Judge: Melvin D. Sandvig, Case: 21STCV29124, Date: 2022-10-21 Tentative Ruling
Case Number: 21STCV29124 Hearing Date: October 21, 2022 Dept: F47
Dept. F47
Date: 10/21/22
Case #21STCV29124
DEMURRER
&
MOTION TO
STRIKE
TO THE SECOND
AMENDED COMPLAINT
Demurrer & Motion filed on 7/15/22.
MOVING PARTY: Defendants Igor
Arzumanian, DVM and Balboa Veterinary Medical Center, Inc.
RESPONDING PARTY: Plaintiff Taihina
Tamar
NOTICE: ok
Demurrer is to the 2nd, 3rd, 6th,
7th and 8th causes of action:
2.
Breach of Implied Covenant of Good Faith and Fair Dealing
3.
Intentional Misrepresentation
4.
Negligent Misrepresentation
5.
Professional Negligence
6.
Negligence Per Se
7.
Trespass to Chattel
8.
Intentional Infliction of Emotional Distress
RELIEF REQUESTED IN MOTION TO STRIKE: An order
striking portions of Plaintiff’s Second Amended Complaint
relating to Plaintiff’s claims for emotional distress and exemplary/punitive
damages.
RULING: The demurrer is overruled, in part, and
sustained without leave to amend, in part.
The motion to strike is moot, in
part, due to the ruling on the demurrer and is otherwise denied.
FACTUAL SUMMARY
This action arises out of the care and treatment
Defendants Igor Arzumanian, DVM and Balboa Veterinary Medical Center, Inc.
(Defendants) provided to Plaintiff Taihina Tamar’s (Plaintiff) dog. Plaintiff alleges that in August 2020, she
brought her five-year-old hairy Chihuahua Terrier mix, Rusty, to Defendants for
treatment after she determined he was suffering from an abscess on his anus. Defendants presented Plaintiff with two
treatment options. One was to
periodically flush the abscess and the other was to undergo surgery to have it
removed. The surgical option was the
more expensive option and the one Plaintiff elected pursuant to a contract
entered between the parties.
Plaintiff alleges that Defendants performed a different
procedure than she contracted for them to perform on Rusty. Additionally, Plaintiff alleges that
Defendants negligently performed the procedure which caused Rusty injury which
had to be corrected by another veterinarian.
Plaintiff alleges that Rusty has suffered permanent injury as a result
of Defendants’ alleged conduct which has also caused her to suffer emotional
distress and incur monetary damages.
PROCEDURAL HISTORY & PROCEDURAL DEFECTS
On 8/9/21, Plaintiff filed this action against Defendants
for: (1) Breach of Contract, (2) Breach of Implied Covenant of Good Faith and
Fair Dealing; (3) Intentional Misrepresentation,
(4) Negligent Misrepresentation, (5) Professional
Negligence, (6) Negligence Per Se,
(7) Trespass to Chattel and (8) Intentional Infliction of
Emotional Distress. On 9/29/21, Defendants
filed a demurrer to the 1st, 2nd, 5th, 6th,
7th and 8th causes of action in the Complaint and moved
to strike portions of Plaintiff’s Complaint relating to punitive damages and
emotional distress damages in Plaintiff’s 2nd, 3rd, 4th,
5th, 6th, 7th and 8th causes of
action. Plaintiff opposed the demurrer
and motion to strike.
On 4/1/22, this Court overruled Defendants’ demurrer as
to the 1st and 5th causes of action and sustained the
demurrer as to the 2nd, 6th, 7th and 8th
causes of action with 30 days leave to amend.
(See 4/1/22 Minute Order).
The motion to strike was found to be moot, in part, due to the ruling on
the demurrer, denied, in part, and granted without leave to amend, in
part. Id.
On 5/2/22, Plaintiff filed her First Amended Complaint
which asserted the same eight causes of action as the original complaint. After meet and confer efforts, the parties
filed a Joint Stipulation to Extend Time to File a Second Amended
Complaint. On 6/6/22, the Court entered
an order on the Joint Stipulation. On
6/17/22, Plaintiff filed her Second Amended Complaint which alleges the same
eight causes of action as the original Complaint and First Amended
Complaint.
Defendants found the Second Amended Complaint to be
deficient. After meet and confer efforts
did not resolve the issues, on 7/15/22, Defendants filed and served the instant
demurrer to the 2nd, 3rd, 6th, 7th
and 8th causes of action.
Defendants also move to strike portions of Plaintiff’s Second Amended
Complaint relating to Plaintiff’s claims for emotional distress and exemplary
damages. Plaintiff has opposed the
demurrer and motion to strike.
DEMURRER
2nd cause of action – Breach of the
Covenant of Good Faith and Fair Dealing
The grounds for demurrer must appear on the face of the
pleading or from matter of which the court is required or may take judicial
notice. See CCP 430.30(a). The Court notes that Defendants improperly
rely, in part, on extrinsic evidence, a Surgery Release Form, to support their
demurrer to this cause of action. (See
Memorandum of Points and Authorities in Support of Demurrer filed on 7/15/22,
p.10:25-p.11:9). The Court did not
consider this evidence in ruling on the demurrer to the 2nd cause of
action. However, the 2nd
cause of action fails for another reason.
A claim for breach of the covenant of good faith and fair
dealing fails to state a claim if it does not go beyond the mere breach of
contract and relies on the same alleged acts and seeks the same relief. See Careau & Co. (1990) 222
CA3d 1371, 1395. Here, as in the
original Complaint, the breach of the
covenant of good faith cause of action in the Second Amended Complaint still relies
on the same facts and damages as the breach of contract claim.
3rd cause of action
– Intentional Misrepresentation
CCP 430.41(b)
provides:
A
party demurring to a pleading that has been amended after a demurrer to an
earlier version of the pleading was sustained shall not demur to any portion of
the amended complaint, cross-complaint, or answer on grounds that could have
been raised by demurrer to the earlier version of the complaint, cross-complaint,
or answer.
In their demurrer to the original Complaint, Defendants
did not challenge the 3rd cause of action for Intentional
Misrepresentation. (See Demurrer
filed on 9/29/21). Therefore, Defendants
are precluded from demurring to that cause of action in the Second Amended
Complaint. See CCP
430.41(b). Based on the foregoing, the
demurrer to the 3rd cause of action is overruled.
6th cause of action – Negligence Per Se
The doctrine of negligence per se allows for the
presumption that a defendant failed to exercise due care if: (1) the defendant
violated a statute, ordinance, or regulation of a public entity; (2) the
violation proximately caused death or injury to person or property; (3) the
death or injury resulted from an occurrence of the nature which the statute,
ordinance, or regulation was designed to prevent; and (4) the person suffering
the death or the injury to his person or property was one of the class of
persons for whose protection the statute, ordinance, or regulation was adopted. Evidence Code 669(a).
Plaintiff’s Negligence Per Se cause of action is based on
Defendants’ alleged violation of Penal Code 597(b). (SAC ¶¶116-119). Penal Code 597(b) provides, in relevant part:
every person who overdrives,
overloads, drives when overloaded, overworks, tortures, torments, deprives of
necessary sustenance, drink, or shelter, cruelly beats, mutilates, or cruelly
kills any animal, or causes or procures any animal to be so overdriven,
overloaded, driven when overloaded, overworked, tortured, tormented, deprived
of necessary sustenance, drink, shelter, or to be cruelly beaten, mutilated, or
cruelly killed; and whoever, having the charge or custody of any animal, either
as owner or otherwise, subjects any animal to needless suffering, or inflicts
unnecessary cruelty upon the animal, or in any manner abuses any animal, or
fails to provide the animal with proper food, drink, or shelter or protection
from the weather, or who drives, rides, or otherwise uses the animal when unfit
for labor, is, for each offense, guilty of a crime punishable pursuant to
subdivision (d).
Plaintiff has not alleged facts which show that the
injury to her dog was of the nature which Penal Code 597 was designed to prevent
or that Plaintiff belongs to the class of persons for whose protection the
statute was adopted.
7th cause of action – Trespass to Chattel
The elements of a trespass to chattel cause of action
are: (1) the plaintiff owned the personal property, (2) the defendant
intentionally interfered with plaintiff’s possession of the personal property
or damaged the personal property, (3) plaintiff did not consent and (4)
plaintiff was harmed. See CACI
2101. Similar to the negligence per se
claim, Plaintiff has still failed to allege sufficient facts to support a
finding that Defendants intentionally interfered with plaintiff’s possession of
her dog or intentionally damaged/injured Plaintiff’s dog.
Plaintiff has now had three opportunities to plead her
claim for trespass to chattel against Defendants and has failed to adequately
do so. Additionally, although Plaintiff
requests leave to amend, if the demurrer is sustained, she fails to indicate
how she can cure the defects in this cause of action. Therefore, the demurrer to the 7th
cause of action is sustained without leave to amend.
8th cause of action – Intentional
Infliction of Emotional Distress
In California, pet owners cannot recover emotional
distress damages for veterinary malpractice.
McMahon (2009) 176 CA4th 1502, 1514. As noted above in relation to the 6th
and 7th causes of action, Plaintiff has still failed to allege
sufficient facts to establish any intent by Defendants to cause damage/injury
to Plaintiff’s dog. Allegations of
breach of contract and/or professional negligence are not sufficiently
outrageous to support a claim for intentional infliction of emotional
distress. See Plotnik (2012) 208 CA4th 1590, 1611.
Plaintiff has now had three opportunities to plead her
claim for intentional infliction of emotional distress against Defendants and
has failed to adequately do so.
Additionally, although Plaintiff requests leave to amend, if the
demurrer is sustained, she fails to indicate how she can cure the defects in
this cause of action. Therefore, the
demurrer to the 8th cause of action is sustained without leave to
amend.
MOTION TO STRIKE
In their motion to strike portions of the original Complaint,
Defendants failed to specify (i.e., by page and line number or paragraph
number) the portions of the Complaint sought to be stricken as required by
California Rules of Court, Rule 3.1322(a).
Defendants were previously “warned that if a subsequent motion to strike
is filed, they must specify in the notice the portions of the pleading sought
to be stricken, including specific portions of the prayer, or the motion will
not be considered on the merits.” (See
4/1/22 Minute Order, p.2). Despite such
warning, once again, the notice of the motion to strike portions of the Second
Amended Complaint fails to specify (i.e., by page and line number or paragraph
number) the portions of the pleading sought to be stricken. See CRC 3.1322(a); (See Notice
of Motion to Strike filed 7/15/22).
Additionally, the body of the notice of the motion to
strike only indicates that Defendants are seeking to strike portions of the Second
Amended Complaint regarding Plaintiff’s
claims for emotional distress damages. (See
Notice of Motion to Strike filed 7/15/22, p.1:24-27). However, the memorandum of points and
authorities filed in support of the motion also addresses claims for punitive/exemplary
damages. (See Memorandum of
Points & Authorities in Support of Motion to Strike filed 7/15/22,
p.6:3-26, p.8:8, p.8:11). Further, the
demurrer to the intentional misrepresentation cause of action is overruled and
fraud is a basis for a claim for punitive damages. See Civil Code 3294.
Based on the foregoing, to the extent the motion to
strike is not rendered moot by the ruling on the demurrer, it is denied.
Date: 10/21/22
Case #21STCV29124
MOTION FOR
SANCTIONS
Motion filed on 8/8/22.
MOVING PARTY: Defendants Igor
Arzumanian, DVM and Balboa Veterinary Medical Center, Inc.
RESPONDING PARTY: Plaintiff Taihina
Tamar
NOTICE: ok
RELIEF REQUESTED: An order imposing sanctions,
pursuant to CCP 128.7, against Plaintiff in an amount the Court finds
reasonable based on the total fees and costs incurred by Defendants.
RULING: The motion is denied.
On 8/5/22, Defendants Igor Arzumanian, DVM and Balboa
Veterinary Medical Center, Inc. (Defendants) served Plaintiff Taihina Tamar
(Plaintiff) with the instant motion for sanctions pursuant to CCP 128.7. (See Proof of Service filed 8/5/22;
Reply p.4:17-18). On 8/5/22, Defendants
filed the memorandum of points and authorities and declaration in support of
the instant motion. On 8/8/22,
Defendants filed the notice of motion and motion.
CCP 128.7(c)(1) provides:
A motion for sanctions under this
section shall be made separately from other motions or requests and shall
describe the specific conduct alleged to violate subdivision (b). Notice of
motion shall be served as provided in Section 1010, but shall not be filed with
or presented to the court unless, within 21 days after service of the motion,
or any other period as the court may prescribe, the challenged paper, claim,
defense, contention, allegation, or denial is not withdrawn or appropriately
corrected. If warranted, the court may award to the party prevailing on the
motion the reasonable expenses and attorney's fees incurred in presenting or
opposing the motion. Absent exceptional circumstances, a law firm shall be held
jointly responsible for violations committed by its partners, associates, and
employees.
(emphasis added)
The opposition to the motion notes Defendants’ failure to
comply with the mandatory safe-harbor period.
(See Opposition p.7:10-p.8:23).
In the reply, Defendants rely on Nutrition Distribution, LLC
(2018) 20 CA5th 117 which provides that “‘[T]he central principle to be
distilled from section 128.7’s language and remedial purpose, as well as from
appellate opinions interpreting section 128.7 and rule 11, is that the safe
harbor period is mandatory and the full 21 days must be provided absent a court
order shortening that time if sanctions are to be awarded.’” (emphasis
added) (See Reply p.3:15-19
citing Nutrition Distribution, LLC, supra at 125 citing Li
(2009) 177 CA4th 585, 595).
Defendants provide no authority to support their argument
that because Plaintiff had the motion in her possession for 77 days before the
hearing date that they are somehow relieved of complying with the statutorily
required “safe-harbor” period. (See
Reply p.3:19-p.5:2).
Here, Defendants failed to comply with the mandatory
21-day “safe-harbor” period before filing the instant motion. Therefore, the motion must be denied. Even if Defendants had complied with the
safe-harbor period set forth in CCP 128.7(c)(1), the motion would be denied as
Defendants have failed to establish that Plaintiff committed sanctionable
conduct under CCP 128.7 in filing and/or refusing to withdraw her Second
Amended Complaint. While the Court is
sustaining parts of Defendants’ demurrer to the Second Amended Complaint
without leave to amend, it has also overruled part of the demurrer and noted
several errors committed by Defendants in relation to the demurrer to and
motion to strike portions of the Second Amended Complaint (i.e., improperly
relying on extrinsic evidence in relation to the 2nd cause of action;
improperly demurring to the 3rd cause of action; failing to set
forth the specific portions of the Second Amended Complaint sought to be
stricken). (See Ruling on
Demurrer & Motion to Strike Second Amended Complaint).