Judge: Bruce G. Iwasaki, Case: 22STCV07539, Date: 2022-10-06 Tentative Ruling

Case Number: 22STCV07539    Hearing Date: October 6, 2022    Dept: 58

Judge Bruce G. Iwasaki

Department 58

Hearing Date:             October 6, 2022

Case Name:                 Diana Frieling v. Greater Los Angeles Zoo Association

Case No.:                    22STCV07539

Motion:                       Demurrer and motion to strike

Moving Party:             Defendant Greater Los Angeles Zoo Association

Opposing Party:          Plaintiff Diana Frieling

Background

            This is an action involving the rental of reindeer.  Diana Frieling (Plaintiff or Frieling) filed a First Amended Complaint against the Greater Los Angeles Zoo Association (Defendant or Zoo) for breach of contract, negligence, “intentional negligent tort,” and slander.

            Frieling states that she entered into a contract with the Zoo, in which she would provide four reindeer for the 2018 holiday season. She alleges that one reindeer died while allegedly in the Zoo’s custody.  Frieling avers that the Zoo was required to provide “liability insurance” and that this should cover her loss of the reindeer.

            The Zoo demurs to all causes of action for insufficient facts and moves to strike various paragraphs in the Complaint as to exemplary damages and attorney’s fees.  Plaintiff opposed the demurrer but did not separately oppose the motion to strike.  Defendant did not file a Reply.

            Counsel’s declaration satisfies the meet-and-confer requirement.  (Pole Decl., ¶ 4.)  The request for judicial notice is granted as to the original Complaint.  (Evid. Code, § 452, subd. (d).)

Legal Standard

            A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice.  (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.”  (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.)  “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.”  (Code Civ. Proc., § 452.)  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.) 

Discussion

The breach of contract cause of action fails because liability insurance does not cover Plaintiff’s loss.

            Defendant argues that no breach was alleged because the contract provided for liability insurance to third-party claims, not Plaintiff. 

            A breach of contract cause of action requires allegations of: (1) a contract between the parties; (2) plaintiff's performance or excuse for nonperformance; (3) defendant's breach; and (4) damages to plaintiff from the breach. (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.)

            “‘[W]here an ambiguous contract is the basis of an action, it is proper, if not essential, for a plaintiff to allege its own construction of the agreement. So long as the pleading does not place a clearly erroneous construction upon the provisions of the contract, in passing upon the sufficiency of the complaint, we must accept as correct plaintiff's allegations as to the meaning of the agreement.’” (Aragon-Haas v. Family Security Insurance Services, Inc. (1991) 231 Cal.App.3d 232, 239.)

            Plaintiff attached a copy of the contract to the Complaint, although it appears incomplete because there are no signatures.  As relevant, under section 2, “Scope of Services,” the contract states that the Zoo agrees to provide:

            Liability insurance coverage with respect to the Reindeer while they are on Zoo grounds during the Term of this Agreement, and to name Windswept Ranch as an additional insured for the Term.  (Complaint, Ex. A, ¶ 2.)

            Plaintiff’s opposition argues there was “no clarification of the type of liability insurance” and that the contra proferentem rule should be applied against Defendant.  She is mistaken.

            The plain language of the contract is to “govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.” (Civ. Code, §1638.)

            “Liability insurance” is defined as “An agreement to cover a loss resulting from the insured’s liability to a third party, such as a loss incurred by a driver who injures a pedestrian, and usu. to defend the insured or to pay for a defense regardless of whether the insured is ultimately found liable.”  (Black’s Law Dictionary (11th Ed. 2019), italics added; see also Ins. Code, §108 [defining what liability insurance includes].)

            Here, the contract requires that the zoo obtain liability insurance “and to name Windswept Ranch as an additional insured for the Term.”  (Complaint, Ex. A, ¶ 2.)  In that sense, the insurance was meant to cover any injuries caused by the reindeer, not to the reindeer.  The reasonable expectations of the parties could not have meant that the Zoo would indemnify Plaintiffs’ general loss of reindeer.  While Plaintiff subjectively misinterpreted the meaning of liability insurance, this does not create an ambiguity.  (Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 21 [“The precise meaning of any contract . . . depends upon the parties’ expressed intent, using an objective standard”].)

            Accordingly, the Court sustains the demurrer to the first cause of action.

Second Cause of Action – Negligence

            Defendant argues that the negligence claim is barred by the statute of limitations and the economic loss rule.

            The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff.  (County of Santa Clara v. Atlantic Richfield Co.¿(2006) 137 Cal.App.4th 292, 318.)

            Plaintiff’s negligence claim depends on the breach of contract.  She alleges that Defendant Zoo “owed a duty to Plaintiff to fully perform on the Agreement” and that by failing to provide insurance claim forms, Defendant breached that duty.  (Complaint, ¶¶ 17-18.)  As discussed, there was no breach because the insurance unambiguously did not cover Plaintiff’s loss.  Since there was no breach of the contract, it follows that the Zoo did not breach its duty and there can be no negligence.  The demurrer is sustained on this ground.

            Furthermore, the negligence claim is time-barred.  Plaintiff’s original Complaint avers that the negligence claim arose on May 31, 2019.  However, her First Amended Complaint does not indicate when the negligence claim arose but mentions that a “final demand for performance was sent to the Defendant on March 4, 2021.” 

            “The limitations period for a cause of action for ordinary negligence is two years.” (So v. Shin (2013) 212 Cal.App.4th 652, 662; Civ. Code, § 335.1.)

            “Generally, after an amended pleading has been filed, courts will disregard the original pleading.  (Kenworthy v. Brown (1967) 248 Cal.App.2d 298, 302.)  However, there is an exception if an amended complaint “attempts to avoid defects set forth in a prior complaint by ignoring them.”  (Ibid.) In those cases, the court may examine the prior complaint to ascertain whether the amended complaint is merely a sham and read into the amended complaint the allegations of the superseded complaint. (Ibid.)

            The cause of action for negligence accrues and the statute of limitations begins upon occurrence of the last act necessary to complete the cause of action. (Code Civ. Proc., § 312; see generally Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806-809.)

            While the original Complaint fails to indicate why May 31, 2019 is the operative date for statute of limitations purposes, a review of the First Amended Complaint and contract provide context.  The contract term was for a rental period between November 13, 2018 through January 7, 2019.  The reindeer died on December 3, 2018.  “Over the next several months, Plaintiff requested insurance claim forms in writing 8 times.”  (Complaint, ¶ 8.)  The final letter by the Zoo’s general counsel rejecting Plaintiff’s request was on February 25, 2020.  (Id. at ¶ 9.)  Therefore, it appears that May 31, 2019 was a reasonable date for Plaintiff to realize the Zoo was unwilling to cover her loss.  The Court takes judicial notice of that date as alleged in her original Complaint.  Even if this date is incorrect, Plaintiff should have recognized that her claim accrued on February 25, 2020, upon the final letter by the Zoo’s general counsel.  Yet, she filed her Complaint March 2, 2022, more than two years later.  Under any interpretation, the negligence claim fails as untimely.

            As the demurrer is sustained on these two grounds, the court declines to address the economic loss rule.  (People v. Contreras (2018) 4 Cal.5th 349, 381 [“ ‘a cardinal principle of judicial restraint–if it is not necessary to decide more, it is necessary not to decide more’ ”].)

Third Cause of Action – Intentional Negligent Tort

            Plaintiff’s third cause of action is uncertain.  A demurrer for uncertainty will be sustained only where the complaint is so deficient that the defendant cannot reasonably respond. (See Code Civ. Proc., § 430.10, subd. (f) [“‘uncertain’ includes ambiguous and unintelligible.”) 

            This cause of action is duplicative of negligence.  Plaintiff adds in a separate paragraph that Defendant’s “communication stating false facts shows a pattern of malice . . . [and that] Defendant intentionally acted on information they knew or should have known to be false.”  It is unclear what theory of intentional tort she may be suing under.  If she is seeking some sort of fraud liability, the facts must be more specific.  Plaintiff’s opposition fails to address this uncertainty, so the demurrer is sustained as to the third cause of action.    

Fourth Cause of Action – Slander

            Defendant again argues that the statute of limitations applies to bar the slander claim.

            A cause of action for slander must be filed within one year. (Code Civ. Proc., § 340, subd. (c).)  In her original Complaint, Plaintiff avers that her slander claim accrued on February 25, 2020.  This was the date in which she received the Zoo’s final letter on her claims.  The Court reincorporates its analysis above that this claim is also time-barred.

            Plaintiff attempts to argue that the slander claim did not arise until December 2021, when she first became aware that the Zoo had told its employees that Plaintiff provided a sick animal.  If Plaintiff is arguing that the discovery rule applies, then she must “‘specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.’”  (Fox v. Ethicon Endo-Surgery, Inc., supra, 35 Cal.4th at p. 808.)  The burden is on Plaintiff.  (Ibid.)

            In her original Complaint, Plaintiff stated that she was aware the Zoo had informed its employees.  She avers that she “discovered these false statements had been put out for general knowledge to the Zoo staff.”  (Original Complaint, p. 6.)  The Complaint pleads “February 25, 2020” as the date of accrual and Plaintiff alleged both slander and libel.  In the subsequent First Amended Complaint, Plaintiff now states that a former employee of Defendant informed Plaintiff on “December 2022 [sic]” but does not provide any details on who the employee was, why they informed Plaintiff, and why she did not contact Plaintiff earlier.  Therefore, Plaintiff has not met her burden to show delayed discovery.

            The claim for slander is also insufficiently pled.  The elements of defamation are an intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage. (Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1179.)  For slander, the communication is oral and made to “some third person who understands both the defamatory meaning of the statement and its application to the person to whom reference is made.”  (Ibid.)

            Here, Plaintiff does not set forth what specific defamatory statement was made other than that, allegedly, “Defendant had informed staff at the zoo that Plaintiff had delivered a sick animal to the zoo.”  Even if false, this is not defamatory. Moreover, Plaintiff does not identify specifically either who supposedly made such a statement or to whom.  Her allegations are too vague.  (Hecimovich v. Encinal School Parent Teach Organization (2012) 203 Cal.App.4th 450, 470-471.) While Defendant only argues that the slander cause of action is time barred, it appears that Plaintiff has not alleged a defamatory statement, or alleged that Defendant uttered the statement to third parties, i.e., beyond its own staff.  Apart from being asserted too late, the slander cause of action also fails for those reasons.

Whether leave to amend should be granted.

            After a court sustains a demurrer, the burden is on the plaintiff to show how the complaint can be amended and the legal effect of the amendment on the pleading.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) 

            Plaintiff does not argue how her pleading may be cured by amendment.  Because she has not shown a reasonable possibility to cure the defects, the demurrer is sustained without leave to amend.  (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)

Motion to Strike

            Given that the demurrer is sustained in its entirety, the motion to strike is granted.  The Court strikes Paragraph 27, line 5 and Paragraph D as to “exemplary and punitive damages.”  The Court also strikes Paragraph F for attorney’s fees because Plaintiff does not identify the statute entitling her to such fees nor is there such a provision in the contract.  (Code Civ. Proc., § 1717, subd. (a).)

            Plaintiff’s  First Amended Complaint is dismissed.