Filed 11/24/14 Downing v. Flores CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

KATHY DOWNING,
Plaintiff and Appellant,

v.

CARLOS FLORES et al.,
Defendants and Respondents. B249498
(Los Angeles County Super. Ct. No. BC473336)

APPEAL from a judgment of the Superior Court of Los Angeles County,
Elizabe th Allen White, Judge. Affirmed.
The Yarnall Firm and Delores A

. Yarn a ll for Plaintiff and Appellant.
Law Offices of Gregory J. Lucett, Shaghig Dadaian; Pollak, Vida & Fisher
, Michael M. Pollak and Anna Birenbaum for Defendants and Respondents.

_________________________2

Kathy Downing sued Carlos and T eresa Flores after their dog Sugar bit Downing,
and Downing recovered $114,488.15 in compensatory damages after a four

- day trial

. Downing now appeals from the trial court ’s denial of her motion to amend her complaint
, and from evidentiary ru lings during t rial. We affirm.
BACKGROUND Downing’s initial complaint, filed November 10, 2011, alleged that Carlos and
Teresa Flores owned Sugar, a dog “be lieved to be a pit bull/lab mix,” with “an unusually dangerous or vicious nature” about which the Flores e s knew or should have known. Downing was walking her dog Rambo and another dog (both properly leashed) on December 27, 2009, when Carlos was walking Sugar, who “was not under a proper form of restraint or control as would be required by any reasonable per son. ” Without warning, Sugar attacked Downing and the dogs she was walking, biting Downing on her hand and body, and bitin g Rambo on his right front leg. As a result, Downing sustained multiple inju ries including pain and suffering; Rambo sustained injur ies; and “the other dog with plaintiff sustained injury as well.” Downing had to seek medical treatment for herself and the dogs, and lost earnings and income. Downing stated causes of action for stri ct liability under Civil Code 3342 1 and negligence, de manded a jury trial , and sought general and special damages

. The Floreses answered , denying liability and raising
affirmative defenses. Over a year after filing the initial complaint, Downing filed an ex parte application
for leave to amend or to shorten time for a hearing on a m otion to amend the complaint to add factual allegations that supported a claim for punitive damages against the Floreses

. She attached a proposed amended complaint including additional a llegations that on at least two prior occas ions Sugar had e scaped from the Florese s ’ control and attacked other people walking dogs, and Sugar was an “incorrigible dog fighter” who was hard to
control . The Floreses knew about Sugar’s propensities and the danger to others, and
nevertheless acted “recklessly, in d espicable conscious disregard for the high likelihood

1 All further statutory ref erences are to the Civil Code unless otherwise indicated.3

of extreme harm and even death that could result from ano ther attack by their dog, Sugar

. ” The proposed amended complaint also alleged that after the attack on Downing
the Floreses fai led to take actions to restrain Sugar, lied about the attack after it occurred and about Sugar’s breed , a nd prevented Sugar from being handled by animal control, leaving Downing in continued fear that caused her additional pain and suffering. The
Floreses acted “despicably, with malice and oppression, and in r eckless and conscious disregard” of the rights and safety of Downing and others, so that Downing sought punitive damages. The Floreses filed an opposition on December 10, 2012, seeking to strike the additional allegations as not supported by concrete evidence and as failing to prove that
the Floreses acted with “ malice, fraud and /or oppression, and in reckless and conscious disregard” of Downing’s safety , and therefore also t o strike the request for p unitive damages. Downing filed a reply in support of amendment and an opposition to the motion to strike the punitive damages claim on December 17, 2012, asking the court to grant her motion to amend and deny the Floreses’ motion to strike , as “conscious disregard” could support an award of punitive damages (“because it would be judicially
economical , the Court should go ahead and rule on the sufficiency of the First Amended Complaint ”)

. The trial court heard the motions on December 19, 2012 , and stated: “The problem is this is strict liability and negligence. They don’t require intent. Neither cause[] of action requires intent. And mal ice requires specific intent. . . . [T]his is not an intentional act. And it doesn’t rise to the level under [Civil Code section] 3294.” Downing’s counsel replied that intent was not required and conscious disregard sufficed. The trial court asked Downing’s counsel: “Do you . . . have dog bite case where the court has allowed punitive damages? ” Of the cases cited by Downing’s counsel, “[n]one is a dog bite case. This is clearly an act of negligence. There’s stri[ct] liability. . . . [ I ] t does not rise to the level of punitive damages.” The court adopted its tentative ruling, which stated that Downing had not pled malice with intent, but : “‘[M]alice’ may be present where defendant has engaged in4

despicable conduct carried on with a willful and conscious disregard of the rights or safety of others. ‘Oppression’ also requires despicable conduct. Civil Code [sectio n]
3294 [, subdivision] (c)(2). While Plaintiff focuses on Defendants’ prior knowledge of the dog’s vicious propensities such that Defendants acted in conscious disregard of the high degree of probability of severe harm from another dog attack, Plaintiff f ails to allege facts which constitute ‘despicable conduct.’” The term “ ‘ despicable ’ ” represented a new substantive limitation on the “willful and conscious disre gard” standard of malice. As amended to include the term, the statute provided that in the ab sence of intent to injure,

“‘ malice’ requires more than a ‘willful and conscious ’ disregard of the plaintiffs’ interests. The additional component of ‘des picable conduct’ must be found. ” (Boldface omitted.) A failure to properly control Sugar “because t he collar was too loose” despite knowledge that she had vicio us propensities to attack others “does not rise to the level of ‘despicable’ conduct, which is a substantive limitation where a Plaintiff relies up on the willful and conscious disregard standard of malice.” Noting that “the proposed punitive damage allegations would b e subject to being stricken upon a motion by Defendants,” t he court denied Downing’s motion for leave to file an amended complaint. The Floreses admitted to liability under section 3342 , which provides in subdivision (a): “The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place . . . regardless of the former v iciousness of the dog or the owner’ s knowledge of such vicious ness.” They also admitted that Sugar was a substantial factor in causing harm to Downing. The trial court granted two defense
motions in limine to exclude evidence and testimony regarding Sugar’s alleged dangerous propensities, prior attacks on animals o r humans, and allegations that Sugar was a pit bull mix; and evidence of post

- incident emotiona l distress suffered by the other dog Downing was walking , who did not belong to Downing

. The court also refused to allow Downing to call the Floreses as witness es at tr ial to impeach their credibility, as the Floreses had admitted liability

. After a four

- day trial on damages
, the jury reached a verdict on February 20, 2013. The special verdict form given to the jury stated: “Defendants, Car los Flores and Teres a5

Flores, admit liability in this case for harm to the plaintiff. You have to determine the nature and extent of the harm to the plainti ff as a result of the incident.” Under “What
are Kat hy Downing’s damages?” the jury provided dollar amounts for past a nd future economic loss (including medical and other expenses and lost earnings) and past and future noneconomic loss (pain and suffering), awarding Downing a total of $114, 488.15
, including a total of $75,000 in general damages ( $50,000 past and $25,000 future)

. The trial court entered judgment on April 3, 2013, notice of entry of judgment was served on April 23, 2013, and Downing filed this timely appeal.
DISCUSSION Downing argues that the trial court erred in denying her motion to amend the complaint to add a claim for punitive damages. We review de novo the trial court’s
denial of the motion to amend
, which the trial court made on the basis that Downing did
not dem onstrate sufficient evidence to establish a prima facie case for punitive damages and without making credibility determinations, weighing the evidence, or drawing
infere nces from the facts. ( Aquino v. Superior Court (1993) 21 Cal.App.4th 847, 850

. )
Punit ive damages have been authorized by statute since 1872 in tort actions “where the tortious event involves an additional egregious component

— ‘ oppression, fraud, or malice .’ (Civ. Code
, § 3294, subd. (a).)” ( College Hospital, Inc. v. Superior
Court (1994) 8 Cal.4th 704 , 712 ( College Hospital ) .) “[T]he Legislature has made it more difficult for plaintiffs to plead and prove such claims,” ( id . at p. 712) including by amending section 3 294 in 1987 “by increasing the plaintiff’s burden of proving punitive
dama ges at trial to ‘clear and convincing evidence.’ The definition of ‘malice’ was also refined. For plaintiffs attemptin g to prove malice by showing a ‘conscious disregar d ’ of their rights as opposed to an actual intent to harm, the Act imposed additional requirements of ‘despicable’ and ‘willful’ defense conduct.” ( Id. at p

. 713 .) The prior
section 3294 , subdivision (c)(1) defined “malice” as “ ‘ conduct which is intended by the
defendant to cause injury to the plaintiff or conduct which is carried on by the defendant with a conscious disregard of the rights or safety of others

. ’ ” ( Weisman v. Blue Shield of California (1984) 163 Cal.App.3d 61, 65, fn. 3 ( Weisman ) .) Today, a fter the 19876

amendments, subdivision (c)(1) defines malice as “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carr i ed on by the
defendant with a willful and conscious disregard of the rights or safety of others. ” (Italics added.) The addition of “willful” “arg uably conformed the literal word s of the statute to
exi sting case law formulations” that “malice involves awareness of dangerous consequences and a willful and deliberate failure to avoid them.” ( College Hospital
, supra , 8 Cal.4th at p. 725.) “However, the statute’s reference to ‘despicable’ conduct seems to represent a new substantive limitation on punitive damage awards. Used in its ordinary sense, the adjective ‘despicable’ is a powerful term that refers to circumstances that are ‘base, vile, or contemptible.’ [Citation.] As amended to include this word, the statute plainly indica tes 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.” ( I bid. ) The additional allegations in the p roposed amended complaint were that there were prior incidents when Sug ar had escaped from the Floreses’ control a nd attacked other dogwalkers, that Sugar was a “dog fighter,” and that the Fl oreses knew about the
incidents

. The supporting evidence Downing offered included Carlos’s 2 t estimony at his deposition that he knew of a prior incident when Sugar jumped over the wall around his yard
, and a woman fell and scraped her lip when the dog she was walking ran to escape Sugar. Carlos raised the wall around the yard. A note on a veterinary bill from 2008 stated that Sugar was examined for wounds from a “dog fight 2 days ago.” A neighbor
who witnessed the Downing incident (and who testified at trial) testified at a deposition
that less than a year before Sugar bit Downey at the end of 2009
, he saw Sugar run up to a woman walking a smaller dog, pick up the dog in his teeth, and shake it ; he kicked Sugar, who let go of the smaller dog and ran home

. Carlos came out of the house and said he was sorry, and tha t although they had built up the wall, Sugar escaped from the yard sometimes. In a declaration, Downing ’s attorney stated that she was informed and

2 For clarity we use Carlos’s first name. No disrespect is intended.7

believed that neighbors were afraid that Sugar would escape and bite them. There was no evidence that Suga r had ever bitten another person.
We a gree with the trial court that “ no vile or ‘despicable’ conduct appears from the face of the proposed complaint or the evidence before us.” ( College Hospital
, supra , 8 Cal.4th at p. 726.) Downing cites Weisman , supr a , 163 Cal.App.3d 61, to support her argument that the Floreses consciously disregarded the risks presented by Sugar, but
Weisman was decided in 1984, before the 1987 addition of “despicable conduct” to section 3294, subdivision (c)(1), as was Hilliard v. A. H. Robins Co. (1983) 148 Cal.App.3d 374, which she also cites. “ ‘Despicable conduct’ is defined [in jury instruction] as ‘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.) The court of appeal reversed an award of punitive d amages where there was no evidence of conduct “which could be described as evil, criminal, recklessly indifferent to the rights of the insured, or with a vexatious intention to injure.” ( Id. at
p. 1288.) The addition of “despicable conduct” to section 3 294 was an “important change” making the burden to prove punitive damages “substantially heavier,” so that a punitive damages instruction failing to include the “more exacting standard for malice ” was error, compounded when another instruction was based on authorities before the
1987 amendment and misstated their import. ( Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 30 6 , 331 , 332, 336

. ) Other cases involving unintentional torts have
found punitive damages unavailable as a matter of law wh ere the defendant’s conduct
was in bad faith and overzealous but not despicable. ( Lackner v. North (2006) 135 Cal.App.4th 1188, 1212.)
Cases meeting the more exacting “despicable” standard have involved evidence of egregious behavior. An order granting a motion to strike a punitive damage claim was reversed, when a tort complaint for unlawful seduction/sexual abuse alleged that a 48

- year

- old medical doctor intentionally violated numerous criminal statutes when he8

engaged in sexual inter course and orally copulated a minor female , provided her with drugs and alcohol, and paid her to procu re illegal substances for him, knowing her dysfunctional family background made her particularly vulnerable

. ( Angie M. v. Superior
Court (1995) 37 Cal.Ap p.4th 1217, 1221

– 1222, 1228 .) The court of appeal concluded that a jury could find such behavior to be vile, base or contemptible. ( Id. at p. 1229.) Punitive damages for “despicable conduct” were appropriate in a tort suit by a cancer victim against a b oiler manufacturer that “fully understood that asbestos dust endangered workers, but it did not issue warnings to customers” until much later, “notwithstanding its awareness that they used the produc t s in ways that generated considerable asbestos dust.” ( Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1280, 1300

– 1301.) Downing complains that the trial court asked whether punitive damages had been awarded in any dog bite case, c laiming that this is irrelevant. We disagree. T he complaint alleged strict liability under section 3342 and n egligence, and punitive damages are “typically awarded for intentional torts ” while “ cases involving unintentional torts are far fewer.” ( Lackner v. North
, supra , 135 Cal.App.4th at p. 1212.)
We have found no case involving a dog bite where the court found the defendant’s actions despica ble for the purpose of award ing punitive damages ; such a case would have provided a basis for comparison. (See i d. at pp. 1212

– 1213

. )
W e also conclude the trial court did not abus e its discretion in granting the defense
motions in limine and in declining to allow Downing to call the Floreses to impeach their credibility

. The trial court had discretion to exclude evidence “if its probative value is substantially outweighed by the p robability that its admission will necessitate the undue consumption of time, or create a substantial danger of undue prejudice, confusing the issues, or misleading the jury, ” and the party challenging the trial court’s ruling has the burden on appeal of e stablishing an abuse of discretion. ( Santillan v. Roman Catholic Bishop of Fresno (2012) 202 Cal.App.4th 708, 727.) Even if evidence is improperly excluded, reversal is not justified unless absent the error it is reasonably probable the jury
would have r eached a result more favorable to the appellant. ( Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431

– 1432.) The only iss ue before9

the jury at trial, given that the Floreses admitted liability and the trial court had denied the motion to amend to add a punitive damages claim
, was the amount of compensatory damages due to Downing. We do not think evidence of Sugar’s breed and propensities
was relevant to how much Downing should be compensated f or the harm caused by the dog bite . A lthough she argued that the postincident neurotic behavior of the other dog she was walking ( which was not her dog) made her anxious and upset, causing em otional damages, t here was ample other evidence at trial of Down ing’s injuries and her fear and pain and suffering , and the jury awarded Downing $50,000 in past general damages. Further, calling the Floreses to testify when they had admitted lia bility had minimal probative value regarding compensatory damages. Any mi nimal relevance of the
additional evidence that Downing sought to admit was outweighed by the danger of prejudice to the Floreses, as it risked confusing the issues and misleading the jury. (Evid.
Code
, § 352.) Downing has not met her burden to establish that the tria l court abused its discretion, and even if there had been error, we see no miscarriage of justice.
DISPOSITION
The judgment is affirmed. Costs are awarded to the respondents.
NOT TO BE PUBLISHED.

JOHNSON, J.

We concur:

ROTHSCHILD, P. J.

CHANEY, J.