I. BACKGROUND 

Plaintiff Margarita Zuniga (“Plaintiff”) filed this action against defendants Michael Azizi and Daniel Ramirez (“Ramirez”) for damages arising from a dog bite incident. The complaint sets forth two causes of action for general negligence and strict liability. The complaint includes a prayer for punitive damages.  

Defendant Mehrdad Azizi, erroneously sued as Michael Azizi, (“Azizi”) moves to strike the prayer for punitive damages. Plaintiff opposes the motion, and Azizi filed a reply. 

II. MOTION TO STRIKE 

Before filing a motion to strike, the moving party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the motion to strike and file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., § 435.5(a).) 

The Court finds Azizi has fulfilled this requirement. (Mot. Shaw Decl. ¶ 6-8.) Plaintiff contends Azizi did not properly meet and confer because although Plaintiff did not agree to remove the punitive damages claim, Plaintiff offered to amend the complaint to cure any alleged deficiencies. Regardless, an insufficient meet and confer process is not grounds to grant or deny a motion to strike.  (Code Civ. Proc., § 435.5(a)(4).) Therefore, the Court will consider Azizi’s motion on the merits.   

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a); 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”].) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.) 

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others. (Civ. Code, § 3294, subd. (c)(1).)  “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’  [Citation.]” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.)  

“As amended to include [despicable], the [Civil Code section 3294] 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.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.)  Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)   

The complaint alleges in relevant part that on April 23, 2023, Plaintiff was at a property owned by Azizi when she was attacked and bitten by a dog owned by Ramirez. (Compl. at p. 4.) Plaintiff also alleges that defendants knew or should have known the dog was vicious or had other dangerous propensities. (Ibid.) 

Azizi argues that the complaint has not pled any factual allegations that demonstrate willful, deliberate, or despicable conduct to warrant punitive damages. The Court agrees. “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.”  (Civ. Code, § 3342(a).)  This statute imposes strict liability on the dog's owner. (Johnson v. McMahan (1998) 68 Cal.App.4th 173, 175-76.) Here, Ramirez is alleged to have been the owner of the dog, and Azizi’s only involvement is that Plaintiff was bitten while on Azizi’s property. The complaint alleges in a conclusory manner that defendants had knowledge of the dog’s vicious propensity, but there are no specific facts provided to support these allegations. There are no factual allegations showing Azizi willfully and deliberately failed to avoid the consequences of the dog’s alleged dangerous nature. (See Penner v. Falk (1984) 153 Cal.App.3d 858, 867.) Further, there are no factual allegations showing circumstances that are base, vile or contemptible, or aggravating factors showing conduct associated with the character of outrage or crime. (See College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725; see also Tomaselli, 25 Cal.App.4th at 1287.) The Court finds Plaintiff’s allegations against Azizi do not rise to the level of malice, fraud, or oppression, as defined by the Code.   

Accordingly, the motion to strike the request for punitive damages is GRANTED.    

III. CONCLUSION 

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.)  In this case, Plaintiff reiterates allegations in the complaint, and argues that Azizi permitted the dog to roam around the building when he should have known the dog had vicious and dangerous propensities. This conclusory contention is insufficient to show that the complaint could be successfully amended to properly state a claim for punitive damages. 

Therefore, Azizi’s motion to strike punitive damages is GRANTED without leave to amend.   

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 15th day of April 2024