Judge: Michael E. Whitaker, Case: 22STCV29936, Date: 2023-03-27 Tentative Ruling

Case Number: 22STCV29936    Hearing Date: March 27, 2023    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

MOTIONS

Plaintiffs Beatrtiz Naranjo, individually and as Guardian Ad Litem to Melody Molina (collectively, Plaintiffs) sued Defendant Juan Gudino (Defendant) based on damages they suffered after witnessing minor Michael Tucker being bit by a dog.  Plaintiffs’ Complaint alleges causes of action for premises liability and intentional tort causes of action against Defendant. 

Defendant demurs to the cause of action for Negligent Infliction of Emotional Distress (NIED) of Plaintiff Beatriz Naranjo (Naranjo).  Defendant further moves to strike Plaintiffs’ claim for punitive damages from the Complaint.  Plaintiffs have not filed an opposition to the demurrer or motion to strike.

JUDICIAL NOTICE

Under Evidence Code section 451, “[j]udicial notice shall be taken of..[t]he decisional, constitutional, and public statutory law of the this state and of the United States and the provisions of any charter described in Section 3, 4, or 5 of Article XI of the California Constitution.” (Evid. Code, § 451, subd. (a).) Under Evidence Code section 452, “[j]udicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: (a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state. (b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. (d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. (f) The law of an organization of nations and of foreign nations and public entities in foreign nations. (g) Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute. (h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subds. (a)-(h).)

The Court shall grant Defendant’s request for judicial notice of the Complaint filed in the case, Michael Tucker vs. Eduardo Solis, et al. (Super. Ct. L.A. County, 2022, No. 22STCV04787), as well as the Complaint in this case, pursuant to Evidence Code section 452, subdivision (d)(1).  The Court shall further grant Defendant’s request for judicial notice of Emergency Rule 9 pursuant to Evidence Code section 452, subdivision (c).

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.) 

Here, the Court finds that Plaintiffs’ Complaint includes allegations of emotional distress.  “Defendants owed and breached their duties to Plaintiffs to refrain from inflicting emotional distress upon Plaintiffs. When the Dog injured Michael Tucker, Plaintiffs were present at the scene, were aware that he was being injured, and suffered emotional distress beyond that which would be anticipated in a disinterested witness.” (Complaint, p. 4.)  However, Plaintiffs’ have not asserted a separate cause of action for Negligent Infliction of Emotional Distress. 

Accordingly, the Court concludes that Defendant’s demurrer is not justiciable. “The concept of justiciability involves the intertwined criteria of ripeness and standing. Standing derives from the principle that every action must be prosecuted in the name of the real party in interest.  A party lacks standing if it does not have an actual and substantial interest in, or would not be benefited or harmed by, the ultimate outcome of an action.  Standing is a function not just of a party's stake in a case, but the degree of vigor or intensity with which the presents its arguments. Ripeness refers to the requirements of a current controversy. According to the Supreme Court, an action not founded upon an actual controversy between the parties to it, and brought for the purpose of securing a determination of a point of law will not be entertained. A controversy becomes ripe once it reaches, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made.”  (City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 59 [cleaned up].) 

Moreover, if Defendant was seeking a general demurrer based on portions of the premises liability or intentional tort causes of action related to any allegation of emotional distress, Defendant’s demurrer would still be improper as a demurrer cannot be sustained to a portion of a cause of action.  (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1167.) 

Consequently, the Court overrules Defendant’s demurrer to the Complaint.

2.      Motion to Strike

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”].) 

            Defendant moves to strike Plaintiffs’ claim for punitive damages, arguing that the Complaint is devoid of allegations from which it can be inferred that Defendant is guilty of malice, fraud, or oppression.  Plaintiffs’ Complaint alleges in relevant part the following:

·         Defendants, and each of them, maintained and operated their premises located at 3510 locke (sic) Avenue, Los Angeles, CA 90032 in a negligent manner in that they allowed a dog to bite minor Plaintiff Michael Tucker who is Naranjo's son and Molina's brother. On that day, Defendants owed and breached their duties to Plaintiffs to refrain from inflicting emotional distress upon Plaintiffs. When the Dog injured Michael Tucker, Plaintiffs were present at the scene, were aware that he was being injured, and suffered emotional distress beyond that which would be anticipated in a disinterested witness. Plaintiffs sustained past and future medical treatment, psychological treatment and costs, as well as loss of consortium and companionship of Michael Tucker.

·         On that day, Defendant Gundino (sic) is strictly liable for the injuries and damages of Plaintiffs pursuant to Civil Code Section 3342(a), which on the date of the incident on 07/05/2020, provided in pertinent part as follows: “ 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. A person is lawfully upon the private property of such owner within the meaning of this section when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States, or when he is on such property upon the invitation, express or implied, of the owner. In addition, this Defendant intentionally left his Dog to roam without a leash and it attacked and bit Michael Tucker.

(Complaint, First & Second Causes of Action.) 

            The Court agrees that the Complaint fails to sufficiently allege facts which support a punitive damages claim.  Without further facts indicating that Defendant somehow knew or should have known that his dog had a propensity to bite, or had other aggressive tendencies, other than the assertion that Defendant let his dog roam off leash, Plaintiff have failed to allege sufficient facts to indicate that Defendant allegedly engaged in malice, oppression or fraud. 

3.      Leave to Amend

Plaintiffs have 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, Plaintiffs have not opposed the motion to strike. Consequently, they have failed to meet their burden. Thus, the Court will deny Plaintiffs’ leave to amend the Complaint.

CONCLUSION AND ORDER

Therefore, the Court overrules Defendant’s demurrer to the Complaint and grants Defendant’s motion to strike Plaintiffs’ claim for punitive damages without leave to amend.

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