Judge: Stephen Morgan, Case: 22AVCV00257, Date: 2022-08-25 Tentative Ruling

                                                                           Department A14 Tentative Rulings 

If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at ATPDeptA14@LACOURT.ORG. 

If a matter is also scheduled for a CMC, TSC, OSC, etc., an appearance is still required even if the parties are willing to submit on the tentative ruling.



Case Number: 22AVCV00257    Hearing Date: August 25, 2022    Dept: A14

Background

 

This is a non-personal injury/property damage action. Plaintiff Debra Nwankwo (“Plaintiff”) alleges that she took her dog, Kali, in to Defendant Mission Animal Hospital (“MAH”) for assessment on May 03, 2021 as Kali was in pain and unable to jump. Plaintiff alleges that she paid $260 for X-rays and pain medication and was told that she had two treatment options: (1) pain injections that would be a temporary fix and surgery would ultimately be needed in the near future, and (2) surgery. Plaintiff further alleges that she did not have the money for surgery, but was told that MAH could use their donation box to help cover the balance. Plaintiff presents that she returned to MAH on the same day and presented $3,000.00 and a $500.00 voucher for the surgery and was told that (1) the surgery would be discounted by $300.00, (2) $500.00 would still need to be paid once surgery was completed, (3) transportation would be needed as the surgery had to be done by a specialist in Orange County, and (4) Kali would need to stay an estimated two weeks at MAH pending the appointment so that Kali could be observed by staff at MAH and they could manage her pain. Plaintiff concedes that she signed the paperwork to authorize the surgery.  Following the initial paperwork, Plaintiff alleges that on or about 7 am on the morning of May 05, 2021, Defendant Ayman Shawky Ibrahim, DVM (“Dr. Ibrahim” and collectively “Defendants”), called her explaining that (1) he transported Kali to the surgeon in Orange County the previous night at 9:00 pm; (2) the surgeon refused to the surgery and said that Kali did not need surgery as the issue was common and would resolve on its own; (3) Dr. Ibrahim returned to Lancaster at 1:00 am and took Kali to his house as MAH was closed; (4) when he tried to take Kali out of the vehicle, she jumped from his arms and ran away; (5) Dr. Ibrahim was not able to catch Kali, provided the location he lost her at, and explained that he had been looking for her since 1 am; (6) asked Plaintiff to come help look for Kali; and (6) that Dr. Ibrahim had to return to work, but that he had already notified animal control. Plaintiff contends that she and her family went to the location to look for Kai and then called animal control who told Plaintiff that they had no knowledge of Kali being reported missing.

 

Plaintiff filed her Complaint on April 18, 2022. The operative pleading is the First Amended Complaint (“FAC”) alleging seven (7) causes of action for: (1) Breach of Oral and Implied Contract, (2) Breach of Implied Covenant of Good Faith and Fair Dealing; (3) Fraudulent Concealment; (4) Breach of Bailment; (5) Conversion; (6) Negligence; and (7) Intentional Infliction of Emotional Distress (“IIED”).

 

On June 26, 2022, Defendants filed their Demurrer to the FAC with Motion to Strike.

 

On June 29, 2022, Defendants filed their Motion to Strike.

 

On August 12, 2022, Plaintiff filed her Oppositions to the Demurrer and the Motion to Strike.

 

On August 18, 2022, Defendants filed their Replies to Plaintiff’s Oppositions.

 

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Legal Standard(s)

 

Standard for Demurrer – A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v.¿Mirda¿(2007) 147 Cal. App. 4th 740, 747.) ¿When considering demurrers, courts read the allegations liberally and in context.¿ (Taylor v. City of Los Angeles Dept. of Water and Power¿(2006) 144 Cal. App. 4th 1216, 1228.)¿ In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice.¿ (CCP § 430.30(a).)¿A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.¿ (SKF Farms v. Superior Court¿(1984) 153 Cal. App. 3d 902, 905.)¿ Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.¿¿(Id.)¿¿The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.¿ (Hahn,¿supra,¿147 Cal.App.4th at 747.)¿¿¿ 

¿¿¿ 

A general demurrer admits the truth of all factual, material allegations properly pled in the challenged pleading, regardless of possible difficulties of proof.¿¿(Blank,¿supra, 39 Cal.3d at p. 318.)¿ Thus, no matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer.¿¿(Del E. Webb Corp. v. Structural Materials Co.¿(1981) 123 Cal.App.3d 593, 604.)¿ Nevertheless, this rule does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits to the complaint or by matters of which judicial notice may be taken.¿¿(Vance v. Villa Park¿Mobilehome¿Estates¿(1995) 36 Cal.App.4th 698, 709.)¿ A general demurrer does not admit contentions, deductions, or conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.¿¿(Blank,¿supra, 39 Cal.3d at p. 318.)¿¿¿¿ 

 

Pursuant to¿Code Civ. Proc.¿§430.10(e), the party against whom a complaint has been filed may object by demurrer to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action.¿ It is an abuse of discretion to sustain a demurrer if there is a reasonable probability that the defect can be cured by amendment.¿¿(Schifando¿v. City of Los Angeles¿(2003) 31 Cal.4th 1074, 1082,¿as modified (Dec. 23, 2003).)¿¿¿¿ 

 

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¿ 

Standard for Motion to Strike – The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id. § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id. § 437.)¿¿ 

 

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Meet and Confer Requirement¿– Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer.¿ (Cal. Code Civ.¿Proc. §430.41 and §435.5.)¿ The Court notes that this requirement has been met. (Decl. Emily F. Burdine ¶¶ 4-5.)

 

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Discussion

 

Application –

 

  1. Demurrer

 

  1.  First Cause of Action (Breach of Oral and/or Implied Contract)

 

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff’s performance of the contract or excuse for nonperformance, (3) the defendant’s breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

 

“ ‘Under California law, a contract will be enforced if it is sufficiently definite (and this is a question of law) for the court to ascertain the parties' obligations and to determine whether those obligations have been performed or breached.’ [Citation.] ‘To be enforceable, a promise must be definite enough that a court can determine the scope of the duty[,] and the limits of performance must be sufficiently defined to provide a rational basis for the assessment of damages.’ [Citations.] [. . .] ‘The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.’ [Citation.] But ‘[i]f … a supposed ‘contract’ does not provide a basis for determining what obligations the parties have agreed to, and hence does not make possible a determination of whether those agreed obligations have been breached, there is no contract.’ [Citation.]” (Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 209 (“Bustamante”) [internal citations omitted].)

 

Here, the pleadings have alleged an oral contract and an implied contract. The basis of the contract is money for services – payment of $3,000.00 by Plaintiff before services and a payment of $500.00 after services for surgery on Kali’s knee. Further terms include: (1) transportation to Orange County, (2) Kali’s surgery would be done by a specialist in Orange County, (3) two weeks of observation pending an appointment so that Kali could be observed by staff at MAH and MAH could manage Kali’s pain, and (4) Kali would be safe. (FAC ¶¶ 19-20, 28.) Regarding the implied contract, Plaintiff alleges that the parties entered into an implied agreement that “Defendants would act with reasonable care in their transport and treatment of KALI.” (Id. at ¶ 46.) The terms are reasonably certain as the provide a basis for determining “the existence of a breach and for giving an appropriate remedy.” (Bustamante, supra, 141 Cal.App.4th at 209.)

 

Defendants include arguments that an implied agreement is more of a tort duty than a contract, that no special relationship exists between the parties, that it was impossible for Kali to receive the surgery, and that it was Kali’s fault that safe transport was not possible. A demurrer tests the pleadings alone and such arguments are not consistent with the standard of a demurrer. As such, the Court disregards these arguments.

 

Plaintiff argues that she has detailed the specific terms of the contract in the FAC and a breach. Specifically:

 

 

(FAC, see respective paragraphs.)

 

Defendant’s Reply argues that the contract is not sufficiently definite as there was no discussion of what would happen if Kali was not candidate for surgery, if Kali jumped from her arms, and that the scope of the duty was not definite.

 

The Court finds the pleadings sufficient regarding the alleged contract and breach.

 

Accordingly, the Demurrer to the First Cause of Action (Breach of Contract) is OVERRULED.

 

  1. Second Cause of Action (Breach of Implied Covenant of Good Faith and Fair Dealing)

 

The elements for breach of the implied covenant of good faith and fair dealing are: (1) existence of a contract between plaintiff and defendant; (2) plaintiff performed his contractual obligations or was excused from performing them; (3) the conditions requiring defendant’s performance had occurred; (4) the defendant unfairly interfered with the plaintiff’s right to receive the benefits of the contract; and (5) the plaintiff was harmed by the defendant’s conduct. (Merced Irr. Dist. V. County of Mariposa¿(E.D. Cal. 2013) 941 F.Supp.2d 1237, 1280 [discussing California law].) Allegations must demonstrate defendant’s conduct for failure or refusal to discharge contractual responsibilities was a conscious and deliberate act, not an honest mistake, bad judgment or negligence. (Id.) “‘[T]he implied covenant of good faith and fair dealing is limited to assuring compliance with the¿express terms¿of the¿contract, and¿cannot be extended to create obligations not contemplated by the contract.’” (Ragland v. U.S. Bank Nat. Assn.¿(2012) 209 Cal.App.4th 182, 206 (quoting¿Pasadena Live v. City of Pasadena¿(2004) 114 Cal.App.4th 1089, 1094).)¿ 

 

Defendant argues that this is duplicative claim for contract damages. Defendant believes that Plaintiff’s allegations that Defendants “did not act fairly or in good faith” (FAC ¶ 56) are conclusory. Further, Defendant argues that Plaintiff has failed to plead a conscious or deliberate act as opposed to one that was an honest mistake, bad judgment, or negligence. Specifically, Defendant highlights that Kali’s decision to jump out of Dr. Ibrahim’s hands was not a deliberate act on the part of Defendants.

Plaintiff argues that the covenant of good faith and fair dealing is implied in every contract and, as such, it is difficult to differentiate or separate facts when they relate to the same fact pattern. However, Plaintiff claims that she alleges more than a breach of contract as bad faith is alleged:

 

 

(FAC, see relevant paragraphs.)

 

Plaintiff also focuses on Dr. Ibrahim’s alleged conscious or deliberate decision to not inform her of Kali’s disappearance for hours.

 

Defendants rebut Plaintiff’s arguments by stating that: (1) that this action is a simple breach of contract; (2) Plaintiff fails to allege how any breach is more than an honest mistake, bad judgment, or negligence rather than a deliberate act; and (3) Dr. Ibrahim’s failure to call Plaintiff until the following morning was not bad faith.

 

Case law holds that “[a]lthough breach of the implied covenant often is pleaded as a separate count, a breach of the implied covenant is necessarily a breach of contract;” however, “[b]reaches of distinct contractual obligations may properly be pleaded as separate counts.” (Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 865, including fn. 4 [citing Careau & Co. v. Security Pacific Business Credit, Inc., 222 Cal.App.3d 1371 (“Careau”).) Careau provides more detail: 

 

 [A]llegations which assert [a claim of breach of the implied covenant of good faith and fair dealing] must show that the conduct of the defendant, whether or not it also constitutes a breach of a consensual contract term, demonstrates a failure or refusal to discharge contractual responsibilities, prompted not by an honest mistake, bad  judgment or negligence but rather by a conscious and deliberate act, which unfairly frustrates the agreed common purposes and disappoints the reasonable expectations of the other party thereby depriving that party of the benefits of the agreement. Just what conduct will meet these criteria must be determined on a case by case basis and will depend on the contractual purposes and reasonably justified expectations of the parties. If the allegations do not go beyond the statement of a mere contract breach and, relying on the same alleged acts, simply seek the same damages or other relief already claimed in a companion contract cause of action, they may be disregarded as superfluous as no additional claim is actually stated. Thus, absent those limited cases where a breach of a consensual contract term is not claimed or alleged, the only justification for asserting a separate cause of action for breach of the implied covenant is to obtain a tort recovery.”  

 

(Careau, supra, 222 Cal.App.3d 1371, 1395.) 

 

Plaintiff’s FAC references the First Cause of Action (Breach of Contract) and pleads:

 

As pled above, Plaintiff and Defendants, each and together, entered into one or more oral and implied contracts. Plaintiff did all, or substantially all, of the significant things that the contract(s) required Plaintiff to do and/or was excused from having to do those things. All condition required for Defendants’ performance had occurred or excused. However, Defendants’ conduct, misrepresentations, omissions, and concealments, as pled above, prevented Plaintiff from receiving benefits under the contract;

 

By doing each of the above, Defendants, each and together, did not act fairly or in good faith.

 

Plaintiff was harmed directly, proximately, and as a substantial factor by Defendants’ above conduct, each and together.

 

(FAC at ¶¶ 55-57.)

 

Here, the Second Cause of Action (Breach of Implied Covenant of Good Faith and Fair Dealing) is duplicative of the First Cause of Action. The issues of misrepresentation, omissions, and concealments have already been pled. However, California law permits plaintiffs to plead inconsistent or alternative counts. (Rader Co. v. Stone (1986) 178 Cal.App.3d 10, 29.) It appears that Plaintiff has plead this count in the FAC in order to achieve the alternate remedy of tort recovery.

 

The issue of a special relationship, which allows for a tort recovery, is one for a Motion for Summary Judgment and not a Demurrer.

 

The issue of bad faith is “ordinarily a question of fact for the jury by considering the evidence of motive, intent and state of mind, ‘[t]he question becomes one of law . . . when, because there are no conflicting inferences, reasonable minds could not differ. [Citation.]’ ” (Dalrymple v. United Services Auto. Assn. (1995) 40 Cal.App.4th 497, 511 [bad faith in insurance context].) Here, reasonable minds could differ and, thus, the issue of bad faith is the province of the jury and not one subject to a court’s ruling on a demurrer.

 

Accordingly, the Demurrer to the Second Cause of Action (Breach of Implied Covenant of Good Faith and Fair Dealing) is OVERRULED.

 

  1. Third Cause of Action (Fraudulent Concealment)

 

“[T]he elements of an action for fraud and deceit based on a concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248 [129 Cal.Rptr.3d 874].) “In California, fraud must be pled specifically; general and conclusory allegations do not suffice. . . This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Id., at p. 645, italics in original.) Further, “in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke,¿what they said or wrote, and when the representation was made.” (West v. JPMorgan Chase Bank, N.A.¿(2013) 214 Cal.App.4th 780, 793.)¿ 

 

Defendants present that Plaintiffs (1) do not allege any facts with specificity to show an intentional failure to disclose, an intent to defraud, or reliance on any purported concealed or suppressed facts; and (2) the facts alleged did not induce Plaintiff to put Kali in the care of Defendants as Kali was already in Defendants’ care. Defendant also highlights that Plaintiff did not allege that she would have transported Kali to Orange County and that Plaintiff does not allege how stating that Defendants would take care of Kali is an “advertising strategy” used to obtain patients with an intent to defraud owners.

 

Plaintiff argues that she has properly pled this cause of action because she has pled:

 

 

The Court has read the pleadings in its entirety. The Court believes that Plaintiff is alleging fraud on the basis of the following: (1) Defendants told Plaintiff that Kali needed surgery (medical advice), (2) that Kali would be safe, (3) that “[they transport animals to Orange County] all the time” (FAC at ¶ 25), (4) that Dr. Ibrahim did not contact Plaintiff when Kali was lost, and (5) that Dr. Ibrahim contacted animal control when animal control had no record that Kali was lost.

 

Defendant argues that Dr. Ibrahim communicated to Plaintiff that Kali was missing, that there was no reliance on the part of Plaintiff because she began to look for Kali once she knew Kalu was missing, and that the act of waiting to call Plaintiff was not an intent to defraud. Defendant further argues that it did not know that the Orange County vet would not perform surgery on Kali and, therefore it was not concealed and that Plaintiff does not plead factual allegations to show she would have transported Kali 100 miles to Orange County instead of having Dr. Ibrahim do so.

 

The pleadings allege that there was a special relationship between Defendants and Plaintiff due to their treatment relationship with Kali and bailment relationship with Plaintiff.

 

The Court does not believe that the Third Cause of Action (Fraudulent Concealment) is sufficiently pled. First, Plaintiff’s claim spans prior to Plaintiff entrusting Kali to Defendants, but also afterwards to when Dr. Ibrahim lost Kali. “[T]here are two causation elements in a fraud cause of action. First, the plaintiff’s actual and justifiable reliance on the defendant’s misrepresentation must have caused him to take a detrimental course of action. Second, the detrimental action taken by the plaintiff must have caused his alleged damage.” (Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1062.) In the case of an omission, “[o]ne need only prove that, had the omitted information been disclosed, one would have been aware of it and behaved differently.” (Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1093.) Thus, the crux of a claim of Fraudulent Concealment is what misrepresentation (1) induced Plaintiff to entrust Kali to Defendants, and (2) that Plaintiff’s entrustment of Kali to Defendants led to her alleged damages. Second, “in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke,¿what they said or wrote, and when the representation was made.” (West v. JPMorgan Chase Bank, N.A.¿(2013) 214 Cal.App.4th 780, 793.)¿ 

 

As to Defendant’s arguments regarding fraudulent intent, it is not appropriate for a demurrer nor will the Court will impinge on the province of the jury. (See Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1061 [“[F]raudulent intent is an issue for the trier of fact to decide.”].)

 

Accordingly, the Court SUSTAINS the Demurrer to the Third Cause of Action (Fraudulent Concealment) with leave to amend.

 

  1. Fourth Cause of Action (Breach of Bailment)

 

“In an action for breach of a bailment contract, the bailor must prove that the agreement is a bailment contract, the property was deposited with the bailee, a demand was made for the property, and the bailee failed to return the property.” (Needelman v. DeWolf Realty Co., Inc. (2015) 239 Cal.App.4th 750, 762.) 

 

Defendants argue that a Breach of Bailment Claim is premised on a Negligence claim and, as Plaintiff did not properly allege negligence, the Breach of Bailment claim should be sustained without leave to amend. Plaintiff argues that the negligence claim is pled properly and Defendant rebuts this argument in its Reply. See infra for Negligence analysis.

 

Here, there is no question that the contract is one concerning bailment. “ ‘[A] bailment is the delivery of a thing to another for some special object or purpose, on a contract, express or implied, to conform to the objects or purposes of the delivery which may be as various as the transactions of men [citation].’ [Citation.]” (Gebert v. Yank (1985) 172 Cal.App.3d 544, 550-51.) Here, Kali was entrust to Defendants for the special purpose of a surgery with a specialist in Orange County.

 

California Courts have applied the rule in Conversion claims, that a demand is unnecessary where the acts of the defendant show a conversion or where, under the facts, a demand would be futile, to Breach of Bailment claims. (Downey v. Martin Aircraft Service, Inc. (1950) 96 Cal.App.2d 94, 100.) On its face, it appears that a claim for Breach of Bailment exists. 

 

Accordingly, the Demurer for the Fourth Cause of Action (Breach of Bailment) is OVERRULED.

 

  1. Fifth Cause of Action (Conversion)

 

“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.” (Lee v. Hanley (2015) 61Cal.4th 1225, 1240. “ ‘Conversion is any act of dominion wrongfully exerted over another’s personal property in denial of or inconsistent with his rights therein.’” (Enterprise Leasing Corp. v. Shugart Corp.¿(1991) 231 Cal.App.3d 737, 747 (quoting¿Messerall¿v. Fulwider¿(1988) 199 Cal.App.3d 1324, 1329).) “‘It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use.’ ” (Id.)¿ “[C]onversion¿can occur when a willful failure to return property deprives the owner of possession.”¿¿(Fearon v. Department of Corrections¿(1984) 162 Cal.App.3d 1254, 1257.)¿ 

 

Defendants argue that conversion includes intent (citing Spates v. Dameron Hosp. Assn. (2003) 114 Cal.App.4th 208, 221). Defendant also presents that case law states that “[n]egligence 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[]” (citing George v. Bekins Van & Storage Co. (1949) 33 Cal.2d 834, 837). Defendant presents that redelivery of Kali was impossible, Dr. Ibrahim searched for Kali but could not find her, and, due to these facts, Defendants are not liable for conversion.

 

Plaintiff argues that Defendants arguments fail as Plaintiff has alleged that the injury resulted from more than just Defendants’ negligence as the injury was a result of concealments, misrepresentations, and a breach of an oral and implied contract between the parties and that, in a conversion claim, the intent is not what matters, but rather the intentional act itself.

 

Defendants rebut by arguing: (1) the breach of contract claim is more like a negligence claim; (2) Defendants did not conceal facts or make representations to assert dominion over Kali; and (3) interreference was not unwarranted as Dr. Ibrahim had permission to transport Kali.

 

The Court has done extensive research on California case law. 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.

 

Here, Kali, who is seen by the law as personal property, was given over to Defendants, Defendants interfered with Kali by losing her, Plaintiff did not consent to the loss, Plaintiff was harmed as Kali was never found, and Dr. Ibrahim’s conduct was a substantial factor in causing the loss of Kali and, therefore, Plaintiff’s harm. Thus, a claim for Conversion prevails under the strict liability theory.

 

Accordingly, the Demurrer to the Fifth Cause of Action (Conversion) is OVERRULED.

 

  1. Sixth Cause of Action (Negligence)

 

“ ‘The elements of a cause of action for negligence are well established. They are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c)the breach as the proximate or legal cause of the resulting injury.” ’ ” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)

 

Like medical malpractice, a veterinarian “must exercise the degree of skill or care usual in the profession, and will not be held liable for untoward consequences in the absence of a want of such reasonable care and skill.” (Williamson v. Prida (1999) 75 Ca1.App.4h 1417, 1424-1425.) Therefore, the standard for negligence in this case is “(1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.) The profession is that of veterinarian medicine.

 

Defendants argue that no special relationship between the parties and that the FAC failed to adequate allege injuries as the Orange County vet would not perform the surgery after examining Kali and Kali’s action of jumping out of Dr. Ibrahim’s arms was an intervening factor.

 

Plaintiff argues that Defendants’ arguments are contradictory (no special relationship between parties in veterinary malpractice case McMahon v. Craig (2009) 176 Cal.App.4th 1502 (“McMahon”) v. standards for veterinary malpractice cases in Williamson, supra, Ca1.App.4h 1417). Plaintiff also presents that clear facts for breach of standard of care are pled as: (1) Defendants charged Plaintiff and drove Kali to the Orange County vet without ensuring that surgery was necessary and would be performed; (2) upon finding out surgery was unnecessary, Dr. Ibrahim took Kali to his own home; and (3) Dr. Ibrahim did not use a lease or crate to transport Kali. Plaintiff further emphasizes sections in the FAC that highlight the misconduct of Defendants. (FAC ¶¶ 95-96.) Plaintiff addresses Defendant’s intervening factor argument as well as argues that determining the requisite standard of care would go beyond the scope of a demurrer.

 

Defendant’s arguments attempt to argue the allegations in the FAC, such as standard of care and intervening factors, and are not suited for a Demurrer. Rather, they are arguments for a motion for summary judgment.

 

Accordingly, the Demurrer for the Sixth Cause of Action (Negligence) is OVERRULED.

 

  1. Seventh Cause of Action (IIED)

 

“A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’ ” (Hughes v. Pair (2009) 46 Cal.4th 1035,1050-1051.) “[T]he trial court initially determines whether a defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. Where reasonable men can differ, the jury determines whether the conduct has been extreme and outrageous to result in liability. Otherwise stated, the court determines whether severe emotional distress can be found; the jury determines whether on the evidence it has, in fact, existed.” (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1614.) 

 

Defendants present that “Plaintiff cannot recover emotional distress damages because Kali jumping out of Dr. Ibrahim’s arms; Dr. Ibrahim looking for Kali, but waiting until early morning to call Plaintiff instead of the middle of the night; and Dr. Ibrahim stating he called Animal Control when he did not (even if taken as true) is not ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency[.]’ ” (Demurrer 11:6-10.) Defendants also argue that “mental anguish, emotional and physical distress, shock, nervousness, anxiety, depression, and fear[]” (FAC ¶¶ 106-07) does not constitute severe distress. Defendants further present that the events that occurred were not done in the presence of Plaintiff or directed at Plaintiff and (1) a direct victim situation is needed for IIED and (2) there is no IIED for a pet owner under the McMahon v. Craig (2009) 176 Cal.App.4th 1502 case precedent.

 

Plaintiff argues that IIED is warranted as the conduct (transporting a dog without confirming surgery would occur, time lapse between loss of Kali and informing Plaintiff of the loss, and misrepresenting to Plaintiff that Animal Services was notified) was outrageous. Plaintiff further highlights her paragraphs about emotional distress in the FAC. (FAC ¶¶ 22, 101.) Plaintiff also presents that the conduct may not have been in her presence but it was directed to her. Plaintiff attempts to distinguish McMahon from this instant action by stating that McMahon does not discuss claims of breach of contract or bailment and is only applicable in the context of a negligence claim.

 

Defendant presents that its alleged conduct is not extreme and outrageous; that Plaintiff has not alleged facts that defendants did not consult with the surgeon prior to transporting Kali and, even if this argument is true, it is not so extreme as to exceed all bounds of that usually tolerated in a civilized community; that Plaintiff fails to allege severe emotional distress; that waiting until morning to notify Plaintiff was not intended to inflict emotional injury on Plaintiff; and McMahon states emotional distress does not occur when the conduct was not done in the presence of a plaintiff or directed at a plaintiff.

 

“[A]lthough a veterinarian is hired by the owner of a pet, the veterinarian's medical care is directed only to the pet. Thus, a veterinarian's malpractice does not directly harm the owner in a manner creating liability for emotional distress.” (McMahon, supra, 176 Cal.App.4th 1502, 1510.) In comparing the pet owner-pet relationship, the McMahon Court looked to Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1073 (“Burgess”), a case about parents and a child that was just born, and made the following distinctions: (1) a veterinarian’s care of a pet would not directly impact the pet owner’s health, (2) a pet owner’s emotional well-being is not traditionally “inextricably intertwined” with the pet's physical well-being, and (3) nothing in a pet owner-pet relationship would give rise to a “direct victim” liability, especially since the California Supreme Court would not extend “direct victim” status to the father of a child under a doctor's care. (Id.) The McMahon Court distinguished the case of McMahon, the pet owner, and Tootsie, the pet, but this Court finds the Burgess comparison in McMahon most compelling. 

 

Applying this to Defendants, the Court finds that a case for IIED cannot be brought under current case law based on the pet owner-pet relationship. This determination is based on case precedent and cannot be rectified by an amendment.

 

Accordingly, the Demurrer to the Seventh Cause of Action (IIED) is SUSTAINED without leave to amend.

 

  1. Motion to Strike

 

The Court has read the moving, opposing, and reply papers for the Motion to Strike. The Court determines the following:

 

To the degree to which any of the requested phrases are related to the IIED claim, they are stricken.

 

Regarding the use of calling Kali a “companion” or “family member,” the is best addressed in Motion in Limines prior to trial.

 

Accordingly, the Motion to Strike is GRANTED in part, and DENIED in part.

 

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Conclusion

 

Plaintiff Defendants Ayman Shawky Ibrahim, DVM, and Mission Animal Hospital’s Demurrer is OVERRULED in part and SUSTAINED in part. The Court issues the following:

 

 

Plaintiff Defendants Ayman Shawky Ibrahim, DVM, and Mission Animal Hospital’s Motion to Strike is GRANTED in part and DENIED in part. To the degree to which any of the phrases in the First Amended Complaint are related to the IIED cause of action, they are stricken.