Case Number: BC521841 Hearing Date: August 28, 2014 Dept: 93
Superior Court of California
County of Los Angeles
Department 93
BAILEY BRISSON,
Plaintiff(s),
v.
JACK KITTINGER, et al.,
Defendant(s). Case No.: BC521841
Hearing Date: August 28, 2014
[TENTATIVE] RULING RE:
DEFENDANTS JACK KITTINGER AND TRACY KITTINGER’S MOTION TO STRIKE SECOND AMENDED COMPLAINT
Defendants Jack Kittinger and Tracy Kittinger’s Motion Second Amended Complaint is DENIED.
Background
On March 13, 2014, this Court granted the Motion to Strike the punitive damages allegation in the First Amended Complaint (“FAC”) on the ground that the FAC contained only conclusory allegations that defendants knew the dogs were dangerous, and failed to allege any facts to support the claims. Plaintiff was granted leave to amend, and now has filed a Second Amended Complaint (“SAC”). Defendants have now filed a Motion to Strike the SAC, arguing that there are still insufficient facts alleged to support a punitive damages award.
Discussion
The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (CCP, § 436(a)). The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (CCP, § 436(b)). The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (CCP, §436). The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (CCP, § 437; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2012) ¶7:168).
Civil Code Section 3294 authorizes the recovery of punitive damages in non-contract cases “where the defendant has been guilty of oppression, fraud, or malice, express or implied . . . .” Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or “malice,” or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894; Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166) (emphasis added).
Allegations in the SAC
The SAC alleges the following facts: Defendants Jack Kittinger and Tracy Kittinger owned or kept two pit bulls, “Scarlett” and “Jake.” (SAC ¶5.) Plaintiff Bailey Brisson was attacked by the two dogs on or around January 20, 2013 while jogging near Defendants’ home. (SAC ¶12.) Defendants had left the dogs in a yard they knew was not secure. (SAC ¶11.) Defendants were aware of the subject dogs’ aggressive and vicious propensities and “would be a threat and/or danger to others in the community if allowed to run loose.” (SAC ¶9.) Defendants specifically were aware:
[T]hat prior to January 20, 2013, defendants were aware that their dogs were vicious in that they had previously attacked people and animals. Specifically, plaintiff is informed and believes that approximately a year and a half prior to plaintiff being attacked by defendants’ dogs, the defendants’ Pit Bull dog known as Scarlet attacked an elderly woman and her dog. The woman injured her back and broke her finger while her dog was so badly injured that her veterinarian ultimately recommended euthanasia. Defendant, Tracy Kittinger, is believed to have witnessed this attack and to have paid for the medical and/or ‘veterinarian bills related to this attack. Additionally, plaintiff is informed and believes that prior to January 20, 2013, defendants’ dogs attacked a young woman in a wheel chair and that defendants knew about the incident. On another occasion prior to January 20, 2013, one of the defendants’ Pit Bull dogs growled at a neighbor walking down the sidewalk and jumped over the brick wall lunging at the woman. The woman screamed and hit the dog in the head very hard with a coffee mug which stunned the dog long enough for the dog’s owner, Defendant, Tracy Kittinger, to come out of the house and call the dog back inside. Plaintiff is informed and believes that defendants, and each of them, knew, there were other incidents involving the dogs which defendants were aware of prior to January 20, 2014.
[T]hat their back yard was not secure and was not able to contain the dogs. Specifically, there was a gap between the garage and the fencing which defendants attempted to block by leaning a wrought iron panel up against the two structures. Plaintiff is informed and believes that the dogs were running loose in the neighborhood on as many as a dozen or more occasions prior to the incident involving plaintiff. The dogs were able to push the wrought iron panel out of the way and were also able to jump over the brick portion of the fence that surrounds a portion of the defendants’ back yard. Defendant, JACK KITTINGER, admitted to the Long Beach Animal Care Services Officer investigating this case that the dogs had gotten out of the yard at least four times, Defendant, TRACY KJTTLNGER, commented on the day of the incident involving plaintiff that her husband needed to work on fixing the fence.
(SAC ¶¶10-11.)
Discussion
Plaintiff’s SAC alleges causes of action for 1) Negligence and 2) Strict Liability. Defendants seeks to strike references to punitive damages in paragraphs 11, 13, 14, 19, and paragraph 6 of the prayer for relief on grounds that they are unsupported by sufficient factual allegations of malice or oppression. “To support punitive damages, the complaint asserting one of those causes of action must allege ultimate facts of the defendant’s oppression, fraud, or malice.” (Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316-17). Pursuant to Civil Code Section 3294(c)(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.”
By adding the word ‘willful’ to the ‘conscious-disregard’ prong of malice, the Legislature has arguably conformed the literal words of the statute to existing case law formulations. [citation omitted] However, the statute’s reference to ‘despicable’ conduct seems to represent a new substantive limitation on punitive damage awards. Used in its ordinary sense, the adjective ‘despicable’ is a powerful term that refers to circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’
(College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725).
In addition, oppression “means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Cal. Civ. Code, § 3294(c)(2).)
The facts alleged in the SAC are more than sufficient to allege a claim for punitive damages. Paragraph 10 of the SAC alleges in detail facts regarding Defendants’ knowledge of several prior attacks on persons by the subject dogs, demonstrating their aggressive and vicious behavior against both people and other dogs. Paragraph 11 alleges in detail facts regarding Defendants’ knowledge of the ability of the subject dogs to escape Defendants’ property and the fact that they had previously escaped on numerous occasions, resulting in attacks on other people. While these facts do not demonstrate that Defendants intended to injure Plaintiff, it is not necessary to allege intent to support a claim for punitive damages. The above allegations sufficiently allege that Defendants consciously disregarded the risk that the subject dogs would escape from their property and cause injury, in light of the numerous previous escapes, the attacks by the dogs on prior occasions, and Defendants’ awareness that the fence was inadequate. The above facts also support the allegation that Defendants consciously disregarded the danger posed to people by their unrestrained dogs. Finally, given that there were multiple prior attacks by the subject dogs against people, Defendants’ failure as alleged to secure their dogs yet again amounts to “contemptible” behavior. The allegations in the SAC, therefore, support the request for punitive damages
Plaintiff is ordered to give notice.
DATED: August 28, 2014
_________________________
Hon. Gail Ruderman Feuer
Judge of the ¶Superior Court
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This is the first time I have read this report. It is not true that we knew the dogs were dangerous. They as in cases of most dogs would run up to someone visiting our home, Never bit anyone. On the day in question, robbers had entered our yard and left the gates open. They stole between 500 and 1000 dollars worth of tools. The dogs apparently were struck or otherwise mistreated, because they were upset when they got loose thru the gates opened by the robbers. Regardless, the fact that they were upset and they did bite someone , we agreed to pay for the damages. We are sorry that this happened and we kept our dogs with major reinforcement of our gates with holding areas before each gate. Scarlet was neutered, Jake had already been fixed at the time. Jake is old and cannot walk well at all and Scarlet passed away with cancer over a years ago. Jake is at least 13 years old. But, we did not ever have a dog bite until that time. The incident described about the elderly woman was with a different dog. She was a great neighbor, and not well. She didn’t walk very stable. Our lot is high and our dog jumped off of the wall, where she stood. He did not beat up the dog, but the dog was elderly and had heart trouble and we felt because we love that neighbor who is now in her late 90’s, that we would help with her bills. We offered to pay when she decided months later to put him down. Just to put the record straight. Attorney’s when they handle these dog bite cases work to get the most, by making it sound worse than it was. We ended up with our insurance covering $100,000 and we had to refinance our home to pay an additional $100,000. So be careful if you have dogs in all cases, because attorneys love these cases.
This attack took place on a Sunday morning. Did the robbers come into a yard with two pit bulls and steal items in broad daylight while Kelly Kittinger was present in the upstairs studio directly above where the tools were placed? I think not. I was within 20 yards of the attack when it took place. I saw the dogs escape through the gate of the yard and immediately attack the young woman. As I ran up to her, they ran off down the adjacent alley where neighbors eventually caught them. There were no robbers. The dogs simply escaped as they had numerous times before. I, myself, was jumped on by Scarlet as I held my small dog in my arms because she wanted to attack him. Luckily, a neighbor heard my calls for help and managed to grab Scarlet by the collar and get her back in her yard. On another occasion, that same neighbor had to quickly lift his child onto the hood of a parked car to save her from being attacked by that same dog. The Kittingers were told many times that their dogs were dangerous and could escape at will.
I would also like to add that it is unfortunate that the lawyers for Ms. Brisson did not question the many neighbors who lived behind the Kittingers on Shaw street and Ximeno. Much more information about escapes and attacks by the dogs would have been gathered there if anyone had asked. Also pertinent information about “robbers” would have come to light. It was known to all that no expensive tools were kept in that yard, tools were kept in an a closed and locked garage where the dogs had no access. The robbers story was a lie to excuse the attack and should have been further checked by police if it was checked at all.