Judge Stephen P. Pfahler, Case Number: 23CHCV01502, Date: 2023-11-02 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 23CHCV01502, Date: 2023-11-02 Tentative Ruling

Case Number: 23CHCV01502 Hearing Date: November 2, 2023 Dept: F49

Dept. F-49

Date:11-2-23

Case # 23CHCV01502

Trial Date: Not Set

DEMURRER/MOTION TO STRIKE

MOVING PARTY: Defendants, Susan Pritchard, et al.

RESPONDING PARTY: Plaintiff, Yeroos Noorijanian

RELIEF REQUESTED

Demurrer to the Complaint

· Allegations in Support of, and Claim for, Punitive Damages

Motion to Strike First Amended Complaint

· Allegations in Support of, and Claim for, Punitive Damages

SUMMARY OF ACTION

On June 18, 2022, plaintiff Yeroos Noorijanian alleges that two dogs owned by defendants Susan Pritchard Pone and Joseph Pone jumped out of defendants’ vehicle and attacked both Plaintiff and dog Leo, while the two were on a walk.

On May 23, 2023, Plaintiff filed a complaint for Negligence and Strict Liability.

RULING: Overruled/Denied.

Defendants submit both a demurrer and motion to strike the allegations in support of, and claim for, punitive damages in the first amended complaint, as pled in the retaliation cause of action. [Comp., ¶¶ 35-41, Prayer, ¶ 6.] Defendant challenges the claim for punitive damages based on a lack of any showing of malicious or oppressive conduct. Plaintiff in a one day late opposition contends the demurrer to the punitive damages is improper. Plaintiff maintains the punitive damages claim is otherwise sufficiently pled. Defendant in reply objects to the late filed opposition and reiterates the arguments regarding the lack of facts supporting punitive damages.

The court declines to consider the demurrer to the punitive damages claim. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281 [“Where a whole cause of action is the proper subject of a pleading challenge, the court should sustain a demurrer to the cause of action rather than grant a motion to strike”]; PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683 [While a demurrer is not the exclusive means to challenge a cause of action, a motion to strike generally applies to parts of a cause of action, claim for damages, or where the cause of action or primary right is barred as a matter of law.]; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 (footnote 9) [“we reiterate our view the adequacy of punitive damage allegations may not properly be tested by demurrer].) The demurrer is therefore overruled in that it only challenges a claim for damages.

On the motion to strike, Civil Code section 3294, subdivision (c) authorizes punitive damages upon a showing of malice, oppression, or fraud, which are defined as follows:

(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.

Punitive damages require more than the mere commission of a tort. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95.) Specific facts must be pled in support of punitive damages. (Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-392.) “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 Court (1984) 157 Cal.App.3d 159, 166, fn. Omitted [emphasis added].)

Any negligence based causes of action in and of themselves will not support the claim for punitive damages. Plain unintentional carelessness, characterized as negligence or recklessness, is not sufficient to support punitive damages. (Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 285-286 [“Conduct classified only as unintentional carelessness, while it may constitute negligence or even gross negligence, will not support an award of punitive damages”]; G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 32 (“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”]; Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 87 [“Inasmuch as Civil Code section 3294 requires as a prerequisite to the recovery of punitive damages that the defendant “has been guilty of oppression, fraud, or malice,” the cases have uniformly recognized that proof of negligence, even gross negligence, or recklessness is insufficient to warrant an award of punitive damages’]; Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891; McDonell v. American Trust Co. (1955) 130 CA2d 296, 300 [Awareness of a potential condition under a negligence claim not sufficient to support a claim for punitive damages].)

Plaintiff depends on an allegation of Defendants’ knowledge of the dogs’ vicious propensities, failure to restrain the dogs, and therefore presenting a public risk. [Comp., ¶¶ 18-19, 27-28.] For purposes of the motion to strike, the court finds the operative complaint sufficiently articulates the claim based on a failure to control/restrain/protect the public from knowingly vicious dogs. The motion to strike is therefore overruled.

In summary, the demurrer is overruled, and the motion to strike is denied. Defendants to answer the operative verified complaint within 10 days of this order.