Judge Jill Feeney, Case 22STCV27127 2023-03-15 Tentative Ruling

This is an action for strict liability and negligence arising from a dog attack which took place in August 2020. Plaintiff Ruby Won filed her Complaint against Theona Taat Zhordania, Mojtaba Taat, and Maryam Taat on August 19, 2022.

Plaintiff demurs to Defendant’s FACC on the grounds that it fails to allege the existence of a legal duty of care. Defendant did not witness the events that took place on the day of the incident. There are no facts to show the existence of any special relationship between Defendant and Plaintiff. Plaintiff also argues that Defendant’s cause of action for trespass to chattels fails because she was not home on the date of the incident and Plaintiff had consent to interact with Defendant’s dog.

Defendant argues that the FACC adequately pleads a cause of action for negligence because Plaintiff had a duty to refrain from engaging in behavior that could foreseeably result in damage to Defendant’s dog. Defendant also argues that Plaintiff only focuses on one aspect of her claimed damages. Defendant also argues that the FACC adequately pleads a cause of action for trespass to chattels because her dog was damaged as a result of Plaintiff’s conduct.

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.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) As is relevant here, a party may object to a pleading through a demurrer arguing “the pleading does not state facts sufficient to constitute a cause of action.” (CCP § 430.10(e).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) 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, even as against a special demurrer, 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.)

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(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(a)(2).) A failure to meet and confer does not constitute grounds to sustain or overrule a demurrer. (See Code Civ. Proc., §§ 430.41 (a)(4).)

Here, Plaintiff met and conferred with Defendant via mail. (Park Decl., ¶¶3-7.) Although the parties were required to meet and confer in person or via telephone, failure to meet and confer is not a basis for sustaining or denying a demurrer.

Plaintiff demurs to Defendant’s FACC on the grounds that (1) the FACC fails to allege a legal duty sufficient to support a cause of action for negligence and (2) the FACC fails to state facts sufficient to support a cause of action for trespass to chattels.

“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917, internal quotations omitted.) “The first element, duty, may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128, internal quotations omitted.) “[T]he existence of a duty is a question of law for the court.” (Ky. Fried Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 819.) “Breach is the failure to meet the standard of care.” (Coyle v. Historic Mission Inn Corp. (2018) 24 Cal.App.5th 627, 643.) “The element of causation requires there to be a connection between the defendant’s breach and the plaintiff’s injury.” (Id. p. 645.)

Pets are considered property of their owners. (Kimes v. Grosser (2011) 195 Cal.App.4th 1556, 1559.) Recovery for emotional distress caused by injury to property is only permitted where there is a preexisting relationship between the parties or an intentional tort. (Lubner v. City of Los Angeles (1996) 45 Cal.App.4th 525, 532 (citing Cooper v. Superior Court (1984) 153 Cal.App.3d 1008, 1012.)

Defendant does not dispute Plaintiff’s argument and instead argues that Defendant’s emotional injuries are only one element of her damages sustained as a result of Plaintiff’s negligence. This because Defendant alleges economic damages as a result of Remy’s alleged mistreatment by Plaintiff.

The FACC states that on August 24, 2020, Plaintiff entered Defendant’s home to “party” with Defendant’s daughter while Defendant was not on the premises. (FACC, ¶6.) Plaintiff teased and taunted Defendant’s dog, Remy, by tapping his nose, slapping his face, interfering with him while he was eating, teasing him with cheese, and engaging in other acts to annoy and aggravate Remy. (Id., ¶7.) Remy then lightly scraped her face with his teeth while Plaintiff had her face in his face. (Id., ¶8.) As a result of the incident, Defendant alleges she suffered emotional damages, including anxiety, depression, and stress. (Id., ¶10.) Additionally, Remy suffered changes in behavior and personality that required muzzle training, behavioral training, and treatment from canine psychologists. (Id., ¶16.)

“To recover damages for injury to [name of plaintiff]’s pet, [he/she/nonbinary pronoun] must prove the reasonable costs that [he/she/nonbinary pronoun] incurred for the care and treatment of the pet because of [name of defendant]’s conduct.”

The Courts have awarded damages for the cost of the care and treatment incurred by pet owners as a result of tortious injuries. (Kimes v. Grosser (2011) 195 Cal.App.4th 1556, 1561–1562 (may recover costs of medical care for cat that was shot); Martinez v. Robledo (2012) 210 Cal.App.4th 384, 390.) Although the damages suffered in these cases were medical care for physical injuries, neither party has cited to any case addressing the issue of the costs of care for alleged psychological injuries suffered by a pet. For this reason, the Court declines to grant the demurrer. The CACI instruction for injury to pets appears broad enough to cover care and treatment to include training and psychological treatment.

“[T]respass¿to chattels ‘lies where an intentional interference with the possession of personal property has proximately caused injury.’” (Intel Corp. v.¿Hamidi¿(2003) 30 Cal.4th 1342, 1350-51 (quoting¿Thrifty-Tel, Inc. v.¿Bezenek¿(1996) 46 Cal.App.4th 1559, 1566).) “A trespass to a chattel may be committed by intentionally dispossessing another of the chattel, or using or intermeddling with a chattel in the possession of another.” (Jamgotchian¿v. Slender¿(2009) 170 Cal.App.4th 1384, 1401.)

“Where the conduct complained of does not amount to a substantial interference with possession or the right thereto, but consists of intermeddling with or use of or damages to the personal property, the owner has a cause of action for trespass or case, and may recover only the actual damages suffered by reason of the impairment of the property or the loss of its use.” (Zaslow v. Kroenert (1946) 29 Cal.2d 541, 551.)

Economic and emotional distress damages may be recovered for trespass to chattels involving a pets. (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1608 (economic and emotional distress damages may be recovered where defendant intentionally struck plaintiff’s dog with a bat. ) “The limits imposed with respect to recovery for emotional distress caused by a defendant’s negligence do not apply when distress is the result of a defendant’s commission of the distinct torts of trespass, nuisance, or conversion.” (Id. at p. 1607 (quoting Gonzales v. Personal Storage, Inc. (1997) 56 Cal.App.4th 464, 475.)

Here, the FACC alleges that Plaintiff teased and aggravated Remy by tapping him on the nose, slapping his face, and teasing him with cheese despite being told not to bother Remy. (FACC, ¶20.) As a result of the teasing, Remy snapped at Plaintiff and scraped her face with his teeth while she had her face in his face. (Id., ¶22.) As a result of the incident, Defendant is fearful of having Remy in the presence of others and is scared to invite visitors to her home. (Id., ¶24.) Defendant suffers from anxiety, depression, and stress. (Id., ¶25.) Moreover, Defendant has incurred economic damages as a result of having to pay for retraining and other treatments for the dog. ((Id., ¶26.)