Judge: Teresa A. Beaudet, Case: 22STCV18053, Date: 2023-03-17 Tentative Ruling

Case Number: 22STCV18053    Hearing Date: March 17, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On June 2, 2022, Plaintiff Chelsia Block (“Plaintiff”) filed this action against Defendant Pathway Vet Alliance LLC dba Access Specialty Animal Hospital (“Pathway Vet Alliance”)

The Complaint asserts causes of action for (1) breach of oral and implied contract, (2) breach of implied warranty of good faith and fair dealing, (3) breach of implied duty to perform with reasonable care, (4) concealment, (5) breach of bailment, (6) trespass to chattels, (7) negligence, and (8) intentional infliction of emotional distress.

On September 15, 2022, Plaintiff filed a request for dismissal as to Pathway Vet Alliance only.

On September 6, 2022, Plaintiff filed an amendment to the Complaint naming Advanced Critical Care, Emergency and Specialty Services – Pasadena, LLC (“Defendant”) in place of “Doe 1.”

Defendant now demurs to the second, third, fourth, sixth, and eighth causes of action of the Complaint. Defendant also moves to strike portions of the Complaint. Plaintiff opposes both.

Demurrer

A.    Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. ((Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” ((C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. ((Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” ((Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

B.     Allegations of the Complaint

Plaintiff alleges that on the night of January 26, 2022, Plaintiff’s cat, Shadow, was admitted to Pathway Vet Alliance. (Compl., ¶ 13.) Subsequently that night, Plaintiff and her father Kenneth Block[1] were notified that Shadow had stopped breathing. (Compl., ¶ 13.) The Blocks grabbed Shadow’s favorite blue bed and drove to Pathway Vet Alliance. (Compl., ¶ 13.) The blue bed was a special item to Plaintiff because Shadow had slept in this bed from the time she was a kitten. (Compl., ¶ 13.) The Blocks were escorted to a private room, where they were told a team could attempt to perform CPR to revive Shadow. (Compl., ¶ 14.) However, Shadow died. (Compl., ¶ 14.)

The Blocks asked if there was an option to store Shadow at the facility until an afterlife plan could be made for Shadow. (Compl., ¶ 15.) Staff told the Blocks that Shadow could be placed into a freezer for subsequent collection by the Blocks within seven days. (Compl., ¶ 15.)

Plaintiff then placed Shadow into her blue bed, in a peaceful curled position. (Compl.,     ¶ 16.) The Blocks asked Destiney Mebane, a Pathway Vet Alliance staff member, whether Shadow could be kept in her blue bed when placed into the freezer – and they were told that, yes, Shadow and her bed would be kept together and placed into the freezer. (Compl., ¶¶ 15, 16.) Plaintiff intended to preserve Shadow in her bed in that sleeping position, through special animal preservation services, rather than cremate her, thus, the bed was of immeasurable value to Plaintiff. (Compl., ¶ 16.)

On February 1, 2022, the Blocks returned to Pathway Vet Alliance to collect Shadow. (Compl., ¶ 19.) At that time, they learned that Shadow had not been kept in her special bed. (Compl., ¶ 19.) Instead, Shadow’s frozen body was brought to the Blocks in a plastic bag inside a cardboard box, and without her bed. (Compl., ¶ 19.) A staff member told the Blocks that the bed could not be located. (Compl., ¶ 20.)

The Blocks were subsequently told by Ms. Mebane that she personally wrote a note and placed it with Shadow and her bed at the time she took both from the Blocks. (Compl., ¶ 21.) Ms. Mebane said the note instructed whoever would be putting Shadow in the freezer to keep her body with the bed and positioned in the bed as the Blocks had positioned her. (Compl., ¶ 21.) Defendant has not been able to explain why or when an employee of defendant separated Shadow from her bed, nor have they explained what happened to that note. (Compl., ¶ 22.) In addition, the Blocks were told on various occasions by staff of Pathway Vet Alliance that a digital note about keeping Shadow’s bed with Shadow and placing them together into the freezer was also placed in Shadow’s file (Compl., ¶ 22.) Plaintiff alleges that this digital note in Shadow’s file has not been produced despite multiple requests from the Blocks and their legal counsel. (Compl., ¶ 22.)

C.     Second Cause of Action for Breach of Implied Warranty of Good Faith and Fair Dealing and Third Cause of Action for Breach of Implied Duty to Perform with Reasonable Care

Defendant asserts that Plaintiff’s second and third causes of action are duplicative of the first cause of action for breach of oral and implied contract.

“A breach of the implied covenant of good faith and fair dealing involves something beyond breach of the contractual duty itself and it has been held that [b]ad faith implies unfair dealing rather than mistaken judgment.” ((Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1394 [internal quotations omitted].) Defendant notes that “[i]f 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.” ((Id. at p. 1395.)

In support of the first cause of action for breach of oral and implied contract, Plaintiff alleges that “[o]n the night of January 26, 2022, Plaintiff and Defendants entered into an oral and implied agreement and/or contract, as pled above, to keep Shadow in her bed in a certain position, to notify others to keep the bed and the cat as such, and to return Plaintiff’s precious cat and her precious bed upon Plaintiff’s return within the next seven days.” (Compl., ¶ 45.) Plaintiff alleges that “Defendants failed to do what the contract required Defendants to do… Defendants failed to perform services paid for; failed to exercise their duties and/or special relationships owed to Plaintiff regarding Plaintiff’s tendered property and caused emotional harm to Plaintiff…” (Compl., ¶ 47.) Plaintiff further alleges that “Defendants engaged in acts constituting material defaults under the agreement by engaging in misrepresentations, omissions, and concealments to Plaintiff regarding Defendants’ explicit promises, services and advertisements; and Defendants failed to perform the paid-for services on SHADOW and the bed as Plaintiff’s property.” (Compl., ¶ 48.)

In support of the second cause of action for beach of implied warranty of good faith and fair dealing, Plaintiff similarly alleges that “[a]s pled above, Plaintiff and Defendants, each and together, entered into an oral and implied contract to maintain SHADOW with her bed and return both to Plaintiff in the same condition (including with SHADOW in her peaceful sleeping position) as delivered to ACCESS. Defendants failed to do this and further, failed to deliver the bed at all, while delivering SHADOW in a plastic bag to the great emotional distress of Plaintiff. Plaintiff did all, or substantially all, of the significant things that the contract required Plaintiff to do and/or was excused from having to do those things. All conditions required for Defendants’ performance had occurred or were excused. However, Defendants’ conduct, misrepresentations, omissions, and concealments, as pled above, prevented Plaintiff from receiving the benefits under the contract.” (Compl., ¶ 54.)

In the opposition, Plaintiff asserts that the second cause of action alleges more than a breach of contract. In support of this assertion, Plaintiff points to the allegation that the Blocks requested the subject written note and digital note from Shadow’s file, but the notes have not been provided. (Compl., ¶ 22.) The Court notes that paragraph 22 of the Complaint is included in the “Statement of Facts Relevant to All Causes of Action,” such that the allegations concerning the notes are also relevant to the breach of oral and implied contract cause of action. (See also Compl., ¶ 45, “[o]n the night of January 26, 2022, Plaintiff and Defendants entered into an oral and implied agreement and/or contract, as pled above, to keep SHADOW in her bed in a certain position, to notify others to keep the bed and the cat as such…” [emphasis added]. )

In support of the third cause of action for breach of implied duty to perform with reasonable care, Plaintiff alleges that “[a]s pled above, Plaintiff and Defendants, each and together, entered into an oral and implied contract. The parties’ oral and implied contract required that Defendants were to maintain SHADOW and her bed together and to maintain SHADOW in her peaceful sleeping position in her bed until such time as Plaintiff returned to pick up SHADOW and the bed from Defendants’ care.” (Compl., ¶ 59.) Plaintiff alleges that it “was implied in the contract that Defendants’ performance of the contract would be done competently and with reasonable care. Defendants breached this implied condition. Defendants failed to use reasonable care. Specifically: Defendants failed to maintain SHADOW in her restful sleeping position in her bed and failed to return her to Plaintiff in that condition. Further, Defendants failed to deliver the bed at all, while delivering SHADOW in a different position than she was specifically requested to remain in, to the great emotional distress of Plaintiff and in violation of the parties’ contract.” (Compl., ¶ 61.) Plaintiff also cites to paragraph 22 of the Complaint in support of her assertion that the third cause of action is not duplicative of the first. This point is addressed above in connection with the second cause of action.

The Court agrees with Defendant that the second and third causes of action “do not go beyond the statement of a mere contract breach,” such that they are “superfluous.” ((Ibid. .)

Plaintiff also asserts that the Court should overrule the demurrer to the second and third causes of action because “plaintiff is permitted to plead inconsistent or…alternative counts.”
((Rader Co. v. Stone (1986) 178 Cal.App.3d 10, 29.) But the Court does not see how this is relevant to Defendant’s point that “[i]f 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.” ((Careau & Co. v. Security Pacific Business Credit, Inc., supra, 222 Cal.App.3d at p. 1395.) 

Based on the foregoing, the Court sustains the demurrer to the second and third causes of action.

D.    Fourth Cause of Action for Concealment

“The required elements for fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact.” ((Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162.)

Defendant asserts that Plaintiff fails to sufficiently allege concealment of a material fact, an intent to defraud, or reliance on any purported concealed or suppressed facts.

In support of the fourth cause of action, Plaintiff alleges that “[b]y claiming to be concerned, but doing nothing more than ask around the office about finding the bed, by failing to respond to Plaintiff’s multiple requests for the actual written note and the digital note, by failing to provide information regarding how the bed was lost and/or thrown away and how SHADOW’s body was removed from the bed and placed in a plastic bag; and by not correcting processes and procedures regarding the series of intentional or negligent missteps that callously caused the loss of Plaintiff’s precious property, Defendants each and together have intentionally concealed and/or suppressed material facts from Plaintiff by misrepresentations and omissions as pled herein and continuing through today without end.” (Compl., ¶ 65.)

As to reliance element, Plaintiff alleges that she “would not have acted as she did if she had known that ACCESS would not take their promise of protecting her precious property as seriously as she believed they would. Had she known that Defendants would act with utter disregard for the sentimental value of her property, Plaintiff would not have allowed Defendants to take exclusive possession of SHADOW and her bed.” (Compl., ¶ 69.) But as Defendant notes, the alleged misrepresentations and omissions set forth in paragraph 65 of the Complaint allegedly occurred after Shadow’s bed was misplaced, such that they would not have induced reliance on the part of Plaintiff to provide Defendant with Shadow and her bed.

Based on the foregoing, the Court sustains the demurrer to the fourth cause of action.

E.     Sixth Cause of Action for Trespass to Chattels

Defendant cites to Jamgotchian v. Slender (2009) 170 Cal.App.4th 1384, 1401, where the Court of Appeal noted that “[t]he Restatement Second of Torts, section 217, provides, ‘A trespass to a chattel may be committed by intentionally…(a) dispossessing another of the chattel, or…(b) using or intermeddling with a chattel in the possession of another.’ The Restatement Second of Torts, section 221, provides that ‘A dispossession may be committed by intentionally…barring the possessor’s access to a chattel…”

Defendant argues that “[t]he complaint fails to allege facts showing intention on the part of Access to misplace the bed. According the complaint, Access agreed to keep Shadow with her bed. When Plaintiff came to pick up Shadow, Shadow was not with her bed. Access tried to locate the bed and could not. These allegations lack facts to show Access intentionally dispossessed Plaintiff of the bed.” (Demurrer at p. 6:5-8.)

However, in the Complaint, Plaintiff alleges that “Defendants, each and together, intentionally appropriated dominion and control over SHADOW and the bed and returned SHADOW in a condition that was a clear breach of their agreement…” (Compl., ¶ 86.) Plaintiff also alleges that “Defendants willfully and intentionally damaged the bed by wrongful acts and/or in a manner that is inconsistent with the Plaintiff’s property rights as owner of the bed.” (Compl., ¶ 84.) As set forth above, “[a] trespass to a chattel may be committed by intentionally…(a) dispossessing another of the chattel, or…(b) using or intermeddling with a chattel in the possession of another.’” ((Ibid. .) The Court also notes that “[a]s a general rule¿in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be.” (Del E. Webb Corp. v. Structural Materials Co.¿(1981) 123 Cal.App.3d 593, 604.)

Based on the foregoing, the Court overrules the demurrer to the sixth cause of action.

F.      Eighth Cause of Action for Intentional Infliction of Emotional Distress

“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.” ((Hughes v. Pair (2009) 46 Cal.4th 1035, 1050 [internal quotations omitted].) “A defendant’s conduct is outrageous when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community.” ((Id. at pp. 1050-1051 [internal quotations omitted].)

Defendant argues that there are no factual allegations that Defendant intended to inflict injury. Defendants assert that the allegations amount to a mistake – i.e., that the subject bed was unintentionally misplaced. However, Plaintiff alleges that “Defendants have intentionally acted without the care for Plaintiff and her property that would be expected by any reasonable person and was not within standard industry practice and/or common sense, and was without the care necessary and promised to Plaintiff for her highly sentimental property, the bed, along with the highly sentimental value of keeping SHADOW in her resting position in that bed.” (Compl.,       ¶ 107.) In addition, as set forth above, the first element of an intentional infliction of emotional distress claim is “extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress…” ((Id. at p. 1050 (emphasis added).)

Defendant also argues that Plaintiff fails to allege conduct that is “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” ((Id. at p. 1051 [internal quotations omitted].) Plaintiff counters that “[h]aving your recently deceased beloved pet, who you believed would remain in a peaceful curled position, handed to you wrapped in a plastic bag and stuffed in a cardboard box, results in suffering beyond what a reasonable person in a civilized society should be expected to endure…” (Opp’n at p. 11:4-7.) The Court finds that the allegations are sufficient.   

Lastly, Defendant notes that Plaintiff alleges that “[a]s a direct and legal cause of the actions of Defendants, Plaintiff has suffered mental anguish, emotional and physical distress, shock, nervousness, anxiety, depression, and more.” (Compl., ¶ 111.) The Court disagrees with Defendant that these allegations do not sufficiently demonstrate severe emotional distress.

Based on the foregoing, the Court overrules the demurrer to the eighth cause of action.

            Motion to Strike

            As an initial matter, the Court notes that Defendant filed a notice of motion and motion to strike portions Plaintiff’s Complaint. However, it does not appear that Defendant filed any memorandum of points and authorities in support of the motion to strike. The Court notes that “[u]nless otherwise provided by the rules in this division, the papers filed in support of a motion must consist of at least the following: (1) A notice of hearing on the motion; (2) The motion itself; and (3) A memorandum in support of the motion or demurrer.” ((Cal. Rules of Court, rule 3.1112.) Accordingly, the Court denies the motion to strike without prejudice.

Conclusion

Based on the foregoing, Defendant’s demurrer is sustained as to the second, third, and fourth causes of action, with leave to amend. Defendant’s demurrer is overruled as to the sixth and eighth causes of action.  

Plaintiff is ordered to file and serve an amended complaint, if any, within 20 days of the date of this order. If no amended complaint is filed within 20 days, the Court orders Defendant to file and serve its answer to the Complaint within 30 days of the date of this order.

Defendant is ordered to give notice of this order.

DATED:  March 17, 2023                              ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court