Judge Jill Feeney, Case 22STCV27972 2023-02-21 Tentative Ruling

This is an action for trespass to personal property and intentional infliction of emotional distress arising from a dog attack which resulted in the death of Plaintiff’s dog, Brooklyn. Plaintiff Daphne Pierre Bishop filed her Complaint against Defendants Carla and Bruce Lee Crowder on August 29, 2022.

Defendants demur to Plaintiff’s FAC on the grounds that it is uncertain and fails to state facts sufficient to support Plaintiff’s causes of action. Specifically, Defendants argue that Plaintiff added a cause of action for negligence which was not raised in the original Complaint. Defendants also argue that the FAC again fails to state facts showing any intentional interference with Plaintiff’s possession of her dog Brooklyn. Additionally, the lack of any intentional conduct on Defendants’ part also bars Plaintiff’s cause of action for intentional infliction of emotional distress (“IIED”).

Plaintiff in opposition argues Defendants failed to meet and confer prior to filing their demurrer. Plaintiff also argues that the demurrer fails to specify which parts of the FAC were uncertain. Plaintiff also argues that there is nothing precluding her from bringing a new cause of action for negligence. Plaintiff argues that her cause of action for trespass to personal property is adequately pled because the FAC sufficiently establishes that Defendants failed to place their rottweiler in a secured area in their property and intentionally released the dog onto public property. Plaintiff finally argues that the FAC provides facts showing Defendants intentionally released their dog with a history of aggressive behavior on their property, causing her severe emotional distress.

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 plaintiff may amend the complaint only as authorized by the court’s order sustaining the defendant's demurrer with leave to amend. The plaintiff may not amend the complaint to add a new cause of action without having obtained the court’s permission to do so, unless the new cause of action is within the scope of the order granting leave to amend. (Harris v Wachovia Mortgage, FSB (2010) 185 CA4th 1018, 1023, 111 CR3d 20.)

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., section 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. section 436, subd. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

In order to state a prima facie claim for punitive damages, a complaint must set forth the elements as stated in the general punitive damage statute, Civil Code section 3294. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) These statutory elements include allegations that the defendant has been guilty of oppression, fraud or malice. (Civ. Code, section 3294, subd. (a).)

“Malice is defined in the statute as conduct 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.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725 [examining Civ. Code, section 3294, subd. (c)(1)].) “A conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.)

“As amended to include [despicable], the statute plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital, Inc., supra, 8 Cal.4th at p. 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Ibid.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)

“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. [Citations.] In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth. [Citations.] In ruling on a motion to strike, courts do not read allegations in isolation. [Citation.]” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]” (Grieves v. Superior Ct. (1984) 157 Cal.App.3d 159, 166 (footnote omitted).)

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).)

Plaintiff’s FAC states that on August 9, 2022, Plaintiff was walking her dog Brooklyn on a sidewalk to the south of Defendants’ property. (FAC, attachment 10.F, ¶1b.) Defendants’ rottweiler, Simba, unleashed and unsupervised, seized Brooklyn by the throat, clenched Brooklyn in his jaws, and vigorously shook him. (Id., ¶1c.) Plaintiff held Brooklyn’s leash throughout the attack, fearing Simba would run away with Brooklyn or attack her. (Id., ¶1d.) Defendant Bruce Lee Crowder appeared behind Simba, who then dropped Brooklyn. (Id., ¶1e.) Brooklyn fell bleeding onto the sidewalk. (Id., ¶1f.) Plaintiff picked him up and ran home screaming for help. (Id.) Plaintiff sought treatment for Brooklyn’s injuries and ultimately chose to euthanize Brooklyn. (Id., ¶1h.)

Plaintiff’s FAC now states that Defendants claimed workers had left their fence gate open and that Bruce Lee Crowder let Simba out of the house without making sure the back fence gate was closed. (Id., ¶4.) The FAC also states that the incident in dispute was at least the third time in two years that Simba had attacked other dogs while unleashed and unsupervised. (Id., ¶8.) Defendants knew about Simba’s aggression and made no efforts to prevent another attack. (Id.) Several neighbors have complained about Simba’s aggression. (Id., ¶¶8c, 8g, 8h.) Simba has repeatedly escaped from Defendants’ property because Defendants neglected to ensure their property was secure. (Id., ¶8d.) In August 2021, a neighbor’s dog was attacked by Defendants’ German Shepherd. (Id., ¶8e.) On another occasion, Simba attacked an unknown dog outside of Defendants’ home. (Id., ¶8f.)

Plaintiff now pursues a new cause of action for negligence. Plaintiff did not seek leave of court to pursue this new cause of action. Accordingly, Defendants’ demurrer is sustained as to this cause of action with leave to amend.

“[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.)

Here, the FAC fails to state any facts as to Defendants’ conduct that would constitute an intentional interference with Plaintiff’s possession of Brooklyn. The FAC states that workers left Defendants’ back gate open and that Bruce Lee Crowder then let Simba out of the house without ensuring the gate was closed. These facts do not show that Defendants intentionally interfered with Plaintiff’s possession of Brooklyn. Plaintiff argues that Defendants intentionally engaged in conduct that interfered with Plaintiff’s possession of Brooklyn. However, the requirement for trespass to chattels is that a defendant act with the intent to dispossess another of the chattel. Here, the FAC fails to allege any facts that show Defendants acted with the intent to dispossess Plaintiff of Brooklyn.

Defendants’ demurrer is sustained as to the cause of action for trespass to personal property. Because this is the second demurrer and Plaintiff has not suggested a course of action for curing this defect on the third try, the demurrer is sustained without leave to amend.

The elements for a cause of action for intentional infliction of emotional distress are (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’s suffering severe or extreme emotional distress; and (3) an actual and proximate causal link between the tortious conduct and the emotional distress. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)

“A defendant’s conduct is outrageous when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Jackson v. Mayweather (2017) 10 Cal.App.5th 234, 257 (internal citations and quotations omitted).) “Mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not constitute extreme and outrageous conduct.” (Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 597 (internal citations and quotations omitted).) Rather, the requirements for satisfying the element of extreme and outrageous conduct are rigorous and difficult to satisfy. (Okorie, supra, 14 Cal.App.5th at 597.) “On the spectrum of offensive conduct, outrageous conduct is that which is the most extremely offensive.” (Id. (quoting Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1129).) “Depending on the idiosyncrasies of the plaintiff, offensive conduct which falls along the remainder of the spectrum may be irritating, insulting or even distressing but it is not actionable and must simply be endured without resort to legal redress.” (Ibid.)

Here, the FAC fails to allege that Defendants engaged in extreme and outrageous conduct. The FAC alleges facts that Defendants knew of Simba’s aggression, knew of previous attacks and other incidents, knew that Simba had repeatedly escaped their property, and that neighbors had complained of Simba’s aggression in the past. Defendants ignored neighbors’ complaints and failed to secure Simba. The FAC sufficiently alleges facts showing a reckless disregard of the probability of causing emotional distress because they knew that Simba had attacked other dogs and failed to secure Simba. However, the FAC also states that on this occasion workers left Defendants’ back gate open and Bruce Lee Crowder let Simba out of the house without ensuring the back gate was closed. Merely letting Simba out of the house does not constitute extreme and outrageous conduct that rises to the level of extremely offensive conduct. Plaintiff does not allege that in this particular instance Defendants intentionally failed to secure Simba properly.

Defendants’ demurrer is sustained as to the cause of action for IIED. Because this is the second demurrer and Plaintiff has not suggested a course of action for curing this defect on the third try, the demurrer is sustained without leave to amend.