VALERY BOOTH VS KRISTI FAGEN

Tentative Rulings

Case Number: 19STLC06519    Hearing Date: November 15, 2019    Dept: 2

Booth v. Fagen

Defendant Kristi Fagen’s Motion to Strike Portions of Plaintiff Valery Booth’s First Amended Complaint is GRANTED in part and DENIED in part. The Court grants the motion as to the prayer for punitive damages; the prayer for punitive damages is stricken. The Court denies the motion to strike the allegations in paragraph 9. Leave to amend is granted; Plaintiff has 30 days to amend.

To state a claim for punitive damages under Civil Code section 3294, a plaintiff must allege specific facts showing that the defendant has been guilty of malice, oppression or fraud. Smith v. Superior Court (1992) 10 Cal. App. 4th 1033, 1042. The basis for punitive damages must be pled with specificity; conclusory allegations devoid of any factual assertions are insufficient. Id.

“Malice” is defined in section 3294(c)(1) in relevant part as “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” “Oppression” is defined in section 3294(c)(2) as “despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.” The term “despicable” has been defined in the case law as actions that are “base,” “vile,” or “contemptible.” See, e.g., Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal. App. 4th 847, 891.

By contrast, negligence, gross negligence or even reckless conduct is insufficient to support a claim for punitive damages. Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, 87.

Here, the Complaint alleges that Defendant’s dog attacked Plaintiff while she was on Defendant’s premises. The Complaint further alleges that the dog had previously bitten “as many as” twelve other persons and that despite that history, Defendant “recklessly and willfully” has failed to take appropriate steps to control or give up possession of the dog.

Plaintiff has provided no specific facts regarding the previous incidents. The language is exceedingly vague; on its face, “as many as twelve” other incidents could mean as many as twelve or as few as one. Further, the facts as alleged could refer to minor nips that caused no injury. There are no facts alleged regarding the context of the previous incidents or whether the Defendant even knew about them. Moreover, there are no specific facts alleged about the circumstances of the incident at issue in this case that would support a finding of despicable conduct. The facts as alleged are simply not sufficient to establish “despicable” conduct undertaken with a “conscious disregard” of the safety of others.

Moreover, Plaintiff has not cited and the Court is not aware of any cases allowing punitive damages in a dog bite case. Punitive damages are “typically awarded for intentional torts” while “cases involving unintentional torts are far fewer.” Lackner v. North (2006) 135 Cal. App. 4th 1188, 1212. A much more specific showing would have to be made to justify departure from the general rule than has been made here.

In sum, the motion to strike the prayer for punitive damages is granted. Leave to amend is granted. Plaintiff has 30 days to amend.

By contrast, there is no basis for striking the allegations in paragraph 9 of the Complaint, which are directly relevant to a negligence claim. The motion is denied to the extent it seeks to strike those allegations.

Moving party is ordered to give notice.