NORMA L ASPEITIA VS MARIA MELGAREJO ET AL

Tentative Rulings

Case Number: BC647587    Hearing Date: December 11, 2019    Dept: 2

Aspietia v. Melgarejo, et al.

Demurrer by Defendants Maria Melgarejo and Jose Melgarejo to Plaintiff’s First Amended Complaint is SUSTAINED with leave to amend. The Motion to Strike is GRANTED in part and denied in part with leave to amend. Plaintiff has 20 days to amend.

DEMURRER

In her first amended complaint, Plaintiff alleges that on February 6, 2015, Defendants Maria Melgarejo and Jose Melgarejo negligently failed to restrain or control their two large dogs. The dogs attacked and killed Plaintiff’s dog, which allegedly caused Plaintiff to suffer personal injury. Plaintiff further alleges that the Melgarejos negligently failed to warn of the presence of vicious dogs.

Plaintiff asserts four causes of action against the Melgarejos: (1) negligence; (2) intentional infliction of emotional distress; (3) premises liability; and (4) strict liability. Plaintiff’s prayer seeks compensatory and punitive damages. The Melgregos have filed a demurrer to the second cause of action for intentional infliction of emotional distress.

In order to state a claim for intentional infliction of emotional distress, a plaintiff must plead three elements: (1) that the defendant engaged in “extreme and outrageous conduct” with “the intention of causing, or reckless disregard of the probability of causing, emotional distress”; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiff’s injuries were actually and proximately caused by the defendant’s outrageous conduct. Cochran v. Cochran (1998) 65 Cal. App. 4th 488, 494.

“In order to meet the first requirement of the tort, the alleged conduct must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” Id. “The requirements of the rule are rigorous and difficult to satisfy.” Yurick v. Superior Court (1989) 209 Cal. App. 3d 1116, 1128-29. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Cochran v. Cochran (1998) 65 Cal. App. 4th 488, 496.

The second cause of action alleges conclusions only – that Defendants’ conduct was extreme and outrageous and intentionally or recklessly done. FAC page 5. Plaintiff incorporates the facts alleged in paragraphs 1-15 and paragraphs GN-1 through GN-5 into the second cause of action. Id. Paragraphs GN-1 through GN-5 concern the claim for negligence. The negligence claim alleges merely Defendants negligently failed to restrain their dogs or take other precautions to prevent them from attacking and killing Plaintiff’s dog. FAC, page 4. Plaintiff also alleges that Defendants failed to inform residents or otherwise warn them of their dog. Id.

These alleged negligent failures to act do not rise to the level of “most extremely offensive” conduct that exceeds “all bounds” usually tolerated by society.

In opposition to the demurrer, Plaintiff relies on deposition testimony from a maintenance worker on the property. The court cannot consider deposition testimony in evaluating the sufficiency of Plaintiff’s claims as those facts are extrinsic to the complaint. See Saunders v. Superior Court (1994) 27 Cal. App. 4th 832, 838.

Therefore, the Court sustains the demurrer to the second cause of action. Leave to amend is granted.

MOTION TO STRIKE

Plaintiff has also moved to strike portions of the first amended complaint, including paragraphs IT-3, IT-6, the words “punitive damages” in paragraph 14 and the checkmark next to punitive damages on the civil case cover sheet.

Paragraphs IT-3 and IT-6 are contained within the cause of action for intentional infliction of emotional distress. Given that the Court has sustained the demurrer to that cause of action, the motion to strike those paragraphs is moot.

The Court grants the motion to strike the prayer for punitive damages in paragraph 14 as to the moving parties – Defendants Maria and Jose Melagrejos -- only.

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. Negligent, grossly negligent, or 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 has not sufficiently alleged despicable conduct carried on with a willful and conscious disregard for the rights and safety of others. The motion to strike the prayer for punitive damages is thus granted.

The civil cover sheet is not part of the complaint and is not subject to a motion to strike. The Court thus declines to strike the check mark on the civil cover sheet. The civil cover sheet is used for statistical purposes and, in some instances, for the assignment of the case. CRC 3.220. The statements in the civil cover sheet are not substantive allegations that control the litigation of the case.