Judge William A. Crowfoot, Case Number: 23AHCV01286, Date: 2024-03-04 Tentative Ruling

Judge: William A. Crowfoot, Case: 23AHCV01286, Date: 2024-03-04 Tentative Ruling

On June 6, 2023, plaintiff Georgina Santoro (“Plaintiff”) filed this action against defendants Rose City Veterinary Hospital (“Defendant”) and Laynee Hokanson, DVM (“Dr. Hokanson”). On September 25, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”) asserting causes of action for veterinary malpractice, intentional misrepresentation, intentional infliction of emotional distress (“IIED”), and conversion. This action relates to veterinary care provided to Plaintiff’s poodle, Lumiere, who suffered from a condition commonly referred to as an undescended testicle. (FAC, ¶ 4.) Plaintiff alleges that Lumiere underwent surgery on June 6, 2022, and during the surgery, she received a phone call from Dr. Hokanson, who informed her that during the procedure, she discovered that Lumiere was “anatomically incorrect.” (FAC, ¶ 5.) Upon making this discovery, Dr. Hokanson allegedly clamped Lumiere’s urethra and prostate in place of the testicle and informed Plaintiff that his body cavity was filling was urine.

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 elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) To maintain any fraud action, a plaintiff must show that he or she changed position in reliance upon the alleged fraud and was damaged by that change of position. (Civ. Code, § 1709.) For example, in Lazar, evidence that the plaintiff had quit his job and moved across the country in reliance upon the defendant’s misrepresentations, would have been sufficient to demonstrate a detrimental change of position. (Lazar, supra, 12 Cal.4th at p. 639.)

Defendant argues that Plaintiff’s claim for intentional misrepresentation fails because she does not allege specific affirmative statements that induced Plaintiff to act. The Court agrees. Although Plaintiff argues in her opposition that Dr. Hokanson misrepresented that the surgery would be quick and easy, there are no allegations that the surgery to correct the undescended testicle was not a “quick and easy” procedure. Instead, the crux of Plaintiff’s FAC is that the surgery was not performed correctly. Furthermore, there are no allegations that the purported misrepresentation about the nature of the surgery was made intentionally.

Plaintiff also argues that Defendant misrepresented that Lumiere was “anatomically incorrect” and could not treat him. (Opp., p. 4.) Plaintiff argues that she incurred over $100,000 in medical expenses at a different hospital because Defendant did not “tak[e] responsibility for the crisis they had created.” (Opp., p. 4.) But Plaintiff does not allege that Defendant was in fact capable of treating Lumiere at its facility or that she incurred a greater amount in medical expenses because Lumiere was not treated at Defendant’s facility.

Furthermore, Plaintiff alleges that she was “misinformed” of Lumiere’s condition, resulting in her not obtaining the prompt necessary care he required. (FAC, ¶ 15.) However, this contradicts Plaintiff’s allegation that she was informed by Dr. Hokanson that Lumiere’s body cavity was filling with urine and that Lumiere needed emergency care. (FAC, ¶ 5.) Plaintiff also alleges that she immediately retrieved Lumiere and took him to VCA Animal Specialty Group Hospital in Glendale where she was informed that Lumiere’s condition was the result of a “botched neuter.” (FAC, ¶ 6.)

To prove an IIED claim, a plaintiff must establish that: (1) the defendant engaged in extreme and outrageous conduct with the intent to cause, or with reckless disregard for the probability of causing, emotional distress; (2) the plaintiff suffered extreme or severe emotional distress; and (3) the defendant’s extreme and outrageous conduct was the actual and proximate cause of the plaintiff’s extreme or severe emotional distress. (So v. Shin (2013) 212 Cal.App.4th 652, 671.)

Plaintiff alleges that Dr. Hokanson intentionally engaged in extreme and outrageous conduct by acting in her self-interest and telling Plaintiff that Lumiere was anatomically incorrect. (FAC, ¶ 18.) A statement of diagnosis (even if incorrect or false) does not rise to the level of “extreme and outrageous conduct” needed for an IIED claim. “Outrageous conduct is conduct that is intentional or reckless and so extreme as to exceed all bounds of decency in a civilized community.” (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 204.) Furthermore, Dr. Hokanson’s statement was allegedly intended to deflect blame, which is contrary to Plaintiff’s claim that the statement was made with the intention to cause emotional distress or with a likelihood of causing emotional distress.”

A cause of action for conversion requires a defendant to substantially interfere with a plaintiff’s right to possession to property by: (1) knowingly or intentionally taking possession of such property, (2) preventing the plaintiff from accessing the property, or (3) refusing to return the property after being demanded to. Here, Plaintiff allege that she entrusted Defendant with Lumiere, but does not allege that Defendant refused to return him or prevented her from picking him up.

The majority of Defendant’s motion to strike is moot given the Court’s ruling on its demurrer. Accordingly, the Court only addresses Defendant’s motion to strike Plaintiff’s request for special damages and “sundry” expenses as speculative.

The parties agree that a pet owner may recover the reasonable and necessary costs incurred in the treatment and care of the animal as compensable damages. (Kimes v. Grosser (2011) 195 Cal.4th 1556; Martinez v. Robledo (2012) 210 Cal.pp.4th 384, 388.) Defendant argues in its motion, reply, and supplemental brief that Kimes allows a plaintiff to present evidence of the bills “incurred” to treat the pet and that a plaintiff may show the amounts “expended” for veterinary care, therefore, the discussion of these damages in the past tense limits recovery to past medical expenses. But Kimes also stated that a plaintiff was entitled to “recover the reasonable and necessary costs caused by someone who wrongfully injured the [pet].” Furthermore, in Martinez v. Robledo (2012) 210 Cal.App.4th 384, the court of appeal agreed with Kimes that an injured pet owner could recover “the reasonable and necessary costs incurred in the treatment and care for the animal attributable to the injury.” (Id. at p. 392.) Both cases emphasized the causal connection between the treatment of the injured pet and the tortfeasor’s conduct and neither addressed whether future care was permissible. Therefore, the Court does not interpret these cases as implicitly barring the recovery of reasonable future medical expenses incurred as a result of the Defendant’s tort.

Last, insofar as Defendant argues that future expenses for the remainder of Lumiere’s life and for nursing and “sundry” expenses are speculative, unusual, or unreasonable, this characterization is premature and reserved for the factfinder. Accordingly, the motion to strike is DENIED.

In light of the foregoing, Defendant’s demurrer to the FAC is SUSTAINED. Plaintiff did not ask for leave to amend in her opposition brief and the Court cannot ascertain any circumstances where amendment would be possible. Accordingly, the demurrer is sustained without leave to amend.

The motion to strike is DENIED with respect to Plaintiff’s request for “sundry expenses according to proof.”

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@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.