Case Number: 19STCV36021 Hearing Date: January 21, 2020 Dept: 28

Motion to Strike without Demurrer (x3)

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On October 8, 2019, Plaintiff Angelica Sermeno (“Plaintiff”) filed a complaint against Defendants Juan Zambrano, Numbia Zambrano, and Eduardo Zambrano (“Defendants”). The complaint alleges common law strict liability, statutory strict liability, and negligence for a dog bite that occurred on October 14, 2017.

On December 16, 2019, Defendants filed motions to strike punitive damages and attorney’s fees from the complaint pursuant to Code of Civil Procedure section 435.

Trial is set for April 6, 2021.

PARTIES’ REQUEST

Defendants ask the Court to strike punitive damages from the complaint because facts have not been alleged showing Defendants acted with fraud, malice or oppression.

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LEGAL STANDARD

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code of Civ. Proc. § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (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 order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. (College. Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations 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.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725 [examining Civ. Code § 3294, subd. (c)(1)].) “A conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.)

“As amended to include [despicable], the statute plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff. [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation. [Citation.]” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166 (footnote omitted).)

California Code of Civil Procedure section 435.5 requires that, before filing a motion to strike, the moving party shall meet and confer¿in person or by telephone¿with the party who filed the pleading that is subject of the motion for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc. § 435.5, subd. (a)(2).) The party must also file and serve a declaration detailing the meet and confer efforts. (Code Civ. Proc. § 435.5, subd. (a)(3).)

DISCUSSION

Meet and Confer Requirement

The Court finds Defendants’ declarations do not satisfy the meet and confer requirement under California Code of Civil Procedure section 435.5, subdivision (a)(3). (Guidice-Hu Declarations, ¶ 3.) Defendants attempted to meet and confer through U.S. mail and facsimile. These are impermissible methods to meet and confer under California Code of Civil Procedure section 435.5, subdivision (a)(3). Nevertheless, the Court will consider the merits of the motions as doing so is in the interest of justice.

Punitive Damages

Plaintiff’s complaint alleges the following. Defendants’ unleashed pit bull bit Plaintiff multiple times on October 14, 2017. (Compl., ¶¶ 8, 15.) Defendants knew or should have known of their dog’s dangerous propensities. (Compl., ¶ 13.) Defendants failed to restrain their dog. (Compl., ¶ 14.) Defendants failed to warn Plaintiff of the dangerous propensities. (Ibid.)

The Court finds Plaintiff has not alleged sufficient facts to claim punitive damages. There are no facts alleged indicating Defendants intended for their dog to attack. The bare, conclusory, and boilerplate paragraph stating Defendants knew or should have known of their dog’s dangerous propensities, but nevertheless failed to restrain the dog or warn of its dangerous propensities is insufficient. And even if facts were alleged showing Defendants did know of the probable consequences of failing to restrain the dog or warn of the dog’s dangerous propensities, there are no facts alleged indication Defendants willfully and deliberately ignored those probable consequences. The mere facts alleging Defendants did not restrain the dog or warn of the dog are insufficient to indicate Defendant willfully and deliberately ignored the probable consequences of those actions.

Further, there is no indication that Defendants’ failure to restrain their dog or warn of their dog’s dangerous propensities is despicable. While it could certainly be described as negligent, it could hardly be considered so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Without additional facts, the Court cannot find Defendants’ alleged actions are despicable.

CONCLUSION

The motion to strike is therefore GRANTED with 20 days’ leave to amend.

The Court STRIKES paragraphs 14, 15, 23, and 24 from the complaint in their entirety.

The Court also STRIKES paragraph 3 from the complaint’s prayer for relief.

Defendants are ordered to give notice of this ruling.