Judge: Robert B. Broadbelt, Case: 22STCV28025, Date: 2023-08-03 Tentative Ruling

Case Number: 22STCV28025    Hearing Date: August 3, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Defendants Dill Veterinary Hospital, Inc., and Amber Oliver

RESPONDING PARTIES:     Plaintiffs Karen Bang and Linda Agajanian Otey       

(1)   Demurrer to First Amended Complaint

(2)   Motion to Strike Portions of First Amended Complaint

The court considered the moving, opposition, and reply papers filed in connection with the demurrer and motion to strike.

REQUEST FOR JUDICIAL NOTICE

The court denies plaintiffs Karen Bang and Linda Agajanian Otey’s request for judicial notice because (1) the court may not cite and rely on the ruling made in the related case Mark Goodwein, et al. v. Dill Veterinary Hospital, Inc., et al. (Case No. 22STCV26302), and (2) the ruling to be judicially noticed is not relevant to a material issue presented by the pending demurrer and motion to strike.  (Cal. Rules of Ct., rule 8.1115; Malek Media Group LLC v. AXQG Corp. (2020) 58 Cal.App.5th 817, 825 [“Any matter to be judicially noticed must be relevant to a material issue”].)

BACKGROUND

Plaintiffs Karen Bang and Linda Agajanian Otey (“Plaintiffs”) filed the operative First Amended Complaint in this action on December 16, 2022, against defendants Dill Veterinary Hospital, Inc., and Amber Oliver (“Defendants”).  Plaintiffs allege six causes of action for (1) negligence; (2) breach of contract; (3) breach of implied / oral contract; (4) fraudulent inducement; (5) bailment; and (6) breach of the implied covenant of good faith and fair dealing.

Defendants now move the court for an order (1) sustaining their demurrer to the fourth cause of action for fraudulent inducement, and (2) striking from the First Amended Complaint various allegations that Defendants acted willfully and wantonly or with gross negligence, and the prayers for statutory damages, punitive damages, and attorney’s fees and the corresponding allegations.  

DEMURRER

The court sustains Defendants’ demurrer to the fourth cause of action for fraudulent inducement because it does not state facts sufficient to constitute a cause of action since Plaintiffs have not alleged, with the requisite particularity, facts establishing that (1) Defendants made intentional misrepresentations of fact that (2) they knew were false, with (3) the intent to defraud Plaintiffs (i.e., induce reliance), resulting in (4) Plaintiffs’ damage.  (Code Civ. Proc., § 430.10, subd. (e); Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1239 [setting forth elements of cause of action for fraud]; Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 [“In California, fraud must be pled specifically; general and conclusory allegations do not suffice”]; FAC ¶¶ 72-75.)

MOTION TO STRIKE

Defendants move the court for an order striking the following from the First Amended Complaint: (1) the allegations that Defendant acted willfully and wantonly, fraudulently, or with gross negligence, and specifically, the terms “willful and wanton conduct,” “fraudulent inducement[,]” “falsely and fraudulently induced[,]” “to commit fraud[,]” “grossly neglected and/or willfully and wantonly[,]” “gross negligence[,]” “grossly negligent[,]” “acted willfully and/or wantonly with a conscious disregard for the rights of Plaintiffs that had a great probability of causing – and did cause – substantial harm[,]” “and/or grossly negligent acts and/or omissions[,]” “false, misleading, and misrepresentative[,]” and “willfully[,]” as set forth in paragraphs 1, 12, 13, 18, 20, 55, 56, 72, and 88; (2) the term “wrongful conduct” as set forth in paragraphs 2, 3, 51; (3) the term “general” as set forth in paragraph 1 of the prayer; (4) the allegation “calculated using the two generation loss breeding opportunity methodology adopted by the United States District Court for the Southern District of Ohio in Dave Musto v. Paula Zaro, Case No. 2:17-cv-506 (June 21, 2019)” as set forth in paragraph 1 of the prayer; (5) the prayer for statutory damages as set forth in paragraph 2 of the prayer; (6) the prayer for punitive or exemplary damages as set forth in paragraph 2 of the prayer; and (7) the prayer for attorney’s fees, as set forth in paragraph 4 of the prayer.

The court grants Defendants’ motion to strike the portions of paragraphs 1, 12, 13, 18, 20, 55, 56 that allege that Defendants acted willfully and wantonly, fraudulently, and grossly negligent as set forth above because (1) Plaintiffs have not alleged facts establishing that Defendants acted willfully and wantonly or with gross negligence, and (2) Plaintiffs have not, for the reasons set forth in the ruling on the demurrer, alleged facts establishing that Defendants acted fraudulently or fraudulently induced Plaintiffs, such that these allegations are improper.  (Code Civ. Proc., § 436, subd. (a); City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 754 [defining gross negligence “as either a ‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct’”], n. 4 [“By contrast, ‘wanton’ or ‘reckless’ misconduct . . . describes conduct by a person who may have no intent to cause harm, but who intentionally performs an act so unreasonable and dangerous that he or she knows or should know it is highly probable that harm will result”].)

The court denies as moot Defendants’ motion to strike the portions of paragraphs 72 and 88 because they were alleged in support of the fourth cause of action, to which the court has sustained Defendants’ demurrer, and thus these allegations have been removed from the First Amended Complaint.

The court denies Defendants’ motion to strike the terms “wrongful conduct” as included in paragraphs 2, 3, and 51 because these allegations of Defendants’ general wrongful conduct are not improper or irrelevant.  (Code Civ. Proc., § 436, subd. (a).)

The court denies Defendants’ motion to strike the term “general” included in paragraph 1 of the prayer requesting, inter alia, general damages, because (1) Defendants state that they “agree to withdraw their request to strike general damages” if Plaintiffs “are not pursuing emotional distress damages as part of general damages,” and (2) Plaintiffs have stated that they “do not allege claims for emotional distress” and are not “seeking general damages recoverable under such claims.”  (Reply, p. 4:13-15; Opp., 6:2-3.)  

The court denies Defendants’ motion to strike the portion of paragraph 1 of the prayer stating the phrase “calculated using the two generation loss breeding opportunity methodology adopted by the United States District Court for the Southern District of Ohio in Dave Musto v. Paula Zaro, Case No. 2:17-cv-506 (June 21, 2019)” because Defendants have not adequately explained why this allegation is irrelevant, false, improper, or not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court, and therefore have not shown that this allegation should be stricken.  (Code Civ. Proc., § 436.)

The court grants Defendants’ motion to strike the prayer for statutory damages because Plaintiffs have not (1) pleaded any cause of action under statute, or (2) identified the statute that Plaintiffs allege entitles them to statutory damages.  (Code Civ. Proc., § 436, subd. (a).)

The court grants Defendants’ motion to strike the prayer for punitive damages because Plaintiffs have not alleged facts establishing (1) that defendant Amber Oliver was guilty of malice, oppression, or fraud, or (2) advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice on the part of an officer, director, or managing agent of defendant Dill Veterinary Hospital, Inc.  (Code Civ. Proc., § 436, subd. (a); Civ. Code, § 3294, subds. (a), (b).)

The court grants Defendants’ motion to strike the prayer for attorney’s fees because (1) Plaintiffs have not identified a contract or statute entitling them to an award of attorney’s fees, and (2) to the extent that Plaintiffs contend they may receive attorney’s fees pursuant to their fourth cause of action for fraudulent inducement, the court has sustained the demurrer to that cause of action and thus the remedies requested in support of it have been removed from the First Amended Complaint.  (Code Civ. Proc., §§ 436, subd. (a), 1021; Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1601 [“Unless a contract or statute provides otherwise, each party to a lawsuit must pay its own attorney fees”].)

ORDER

The court sustains defendants Dill Veterinary Hospital, Inc. and Amber Oliver’s demurrer to plaintiffs Karen Bang and Linda Agajanian Otey’s fourth cause of action for fraudulent inducement.

The court grants in part defendants Dill Veterinary Hospital, Inc. and Amber Oliver’s motion to strike portions of plaintiffs Karen Bang and Linda Agajanian Otey’s First Amended Complaint as follows.

The court orders that the following allegations are stricken from plaintiffs Karen Bang and Linda Agajanian Otey’s First Amended Complaint: (1) the portion of paragraph 1 that states “willful and wanton conduct, fraudulent inducement[;]” (2) the portion of paragraph 12 that states “falsely and fraudulently induced[;]” (3) the portion of paragraph 13 that states “to commit fraud[;]” (4) the portion of paragraph 18 that sates “grossly neglected and/or willfully and wantonly[;]” (5) the portion of paragraph 20 that states “gross negligence[;]” (6) the portions of paragraph 55 that state “grossly negligent” and “acted willfully and/or wantonly with a conscious disregard for the rights of Plaintiffs that had a great probability of causing – and did cause – substantial harm[;]” and (7) the portion of paragraph 56 that states “and/or grossly negligent acts and/or omissions[.]”

The court also orders that the following requests are stricken from plaintiffs Karen Bang and Linda Agajanian Otey’s prayer: (1) the request for “statutory damages” set forth in paragraph 2 of the prayer; (2) the request for “punitive or exemplary damages” set forth in paragraph 2 of the prayer; and (3) the request for “reasonable attorneys’ fees” set forth in paragraph 4 of the prayer.

The court denies all other relief requested in defendants Dill Veterinary Hospital, Inc. and Amber Oliver’s motion to strike portions of plaintiffs Karen Bang and Linda Agajanian Otey’s First Amended Complaint.

The court grants plaintiffs Karen Bang and Linda Agajanian Otey 20 days leave to file a Second Amended Complaint that cures the deficiencies outlined in this ruling.

The court orders defendants Dill Veterinary Hospital, Inc. and Amber Oliver to give notice of this ruling.

IT IS SO ORDERED.

DATED:  August 3, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court