Judge: Mark A. Young, Case: 22SMCV02372, Date: 2024-01-10 Tentative Ruling
Case Number: 22SMCV02372 Hearing Date: January 10, 2024 Dept: M
CASE NAME: Taghizadeh v.
Wuchenich, et al.
CASE NO.: 22SMCV02372
MOTION: Demurrer
and Motion to Strike the First Amended Complaint
HEARING DATE: 1/10/24
Legal
Standard
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. 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 pleadings alone and not
the evidence or other extrinsic matters. Therefore, it lies only where the
defects appear on the face of the pleading or are judicially noticed. (CCP §§
430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate
facts sufficient to apprise the defendant of the factual basis for the claim
against him. (Semole v. Sansoucie
(1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit
contentions, deductions or conclusions of fact or law alleged in the pleading,
or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen
(1964) 226 Cal.App.2d 725, 732, internal citations omitted.)
A
special demurrer for uncertainty is disfavored and will only be sustained where
the pleading is so bad that defendant cannot reasonably respond—i.e., cannot
reasonably determine what issues must be admitted or denied, or what counts or
claims are directed against him/her. (CCP § 430.10(f); Khoury v. Maly’s
of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if
the pleading is somewhat vague, “ambiguities can be clarified under modern
discovery procedures.” (Ibid.)
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. (CCP § 435(b)(1); Cal. Rules of Court, Rule
3.1322(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. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a
pleading which is not essential to the claim is surplusage; probative facts are
surplusage and may be stricken out or disregarded”].)
“Liberality in permitting amendment
is the rule, if a fair opportunity to correct any defect has not been given.” (Angie
M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of
discretion for the court to deny leave to amend where there is any reasonable
possibility that plaintiff can state a good cause of action. (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to
show in what manner plaintiff can amend the complaint,
and how that amendment will change the legal effect of the
pleading. (Id.)
Analysis
Defendants Tom Wuchenich and Tara Wuchenich demurrer to each cause of
action stated in Plaintiff Christine Taghizadeh’s First Amended Complaint (FAC).
Defendants also move to strike punitive damages and related allegations.
First Cause of
Action for Negligence
Defendants argue that the first cause of action for general negligence
fails because it is actually a cause of action for “bystander” emotional
distress, and does not meet the requirements for such an action. To plead a
cause of action for negligence, one must allege (1) a legal duty owed to
plaintiffs to use due care; (2) breach of duty; (3) causation; and (4) damage
to plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006)
137 Cal. App. 4th 292, 318.) “In order to state a cause of action for negligence,
the complaint must allege facts sufficient to show a legal duty on the part of
the defendant to use due care, a breach of such legal duty, and the breach as
the proximate or legal cause of the resulting injury.” (Bellah v. Greenson
(1978) 81 Cal.App.3d 614, 619.) In
California, negligence may be pleaded in general terms. (Landeros v. Flood
(1976) 17 Cal.3d 399, 407-408.)
The FAC alleges that on November 12, 2020, Defendants’ dog, a German
Shepard, attacked and wounded Plaintiff and her service dog. (FAC ¶ 1.)
As a result of the attack, Plaintiff sustained extensive wounds and injuries.
(¶ 2.) Further, Plaintiff’s dog sustained extensive wounds and injuries. (¶¶
12, 15.) Defendants owned or controlled their dog which attacked plaintiff and
her dog. (¶ 13.) Prior to the November 12, 2020, incident, Defendants knew
their dog previously escaped its enclosures and caused serious damage to
property, other animals and other individuals. (¶ 14.) Notwithstanding this
knowledge, Defendants failed to exercise reasonable or ordinary control over
the maintenance, kenneling and housing of their dog. (Id.) As a result of
“witnessing,” Plaintiff also suffered severe mental, emotional and
psychological injuries. (¶ 16.)
Defendants assert that the above allegations are uncertain because there
is no evidence that there were previous bites, or that damage was done to other
animals or individuals. This contention goes beyond the four corners of the
FAC, and therefore cannot be considered. The factual allegations of the FAC,
including the fact that Defendants were on notice of prior attacks, is presumed
to be true on demurrer.
Next, Defendants note that Plaintiff alleges damages stemming from her
dog’s injury. (FAC, ¶¶ 11, 12.) This includes Plaintiff’s emotional
distress in “witnessing” the dog attack. (¶ 16.) Defendants argue that
this description of emotional distress
is not actionable because the first element necessary to plead bystander
emotional distress is missing because there is no death of a close relative
involved. With this argument, Defendants do not show that the entire negligence
cause of action fails. Defendants focus on one aspect of the damages—emotional
distress stemming from Plaintiff witnessing her dog’s injuries. First, Defendants
recognize that Plaintiff also claims she was personally injured in the
incident. (FAC, ¶ 2.) Thus, she is a direct victim to an emotional
injury producing event and would not have to rely on a bystander theory of
liability. Furthermore, emotional distress is not the sole basis of the
negligence damages, which would include her physical injuries as well. Thus,
even if the cited emotional distress was unrecoverable, the negligence cause of
action would remain. A demurrer cannot
be sustained as to only a portion of a cause of action. (PH II, Inc. v. Superior Court (1995) 33 Cal. App.
4th 1680, 1681.)
Accordingly, the demurrer is
OVERRULED as to this cause of action.
Second Cause of Action for Strict Liability
Defendants demur to the second
cause of action for strict liability cause of action on the grounds that the
allegations are “ambiguous and unintelligible.”
Under Civil Code § 3342(a), the “owner of any dog is liable for the
damages suffered by any person who is bitten by the dog while in a public place
or lawfully in a private place, including the property of the owner of the dog,
regardless of the former viciousness of the dog or the owner's knowledge of
such viciousness.” “Subdivision (a) of
section 3342 has been recognized as imposing a duty of care on every dog owner
to prevent his or her dog from biting persons in a public place or lawfully in
a private place. (Davis v. Gaschler (1992) 11 Cal.App.4th 1392, 1399.)
Simply put, the statute is designed “to prevent dogs from becoming a hazard to
the community” (Ibid.) by holding dog owners to such a standard of care,
and assigning strict liability for its breach.” (Priebe v. Nelson (2006)
39 Cal.4th 1112, 1120.) While Civil Code §3342 provides strict liability for
the dog owner, the keeper or harborer of the dog can also be held liable if he
or she knew of the dog’s dangerous or vicious propensities. (Menches v.
Inglewood Humane Soc. (1942) 51 Cal.App.2d 415.)
The cause of action is not
ambiguous or unintelligible within the meaning of section 430.10(f). The second
cause of action alleges that Defendants are strictly liable for their dog’s bite
because they had prior knowledge of their dog’s viciousness and propensity to
injure individuals such as Plaintiff. (FAC ¶ 18.) As noted above, Defendants
knew prior to the November 12, 2020, incident that their dog previously escaped
their enclosures and caused serious damage to property, other animals and other
individuals. (¶ 14.) Notwithstanding this knowledge, Defendants failed to
exercise reasonable or ordinary control over the maintenance, kenneling and
housing of their dog. (Id.) Defendants therefore knew or should have known that
the dog was dangerous and would injure Plaintiff if left without proper
supervision or restraints. (¶ 19.) Defendants’ dog, in fact, caused injuries to
Plaintiff. (¶¶ 20-23.)
Defendants principally complain that
the FAC lacks evidentiary facts supporting the allegations. However, such
contentions are not well-taken on demurrer.
Accordingly, the demurrer is
OVERRULED.
Third Cause of Action for Landlord Liability
Defendants also demur to the third
cause of action. However, the third cause of action is not levied against them.
Instead, the third cause of action is stated against doe defendants 1-25 only.
Defendants are not doe defendants according to the allegations. Therefore, the
demurrer is not well taken as to that cause of action. The Court would also highlight that the
individuals identified in the third cause of action (Bell and Cutter), along
with the address of the property (in Los Angeles and not Santa Monica) appear
to have been cut and pasted from a different pleading.
Punitive Damages
Defendants move to strike the
request for punitive damages and the related allegations of malice. In order to state a prima facie claim for
punitive damages, a complaint must set forth the elements as stated in the
general punitive damage statute, Civil Code Section 3294. (Coll. Hosp., Inc.
v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements
include allegations that the defendant has been guilty of oppression, fraud or
malice. (Civ. Code § 3294 (a).)
“In order to survive a motion to
strike an allegation of punitive damages, the ultimate facts showing an
entitlement to such relief must be pled by a plaintiff. [Citations.] In passing
on the correctness of a ruling on a motion to strike, judges read allegations
of a pleading subject to a motion to strike as a whole, all parts in their
context, and assume their truth. [Citations.] In ruling on a motion to strike,
courts do not read allegations in isolation. [Citation.]” (Clauson v.
Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “The mere allegation an
intentional tort was committed is not sufficient to warrant an award of
punitive damages. [Citation.] Not only must there be circumstances of
oppression, fraud or malice, but facts must be alleged in the pleading to
support such a claim. [Citation.]” (Grieves v. Superior Ct. (1984) 157
Cal.App.3d 159, 166, fn. omitted.)
Section 3294 defines malice as
conduct “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.” Despicable is a powerful
term used to describe circumstances that are “base,” “vile,” or “contemptible.”
(Coll. Hosp., supra, at 726.) The statute “plainly indicates that absent
an intent to injure the plaintiff, “malice” requires more than a “willful and
conscious” disregard of the plaintiffs' interests. The additional component of
“despicable conduct” must be found.” (Id.)
The FAC does not allege intentional
or despicable conduct required to impose punitive damages. At worst, Defendants
allegedly knew of their dog’s violent propensities from prior incidents and
that Defendants failed to exercise reasonable control over their dog’s
housing/restraints. (FAC ¶¶ 3, 14, 18-20.) The FAC does not allege that
Defendants intended to harm Plaintiff. The conclusory allegations of despicable
conduct are insufficient. (See FAC ¶ 1.) Otherwise, the FAC does not provide
specific allegations that Defendants failed to control their dog with a
reckless or conscious disregard of the rights and safety of others such as
Plaintiff. Plaintiffs must allege the specific conduct Defendants
undertook, and facts showing that Defendants carried out that conduct with a
willful and conscious disregard for others’ safety.
Accordingly, the motion to strike
is GRANTED with leave to amend.
Plaintiff has 10 days to file an amended complaint.