Case Name: Caroline Henry v. Rajdeep Singh, DVM, et al.
Case No.: 1-14-CV-266345
Motion by Defendants Dr. Rajdeep Singh, BVSc [sued as Rajdeep Singh, DVM] and Aborn Pet Clinic, Inc. [sued as Aborn Pet Clinic] to Strike Portions of the Complaint of Plaintiff Caroline Henry
Plaintiff was the owner of a dog named Sierra. (Complaint, ¶13.) On August 14, 2013, Plaintiff took Sierra to defendant Dr. Singh for halitosis, a loose tooth causing a wound below the right eye, and coughing. (Complaint, ¶15.) Upon physical examination, Dr. Singh observed a heart murmur. (Id.) Dr. Singh discussed the “significant risk involved in teeth cleaning” due to Sierra’s heart murmur. (Id.) Dr. Singh advised preoperative thoracic radiographs and medication which Plaintiff declined due to financial constraints. (Id.) Plaintiff specifically told Dr. Singh that she did not want Sierra to undergo the teeth cleaning procedure if there was any danger to Sierra. (Id.) Dr. Singh assured Plaintiff that the procedure could proceed safely if Sierra underwent pre-anesthetic blood work, at an additional cost of $80, and the test results were normal. (Id.)
The blood tests revealed a slight increase in alkaline phosphatase and blood urine nitrogen. (Complaint, ¶16.) The results, in conjunction with the heart murmur and Sierra’s age and physical ailments, should have been a clear warning to Dr. Singh that Sierra was not a candidate for elective anesthesia. (Id.) Despite these warnings, Dr. Singh went forward with the procedure without informing Plaintiff of the test results. (Id.)
On the morning of August 15, 2013, Dr. Singh administered anesthesia to Sierra and performed a “routine dental cleaning” and tooth extraction. (Id.) During the procedure, Sierra suffered cardiac arrest. (Id.) Despite efforts at resuscitation, Sierra was declared dead at 12:15 p.m. (Id.)
On June 10, 2014, Plaintiff commenced this action against Dr. Singh and defendant Aborn Pet Clinic, Inc. (“Clinic”) asserting causes of action for:
(1) Professional Negligence
(2) Trespass to Chattel
(3) Intentional Misrepresentation
On July 17, 2014, Defendants responded by filing this motion to strike the punitive damage claim and the general/emotional distress damage claim. On August 6, 2014, Plaintiff filed an opposition, and on August 12, 2014, Defendants filed a reply.
I. Request for Judicial Notice
Defendants’ request for judicial notice of Plaintiff’s Complaint is GRANTED. The court take judicial notice of the existence of court records, but not necessarily the truth of any matters asserted therein. (See Evid. Code, §452, subd. (d); People v. Woodell (1998) 17 Cal.4th 448, 455.)
II. Punitive Damages
Code of Civil Procedure section 425.13 states, in relevant part:
In 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 Code of Civil Procedure section 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).)
Plaintiff concedes that she did not comply with this procedure. “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 1157.)
- Health care provider
“For 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.” (Code Civ. Proc., §425.13, subd. (b).)” Health care providers include veterinarians, who are licensed pursuant to Division 2 of the Business and Professions Code. In opposition, Plaintiff concedes this point.
- “Arising out of”
The central dispute on this motion 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 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 749; internal citations and punctuation omitted.)
Here, Plaintiff has alleged that the injuries are a direct result of the services rendered by Defendants. The gist of the trespass cause of action is that Defendants operated on the dog, and the gist of the fraud claim is that Defendants advised that a blood test would ensure the dog’s safety. (Complaint, ¶¶ 32 and 35.)
In opposition, Plaintiff states she “is not asking for punitive … damages based on her negligence cause of action; rather, Plaintiff has specifically pled two intentional torts – trespass to chattel and fraud (intentional misrepresentation).” However, as explained by the court in Cooper, alleging these two intentional tort theories does not exempt Plaintiff from application of section 425.13.
Plaintiff asks, in the alternative, that she be allowed to amend her pleading as allowed by Code of Civil Procedure section 425.13, subdivision (a). The relevant language from that section states: “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.” Plaintiff has clearly not complied with the statute which requires both a separate motion and competent affidavits to establish facts showing a substantial probability of prevailing.
Accordingly, the motion is GRANTED. Paragraph 39 of the complaint and paragraph 3 from the prayer for relief are hereby stricken. (See Code Civ. Proc., §425.13; Cooper v. Superior Court (1997) 56 Cal.App.4th 744; Cryolife, Inc. v. Superior Court (2003) 110 Cal.App.4th 1145.)
III. General/ Emotional Distress Damages
Defendants also move to strike Plaintiff’s claim for general/ emotional distress damages sought in connection with her trespass and fraud causes of action. (See Complaint, ¶¶33 and 37.) Defendants rely principally on McMahon v. Craig (2009) 176 Cal.App.4th 1502 (McMahon). In McMahon, a plaintiff dog owner sued defendant veterinarians for, among other things, negligence and intentional infliction of emotional distress after her dog died in defendants’ care. The appellate court upheld a trial court’s decision to strike portions of a complaint seeking damages for emotional distress. “Regardless 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.)
In opposition, Plaintiff relies on cases that do not involve veterinary care. In Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590 (Plotnik), the plaintiffs brought claims for trespass to personal property and negligence based on defendant striking plaintiff’s dog with a baseball bat. A jury awarded plaintiff economic damages for the dog’s surgery and postoperative care as well as emotional distress damages suffered by the plaintiffs. In Sprague v. Frank J. Sanders Lincoln Mercury, Inc. (1981) 120 Cal.App.3d 412, 417, an automobile dealership falsely represented to the plaintiff that if she left her car it would be repaired. Given that the gist of both the second and third cause of actions here is the professional services provided by a veterinarian, the cases relied on by Plaintiff do not distinguish the rule clearly articulated in McMahon.
Accordingly, the motion is GRANTED. The text in paragraph 33 at 9:8-18, paragraph 37 of the complaint and paragraph 1 from the prayer for relief are hereby stricken.
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