Judge: Lynne M. Hobbs, Case: 23STCV09143, Date: 2024-01-19 Tentative Ruling

Case Number: 23STCV09143    Hearing Date: January 19, 2024    Dept: 30

GAYANE BABAYAN vs SOLA REAL ESTATE FUND I, LLC, et al.

TENTATIVE

Defendant Sola Real Estate Fund I, LLC,’s motion to strike is GRANTED without leave to amend. Moving party to give notice.

Background

On April 25, 2023, Plaintiff Gayane Babayan (“Plaintiff”) filed a Complaint against Defendants Sola Real Estate Fund I, LLC (“Defendant”), Daijne T. Milton, Harmon Leethel, and Joseph Coleman, alleging causes of action for dog bite (strict liability Civil Code section 3342), dog bite strict liability (common law), negligence and dangerous condition of property, arising from a dog bite incident that occurred on February 28, 2023.

On September 20, 2023, this Court granted Defendant’s motion to strike punitive damages.

On November 3, 2023, Plaintiff filed a first amended complaint (FAC).

On December 4, 2023, Defendant filed a motion to strike punitive damages from the FAC. On December 26, 2023, Plaintiff filed an opposition. On January 5, 2024, Defendant filed a reply.

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.¿(Code Civ. Proc., section 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)¿The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court.¿(Code Civ. Proc. section 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767,

782.)¿ The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.)

Meet and Confer

The court notes that counsel’s declaration satisfies the meet and confer requirement under CCP § 435.5(a)(3). (Knighton Decl., ¶ 4.)

Discussion

Defendant moves to strike the prayer for punitive damages arguing that Plaintiff’s Complaint fails to allege facts showing that the any defendants acted with oppression, fraud, or malice to justify an award of punitive damages.

To state a claim for punitive damages under Civil Code section 3294, a plaintiff must allege specific facts showing that the defendant has been guilty of malice, oppression or fraud. (Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1042.) The basis for punitive damages must be pled with specificity; conclusory allegations devoid of any factual assertions are insufficient. (Id.) A motion to strike may lie where the facts alleged, if proven, would not support a finding that the defendant acted with malice, fraud or oppression. (Turman v. Turning Point of Central California (2010) 191 Cal. App. 4th 53, 63.)

“Malice” is defined in section 3294(c)(1) as “conduct which is intended by the defendant to cause injury” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” “Oppression” is defined in section 3294(c)(2) as “despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.” The term “despicable” has been defined in the case law as actions that are “base,” “vile,” or “contemptible.” (See, e.g., Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal. App. 4th 847, 891.)

To prove that a defendant acted with “willful and conscious disregard of the rights or safety of others,” it is not enough to prove negligence, gross negligence or even recklessness. (Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, 87.) Rather, a plaintiff must allege facts demonstrating that “the defendant acted in such an outrageous and reprehensible manner that the jury could infer that he [or she] knowingly disregarded the substantial certainty of injury to others.” (Id. at 90). Further, the allegations must be sufficient for a reasonable jury to conclude that Defendant’s conduct was “despicable” defined as “base, vile or contemptible.” (College Hospital Inc. v. Superior Court (1994) 8 Cal. 4th 704, 725.)

The FAC alleges that: Defendant specifically knew of the dog’s vicious, aggressive, and/or dangerous propensities. Defendants further knew that the dog was kept on the property and was often left loose subjecting others to severe danger. (FAC, ¶ 13.)

The dog had at least once previously attacked the property manager and/or employees on duty, thereby further giving notice to Defendant that a vicious, dangerous and/or deadly animal was kept on their property and without proper restraints or warnings. (Id., ¶ 14.)

Defendant drafted, wrote or prepared at least three separate documents several months prior to the Plaintiff’s incident acknowledging and/or expressing their express knowledge that the dog was aggressive, and was kept on the property. For illustration, the said notices read “Tenant currently has an aggressive dog which is being kept on the premises. On 4/14/2022, the tenants’ Pit Bull almost attacked the Property Manager, Deandre Richardson while he was responding to an emergency maintenance call;” and “There is an aggressive Pit Bull that now resides in your unit. The dog has attempted to attack the Property’s Manager upon the manager’s door approach.” (Id., ¶ 15.)

Despite the express knowledge of the Defendant that a vicious and dangerous dog was kept on the premises, these Defendants did not take the reasonable and necessary actions to abate and/or remove the dog from the premises and did not take any action otherwise to warn against the dangerous condition of their property. (Id., ¶ 16.)

The court finds that the FAC does not allege a sufficient factual basis for the allegations that Defendant acted with a willful and conscious disregard of the rights or safety of others by failing to take action. The facts alleged merely show that the dog attempted to attack the property manager, without more. Defendant’s conduct of failing to remove the dog cannot be said to be despicable in these circumstances. At most, the conduct complained of could be said to be negligent or perhaps grossly negligent depending on the circumstances. However, Defendant cannot be charged with willfully and consciously disregarding the rights or safety of others or having substantial knowledge of injury to others, when, as alleged, the dog had not even caused any injury to any person in the past. Even if it did, the facts would have to be reprehensible in order to find punitive damages warranted; for example, the dog had previously caused grave injury, or death to different people or on multiple occasions, and that Defendant was aware of each occasion and the extent of the injuries. The fact that Plaintiff has amended to add that Defendant did not take action for its own financial gain does not change anything. It does not make it despicable.

Punitive damages are “typically awarded for intentional torts” while “cases involving unintentional torts are far fewer.” (Lackner v. North (2006) 135 Cal. App. 4th 1188, 1212.) The Court in Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95, stated:

“Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.”

This is missing here.

Leave to Amend

The burden is on Plaintiff to show in what manner she can amend the complaint, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.) Plaintiff has failed to show how the complaint can be amended to cure the defect. As such, the Court cannot find there is a possibility of properly pleading punitive damages, and will not allow leave to amend.