Judge: Michael E. Whitaker, Case: 21STCV35658, Date: 2022-12-19 Tentative Ruling

Case Number: 21STCV35658    Hearing Date: December 19, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Thomas Masterson (Plaintiff) sued Defendants Bob Heiple, Bobsdogs, and Fedora Bliss, LLC (collectively, Defendants) based on a dog bite.  Defendant Fedora Bliss, LLC (Moving Defendant) demurs to the first cause of action for general negligence in Plaintiff’s Complaint.  Moving Defendant also moves to strike Plaintiff’s claim for punitive damages and related portions of the Complaint.  Plaintiff has not filed oppositions to the demurrer and motion.

ANALYSIS

1. DEMURRER

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.”  (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.)  In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint.  (Code Civ. Proc., § 452.)  “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”  (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

1. Negligence

    

   Moving Defendant first demurs to the first cause of action for general negligence for failure to state facts sufficient to constitute a cause of action and as uncertain.  Specifically, Moving Defendant argues the first cause of action includes only conclusory and vague allegations without specific allegations that Defendant engaged in malicious, fraudulent, oppressive, or reckless conduct.

    

   The Court first finds Defendant’s arguments conflate ultimate facts, evidentiary facts, and conclusions. Ultimate facts are those “constituting the cause of action” or those upon which liability depends. (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “[T]he complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form a part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 872 [at pleading stage, plaintiff need not specify which of defendant’s employees committed negligent acts or omissions].)  “Ordinarily, negligence may be alleged in general terms, without stating the acts constituting negligence or detailing the particular manner in which plaintiff’s injury occurred.  (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 6:129  (hereafter Weil & Brown.)

    

   Further, the Court finds that Defendant misstates the requisite allegations for a negligence cause of action, which do not include facts indicating malice, oppression, fraud or recklessness. “The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 834 [cleaned up].)

    

   The first cause of action alleges in pertinent part the following:

    

   “Defendants negligently, carelessly, recklessly and/or wantonly managed, owned, maintained, operated, controlled, safeguarded and designed the premises located at or near 837 Fedora St. Los Angeles, CA 90005 such that a dog known to have dangerous propensities was allowed to be left alone and/or unrestrained on the premises thereby constituting a dangerous area, and such that defendants failed to warn of the dangerous condition of the premises, and/or prematurely and/or incorrectly allowed foot traffic in the area where the dangerous condition existed, rendering the area on said premises dangerous and legally causing Plaintiff to be injured in the following manner: Plaintiff was in the yard of his complex, adjacent to 837 Fedora St., when, suddenly and without warning, Plaintiff was bitten and/or attacked by Defendants BOB HEIPLE and BOBSDOGS' dog causing Plaintiff to sustain serious injuries and damages as alleged hereinabove. Defendants' conduct was the proximate cause of Plaintiffs injuries”

    

   (Complaint, p. 4.)

    

               For pleading purposes, Plaintiff’s allegations in the first cause of action are sufficient to state a cause of action for negligence against Defendant.

    

2. MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof.  (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).)  On a motion to strike, the court may: (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., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

1. Punitive Damages

    

   In ruling on a motion to strike punitive damages, “judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”  (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.)  To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294.  (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.)  Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice.  (Civ. Code, § 3294, subd. (a).)   As set forth in the Civil Code,

    

   (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.

    

   (Civ. Code, § 3294, subd. (c)(1)-(3), emphasis added.) 

    

   Further, 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.  (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)  “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.  When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him.” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].)  In Anschutz Entertainment Group, Inc. v. Snepp, the Court of Appeal noted that the plaintiffs’ assertions related to their claim for punitive damages were “insufficient to meet the specific pleading requirement.”  (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [plaintiffs alleged “the conduct of Defendants was intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiff's rights. Plaintiff's injuries were exacerbated by the malicious conduct of Defendants. Defendants' conduct justifies an award of exemplary and punitive damages”]; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages.  Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim”].) 

              

               In addition, “[t]he imposition of punitive damages upon a corporation is based upon its own fault.  It is not imposed vicariously by virtue of the fault of others.”  (City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal.App.3d 31, 36.)  “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive.  An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees.  But the law does not impute every employee’s malice to the corporation.  Instead, the punitive damages statute requires proof of malice among corporate leaders:  the officers, directors, or managing agents.”  (Cruz v. Home Base (2000) 83 Cal.App.4th 160, 167 [cleaned up].) 

    

    

   Defendant moves to strike Plaintiff’s claim for punitive damages.  Defendant argues the Complaint fails to plead acts of malice, oppression, or fraud.  Plaintiff’s Complaint alleges in relevant part the following”

    

   “Defendants BOB HEIPLE, an individual; BOBSDOGS, unknown entity; FEDORA BLISS, LLC, a Delaware corporation; and DOES 1 TO 50, inclusive, 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 as set forth in California Civil Code § 3294.”  (Complaint, p. 4.)

    

   The Court finds Plaintiff’s allegations fail to establish intentional conduct by Defendant done willfully, maliciously, with ill will towards Plaintiff, and with conscious disregard for Plaintiff's rights to support a claim for punitive damages.  Equally important, Plaintiff has not alleged malice, oppression or fraud among Defendant’s corporate leaders. 

    

3. LEAVE TO AMEND

Plaintiff has the burden of showing in what manner the first amended complaint could be amended and how the amendment would change the legal effect of the complaint, i.e., state a cause of action. (See The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771, 779; PGA West Residential Assn., Inc. v Hulven Int'l, Inc. (2017) 14 Cal.App.5th 156, 189.) The plaintiff must not only state the legal basis for the amendment, but also the factual allegations sufficient to state a cause of action or claim. (See PGA West Residential Assn., Inc. v Hulven Int'l, Inc., supra, 14 Cal.App.5th at p. 189.) Moreover, a plaintiff does not meet his or her burden by merely stating in the opposition to a demurrer or motion to strike that “if the Court finds the operative complaint deficient, plaintiff respectfully requests leave to amend.” (See Major Clients Agency v Diemer (1998) 67 Cal.App.4th 1116, 1133; Graham v Bank of America (2014) 226 Cal.App.4th 594, 618 [asserting an abstract right to amend does not satisfy the burden].)

Here, Plaintiff has not opposed the motion to strike. Consequently, he has failed to meet hir burden.  Thus, the Court will deny Plaintiff leave to amend the Complaint.

CONCLUSION AND ORDER

Therefore, the Court overrules Defendant’s demurrer to the first cause of action in the Complaint.  The Court grants Defendant’s motion to strike without leave to amend.  The Court orders Defendant to file and serve an answer to the Complaint within 20 days of the hearing. 

Defendant shall provide notice of the Court’s orders and file a proof of service of such.