Judge Lynette Gridiron Winston, Case Number: 22PSCV00515, Date: 2023-09-25 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 22PSCV00515, Date: 2023-09-25 Tentative Ruling

Case Number: 22PSCV00515 Hearing Date: September 25, 2023 Dept: 6

Case Name: Allyn Nguyen v. Petsmart LLC, et al.

TENTATIVE RULING

The Court SUSTAINS the demurrer as to Defendants Lucaro and Le with respect to the Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Eleventh Causes of Action, without leave to amend. The Court also SUSTAINS the demurrer as to the Tenth and Twelfth Causes of Action without leave to amend. The Court OVERRULES the demurrer as to all other causes of action.

The Court DENIES Defendants’ motion to strike as to request nos. 1-4 on the merits and DENIES the motion to strike as to request nos. 5-7 as moot given that the Court sustained the Demurrer to the Eighth cause of action – Count Two, Tenth cause of action and Twelfth cause of action without leave to amend.

The Court GRANTS the motion to compel further responses to Request Numbers 1 and 2. The request for monetary sanctions is GRANTED in the reduced amount of $1,650.00, to be paid within 20 days of this order.

Defendants are ordered to give notice and provide proof of service of same within five calendar days of the Court’s order.

BACKGROUND

This is a negligence case. On May 31, 2022, Plaintiff Allyn Nguyen (Plaintiff) filed this action. On July 12, 2022, Plaintiff filed the First Amended Complaint. On November 9, 2022, the Court sustained Defendants’ demurrer with leave to amend. On January 20, 2023, Plaintiff filed a Second Amended Complaint (SAC) against Defendants Petsmart, LLC (PetSmart), Cynthia Lucaro (Lucaro), and Brian Le (Le) (collectively, Defendants), alleging causes of action for violation of Civ. Code § 1750 et seq. (CLRA), violation of Bus. & Prof. Code § 17500 et seq. (FAL), violation of Bus. & Prof. Code § 17200, et seq. (UCL), breach of contract, breach of implied covenant of good faith and fair dealing, breach of implied duty to perform with reasonable care, negligent misrepresentation, fraudulent concealment, breach of bailment, conversion, negligence, and intentional infliction of emotional distress.

On February 22, 2023, Defendants filed a demurrer and motion to strike to the SAC. On March 17, 2023, Plaintiff opposed the demurrer and motion to strike. On September 15, 2023, Defendants replied.

On January 26, 2023, Plaintiff filed a motion to compel Defendant Petsmart, LLC to provide further responses to Request for Production of Documents, Set One, and to produce all responsive documents, along with a request for monetary sanctions in the amount of $3,105.00. On March 9, 2023, Petsmart opposed the motion. On March 15, 2023, Plaintiff replied.

LEGAL STANDARD - Demurrer

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Donabedian, supra, 116 Cal.App.4th at p. 994.)

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; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”])

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

REQUESTS FOR JUDICIAL NOTICE

The Court GRANTS Defendants’ requests for judicial notice as to Exhibits B and B1, E1, E2, and E3. (Evid. Code § 452, subds. (c), (d).) However, the Court takes judicial notice of the foregoing documents only as to “the existence, content and authenticity of public records and other specified documents”; it does not take judicial notice of the truth of the factual matters asserted in those documents. (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 400.)

The Court DENIES the remainder of Defendants’ requests for judicial notice, as they are not court-filed copies of records subject to judicial notice. The Court can review the pleadings contained in the Court’s records. Additionally, even if the Court did take judicial notice of these other documents, it would only be as to their existence, content, and authenticity, not the truth of the facts asserted therein. (Id.)

DISCUSSION – Demurrer

Meet and Confer

Per Code of Civil Procedure section 430.41, subdivision (a), Defendants were required to meet and confer before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The Court finds Defendants’ efforts to meet and confer sufficient. (Baldwin Decl., ¶ 4.)

Analysis

Defendants demur to all 12 causes of action in the SAC on the grounds that each fails to state sufficient facts. (Code Civ. Proc., § 430.10, subd. (e).)

First Cause of Action for Violation Civ. Code § 1750 (CLRA)

A cause of action under the Consumer Legal Remedies Act (CLRA) “must be stated with reasonable particularity, which is a more lenient pleading standard than is applied to common law fraud claims.” (Gutierrez v. Carmax Auto Superstore California (2018) 19 Cal.App.5th 1234, 1261.) The CLRA protects individuals engaging in consumer transactions. It prohibits “unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer.” (Civ. Code, § 1770, subd. (a).) It sets forth twenty-seven (27) different “unfair or deceptive acts or practices” that may constitute a violation of the Act. (Ibid.) In assessing whether the representations made in the course of the consumer transaction violate the CLRA, courts use the reasonable consumer standard—i.e., whether a reasonable consumer would be misled by the representation. (Consumer Advocates v. Echostar Satellite Corp. (2003) 113 Cal.App.4th 1351, 1360.) To the extent an alleged violation is based on the defendant’s omission of a material fact, “to be actionable the omission must be contrary to a representation actually made by the defendant, or an omission of a fact the defendant was obliged to disclose.” (Daugherty v. American Honda Motor Co., Inc. (2006) 144 Cal.App.4th 824, 835.)

Defendants contend Plaintiff’s CLRA claim in the SAC fails for the following reasons: (1) the statements at issue constitute puffery, which is not actionable; (2) the parol evidence rule bars Plaintiff from submitting evidence of statements made on Petsmart’s website since the PetsHotel and Doggie Day Camp Services Agreement (the “Services Agreement”) contains an integration clause, (SAC, Exs. 1 & 2, ¶ 15); and (3) the Services Agreement plus Petsmart’s website provided warnings to Plaintiff of potential illnesses to her pets. The Court finds these contentions unpersuasive.

First, “a statement that is quantifiable, that makes a claim as to the ‘specific or absolute characteristics of a product,’ may be an actionable statement of fact while a general, subjective claim about a product is non-actionable¿puffery. [Citation.]” (Demetriades v. Yelp, Inc. (2014) 228 Cal.App.4th 294, 311, quoting Newcal Industries, Inc. v. Ikon Office¿Solution¿(9th Cir. 2008) 513 F.3d 1038, 1053.) Plaintiff has alleged facts demonstrating that Petsmart made specific statements regarding its services for pets in this matter, namely that Petsmart offered “around-the-clock care” and “24/7 supervised care by trained professional associates.” (SAC, ¶ 22.) As alleged, these are actionable statements of fact, and not puffery.

Second, the parol evidence rule does not bar evidence of misrepresentations for purposes of a cause of action under the CLRA. “To permit the bar or defense of the parol evidence rule under the instant facts is to deem the Legislature to have engaged in an absurd task: the Legislature would have made a practice unlawful but would have precluded a plaintiff from ever establishing it by application of the parol evidence rule. Further, permitting a parol evidence bar or defense under the instant circumstances would be tantamount to construing the written contract as constituting essentially a waiver of the protections of the act, which waiver is contrary to public policy.” (Wang v. Massey Chevrolet (2002) 97 Cal.App.4th 856, 870.) Thus, Petsmart’s argument here is unavailing.

Finally, as for having purportedly warned Plaintiff, the Court agrees with Plaintiff that the warnings of potential illnesses mentioned in the Services Agreement alleged in the SAC does not necessarily absolve Petsmart of the alleged misrepresentations made on its website. Plaintiff’s claim is based on Petsmart’s alleged misrepresentations regarding “around-the-clock care” and “24/7 supervised care by trained professional associates” as having been the reason she selected Petsmart for placing her dogs with them while she went on vacation. (SAC, ¶¶ 22-26.) Petsmart allegedly did not provide this round-the-clock care and service, as evidenced by one of the dogs being found dead during its stay with Petsmart, along with the other two dogs getting sick. (SAC, ¶¶ 28-48.) Plaintiff is not alleging she was not warned, she is alleging that Petsmart misled her into leaving her dogs with them because of a service they claimed to provide which if performed as promised could have saved one dog’s life and helped mitigate the sicknesses the other two dogs contracted. (Id.)

Therefore, the Court OVERRULES the demurrer as to the First cause of action.

Second Cause of Action for Violation of False Adverting Law (FAL), Bus. & Prof. Code §17500

Section 17500 provides that it is unlawful for a person or corporation to disseminate false or misleading advertisements. (Bus. & Prof. Code, § 17500.) To establish a false advertising cause of action under section 17500, Plaintiff must plead facts demonstrating that the advertisement was likely to deceive or mislead consumers. (See Brockey v. Moore (2003) 107 Cal.App.4th 86, 98-99.)

Petsmart contends the SAC fails to specifically allege how members of the public are likely to be deceived. Petsmart also reiterates the arguments of the warning language in the Services Agreement and the parol evidence rule from above. Petsmart further argues there is a liability limitation provision in the Services Agreement. The Court finds these arguments unpersuasive.

First, the SAC clearly alleges how members of the public are likely to be deceived by alleging, among other things, that members of the general public, like Plaintiff, would be inclined to believe that Petsmart provides supervises care all day and night since the website represents that it provides “around-the-clock care” and “24/7 supervised care by trained professional associates”. (SAC, ¶¶ 69, 72.) As noted above, Plaintiff alleges she relied on these representations in selecting Petsmart for placing her dogs during her vacation. (SAC, ¶¶ 22-26, 66.) She then alleges that she learned about these representations not being true when one of her dogs was found dead the following morning. (SAC, ¶¶ 29, 73.) Plaintiff also alleges that Petsmart promised 24/7 supervised care knowing that they did not actually provide such care. (SAC, ¶ 74.) The Court finds these allegations sufficient to state a FAL claim.

Second, as noted above, the warning language in the Services Agreement does not necessarily absolve Petsmart of the alleged misrepresentations here because the problem was the alleged lack of 24/7 services as advertised, not necessarily that her dog might get sick. Plaintiff alleges she wanted the 24/7 services to, among other things, address what happens if her dogs did get sick. (SAC, ¶ 74.)

Third, the parol evidence rule again does not necessarily bar Plaintiff’s allegations regarding the statements made on Petsmart’s website for the same reasons set forth in Wang, namely that it would violate public policy. (Cf. Wang, supra, 97 Cal.App.4th at p. 870 [parol evidence rule does not bar misrepresentative statements that are actionable under different statute because to do so would effectively permit a waiver of the protections provided by statute in violation of public policy]. To permit otherwise would unduly inhibit Plaintiff’s ability to allege an FAL claim, which is a statutorily created right and separate from a general fraud claim in connection with a contract. (See Id., at pp. 869-870.)

Finally, the Court agrees with Plaintiff that the Services Agreement does not necessarily permit Petsmart to neglect Plaintiff’s dogs without liability. (Opp., 10:15-16.) Although not expressly addressed by the parties in their respective briefs, Civil Code section 1668 provides that, “[a]ll contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.” (Civ. Code § 1668.) Frankly, it is also unclear how the liability limitation from the Services Agreement, (SAC, ¶¶ 24-26; Id., Exs. 1 & 2, ¶ 10), would absolve Petsmart of representations made before the parties entered into the Services Agreement for purposes of an FAL claim. Thus, the limited liability provision in the Services Agreement does not shield Petsmart from liability against Plaintiff’s FAL claim.

Therefore, the Court OVERRULES the demurrer as to the Second cause of action.

Third Cause of Action for Violation of Unfair Competition Law (UCL)

California Business and Professions Code section 17200 prohibits “any unlawful, unfair or fraudulent business act or practice.” (Bus. & Prof. Code § 17200; see Clark v. Superior Court (2010) 50 Cal.4th 605, 610.) “An unlawful business practice or act is an act or practice, committed pursuant to business activity, that is at the same time forbidden by law.” (Klein v. Earth Elements, Inc. (1997) 59 Cal.App.4th 965, 969.) As for fraud, to establish a fraudulent practice under the UCL, the plaintiff must show that members of the public are likely to be deceived. (See West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 806.) Lastly, “[a] business practice is unfair within the meaning of the UCL if it violates established public policy or if it is immoral, unethical, oppressive or unscrupulous and causes injury to consumers which outweighs its benefits.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1473.)

Petsmart’s arguments with respect to Plaintiff’s UCL claim are the same as those with respect to CLRA and FAL, which have been addressed above. Accordingly, the demurrer is OVERRULED as to the Third cause of action.

Fourth Cause of Action for Breach of Written, Oral, and Implied Contract

“A cause of action for breach of contract requires pleading of a contract, plaintiff's performance or excuse for failure to perform, defendant's breach and damage to plaintiff resulting therefrom. (4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 476, p. 570.) 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.)” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.)

Count One as to Defendant Petsmart

Petsmart contends again that the Services Agreement warned Plaintiff of the potential health risks to Plaintiff’s dogs in this matter and that the parol evidence rule bars any evidence of the statements Petsmart made on its website since the Services Agreement contains an integration clause.

The Court does agree with Petsmart that the parol evidence rule does prohibit admission of any terms that vary or contradict the terms of the written agreement. Riverisland Cold Storage, Inc. v. Fresno–Madera Production Credit Assn. (2013) 55 Cal.4th 1169, provides as follows:

Although the parol evidence rule results in the exclusion of evidence, it is not a rule of evidence but one of substantive law…. It is founded on the principle that when the parties put all the terms of their agreement in writing, the writing itself becomes the agreement. The written terms supersede statements made during the negotiations. Extrinsic evidence of the agreement's terms is thus irrelevant, and cannot be relied upon…. “[T]he parol evidence rule, unlike the statute of frauds, does not merely serve an evidentiary purpose; it determines the enforceable and incontrovertible terms of an integrated written agreement.” [Citation]. The purpose of the rule is to ensure that the parties' final understanding, deliberately expressed in writing, is not subject to change….

(Riverisland Cold Storage, Inc. v. Fresno-Madera Prod. Credit Assn. (2013) 55 Cal.4th 1169, 1174-1175) [italics in original] [internal citations omitted].

Thus, Petsmart is correct that Plaintiff may not cite to the statements made on Petsmart’s webpage regarding round-the-clock care and 24/7 services to the extent they would add terms that are not expressly contained in the Services Agreement. However, the parol evidence rule does not save Petsmart from Plaintiff’s breach of contract claim at this stage of the litigation because the express terms of the Services Agreement are also at issue here.

The Services Agreement, attached as Exhibit 1 to the SAC, provides that, “PetSmart will exercise reasonable judgment on the suitability of Services we provide to your Pet based on commercially reasonable standards and the information you disclose to us.” (SAC, Exs. 1 & 2, ¶ 1) [italics added]. Plaintiff alleges Petsmart failed to perform services under the Services Agreement, did not exercise reasonable judgment, failed to provide timely relevant information, and failed to act in accordance with industry standards. (SAC, ¶¶ 101, 103.) The Court finds these allegations to be sufficient to support a cause of action for breach of contract.

Moreover, even if the Services Agreement gave notice to Plaintiff about potential illnesses her dogs might contract while boarding with Petsmart, the Court agrees with Plaintiff that such notice does not necessarily mean Petsmart exercised reasonable judgment when boarding Plaintiff’s dogs. Whether Petsmart exercised reasonable judgment is a factual dispute beyond the scope of a demurrer. (See CrossTalk Prods., Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 635 [“Nor is a demurrer the appropriate procedure for determining the truth of disputed facts or what inferences should be drawn where competing inferences are possible.”] [internal citation omitted].)

With respect to the warning language in the Services Agreement, the Court finds that such language does not, as a matter of law, negate the elements of a claim for breach of contract for purposes of a demurrer. Defendants are free to raise any warning language or release as a defense to this claim.

Therefore, the Court OVERRULES the demurrer as to the Fourth cause of action – Count One.

Count Two as to Defendants Lucaro and Le

With respect to the breach of oral and implied contract claim against Defendants Lucaro and Le, the Court finds that Plaintiff has not alleged sufficient facts to state a cause of action for breach of contract against Defendants Lucaro and Le. Plaintiff fails to allege sufficient facts demonstrating the existence of a specific oral agreement between Plaintiff and both Defendants Lucaro and Le.

Therefore, the Court SUSTAINS the demurrer as to the Fourth cause of action – Count Two without leave to amend. The Court will hear argument on whether leave to amend should be granted.

Fifth Cause of Action for Breach of Implied Covenant of Good Faith and Fair Dealing

To plead a cause of action for breach of the implied covenant of good faith and fair dealing, the plaintiff must allege, “the existence of a contractual relationship between the parties, since the covenant is an implied term in the contract.” (Smith v. City & Cnty. of San Francisco (1990) 225 Cal.App.3d 38, 49) [internal citations omitted]; see also Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395 [“allegations which assert such a claim must show that the conduct of the defendant… demonstrates a failure or refusal to discharge contractual responsibilities, prompted … by a conscious and deliberate act, which unfairly frustrates the agreed common purposes and disappoints the reasonable expectations of the other party thereby depriving that party of the benefits of the agreement. Just what conduct will meet this criteria must be determined on a case by case basis….”])

Count One as to Defendant Petsmart

Defendants contend Plaintiff failed to allege facts to support a cause of action for breach of the implied covenant of good faith and fair dealing against Petsmart because the Services Agreement expressly warns of potential illnesses pets might contract while boarding with Petsmart. The Court finds this argument unpersuasive, as Petsmart cites to no legal authority to support it. The Court agrees with Plaintiff that this warning language does not relieve Petsmart of its implied duties under the Services Agreement, as the underlying issue is the actions Petsmart undertook when boarding Plaintiff’s dogs, not just that they got sick. (See SAC, ¶ 24.) Plaintiff alleges sufficient facts to show that Petsmart’s conduct prevented Plaintiff from receiving the benefits under the contract. (SAC, ¶¶ 120-124).

The Court therefore OVERRULES the demurrer as to the Fifth cause of action – Count One.

Count Two as to Defendants Lucaro and Le

As for Defendants Lucaro and Le, since the Court sustained the demurrer as to the breach of contract claim, the Court also sustains the demurrer to the breach of implied covenant claim as Plaintiff has failed to plead sufficient facts showing the existence of a contractual relationship between Plaintiff and Defendants Lucaro and Le.

The Court therefore SUSTAINS the demurrer as to the Fifth cause of action – Count Two without leave to amend. The Court will hear argument on whether leave to amend should be granted.

Sixth Cause of Action for Breach of Implied Duty to Perform with Reasonable Care

To plead a cause of action for breach of the implied duty to perform with reasonable care, the plaintiff must allege the existence of, “[a] contract to perform services [that] gives rise to a duty of care which requires that such services be performed in a competent and reasonable manner.” (N. Am. Chem. Co. v. Superior Ct. (1997) 59 Cal.App.4th 764, 774) [internal citations omitted].

Count One as to Defendant Petsmart

Defendants repeat the arguments that the Services Agreement is fully integrated and that it warned Plaintiff of the potential for her dogs contracting illnesses. Defendants also contend that Plaintiff’s allegations are too vague to state a claim for negligence or how Petsmart’s actions fell below the standard of care. The Court disagrees.

First, whether the Services Agreement is fully integrated is irrelevant since this cause of action deals with the terms of the Services Agreement itself. (See SAC, ¶¶133-135). The implied duty to perform with reasonable care is implied into the Services Agreement as a matter of law. (See N. Am. Chem. Co., supra, 59 Cal.App.4th at p. 774.) Second, for the same reasons set forth above, the warning of potential illnesses for Plaintiff’s dogs does not necessarily absolve Petsmart of its implied duty to act with reasonable care. Third, Plaintiff’s allegations are not vague. Plaintiff alleges: “Defendant breached this implied condition when Defendant failed to use reasonable care. Specifically, Defendant did not exercise reasonable judgment by failing to obtain veterinary care in a timely fashion, did not properly supervise Plaintiff’s dogs, and did not provide Plaintiff’s dogs with a safe environment.” (SAC, ¶ 133.) These allegations are sufficient to apprise Petsmart of what is alleged to have done wrong.

The Court therefore OVERRULES the demurrer as to the Sixth cause of action – Count One.

Count Two as to Defendants Lucaro and Le

As for Defendants Lucaro and Le, since the Court sustained the demurrer as to the breach of contract claim, the Court also sustains the demurrer to the claim for breach of implied duty to perform with reasonable claim as Plaintiff has failed to plead sufficient facts showing the existence of a contractual relationship between Plaintiff and Defendants Lucaro and Le.

The Court therefore SUSTAINS the demurrer as to the Sixth cause of action – Count Two without leave to amend. The Court will hear argument on whether leave to amend should be granted.

Seventh Cause of Action for Negligent Misrepresentation

A cause of action for negligent misrepresentation requires pleading a “’[m]isrepresentation of a past or existing material fact, without reasonable ground for believing it to be true, and with intent to induce another's reliance on the fact misrepresented; ignorance of the truth and justifiable reliance on the misrepresentation by the party to whom it was directed; and resulting damage....’” (Hydro-Mill Co. v. Hayward, Tilton & Rolapp Ins. Assocs., Inc. (2004) 115 Cal.App.4th 1145, 1154) [internal citations omitted].

Count One as to Defendant Petsmart

Defendants contend the SAC fails to allege facts showing that Petsmart had the requisite knowledge for a misrepresentation claim, and that the SAC fails to allege facts establishing a causal connection between Petsmart’s alleged misrepresentations and Plaintiff’s alleged harm. The Court disagrees.

Plaintiff alleges that Defendant’s statements were not based on an objectively reasonable basis because they knew or should have known that such representations were false and/or misleading. (SAC, ¶ 143.) The Court agrees with Plaintiff that it is reasonable to infer that Petsmart understood its business operations when representing on its website that it offered round-the-clock care and 24/7 services. (See SAC, ¶¶ 22, 143; Opp., 14:16-20; see also Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238 [“This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.”] [internal citation omitted].) The allegations of the SAC further support this inference based on Plaintiff alleging that she was advised her dog Suri was “found” dead in the morning while boarding with Petsmart. (See SAC, ¶ 145.)

The Court therefore OVERRULES the demurrer as to the Seventh cause of action – Count One.

Count Two as to Defendants Lucaro and Le

With respect to Defendants Lucaro and Le, Defendants contend that allegations in the SAC are conclusory and fail to plead specific facts showing that the misrepresentations were made negligently. The Court agrees.

The alleged misrepresentations in the SAC against Lucaro and Le are conclusory and do not specify who made what representations, nor does Plaintiff allege any facts showing that Lucaro and Le knew or should have known that the representations were false at the time they were made. Plaintiff simply concludes that they should have known because dog Suri was found dead the next day. (SAC, ¶ 148.) The problem with this allegation is that it does not show Lucaro and Le had any reason to know at the time they made the alleged misrepresentations that Plaintiff’s dogs were in a worse condition than they might have thought. The fact that Plaintiff’s dog Suri died the next day does not necessarily mean Lucaro and Le were without reasonable grounds in making the alleged misrepresentations to Plaintiff. (See Hydro-Mill Co., supra, 115 Cal.App.4th at p. 1154.)

Accordingly, the Court SUSTAINS the demurrer to the Seventh cause of action -Count Two as to Defendants Lucaro and Le without leave to amend given that this is the third iteration of Plaintiff’s complaint and Plaintiff has not made an offer of proof. (See Code Civ. Proc., § 430.41, subd. (e)(1).) Should Plaintiff later discover additional facts that support this claim against Lucaro and Le, Plaintiff may seek leave to amend.

Eighth Cause of Action for Fraudulent Concealment

For fraudulent concealment, the plaintiff must allege facts demonstrating “’(1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact. [Citation.]’” (Daneshmand v. City of San Juan Capistrano (2021) 60 Cal.App.5th 923, 931–932) [internal citations omitted].

Count One as to Defendant Petsmart

Defendants contend the SAC fails to plead a cause of action for fraudulent concealment with reasonable particularity against Petsmart. The Court disagrees. As set forth above, Plaintiff alleges Petsmart made specific representations on its website that it offered round-the-clock care and 24/7 services for pets that later turned out to not be true. (SAC, ¶¶ 22-29.) Plaintiff has alleged that she relied on these statements when selecting Petsmart for boarding her dogs, that Petsmart knew or should have known these statements were not true at the time they were made, that Plaintiff would not have selected Petsmart had she known it did not provide such services, and that she suffered damages by the death of her dog Suri and the other two getting sick while boarding with Petsmart. (SAC, ¶¶ 22-52.)

The Court therefore OVERRULES the demurrer as to the Eighth cause of action – Count One.

Count Two as to Defendant Lucaro and Le

With respect to Defendants Lucaro and Le, Defendants contend that the SAC fails to plead facts with particularity and is comprised of conclusory allegations. The Court agrees. “In California, fraud must be pled specifically; general and conclusory allegations do not suffice. [Citations]... This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered. [Citation] [italics in original].” (Lazar v. Superior Ct. (1996) 12 Cal. 4th 631, 645) [internal citations and quotation marks omitted]. The SAC fails to allege sufficient facts regarding any alleged misrepresentations made by Lucaro and Le for purposes of a fraudulent concealment claim, but instead is comprised of primarily conclusory allegations. (SAC, ¶¶ 168-181.)

Therefore, the Court SUSTAINS the demurrer as to the Eighth cause of action – Count Two as to Lucaro and Le, without leave to amend.

Ninth Cause of Action for Breach of Bailment

To plead a cause of action for breach of bailment, the plaintiff must allege a “delivery of a thing to another in trust for some special object or purpose, under a contract, express or implied, to conform to the object or purpose of the delivery or trust, which may be as varied as people's transactions.” (9 Cal. Jur. 3d Bailments § 1) [internal citations omitted].

Count One as to Defendant Petsmart

Defendants contend the SAC fails to allege facts to state a cause of action for breach of bailment against Petsmart, contending it is comprised of conclusory allegations. Defendants also reiterate their arguments about the limited liability provision of the Services Agreement and the warning of potential illnesses to Plaintiff’s dogs. Defendants further contend Plaintiff’s allegations of an unconscionable contract are unsupported because Plaintiff does not allege which provisions of the Services Agreement are unconscionable. The Court finds these arguments unpersuasive.

The SAC adequately alleges that Plaintiff and Petsmart entered into an agreement for Petsmart to board Plaintiff’s dogs. (SAC, ¶¶ 22-26; Id., Exs. 1 & 2.) Plaintiff then alleges she delivered her dogs to Petsmart per the Services Agreement, and that her dog Suri was not returned because it had died. (SAC, ¶ 29.) The Court finds these allegations sufficiently specific to state a cause of action here.

As for the limited liability provision, this argument is unavailing for the same reasons set forth above. (See Civ. Code § 1668.) The Court does not need to address the unconscionability argument because it is not relevant to the Court’s ruling on the demurrer, which tests only the sufficiency of the allegations to state a cause of action for breach of bailment. As stated herein, the Court finds that Plaintiff has alleged sufficient facts to state such cause of action for breach of bailment against Defendant Petsmart.

Therefore, the Court OVERRULES the demurrer to the Ninth cause of action – Count One as to Defendant Petsmart.

Count Two as to Defendant Lucaro and Le

With respect to Lucaro and Le, Defendants argue that Lucaro and Le were not parties to the Service Agreement and reiterate their contention that there was no separate agreement between them and Plaintiff. Defendants further argue that Plaintiff has not alleged facts to show that Lucaro and Le breached any duty to Plaintiff, acted negligently, recklessly, or intentionally with respect to Plaintiff’s dogs. The Court agrees.

As noted above, the Court finds that Plaintiff has not alleged sufficient facts to state a cause of action for breach of contract against Lucaro and Le. This also means that Plaintiff has not alleged a cause of action for breach of bailment against Lucaro and Le. (See Windeler v. Scheers Jewelers (1970) 8 Cal.App.3d 844, 850 [“[A] bailment is a contractual relationship.”])

Therefore, the Court SUSTAINs without leave to amend the demurrer to the Ninth cause of action – Count Two as to Defendants Lucaro and Le.

Tenth Cause of Action for Conversion (as to Suri)

A claim for conversion requires pleading “‘(a) plaintiff's ownership or right to possession of personal property, (b) defendant's disposition of property in a manner inconsistent with plaintiff's property rights, and (c) resulting damages.’” [Citation]. This formula does not contain any element of wrongful intent or motive because conversion in California is a strict liability tort. [Citation].” (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1020-1021.)

"Conversion has been defined as any act of dominion wrongfully exerted over another's personal property in denial of or inconsistent with his rights therein. [Citations.] In order to establish a conversion, the plaintiff must show an intention or purpose to convert the goods and to exercise ownership over them, or to prevent the owner from taking possession of his property." (Oakes v. Suelynn Corp. (1972) 24 Cal.App.3d 271, 278.)

Defendants contend that the SAC fails to allege facts to support a cause of action for conversion because Plaintiff consented to Defendants taking possession of Suri. Defendants also argue the allegations here are conclusory and do not sufficiently allege how the Defendants’ supervision and care caused substantial interference. Defendants further contend that communicable diseases can spread despite people’s best efforts and Plaintiff has failed to allege facts showing Defendants’ alleged actions caused the transmission of the communicable disease here. Defendants finally contend the SAC lacks allegations showing Defendants acted with the intent to convert Plaintiff’s property, i.e., the dogs, and exercise ownership over them or prevent Plaintiff from retaking possession. The Court finds most of these arguments unavailing but does agree that Plaintiff failed to allege sufficient facts to state a cause of action for conversion.

While plaintiff alleges defendants intentionally took Suri into their care, she fails to allege any intention on the part of defendants to exercise ownership over the dog or to prevent her from taking possession of it. Accordingly, the SAC fails to state a cause of action for conversion.

The Court therefore SUSTAINS the demurrer to the Tenth cause of action without leave to amend.

Eleventh Cause of Action for Negligence

“To succeed in a negligence action, the plaintiff must show that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the duty, and (3) the breach proximately or legally caused (4) the plaintiff's damages or injuries.” (Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662.)

Count One as to Defendant Petsmart

Defendants contend the SAC fails to allege facts showing that Petsmart’s alleged breach was the proximate cause of Plaintiff’s injuries or how Petsmart’s actions were a substantial factor in causing those alleged injuries. Defendants further contend the limited liability provision in the Services Agreement bars Plaintiff’s claim and that Plaintiff was warned about the potential risk of communicable diseases to Plaintiff’s dogs. Defendants also contend Plaintiff’s res ipsa loquitur argument fails. The Court disagrees.

Plaintiff alleges that but for Defendant’s failure to provide 24/7 supervised care, to timely obtain veterinary care, and/or to properly clean their facility, SURI would not have died, and DEE and Kai would not have fallen ill. (SAC, ¶212). The Court finds these allegations are sufficient to demonstrate that the alleged breach was the proximate cause of Plaintiff’s injuries. The Court has also largely already addressed these arguments above, and the same reasoning applies here. The limited liability provision in the Services Agreement does not necessarily absolve Petsmart of its alleged negligence. (See Civ. Code § 1668.) The warning of potential risks for communicable diseases in the Services Agreement does not necessarily absolve Petsmart either because the issue was not the risk of diseases but rather how Petsmart handled Plaintiff’s dogs when that risk materialized. (See SAC, ¶¶ 208-221.) The Court declines to address the res ipsa loquitur argument, finding it unnecessary at this point.

The Court OVERRULES the demurrer to the Eleventh cause of action – Count One as to Defendant Petsmart.

Count Two as to Defendants Lucaro and Le

With respect to Lucaro and Le, Defendants contend that the SAC does not adequately allege the existence of a duty between Plaintiff on the one hand and Lucaro and Le on the other, reiterating their argument that they did not enter into a bailment relationship with Plaintiff. They further argue the SAC lacks sufficient allegations that they breached any alleged duty to Plaintiff or that their actions caused Plaintiff’s alleged injuries. They then reference the limited liability provision in the Services Agreement and the warning of potential illnesses and again contend res ipsa loquitur does not apply here.

The Court agrees that Plaintiff has not alleged sufficient facts to establish a duty of care owed by Defendants Lucaro and Le. As discussed above, there are not sufficient facts showing that Plaintiff had a contractual relationship with Lucaro and Le. Further, Plaintiff cites no legal authority holding that an employee or manager of an employer owes a personal duty of care or can be personally liable to a customer for negligence when acting in the course and scope of his employment.

The Court SUSTAINS without leave to amend the demurrer to the Eleventh cause of action – Count Two as to Defendants Lucaro and Le.

Twelfth Cause of Action for Intentional Infliction of Emotional Distress

To state a cause of action for intentional infliction of emotional distress, the plaintiff must allege “(1) defendant engaged in extreme and outrageous conduct (conduct so extreme as to exceed all bounds of decency in a civilized community) with the intent to cause, or with reckless disregard to the probability of causing, emotional distress; and (2) as a result, plaintiff suffered extreme or severe emotional distress. [Citation]. Additionally, “ ‘[i]t must be conduct directed at the plaintiff, or occur in the presence of the plaintiff of whom the defendant is aware.’ [Citation.] ‘The requirement that the defendant's conduct be directed primarily at the plaintiff is a factor which distinguishes intentional infliction of emotional distress from the negligent infliction of such injury.’” (Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1273) [internal citations omitted].

Defendants contend the SAC fails to allege facts to support a cause of action for intentional infliction of emotional distress. Specifically, they contend Plaintiff has not alleged facts constituting extreme and outrageous conduct, that she has not alleged facts demonstrating she suffered severe emotional distress, or that Defendants’ actions caused Plaintiff’s alleged harms. The Court agrees with Defendants. (See McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1515-1517.

The SAC fails to allege any facts showing that Defendants’ conduct was so extreme as to exceed all bounds of that usually tolerated in a civilized community. The SAC also fails to allege any facts showing that the Defendants’ actions were directed at Plaintiff. The extent of the allegations are comprised primarily of Defendants’ alleged failures to take care of Plaintiff’s dogs. (See SAC, ¶¶ 242-252.) Plaintiff’s arguments in opposition essentially just reiterate her allegations and do not address these arguments from Defendants.

Moreover, the SAC clearly alleges that Plaintiff was not in Defendants’ presence when the alleged harms to Plaintiff’s dogs occurred. (See SAC, ¶¶ 28-30.) This further undermines Plaintiff’s claim here. (Berry, supra, 90 Cal.App.5th at p. 1273.)

Therefore, the Court SUSTAINS the demurrer to the Twelfth cause of action without leave to amend.

LEGAL STANDARD – Motion to Strike

“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, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(2).) “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out 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.” (Id., § 436.)

DISCUSSION – Motion to Strike

Meet and Confer

Per Code of Civil Procedure section 435.5, subdivision (a), Defendants were required to meet and confer before bringing this motion to strike. (Code Civ. Proc., § 435.5, subd. (a).) The Court finds Defendants’ efforts to meet and confer sufficient. (Baldwin Decl., ¶ 4.)

Civil Code section 3294

“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 and by way of punishing the defendant.” (Civ. Code § 3294, subd. (a).)

Defendants move to strike Plaintiff’s requests for punitive damages throughout the SAC, and specifically spends most of the motion addressing Civil Code section 3294. However, as Plaintiff correctly notes, none of Plaintiff’s requests for punitive damages are based on Civil Code section 3294. Rather, they are based on Civil Code sections 3340 and 1780, subdivision (a), which read as follows:

For wrongful injuries to animals being subjects of property, committed willfully or by gross negligence, in disregard of humanity, exemplary damages may be given.

(Civ. Code § 3340.)

Any consumer who suffers any damage as a result of the use or employment by any person of a method, act, or practice declared to be unlawful by Section 1770 may bring an action against that person to recover or obtain any of the following:…

(3) Restitution of property.

(4) Punitive damages.

(Civ. Code § 1780, subds. (a)(3), (a)(4).)

Accordingly, the Court disregards Defendants’ arguments regarding Civil Code section 3294.

Civil Code section 3340

Defendants briefly address Civil Code section 3340 in their moving papers, but only make a conclusory argument that Plaintiff has failed to plead ultimate facts to support the request for punitive damages under this code section. (Motion, 14:25-28.) In their reply papers, Defendants contend the SAC fails to allege facts showing Defendants intentionally harmed Plaintiff’s dogs. While the Court agrees that the SAC does not allege sufficient facts evidencing intentional harm to Plaintiff’s dogs, the Court still finds that Plaintiff has alleged sufficient facts evidencing negligence. (SAC, ¶¶ 242-243). Gross negligence is another basis for imposing punitive damages under Civil Code section 3340, (Civ. Code § 3340.) Whether such alleged actions constitute gross negligence is generally a question of fact beyond the scope of a motion to strike. ([Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 555) [internal citation omitted]. Thus, the Court rejects Defendants’ arguments here as well.

Civil Code section 1782, subdivision (a)

“(a) Thirty days or more prior to the commencement of an action for damages pursuant to this title, the consumer shall do the following:

(1) Notify the person alleged to have employed or committed methods, acts, or practices declared unlawful by Section 1770 of the particular alleged violations of Section 1770.

(2) Demand that the person correct, repair, replace, or otherwise rectify the goods or services alleged to be in violation of Section 1770.

The notice shall be in writing and shall be sent by certified or registered mail, return receipt requested, to the place where the transaction occurred or to the person's principal place of business within California.”

(Civ. Code § 1782, subd. (a); see also Benson v. Southern California Auto Sales, Inc. (2015) 239 Cal.App.4th 1198, 1212 n. 11 [no damages or attorney’s fees available for failure to comply with Civil Code section 1792 notice requirements].)

Defendants contend that Plaintiff failed to comply with the notice requirements of Civil Code section 1780, subdivision (a). Specifically, Defendants contend Plaintiff failed to identify the particular advertisements at issue. The Court finds this to be insufficient to strike Plaintiff’s request for punitive damages. Plaintiff contends, and the Court agrees, that Plaintiff has sufficiently alleged compliance with Civil Code section 1780, subdivision (a). (SAC, ¶¶ 50, 56-57.)

In opposition, Plaintiff also contends that whether the allegations in the SAC support a request for attorney’s fees is a question of fact beyond the scope of a demurrer. However, the Court notes that the notice for the motion to strike does not specify the provision in the SAC it seeks to strike with respect to attorney’s fees, as is required under Rule 3.1322, subdivision (a) of the California Rules of Court. (Cal. Rules of Court, rule 3.1322, subd. (a) [“A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.”]) Accordingly, if Defendants were seeking to strike Plaintiff’s request for attorney’s fees, that request fails.

Based on the foregoing, the Court DENIES Defendants’ motion to strike as to request nos. 1-4 on the merits and DENIES the motion to strike as to request nos. 5-7 as moot given that the Court sustained the Demurrer to the Eighth cause of action – Count Two, Tenth cause of action and Twelfth cause of action without leave to amend.

LEGAL STANDARD – Motion to Compel Further Responses

“(a) On receipt of a response to a request for production of documents, the demanding party may move for an order compelling further responses if:

(1) A statement of compliance with the demand is incomplete.

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

(3) An objection in the response is without merit or too general.

(b) A motion under subdivision (a) shall comply with each of the following:

(1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.”

(Code Civ. Proc., § 2031.310, subds. (a), (b).)

DISCUSSION – Motion to Compel Further Responses

Meet and Confer

Per Code of Civil Procedure section 2031.310, subdivision (b)(2), the parties were required to meet and confer before Plaintiff brought this motion to compel further responses. (Code Civ. Proc., § 2031.310, subd. (b)(2).) The Court finds Plaintiff’s supporting declaration satisfies these requirements. (Thompson Decl., ¶¶ 9-12.)

Analysis

Plaintiff seeks the court to compel further responses to request for production (RFP) No. 1 and No 2, both which essentially seek all video surveillance of the Petsmart boarding facility. (See Separate Statement.) To each discovery request, Petsmart produced “in whole and [] all the documents or things in the demanded category that are in the possession, custody, or control of [Petsmart]” pursuant to the parties’ Stipulated Confidentiality Protective Agreement. (See Separate Statement.)

However, despite production of video footage, Plaintiff believes that not all video footage has been produced based upon the following circumstances:

• The 9/8/21 footage only included lobby footage of Plaintiff checking the dogs in. There were no other videos produced for this day. For instance, where is the footage of the dogs getting placed into the kennel area?

• There were two videos produced for 9/9/21. It seems impossible that these are the only two videos that exist of the dogs that day. They show SURI and KAI being let out, but not DEE. Were these the only two times that KAI and SURI were let out that day? Where are the other videos? Where is DEE?

• For 9/10/21, Defendants produced two videos of KAI and SURI in the relief room. Again, are these the only videos of the dogs that day? Where are the rest?

• There are two videos for both 9/11/21 and 9/12/21, showing KAI and SURI being let out to the relief room. Again, it seems implausible that these are the only videos of the dogs and/or the only time they were let out. Again, where is DEE?

• Next, the production for 9/13/21 included six kennel footage videos. KAI is not in the same kennel as SURI in the videos. KAI is not in the same kennel as SURI at this point. Was KAI at the vet or just separated? Where are the videos showing where KAI went - him moving to another kennel, for instance? Where is the footage of KAI going to the vet and coming back? Where is DEE at this point? The video labeled "0643100" shows the lobby. At 6 minutes 30 seconds into the video, the worker who found SURI comes back with either a groomer or a tech. But there is no footage of anyone coming back with SURI’s body.

• There is only one clip of DEE the entire time. (He is in his kennel on 9/14/21.) Why is he not in any other footage? There are no videos of him in the relief area, unlike KAI and SURI. - Where is the footage of Plaintiff’s parents in the lobby on 9/14/21 when they came to pick up the dogs?

(See Motion, 5:27-6:25.) Moreover, Plaintiff contends there are no time stamps on any of the videos to authenticate the date and time of each video. (See Id., 6:26-6:28.)

Here, the Court does find it questionable that there are gaps in the video footage. After all, if there is video surveillance from other areas (relief area and kennel area), then why is the only footage provided from 9/8/2021 in the lobby? Said differently, where is the 9/8/2021 video footage from the relief and kennel areas? And, if there is only one relief area, then why weren’t all three dogs shown in that area at any point during a video—wouldn’t all three of the pets need to use the area at least a few times during the day? And as for the kennel area, why wouldn’t there be videos showing all three dogs in this area at some point since all three dogs must have been placed in a kennel to sleep? Accordingly, to Plaintiff’s point, even in areas where there are cameras, 24-hour footage was not provided.

To the extent Petsmart maintains that it does not “offer or represent that it offers 24-hour streaming video of its boarding areas,” (See Plaintiff’s Motion, Ex. 1 [Letters between the parties], p. 19 of 73 of PDF), that may very well be true, but Petsmart has not explained how its video system works (e.g., does it record for a couple of hours and then stop).

And to the extent that Petsmart asserts that the videos “were maintained in accordance with PetSmart’s document retention policy and its best efforts to save relevant information of the voluminous video footage captured on a daily basis and available to be saved 30 days thereafter,” Petsmart has not explained where the remainder of the conceded voluminous video footage is. (See Opp. p. 4:13-16). Moreover, if Defendant is suggesting that not all the video has been produced because despite its “best efforts to save relevant information” such information was lost, destroyed, or stolen, Petsmart has not explained such circumstances despite Code of Civil Procedure section 2031.230’s requirement that a party do so. (Code Civ. Proc., § 2031.230 [“A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.”])

Therefore, absent an explanation as to why the videos are seemingly clipped and incomplete, the motion has merit to at the very least require Petsmart to provide a further response to Request Nos. 1 and 2 in accordance with the Court’s ruling.

Monetary Sanctions

As for monetary sanctions, the Court finds it appropriate based upon the circumstances, including that the need for the videos was discussed during the November 9, 2022 hearing and is required for a sufficiently pleaded complaint. Plaintiff requests that Defendant Petsmart, LLC pay Plaintiff $3,105.00 in monetary sanctions [$2,925.00 in fees for Plaintiff’s Counsel’s time at $250.00-$325.00/hour and $180 for the assistant’s time]. Utilizing a Lodestar approach, and in view of the totality of the circumstances, the court finds that the total and reasonable amount of attorney’s fees incurred for the work performed in connection with the pending motion is $1,650.00 [5.5 hours/$300.00 per hour]. Sanctions are payable within 20 days of the date of the hearing.

Notwithstanding the foregoing, absent exceptional circumstances, the Court does not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system. (Code Civ. Proc., § 2013.310, subd. (j).)

Therefore, if the videos are incomplete because Petsmart’s electronic information system operates in a way to not capture continuous video footage, then monetary sanctions would be improper.

CONCLUSION

Defendants are ordered to give notice and provide proof of service of same within five calendar days of the Court’s order.