Judge: Colin Leis, Case: 21STCV47525, Date: 2022-08-05 Tentative Ruling

Case Number: 21STCV47525    Hearing Date: August 5, 2022    Dept: 3

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT 3

MOVING PARTY:                Defendants Ty Labbe and Liza Gonzalez

RESPONDING PARTY:       Plaintiffs Gerald Wachel and Gina Wachel

Defendants’ Demurrer and Motion to Strike Plaintiffs’ First Amended Complaint

The court considered the moving papers and opposition filed in connection with these motions. No reply was filed.

BACKGROUND

            Plaintiffs Gerald Wachel and Gina Wachel filed this action on December 30, 2021 against Defendants Ty Labbe and Liza Gonzalez. The operative First Amended Complaint (“FAC”) was filed on April 1, 2022, and asserts causes of action for (1) malicious prosecution, (2) abuse of process, (3) negligence, (4) intentional infliction of emotional distress, (5) trespass to chattels, (6) defamation, and (7) defamation. This lawsuit arises out of an incident that occurred on or about January 8, 2021, involving Plaintiffs’ pet cat and a dog belonging to Plaintiffs’ neighbor, Ty Labbe. Plaintiffs allege that Mr. Labbe’s dog attacked their cat, and in response, Mr. Wachel grabbed, kicked, and tossed the dog back into Mr. Labbe’s yard. Mr. Labbe filed a false police report with the La Verne Police Department against Mr. Wachel for animal cruelty. Mr. Labbe then took his case directly to the Los Angeles District Attorney’s office, which resulted in the DA’s office filing criminal charges against Plaintiffs on March 12, 2021. The charges were ultimately dismissed on June 22, 2021.

Defendants now demur to the fifth cause of action for trespass to chattels and the seventh cause of action for defamation. Defendants also move to strike portions of paragraph 55 of the FAC which refer to punitive damages.

LEGAL STANDARD

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

A court may strike any “irrelevant, false or improper matter inserted in any pleading” or any part of a 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.) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.) 

DISCUSSION

In support of the fifth cause of action for trespass to chattels, Plaintiffs allege that Defendants intentionally interfered and damaged Plaintiffs’ personal property (their cat) when they allowed their dog to be off leash and unrestricted near the cat. (FAC, ¶¶ 61-62.) Defendants argue that Plaintiffs have failed to allege facts to show intent, which is an element of the tort, and instead have alleged facts that show only negligent conduct. (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1566 [“Trespass to chattel…lies where an intentional interference with the possession of personal property has proximately caused injury.”].) Here, the court finds that the allegation that Defendants allowed their dog to be off leash is insufficient to demonstrate intentional interference with Plaintiffs’ possession of their cat. The demurrer is sustained.

The seventh cause of action for defamation is based on two statements: the first statement is Mr. Labbe’s statement to Plaintiffs’ neighbors that Mr. Wachel had poisoned Mr. Labbe’s dog (FAC, ¶ 76), and the second statement is Mr. Labbe’s police report with the La Verne Police Department that Mr. Wachel had poisoned Mr. Labbe’s dog (FAC, ¶ 78). Defendants contend that the police report is privileged and so cannot state a claim for defamation. But because a demurrer cannot be sustained as to a portion of a cause of action, and because Defendants do not argue that the statement to the neighbors is defective, the court overrules the demurrer. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.)

 Lastly, the court grants the motion to strike the punitive damages allegations set forth in paragraph 55 because a negligence claim cannot support recovery of punitive damages.

CONCLUSION

Based on the foregoing, the court sustains Defendants’ demurrer to the fifth cause of action of the FAC, with leave to amend.  The demurrer to the seventh cause of action is overruled. The court grants Defendants’ motion to strike.

The court orders Plaintiffs to file and serve an amended complaint, if any, within 20 days of the date of this order. If no amended complaint is filed within 20 days, the court orders Defendants to file and serve an answer within 30 days of the date of this order.

Defendants are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  August 5, 2022

_____________________________

Colin Leis

Judge of the Superior Court