On 07/12/2019 VALERY BOOTH filed a Personal Injury - Other Personal Injury lawsuit against KRISTI FAGEN. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judges overseeing this case are KRISTIN S. ESCALANTE, SERENA R. MURILLO and MARK A. BORENSTEIN. The case status is Disposed - Dismissed.
Disposed - Dismissed
KRISTIN S. ESCALANTE
SERENA R. MURILLO
MARK A. BORENSTEIN
WEISS MICHAEL H.
WEISS MICHAEL H. ESQ.
BARKER THOMAS DARREN
BARKER THOMAS DARREN ESQ.
7/12/2021: Order - Dismissal
7/12/2021: Minute Order - MINUTE ORDER (JURY TRIAL)
7/12/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (JURY TRIAL) OF 07/12/2021
6/28/2021: Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)
6/28/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (FINAL STATUS CONFERENCE) OF 06/28/2021
4/29/2021: Request for Dismissal
11/30/2020: Stipulation - No Order - STIPULATION - NO ORDER TO EXTEND EXCHANGE OF EXPERT WITNESS INFORMATION AND PRODUCTION OF EXPERT REPORTS AND WRITINGS UNDER CODE OF CIVIL PROCEDURE SECTION 2034.210, ET SEQ.
12/14/2020: [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Person - [PROPOSED ORDER] AND STIPULATION TO CONTINUE TRIAL, FSC (AND RELATED MOTION/DISCOVERY DATES) PERSO
2/24/2020: Amended Complaint
11/15/2019: Minute Order - MINUTE ORDER (- HEARING ON MOTION TO STRIKE (NOT ANTI-SLAPP) - WITHOUT DEMU...)
11/7/2019: Reply - REPLY DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION TO MOTION TO STRIKE PUNITIVE DAMAGES
10/31/2019: Opposition - OPPOSITION TO MOTION TO STRIKE PUNITIVE DAMAGES
8/22/2019: Notice of Case Reassignment/Vacate Hearings
8/22/2019: Notice of Reclassification
9/12/2019: Motion to Strike (not anti-SLAPP) - without Demurrer
9/23/2019: Declaration - DECLARATION OF T. DARREN BARKER, ESQ., IN SUPPORT OF DEFENDANT'S MOTION TO STRIKE PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT
9/26/2019: Notice - NOTICE DEFENDANT, KRISTI FAGEN'S RESCHEDULED MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT
Docketat 08:30 AM in Department 29, Serena R. Murillo, Presiding; Jury Trial - Not Held - Vacated by CourtRead MoreRead Less
DocketCertificate of Mailing for ((Jury Trial) of 07/12/2021); Filed by ClerkRead MoreRead Less
DocketMinute Order ( (Jury Trial)); Filed by ClerkRead MoreRead Less
DocketOrder - Dismissal; Filed by ClerkRead MoreRead Less
Docketat 10:00 AM in Department 29, Serena R. Murillo, Presiding; Final Status Conference - HeldRead MoreRead Less
DocketMinute Order ( (Final Status Conference)); Filed by ClerkRead MoreRead Less
DocketCertificate of Mailing for ((Final Status Conference) of 06/28/2021); Filed by ClerkRead MoreRead Less
DocketRequest for Dismissal (with Prejudice as to Defendant Kristin Fagen-only)); Filed by Valery Booth (Plaintiff)Read MoreRead Less
Docketat 08:30 AM in Department 29, Serena R. Murillo, Presiding; Jury Trial - Not Held - Continued - StipulationRead MoreRead Less
Docketat 08:30 AM in Department 94; Non-Jury Trial - Not Held - Vacated by CourtRead MoreRead Less
DocketDefendant, Kristi Fagen's Notice of Motion and Motion to Strike Portions of Plaintiff, Valery Booth's First Amended Complaint; Filed by Kristi Fagen (Defendant)Read MoreRead Less
DocketNotice of Reclassification; Filed by ClerkRead MoreRead Less
DocketNotice of Case Reassignment/Vacate Hearings; Filed by ClerkRead MoreRead Less
DocketAmended Complaint (1st); Filed by Valery Booth (Plaintiff)Read MoreRead Less
Docketamended complaint; Filed by Valery Booth (Plaintiff)Read MoreRead Less
DocketFirst Amended Standing Order; Filed by ClerkRead MoreRead Less
DocketNotice of Case Assignment - Limited Civil Case; Filed by ClerkRead MoreRead Less
DocketSummons (on Complaint); Filed by Valery Booth (Plaintiff)Read MoreRead Less
DocketCivil Case Cover Sheet; Filed by Valery Booth (Plaintiff)Read MoreRead Less
DocketComplaint; Filed by Valery Booth (Plaintiff)Read MoreRead Less
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.
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