Enriqueta Garcia v. Michael Barnick, et al

Case Number

23CV00450

Case Type

Hearing Date / Time

Wed, 02/28/2024 - 10:00

Nature of Proceedings

Motion To Strike Punitive Damages

Tentative Ruling

For Plaintiff Enriqueta Garcia: Taylor Ernst, Christopher D. Edgington, Ernst Law Group

                  

For Defendants Michael Barnick and Sujittra Barnick: Christopher J. Beeman, Andrew K. Murphy, Clapp, Moroney, Vucinich, Beeman and Scheley

RULING

For all reasons discussed herein, the motion of Defendants to strike punitive damages is granted, in part, with leave to amend. The following matters shall be stricken from Plaintiff’s first amended complaint: (1) the term “punitive damages” appearing in paragraph 14(a)(2) of the first amended complaint; and (2) the entirety of the first paragraph of Attachment 14.a(2) only, beginning with “[a]s to all causes of action” and ending with “Civil Code § 3294(c)”. Except as otherwise herein granted, the motion is denied. Plaintiff shall file and serve her second amended complaint on or before March 11, 2024.

Background

On December 1, 2023, with leave of Court, Plaintiff Enriqueta Garcia filed her operative first amended complaint (the FAC) against Defendants Michael Barnick (Michael) and Sujittra Barnick (Sujittra) (collectively, Defendants), alleging three causes of action: (1) general negligence; (2) premises liability; and (3) statutory strict liability (dog bite). (Note: Due to common surnames, the Court will refer to Defendants by their first names. No disrespect is intended.) As alleged in the FAC:

On October 15, 2021, Plaintiff was awaiting a ride in the public area adjacent to premises located at 4321 Marina Drive in Goleta, California (the premises), when she was attacked, without provocation, by an unrestrained or inadequately restrained, highly aggressive, 100-pound Tibetan Mastiff (the dog). (Compl., ¶¶ GN-1; Attachment 10F; Prem.L-1; Attachment 14.a(2).) Based on admissions made to Santa Barbara County Animal Services, the dog was owned by Defendants who own and reside at the premises. (Compl., ¶¶ GN-1; Attachment 10F; Attachment 14.a(2).)

When Defendants purchased the dog, they signed up for eight training sessions with dog trainer Nathan Woods (Woods). At the first session, Woods cautioned Defendants that the breed of the dog is confrontational, that the dog required more than eight training sessions, and that the dog required special, supervised socialization training to be around humans. Woods explained to Defendants that the breed of the dog moves towards commotion instead of running away, and if confused, will typically confront. Woods instructed Defendants that it was their responsibility to take extra precautions to keep the animal in a secure location, and to always be aware of their surroundings. Defendants never returned for any further training after the initial session with Woods and disregarded Woods’ recommendations. (Compl., Attachment 14.a(2).)

Defendants also reported to a veterinarian that the dog “does not take well to new people”. Veterinary charts document that, due to its temperament, the dog could not be evaluated and treated without sedation, muzzling, and in at least one instance, general anesthesia. Shortly before the attack, Defendants were instructed to administer sedatives before arrival for veterinary appointments. Even with sedation, the animal was evaluated in the car rather than the clinic “due to temperament.” (Compl., Attachment 14.a(2).)

Defendants’ gardener was bitten by the dog six months prior to the subject attack. When a patrol officer investigated Plaintiff’s attack, the officer’s patrol log noted that, based on information from the Santa Barbara Sheriff’s Office, this was not the first attack by the dog. (Compl., Attachment 14.a(2).)

A neighbor’s gardener and property manager observed the dog running loose on 4 or 5 occasions, and routinely observed the dog barking at Defendants’ front gate. On one occasion, the neighbor’s gardener witnessed Sujittra chasing and calling after the escaped dog, but the dog ignored her commands. On one prior occasion, neighbors observed the dog unattended and wandering loose in the street. Though neighbors reported the barking and the loose dog to Defendants, Defendants never responded. (Compl., Attachment 14.a(2).)

At the time of the incident that is the subject of this action, Sujittra was gardening in the yard of the premises. Though the premises had an outdoor kennel, a dog run, and special fencing to restrict the dog’s movements, the dog was unmuzzled, unmonitored, and unleashed when it escaped and attacked Plaintiff. Sujittra allowed the dog to escape through the front gate of the premises which had been opened when a work associate from Michael’s company entered the property. Though Defendants possessed a metal-cage muzzle for use when workers were on the property, Defendants rarely used it. The dog was unmuzzled when it escaped and attacked Plaintiff. The dog was determined to be a “vicious” animal by County Animal Services and destroyed. (Compl., Attachment 14.a(2).)

On January 2, 2024, Defendants filed a motion to strike Plaintiff’s claim for punitive damages appearing in Section 14 and as part of attachment 14.a(2) of the FAC. (Note: The Court notes that Defendants filed a motion to strike on December 29, 2023, which was set for the wrong calendar. Accordingly, Defendants re-filed the motion on January 2, 2024.)

Analysis

“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 Civ. Proc., § 435, subd. (b)(1).) In ruling on a motion to strike, a Court may “strike out any irrelevant, false, or improper matter inserted in any pleading” or “strike  all or part of any pleading not filed in conformity with applicable law, Court rules, or an order of the Court” (Code Civ. Proc., §436.) The grounds for a motion to strike must appear on the face of the pleading or from matters which the Court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).) On a motion to strike, the Court reads the allegations of the subject pleading “as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255 (Clauson).)

Defendants move to strike allegations for punitive damages appearing in the FAC on the grounds that Plaintiff has failed to allege facts demonstrating oppression, fraud, or malice by Defendants. To survive a motion to strike allegations of punitive damages, ultimate facts showing an entitlement to such relief must be pleaded. (Clauson, supra, 67 Cal.App.4th at p. 1255.) Under Civil Code section 3294, subdivision (a), punitive damages are recoverable where it is shown by clear and convincing evidence that the Defendant acted with malice, oppression, or fraud. (Civ. Code, § 3294, subd. (a).)

“Malice” means “conduct which is 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.” (Civ. Code, § 3294, subd. (c)(1).) “Oppression” means “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).) While the term “despicable” is not defined in Civil Code section 3294, subdivision (c), the term includes “circumstances that are ‘base,’ ‘vile,’ or ‘contemptible.’ [Citation.]” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the Defendant with the intention on the part of the Defendant of thereby depriving a person of property, legal rights, or otherwise causing injury. (Civ. Code, § 3294, subd. (c)(3).)

Giving the allegations of the FAC a reasonable interpretation and assuming their truth, including allegations specifically directed to Plaintiff’s claim for punitive damages appearing in Attachment 14.a.(2) of the FAC and facts that can be inferred from those expressly alleged, Plaintiff’s claim for punitive damages is premised on the assertion that the dog escaped when the front gate at the premises was opened by a work associate of Michael.

Plaintiff’s allegations state a claim for negligence resting on, at most, arguably reckless or careless conduct by Sujittra. (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210-1211 [Defendant’s carelessness, recklessness, or ignorance is insufficient to justify imposition of punitive damages].) For example, there exist no allegations to demonstrate that Sujittra knew or should have known the gate had been opened by a work associate or that Sujittra knew or should have known that a work associate would arrive through the front gate for a scheduled meeting. There are also no allegations to demonstrate that Michael was present at the premises on the day of the subject incident. (See, e.g., Attachment 14.a(2) [express allegations regarding persons present at the meeting which do not include or identify Michael].) It can also be inferred from the express allegations of the FAC that Defendants took steps to restrain the dog to the premises. For these reasons, Plaintiff’s allegation that Sujittra allowed or permitted the dog to escape through the front gate are speculative, and do not demonstrate malice, fraud, or oppression sufficient to allege a claim for punitive damages.

The examples provided above are intended to be illustrative but not exhaustive. By these examples, the Court does not intend to suggest what, if any, allegations would be sufficient for present purposes. In addition, the Court declines to issue an advisory opinion regarding what, if any, allegations would be sufficient to show an entitlement to punitive damages. (Stocks v. City of Irvine (1981) 114 Cal.App.3d 520, 531.)
 

Plaintiff also contends that because the Court granted Plaintiff leave to file the FAC, the Court has made a finding that its allegations, if proven, would be legally sufficient to justify presentation of a punitive damage claim to a jury. Plaintiff conflates the standards governing a motion for leave to amend a complaint, which require the Court to “apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings,” with those governing the present motion which require the Court to determine whether Plaintiff has pleaded ultimate facts demonstrating an entitlement to relief. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487 [also noting that the liberal policy of permitting an amendment to a complaint applies unless prejudice is shown]; cf. Clauson, supra, 67 Cal.App.4th at p. 1255.)

In addition, in its November 29, 2023, Minute Order granting Plaintiff leave to file the FAC, the Court noted that “[o]rdinarily, a judge will not consider the validity of the proposed amended pleading in deciding whether to grant leave to amend, since the opposing party will have the opportunity to attack the validity of the amended pleading after leave to amend is granted.” (Nov, 29, 2023, Minute Order, citations omitted.) The Court’s statement demonstrates that the Court was not required to and did not make a specific finding that the allegations of the FAC were sufficient to plead an entitlement to punitive damages when the Court granted Plaintiff leave to file the FAC.

For all reasons further discussed above, Plaintiff has failed to allege conduct sufficient to constitute fraud, malice, or oppression in connection with the subject incident. Therefore, the Court will grant the motion to strike, in part with respect to the term “punitive damages” appearing in paragraph 14(a)(2) of the FAC and the first paragraph of Attachment 14.a(2), beginning with “[a]s to all causes of action” and ending with “Civil Code § 3294(c)”.

It is the Court’s understanding that Defendants also request that the Court strike the entirety of Attachment 14.a(2) to the FAC. Attachment 14.a(2) includes allegations which appear essential to the other causes of action alleged in the FAC. Therefore, the Court will deny the motion to the extent it requests that the Court strike the entirety of the allegations appearing in Attachment 14.a(2) to the FAC. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281.)

In addition, because the complaint does not show on its face that it is incapable of amendment, the Court will grant Plaintiff leave to amend. (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“[w]hen the defect which justifies striking a complaint is capable of cure, the Court should allow leave to amend”].) Leave to amend will be limited to providing further allegations relating to a claim for punitive damages. If Plaintiff seeks to add any other cause of action, Plaintiff will need to obtain leave of Court either by stipulation or by noticed motion.