.” These factual allegations, however, are neither made in the “four corners” of the FAC or judicially noticed by the court. Therefore, they cannot support a request for punitive damages at this stage of the proceedings. (CCP § 437(a).)

Accordingly, Defendant TINA RIKE and BLESSINGS FAMILY CHILD CARE’s motion to strike portions of Plaintiff DANIEL GILFILLIAN’s first amended complaint is GRANTED with 20 days leave to amend.