Judge: Mark H. Epstein, Case: 23SMCV03677, Date: 2024-03-27 Tentative Ruling
Case Number: 23SMCV03677 Hearing Date: March 27, 2024 Dept: I
This case involves liability following a tragic fire in
which plaintiff’s cat, Cannon, whilst in defendants’ care, was severely
burned. Plaintiff placed Cannon in
defendants’ care when she left temporarily.
Plaintiff contends that before she first did so, she interviewed the
owners who assured her that they were people who cared about cats and that
their facility was secure and safe. At
the time in question, plaintiff had boarded Cannon and was away when she got a
text message telling her that a fire had broken out at the facility and it was
unclear whether Cannon had survived.
When she arrived, she eventually learned that although many cats had
died, hers had not. Defendants had taken
Cannon to an animal emergency facility where Cannon was undergoing
treatment. Although Cannon survived, the
treatment was slow and expensive.
According to the complaint, defendants on more than one occasion agreed
to pay the cost of the treatment, and further stated that they were insured and
that the carrier would cover it.
Eventually, the carrier concluded that the fire was set by arson and
thus that there was no coverage.
Defendants refused to cover the medical costs. Plaintiff sues under a variety of theories
and defendants demur. Plaintiff
opposes. Defendants also seek to strike
certain types of recovery.
Both parties point out technical errors by the other. The court will overlook them this time in all
respects, but notes that in the future the court reserves the right to strike
filings that do not comply with the rules.
The demurrer to the first cause of action, which is for
bailment, is OVERRULED. A breach of
bailment occurs when the party having custody either refuses to return the
property or there is damage to it. Here,
Cannon was returned, but was injured.
The failure to keep Cannon safe is allegedly a negligent breach of the
bailment. Defendants contend that they
were not negligent because the fire was caused by arson. But, as plaintiff correctly points out, this
is a pleading motion. Plaintiff has not
alleged that the fire was caused by arson; that is something the carrier
asserts and plaintiff did no more than recite the carrier’s assertion. As such, the court cannot say at this stage
that there was no negligence leading to the damage to Cannon and thus no breach
of the bailment.
The second cause of action is for negligence, and it is
OVERRULED for the same reason.
Defendants take issue with allegations of emotional distress. Attacking types of damages is not the office
of a demurrer and the court addresses that question in the motion to strike.
The third cause of action is for negligence per se. The demurrer is OVERRULED. Negligence per se is just another way
of saying negligence. The “per se”
part is that a statute or law sets the standard of care—it is not an
independent tort or type of wrong. For
now, the court interprets the cause of action as another cause of action for
negligence, but a different theory of negligence. Perhaps it would be more elegant to require
plaintiff to replead to assert it in that way or fold it into the second cause
of action, doing so would do nothing to further the case. As the court interprets this cause of action,
it does not mischief.
The demurrer to the fourth cause of action, which is
negligent misrepresentation, is OVERRULED.
The gist of the cause of action is that defendants said that the
facility was secure—there were guards and the like. Plaintiff alleges that were it not for those
statements (which she alleges were false), she would not have left Cannon
there. This is a close one in that the
specifics are not overly specific and, more importantly, the nexus between the
statement and the damage is a bit of a leap.
But it is within the bounds of pleading.
One can infer that plaintiff claims that had there been the security
defendants promised, perhaps the fire would have been discovered earlier or
prevented entirely. This is better
tested on summary judgment when facts surrounding causation can be considered.
The fifth cause of action is trespass to chattels. It is SUSTAINED WITH LEAVE TO AMEND. This cause of action goes to interference
with the plaintiff’s possessory rights to the chattel. As dear as we hold our pets, they are, under
the law, chattel. Thus, Cannon falls
within the cause of action. But the
court does not see that defendants interfered with plaintiff’s possessory
interest. Plaintiff could have taken
Cannon any time she wanted to do so; defendants simply did not interfere with
that. Nor can the court find defendants’
conduct in taking Cannon to the emergency facility to be a form of
trespass. The court has no doubt but
that had defendants failed to do that, plaintiff would have sued for that
failure. The court notes that it is
giving plaintiff leave to amend only because it must. This cause of action adds nothing to the
overall complaint and is likely to fail even after amendment. Plaintiff might want to consider letting this
cause of action go.
The next aspect of the demurrer goes to the promise to pay
the medical bills. Plaintiff alleges
oral contract, promissory estoppel, and common counts. As to the oral contract, plaintiff contends
that defendants orally promised to pay for the medical care. In reliance on that promise, plaintiff
allowed the expensive medical treatment to go forward. Defendants argue that there is no contract
because there was no consideration.
Because plaintiff—the promisee—suffered a detriment in reliance on the
promise (she became indebted to the emergency facility), there is
consideration. (Steiner v. Thexton
(2010) 48 Cal.4th 411.) Defendants also
contend that this runs afoul of the statute of frauds because the insurer was
to pay and the defendants’ offer was merely to stand surety. The court disagrees. While at various points the defendants did
say the carrier would pay, the statements can be read as a direct promise as
well. It is not just a promise to answer
for the debt of another. Further, the
terms are sufficiently pled. The
demurrer to this cause of action is OVERRULED.
Promissory estoppel is pled in the alternative. If the oral contract fails on a technical
ground (such as lack of consideration), then estoppel might apply. It is sufficiently pled. The demurrer is OVERRULED. Defendant does not address the common count
at all in its papers and thus the demurrer as to that cause of action is
unsupported and OVERRULED.
The motion to strike punitive damages, emotional distress,
and fees is GRANTED AS TO PUNITIVE DAMAGES ONLY AND OTHERWISE DENIED. The court simply does not see how any of
defendants’ conduct is sufficiently oppressive, malicious, or fraudulent to
warrant punitive damages even as a pleading matter. (Recall that the misrepresentation alleges
only negligent misrepresentation.) The
fire was tragic. But it was either
accidental (in which case no punitive damages are appropriate) or it was arson
by a third party. There is no allegation
that defendants themselves deliberately set the fire. This is just not a punitive damages case as
pled. The court will DENY the motion as
to emotional distress and attorneys’ fees.
As to the former, the court is not confident that care of a pet is not
the kind of tort that could, under appropriate circumstances, lead to emotional
distress damages. While rare, there are
some torts that do. McMahon v. Craig
(2009) 176 Cal.App.4th 1502, involved veterinary care, not boarding care. There are also claims of loss of
companionship. The court agrees that
there are no recoverable damages for that, but the real issue is emotional
distress and the court will deal with the aspects of non-economic damages will
go to the jury in an appropriate way at an appropriate time. Finally, the court will award no fees
without a statutory or contractual basis to do so. The prayer for fees does no mischief.
Plaintiff has 30 days’ leave to amend. Defendants have 30 days thereafter to answer
or otherwise respond to the complaint.
If plaintiff elects to stand on the complaint, defendants have 30 days
to answer.