Preview
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FILED
LAW OFFICES 0F JOHN A. HAUSER I
DEE 28 20116
WMA
By:
155]
Phone:
LAURIE
Direct:
ELZA,
.l.
No'rth Tustin Avenue,
(714) 571-0407
(714) 371-2311
State
/
Bar No.: 284903
Suite 830
Fax: (877) 369-5799
CLERK 0F THE
éfisr'wfialafimm
3y
COURT
ossépun
E-Majl: laurie.elza@thehartford.com
Mailing Address:
\000\)O\U-.hwto_
P.O. Box 2282, Brea, CA, 92822-2282
Attorneys for Defendants, RONALD S. WEINER, DVM;
CATHERINE HEDDEN, DVM; AND IAN STONE, DVM
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
PATRICIA GINGERY, ct a|., CASE NO. 17CV318655
Plaintiffs, NOTICE OF MOTION AND
MOTION TO STRIKE PORTIONS
vs. OF PLAINTIFF’S COMPLAINT;
MEMORANDUM 0F POINTS AND
RONALD S. WEINER dba CENTRAL AUTHORITIES;
VVVVVVVVVVVVV
DECLARATION
ANIMAL HOSPITAL, ct al., OF LAURIE J. ELZA
Defendants.
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DATE.- Apri110,2018
TIME: 9:00am. ~
'Tv‘ “‘3'
DEPT: 6 \g’fj \f a13-
OOQGMbWN—‘OOWQGMDWNHO
Date Action Filed: November 6, 2017
Trial Date: Not Set
TO: ALL PARTIES HEREIN AND TO THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on April 10, 2017, at9:00 a.m. or as soon thereafter as
counsel may be heard in Department 6 of the above—entitled court, located at 191 N. First St.,
San Jose, California, Defendants, RONALD S. WElNER, DVM (incorrectly named as Ronald S.
Weiner d/b/a Central Animal Hospital); CATHERINE HEDDEN, DVM; AND IAN STONE,
DVM, will move the Court for an order striking plaintiff‘s claims for punitive damages as set
///
I
NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAJNTLFF’S COMPLAINT;
MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF LAURIE J. ELZA
.‘y‘
é)
forth in plaintiff‘s complaint without leave to amend. Plaintiff‘s allegations for punitive
damages are set forth in the con‘1plaint as follows:
-
Paragraphs 40, 48, 56, 61: “(1) mental pajn and sufiering in the form ofanxiety,
grief, and other mental anguish; (2) pain and suffering in the form of stomach pajn,
sleeplessness, and other physical injury..
.”.‘
OWOOVO‘UIAWN—d
-
Paragraph 58: : “(4) mental pain and suffering in the form of anxiety, grief, and other
mental anguish; (5) pain and suffering in the for of stomach pain, sleeplessness, and
ether physical injury...”.
-
Paragraph 41, 49, 57, 62: “In doing the acts and omissions and herein alleged,
Defendants acted with oppression, fi-aud, and malice, and Plaintifis are accordingly
entitled to exemplary damages._”
I
- Paragraphs 70—75, Gross Negligence.
-
Prayer for Relief as pled for the First, Second, Third, and Fourth Causes of Action —
paragraphs 2, 3; as pled for the Sixth Cause of Action — paragraph 2.
This motion to strike isbased upon the grounds that there are (l) emotional distress
damages are not recoverable pursuant to settled California legal authority and (2) insufi‘iciem
facts pled in plaintifis’ complaint to support a cause of action for punitive damages and their
I
failure to meet the requirements of Code ofCivil Procedure §425. 13.
The
NNNNNNNNN—l—HH—_—H—H Motion to Strike will be based upon this non'ee, upon the memorandum ofpoints
and authorities and declaration of Laun'e
OONONUIAWN—‘OOOOVQUIAWN—
J. Elza served and filed herewith, upon all of the
pleadings and records contained in the court file herein, and upon such oral and documentary
evidence as may be presented at the hearing ofthis motion.
Dated: December 22, 2017 LAW OFFICES OF JOI—H‘I A. HAUSER
L/
BY:
LAURIE J. ELZA
Anomeys for Defendants, RONALD S. WEINER,
DVM; CATHERINE HEDDEN, DVM; AND IAN
STONE, DVM
2
NOTICE OF MOTION AND MOTION TO STRJKE PORTlONS OF PLAJNTIFF’S COMPLAINT;
MEMORANDUM OF POINTS AND AUTHORJTIES; DECLARATlON OF LAURJE J. ELZA
A3
A"!
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANTS’ MOTION TO STRIKE EMOTIONAL
DlSTRESS/GENERAL DAMAGES CLAIMS AND PUNITIVE DAMAGES
Defendants, RONALD S. WEINER, DVM; CATHERINE HEDDEN, DVM; AND IAN
STONE, DVM, submit this Memorandum of Points and Authorities in support of their pending
OWWNGUI$WN~
Motion to Strike. The pending motion attacks the punitive damage claims and emotional
distress/general pain-and-sufiering damages claims made in conjunction with five of the seven
causes of action in Plaintifis’ Complaint and seeks to strike allsuch claims in the causes of
action plead by Plaintiffs: In the interest ofjudicial economy, Defendants hereby incorporate by
reference the factual recitations of the content of Plaintiffs’ Complaint set forth in the
concurrently filed Demurrer and the arguments related to the impropriety of claims and causes of
action for general, emotion distress and punitive damage set forth therein.
I.
STATEMENT OF FACTS
The case arises from a veterinary malpractice action brought by Plaintifls for care
provided to their 8 year old dog. The dog sustained injuries afier being lefi in a garage at the
Plaintiffs’ home for an unknown time period. The dog was brought to Defendants for veterinary
care the day afier the incident for examination of her teeth, which were fractured/injuxed
NNNNNNNNN—a—o—IHHHH—I—nu
following the dog’s chewing and ingestion of a wooden door jam and other unknown items while
WNOMAWNI—‘OOOOQQUIAWNH
trapped in the garage. After authorizing the recommended dental surgery, Plaintiffs returned with
the dog the following day and the dental extractions of some of the damaged teeth were
performed under anesthesia. See Complaint 4:26-5:4, 1|17-18 (See Exhibit A to the Declaration of
Laurie J. Elza).. The dog subsequently developed symptoms which were consistent with various
conditions, which included reactions to medication, bronchitis, and esophagitis. Through
consultations with specialists, Defendants determined that esophagitis was the likely condition
and Plaintiffs were referred to a specialist. See Complaint 5:27-6:17, 1124-27.
In addition to veterinary malpractice, Plaintiffs’ Complaint asserts fraud, intentional
infliction of emotional distress, breach of a bailment contract, trespass to chattels, gross
3
NOTICE OF MOTION AND MOTlON TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT;
MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF LAURJE ELZA
.l.
,1
._.
negligence, and unspecified violations of the Business & Professions Code as causes of action
arising from thisclaimed malpractice and are seeking economic, general/emotional distress,, and
punitive damages.
I].
DEFENDANTS’ MOTION TO STRIKE IS PROCEDURALLY PROPER
OOOOVONUIAWN
A motion to strike isa procedural device designed to attack irrelevant and improper
allegations that appear on the face of a pleading. Code afCivil Procedure §§ 435—43 7. In this
regard, a motjon to sn'ike is a proper means to attack a defective/improper punitive damage
claim. Additionally, an improper claim for damages may be sm‘cken from a complaint. [See
College Hosp. Inc. v.Superior Court (1994) 8 Ca1.App.4th 704]. Pursuant to Code ofCiviI
Procedure §436(a), “irrelevant, false, or improper" matters may be stricken from any pleading,
which includes any allegations not essential to the claim, or any allegations “neither pertinent t0
nor support by any otherwise suflicient claim.” [See Wei] & Brown, e! al.,CAL. PRAC. GUIDE:
CIV. PRO BEFORE TRIAL Uhe Rutter Group 2013)]
Plaintiffs inappropriately allege emotional disUess/general damages claims, which are not
recoverable damages in a veterinary malpractice claim. As such, those allegations and claims are
both irrelevant and improper;
Plaintifls also improperly allege and seek punitive damages. Plaintiffs have, as a
threshold matter, failed to comply with Code ofCiviI Procedure §425.13.
NNNMNNNNN-~—_HH~HH
Additionally,
Nflmmwa—‘OOWNQU‘AWNH
Plaintiffs have improperly based their punitive damage claims on what are essentially negligence
claims, without properly alleging facts which reflect the requisite conduct necessary to satisfy
Civil Code §3294, i.e.,oppression, fraud, or malice.
For the reasons set forth below, Defendants respectfully request that the Court strike all
claims from Plaintifls’ Complaint for general/emotional distress damages and punitive damages:
- Paragraphs 40, 48, 56, 61g
“(1) mental pain and suffering in the form of anxiety,
grief,and other mental anguish; (2) pain and sufl‘ering in the for of stomach pain,
sleeplessness, and other physical injury. .
.”.
4
NOTICE OF MOTION AND MOTION TO STRlKE PORTlONS OF PLAJNTIFF’S COMPLAJNT;
MEMORANDUM 0F POINTS AND AUTHORITIES; DECLARATION OF LAURIE J. ELZA
-
Paragaph 58: “(4) mental pain and suffering in the form of anxiety, grief,and other
mental anguish; (5) pain and suffering in the for of stomach pain, sleeplessness, and
other physical injury...”.
' Paragraph 41, 49, 57, 62: “1n doing thg acts and omissions and herein alleged,
Defendants acted with oppression, fiaud, and malice, and Plaintiffs are accordingly
\OOONQUIAWNH
entitled to exemplary damages.”
-
Paragaphs 70-75, Gross Negligence.
-
Prayer for Relief as pled for the First, Second, Third, and Fourth Causes of Action —
paragraphs 2, 3; as pled for the Sixth Cause of Action — paragraph 2.
III.
ARGUMENT & AUTHORITIES
'
A. Plaintiffs’ Claims for GeneraUEmotional Distress Are Not Recoverable By Law
California law isclear that emotional distress/general damages are not permissible
damages in the veterinary malpractice setting. Animals, including pets, are considered property,
and generally, the measure of damages for the loss of or damage to an animal is the lesser of fair
market value or diminution in value, though Plaintiffs may also provide evidence of the cost of
care for an injured animal as a potential measure of damages. [See Civil Code §655; Williamson
NNNNNNNNNH—na—a—a—H—as—n.‘
v Prida (1999) 75 Cal.App.#th 141 7, Phillips v San Luis Obispo County (I986) 183 Cal.App.3d
372, Roos vLoeser
“\IQMAWN—‘OOOONOUIAWN—‘O
(1919), 41 Cal.App. 782, Kimes v Grosser (2011, 195 Ca1.App.4th 1556]
The case ochMahon v Craig (2009) 1 76 Cal.App. 4th 1502 is dispositive on this issue.
In that case, plaintiff alleged that the veterinarian rendered inadequate care of Plaintiff‘s pet, then
lied about it. The Court found that “[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 foremotional distress.” McMahon v
Craig, supra, 1 76 Cal.App. 4th at p. 1510. Further, the Court held that regardless ofhow
foreseeable a pet owner’s emotional distress may be in losing that pet, there is no basis in policy
or reason to impose a duty on a veterinarian to avoid causing emotional disu'ess to the owner of
the animal being treated, noting that such a duty isnot even imposed on a doctor to the parents of
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NOTICE OF MOTION AND MOTION TO STRJKE PORTIONS OF PLAINTIFF’S COMPLAJNT;
MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF LAURIE J. ELZA
a child receiving medical treatment. The Court reasoned that “permitting plaintiffs to recover
emotional distress damages for harm to a pet would likely increase litigation and have a
significant impact on the courts' limited resources” and “such an expansion of the law would
place an unnecessary burden on the ever burgeoning case loads ofthe court in resolving serious
tort claims for injuries t0 individuals.” McMahon v Craig, supra 176 Cal. App. 41h at 1514.
The Court funher noted
ONOOOVQLIIhLNN
that “extending emotional distress damages to owners of
companion pets based on veterinary malpractice would have unknown consequences on both the
cost and availability of veterinary care. Indeed, defining the limits ofpotential liabilitywould be
difficult. Because humans are not related to pets, limits cannot be based on degree of
consangujnjty.” McMahon v Craig, supra. 176 Cal. App. 4th at 1515. Based on the above
reasoning, the Court stated unequivocally that “a pet owner c[an]not recover damages for
emotional distress or loss of companionship based on a veterinarian’s negligent Ueatment that
result[s] in [the animal’s] death. McMahon v Craig, supra] 76 Cal. App. 41h atpp. 1506, 1509—
-
1515,
The only exception to this seminal case arises from a trespass to chattels cause of action
brought for a neighbor’s intentional injury of the plaintifi‘s dog. Limiting itsdecision to the
facts ofthat case, the court upheld an award of general damages under the despass to chattels
claim based on the neighbor’s intentional act of striking the dog _and breaking its leg.Plomick v.
Meihaus (2012) 208
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Cal. App.4u' 1590, 1607. The Court found that the neighbor’s intentional
wrongful act justified such an award and cited case law
OOQO\LIIAWNI—‘O\OOOQO\UI&DJNH
fiom other states where an award of
genera] damages was upheld based on intentional acts such as burning a cat, shooting a pregnant
mare which resulted in a stillborn colt, and a garbage collector killing a tethered dog. Plomick v.
Meihaus 208 Cal.App.4lh at 1607-08. ln Plomick and each of the cited cases the court relied on
in reaching itsdecision, the injury was caused by an intentional and malicious act by a third party
who was not authorized to access or possess the owner’s animal.
In this case, the facts asserted by plaintifis'in their Complaint reflect that the defendants
were authorized to provide veterinary care to their dog, who sustained injuries the day before the
dental procedure afier she was shut in a garage and ingested alportion of a door jam and other
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NOTICE OF MOTION AND MOTION TO STRlKE PORTIONS OF PLAJNTlFF’S COMPLAINT;
MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF LAURJE J. ELZA
unknown items. There isalso no intentional act alleged which would support an award of
general damages based on the narrow holding in Plomick.
Based on the above axgument and authority: Plaintiffs cannot recover for emotional
distress/general damages, and all such claims should be stricken from the Complaint.
B.
WOONQU‘IAWNfl
Plaintiffs’ Punitive Damage Claim isDefective
1. PLArNTlFFs HAVE FAILED To COMPLY wm-l C005 0F CIVIL PROCEDURE 6425. 13
ln claims of professional malpractice by healthcare providers, Code ofCiviI Procedure
§425.13 imposes specialized procedural requirements on those seeking punitive damages in
which they must wait until afier the complaint is filed, then make a motion for leave to file a
punitive damages claim. It states,inpertinent part:
(a) 1n any actionfor damages arising out oflhe professional negligence ofa
health care provider, no claimfor punitive damages shall be include in a
complaint or other pleading unless Ihe court enters an order allowing an
amendedpleading that includes a claimfor punitive damages lo befiled The
court may allow thefiling ofan amendedpleading claimingpunifive damages
on a motion by (he party seeking the amendedpleading and 0n the basis oflhe
supporting and opposing aflidavits presented that the plaintiflhas establishes
that there is a substantial probability that the plaintifi'wiIl prevail on the
claim pursuant to Section 3294 ofthe Civil Code. []
"
(b) For the purposes ofthis section, "health care provider means any person
‘
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licensed 0r certifiedpursuant to Divisoin 2 (commencing with Section 500) of
"
the Business and Professions Code . ..
OONQMbWN—OOWHONUIAWN—‘O
Veterinarians and veterinary clinics are licensed putsuant to Division 2 of the Business
and Professional Codes, starting at Chapter 11, § 4800, et seq., and as such, this provision is
applicable. Further, case law has held that the statute applies if a plaintiff‘sclaim is directly
related to the professional services rendered by a health care provider. Cooper v Superior Court
(I997), 56 Ca1.App.4th 744. Plaintiffs’ claims in this case are directly related to and arise fiom
the professional services rendered by the defendant veterinarians, and as such, are subject to this
provision.
To establish a “substantial probability” of success so as to be allowed to assert a punitive
damages claim against a health care provider under Code Civ. Proc. §425. 13, a plaintiff must
demonstrate a prima facie case showing malice, oppression, or fraud by clear and convincing
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NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT;
MEMORANDUM 0F POINTS AND AUTHORITIES; DECLARATlON OF LAURIE J. ELZA
._..
evidence, the standard required for an award of punitive damages under Code Civ. Proc.
§3294(a). 1n ruling on a plaintiff‘s motion to amend the pleadings to assert a punitive damages
claim, the trialjudge must view the evidence through the prism of the “clear and convincing”
‘
evidentiary burden which the plaintiff must ultimately sustain. Unless persuaded that this burden
has been met, the j‘udge cannot conclude that a substantial probability of ultimate success exists.
[See Looney v Superior Court (1993), 16 Cal.App.4th 52]]
Defendants have no knowledge or notice of such a motion being filed by Plaintiffs and,
as such, have not been provided with the opportunity to oppose or submit opposing affdavits to
such a motion. [See Declaration of Laurie J. Elza, par. 3] Therefore, Plaintifis have failed to
comply with Code ofCiviI Procedure §425.13 and Plaintiffs have improperly included punitive
dainage claims in their Complaint without the requisite showing to the Court of “substantial
probability.” As such, the claims for punitive damages should now be stricken fiom Plaintifi’s
Complaint in their entirety.
2. PLAINTIFFS HAVE FAILED To DEMONSTRATE THE REQUISITE “OPPRESSION, FRAUD
M
ooqom»wm~oxoooqoxm4>w-o~oooqoxuwawm
OR MALICE” REQUIRED BY CIVIL CODE § 3294 To SUPPORT PUNITIVE DAMAGE
Punitive Damages are authorized only when there is clear and convincing evidence that
the defendant isguilty of “oppression, fiaud, or malice.” Civil Code § 3294. In this regard:
Oppression
MNNMNNNNN—‘HHHH—_H_—
isdefined as ‘despicable conduct that subjects a person to cruel and
unjust hardship in conscious disregard of that person’s rights.’ Malice is ‘conduct
which isintended by the defendant to cause injury to the plaintiff 0r despicable
conduct which is carried on by the defendant with a willful and conscious
disregard of the rights or safety of others." Fraud is ‘an intentional
‘
misrepresentation, deceit, or concealment of a material fact. . .. (Emphasis
added) Code ofCiviI Procedure § 3294(0).
Simple negligence, without oppression, fiaud, or malice, does not satisfy the high
culpable state warranting punitive damages. Spencer v San Francisco 'Brick C0. (1 907),
5 Cal.App. 126, 128. Therefore, punitive damage claims are dependent upon an oppression,
fraud, or malice element which isinconsistent with an ordinary negligence cause of action.
8
NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAJNTlFF’S COMPLAINT;
MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF LAURIE .l.ELZA
a. Gross Negligence - Sixth Cause ofAction
Plaintiffs’ gross negligence cause of action is premised solely on the acts of negligence
which are asserted in support of'its veterinary malpractice (negligence) cause of action. These
allegations include failing to supervise the dog prior to surgery, failing to disclose and failing to
delay the surgery after the dog allegedly digested a foreign object, and failing to timely diagnose
\OOOQONU‘AWN—
esophagitis and refer the plaintiffs to a specialist. These factual pleadings are asserted as being
so extreme that they constitute a violation of Civil Code §3340, which allows an award of
punitive damages “[flor wrongful injuries to animals being subjects of property, committed
willfully or by gross negligence, in disregard of humanity. .
.”.See Complaint, Sixth Cause of
Action at 1328-25, 1l72-74,
Plaintifls have asserted no facts which describe conduct which arises to the level of
willful conduct or gross negligence, as required by Civil Code §3340. “[T]o set forth a claim for
‘gross negligence’ the plaintiff must allege extreme conduct on the part of the defendant.”
Rosencrans v.Dover Images, Ltd. (201 l) 192 Cal.App.4th 1072, 1082. A claim of willful
negligence or conduct “describes conduct by a person who may have no intent to cause harm, but
who intentionally performs an act so unreasonable and dangerous that he or she knows or should
know itis highly probable that harm will result.” City of Santa Barbara (2007) 41 Ca1.4th 747,
754, fn. 4. The
NNMNNNNNNay—‘fl—fl—y—‘H—‘fl
wwmmth—‘OWOOVQUIAUJN—‘O
facts asserted by Plaintiff describe negligent acts or omissions which form the
basis for itsveterinary malpractice cause of action. None of the alleged acts or omissions reflect
exu'eme conduct or the intentional performance of an unreasonably dangerous acts.The facts
pleaded do not, as a matter of law, reflect willful or grossly negligent conduct by the Defendants
in their veterinary care of Plaintiffs” dog for injuries she sustained while in her owners’ care.
These same-facts do not support a punitive damages claim under Civil Code § 329. Accordingly,
Plaintiffs’ sixth cause of action should be stricken in its entirety.
b. Fraud and Intentional Infliction of Emotional Distress — Firs! and
Second Causes of Action
With respect to Plaintiffs’ claims tied to their intentional causes of action [Intentional
Infliction of Emotional Distress and Fraud], in order for conduct to constitute oppression or
9
NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT;
MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF .LAURJE J. ELZA
«I
malice, the conduct must be “despicable.“ Code ofCiviI Procedure § 3294(c)(1)-(2).
“Despicable” conduct is that which is “so vile, base, or contemptible that itwould be looked
down upon and despised by ordinary people.” CACI § 3940. Along these lines,despicable
conduct (and, in turn, malice and oppression) requires an actual evil motive. Kendall Yacht v.
United California Bank (I975) 50 Cal. App. 3d 949, 958.
OOWNONUIAUJNH
1n the present case, Plaintiffs’ demands for punitive damages in their Intentional
lnfliction of Emotional Distress cause of Action [asserted as their Second Cause of Action]
allege nothing more than mere negligence — they assert that Defendants “held the trust and
respect of Plaintiffs. ...[who] relied on them to render the appropriate advice. .
.” on their pet’s
care and that Defendants abused that mlst and misled Plaintiffs by failing “...to render the
appropriate advice on Lola’s care to identify her illness....” Plaintiffs then allege that due to
unspecified nondisclosures, Defendants caused Plaintiffs’ claimed damages. The cause of action
incorporates the allegations from the negligence cause of action and asserts no new egregious
acts/omissions which rise to the level of oppression, malice, or despicable conduct which is “so
vile,base or contemptible that itwould be looked down upon and despised by ordinary people.”
Itessentially states nothing more than the allegation that the dog’s veterinary care was improper
and that improper care was responsible for the dog’s death — in short, italleges negligence and
no more. See Complaint, ‘Second Cause of Action
NNNNNMNNNH—Hp—ap—a—‘H—nfl.‘
at 9:10-21, 1|45-1l47.
Similarly, Plaintiffs’ Fraud cause of action alleges only that Defendants had a duty to
“
disclose ifLola urgently
OONQUIAWN—‘OOWNOUIAWNfl
needed a different type or level of care to save her from pain or
death.” Plainu'ffs alleged that Defendants breached this duty by failing to supervise Lola, failing
to disclose that Lola ingested a blanket prior to surgery (which Defendants deny), and by not
diagnosing the “clear indications 0f serious esophageal disease.” See Complaint, First Cause of
Action a: 7:23—8:20, 1|37-1139.
'
The despicable conduct requirement is damage
a substantive limitation on a punitive claim. Shade Foods v.
Innovative Product, 78 Cal. App. 4th 847, 891(2000).
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NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT;
MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION 0F LAURIE J. ELZA
—v
2
These allegations are not only conclusory and/or improper deductions and contentions ,
they lack anyfactual details as to the specific statements made, when they were made and how
they were made, and which of the multiple named defendants made them. The substance of
Plaintiffs’ claims are that Defendants allegedly provided improper supervision and care and did
not provide a rapid or timely diagnosis. Even
OOOOQOM#L~JN—‘
if true, theface of the Complaint reflects no
substantive, factual allegations that Defendants acted with oppression, fraud, or malice, but only
boilerplate conclusions of negligence. No conduct is alleged which falls into the realm of
“despicable” or “evil,” and Defendants should not be faced with defending against claims for
punitive damages without the substantial “clear and convincing” evidence required by statute.
The allegations simply do not to support punitive damages.
c. Breach of Bailment Contract and Tresgass to Chafiels — Third and
Fourth Causes of Action
Plaintifls also seek punitive damages based on the breach of bailment contract and
trespass to chattel claims. Plaintiffs content Defendants breached the bailment contract by failing
to continuously monitor the dog and by extracting four teeth without Plaintiffs’ permission? See
Complaint, Third Cause ofAction at 10:1 1-21 ,1153-1154. These factual assertions, which
Defendants deny, again do not allege acts which would meet the threshold of conduct required
for an award of punitive damages; instead reflecting, atmost, acts of negligence by Defendants.‘
The
NNNNNNNNNHHH~HHH~H~ trespass to chattels punitive damage claim is premised solely on a factually
”NOMAWNHOWWVQM&WN—
unsupported conclusory statement that Defendants “willfully, maliciously, oppressively, and
without Plaintiffs’ consent, intermeddled with Plaintiffs’ use and enjoyment of their
property. ..by causing [their pet]to suffer unnecessarily...”. See Complaint, Fourth Cause of
Action at 11:12-15, 1|60. Again, no facts are alleged which reflect the conduct which plaintiffs
contend was willful, malicious, or oppressive conduct. Even relying on the factual assertions
2
Contentions, deductions, and conclusions of law in a pleading are not assumed to be true, even for the purposes of
Moore v. Regents of University ofCali ornia
a demurrer, where material facts alleged are to assumed to be u'ue.
(I990) 5] Cal.3d 120, [25.
J
This factual assertion
isincongruous with dog was
factual assertions that their
plaintiffs’ indefendants' care of
authorized dental surgery.
1l
NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF‘S COMPLAINT;
MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF LAURIE J. ELZA
.—2
elsewhere in the Complaint, Plaintiffs have failed to plead any facts supporting their contention
that Defendants acted with oppression, fraud, or malice, as the facts asserted support, at most,
their negligence cause of action.
Plaintiffs’ punitive damage claim should be stricken based on(l) their failure to obtain
the requisite prior findings and approval by the Court required by
\OWQONUIAUJNH
Code ofCivil Procedure
§425.13; and (2) their failure to plead facts supporting the requisite basis for a punitive damage
claim. There are simply no allegations that any of the Defendants displayed despicable, vile, or
evil
ln sum,
of the Defendants.
Plaintiffs have n_ot and
There are no facts
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.ni) FILED LAW OFFICES 0F JOHN A. HAUSER I DEE 28 20116 WMA By: 155] Phone: LAURIE Direct: ELZA, .l. No'rth Tustin Avenue, (714) 571-0407 (714) 371-2311 State / Bar No.: 284903 Suite 830 Fax: (877) 369-5799 CLERK 0F THE éfisr'wfialafimm 3y COURT ossépun E-Majl: laurie.elza@thehartford.com Mailing Address: \000\)O\U-.hwto_ P.O. Box 2282, Brea, CA, 92822-2282 Attorneys for Defendants, RONALD S. WEINER, DVM; CATHERINE HEDDEN, DVM; AND IAN STONE, DVM SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA PATRICIA GINGERY, ct a|., CASE NO. 17CV318655 Plaintiffs, NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS vs. OF PLAINTIFF’S COMPLAINT; MEMORANDUM 0F POINTS AND RONALD S. WEINER dba CENTRAL AUTHORITIES; VVVVVVVVVVVVV DECLARATION ANIMAL HOSPITAL, ct al., OF LAURIE J. ELZA Defendants. NNNNNNNNN———u.—.—r—a—np—a.—a—n DATE.- Apri110,2018 TIME: 9:00am. ~ 'Tv‘ “‘3' DEPT: 6 \g’fj \f a13- OOQGMbWN—‘OOWQGMDWNHO Date Action Filed: November 6, 2017 Trial Date: Not Set TO: ALL PARTIES HEREIN AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on April 10, 2017, at9:00 a.m. or as soon thereafter as counsel may be heard in Department 6 of the above—entitled court, located at 191 N. First St., San Jose, California, Defendants, RONALD S. WElNER, DVM (incorrectly named as Ronald S. Weiner d/b/a Central Animal Hospital); CATHERINE HEDDEN, DVM; AND IAN STONE, DVM, will move the Court for an order striking plaintiff‘s claims for punitive damages as set /// I NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAJNTLFF’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF LAURIE J. ELZA .‘y‘ é) forth in plaintiff‘s complaint without leave to amend. Plaintiff‘s allegations for punitive damages are set forth in the con‘1plaint as follows: - Paragraphs 40, 48, 56, 61: “(1) mental pajn and sufiering in the form ofanxiety, grief, and other mental anguish; (2) pain and suffering in the form of stomach pajn, sleeplessness, and other physical injury.. .”.‘ OWOOVO‘UIAWN—d - Paragraph 58: : “(4) mental pain and suffering in the form of anxiety, grief, and other mental anguish; (5) pain and suffering in the for of stomach pain, sleeplessness, and ether physical injury...”. - Paragraph 41, 49, 57, 62: “In doing the acts and omissions and herein alleged, Defendants acted with oppression, fi-aud, and malice, and Plaintifis are accordingly entitled to exemplary damages._” I - Paragraphs 70—75, Gross Negligence. - Prayer for Relief as pled for the First, Second, Third, and Fourth Causes of Action — paragraphs 2, 3; as pled for the Sixth Cause of Action — paragraph 2. This motion to strike isbased upon the grounds that there are (l) emotional distress damages are not recoverable pursuant to settled California legal authority and (2) insufi‘iciem facts pled in plaintifis’ complaint to support a cause of action for punitive damages and their I failure to meet the requirements of Code ofCivil Procedure §425. 13. The NNNNNNNNN—l—HH—_—H—H Motion to Strike will be based upon this non'ee, upon the memorandum ofpoints and authorities and declaration of Laun'e OONONUIAWN—‘OOOOVQUIAWN— J. Elza served and filed herewith, upon all of the pleadings and records contained in the court file herein, and upon such oral and documentary evidence as may be presented at the hearing ofthis motion. Dated: December 22, 2017 LAW OFFICES OF JOI—H‘I A. HAUSER L/ BY: LAURIE J. ELZA Anomeys for Defendants, RONALD S. WEINER, DVM; CATHERINE HEDDEN, DVM; AND IAN STONE, DVM 2 NOTICE OF MOTION AND MOTION TO STRJKE PORTlONS OF PLAJNTIFF’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORJTIES; DECLARATlON OF LAURJE J. ELZA A3 A"! MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE EMOTIONAL DlSTRESS/GENERAL DAMAGES CLAIMS AND PUNITIVE DAMAGES Defendants, RONALD S. WEINER, DVM; CATHERINE HEDDEN, DVM; AND IAN STONE, DVM, submit this Memorandum of Points and Authorities in support of their pending OWWNGUI$WN~ Motion to Strike. The pending motion attacks the punitive damage claims and emotional distress/general pain-and-sufiering damages claims made in conjunction with five of the seven causes of action in Plaintifis’ Complaint and seeks to strike allsuch claims in the causes of action plead by Plaintiffs: In the interest ofjudicial economy, Defendants hereby incorporate by reference the factual recitations of the content of Plaintiffs’ Complaint set forth in the concurrently filed Demurrer and the arguments related to the impropriety of claims and causes of action for general, emotion distress and punitive damage set forth therein. I. STATEMENT OF FACTS The case arises from a veterinary malpractice action brought by Plaintifls for care provided to their 8 year old dog. The dog sustained injuries afier being lefi in a garage at the Plaintiffs’ home for an unknown time period. The dog was brought to Defendants for veterinary care the day afier the incident for examination of her teeth, which were fractured/injuxed NNNNNNNNN—a—o—IHHHH—I—nu following the dog’s chewing and ingestion of a wooden door jam and other unknown items while WNOMAWNI—‘OOOOQQUIAWNH trapped in the garage. After authorizing the recommended dental surgery, Plaintiffs returned with the dog the following day and the dental extractions of some of the damaged teeth were performed under anesthesia. See Complaint 4:26-5:4, 1|17-18 (See Exhibit A to the Declaration of Laurie J. Elza).. The dog subsequently developed symptoms which were consistent with various conditions, which included reactions to medication, bronchitis, and esophagitis. Through consultations with specialists, Defendants determined that esophagitis was the likely condition and Plaintiffs were referred to a specialist. See Complaint 5:27-6:17, 1124-27. In addition to veterinary malpractice, Plaintiffs’ Complaint asserts fraud, intentional infliction of emotional distress, breach of a bailment contract, trespass to chattels, gross 3 NOTICE OF MOTION AND MOTlON TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF LAURJE ELZA .l. ,1 ._. negligence, and unspecified violations of the Business & Professions Code as causes of action arising from thisclaimed malpractice and are seeking economic, general/emotional distress,, and punitive damages. I]. DEFENDANTS’ MOTION TO STRIKE IS PROCEDURALLY PROPER OOOOVONUIAWN A motion to strike isa procedural device designed to attack irrelevant and improper allegations that appear on the face of a pleading. Code afCivil Procedure §§ 435—43 7. In this regard, a motjon to sn'ike is a proper means to attack a defective/improper punitive damage claim. Additionally, an improper claim for damages may be sm‘cken from a complaint. [See College Hosp. Inc. v.Superior Court (1994) 8 Ca1.App.4th 704]. Pursuant to Code ofCiviI Procedure §436(a), “irrelevant, false, or improper" matters may be stricken from any pleading, which includes any allegations not essential to the claim, or any allegations “neither pertinent t0 nor support by any otherwise suflicient claim.” [See Wei] & Brown, e! al.,CAL. PRAC. GUIDE: CIV. PRO BEFORE TRIAL Uhe Rutter Group 2013)] Plaintiffs inappropriately allege emotional disUess/general damages claims, which are not recoverable damages in a veterinary malpractice claim. As such, those allegations and claims are both irrelevant and improper; Plaintifls also improperly allege and seek punitive damages. Plaintiffs have, as a threshold matter, failed to comply with Code ofCiviI Procedure §425.13. NNNMNNNNN-~—_HH~HH Additionally, Nflmmwa—‘OOWNQU‘AWNH Plaintiffs have improperly based their punitive damage claims on what are essentially negligence claims, without properly alleging facts which reflect the requisite conduct necessary to satisfy Civil Code §3294, i.e.,oppression, fraud, or malice. For the reasons set forth below, Defendants respectfully request that the Court strike all claims from Plaintifls’ Complaint for general/emotional distress damages and punitive damages: - Paragraphs 40, 48, 56, 61g “(1) mental pain and suffering in the form of anxiety, grief,and other mental anguish; (2) pain and sufl‘ering in the for of stomach pain, sleeplessness, and other physical injury. . .”. 4 NOTICE OF MOTION AND MOTION TO STRlKE PORTlONS OF PLAJNTIFF’S COMPLAJNT; MEMORANDUM 0F POINTS AND AUTHORITIES; DECLARATION OF LAURIE J. ELZA - Paragaph 58: “(4) mental pain and suffering in the form of anxiety, grief,and other mental anguish; (5) pain and suffering in the for of stomach pain, sleeplessness, and other physical injury...”. ' Paragraph 41, 49, 57, 62: “1n doing thg acts and omissions and herein alleged, Defendants acted with oppression, fiaud, and malice, and Plaintiffs are accordingly \OOONQUIAWNH entitled to exemplary damages.” - Paragaphs 70-75, Gross Negligence. - Prayer for Relief as pled for the First, Second, Third, and Fourth Causes of Action — paragraphs 2, 3; as pled for the Sixth Cause of Action — paragraph 2. III. ARGUMENT & AUTHORITIES ' A. Plaintiffs’ Claims for GeneraUEmotional Distress Are Not Recoverable By Law California law isclear that emotional distress/general damages are not permissible damages in the veterinary malpractice setting. Animals, including pets, are considered property, and generally, the measure of damages for the loss of or damage to an animal is the lesser of fair market value or diminution in value, though Plaintiffs may also provide evidence of the cost of care for an injured animal as a potential measure of damages. [See Civil Code §655; Williamson NNNNNNNNNH—na—a—a—H—as—n.‘ v Prida (1999) 75 Cal.App.#th 141 7, Phillips v San Luis Obispo County (I986) 183 Cal.App.3d 372, Roos vLoeser “\IQMAWN—‘OOOONOUIAWN—‘O (1919), 41 Cal.App. 782, Kimes v Grosser (2011, 195 Ca1.App.4th 1556] The case ochMahon v Craig (2009) 1 76 Cal.App. 4th 1502 is dispositive on this issue. In that case, plaintiff alleged that the veterinarian rendered inadequate care of Plaintiff‘s pet, then lied about it. The Court found that “[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 foremotional distress.” McMahon v Craig, supra, 1 76 Cal.App. 4th at p. 1510. Further, the Court held that regardless ofhow foreseeable a pet owner’s emotional distress may be in losing that pet, there is no basis in policy or reason to impose a duty on a veterinarian to avoid causing emotional disu'ess to the owner of the animal being treated, noting that such a duty isnot even imposed on a doctor to the parents of 5 NOTICE OF MOTION AND MOTION TO STRJKE PORTIONS OF PLAINTIFF’S COMPLAJNT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF LAURIE J. ELZA a child receiving medical treatment. The Court reasoned that “permitting plaintiffs to recover emotional distress damages for harm to a pet would likely increase litigation and have a significant impact on the courts' limited resources” and “such an expansion of the law would place an unnecessary burden on the ever burgeoning case loads ofthe court in resolving serious tort claims for injuries t0 individuals.” McMahon v Craig, supra 176 Cal. App. 41h at 1514. The Court funher noted ONOOOVQLIIhLNN that “extending emotional distress damages to owners of companion pets based on veterinary malpractice would have unknown consequences on both the cost and availability of veterinary care. Indeed, defining the limits ofpotential liabilitywould be difficult. Because humans are not related to pets, limits cannot be based on degree of consangujnjty.” McMahon v Craig, supra. 176 Cal. App. 4th at 1515. Based on the above reasoning, the Court stated unequivocally that “a pet owner c[an]not recover damages for emotional distress or loss of companionship based on a veterinarian’s negligent Ueatment that result[s] in [the animal’s] death. McMahon v Craig, supra] 76 Cal. App. 41h atpp. 1506, 1509— - 1515, The only exception to this seminal case arises from a trespass to chattels cause of action brought for a neighbor’s intentional injury of the plaintifi‘s dog. Limiting itsdecision to the facts ofthat case, the court upheld an award of general damages under the despass to chattels claim based on the neighbor’s intentional act of striking the dog _and breaking its leg.Plomick v. Meihaus (2012) 208 NNNNNNNNN——Hflfl—HHH~ Cal. App.4u' 1590, 1607. The Court found that the neighbor’s intentional wrongful act justified such an award and cited case law OOQO\LIIAWNI—‘O\OOOQO\UI&DJNH fiom other states where an award of genera] damages was upheld based on intentional acts such as burning a cat, shooting a pregnant mare which resulted in a stillborn colt, and a garbage collector killing a tethered dog. Plomick v. Meihaus 208 Cal.App.4lh at 1607-08. ln Plomick and each of the cited cases the court relied on in reaching itsdecision, the injury was caused by an intentional and malicious act by a third party who was not authorized to access or possess the owner’s animal. In this case, the facts asserted by plaintifis'in their Complaint reflect that the defendants were authorized to provide veterinary care to their dog, who sustained injuries the day before the dental procedure afier she was shut in a garage and ingested alportion of a door jam and other 6 NOTICE OF MOTION AND MOTION TO STRlKE PORTIONS OF PLAJNTlFF’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF LAURJE J. ELZA unknown items. There isalso no intentional act alleged which would support an award of general damages based on the narrow holding in Plomick. Based on the above axgument and authority: Plaintiffs cannot recover for emotional distress/general damages, and all such claims should be stricken from the Complaint. B. WOONQU‘IAWNfl Plaintiffs’ Punitive Damage Claim isDefective 1. PLArNTlFFs HAVE FAILED To COMPLY wm-l C005 0F CIVIL PROCEDURE 6425. 13 ln claims of professional malpractice by healthcare providers, Code ofCiviI Procedure §425.13 imposes specialized procedural requirements on those seeking punitive damages in which they must wait until afier the complaint is filed, then make a motion for leave to file a punitive damages claim. It states,inpertinent part: (a) 1n any actionfor damages arising out oflhe professional negligence ofa health care provider, no claimfor punitive damages shall be include in a complaint or other pleading unless Ihe court enters an order allowing an amendedpleading that includes a claimfor punitive damages lo befiled The court may allow thefiling ofan amendedpleading claimingpunifive damages on a motion by (he party seeking the amendedpleading and 0n the basis oflhe supporting and opposing aflidavits presented that the plaintiflhas establishes that there is a substantial probability that the plaintifi'wiIl prevail on the claim pursuant to Section 3294 ofthe Civil Code. [] " (b) For the purposes ofthis section, "health care provider means any person ‘ NNNNNNNNN———au—H—._.—a.—AH licensed 0r certifiedpursuant to Divisoin 2 (commencing with Section 500) of " the Business and Professions Code . .. OONQMbWN—OOWHONUIAWN—‘O Veterinarians and veterinary clinics are licensed putsuant to Division 2 of the Business and Professional Codes, starting at Chapter 11, § 4800, et seq., and as such, this provision is applicable. Further, case law has held that the statute applies if a plaintiff‘sclaim is directly related to the professional services rendered by a health care provider. Cooper v Superior Court (I997), 56 Ca1.App.4th 744. Plaintiffs’ claims in this case are directly related to and arise fiom the professional services rendered by the defendant veterinarians, and as such, are subject to this provision. To establish a “substantial probability” of success so as to be allowed to assert a punitive damages claim against a health care provider under Code Civ. Proc. §425. 13, a plaintiff must demonstrate a prima facie case showing malice, oppression, or fraud by clear and convincing 7 NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT; MEMORANDUM 0F POINTS AND AUTHORITIES; DECLARATlON OF LAURIE J. ELZA ._.. evidence, the standard required for an award of punitive damages under Code Civ. Proc. §3294(a). 1n ruling on a plaintiff‘s motion to amend the pleadings to assert a punitive damages claim, the trialjudge must view the evidence through the prism of the “clear and convincing” ‘ evidentiary burden which the plaintiff must ultimately sustain. Unless persuaded that this burden has been met, the j‘udge cannot conclude that a substantial probability of ultimate success exists. [See Looney v Superior Court (1993), 16 Cal.App.4th 52]] Defendants have no knowledge or notice of such a motion being filed by Plaintiffs and, as such, have not been provided with the opportunity to oppose or submit opposing affdavits to such a motion. [See Declaration of Laurie J. Elza, par. 3] Therefore, Plaintifis have failed to comply with Code ofCiviI Procedure §425.13 and Plaintiffs have improperly included punitive dainage claims in their Complaint without the requisite showing to the Court of “substantial probability.” As such, the claims for punitive damages should now be stricken fiom Plaintifi’s Complaint in their entirety. 2. PLAINTIFFS HAVE FAILED To DEMONSTRATE THE REQUISITE “OPPRESSION, FRAUD M ooqom»wm~oxoooqoxm4>w-o~oooqoxuwawm OR MALICE” REQUIRED BY CIVIL CODE § 3294 To SUPPORT PUNITIVE DAMAGE Punitive Damages are authorized only when there is clear and convincing evidence that the defendant isguilty of “oppression, fiaud, or malice.” Civil Code § 3294. In this regard: Oppression MNNMNNNNN—‘HHHH—_H_— isdefined as ‘despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.’ Malice is ‘conduct which isintended by the defendant to cause injury to the plaintiff 0r despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others." Fraud is ‘an intentional ‘ misrepresentation, deceit, or concealment of a material fact. . .. (Emphasis added) Code ofCiviI Procedure § 3294(0). Simple negligence, without oppression, fiaud, or malice, does not satisfy the high culpable state warranting punitive damages. Spencer v San Francisco 'Brick C0. (1 907), 5 Cal.App. 126, 128. Therefore, punitive damage claims are dependent upon an oppression, fraud, or malice element which isinconsistent with an ordinary negligence cause of action. 8 NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAJNTlFF’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF LAURIE .l.ELZA a. Gross Negligence - Sixth Cause ofAction Plaintiffs’ gross negligence cause of action is premised solely on the acts of negligence which are asserted in support of'its veterinary malpractice (negligence) cause of action. These allegations include failing to supervise the dog prior to surgery, failing to disclose and failing to delay the surgery after the dog allegedly digested a foreign object, and failing to timely diagnose \OOOQONU‘AWN— esophagitis and refer the plaintiffs to a specialist. These factual pleadings are asserted as being so extreme that they constitute a violation of Civil Code §3340, which allows an award of punitive damages “[flor wrongful injuries to animals being subjects of property, committed willfully or by gross negligence, in disregard of humanity. . .”.See Complaint, Sixth Cause of Action at 1328-25, 1l72-74, Plaintifls have asserted no facts which describe conduct which arises to the level of willful conduct or gross negligence, as required by Civil Code §3340. “[T]o set forth a claim for ‘gross negligence’ the plaintiff must allege extreme conduct on the part of the defendant.” Rosencrans v.Dover Images, Ltd. (201 l) 192 Cal.App.4th 1072, 1082. A claim of willful negligence or conduct “describes conduct by a person who may have no intent to cause harm, but who intentionally performs an act so unreasonable and dangerous that he or she knows or should know itis highly probable that harm will result.” City of Santa Barbara (2007) 41 Ca1.4th 747, 754, fn. 4. The NNMNNNNNNay—‘fl—fl—y—‘H—‘fl wwmmth—‘OWOOVQUIAUJN—‘O facts asserted by Plaintiff describe negligent acts or omissions which form the basis for itsveterinary malpractice cause of action. None of the alleged acts or omissions reflect exu'eme conduct or the intentional performance of an unreasonably dangerous acts.The facts pleaded do not, as a matter of law, reflect willful or grossly negligent conduct by the Defendants in their veterinary care of Plaintiffs” dog for injuries she sustained while in her owners’ care. These same-facts do not support a punitive damages claim under Civil Code § 329. Accordingly, Plaintiffs’ sixth cause of action should be stricken in its entirety. b. Fraud and Intentional Infliction of Emotional Distress — Firs! and Second Causes of Action With respect to Plaintiffs’ claims tied to their intentional causes of action [Intentional Infliction of Emotional Distress and Fraud], in order for conduct to constitute oppression or 9 NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF .LAURJE J. ELZA «I malice, the conduct must be “despicable.“ Code ofCiviI Procedure § 3294(c)(1)-(2). “Despicable” conduct is that which is “so vile, base, or contemptible that itwould be looked down upon and despised by ordinary people.” CACI § 3940. Along these lines,despicable conduct (and, in turn, malice and oppression) requires an actual evil motive. Kendall Yacht v. United California Bank (I975) 50 Cal. App. 3d 949, 958. OOWNONUIAUJNH 1n the present case, Plaintiffs’ demands for punitive damages in their Intentional lnfliction of Emotional Distress cause of Action [asserted as their Second Cause of Action] allege nothing more than mere negligence — they assert that Defendants “held the trust and respect of Plaintiffs. ...[who] relied on them to render the appropriate advice. . .” on their pet’s care and that Defendants abused that mlst and misled Plaintiffs by failing “...to render the appropriate advice on Lola’s care to identify her illness....” Plaintiffs then allege that due to unspecified nondisclosures, Defendants caused Plaintiffs’ claimed damages. The cause of action incorporates the allegations from the negligence cause of action and asserts no new egregious acts/omissions which rise to the level of oppression, malice, or despicable conduct which is “so vile,base or contemptible that itwould be looked down upon and despised by ordinary people.” Itessentially states nothing more than the allegation that the dog’s veterinary care was improper and that improper care was responsible for the dog’s death — in short, italleges negligence and no more. See Complaint, ‘Second Cause of Action NNNNNMNNNH—Hp—ap—a—‘H—nfl.‘ at 9:10-21, 1|45-1l47. Similarly, Plaintiffs’ Fraud cause of action alleges only that Defendants had a duty to “ disclose ifLola urgently OONQUIAWN—‘OOWNOUIAWNfl needed a different type or level of care to save her from pain or death.” Plainu'ffs alleged that Defendants breached this duty by failing to supervise Lola, failing to disclose that Lola ingested a blanket prior to surgery (which Defendants deny), and by not diagnosing the “clear indications 0f serious esophageal disease.” See Complaint, First Cause of Action a: 7:23—8:20, 1|37-1139. ' The despicable conduct requirement is damage a substantive limitation on a punitive claim. Shade Foods v. Innovative Product, 78 Cal. App. 4th 847, 891(2000). 10 NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF’S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION 0F LAURIE J. ELZA —v 2 These allegations are not only conclusory and/or improper deductions and contentions , they lack anyfactual details as to the specific statements made, when they were made and how they were made, and which of the multiple named defendants made them. The substance of Plaintiffs’ claims are that Defendants allegedly provided improper supervision and care and did not provide a rapid or timely diagnosis. Even OOOOQOM#L~JN—‘ if true, theface of the Complaint reflects no substantive, factual allegations that Defendants acted with oppression, fraud, or malice, but only boilerplate conclusions of negligence. No conduct is alleged which falls into the realm of “despicable” or “evil,” and Defendants should not be faced with defending against claims for punitive damages without the substantial “clear and convincing” evidence required by statute. The allegations simply do not to support punitive damages. c. Breach of Bailment Contract and Tresgass to Chafiels — Third and Fourth Causes of Action Plaintifls also seek punitive damages based on the breach of bailment contract and trespass to chattel claims. Plaintiffs content Defendants breached the bailment contract by failing to continuously monitor the dog and by extracting four teeth without Plaintiffs’ permission? See Complaint, Third Cause ofAction at 10:1 1-21 ,1153-1154. These factual assertions, which Defendants deny, again do not allege acts which would meet the threshold of conduct required for an award of punitive damages; instead reflecting, atmost, acts of negligence by Defendants.‘ The NNNNNNNNNHHH~HHH~H~ trespass to chattels punitive damage claim is premised solely on a factually ”NOMAWNHOWWVQM&WN— unsupported conclusory statement that Defendants “willfully, maliciously, oppressively, and without Plaintiffs’ consent, intermeddled with Plaintiffs’ use and enjoyment of their property. ..by causing [their pet]to suffer unnecessarily...”. See Complaint, Fourth Cause of Action at 11:12-15, 1|60. Again, no facts are alleged which reflect the conduct which plaintiffs contend was willful, malicious, or oppressive conduct. Even relying on the factual assertions 2 Contentions, deductions, and conclusions of law in a pleading are not assumed to be true, even for the purposes of Moore v. Regents of University ofCali ornia a demurrer, where material facts alleged are to assumed to be u'ue. (I990) 5] Cal.3d 120, [25. J This factual assertion isincongruous with dog was factual assertions that their plaintiffs’ indefendants' care of authorized dental surgery. 1l NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFF‘S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF LAURIE J. ELZA .—2 elsewhere in the Complaint, Plaintiffs have failed to plead any facts supporting their contention that Defendants acted with oppression, fraud, or malice, as the facts asserted support, at most, their negligence cause of action. Plaintiffs’ punitive damage claim should be stricken based on(l) their failure to obtain the requisite prior findings and approval by the Court required by \OWQONUIAUJNH Code ofCivil Procedure §425.13; and (2) their failure to plead facts supporting the requisite basis for a punitive damage claim. There are simply no allegations that any of the Defendants displayed despicable, vile, or evil ln sum, of the Defendants. Plaintiffs have n_ot and There are no facts