Case Number: 18STCV02037 Hearing Date: June 18, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

nicole dembowich,

Plaintiff,

vs.

socrates flores, et al.,

Defendants.

Case No.: 18STCV02037

Hearing Date: June 18, 2019

[TENTATIVE] order RE:

mOTION TO STRIKE PORTIONS OF PLAINTIFF’S second amended complaint

BACKGROUND

Defendants AvalonBay Communities, Inc., which does business as ASN Eaves Woodland Hills (“the Eaves”), Andrew Lucero (“Lucero”), and Alexa Castaneda (“Castaneda”) (collectively, “Defendants”) move to strike the punitive damages allegations in the complaint. In the complaint, Plaintiff Nicole Dembowich (“Plaintiff”) alleges that she is a resident of the Eaves and was attacked by a dog owned by another resident, co-Defendant Socrates Flores (“Flores”). Plaintiff alleges that Lucero was the property manager and Castaneda was the property/community coordinator. Now, Defendants move to strike the prayer for punitive damages. The motion to strike 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 court 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.)

Plaintiff alleges that the Eaves is a corporation. (Second Amended 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.)

DISCUSSION

Plaintiff’s allegations are not sufficient to assert punitive damages claims against the Eaves or its employees, Lucero and Castaneda. Plaintiff alleges instead that the Eaves failed “to properly 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, because by and through its managing agent, LUCERO, 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.” (Second Amended Complaint, ¶ 40.) Similarly, Plaintiff alleges that the Eaves should have known about the violent tendencies of the dog because Flores worked for the Eaves and Lucero was Flores’s direct supervisor. (Second Amended Complaint, ¶ 42.) However, the gravamen of Plaintiff’s allegations is that Defendants are liable merely because the dog was a pit bull. The mere fact that the Eaves and its employees were aware that a pit bull resided at the property does not satisfy Plaintiff’s burden. (See Lundy v. California Realty (1985) 170 Cal.App.3d 813, 822.) Instead, Plaintiff must allege some facts suggesting that this particular dog had been dangerous in the past, which Plaintiff fails to do.

Plaintiff alleges that Defendants were reckless because they permitted Lucero to maintain the dog as a service animal, even though Lucero presented a prescription for an emotional support animal (not a service animal) and Defendants did not verify that the dog was a valid service animal. (Second Amended Complaint, ¶ 51.) Plaintiff alleges that Defendant should have known the difference between a comfort animal and a service animal. (Ibid.) While this may be evidence of negligence, it does not rise to the level of malice or recklessness necessary to assert a claim for punitive damages against a corporation and its employees. For example, Plaintiff does not allege that Defendant knew the purported need for the dog was false and allowed the dog to reside at the complex anyway. To the contrary, Plaintiff concedes that she “does not necessarily contend that FLORES . . . did not require an emotional support animal.” (Second Amended Complaint, ¶ 58.) “[A] pleader cannot blow hot and cold as to the Facts positively stated.” (Manti v. Gunari (1970) 5 Cal.App.3d 442, 449.) Plaintiff alleges that Defendants allowed the dog to reside at the complex as a service dog even though there was only documentation for a comfort dog. However, Plaintiff does not allege sufficient facts to suggest that it was reckless or malice to allow a comfort dog to reside at the complex. Essentially, Plaintiff again predicates her complaint on the fact that this comfort dog was a pit bull. As discussed, the mere fact that this dog was a pit bull is not sufficient to assert a claim for punitive damages. In order to pursue a punitive damages claim under this theory, Plaintiff must allege that Defendants knew the need for the service or comfort dog was false and allowed the dog to reside at the complex anyway.

Based upon the foregoing, the motion to strike is granted with leave to amend. The Court notes that Plaintiff has already had numerous opportunities to allege a claim for punitive damages against Defendants. The Court is unlikely to grant further leave to amend.

Conclusion and Order

Defendants’ motion to strike is granted with leave to amend. Plaintiff is to file a third amended complaint within ten (10) days of notice of this order. Defendants shall provide notice and file proof of such with the Court.

DATED: June 18, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court