Judge: Lynette Gridiron Winston, Case: 23PSCV00143, Date: 2023-09-27 Tentative Ruling

Case Number: 23PSCV00143    Hearing Date: September 27, 2023    Dept: 6

Michael Moreno v. Esther Escandon, et al.

Defendant’s Motion to Strike Certain Allegations in Plaintiff’s First Amended Complaint

TENTATIVE RULING
The Court DENIES the motion to strike.

Defendants are ordered to file and serve an Answer to the First Amended Complaint within 10 calendar days.

Defendants are ordered to give notice and provide proof of service of same within five calendar days.

BACKGROUND
This is a dog bite case. On January 18, 2023, Plaintiff Michael Moreno (Plaintiff) filed this action against Defendants Esther Escandon, Robert M. Ornelas (collectively, Defendants) and Does 1 through 25, alleging causes of action for premises liability and general negligence. After Defendants filed a motion to strike Plaintiff’s request for punitive damages, Plaintiff filed the operative First Amended Complaint (FAC) on June 15, 2023, alleging the same causes of action.

On August 2, 2023, Defendant filed the instant motion to strike Plaintiff’s request for punitive damages. The motion is unopposed.

LEGAL STANDARD
“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, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(2).) “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) 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.” (Id., § 436.)

DISCUSSION
Meet and Confer
The Court finds Defendant’s meet and confer efforts to be sufficient. (Code Civ. Proc., § 435.5, subd. (a); Blamires Decl., ¶¶ 3-5.)

Analysis
“In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) “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.” (Civ. Code, § 3294, subd. (a).)

Defendants seek to strike Plaintiff’s requests for punitive damages throughout the FAC. (See FAC, ¶14, subd. (a)(2); Id., GN-1, second to last paragraph; Id., Prem.L-1; and Id., Exemplary Damages Attachment.) Defendants contend the FAC fails to allege sufficient facts to support Plaintiff’s requests for punitive damages. More specifically, the FAC fails to allege any facts showing that Defendants intended to harm Plaintiff. Defendants further contend Plaintiff was aware of the risk involving Defendants’ dog but still chose to come into close proximity with it. The Court finds these arguments unpersuasive.

Plaintiff alleges that he had previously suffered an attack from Defendants’ dog in June 2022, which Defendants personally witnessed and then promised Plaintiff that they would prevent it from happening again in the future. (FAC, GN-1, eighth paragraph; Id., Prem.L-1; Exemplary Damages Attachment, Ex.2, second paragraph.) Plaintiff further alleges that he told Defendants he was on his way to their house when they told him the dog would be kept in the back yard, but the dog was instead still loose in the house and attacked Plaintiff when he arrived on August 31, 2022. (FAC, GN-1, ninth paragraph; Prem.L-1; Exemplary Damages Attachment, Ex. 2, third paragraph.) The Court finds these allegations sufficient to support a claim for punitive damages at this stage of the litigation, as they could be construed as evidence of Defendants’ willful and conscious disregard of the rights and safety of Plaintiff. (Civ. Code § 3294, subd. (a).) The prior June 2022 incident ostensibly sets the basis for such a claim because it shows that Defendants were aware of both their dog’s propensity for violence in general and specifically with respect to Plaintiff, but failed to take the action necessary to prevent their dog from attacking Plaintiff again. In fact, the FAC alleges that Plaintiff had been misled into believing the dog was going to be in the backyard when he arrived. (See Id.; FAC, GN-1, ninth paragraph; Id., Prem.L-1; Id., Exemplary Damages Attachment, Ex. 2, third paragraph.) This supports Plaintiff’s allegations that Defendants acted with disregard to Plaintiff’s safety.

As for Defendant’s contention that Plaintiff was aware of the dog’s alleged vicious nature but still chose to come into close proximity with it, the Court finds that does not establish a basis for striking the request for punitive damages. Defendant is simply arguing assumption of risk, which is an affirmative defense. (See Knight v. Jewett (1992) 3 Cal.4th 296, 314-315.)

Therefore, the Court DENIES Defendant’s motion to strike.

CONCLUSION
The Court DENIES the motion to strike.

Defendants are ordered to file and serve an Answer to the First Amended Complaint within 10 calendar days.

Defendants are ordered to give notice and provide proof of service of same within five calendar days.