Judge: Robert B. Broadbelt, Case: 19STCV44140, Date: 2023-08-08 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

Case Number: 19STCV44140    Hearing Date: August 8, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Plaintiff and cross-defendant David Dallakian         

RESPONDING PARTY:       Defendant and cross-complainant Simple Bar, Inc.

Motion to Strike Prayer for Punitive Damages

The court considered the moving, opposition, and reply papers filed in connection with this motion.

BACKGROUND

Defendant and cross-complainant Simple Bar, Inc. (“Simple Bar”) filed its operative Second Amended Cross-Complaint in this action on January 17, 2023, against David Dallakian, Adroit Private Security, Inc., and Haroutioun Aivazian.  Simple Bar alleges eight causes of action for (1) implied contractual indemnity, (2) express contractual indemnity, (3) breach of written contract, (4) contribution, (5) declaratory relief (duty to defend), (6) declaratory relief (duty to indemnify), (7) third party tort of another, and (8) implied indemnity.

Plaintiff and cross-defendant David Dallakian (“Dallakian”) now moves the court for an order striking from the Second Amended Cross-Complaint Simple Bar’s prayer for punitive damages and related allegations.

DISCUSSION

Dallakian requests that the court strike the following from Simple Bar’s Second Amended Cross-Complaint: (1) the prayer for punitive damages; (2) the allegation that “Dallakian’s . . . willful, wanton, and malicious actions encouraged, initiated, and incited a melee outside the Premises” as set forth in paragraph 7; and (3) the allegation that “Therefore, not only did Dallakian . . . consent to the fisticuffs they initiated, but they also assumed the risk of all of their alleged injuries and damages suffered as alleged in the Dallakian . . . Operative Complaints by willfully and wantonly engaging in mutual combat with others outside the Premises on or about November 15-16, 2019” as set forth in paragraph 9.

The court grants Dallakian’s motion to strike (1) the prayer for punitive damages, and (2) the related allegations in (i) paragraph 7, as to the terms “willful, wanton, and malicious[,]” and (ii) paragraph 9, as to the term “willfully and wantonly[,]” because Simple Bar has not pleaded facts establishing that Dallakian’s alleged oppressive, fraudulent, or malicious conduct harmed Simple Bar, such that it may recover punitive damages from Dallakian.  (Code Civ. Proc., § 436; Civ. Code, § 3294, subd. (a).)

The court acknowledges that Simple Bar has alleged that (1) Dallakian verbally assaulted an African American patron inside the premises with the use of racial epithets; (2) Dallakian incited violence by using vile, offensive, and obscene language, including racial epithets, and intended to instigate a physical altercation with the patron and his associates; and (3) looking for a fight, Dallakian incited, initiated, and engaged in the physical altercation.  (SACC ¶¶ 6-7, 9.)  However, in support of the three causes of action alleged against Dallakian (i.e., the fourth cause of action for contribution, seventh cause of action for third party tort of another, and eighth cause of action for implied indemnity), Simple Bar has not alleged any facts establishing that Dallakian’s conduct caused Simple Bar any harm.  (Civ. Code, § 3294, subds. (c)(1) [defining malice to be conduct that is either intended “to cause injury to the plaintiff” or despicable conduct carried on with a willful disregard of the rights of others], (c)(2) [defining oppression to be despicable conduct subjecting a person “to cruel and unjust hardship in conscious disregard of that person’s rights”] [emphasis added].)

Instead, Simple Bar has alleged that Dallakian engaged in conduct toward one of its patrons that may be considered malicious or oppressive.  However, Simple Bar has not alleged any facts or, in opposition, presented any authority, establishing that it may obtain an award of punitive damages based on Dallakian’s actions toward a party independent of Simple Bar.  The court therefore finds that Simple Bar has not pleaded facts sufficient to show that it is entitled to recover punitive damages from Dallakian.

The court denies Dallakian’s request to strike (1) the allegation in paragraph 7 that “Dallakian’s . . .  actions encouraged, initiated, and incited a melee outside the Premises[,]” and (2) the allegation in paragraph 9 that, “Therefore, not only did Dallakian . . . consent to the fisticuffs they initiated, but they also assumed the risk of all of their alleged injuries and damages suffered as alleged in the Dallakian . . .  Operative Complaints by . . . engaging in mutual combat with others outside the Premises on or about November 15-16, 2019” because those allegations are not irrelevant or improper, or not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.  (Code Civ. Proc., § 436.)

The burden is on the plaintiff or cross-complainant “to articulate how it could amend its pleading to render it sufficient.”¿ (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)¿ To satisfy that burden, a plaintiff or cross-complainant “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.”¿ (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)  The court finds that Simple Bar has not met its burden to articulate how it could amend its pleading to render its prayer for punitive damages sufficient against Dallakian and therefore grants the motion without leave to amend.

ORDER

The court grants in part plaintiff and cross-defendant David Dallakian’s motion to strike without leave to amend as follows.

The court orders that the following language is stricken from Simple Bar, Inc.’s Second Amended Cross-Complaint, filed on January 17, 2023: (1) the prayer for punitive damages against Dallakian, as set forth on page 17, lines 14-15; (2) the terms “willful, wanton, and malicious” as set forth in paragraph 7; and (3) the term “willfully and wantonly” as set forth in paragraph 9.

The court denies all other relief requested in the motion to strike.

The court orders plaintiff and cross-defendant David Dallakian to give notice of this ruling.

IT IS SO ORDERED.

DATED:  August 8, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court