Case Number: 19STCV00019 Hearing Date: August 20, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

scott beeks,

Plaintiff,

v.

taylor mclaws, et al.,

Defendants.

Case No.: 19STCV00019

Hearing Date: August 20, 2019

[TENTATIVE] order RE:

MOTION TO STRIKE PORTIONS OF COMPLAINT

Background

Plaintiff Scott Beeks (“Plaintiff”) alleges that he was attacked by a dog owned by Defendants Taylor McLaws and Mari McLaws (“Defendants”). Defendants move to strike the prayer for punitive damages, which Plaintiff opposes. The motion is denied.

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).)

DISCUSSION

Plaintiff alleges:

Defendants, and specifically TAYLOR MCLAWS, knew that in the past the subject dog had attacked human beings. Defendants knew and had been told that the subject dog was dangerous and that any measures to protect the public and those similarly situated as Plaintiff, were insufficient, inadequate, and unreasonably dangerous to protect against the risk of repeated harm.

Defendants, and specifically TAYLOR MCLAWS, concealed this information from Plaintiff and failed to take adequate reasonable measures to protect Plaintiff from the risk of serious injury or death that Defendants were themselves aware of.

(Complaint, ¶¶ 5(b) & 5(c).) For pleading purposes, this is sufficient. If Defendants knew about the potential danger, concealed the danger, and failed to take measures to protect Plaintiff from the dangers, Plaintiff has alleged “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) Therefore, Defendants’ motion to strike is denied.

Conclusion and Order

Defendants’ motion to strike Plaintiffs’ punitive damages allegations is denied. Defendants shall file an answer within ten (10) days of notice of this order. Defendants shall provide notice and file proof of such with the Court.

DATED: August 20, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court