Judge: Theresa M. Traber, Case: 23STCV06115, Date: 2023-11-06 Tentative Ruling

Case Number: 23STCV06115    Hearing Date: November 6, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     November 6, 2023                 TRIAL DATE: NOT SET

CASE:                         Kevin Ryan v. Metropolitan Animal Specialty Hospital, et al.

CASE NO.:                 23STCV06115           

DEMURRER TO FIRST AMENDED COMPLAINT AND MOTION TO STRIKE

MOVING PARTY:               Defendants NVA MASH Capital Partners LP d/b/a Metropolitan Animal Specialty Hospital and Eileen Wong, DVM, DACVECC, an individual.

RESPONDING PARTY(S): Plaintiff Kevin Ryan

CASE HISTORY:

·         03/20/23: Complaint filed.

·         07/26/23: First Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for negligence, trespass to chattels, and intentional infliction of emotional distress. Plaintiff alleges that Defendants seriously misdiagnosed his service dog with a life-threatening illness, thereby inducing him to subject his dog to invasive and unnecessary surgeries.

Defendants demur to the second cause of action for trespass to chattels and third cause of action for intentional infliction of emotional distress alleged in the First Amended Complaint. Defendants also move to strike Plaintiff’s prayer for punitive damages.

TENTATIVE RULING:

Defendants’ Demurrer to the First Amended Complaint is SUSTAINED without leave to amend as to the third cause of action and otherwise OVERRULED.

            Defendants’ Motion to Strike is DENIED.

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DISCUSSION:

Defendants demur to the second cause of action for trespass to chattels and third cause of action for intentional infliction of emotional distress alleged in the First Amended Complaint.

Legal Standard

A demurrer 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 via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “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 p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true”].) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

Meet and Confer

Before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the demurrer and file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., § 430.41(a).) However, an insufficient meet and confer process is not grounds to overrule or sustain a demurrer.  (Code Civ. Proc., § 430.41(a)(4).)

The Declaration of Attorney Stephanie Beale states that the parties met and conferred telephonically on September 8, 2023, but were unable to reach a resolution of this dispute. (Declaration of Stephanie Beale ISO Demurrer ¶ 2.) Defendants have thus satisfied their statutory meet-and-confer obligation.

Second Cause of Action: Trespass to Chattel

            Defendants demur to the second cause of action for trespass to chattel for failure to state facts sufficient to constitute a cause of action.

            To plead a cause of action for trespass to chattel, a plaintiff must allege (1) the plaintiff’s possession of the property, (2) the defendant’s intentional interference with the plaintiff’s use of the property, (3) without the plaintiff’s consent, and (4) resulting damages. (See, e.g., Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1566-67.)

            Defendants argue that Plaintiff has failed to allege that any trespass occurred without his consent because both the original Complaint and the First Amended Complaint concede that Plaintiff consented to the use and possession of his property, i.e., Plaintiff’s service dog, Copper. (FAC ¶¶ 12-15, 40.) Defendants also invoke the sham pleading doctrine to contend that Plaintiff cannot plead around this defect. Under the sham pleading doctrine, “[a] plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradicts facts pleaded in the original complaint, or by suppressing facts which prove the pleaded facts false.” (Cantu v. Resolution Trust Corporation (1992) 4 Cal.App.4th 857, 877-878.) In such circumstances, “the policy against sham pleading permits the court to take judicial notice of the prior pleadings and requires that the pleader explain the inconsistency. If he fails to do so the court may disregard the inconsistent allegations and read into the amended complaint the allegations of the superseded complaint.” (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 384.)

The Court previously sustained a demurrer to this cause of action because Plaintiff argued only that he did not provide informed consent to the performed procedure, with no citation to supporting authority. (See June 26, 2023 Minute Order.) Here, Plaintiff makes essentially the same concession that he consented to Defendants taking possession of Copper to provide her with life-saving medical care. (FAC ¶¶ 12-14.) The First Amended Complaint frames the issue thusly:

Plaintiff did not consent to the damage done to his beloved family member and legal property. His consent was limited to the procedures with the understanding that they would help and not harm COPPER. He did not consent to the damage that resulted to COPPER. Accordingly, any consent obtained was not fully informed and was based on false information including the misdiagnosis.

(FAC ¶ 15.) Defendants have not demonstrated that application of the sham pleading doctrine is warranted here. Nothing about the allegations in the First Amended Complaint is inconsistent with those in the original Complaint. Here, as before, Plaintiff concedes that he consented to the procedures performed on Copper. Plaintiff’s efforts to cabin the scope of that consent to correct defects in the previous Complaint do not make these allegations a sham.

            Plaintiff argues in opposition that “California case law has long recognized that consent to enter may be limited and that a trespass claim may lie when the scope of consent is exceeded.” (Opp. p.5:19-20.) Plaintiff purports to quote this language from Civic. W. Corp. v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1. However, Plaintiff appears to be in error, as the specific language is not found in the opinion. That said, the Court of Appeal in Civic W. Corp. does state that, in the context of trespass to land, “a trespass may occur if the party, entering pursuant to a limited consent . . . proceeds to exceed those limits by divergent conduct.” (Civic W. Corp., supra, 66 Cal.App.3d at 17.) Civic. W. Corp. cites section 168 of the 2nd Restatement of Torts for the rule that “A conditional or restricted consent to enter land creates a privilege to do so only in so far as the condition or restriction is complied with.” As Plaintiff observes, the Restatement sets forth a similar rule for trespass to chattels and conversion, stating that “[o]ne who uses a chattel with the consent of another is subject to liability in trespass for any harm to the chattel which is caused by or occurs in the course of any use exceeding the consent, even though such use is not a conversion.” (Rest. 2d. Torts § 256.)

Although Civic W. Corp. was concerned with trespass to land, rather than chattel, the Court finds that opinion instructive given the substantial similarity between the Restatement’s provisions on consent as to both types of trespass. Moreover, by offering this authority, Plaintiff has remedied the principal defect in his opposition to the previous demurrer: the absence of authority supporting Plaintiff’s position. Now, Plaintiff relies on this rule to contend that by misdiagnosing Copper and performing surgeries that were unnecessary, Defendants exceeded the consent given. (See FAC ¶ 15.) Plaintiff also alleges that this misconduct was willful and intentional.  (Id., ¶ 40.) Construed in the light most favorable to Plaintiff, as required on demurrer, the Court finds that these allegations are sufficient to state a cause of action for trespass to chattel.

Accordingly, Defendants’ Demurrer to the second cause of action for trespass to chattel is OVERRULED.

Third Cause of Action: Intentional Infliction of Emotional Distress

            Defendants also demur to the third cause of action for intentional infliction of emotional distress for failure to state fact sufficient to constitute a cause of action.

“The elements of the tort of intentional infliction of emotional distress are:  ‘“(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. …” Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.’ [Citation.]” (Citation omitted.) “It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” 

(Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 874-875.) The defendant’s conduct must be “directed primarily” at the plaintiffs, “calculated to cause them severe emotional distress,” or “done with knowledge of their presence and of a substantial certainty that they would suffer severe emotional injury.” (Christensen v. Superior Court (1991) 54 Cal.3d 868, 906.) 

            Defendants first argue that this cause of action fails because Plaintiff has not adequately alleged extreme and outrageous conduct.

To be “extreme and outrageous,” conduct must be “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494 [quoting KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028].) Although there is no bright-line standard for what constitutes extreme and outrageous conduct, the “appellate courts have affirmed orders which sustained demurrers on the ground that the defendant’s alleged conduct was not sufficiently outrageous.” (Cochran, supra, 65 Cal.App.4th at 494.) In making this determination, it is “not enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.” (Id. at 496.) Rather, “[l]iability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (Id.) 

Defendants contend that Plaintiff’s amended pleading does not materially differ from the original Complaint which the Court deemed inadequate. In its previous order, the Court found that Plaintiff did not allege that Defendants’ actions were directed at Plaintiff or done in his presence, and that the conduct alleged, even if despicable, was not so outrageous as to meet the standard for this tort. (See June 26, 2023 Minute Order.) Plaintiff asserts the same arguments and identifies the same allegations as he did in his opposition to the demurrer to the original complaint. (Compare Opp. p. 9:13-24 [mislabeled as pertaining to Defendants’ intent] filed October 20, 2023 with Opposition p.9:9-28 to Demurrer filed June 12, 2023.) Plaintiff’s contentions were not persuasive when they were originally brought, and the Court sees no reason to depart from its prior ruling.

As Plaintiff has failed to allege severe and outrageous conduct contemplated by the tort of intentional infliction of emotional distress, the Court declines to address Defendant’s arguments concerning the severity of the distress alleged.

Accordingly, Defendant’s Demurrer to the third cause of action for intentional infliction of emotional distress is SUSTAINED.

Leave to Amend

When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318).  When a plaintiff “has pleaded the general set of facts upon which his cause of action is based,” the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not “be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892, 900.) Accordingly, California law imposes the burden on the plaintiffs to demonstrate the manner in which they can amend their pleadings to state their claims against a defendant.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) “Denial of leave to amend constitutes an abuse of discretion unless the complaint shows on its face it is incapable of amendment.  [Citation.]  Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)

Plaintiff has not demonstrated how the third cause of action might be amended to cure the defects identified in this demurrer. Moreover, the Court previously extended Plaintiff an opportunity to amend this cause of action, only for Plaintiff to assert the same allegations and arguments as in the original Complaint. Thus, Plaintiff has demonstrated an inability to amend this cause of action despite a fair opportunity to correct the defects within it. The Court therefore concludes that leave to amend would be improper with respect to the third cause of action.

Conclusion

            Accordingly, Defendants’ Demurrer to the First Amended Complaint is SUSTAINED without leave to amend as to the third cause of action and otherwise OVERRULED.

Motion to Strike Portions of First Amended Complaint

            Defendants also move to strike Plaintiff’s prayer for punitive damages in the First Amended Complaint.

Legal Standard

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. “When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768. A motion to strike can be used where the complaint or other pleading has not been drawn or filed in conformity with applicable rules or court orders.  Code Civ. Proc., § 436(b). This provision is for "the striking of a pleading due to improprieties in its form or in the procedures pursuant to which it was filed."  Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528 (emphasis in original).

Meet and Confer

 Before filing a motion to strike, the moving party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the motion to strike and file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., § 435.5(a).) However, an insufficient meet and confer process is not grounds to grant or deny a motion to strike.  (Code Civ. Proc., § 435.5(a)(4).)

The Declaration of Attorney Stephanie Beale states that the parties met and conferred telephonically on September 8, 2023, but were unable to reach a resolution of this dispute. (Declaration of Stephanie Beale ISO Mot. ¶ 2.) Defendants have thus satisfied their statutory meet-and-confer obligation.

Analysis

            Defendants move to strike Plaintiff’s prayer for punitive damages in the First Amended Complaint. Plaintiff specifically requested punitive damages pursuant to Civil Code section 3340 as to his second cause of action for trespass to chattel. (FAC Prayer ¶5.)

            Civil Code section 3340 states that “[f]or wrongful injuries to animals being subjects of property, committed willfully or by gross negligence, in disregard of humanity, exemplary damages may be given.” (Civ. Code § 3340.) Defendants argue that Plaintiff’s prayer for exemplary damages is governed by Code of Civil Procedure section 425.13(a), which requires a party to obtain a court order before seeking punitive damages against a healthcare provider for professional negligence. (See Code Civ. Proc. § 425.13.) The Court of Appeal categorically rejected this argument in April of this year in Berry v. Frazier (2023) 90 Cal.App.5th 1258, stating:

[w]hile over the years the Legislature has modified the statute governing exemplary damages in general (§ 3294) and enacted procedural requisites for requests for exemplary damages against medical care providers including veterinarians (Code Civ. Proc., § 425.13), it has not amended section 3340 since 1872. If we as an appellate court were to engraft the procedural requisites of section 3294 into section 3340, we would be violating “the cardinal rule that a statute ‘... is to be interpreted by the language in which it is written, and courts are no more at liberty to add provisions to what is therein declared in definite language than they are to disregard any of its express provisions.’”

(Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1279.) Defendants’ argument is therefore entirely without merit.

            Defendants also argue that Plaintiff cannot seek exemplary damages under section 3340 because the corresponding cause of action for trespass to chattel is inadequately pled. As the Court has overruled the demurrer to that cause of action, Defendants’ arguments likewise fail.

Conclusion

            Accordingly, Defendants’ Motion to Strike is DENIED.

CONCLUSION:

            Accordingly, Defendants’ Demurrer to the First Amended Complaint is SUSTAINED without leave to amend as to the third cause of action and otherwise OVERRULED.

            Defendants’ Motion to Strike is DENIED.

            Moving Parties to give notice.

IT IS SO ORDERED.

Dated:  November 6, 2023                              ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@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.