Judge William A. Crowfoot, Case 21STCV47525 2023-03-16 Tentative Ruling

Judge: William A. Crowfoot, Case: 21STCV47525, Date: 2023-03-16 Tentative Ruling

This action was filed on December 30, 2021 by plaintiffs Gerald Wachel (“Mr. Wachel”) and Gina Wachel (collectively, “Plaintiffs”) against defendants Ty Labbe (“Labbe”) and Liza Gonzalez (collectively, “Defendants”). The operative Second Amended Complaint (“SAC”) was filed on August 25, 2022, and asserts causes of action for malicious prosecution, abuse of process, negligence, intentional infliction of emotional distress, trespass to chattels, and defamation. The action arises from an incident on January 8, 2021 involving Plaintiffs’ unnamed pet cat and a dog belonging to Labbe, who is Plaintiffs’ next-door neighbor. Plaintiffs allege that on or about January 8, 2021, Mr. Wachel opened his garage door from his car using a remote electronic device. (SAC, ¶ 13.) At that moment, Plaintiffs’ cat came out of the garage door and Labbe’s dog (named Lucy) chased the cat and caught the cat in her mouth. (SAC, ¶¶ 14-16.) Labbe was standing in his own driveway. (Ibid.) In response, Mr. Wachel grabbed and kicked Lucy to dislodge his cat from Lucy’s mouth, then “gently toss[ed] [the dog] over a low (approximately 2’ tall) brick wall” to place the dog back in his neighbor’s yard.

On September 26, 2022, Defendants filed the instant demurrer and motion to strike. Defendants argue that Plaintiffs have failed to allege sufficient facts to justify their cause of action for trespass to chattels and seek to strike Plaintiffs’ request for punitive damages.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).)

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1).) 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, subd. (a); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].) The court may also strike all or any part of any pleading not drawn or filed in conformity with California law, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) An immaterial or irrelevant allegation is one that is not essential to the statement of a claim or defense; is neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint. (Code Civ. Proc., § 431.10, subd. (b).) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

The tort of trespass to chattel requires an “intentional interference with the possession of personal property” that does not amount to conversion. (Jamgotchian v. Slender (2009) 170 Cal.App.4th 1384, 1401 [internal citations omitted].) Previously, Plaintiffs alleged that Defendants intentionally interfered with their cat “when [Defendants] allowed their dog to be off leash with full knowledge it was running around unrestricted near the Wachels cat who was outside at the same time” despite possessing “common knowledge that dogs chase cats” when off leash. (FAC, ¶ 62.) The Court found these allegations insufficient to demonstrate intentional interference with Plaintiffs’ possession of their cat and sustained Defendants’ demurrer. (Order, 8/5/2022.)

Now, Defendants argue that Plaintiffs once again fail to plead a cause of action for trespass to chattel. To bolster their claim, Plaintiffs added that Defendants “knew their dog was a danger to the community,” did not leash their dog in order to “wreak havoc on the neighborhood in the past on multiple occasions,” and “unleased [sic] their dog yet again on January 8, 2021 on [Plaintiffs’] cat.” (SAC, ¶ 67.) Plaintiffs also allege that “there are recorded conversations of Ty Labbe in which he states his hatred for Plaintiffs’ cat.” (Ibid.)

“It is a longstanding rule of pleading that a mere conclusory allegation that a defendant has committed willful or malicious misconduct is insufficient.” (Charpentier v. Von Geldern (1987) 191 Cal.App.3d 101, 114.) Plaintiffs ask the Court to read paragraph 67 in context with paragraphs 26 and 26. Plaintiffs allege in paragraph 25, without any supporting facts, that Lucy was “dangerous.” Plaintiffs also vaguely allege that Labbe regularly “unleashed his dog to wreak havoc on the neighborhood” and “terrorize the community.” For additional support, Plaintiffs refer to a letter dated March 30, 2021 from a neighbor, Eugene Ho, attached as Exhibit A to the Complaint. However, Mr. Ho only states that he has observed Lucy “running the streets un controlled [sic] and patrolling the neighborhood without a leash or the owners anywhere to be found.” (SAC, Ex. A.) Mr. Ho opines that “it really needed to stop before and incident happened but, it is too late for that now.” (SAC, Ex. A.) Paragraph 26 alleges that video surveillance captured footage of Lucy chasing Plaintiffs’ cat around Plaintiffs’ front yard on one other occasion in August 2020. Even in light of the allegations set forth in paragraphs 25 and 26, the SAC fails to demonstrate that Defendants’ interference with Plaintiffs’ possession of their cat was intentional.

Defendants move to strike Plaintiffs’ request for punitive damages in connection with the third cause of action for negligence.

A motion to strike punitive damages is properly granted where a plaintiff does not state a prima facie claim for punitive damages, including allegations that defendant is guilty of oppression, fraud or malice. (Turman v. Turning Point of Cent. California, Inc. (2010) 191 Cal.App.4th 53, 63.) The allegations supporting a request for punitive damages must be alleged with specificity; conclusory allegations without sufficient facts are not enough. (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.)

Under Civil Code section 3294, absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests. The additional component of ‘despicable conduct’ must be found.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.” (Id.) Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as ‘having the character of outrage frequently associated with crime.’” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)

As stated above, the facts alleged in Plaintiffs’ SAC do not demonstrate that Defendants intended to interfere with Plaintiffs’ possession of their cat. Similarly, Plaintiffs’ negligence claim does not support a claim for punitive damages. “Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. (Kendall Yacht Corp. v. United California Bank (1975) 50 Cal. App. 3d 949, 958.)

Civil Code sec. 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.” California defines gross negligence as “want of even scant care or an extreme departure from ordinary standard of conduct” such lack of care that one may be “presumed to indicate a passive and indifferent attitude’ towards the consequences of one’s acts to the safety and welfare of others”. (City of Santa Barbara v. The Sup. Ct. of Santa Barbara (2006) 135 Cal. App. 4th 1345, 1375.)

Plaintiffs argue that Defendants demonstrated indifference of their actions’ consequences to others by allowing Lucy to run off-leash in the neighborhood because they knew that Lucy had previously attacked Plaintiffs’ cat. However, Plaintiffs fail to allege that their cat suffered any injuries; they only allege that the cat had been caught in Lucy's mouth.

Defendants’ demurrer as to Plaintiffs’ fifth cause of action is SUSTAINED. Defendants’ motion to strike is GRANTED. Plaintiffs are given 20 days to file an amended complaint.

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

William A. Crowfoot

Judge of the Superior Court