Judge: Anne Hwang, Case: 21STCV41549, Date: 2024-09-30 Tentative Ruling

Case Number: 21STCV41549    Hearing Date: September 30, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS

1.     Notice of Motion and Motion for Summary Judgment or Summary Adjudication; Memorandum of Points and Authorities

2.     Separate Statement of Undisputed Material Facts in Support

3.     Defendants’ Request for Judicial Notice

4.     Declaration of Stephen Ettinger D.V.M. in Support

5.     Declaration of Lauren E. Becker in Support

6.     Compendium of Evidence

OPPOSITION PAPERS

1.     Plaintiff’s Opposition

2.     Plaintiff’s Separate Statement

3.     Plaintiff’s Objection to Declaration of Stephen Ettinger

4.     Declaration of Julie Nong

5.     Declaration of McGee Leonard, DVM

REPLY PAPERS

1.     Defendants’ Reply

BACKGROUND

On November 10, 2021, Plaintiff Julie N. Nong, in pro per (“Plaintiff”) filed a complaint against La Canada Pet Clinic, Woody Walker, DVM, and Does 1 to 100 for negligence and trespass to chattels.

Plaintiff alleges that her pet dog died while being treated in Defendants’ clinic. Specifically, Plaintiff alleges that she brought the dog, “TaTa”, into the clinic on November 9, 2020 because she vomited and had not eaten since Sunday. (Complaint ¶ 8.) The clinic held TaTa for 24/7 care. On that first day, TaTa tested negative for Parvo disease. However, on November 13, 2020, Plaintiff received a call that the dog had died and tested positive for Parvo. (Id. ¶ 12.)

Plaintiff alleges that Defendants negligently failed to detect and properly treat her dog. (Complaint ¶ 15.) She also alleges that “[f]rom November 9 to November 13, Defendants intentionally and substantially damaged Plaintiff's eight week Maltipoo” without her consent. (Id. ¶ 19-20.)

Defendants W3D, Inc. dba LA Canada Pet Clinic and Woody Walker, DVM (“Defendants”) now move for summary judgment, or adjudication, arguing that (1) the negligence cause of action fails since their conduct fell within the standard of care and (2) the trespass to chattels cause of action fails since Plaintiff consented to her dog’s treatment. Alternatively, Defendants also move to reclassify this action from unlimited civil jurisdiction to limited civil.

Plaintiff opposes and Defendants reply.

LEGAL STANDARD

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Id.)

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].)  Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise.  If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)       

JUDICIAL NOTICE

The Court grants Defendants’ request for judicial notice.

EVIDENTIARY OBJECTIONS

The Court declines to rule on Plaintiff’s objections as they have no effect on the ruling herein.

DISCUSSION

I.                Negligence

“In medical malpractice cases, the established rule is that a doctor must exercise the degree of skill or care usual in the profession, and will not be held liable for untoward consequences in the absence of a want of such reasonable care and skill. [Citations.] We find that this standard applies to veterinary malpractice cases, as well. Veterinarians, like medical doctors, are licensed health care providers . . . and veterinary malpractice cases are treated like medical malpractice cases for purposes of statute of limitations. [Citations.] Further, out-of-state courts that have considered the question have held that standards governing medical malpractice actions control in veterinary malpractice cases.” (Williamson v. Prida (1999) 75 Cal.App.4th 1417, 1424-25.)

“To establish a veterinarian malpractice claim, a plaintiff is required to present expert testimony establishing the appropriate standard of care in the relevant community. Standard of care is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony [citations]. . . . This is because [t]he standard of care in a [veterinarian] malpractice case requires the [veterinarian] exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the [veterinary] medical profession under similar circumstances.” (Quigley v. McClellan (2013) 214 Cal.App.4th 1276, 1283.)

“Civil Code section 1714, subdivision (a) establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others. When applied to medical professionals, this duty of care imposes a duty to use such skill, prudence and diligence as other members of his profession commonly possess and exercise.” (Flores v. Liu (2021) 60 Cal.App.5th 278, 290 [cleaned up].) To prevail on a claim for negligence against a medical professional, a plaintiff must demonstrate that: (1) a medical professional had a duty to use the skill, prudence and diligence that members of the profession commonly possess and exercise; (2) breach of that duty; (3) an injury that resulted from the breach of that duty; and (4) actual loss or damage resulting from the breach of that duty. (Banerian v. O’Malley (1974) 42 Cal.App.3d 604, 612.) 

“[T]he legal standard of care required by doctors is the standard of practice required by their own profession. The courts require only that physicians and surgeons exercise in diagnosis and treatment that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. Thus, liability is not found, and the label of malpractice is not placed upon a physician's actions, unless some deviation by the physician from the standard of care that his peers consider appropriate in the situation under review is proven.” (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1081 [cleaned up].) 

Expert testimony is generally the only admissible and relevant evidence on whether a medical professional has breached the standard of care. (Landeros v. Flood (1976) 17 Cal.3d 399, 410 [“ ‘The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony (citations), unless the conduct required by the particular circumstances is within the common knowledge of the layman’ ”].) As the Court of Appeal has held, in reversing summary judgments for medical professionals: “The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony. California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, defendant is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606-607 [cleaned up].) Further, a plaintiff “is entitled to all favorable inferences that may reasonably be derived from” an expert’s declaration which must be liberally construed. (See Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 782.) 

            Here, Defendants set forth the following facts:

-        On November 9, 2020, Ta Ta presented to La Cañada Pet Clinic with diarrhea, vomiting, and no appetite. (UMF 2.)

-        On November 9, 2020, Dr. Woody Walker, DVM conducted an office exam including an IDEXX Comprehensive Fecal Panel, and a Snap Test for Parvovirus. (UMF 3.)

-        Ta Ta’s Snap Test for Parvovirus came back negative which is not unusual during the severe initial phase of the disease. (UMF 4.)

-        Dr. Woody Walker called the plaintiff on November 9, 2020 after the Snap Test for Parvovirus came back and communicated to the plaintiff a guarded prognosis. (UMF 5.)

-        Ta Ta remained at La Cañada Pet Clinic overnight and Dr. Woody Walker treated Ta Ta for a viral enteritis, diarrhea, and vomiting. (UMF 6.)

-        While at La Cañada Pet Clinic Ta Ta received IV fluids and medication. (UMF 7.)

-        On November 12, 2020 Ta Ta started seizing and had some clear foamy liquid in her mouth.  Ta Ta was then intubated and provided O2.  Ta Ta was tube fed with a teaspoon of Karo Syrup diluted in water. Ta Ta also received IV fluids at a sufficient rate to rehydrate her but not enough to overload her small circulatory system. (UMF 8.)

-        On November 12, 2020 Ta Ta was retested for Parvovirus and the results came back positive. This was a usual recheck since many puppies are still negative at the time of the first test but quickly turn positive 48+/- hours later confirming the diagnosis of severe canine parvo viral disease. Note that while supportive therapy was and still is the treatment for this disease there is no specific antiviral medication available to treat it. (UMF 9.)

-        When Ta Ta was first tested for Parvovirus on November 9, 2020, it was very likely that she was not shedding enough of the virus for the test. (UMF 15.)

-        If a dog is infected with the Parvovirus, the intubation period would last anywhere from three to seven days before the onset of symptoms.  This would explain why Ta Ta would initially test negative, then later test positive when tested a second time. (UMF 16.)

-        The care and treatment provided by Dr. Woody Walker and La Cañada Pet Clinic for Ta Ta’s symptoms of diarrhea, vomiting, and loss of appetite, met the applicable standard of care. (UMF 17.)

-        Nothing any of the staff at La Cañada Pet Clinic did or failed to do caused Ta Ta’s death or demise.  (UMF 19.)

Defendants have met their burden by setting forth expert testimony that they did not fall below the standard of care and did not cause the death of Plaintiff’s dog. The burden shifts to Plaintiff.

Plaintiff sets forth the following facts:

-        On November 9, 2020, Defendant Walker tested Ta Ta for canine parvovirus, a highly contagious and often fatal virus, by using an inhouse fecal test.  Additional fecal testing performed that day showed Ta Ta was positive for both Giardia and Cystoisospora, both contagious intestinal parasites. (PAMF 9.)

-        Dr. Ettinger opines that Giardia is a “serious parasitic disease;” however Dr. Walker did not treat Ta Ta for Giardia or Cystoisospora. (PAMF 10.)

-        Ta Ta continued to be under Defendants’ care but there’s no record of what treatment if anything was provided to her for November 10, 2020. (PAMF 11.)

-        Other than weighing Ta Ta to be 2.19 pounds, there’s neither documentation nor record regarding what treatment was provided to Ta Ta or if anything at all for November 11, 2020. (PAMF 12.)

-        Ta Ta’s intestinal parasites should have been treated with appropriate medications, such as fenbendazole and sulfadimethoxine.  Cystoisopora, for example, may cause “diarrhea with weight loss, dehydration… anorexia, vomiting, and depression.  Death is a potential outcome.” (PAMF 16.)

-        Intestinal parasites such as Giardia and Cystoisospora are common comorbidities in puppies with parvovirus because the virus causes suppression of the immune system and damages the integrity of the intestinal tract. (PAMF 17.)

-        The hazard of Ta Ta’s intestinal parasites could have caused profound illness without any concurrent infections and would more likely than not exacerbate the symptoms of parvoviral enteritis.  (PAMF 19.)

-        Not treating the intestinal parasites created a dangerous condition that unreasonably increased the risk of fatal injury. (PAMF 20.)

-        Defendants failed to meet the minimum standard of veterinary medical care by neglecting to treat Ta Ta’s intestinal parasites creating a dangerous condition which caused Ta Ta’s death. (PAMF 21.)

Plaintiff has met her burden to establish a triable issue of fact, by producing conflicting expert testimony regarding the standard of care and whether Defendants’ failure to treat Plaintiff’s dog on the intestinal parasites led to its death. (Leonard Decl. ¶ 11.)

As a result, the motion for summary adjudication as to the negligence cause of action is denied.

II.             Trespass to Chattels

“Under California law, trespass to chattels lies where an intentional interference with the possession of personal property has proximately caused injury.”  (Jamgotchian v. Slender (2009) 170 Cal.App.4th 1384, 1401.) “ ‘Though not amounting to conversion,’ in an action for trespass to chattels ‘the defendant's interference must . . . have caused some injury to the chattel or to the plaintiff's rights in it.’ ([Citation]; see Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1605, 1606–1608, 146 Cal.Rptr.3d 585 (Plotnik) [owner of dog could sue for trespass to chattels for the intentional striking of the dog with a bat]; Jamgotchian v. Slender (2009) 170 Cal.App.4th 1384, 1400–1402, 89 Cal.Rptr.3d 122 (Jamgotchian) [owner of horse injured in race could sue for trespass to chattels based upon track steward's refusal to remove the horse from the race].)” (Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1271.)

Defendants argue this cause of action fails since Plaintiff consented to allow her dog to be treated at the clinic. However, Defendants provide no further argument or authority showing how this provides a complete defense, as Plaintiff has presented evidence creating a triable issue of fact regarding the standard of care provided, resulting in the dog’s death, to which Plaintiff did not consent.

Lastly, the Court will address Defendants alternative motion to reclassify this case to limited civil jurisdiction.

III.           Motion to Reclassify

Code of Civil Procedure section 403.040 states: 

“(a) The plaintiff, cross-complainant, or petitioner may file a motion for reclassification within the time allowed for that party to amend the initial pleading. The defendant or cross-defendant may file a motion for reclassification within the time allowed for that party to respond to the initial pleading. The court, on its own motion, may reclassify a case at any time. A motion for reclassification does not extend the moving party's time to amend or answer or otherwise respond. The court shall grant the motion and enter an order for reclassification, regardless of any fault or lack of fault, if the case has been classified in an incorrect jurisdictional classification. 

(b) If a party files a motion for reclassification after the time for that party to amend that party's initial pleading or to respond to a complaint, cross-complaint, or other initial pleading, the court shall grant the motion and enter an order for reclassification only if both of the following conditions are satisfied: 

(1) The case is incorrectly classified. 

(2) The moving party shows good cause for not seeking reclassification earlier.”  

For a limited civil case, “[t]he amount in controversy does not exceed thirty-five thousand dollars ($35,000). As used in this section, ‘amount in controversy’ means the amount of the demand, or the recovery sought, or the value of the property, or the amount of the lien, that is in controversy in the action, exclusive of attorneys' fees, interest, and costs.” (Code Civ. Proc. § 85(a).)[1]

In Walker v. Superior Court (1991) 53 Cal.3d 257, the California Supreme Court held “a matter may be transferred when: (1) the absence of jurisdiction is apparent before trial from the complaint, petition, or related documents, or (2) during the course of pretrial litigation, it becomes clear that the matter will necessarily result in a verdict below the superior court jurisdictional amount and the court affords the parties an opportunity to contest the transfer.” (Walker, supra, 53 Cal.3d at 262.) A matter may be reclassified from unlimited to limited only if it appears to a legal certainty that the plaintiff's damages will necessarily be less than $25,000. (Walker, supra, 53 Cal.3d at 262.) If there is a possibility that the damages will exceed $25,000.00, the case cannot be transferred to limited. (Ibid.) This high standard is appropriate in light of “the circumscribed procedures and recovery available in the limited civil courts.” (Ytuarte v. Superior Court (2005) 129 Cal.App.4th 266, 278.)¿¿¿ 

The test is whether lack of jurisdiction is clear or virtually unattainable. (Walker, supra, 53 Cal.3d at 269.) This standard involves an evaluation of the amount fairly in controversy, not an adjudication of the merits of the claim, and requires a “high level of certainty that [the] damage award will not exceed $25,000.” (Id.) The trial court may believe it highly unlikely that plaintiff will recover the amount demanded, but this is not enough to defeat jurisdiction, unless it appears to a legal certainty that plaintiff cannot recover the amount of the demand. (Id. at 270.) 

In deciding whether a matter should be transferred, a trial court must look beyond the pleadings but not so far as to trespass into the province of the trier of fact. Pain and suffering are not subject to precise measurement by any scale, and their translation into money damages is peculiarly the function of the trier of the fact. (Maldonado v. Superior Court (1996) 45 Cal.App.4th 397, 401.) 

As an initial matter, Plaintiff appears to argue that the Court will lose its jurisdiction to rule on the instant summary judgment motion if the case is reclassified to limited civil. (Opp., 12.) However, Plaintiff provides no authority in support. On the contrary, “[t]he classification of a civil case as limited or unlimited no longer affects the subject matter jurisdiction of the superior court.” (Stratton v. Beck (2017) 9 Cal.App.5th 483, 492.) Therefore, the Court will consider the motion.

Here, Defendants argue that Plaintiff has only claimed $5,350 in damages. Plaintiff does not dispute this value as her special damages. However, she argues that the subject dog was the first puppy and gift to her daughter. She also argues she is unable to adopt another dog for the rest of her life, and the death caused mental anguish and emotional distress. As a result, Plaintiff argues these damages must be calculated by a jury and could exceed $25,000. However, the Court notes that the limit for limited civil cases is now $35,000. Neither party addresses this. Moreover, neither party addresses the timeliness of the request.

In reply, Defendants argue that emotional distress damages are not recoverable based on veterinary malpractice. (Reply, 12; McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1514 [“Regardless of how foreseeable a pet owner's emotional distress may be in losing a beloved animal, we discern no basis in policy or reason to impose a duty on a veterinarian to avoid causing emotional distress to the owner of the animal being treated, while not imposing such a duty on a doctor to the parents of a child receiving treatment.”].) However, the Court notes that Plaintiff’s trespass to chattels cause of action has survived.

In light of the $35,000 threshold for unlimited civil cases, the Court continues the motion to reclassify to October 8, 2024 at 1:30 p.m. The parties may file supplemental briefing by October 4, 2024. Courtesy copies of any supplemental briefing must be provided to Department 32 of the Spring Street Courthouse by 4:00 p.m.

CONCLUSION AND ORDER

Based on the foregoing, Defendants W3D, Inc. dba LA Canada Pet Clinic and Woody Walker, DVM motion for summary judgment/adjudication; alternatively, to Reclassify this Action is DENIED.

            Defendants shall give notice of this ruling and file a proof of service of such.