Judge Randolph M. Hammock, Case Number: 23STCV04511, Date: 2023-08-04 Tentative Ruling

Judge: Randolph M. Hammock, Case: 23STCV04511, Date: 2023-08-04 Tentative Ruling

Plaintiffs Isidro Panduro and Alexandra Wilkens allege they brought their German Shephard to Defendant Thrive Pet Healthcare for an umbilical hernia and neuter surgery. Plaintiffs allege their dog suffered complications immediately after the operation that necessitated emergency treatment. Plaintiffs bring causes of action against Defendant for (1) negligence, (2) breach of bailment, (3) trespass to chattel, and (4) intentional infliction of emotional distress.

Defendant’s Motion to Strike is GRANTED. No leave to amend is to be granted at this time. Plaintiff is free to seek leave to amend to add a claim for punitive damages, per noticed motion, per CCP § 425.13, if warranted by the facts and law.

A motion to strike lies either (1) to strike any irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court. (CCP § 436.)

On April 27, 2023, Defendant filed a demurrer and motion to strike. On July 19, 2023, the parties filed a stipulation stating the demurrer would be taken off-calendar and Plaintiffs would withdraw their Fourth Cause of Action for intentional infliction of emotional distress. (See 07/19/2023 Stipulation.) The parties further stipulated the motion to strike would remain on calendar for hearing on this date.

Defendant moves to strike the following portions of the Complaint: (1) The portion of the Complaint entitled “Additional Facts In Support of Exemplary Damages Pursuant to Civil Code §3340,” at page 10, lines 1 through 22, in its entirety; and (2) Paragraph 5 of the Prayer, at page 11, lines 2-3, seeking “punitive damages pursuant to Civil Code §3340 (as to Trespass to Chattel and Intentional Infliction of Emotional Distress Causes of Action)”.

Defendant argues Plaintiffs cannot seek punitive damages because they first must seek permission of the court under Code of Civil Procedure section 425.13. CCP § 425.13(a) provides that “[i]n any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.” For the purposes of this section, “health care provider” means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code. (425.13(b).) Veterinarians are regulated under Division 2, at section 4800 et seq.

Section 425.13 is not limited to malpractice claims. It applies to any claim for injury “directly related to the professional services provided” by a health care provider. (Central Pathology Service Med. Clinic, Inc. v. Sup.Ct. (1992) 3 C4th 181, 191.)

In any action for damages arising out of the professional negligence of a health care provider [including an action against a veterinarian], no claim for punitive damages [under Civil Code §3294, Civil Code 3340, or any other authorizing statute] shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.

Unfortunately, Section 425.13 does not include this bracketed language, much less addresses its application to veterinarians or to these specific Civil Code sections.. Defendant’s counsel simply unilaterally added the bracketed portions. As this issue is hotly contested, Defendant’s modification of the statutory language is plainly improper and misleading. Moreover, the Defendant’s counsel never even indicated that this bracketed language was unilaterally added (apparently to make a point that was made earlier).

Under the Rules of Professional Conduct, an attorney “shall not… knowingly misquote to a tribunal the language of a book, statute, decision or other authority.” (Rules of Professional Conduct, Rule 3.3 [“Candor Toward the Tribunal”]; see also former Rule 5-200.) Defendant is admonished that this court will not tolerate similar misleading statements of law in the future.

In opposition, Plaintiff contends a plaintiff need only seek leave of court if he is seeking punitive damages under Civil Code section 3294. But because Plaintiff seeks punitive damages under Civil Code section 3340, no leave is necessary. Section 3340 provides: “For wrongful injuries to animals being subjects of property, committed willfully or by gross negligence, in disregard of humanity, exemplary damages may be given.”

Although a fair argument, it does not find support in the statute. Section 425.13 addresses punitive damages under section 3294 only in the second sentence, which permits an amended pleading to assert punitive damages against a healthcare provider based on the court’s finding “that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.” (425.13(a).) The statute otherwise speaks generally of any claim “for punitive damages.” (Id.)

In Vazquez, plaintiffs hired a veterinarian to examine a horse they were interested in purchasing. (Vazquez de Mercado v. Superior Ct. (2007) 148 Cal. App. 4th 711.) They later sued the veterinarian for fraud, negligent misrepresentation, and suppression of fact, for allegedly failing to advise them of the horse's physical problem before their purchase. They also sought punitive damages. The Court of Appeal held that plaintiffs did not need to obtain court order to allege punitive damages against the veterinarian under section 425.13.

The Court reasoned that the plaintiffs “sought damages for the purchase price of the horse and costs of its care,” but did not allege wrongful death or personal injury. It continued that “[t]he language defining ‘professional negligence’ as limited to personal injury or wrongful death is clear and unambiguous.” (Id. at 715.) The court concluded by “express[ing] no opinion whether the statute covers injuries to or the death of animals being treated by veterinarians.” (Id. at 716.)

The scenario here appears to be precisely the one Vazquez stopped short of addressing. Plaintiffs have alleged that Defendant committed negligence in its care of their dog, resulting in “out-of-pocket losses, special damages, and other damages.” (Compl. ¶ 14.) They also allege trespass to chattel by nature of Defendant “intentionally appropriat[ing] dominion and control” over the animal. (Id. ¶ 32.)

This court concludes this action is one “for damages arising out of the professional negligence of a health care provider,” which invokes CCP section 425.13. Plaintiffs’ claims are “directly related to the professional services provided” by the veterinarian. (Central Pathology Service Med. Clinic, Inc., supra, 3 Cal.4th at 191.) Because Plaintiffs did not seek leave to seek punitive damages, those allegations are ordered stricken.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.