Case Number: 18STCV02037 Hearing Date: March 07, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

nicole dembowic,

Plaintiff,

vs.

socrates flores, et al.,

Defendants.

Case No.: 18STCV02037

Hearing Date: March 7, 2019

[TENTATIVE] order RE:

mOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT

BACKGROUND

Defendants Socrates Flores (“Flores”) and AvalonBay Communities, Inc., which does business as ASN Eaves Woodland Hills (“the Eaves”), move to strike the punitive damages allegations in the complaint. In the complaint, Plaintiff Nicole Dembowich (“Plaintiff”) alleges that she and Flores are residents of the Eaves, and that Flores’s dog attacked her in a common area of the community. The motion to strike the punitive damages allegations against Flores is denied. The motion to strike the punitive damages allegations against the Eaves is granted with leave to amend.

LEGAL STANDARD

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 Xourt 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, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

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. (Coll. 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).) “Malice is defined in the statute as conduct 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.” (Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) “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.” (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166, internal citations and footnotes omitted.)

DISCUSSION

Plaintiff alleges that Flores owned the dog that attacked her. (Complaint, ¶ 17.) Plaintiff alleges, on information and belief, that the dog “had a vicious nature, disposition, and propensity, which was known or should have been known by FLORES . . . .” (Complaint, ¶ 32.) If Flores knew of the dog’s dangerous tendencies, based on his ownership of the dog, but continued to keep the dog where it could escape and attack Plaintiff, then the trier of fact could conclude that Flores acted with malice. The punitive damages allegations against Flores are sufficient. The motion to strike the punitive damages allegations against Flores is denied.

Plaintiff alleges the Eaves failed “to property oversee, supervise, and enforce their own Premises rules to not have dogs of specific breeds on the SUBJECT PREMISES, including but not limited to Pitbulls, or to take any other precautions to prevent the DOG from attacking the PLAINTIFF or other persons, when the EAVES knew, or in the exercise of reasonable care should have known, that the DOG had a vicious nature, disposition, and propensity and therefore, created an unreasonable risk of harm to persons on the SUBJECT PREMISES.” (Complaint, ¶ 39.) Plaintiff also alleges that the Eaves should have known about the violent tendencies of the dog because Flores worked for the Eaves. (Complaint, ¶ 50.)

These allegations are not sufficient because the Eaves is a corporation, as alleged in the complaint. (Complaint, ¶ 7.) “[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 (internal quotations and citation omitted).) Plaintiff has not alleged any facts to suggest that any corporate leaders at the Eaves engaged in malicious conduct, such that the Eaves is subject to an award of punitive damages. Accordingly, the motion to strike punitive damages allegations against the Eaves is granted with leave to amend.

Conclusion and Order

The motion to strike by Defendant Socrates Flores is denied. The motion to strike by Defendant Avalonba Communities, Inc. is granted with leave to amend. Plaintiff is to file an amended complaint within ten (10) days of notice of this order. Defendants are ordered to provide notice of this order, and to file a proof of service thereof.

DATED: March 7, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court