Case Name: Patricia & Matthew Gingery v. BRP California LP, et al.
Case No.: 17CV318655

This is an action primarily for veterinary malpractice arising out of the death of a dog owned by Plaintiffs Patricia Gingery and Matthew Gingery (“Plaintiffs”). Plaintiffs’ operative First Amended Complaint (“FAC”) states claims for 1) fraudulent nondisclosure; 2) intentional infliction of emotional distress (“IIED”); 3) breach of bailment contract; 4) trespass to chattel; 5) veterinary malpractice; 6) gross negligence; 7) negligent hiring/training/supervision, and; 8) unfair competition. Currently before the Court is the demurrer by Defendants BRP California, LP., Catherine Hedden, DVM, Ian Stone, DVM, and Meghan Fincher, DVM (“Defendants”) to the first, second, fourth, sixth, seventh and eighth causes of action and Defendants’ motion to strike various damage claims in the FAC.

As an initial matter the Court notes that Code of Civil Procedure (“CCP”) §430.41(a) requires the parties to meet and confer “in person or by telephone” before the filing of a demurrer. CCP §435.5 imposes a similar requirement for motions to strike. An attempted exchange of emails, as described in the declaration of Defense Counsel Laurie Elza, does not comply with the express terms of either statute. The Court will proceed with the demurrer and motion to strike despite this technical noncompliance, and counsel are admonished to comply with these requirements in the future.

1. Demurrer to FAC

The Court in ruling on a demurrer treats it “as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Piccinini v. Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

First cause of action (fraudulent nondisclosure): The first cause of action is brought against all Defendants, including Defendant DRP California LP. As presently pled the claim alleges that all defendants, without any differentiation, failed to disclose certain facts (see FAC at para. 40). These facts, which plainly describe alleged professional negligence, are then repeated almost verbatim in the third (FAC at para. 56), fourth (FAC at para. 66), fifth (FAC at para. 76), sixth (FAC at para. 82) and eighth (FAC at para. 97) causes of action.

Fraud requires a) misrepresentation (false representation, concealment or nondisclosure); b) Knowledge of falsity; c) intent to defraud/induce reliance; d) justifiable reliance; and e) resulting damage. (Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 363.) “A failure to disclose a fact can constitute actionable fraud or deceit in four circumstances: (1) when the defendant is the plaintiff’s fiduciary; (2) when the defendant has exclusive knowledge of material facts not known or reasonably accessible to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations that are misleading because some other material fact has not been disclosed.” (Collins v. eMachines, Inc. (2011) 202 Cal App 4th 249, 255.) “[O]ther than the first instance, in which there must be a fiduciary relationship between the parties, ‘the other three circumstances in which nondisclosure may be actionable presuppose[ ] the existence of some other relationship between the plaintiff and defendant in which a duty to disclose can arise . . . ‘[W]here material facts are known to one party and not to the other, failure to disclose them is not actionable fraud unless there is some relationship between the parties which gives rise to a duty to disclose such known facts.’” (Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th 1178, 1187 [internal citations omitted].)

“Fraud must be pleaded with specificity rather than with general and conclusory allegations. The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made.” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793 [citation and quotation marks omitted].) Courts enforce the specificity requirement in consideration of its two purposes. (Id. at p. 793.) The first purpose is to give notice to the defendant with sufficiently definite charges that the defendant can meet them. (Ibid.) The second is to permit a court to weed out meritless fraud claims on the basis of the pleadings; thus, the pleading should be sufficient to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud. (Ibid.)

Defendants’ demurrer to the first cause of action on the basis that it fails to state sufficient facts is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. As presently alleged against “defendants,” the claim fails to adequately allege fraudulent nondisclosure against any of the defendants, particularly BRP California LP. While the claim lists several “interactions with defendants” (FAC at para. 38), it does not describe the substance of those interactions or how they support a claim for fraudulent nondisclosure, the only type of fraud alleged. Incorporating all prior allegations by reference does not satisfy the pleading requirements for fraud.

Second cause of action (IIED): “A cause of action for intentional infliction of emotional distress exists when there is (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. A defendant’s conduct is outrageous when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. And the defendant’s conduct must be intended to inflict injury or engaged in with the realization that injury will result. Liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. . . . With respect to the requirement that the plaintiff show emotional distress, this court has set a high bar. Severe emotional distress means emotional distress of such a substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051, internal quotations and citations omitted.)

“Conduct, to be ‘outrageous,’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society. While the outrageousness of a defendant’s conduct normally presents an issue of fact to be determined by the trier of fact, the court may determine in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” (Trerice v. Blue Cross of Cal. (1989) 209 Cal.App.3d 878, 883 [internal citations omitted].) Many courts have dismissed intentional infliction of emotional distress claims on demurrer where the conduct is not outrageous as a matter of law. (Bock v. Hansen (2014) 225 Cal.App.4th 215, 235.) Whether a defendant’s alleged conduct is sufficiently outrageous to support a claim may be determined as a matter of law on demurrer. (See Mintz v. Blue Cross of Cal. (2009) 172 Cal.App.4th 1594, 1607-1609; Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.)

The Court agrees with Defendants that the alleged facts here are substantially similar to those in McMahon v. Craig (2009) 176 Cal.App.4th 1502 (“McMahon”). In McMahon, a similar veterinary malpractice case where the veterinarian was also alleged to have fraudulently covered up the malpractice, the court of appeal (in affirming the trial court’s sustaining of a demurrer without leave to amend) stated that “[i]t is not enough that the conduct be intentional and outrageous” and that the “conduct [must be] directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.” (Id. at 1516.) In finding that the malpractice was “neither directed at [plaintiff] nor were they done in her presence,” the court found that the allegations did “not meet the prerequisites for an intentional infliction of emotional distress claim.” (Ibid.) Moreover, “although 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 for emotional distress.” (Id. at p. 1510.)

Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590 (Plotnik), citied by Plaintiffs in opposition, is distinguishable from the facts alleged here (and in McMahon) as Plotnik involved a neighbor’s deliberate attack on a dog with a baseball bat, rather than veterinary malpractice. Apart from the persuasive analysis in McMahon, the Court also independently determines that Defendants’ alleged conduct, veterinary malpractice, cannot reasonably be regarded as so extreme and outrageous as to permit recovery for IIED.

Accordingly, Defendants’ demurrer to the second cause of action on the ground that it fails to state sufficient facts is SUSTAINED WITHOUT LEAVE TO AMEND.

Fourth cause of action (trespass to chattel): “Trespass to chattel, although seldom employed as a tort theory in California … lies where an intentional interference with the possession of personal property has proximately caused injury. Prosser notes trespass to chattel has evolved considerably from its original common law application—concerning the asportation of another’s tangible property—to include even the unauthorized use of personal property: ‘Its chief importance now,’ according to Prosser, ‘is that there may be recovery … for interferences with the possession of chattels which are not sufficiently important to be classed as conversion, and so to compel the defendant to pay the full value of the thing with which he has interfered. Trespass to chattels survives today, in other words, largely as a little brother of conversion.’” (Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1566-1567, internal citations omitted, emphasis added [unconsented electronic access to a computer system constituted a trespass to chattels].) “Under California law, trespass to chattels ‘lies where an intentional interference with the possession of personal property has proximately caused injury.’ In cases of interference with possession of personal property not amounting to conversion, ‘the owner has a cause of action for trespass or case, and may recover only the actual damages suffered by reason of the impairment of the property or the loss of its use.’ . . .” (Jamgotchian v. Slender (2009) 170 Cal.App.4th 1384, 1400, internal citations omitted, emphasis in original.)

As it is nothing more than a subclass of conversion a trespass to chattels claim, like a conversion claim, clearly requires a lack of consent/unauthorized use of the chattel to be pled in order to adequately state a claim. As the FAC at para. 66 does allege that Defendants BRP California LP and Ian Stone acted “willfully” and “without Plaintiffs’ consent” the parties’ debate on this point is moot. Defendants’ assertion that the claim simply duplicates the allegations of veterinary malpractice is, while accurate (compare para. 66 with para. 76), not itself a basis for sustaining the demurrer.

Defendants’ demurrer to the fourth cause of action on the ground that it fails to state sufficient facts is OVERRULED.

Sixth cause of action (gross negligence): The sixth cause of action alleges (FAC at para. 82) that the identical acts/omissions previously alleged (FAC at para. 76) to constitute professional negligence also constitute gross negligence. “‘Gross negligence’ long has been defined in California and other jurisdictions as either a ‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct.’ [Citations.]” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 754; punctuation omitted.) “California does not recognize a distinct common law cause of action for gross negligence apart from negligence.” (Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 552, fn. 3.) The same alleged acts/omissions cannot simultaneously be acts of professional negligence (acts below the professional standard of care) and gross negligence (acts committed without any care). The allegation in the sixth cause of action (FAC at para. 83) that the same conduct already alleged in the fifth cause of action to constitute professional negligence also constitutes a “breach of the standard of care … so extreme in nature that it is conduct [rising] to the level of either want of scant care or an extreme departure from the ordinary standard of conduct” is a bare legal conclusion the Court is not required to accept as true on demurrer. The same is true for the allegation (FAC at 84) that “Defendants” conduct was in violation of Civil Code §3340.

As this is the first pleading challenge the Court has ruled on in this case, granting leave to amend is appropriate. However, unless Plaintiffs can amend to allege a factual basis for this claim separate and distinct from the claim for professional negligence it now clearly duplicates, the claim will not survive a further demurrer on the basis of failure to state sufficient facts.

Defendants’ demurrer to the sixth cause of action on the ground that it fails to state sufficient facts is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

Seventh cause of action (negligent hiring/training/supervision): Defendants’ demurrer to the seventh cause of action on the ground that it fails to state to state sufficient facts is SUSTAINED WITHOUT LEAVE TO AMEND as it is unopposed by Plaintiffs.

Eighth cause of action (unfair competition): Defendant’s demurrer to the eighth cause of action on the ground that it fails to state sufficient facts is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND. As presently pled the only expressly identified basis for the eighth cause of action is the alleged fraudulent nondisclosure and claimed violation of Civ. Code § 3340 (See FAC at para. 97 and 99.) This is confirmed by Plaintiff’s opposition. (See Opp. at 15:19-22.) As the first cause of action for fraudulent nondisclosure and the sixth cause of action for gross negligence presently fail to state sufficient facts, the eighth cause of action does as well.

Plaintiffs are reminded that when a demurrer is sustained with leave to amend, the leave must be construed as permission to the pleader to amend the causes of action to which the demurrer has been sustained, not add entirely new causes of action. (Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.) To raise claims entirely unrelated to those originally alleged requires either a new lawsuit or a noticed motion for leave to amend. Absent prior leave of court an amended complaint raising entirely new and different causes of action may be subject to a motion to strike. (See Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023 [“Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court’s order. The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.”])

2. Motion to Strike portions of the FAC
Defendants also move to strike those portions of the FAC, including the prayer, seeking punitive damages and non-economic (“pain and suffering”) damages for Plaintiffs’ loss of their chattel, the dog. Specifically Defendants seek to strike those portions of paragraphs 42, 50, 62, 71, and 93 of the FAC that seek non-economic “pain and suffering” damages and those portions of paragraphs 43, 51, 63, 72, 80-85 and those portions of the Prayer that seek “punitive and exemplary damages.”

As an initial matter the motion to strike is moot as directed at paragraphs 50, 51 and the portion of the prayer relating to the second cause of action as the demurrer to the IIED claim has been sustained without leave to amend.

Punitive damages
Defendants first assert that all requests for punitive damages are barred by Plaintiffs’ failure to comply with CCP §425.13, which states in pertinent part “[i]n any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.”

A motion to strike is the proper vehicle for attacking a complaint which unilaterally pleads a claim for punitive damages in violation of CCP §425.13. (See Cooper v. Superior Court (1997) 56 Cal.App.4th 744 (Cooper); see also Cryolife, Inc. v. Superior Court (2003) 110 Cal.App.4th 1145 (Cryolife).) “To determine what actions require compliance with the pleadings procedure of section 425.13, the courts will look to whether the injury for which damages are sought is directly related to the professional services provided by the health care provider.” (Cryolife, supra, 110 Cal.App.4th at p. 1157.)

CCP §425.13(b) states that “[f]or the purposes of this section, ‘health care provider’ means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with section 1200) of the Health and Safety Code.” This definition of “health care provider” includes veterinarians as they are licensed pursuant to Division 2 of the Business and Professions Code.

Plaintiffs do not deny that veterinarians are licensed pursuant to Division 2 of the Business and Professions Code. However they contend CCP §425.13 only applies to “professional negligence” actions against a “health care provider” and they contend veterinary malpractice actions do not qualify as professional negligence claims. Plaintiffs rely on two decisions to support this assertion, Vasquez de Mercado v. Superior Court (2007) 148 Cal.App.4th 711 (“de Mercado”) and Scharer v. San Luis Rey Equine Hospital (2012) 204 Cal.App.4th 421 (which relied on de Mercado). These decisions found that actions against veterinarians did not qualify as actions for “professional negligence” as defined in CCP §364(f)(2), part of the Medical Injury Compensation Reform Act (“MICRA”), because they are not actions for personal injury or wrongful death, but merely actions for property damage.

These decisions do not support the conclusion that CCP §425.13 does not apply to professional negligence actions against veterinarians as their statutory analysis was flawed. “Although section 425.13 regulates punitive damage claims against health care providers and its requirement the claim must arise out of ‘professional negligence’ is similar to MICRA’s ‘based on professional negligence’ requirement, section 425.13 does not include MICRA’s definition of professional negligence and it is not part of MICRA. Section 425.13 was enacted more than a decade after MICRA as part of the Willie L. Brown Jr.-Lockyer Civil Liability Reform Act of 1987 (Stats.1987, ch. 1498, §§ 1-7, pp. 5777-5782), which revised statutory provisions addressing punitive damages as part of a larger tort reform effort. Based on section 425.13’s language and legislative history, the [Supreme Court in Central Pathology Services Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 191-192] ‘h[e]ld that whenever an injured party seeks punitive damages for an injury that is directly related to the professional services provided by a health care provider acting in its capacity as such, then the action is one ‘arising out of the professional negligence of a health care provider,’ and the party must comply with section 425.13(a).’ Because section 425.13 is not part of MICRA and employs different language than MICRA’s statutes, the Supreme Court repeatedly has rejected attempts to apply the standard it announced in Central Pathology to MICRA or other statutory provisions.” (Larson v UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 350, internal citations omitted, brackets added, Court’s emphasis.)

Therefore the Court finds that §425.13 does apply in this case. The remaining question is whether the alleged damages arise out of Defendants’ professional negligence. “An action for damages arises out of the professional negligence of a health care provider if the injury for which damages are sought is directly related to the professional services provided by the health care provider. Thus, if a claim is ‘directly related’ to the professional services rendered by a health care provider, section 425.13 applies.” (Cooper, supra, 56 Cal.App.4th at p. 748; internal citations and emphasis omitted.)

“The applicability of section 425.13 does not depend upon technical pleading distinctions between intentional versus negligent tort theories. Identifying a cause of action as an ‘intentional tort’ as opposed to ‘negligence’ does not itself remove the claim from the requirements of section 425.13. Instead, the allegations that identify the nature and cause of a plaintiff’s injury must be examined to determine whether each is directly related to the manner in which professional services were provided. Thus a claim of battery predicated on treatment exceeding or different from that to which a plaintiff consented is governed by section 425.13, a claim of fraud in communication of test results is covered, a claim of intentional infliction of emotional distress arising from the rendition of professional services is covered, a claim of falsification of medical findings and conspiracy to deprive a patient of workers’ compensation benefits is covered, and a claim that a hospital allowed two hospital employees to rape a patient is covered.” (Id. at p. 749; internal citations omitted.)

Measured by this standard all of Plaintiffs’ requests for punitive damages are clearly “directly related” to the professional services rendered by Defendants. The motion to strike is therefore GRANTED as to paragraphs 43, 63, 72, 85 and those portions of the Prayer that seek “punitive and exemplary damages.” Leave to amend is DENIED but this ruling is without prejudice to Plaintiffs’ ability to bring a timely motion to add requests for punitive damages pursuant to CCP §425.13(a) should they choose to do so. Unless and until that happens it is not necessary for the Court to address any other arguments on the availability of punitive damages.

General/emotional distress damages

Defendants’ motion to strike the request for “mental pain and suffering in the form of anxiety, grief and other mental anguish,” and “pain and suffering in the form of stomach pain, sleeplessness and other physical injury . . .” in paragraph 42 of the FAC (part of the first cause of action) is GRANTED WITHOUT LEAVE TO AMEND. Again, McMahon v. Craig, supra, is persuasive. In upholding the trial court’s decision to strike portions of a complaint seeking damages for emotional distress. The appellate court stated “[r]egardless of how foreseeable a pet owner’s emotional distress may be in losing a beloved animal, we discern no basis in policy or reason to impose a duty on a veterinarian to avoid causing emotional distress to the owner of the animal being treated.” (McMahon, supra, 176 Cal.App.4th at p. 1514.) “[E]xtending 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.” (Id. at pp. 1514-1515.)

Defendants’ motion to strike the request for “mental pain and suffering in the form of anxiety, grief and other mental anguish,” and “pain and suffering in the form of stomach pain, sleeplessness and other physical injury . . .” in paragraph 62 of the FAC (part of the third cause of action) is GRANTED WITH 10 DAYS’ LEAVE TO AMEND. Plaintiffs have not identified any basis for awarding such damages on a breach of bailment contract claim. “The measure of damages for injury to the bailed property caused by breach of the bailee’s obligation to use reasonable care to protect it is the amount that will compensate the bailor for the detriment caused. While there is no fixed rule for measuring such damages, there are two commonly used measures: (1) the difference between the reasonable market value of the property in the condition in which it was received and its value upon redelivery to the bailor; and (2) the cost of restoration. The injured bailor is entitled to whichever measure most adequately compensates for the loss or injury.” (9 Cal.Jur.3d (1989) Bailments § 56 [“measure of damages”].)

Defendants’ motion to strike the request for “mental pain and suffering in the form of anxiety, grief and other mental anguish,” and “pain and suffering in the form of stomach pain, sleeplessness and other physical injury . . .” in paragraph 71 of the FAC (part of the fourth cause of action) is GRANTED WITHOUT LEAVE TO AMEND. Plaintiffs’ trespass to chattels claim does not provide a basis for general “pain & suffering” or emotional distress damages. In keeping with its purpose to provide a remedy for “minor inferences” with property “not sufficiently important” to be considered conversion, an action for trespass to chattels only allows for recovery of the actual damages suffered by reason of the impairment of the property or the loss of its use. (See Jamgotchian v. Slender (2009) 170 Cal.App.4th 1384, 1400-1401.)

Defendants’ motion to strike the request for “mental pain and suffering in the form of anxiety, grief and other mental anguish,” and “pain and suffering in the form of stomach pain, sleeplessness and other physical injury . . .” in paragraph 93 of the FAC (part of the seventh cause of action) is DENIED as MOOT as the demurrer to the seventh cause of action was sustained without leave to amend as unopposed.