Judge: Stephen Morgan, Case: 21AVCV00812, Date: 2022-09-06 Tentative Ruling

Case Number: 21AVCV00812    Hearing Date: September 6, 2022    Dept: A14

Background

This is a non-personal injury/property damage action. Plaintiffs William Fonnegra (“Fonnegra”) and Ashley Combs (“Combs” and collectively “Plaintiffs”) allege the following: 

(1) Plaintiffs relied on the websites to find information regarding Defendants Mission Animal Hospital (“MAH”); Young Joo Kim (“Dr. Kim”); and Companion Animal Medical Care, Inc dba Central Orange County Emergency Animal Hospital Erroneously Sued as Central Orange County Emergency Animal Hospital, Inc. (“COC”). Dr. Kim and COC shall be collectively addressed as COC Defendants. 

(2) Plaintiffs took their dog, Ozzy, to MAH because he was in need of surgery. MAH informed Plaintiffs that: (1) initially Ozzy was not ready for surgery; (2) later, Ozzy was ready for immediate surgery; (3) offered a deal, which was agreed upon, where if Combs paid $4,000 up front, it would be an all-inclusive and a capped cost, with no further charges, even if Ozzy required unusual or prolonged additional care; (2) Plaintiff should not tell anyone outside MAH; and (3) the MAH employee did not mention COC’s portion of the fee with respect to the above advertising, marketing, and/or offer; (4) surgery would be done at COC and on January 16, 2021 and that they would transport Ozzy from MAH to COC; and (5) the following guidelines for transport were represented: MAH would use two veterinarian technicians for Ozzy’s safety, transport Ozzy alone for Ozzy’s safety; and (3) Ozzy would be crated at all times, again for his safety. 

(3) On January 16, 2021, MAH lost Ozzy during transport and Plaintiffs were not notified until 9 pm. 

(4) On January 17, 2021, Plaintiffs learned that Ozzy was killed overnight and MAH and COC had executed a unified concealment via a MAH employee named “Luis.” 

(5) “Luis” informed Plaintiffs “(1) I thought you [Plaintiffs] should know the truth; (2) during transport, our MAH employee was involved in a bad [motor vehicle] accident; (3) a Good Samaritan stopped to help as the police came; (4) after the police took their report (5) our MAH employee had the Good Samaritan finish taking OZZY to COC. It was (6) at COC where OZZY was lost by the COC vet tech who took OZZY out of the Good Samaritan’s car when (7) the COC vet tech let go of or lost hold of OZZY’s leash, then tried to step on OZZY’s leash and missed, which startled OZZY and caused him to run away. Which was possible because (8) OZZY was never in a crate and (9) there was commotion from the second dog that should not have been present, because OZZY was supposed have been transported alone by MAH (10) with two MAH employees, but we only used one.” (Complaint, ¶ 66.) 

On October 14, 2021, Plaintiffs filed their Complaint alleging 11 causes of action for: (1) Violation of Cal. Civ. Code § 1750 et seq. (CLRA), (2) Violation of Bus. & Prof. Code § 17500 et seq. (FAL), (3) Violation of Bus. & Prof. Code § 17200, et seq. (UCL), (4) Breach of Contract, (5) Breach of Express Warranty, (6) Breach of Implied Covenant of Good Faith and Fair Dealing, (7) Fraudulent Concealment, (8) Breach of Bailment, (9) Conversion, (10) Professional Negligence, (11) Intentional Infliction of Emotional Distress (“IIED).  

On January 05, 2022, Defendants Ayman Shawky Ibrahim, DVM; Andrew Said, DVM; and MAH (collectively “MAH Defendants”) filed a Demurrer, subsequently sustained in part and overruled in part.  

On March 16, 2022, Plaintiffs filed their First Amended Complaint (“FAC”) alleging ten causes of action for: (1) Violation of Cal. Civ. Code § 1750 et seq. (CLRA); (2) Violation of Bus. & Prof. Code § 17500 et seq. (FAL); (3) Violation of Bus. & Prof. Code § 17200, et seq. (UCL); (4) Breach of Contract; (5) Breach of Implied Covenant of Good Faith and Fair Dealing; (6) Fraudulent Concealment; (7) Breach of Bailment; (8) Negligence; (9) Intentional Misrepresentation; and (10) Negligent Misrepresentation. 

On May 12, 2022, MAH Defendants filed a Demurrer with Motion to Strike. On June 14, 2022, a hearing was held on the matter and Plaintiffs’ Ninth Cause of Action (Intentional Misrepresentation) and Tenth Cause of Action (Negligent Misrepresentation) were stricken under the Court’s discretion pursuant to Cal. Code Civ. Proc. § 436 as these causes of action are not filed in conformity with the Court’s previously issued order on the Demurrer to the Complaint.

Concurrently, on May 12, 2022, the Motion for Determination of Good Faith Settlement under Cal. Code Civ. Proc. § 877.6 filed by COC and Dr. Kim was granted.

On July 28, 2022, Plaintiffs filed a Motion for Leave to Amend the First Amended Complaint.

No Opposition has been filed. “All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days. . . before the hearing.” (Cal. Code Civ. Proc. § 1005(b).) The noticed hearing is set for September 06, 2022. An Opposition was due on August 23, 2022. Should an Opposition be filed, it is now untimely.

On August 26, 2022, Plaintiffs filed their Reply. However, the Reply is more akin to a Notice of Non-Opposition as it states that Defendants did not oppose this instant motion and, if Defendants were to file an Opposition now, it would be untimely and prejudicial to Plaintiffs.

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Legal Standard

Standard for Leave to Amend – “A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading.” (Cal. Code Civ. Proc. § 472(a).) 

Trial courts may, in furtherance of justice and on any proper terms, allow a party to amend any pleading. (Cal. Code Civ. Proc., §473(a)(1); Branick v. Downey Savings & Loan Association (2006) 39 Cal.4th 235, 242.) Trial courts may also, in their discretion and after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. (Cal. Code Civ. Proc., §473(a); Branick, supra, 39 Cal.4th at 242.) Leave to amend is generally liberally granted, provided there is no statute of limitations concern. (Kolani v. Gluska (1998) 64 Cal.App.4th 402, 411.) Additionally, “judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal. App. 3d 1045, 1047.) Trial courts may deny the plaintiff’s leave to amend if there is prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation. (Branic, supra, at 242.) 

Under California Rules of Court Rule 3.1324, a motion to amend a pleading before trial must (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. (Cal. Rules of Court, Rule 3.1324(a).) A separate supporting declaration specifying (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reason why the request for amendment was not made earlier must accompany the motion. (Id., Rule 3.1324(b).) 

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Discussion

Application – Plaintiffs seek leave to amend the First Amended Complaint to add three causes of action for Violation of Bus. & Prof. Code section 17200 et seq., Intentional Misrepresentation, and Negligent Misrepresentation.

Plaintiffs argue that leave to amend must be granted as (1) the Court has authority to grant leave to amend, (2) Plaintiffs have complied with the requirements to seek leave to amend in Cal. Rules of Court, Rule 3.1324, and (3) it would be an abuse of discretion for the Court to deny Plaintiff’s request.

Cal. Rules of Court, Rule 3.1324 states, in relevant part:

(a) Contents of the motion

A motion to amend a pleading before trial must:

(1)  Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;

(2)  State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and

(3)  State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

(b) Supporting declaration

A separate declaration must accompany the motion and must specify:

(1)  The effect of the amendment;

(2)  Why the amendment is necessary and proper;

(3)  When the facts giving rise to the amended allegations were discovered; and

(4)  The reasons why the request for amendment was not made earlier.

(Cal. Rules of Court, Rule 3.1324(a)-(b).)

Plaintiffs have included the proposed Second Amended Complaint (“SAC”), stated the allegations proposed to be delated and added, the reasoning behind why the amendments are proper, when the facts giving rise to the amendment were discovered, why the request for an amendment was not made earlier, and provided a declaration explaining the aforementioned facts and reasoning as well.

The Court notes, however, that Plaintiffs’ proposed SAC lists COC and Dr. Kim as Defendants despite the Good Faith Settlement. Procedurally, this is improper as COC and Dr. Kim were dismissed on June 29, 2022 pursuant to the good faith settlement. Should this specific proposed SAC be allowed, COC and Dr. Kim would once again be listed as defendants in this action for the same claims that they have already settled with Plaintiffs for.

The Court notes that it had sustained MAH Defendants’ first Demurrer on January 04, 2022 for the Tenth Cause of Action (Conversion). Upon further research, it appears that a claim for Conversion in this action may be brought. Specifically, it appears that there are two schools of thought: (1) that conversion must include some form of knowledge or intent (see George v. Bekins Van & Storage Co. (1949) 33 Cal. 2d 834, 837 [“If redelivery is impossible, however, because the goods have been lost or destroyed, either without fault on the part of the bailee or merely because of his negligence, there is no conversion. . .Negligence in caring for the goods is not an act of dominion over them such as is necessary to make the bailee liable as a converter.”]; Taylor v. Forte Hotels Int'l (1991) 235 Cal.App.3d 1119, 1124 [“The act must be knowingly or intentionally done, but a wrongful intent is not necessary.”]; Spates v. Dameron Hosp. Assn. (2003) 114 Cal.App.4th 208, 222 [“ ‘To establish a conversion, it is incumbent upon the plaintiff to show an intention or purpose to convert the goods and to exercise ownership over them, or to prevent the owner from taking possession of the property.’ ”]; Duke v. Superior Court (2017) 18 Cal.App.5th 490, 508 [“To prove a cause of action for conversion, the plaintiff must show the defendant acted intentionally to wrongfully dispose of the property of another.”]) and (2) that conversion is a strict liability tort (see Poggi v. Scott (1914) 167 Cal. 372 [“The foundation for the action of conversion rests neither in the knowledge nor the intent of the defendant. It rests upon the unwarranted interference by defendant with the dominion over the property of the plaintiff from which injury to the latter results. Therefore, neither good nor bad faith, neither care nor negligence, neither knowledge nor ignorance, are of the gist of the action.”] Moore v. Regents of University of California (1990) 51 Cal.3d 120, 144 and fn. 38 [conversion is a strict liability tort, citing Byer v. Canadian Bank of Commerce (1937) 8 Cal.2d 297 and City of Los Angeles v. Superior Court (1978) 85 Cal. App.3d 143, 149]; Burlesci v. Petersen (1998) 68 Cal. App. 4th 1062, 1066 [“Conversion is a strict liability tort.”]; Voris v. Lampert (2019) 7 Cal.5th 1141, 1150 [“ ‘As it has developed in California, the tort comprises three elements: “(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.’ [citations] Notably absent from this formula is any element of wrongful intent or motive; in California, conversion is a ‘strict liability tort.’ [Citations.]”]).  

The California Supreme Court is clear: 

Conversion is an “ancient theory of recovery” with roots in the common law action of trover. (Note, The Conversion of Intangible Property: Bursting the Ancient Trover Bottle with New Wine (1991) 1991 B.Y.U. L.Rev. 1681, 1683; see id. at pp. 1683–1685 [tracing early development of conversion].) “This action originated at an early date as a remedy against the finder of lost goods who refused to return them to the owner but instead ‘converted’ them to his own use.” (Rest.2d Torts, § 222A, com. a., p. 431.) Over time, the action was extended to cases involving “dispossession, or … withholding possession by others than finders.” (Id. at p. 432.) Today, HN3 the tort of conversion is understood more generally as “the wrongful exercise of dominion over personal property of another.” (5 Witkin, Summary of Cal. Law (11th ed. 2017) Torts, § 810, p. 1115; see, e.g., Steele v. Marsicano (1894) 102 Cal. 666, 669 [36 P. 920].) 

As it has developed in California, the tort comprises three elements: “(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.” (5 Witkin, supra, Torts, § 810, p. 1115; Welco Electronics, Inc. v. Mora (2014) 223 Cal.App.4th 202, 208 [166 Cal. Rptr. 3d 877].) Notably absent from this formula is any element of wrongful intent or motive; in California, conversion is a “strict liability tort.” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 144 [271 Cal. Rptr. 146, 793 P.2d 479] (Moore); id. at p. 144, fn. 38 [“‘“conversion rests neither in the knowledge nor the intent of the defendant”’”]; accord, Poggi v. Scott (1914) 167 Cal. 372, 375 [139 P. 815] (Poggi) [“neither good nor bad faith, neither care nor negligence, neither knowledge nor ignorance, are of the gist of the action. ‘… [T]he tort consists in the breach of what may be called an absolute duty … .’”].) 

(Voris, supra, 7 Cal.5th 1141, 1150.) 

The Court notes that George v. Bekins Van & Storage Co. (1949) 33 Cal.2d 834 is also a California Supreme Court case. The Court believes that move to strict liability is likely due to the change in thought over 73 years. Additionally, a recent California Fifth District Court of Appeals case, citing both Taylor v. Forte Hotels Int'l (1991) 235 Cal.App.3d 1119 and Voris v. Lampert (2019) 7 Cal.5th 1141 states that “[The formula for conversion] does not contain any element of wrongful intent or motive because conversion in California is a strict liability tort. (Ibid.) In other words, ‘neither good nor bad faith, neither care nor negligence, neither knowledge nor ignorance, are of the gist of the action. … ‘[T]he tort consists in the breach of what may be called an absolute duty. . .’ [Citations.]” (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1021.) 

The Court, bound by case precedent, especially that of the Supreme Court of California as the state’s highest court, follows the strict liability rule for conversion. 

Accordingly, the Court GRANTS Plaintiffs’ Motion for Leave to Amend to add three causes of action for Violation of Bus. & Prof. Code section 17200 et seq., Intentional Misrepresentation, and Negligent Misrepresentation. The Court also allows leave to amend to add a claim for Conversion. As the proposed filing has some errors regarding defendants and does not include the claim for Conversion, the Court conditions the leave to amend upon a filing of a new proposed SAC.

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Conclusion