Judge Ashfaq G. Chowdhury, Case Number: 24NNCV04560, Date: 2025-02-06 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 24NNCV04560, Date: 2025-02-06 Tentative Ruling

Case Number: 24NNCV04560 Hearing Date: February 6, 2025 Dept: E

Case No: 24NNCV04560
Hearing Date: 02/06/2025 – 8:30am

Trial Date: UNSET

Case Name: TANYA SMITH, the guardian of her beloved canine companion Molly v. ANIMAL AM-EMERGENCY CLINIC OF PASADENA, and the individuals Craig Mohaghegh, DVM, and DOES 1-10

[TENTATIVE RULING ON DEMURRER & MOTION TO STRIKE]

PROCEDURAL

Moving Party: Defendants, Animal Am-Emergency Clinic of Pasadena and Craig Mohaghegh, DVM

Responding Party: Plaintiff, Tanya Smith, the guardian of her beloved canine companion Molly

Moving Papers: Notice/Demurrer; Proposed Order; Notice of Errata

Opposition Papers: Opposition; Christine Kelly Declaration

Reply Papers: Reply

Proof of Service Timely Filed (CRC Rule 3.1300(c)): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok
Proper Address (CCP § 1013, § 1013a, § 1013b): Ok

Meet and Confer
A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., §430.41, subd. (a).) “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.” (Code Civ. Proc., §430.41, subd. (a)(2).)

Failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., § 430.41(a)(4).)

Here, Defendants’ counsel alleges that a meet and confer letter was sent to Plaintiff’s counsel, but a response was never received from Plaintiff’s counsel. (See Pleše Decl. ¶¶ 3-4.)

RELIEF REQUESTED
“Defendants, ANIMAL AMEMERGENCY CLINIC OF PASADENA and CRAIG MOHAGHEGH, DVM (hereinafter referred to as “Defendants”), will demur to Plaintiff, TANYA SMITH, the guardian of her canine companion MOLLY, (“Plaintiff”) Complaint. This demurrer is made on the following grounds:

(1) Plaintiff’s Second Cause of Action for Misrepresentation does not state facts sufficient to constitute a cause of action against Defendant under California Code of Civil Procedure § 430.10(e). In addition, this cause of action as pled is uncertain, ambiguous, and unintelligible under California Code of Civil Procedure § 430.10(f).

(2) Plaintiff’s Fourth Cause of Action for Breach of Contract does not state facts sufficient to constitute a cause of action against Defendant under California Code of Civil Procedure § 430.10(e). In addition, this cause of action as pled is uncertain, ambiguous, and unintelligible under California Code of Civil Procedure § 430.10(f).

(3) Plaintiff’s Eighth Cause of Action for Negligent Infliction of Emotional Distress does not state facts sufficient to constitute a cause of action against Defendant under California Code of Civil Procedure § 430.10(e). In addition, this cause of action as pled is uncertain, ambiguous, and unintelligible under California Code of Civil Procedure § 430.10(f).

(4) Plaintiff’s Ninth Cause of Action for Intentional Infliction of Emotional Distress does not state facts sufficient to constitute a cause of action against Defendant under California Code of Civil Procedure § 430.10(e). In addition, this cause of action as pled is uncertain, ambiguous, and unintelligible under California Code of Civil Procedure § 430.10(f).

This Motion is based upon this notice, California Code of Civil Procedure § 430.10 and/or in the alternative, pursuant to common law, the attached Memorandum of Points and Authorities, Request for Judicial Notice concurrently filed, all of the pleadings on file in this action, the Declaration of Maria. K. Pleše, and upon such additional oral or documentary evidence and argument which may be presented before or at the hearing on this Motion.”

(Def. Mot. p. 1-2.)

LEGAL STANDARDS FOR DEMURRERS
Demurrer – Sufficiency
A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda, (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “All that is required of a plaintiff, as a matter of pleading … is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.” (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.)

On demurrer, a trial court has an independent duty to “determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory.” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.) Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.” (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Demurrer – Uncertainty
A special demurrer for uncertainty, CCP section 430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

ANALYSIS
Plaintiff, Tanya Smith, the guardian of her beloved canine companion Molly, filed the instant verified Complaint on 9/25/2024.

The caption of the Complaint does not number the causes of action. Instead, it lists the causes of action in the Complaint as: veterinary malpractice, fraud, negligence, breach of contract & bailment, trespass to chattel, conversion, NIED & IIED.

The body of the Complaint numbers and names the causes of action as follows: (1) Veterinary Malpractice, (2) Misrepresentations, (3) Negligence of the Defendants, (4) Breach of Contract, (5) Trespass to Chattel, (6) Conversion, (7) Negligent Infliction of Emotional Distress As Recovery for Negligence CACI No 1620, (8) Intentional Infliction of Emotional Distress CACI No 1600, and (9) Breach of Bailment Contract.

Plaintiff alleges she is the guardian of her canine companion. (Compl. ¶ 1.) Plaintiff alleges that Defendant, Craig Mohaghegh, DMV, (Dr. Mo), worked at Animal AM-Emergency Clinic of Pasadena at or around December 2023 and January 2024, during the relevant time of this incident. (Id. at ¶ 2.) Plaintiff alleges Defendant, Animal AM-Emergency Clinic of Pasadena (AAECP), is the entity who employed Dr. Mo. (Id. at ¶ 3.)

Plaintiff alleges that on December 8, 2023, her dog Molly was brought to AAECP for a follow-up blood draw and to receive a Canine Influenza H3N2 vaccine, only. (Compl. ¶¶ 16 & 18.) Plaintiff alleges that there was no other purpose of the December 8, 2023 visit. (Compl. ¶ 16.)

Plaintiff alleges that on December 8, 2023, her dog Molly underwent an unapproved guided urinary cystocentesis and that Smith did not consent to this procedure. (Compl. ¶¶ 19 & 26.) Plaintiff also alleges that on December 8, 2023, Dr. Mo prescribed Molly a pain shot and muscle relaxer but that Dr. Mo did not tell Smith the type of pain shot that Molly was provided. (Compl. ¶ 22.)

Second Cause of Action – Misrepresentation
In relevant part, Plaintiff’s Complaint alleges:

40. Plaintiff hereby incorporates all the preceding paragraphs as if fully set forth herein. The specific allegations against each specific Defendant can be found in the statement of the facts above.

41. The elements of common law fraud in California are: (1) a misrepresentation of a material fact (false representation, concealment, or nondisclosure); (2) knowledge of falsity; (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage.

42. Multiple misrepresentations were made to the Plaintiff including but not limited to the fact that:

a. The appointment of December 8, 2023 was specifically limited to only: 1) draw blood and 2) administer a Canine Influenza H3N2 Vaccine.

b. Molly had an action plan to await urine testing for another year

c. Molly would be cared for while in their possession

43. The above misrepresentations was the direct and proximate cause of the current situation that Molly endured and is the cause of the monetary damages to Smith.

44. The fraud of misrepresentation is the proximate cause of the injury committed out of gross negligence in disregard of humanity and improper veterinary costs for Molly.

45. Plaintiff has been damaged and requests monetary damages, punitive damages, exemplary damages for the wrongful injury to Molly committed willfully or by gross negligence, in disregard of humanity, consequential damages, emotional distress damages, special damages and attorney fees. Furthermore, Plaintiff requests all money returned to her for payments made to the Defendants, for money expended in attempts to make Molly whole and requests a monetary award for the damages as a result of the malpractice.

(Compl. ¶¶ 40-45.)

Legal Standard Fraud Intentional Misrepresentation
“ ‘The elements of fraud, which gives rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ “ (Small v. Fritz Companies, Inc. (2003) 30Cal.4th 167, 173 citing Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)

Analysis
Knowledge, Intent, Reliance

At the very least, Plaintiff did not allege the elements of: (b) knowledge of falsity (or “scienter”), (c) intent to defraud, i.e., to induce reliance, and (d) justifiable reliance.

Defendants’ demurrer on grounds of failure to state facts sufficient to constitute a cause of action can be sustained on these grounds.

(a)Misrepresentation

Fraud must be pleaded with specificity rather than with “‘general and conclusory allegations.’” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. (Lazar v. Superior Court (1996)12 Cal.4th 631, 645.)

Further, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. (Lazar v. Superior Court (1996)12 Cal.4th 631, 645.)

Here, many times throughout the demurrer and opposition papers, the parties’ arguments are indecipherable, confusingly written, and not rooted in any sort of cognizable legal standard. At times Defendants appear to believe this demurrer hearing is equivalent to a trial or a motion for summary judgment.

For example, one confusing argument asserted by Defendants pertain to something about statements being contradictory. (See Dem. p. 6.) Not only does the Court not understand what Defendants are trying to argue, but the Court fails to see what a “contradiction” has to do with the elements that must be alleged to state a cause of action for fraud.

Another example of how confusing the parties’ papers are can be seen in the Opposition.

Despite the allegations in ¶ 42 of the Complaint, Plaintiff’s Opposition states, “Dr. Mo (Defendant) allowed unnecessary tests and performed a urinary test that contradicted the treatment plan outlined by Dr. Chan. See, Complaint.” (Oppo. p. 6.)

If in fact Plaintiff is trying to base its misrepresentation off of Dr. Mo conducting tests that contradicted a prior doctor’s treatment plan, the Court is entirely confused how this is even a misrepresentation. What did Dr. Mo misrepresent?

Setting aside the fact that both parties’ arguments about misrepresentations are borderline incomprehensible, at the very least, for each alleged misrepresentation, Plaintiff did not allege facts showing how, when, where, to whom, and by what means the representations were made.

Further, if AAEM is a corporate defendant, for each alleged misrepresentation, Plaintiff did not allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made.

To the extent that Plaintiff is arguing that there can be a relaxed pleading standard for fraud when the facts are within the defendant’s control based on the case of Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 217 (Committee), the Court does not find this argument availing based on the current version of the operative Complaint. The difference between the alleged facts and circumstances behind Committee and the alleged misrepresentations in the operative Complaint are nowhere similar.

TENTATIVE RULING – SECOND CAUSE OF ACTION – Fraud (Misrepresentations)
Defendants’ demurrer to the second cause of action for “misrepresentations” is SUSTAINED with leave to amend granted.

At the very least, Plaintiff did not allege the elements of: (b) knowledge of falsity (or “scienter”), (c) intent to defraud, i.e., to induce reliance, and (d) justifiable reliance.

Further, Plaintiff is encouraged to allege the specificity requirements for a fraud cause of action as closely as possible, i.e., how, when, where, to whom, and by what means the representations were made. And in the case of a corporate defendant, alleging the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made.

TENTATIVE RULING - Fourth Cause of Action – Breach of Contract
In relevant part, Plaintiff’s Complaint alleges:

51. Plaintiff hereby incorporates all the preceding paragraphs as if fully set forth herein. The specific allegations against each specific Defendant can be found in the statement of the facts above.

52. The elements of a breach of contract action are: (1) that there existed a contract, (2) Plaintiff's performance or excuse for nonperformance, (3) Defendants’ breach, and (4) damage to Plaintiff therefrom.

53. The Defendants entered into a written and oral contract with Plaintiff to properly care for and treat her dog Molly. The agreement was that on December 8, 2023, Smith would bring Molly in for routine bloodwork, as well as to receive a Canine Influenza H3N2 Vaccine. No other agreement was made with the Defendants. Plaintiff provided money and/or signed an agreement in consideration of this promise to perform the two items: 1) blood draw and 2) administer the Canine Influenza H3N2 Vaccine. Defendants breached the contract by failing to properly fulfill the terms of the contract under the scope of the agreed upon terms. Defendants should have only performed the requested acts as agreed to. Defendants’ breach of their promise resulted in great damage to Plaintiff therefrom.

54. The breach of contract is the proximate cause of the injury committed out of failure to perform as promised and agreed upon with Smith. Smith provided consideration for the promise to perform and Defendants failed in their proper performance of care.

55. Plaintiff has been damaged and requests monetary damages, punitive damages, exemplary damages for the wrongful injury to Molly committed willfully or by gross negligence, in disregard of humanity, consequential damages, special damages and attorney fees.

56. Furthermore, Plaintiff requests all money returned to her for payments made to the Defendants, requests all money expending in attempts to make Molly whole and requests a monetary award for the damages as a result of the breach of contract.

(Compl ¶¶ 51-56.)

To state a cause of action for breach of contract, Plaintiff must allege “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

As a preliminary matter, Defendants’ arguments on how Plaintiff did not allege sufficient facts to state a breach of contract cause of action are borderline incomprehensible.

Defendants argue that there are no terms written verbatim in the Complaint, and no agreement is attached. Why Defendants make the argument that the terms have to be written verbatim in the Complaint, or that the agreement has to be attached, is unclear to the Court because Defendants undercut their own argument by citing case law that a contract can alternatively be pled by its legal effect.

“ A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. (Id., §§ 479, 480, pp. 572–573.) In order to plead a contract by its legal effect, plaintiff must “allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.” (Id., § 480, p. 573.)” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)

Despite Defendants admitting that a contract can be pled according to its legal effect, Defendants argue:

In order to plead a contract by its legal effect, plaintiff must “allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.’” Id. Plaintiff’s Complaint merely alleges that Defendants may have exceeded the scope of the subject contract when they performed a urinary test on Plaintiff’s dog, who has a history of chronic urinary conditions. There are no further allegations referring to the exact terms in the contract which limited Defendants’ medical and professional judgment to such an extreme degree. As such, this singular and conclusory allegation, absent any reference to the exact terms set out in the contract, is insufficient to properly plead the subject contract by its legal effect.

(Def. Dem. p. 8-9.)

The aforementioned argument above by Defendants is confusing for several reasons.

First, that argument is under a section “IV” of the demurrer which is titled “Plaintiff fails to allege the existence of a contract as required to properly plead her fourth cause of action for breach of contract.” Despite the fact that the section IV heading indicating that the Defendants are attacking the first element of a breach of contract cause of action – the existence of the contract – Defendants’ argument appears to focus on the second element of breach by arguing “there are no further allegations referring to the exact terms in the contract which limited Defendants’ medical and professional judgment to such an extreme degree.”

Or to phrase it differently, the Court has no idea what Defendants’ argument is with respect to how Plaintiff did not allege the legal effect of the contract.

Plaintiffs appear to have alleged the legal effect of the contract by stating, “The agreement was that on December 8, 2023, Smith would bring Molly in for routine bloodwork, as well as to receive a Canine Influenza H3N2 Vaccine. No other agreement was made with the Defendants. Plaintiff provided money and/or signed an agreement in consideration of this promise to perform the two items: 1) blood draw and 2) administer the Canine Influenza H3N2 Vaccine.” (Compl. ¶ 53.)

Therefore, since Defendants’ demurrer only attacks the first element of “existence of a contract,” and the since the Court cannot decipher Defendants’ arguments, the Court is somewhat inclined to OVERRULE the demurrer to the fourth cause of action because Defendants’ arguments are incomprehensible.

However, the Court will hear argument for the reasons explained below.

Defendants also demurred to the Complaint on grounds of uncertainty. On one hand, the Court is inclined to OVERULE the demurrer based on uncertainty because Defendants presented no arguments regarding uncertainty.

However, on the other hand, the Court notes how it is entirely uncertain if Plaintiff is bringing one or two breach of contract causes of action.

Plaintiff alleges that “The Defendants entered into a written and oral contract with Plaintiff to properly care for and treat her dog Molly.”

Is Plaintiff alleging that there is a written contract or an oral contract? These would be two separate things.

Aside from the fact that a written and an oral contract would be two separate contracts, Plaintiff’s allegations only refer to one agreement. “No other agreement was made with Defendants” (Compl. ¶ 53.) “The breach of the contract….” (Compl. ¶ 54.)

Therefore, when reading Plaintiff’s allegations, despite the fact Plaintiff only refers to one agreement on several occasions, Plaintiff confusingly pleads that she entered into a written and oral contract, which would be two separate contracts.

A special demurrer for uncertainty, CCP § 430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

A cause of action for breach of contract is subject to demurrer if “it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.” (Code Civ. Proc., § 430.10(g).)

Here, it’s impossible to determine if the contract is written or oral because the Complaint alleges that Defendants and Plaintiff entered into a written and oral contract, which would be two contracts, but many specific allegations in the Complaint, along with reading the Complaint as a whole, indicates there is only one contract/agreement.

Another issue not brought up by either party is the following issue explained below.

“Facts alleging a breach, like all essential elements of a breach of contract cause of action, must be pleaded with specificity. (See generally 4 *6 Witkin, Cal. Procedure (4th ed. 1996) Pleading, § 4495, pp. 585–586; Bentley v. Mountain (1942) 51 Cal.App.2d 95, 98, 124 P.2d 91 [general averments that defendants violated contract insufficient; pleader must allege facts demonstrating breach]; Thompson v. Purdy (1931) 117 Cal.App. 565, 567, 4 P.2d 282, [general averments that defendant failed to perform duties or comply with contract insufficient].)” (Levy v. State Farm Automobile Ins. Co. (2007) 150 Cal.App.4th 1, 5-6.)

Here, when reading the allegations in ¶ 53 of the Complaint, along with the allegations of the entire Complaint as a whole, Plaintiff does not appear to be alleging a breach of any term of the alleged contract(s). Instead Plaintiff is alleging that Defendant did additional things not required by the contract.

The Court is not certain if this is even a basis for a breach of contract cause of action, because Defendants are not breaching anything in Plaintiff’s alleged contract(s). Instead, it appears Plaintiff is alleging that Defendants performed additional things not considered by the contract. The Court is unclear if this forms a basis of a breach of contract cause of action because Plaintiff is not alleging that the terms of the contract stated that Defendants could only perform the exact things considered by the contract, and thus are in breach by performing things not considered by the contract. It appears as if Plaintiff’s cause of action here may lie more so in negligence, and not a breach of contract, because the Court is unclear how Plaintiff is even alleging a breach of the contract when Plaintiff is alleging that Defendants did the exact things specified in the alleged contract(s).

All that being said, deciding whether Plaintiff’s demurrer should be sustained on grounds of uncertainty, or on grounds of Plaintiff not alleging breach, is difficult to decipher because Defendants present no comprehensible arguments supported by legal authority. The glaring deficiencies the Court saw were not pointed out by Defendants. Likewise, Plaintiff’s Opposition is unhelpful to the Court.

The Court will hear argument, but the Court is inclined to overrule the demurrer to the second cause of action because the moving Defendants did not provide availing arguments as to why the Court should sustain the demurrer. Alternatively, the Court is open to granting leave to amend for Plaintiff to clear up the uncertainty that the Court pointed out.

TENATIVE RULING – SEVENTH CAUSE OF ACTION – Negligent Infliction of Emotional Distress as Recovery for Negligence

The Court will hear argument as to the seventh cause of action.

As a preliminary matter, it is unclear what Plaintiff’s seventh cause of action is. Plaintiff labels it as “Negligent Infliction of emotional Distress As Recovery for Negligence.”

Is Plaintiff intending this to be an independent cause of action, or is Plaintiff intending this to simply be part of her negligence action?

The negligent causing of emotional distress is not an independent tort but the tort of negligence. (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509.)

Therefore, the Court is considering sustaining Defendants’ demurrer to the seventh cause of action because the seventh cause of action is not an independent tort.

Further, to the extent that Plaintiff intended the seventh cause of action just to be a basis for recovering emotional distress damages for her negligence cause of action, it is not clear if the emotional distress damages are based on the first cause of action for veterinary malpractice or the third cause of action for negligence – both the first and third causes of action are negligence causes of action. Not to mention, the Court is not entirely clear what the difference is between Plaintiff’s first and third causes of action, as they are both negligence claims.

Further, even to the extent that Plaintiff did not intend for the seventh cause of action to be an actual cause of action, but Plaintiff instead intended it to be a basis to seek emotion distress damages based on the two negligence causes of action [first and third causes of action], the Court fails to see how Defendants’ argument about emotion distress damages is subject to a demurrer.

The Court is unclear how Defendants’ argument is subject to demurrer because even if the Court agrees that emotional distress damages are not recoverable in this action, it still would not show that Plaintiff did not allege the elements of a negligence cause of action – duty, breach of duty, causation, and damages. Defendants’ argument would not dispose of either of the negligence causes of action because those two causes of action don’t only seek emotional distress damages. Or to phrase it differently, even if the Court agreed that emotional distress damages cannot be recovered in either negligence cause of action, it doesn’t mean that Plaintiff did not allege damages because the two negligence causes of action don’t only seek emotional distress damages.

Therefore, the Court will hear argument as to how it should handle the demurrer to the seventh cause of action.

The seventh cause of action does not appear to be an independent tort. The negligent causing of emotional distress is not an independent tort but the tort of negligence. (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509.) Therefore, the Court is inclined to sustain the demurrer to the seventh cause of action. The Court will hear argument about leave to amend.

To the extent that the seventh cause of action is intended to be part of the first and third causes of action, it appears that whether emotional distress damages can be recovered for those causes of action should be addressed with Defendants’ motion to strike. This appears to be the case because Defendants cited McMahon v. Craig (2009) 176 Cal.App.4th 1502, and the part of that case that pertained to emotional distress damages in a negligence cause of action pertained to striking that form of relief, not sustaining a demurrer.

TENATATIVE RULING EIGHTH CAUSE OF ACTION – INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

In relevant part, Plaintiff’s Complaint alleges:

82. Plaintiff incorporates the allegations contained in the above paragraphs as though fully set forth herein.

83. Plaintiff is able to prove all of the following to fulfill each element of this claim because:

a. Defendants’ conduct was outrageous to perform such a procedure on an animal that was neither requested, authorized or safe

b. That Defendants’ acts were intentional. Defendants performed the procedure to harm Plaintiff’s dog Molly. The act was not accidental. The act of harm took thought and time and attention to perform.

c. Plaintiff suffered severe emotional distress, and

d. Defendants’ conduct was a substantial factor in causing Plaintiff’s severe emotional distress

84. Through Defendants’ outrageous conduct as described herein and above, Defendants acted with intent to cause, or with a reckless disregard for the probability to cause, Plaintiff substantial and enduring emotional distress. To the extent that said outrageous conduct was perpetrated by certain agents of Defendants, Defendants authorized and ratified the conduct and intentionally made a choice to proceed with an action that was not requested or authorized.

85. As a direct and proximate result of Defendants’ actions against Plaintiff, as alleged above, Plaintiff has suffered special damages, and consequential damages in an amount to be proven at time of trial, in excess of the minimum jurisdictional requirements of this Court.

86. As a further direct and proximate result of Defendants’ actions against Plaintiff, as alleged above, Plaintiff has suffered and continues to suffer general damages including but not limited to significant and enduring emotional distress including but not limited to, mental anguish and injury to mind, in a sum to be proven at time of trial, in excess of the minimum jurisdictional requirements of this Court.

87. Plaintiff is further entitled to prejudgment interest in an amount to be shown at trial.

88. Defendants’ outrageous conduct resulted in emotional distress to Plaintiff. Plaintiff is thus entitled to and herein seeks punitive and exemplary damages from Defendants, in an amount according to proof at trial, to punish Defendants and deter Defendants and others from engaging in similar future conduct.

(Compl. ¶ 82-88.)

Defendants argue that their demurrer to the eighth cause of action for intentional infliction of emotional distress should be sustained based on the case of McMahon v. Craig (2009) 176 Cal.App.4th 1502.

As stated in McMahon v. Craig:

“The tort of intentional infliction of emotional distress is comprised of three elements: (1) extreme and outrageous conduct by the defendant 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. [Citation.] ... [¶] 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.” [Citation.] Generally, conduct will be found to be actionable where the *1516 “recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ ” [Citation.]' [Citation.] That the defendant knew the plaintiff had a special susceptibility to emotional distress is a factor which may be considered in determining whether the alleged conduct was outrageous.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494, 76 Cal.Rptr.2d 540 (Cochran ).) However, “[i]t is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” (Christensen, supra, 54 Cal.3d at p. 903, 2 Cal.Rptr.2d 79, 820 P.2d 181.)

(McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1515-1516 (McMahon).)

Here, when considering the ruling in McMahon, Plaintiff does not allege Defendants’ acts of malpractice to be directed at Plaintiff nor done in the presence of Plaintiff.

In Opposition, Plaintiff does not address any of the issues McMahon brought up with regards to sustaining a demurrer for an IIED cause of action in the instant context.

The Court notes that the Opposition attempts to argue that the alleged negligence/malpractice occurred in the presence of Plaintiff because her dog yelped in pain as it was dragged out of the veterinarian’s office.

The Court does not find this argument availing because Plaintiff’s Opposition admits that Plaintiff was not present for the actual procedure.

Defendants’ demurrer to the eighth cause of action is SUSTAINED. The Court will hear argument as to if leave to amend should be granted.

TENTATIVE RULING ON MOTION TO STRIKE

Moving Party: Defendants, Animal Am-Emergency Clinic of Pasadena and Craig Mohaghegh, DVM

Responding Party: Plaintiff, Tanya Smith, the guardian of her beloved canine companion Molly

Moving Papers: Notice/Motion to Strike; Proposed Order; Notice of Errata;

Opposition Papers: Opposition; Christine Kelly Declaration

Reply Papers: Reply

RELIEF REQUESTED
“Defendants first move to strike specifically the claims for general damages contained within the Complaint and accordingly move to strike any and all references to general damages contained in Plaintiff’s Complaint, including the following:

1. Page 1, ¶2: “This is an action for monetary damages, punitive damages, exemplary damages, consequential damages, special damages and attorney fees for the veterinary malpractice, fraud and breach of contract committed against Molly, the companion to Tanya Smith.”

2. Page 7, ¶27: “The AAECP facility and agents therein were grossly negligent in the handling and care of Molly and made several intentional harmful acts. The damages sought by Smith include, but are not limited to, those caused by the gross negligence and/or intentional torts committed by Craig Mohaghegh, DVM and Animal AMEmergency Clinic of Pasadena.”

3. Page 9, ¶34: “Plaintiff has been damaged and requests monetary damages, punitive damages, exemplary damages, general damages, special damages for the wrongful injury to Molly committed willfully or by gross negligence, in disregard of humanity, consequential damages, special damages and attorney fees.”

4. Page 9, ¶45: “Plaintiff has been damaged and requests monetary damages, punitive damages, exemplary damages, general damages, special damages for the wrongful injury to Molly committed willfully or by gross negligence, in disregard of humanity, consequential damages, special damages and attorney fees.”

5. Page 11, ¶50: “Plaintiff is entitled to emotional damages due to the negligence of Defendants.”

6. Page 11, ¶55: “Plaintiff has been damaged and requests monetary damages, punitive damages, exemplary damages, general damages, special damages for the wrongful injury to Molly committed willfully or by gross negligence, in disregard of humanity, consequential damages, special damages and attorney fees.”

7. Page 12, ¶61: “Defendants' unauthorized acts resulted in injury to Plaintiff and emotional damages.”

8. Page 12, ¶62: “Plaintiff has been damaged and requests monetary damages, punitive damages, exemplary damages, general damages, special damages for the wrongful injury to Molly committed willfully or by gross negligence, in disregard of humanity, consequential damages, special damages and attorney fees.”

9. Page 13, ¶70: “Plaintiff has been damaged and requests monetary damages, punitive damages, exemplary damages, for the wrongful taking of Molly committed willfully or by gross negligence, in disregard of humanity.”

10. Page 14, ¶79: “As a further direct and proximate result of Defendants' actions against Plaintiff, as alleged above, Plaintiff has suffered and continues to suffer general damages including but not limited to significant and enduring emotional distress including mental anguish and injury to mind in a sum to be proven at time of trial, in excess of the minimum jurisdictional requirements of this Court.”

11. Page 15, ¶83: “Defendants' conduct was outrageous to perform such a procedure on an animal that was neither requested, authorized or safe. That Defendants' acts were intentional. Defendants performed the procedure to harm Plaintiff's dog Molly. The act was not accidental. The act of harm took thought and time and attention to perform. Plaintiff suffered severe emotional distress, and Defendants' conduct was a substantial factor in causing Plaintiff's severe emotional distress.”

12. Page 15, ¶84: “Through Defendants' outrageous conduct as described herein and above, Defendants acted with intent to cause, or with a reckless disregard for the probability to cause, Plaintiff substantial and enduring emotional distress. To the extent that said outrageous conduct was perpetrated by certain agents of Defendants, Defendants authorized and ratified the conduct and intentionally made a choice to proceed with an action that was not requested or authorized.”

13. Page 15, ¶86: “Plaintiff has suffered and continues to suffer general damages including but not limited to significant and enduring emotional distress including but not limited to, mental anguish and injury to mind, in a sum to be proven at time of trial, in excess of the minimum jurisdictional requirements of this Court.”

14. Page 15, ¶88: “Defendants' outrageous conduct resulted in emotional distress to Plaintiff. Plaintiff is thus entitled to and herein seeks punitive and exemplary damages from Defendants, in an amount according to proof at trial, to punish Defendants and deter Defendants and others from engaging in similar future conduct.”

15. Page 17, line 4: “For general and consequential damages according to proof.”

16. Page 17, line 7: “For economic and noneconomic damages pursuant to CA Civil Code § l 43 l .2(b).”

Defendants next move to strike specifically the claims for special value damages under Civil Code 3355 contained within the Complaint and accordingly move to strike any and all references to special value damages contained in Plaintiff’s Complaint, including the following:

5. Page 11, ¶55: “Plaintiff has been damaged and requests monetary damages, punitive damages, exemplary damages, general damages, special damages for the wrongful injury to Molly committed willfully or by gross negligence, in disregard of humanity, consequential damages, special damages and attorney fees.”

6. Page 12, ¶62: “Plaintiff has been damaged and requests monetary damages, punitive damages, exemplary damages, general damages, special damages for the wrongful injury to Molly committed willfully or by gross negligence, in disregard of humanity, consequential damages, special damages and attorney fees.”

7. Page 13, ¶70: “Plaintiff has been damaged and requests monetary damages, punitive damages, exemplary damages, for the wrongful taking of Molly committed willfully or by gross negligence, in disregard of humanity.”

8. Page 17, line 6: “For Special Value per Civ. Code,§ 3355.”

Defendants first move to strike specifically the claims for exemplary damages under Civil Code 3340 contained within the Complaint and accordingly move to strike any and all references to exemplary damages contained in Plaintiff’s Complaint, including the following:

5. Page 9, ¶49: As a result of Defendants' wrongful injuries to Molly, being the subject of property of Plaintiff Smith, Plaintiff seeks exemplary damages pursuant to CCC § 3340 for the injuries committed by gross negligence, in disregard of humanity.”

7. Page 12, ¶62: “Plaintiff has been damaged and requests monetary damages, punitive damages, exemplary damages, general damages, special damages for the wrongful injury to Molly committed willfully or by gross negligence, in disregard of humanity, consequential damages, special damages and attorney fees.”

8. Page 13, ¶70: “Plaintiff has been damaged and requests monetary damages, punitive damages, exemplary damages, for the wrongful taking of Molly committed willfully or by gross negligence, in disregard of humanity.”

9. Page 14, ¶81: “Defendants' intentional act resulted in foreseeable emotional distress to Plaintiff. Defendants' actions were grossly negligent per CCC § 3340. Plaintiff is thus entitled to and herein seeks punitive and exemplary damages from Defendants, in an amount according to proof at trial, to punish Defendants and deter Defendants and others from engaging in similar future conduct. Punitive damages are available based upon negligent infliction of emotional distress…”

10. Page 15, ¶83: “Defendants' conduct was outrageous to perform such a procedure on an animal that was neither requested, authorized or safe. That Defendants' acts were intentional. Defendants performed the procedure to harm Plaintiff's dog Molly. The act was not accidental. The act of harm took thought and time and attention to perform. Plaintiff suffered severe emotional distress, and Defendants' conduct was a substantial factor in causing Plaintiff's severe emotional distress.”

11. Page 15, ¶84: “Through Defendants' outrageous conduct as described herein and above, Defendants acted with intent to cause, or with a reckless disregard for the probability to cause, Plaintiff substantial and enduring emotional distress. To the extent that said outrageous conduct was perpetrated by certain agents of Defendants, Defendants authorized and ratified the conduct and intentionally made a choice to proceed with an action that was not requested or authorized.”

12. Page 15, ¶88: “Defendants' outrageous conduct resulted in emotional distress to Plaintiff. Plaintiff is thus entitled to and herein seeks punitive and exemplary damages from Defendants, in an amount according to proof at trial, to punish Defendants and deter Defendants and others from engaging in similar future conduct.”

13. Page 16, ¶97: Plaintiff has been damaged and requests an award for the monetary damages, punitive damages, exemplary damages for the wrongful taking of Molly committed willfully or by gross negligence, in disregard of humanity.”

14. Page 17, line 3: “For exemplary damages pursuant to California Civil Code § 3340, for the wrongful injuries to an animal being the subject of property, committed willfully or by gross negligence, in disregard of humanity.”

Defendants next move to strike specifically the claims for punitive damages contained within the Complaint and accordingly move to strike any and all references to punitive damages contained in Plaintiff’s Complaint, including the following:

8. Page 14, ¶81: “Defendants' intentional act resulted in foreseeable emotional distress to Plaintiff. Defendants' actions were grossly negligent per CCC § 3340. Plaintiff is thus entitled to and herein seeks punitive and exemplary damages from Defendants, in an amount according to proof at trial, to punish Defendants and deter Defendants and others from engaging in similar future conduct. Punitive damages are available based upon negligent infliction of emotional distress…”

9. Page 15, ¶83: “Defendants' conduct was outrageous to perform such a procedure on an animal that was neither requested, authorized or safe. That Defendants' acts were intentional. Defendants performed the procedure to harm Plaintiff's dog Molly. The act was not accidental. The act of harm took thought and time and attention to perform. Plaintiff suffered severe emotional distress, and Defendants' conduct was a substantial factor in causing Plaintiff's severe emotional distress.”

10. Page 15, ¶84: “Through Defendants' outrageous conduct as described herein and above, Defendants acted with intent to cause, or with a reckless disregard for the probability to cause, Plaintiff substantial and enduring emotional distress. To the extent that said outrageous conduct was perpetrated by certain agents of Defendants, Defendants authorized and ratified the conduct and intentionally made a choice to proceed with an action that was not requested or authorized.”

11. Page 15, ¶88: “Defendants' outrageous conduct resulted in emotional distress to Plaintiff. Plaintiff is thus entitled to and herein seeks punitive and exemplary damages from Defendants, in an amount according to proof at trial, to punish Defendants and deter Defendants and others from engaging in similar future conduct.”

12. Page 16, ¶97: Plaintiff has been damaged and requests an award for the monetary damages, punitive damages, exemplary damages for the wrongful taking of Molly committed willfully or by gross negligence, in disregard of humanity.”

13. Page 17, line 2: “For punitive damages according to proof.”

This motion is made pursuant to Code of Civil Procedure §435 through §437 on the grounds that Plaintiff’s Complaint contains irrelevant, false and/or improper matter. This motion will be based upon this notice, the memorandum of points and authorities, and upon all of the papers, pleadings and records on file with the court in this action, as well as upon such oral and documentary evidence as may be presented at the time of the hearing of this matter.”

(Def. Mot. Strike, p. 1-10.)

PROCEDURAL
Meet and Confer
Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion to strike the amended pleading. (CCP § 435.5(a).)

“A determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion to strike.” (CCP § 435.5(a)(4).)

Here, Defendants’ counsel alleges that a meet and confer occurred. (See Pleše Decl. ¶¶ 3-4.)

Legal Standard Motion to Strike
The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc. § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc. § 436(b).) A motion to strike cannot be based upon the grounds that a complaint fails to state facts sufficient to constitute a cause of action, but instead is properly based on grounds of superfluous or abusive allegations, or improprieties in form or procedure. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528-29.)

The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code. Civ. Proc. § 437; Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 [“judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth”].)

Further, CCP § 431.10(a)-(c) states as follows:

(a) A material allegation in a pleading is one essential to the claim or defense and which could not be stricken from the pleading without leaving it insufficient as to that claim or defense.

(b) An immaterial allegation in a pleading is any of the following:

(1) An allegation that is not essential to the statement of a claim or defense.

(2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense.

(3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.

(CCP § 431.10(a)-(c).)

TENTATIVE RULING

As a preliminary matter, oftentimes Defendants’ and Plaintiff’s papers are less than models of clarity.

For example, Defendants seek to strike “general damages” in 16 different portions of the Complaint, but the following portions that Defendants seek to strike don’t even mention “general damages” :

1. Page 1, ¶2:

2. Page 7, ¶27

5. Page 11, ¶50:

7. Page 12, ¶61:

9. Page 13, ¶70

11. Page 15, ¶83

12. Page 15, ¶84

14. Page 15, ¶88:

16. Page 17, line 7.

Likewise, Defendants move to strike “special value” damages from 8 different portions of the Complaint, but the following portions that Defendants seek to strike don’t even mention “special value” damages:

2. Page 7, ¶27

7. Page 13, ¶70.

Additionally, Defendants move to strike “exemplary damages” from 14 different portions of the Complaint, but the following portions that Defendants seek to strike don’t even mention “exemplary damages”:

10. Page 15, ¶83

11. Page 15, ¶84

Further, Defendants move to strike “punitive damages” from 13 different portions of the Complaint, but the following portions that Defendants seek to strike don’t even mention “punitive damages”:

2. Page 7, ¶27

9. Page 15, ¶83

10. Page 15, ¶84.

Additionally, several times throughout Plaintiff’s Opposition to the motion to strike, Plaintiff cites cases that do not even exist.

Preliminary Matter
For causes of action in the demurrer that are sustained with leave to amend, the Court strikes those paragraphs in the Complaint with leave to amend since the demurrer on those causes of action were sustained with leave to amend.

For causes of action in the demurrer that are sustained without leave to amend, the Court strikes those paragraphs in the Complaint without leave to amend.

General Damages
Defendants’ argument that general damages are not recoverable is unavailing. Defendants cite to Kimes v. Grosser (2011) 195 Cal. App. 4th 1556, 1559 to argue that general damages cannot be sought in this case.

The Court fails to understand how Kimes stands for the proposition that general damages cannot be sought here. Kimes does not once mention general damages; therefore, the Court is confused how Defendants are arguing that that case stands for the proposition that general damages cannot be sought. The Kimes case doesn’t even mention what causes of action were brought in that case.

Therefore, to the extent that “general damages” is alleged anywhere throughout the Complaint, the allegations of “general damages” is NOT STRICKEN and Defendants’ Motion to strike allegations regarding “general damages” is DENIED.

Confusingly, despite Defendants’ notice not mentioning that they seek to strike emotional distress damages, Defendants seek to strike emotional distress damages.

Both parties argue about emotional distress damages as if emotional distress damages are a part general damages. Whether this is actually the case, it is entirely to the Court because neither party explains how emotional distress damages are considered general damages.

Setting that aside, Defendants argue that emotional distress damages cannot be sought under the instant circumstances based on McMahon v. Craig (2009) 176 Cal.App.4th 1502.

Based on the Court’s reading of McMahon, the Court tends to agree about McMahon’s applicability to the instant case with respect to emotional distress damages for negligence.

Opposition’s argument regarding emotional distress damages are confusing, unavailing, and many times cite to cases that don’t exist.

Therefore, to the extent the Complaint seeks emotional distress damages in the negligence and malpractice claims, those allegations are stricken. Further, the Court notes that they are stricken to the extent that the seventh cause of action seeks emotional distress damages.

The Court does not strike emotional distress damages as to non-negligence causes of action because McMahon only dealt with striking emotional distress damages for negligence.

The Court will hear argument as to whether leave to amend should be granted regarding emotional distress damages.

Special Damages
Defendants argue that all “special damages” referenced in the Complaint should be stricken. Defendants cite to Civil Code § 3355 which states, “Where certain property has a peculiar value to a person recovering damages for deprivation thereof, or injury thereto, that may be deemed to be its value against one who had notice thereof before incurring a liability to damages in respect thereof, or against a willful wrongdoer.”

Defendants argue that “special damages” should be stricken based on the McMahon case.

Defendants’ argument is unavailing. McMahon struck loss of companionship allegations from the Complaint. Plaintiff’s Complaint does not mention loss of companionship.

Defendants’ motion to strike with respect to striking special damages is DENIED.

Exemplary Damages
“For wrongful injuries to animals being subjects of property, committed willfully or by gross negligence, in disregard of humanity, exemplary damages may be given.” (Civil Code § 3340.)

Defendants argue that there are no allegations in Plaintiff’s Complaint of an intent by Defendants to injure to cause harm to the Plaintiff or her dog.

The Court does not find Defendants arguments availing. At the very least, Plaintiff alleges willfulness and gross negligence in ¶ 39 of the first cause of action, and that paragraph is incorporated into the other causes of action in the Complaint.

“Whether a lack of due care constitutes gross negligence is generally a question of fact.” (Joshi v. Fitness International, LLC (2022) 80 Cal.App.5th 814, 825.)

Defendants’ motion to strike portions of the Complaint that reference “exemplary damages” is DENIED.

Punitive Damages

In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example by way of punishing the defendant. (Cal. Civ. Code § 3294(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.” (CCP § 3294(c)(1).)

“‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (CCP § 3294(c)(2).)

“‘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 or legal rights or otherwise causing injury.” (CCP § 3294(c)(3).)

“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal. App. 4th 1253, 1255.) Conclusory allegations, devoid of any factual assertions, are insufficient to support a conclusion that parties acted with oppression, fraud or malice. (Smith v. Sup. Ct. (1992) 10 Cal. App. 4th 1033, 1042.)

With respect to striking punitive damages in the second cause of action for “misrepresentations,” the Court GRANTS Defendants’ motion because the Court sustained the demurrer to the second cause of action. However, leave to amend is granted.

Further, with respect to striking the punitive damages request in ¶ 55, Defendants’ motion to strike is granted because that cause of action is for a breach of contract.

With respect to striking punitive damages in the other causes of action, the Court will hear argument. On the one hand, Plaintiff does not explicitly allege the words “malice” or “oppression.” However, on the other hand, when reading the allegations of the Complaint as a whole, it appears as if a jury could potentially find that Defendants’ acts were done with malice or oppression. Defendants’ argument that no facts are alleged appears to be misleading, as the Complaint is based on many alleged facts.

Nonexistent Cases
The replies to the demurrer and motion to strike pointed out that several of the cases do not exist that Plaintiff cited in her oppositions. In fact, the reply to the motion to strike pointed out twenty cases that Plaintiff cited in the opposition to the motion to strike that do not exist.

The Court would like Plaintiff to address how and why Plaintiff is coming up with such an extensive number of citations that do not exist. While the Court could understand how a Plaintiff may accidentally miscite a case or two, or make a minor error within a citation, the Court has grave concerns as to whether Plaintiff fabricated legal citations to mislead the Court.

Not only does Plaintiff cite cases that don’t exist, Plaintiff quotes from cases that do not exist. Just as one example, this can be seen in Plaintiff’s Opposition to the motion to strike on page 10, Plaintiff quotes DiPirro, a case that doesn’t exist, yet somehow quotes DiPirro. The Court fails to see how Plaintiff could be citing such an extensive number of cases that do not exist without a deliberate goal of misleading the Court.

For all the cases that Defendants pointed out in their Reply to the motion to strike that Defendants are arguing do not exist, Plaintiff should be prepared to address where the typo was made in each case. Further, Plaintiff’s counsel should be prepared to address where she is obtaining her quoted items on pages 9-10 of the opposition of the motion to strike.