Case Number: BC723264 Hearing Date: February 07, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

hong s. chang,

Plaintiff,

v.

sanvel abadzhian, et al.,

Defendants.

Case No.: BC723264

Hearing Date: February 7, 2019

[TENTATIVE] order RE:

MOTION TO STRIKE PORTIONS OF COMPLAINT

Background

Plaintiff Hong S. Chang (“Plaintiff”) filed this action against Defendants Sanvel Abadzhian and Cristina Abajyan (“Defendants”) based on injuries he sustained when Defendants’ dog attacked him. Defendants move to strike punitive damages allegations and the request for attorneys’ fees in the complaint. The motion 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).) “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 “[e]xemplary damages are appropriate because defendants either knew or should have known the dog had dangerous and vicious propensities, ignoring all prior warnings to keep their dog restrained in a responsible manner. Defendants’ failure to restrain their dog and to ensure their dog was securely leased and tethered to prevent them from roaming free amount the public was in willful and wanton disregard of the safety, rights, and health of Plaintiff and the public at large.” (Complaint, ¶ 8.) There are two problems with these allegations. First, the allegations are conclusory and insufficient. Plaintiff must allege specific facts to show that Defendants knew of their dog’s dangerous propensities, and nonetheless failed to restrain the dog. Second, even if the Court accepted them, they do not establish malice of the type that would support an award for punitive damages. The Court therefore grants the motion to strike the punitive damages with leave to amend.

Plaintiffs have not alleged any basis for their prayer for attorneys’ fees. Accordingly, the Court grants the motion to strike the prayer for attorneys’ fees as well.

Conclusion and Order

Defendants’ motion to strike portions of Plaintiff’s complaint is granted with leave to amend. Plaintiff is to file an amended complaint within ten days of notice of this order.

Defendants are ordered to provide notice of this order, and to file a proof of service thereof.

DATED: February 7, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court