Case Number: BC697534 Hearing Date: March 02, 2020 Dept: 34

SUBJECT: Motion for Summary Adjudication

Moving Party: Defendants Olatunji Bandele, D.V.M and LA Central Animal Hospital

Resp. Party: Plaintiffs Gary Patent and Derrick Abrenica

TENTATIVE RULING:

Defendants’ motion for summary adjudication is DENIED.

Defendants’ request for judicial notice is DENIED as superfluous.

BACKGROUND:

Plaintiffs Gary Patent and Derrick Abrenica commenced this action on March 13, 2018 against Defendants Olatunji Bandele, Young Joo Kim, LA Central Animal Hospital, and Central Orange County Emergency Animal Hospital. The operative first amended complaint, filed August 10, 2018, asserts causes of action for: (1) Negligence; (2) Trespass to Chattel; (3) Negligent Breach of Bailment; (4) Intentional Infliction of Emotional Distress; (5) Fraud; (6) Misrepresentation; and (7) Deceptive Practices (Civ. Code § 1770).

This action arises out of injuries sustained by Plaintiffs’ dog, Laika, and allegedly exacerbated by Defendants’ failure to provide adequate veterinary care. On September 04, 2017, Laika was hit by a car. (FAC ¶ 11.) Plaintiffs brought Laika to Defendant LA Central Animal Hospital where he was examined by Defendant Bandele. (Id.) Bandele diagnosed Laika with a broken back and put Laika’s chances of making a full recovery at 70/30. (Id.) Bandele then recommended that Laika be taken to see Defendant Kim, a veterinary spinal surgeon at Defendant Central Orange County Emergency Animal Hospital. (Id. at ¶ 12.) Despite Bandele’s assurances that Kim would be able to perform the surgery almost immediately, Laika did not receive surgery for nearly 12 hours. (Id. at ¶¶ 13-25.) Plaintiffs allege that as a result of the long delay in beginning the surgery, Laika is now permanently paralyzed in his rear half. (Id. at ¶ 31.)

On September 12, 2018, the Court granted the application of Kim and Central Orange County Emergency Animal Hospital to approve their good faith settlement with Plaintiffs. Those Defendants were subsequently dismissed on October 3, 2018.

On October 26, 2018, the Court sustained Defendants’ demurrer, with leave to amend, as to the seventh cause of action, sustained, without leave to amend, as to Count Three of the first cause of action, the third, fourth, and sixth causes of action, and overruled the demurrer as to Count One and Count Two of the first cause of action, second cause of action, and fifth cause of action.

On October 26, 2018, the Court deemed Defendants’ motion to strike moot as to Nos. 4, 5, 7, 13, and 15; granted their motion to strike as to Nos. 1, 6, 8, and 9 (punitive damages); and denied their motion to strike as to Nos. 2, 3, 10, 11, 12, and 14 (exemplary damages).

On October 10, 2019, the Court granted Defendants Olatunji Bandele, D.V.M. and LA Central Animal Hospital’s motion for summary adjudication as to the veterinarian malpractice/negligence and fraud claims and denied their motion for summary adjudication as to the negligence per se, trespass to chattels, and punitive damages claims.

On October 10, 2019, the Court denied Plaintiffs’ amended motion to vacate settlement agreement.

On November 20, 2019, the Court denied Plaintiffs’ motions to reconsider the Court’s decision regarding (1) the motion for summary judgment/adjudication and (2) the amended motion to vacate settlement agreement.

On January 9, 2020, the Court granted Defendants’ motion for leave to file a first amended answer.

Before the Court is Defendants’ motion for summary adjudication.

ANALYSIS:

A. Request for Judicial Notice

Defendants request that the Court take judicial notice of:

· Exhibit A: Plaintiffs’ FAC, filed on August 10, 2018.

· Exhibit B: Notice of Ruling on Defendants’ Demurrer and Motion to strike, dated October 29, 2018.

· Exhibit C: Stipulation and Order to Continue Trial and Related Deadlines, dated January 15, 2019.

The Court recognizes that “[s]uperfluity does not vitiate.” (Civ. Code § 3537.) Nonetheless, the Court DENIES Defendants’ request as superfluous. (Cal. Rules of Court, rule 3.110(d).) Any party that wishes to draw the Court’s attention to a matter filed in this action may simply cite directly to the document by execution and filing date. (See Cal. Rules of Court, rule 3.1110(d).)

B. Legal Standard

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure Section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code of Civ. Proc. § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

C. Discussion

Defendants move for summary adjudication of the following sole issue:

“Plaintiffs are barred as a matter of law from obtaining an award of exemplary/punitive damages against Defendants because Plaintiffs did not comply with California Code of Civil Procedure § 425.13 by timely obtaining a Court order authorizing them to do seek punitive damages.” (Motion, p. 2:10-13.)

Code of Civil procedure section 425.13, subdivision (a) states:

“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. The court shall not grant a motion allowing the filing of an amended pleading that includes a claim for punitive damages if the motion for such an order is not filed within two years after the complaint or initial pleading is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier.”

Civil Code section 3340 states, “For wrongful injuries to animals being subjects of property, committed willfully or by gross negligence, in disregard of humanity, exemplary damages may be given.”

Defendants assert that with this present motion, they “set forth the case law which the Court found lacking with respect to the Motion to Strike, establishing that punitive damages are the same as exemplary damages.” (Id. at p. 4:20-22.) Defendants argue that because “Plaintiffs’ damages allegations are legally improper (as this Court has already ruled), the same must hold true with respect to Plaintiffs’ exemplary damages allegations.” (Id. at p. 4:22-24.) Therefore, Defendants argue, they “are entitled to summary adjudication as a matter of law with respect to Plaintiffs’ claims for exemplary/punitive damages.” (Id. at p. 4:24-25.)

Defendants cite to several federal court and out-of-state court cases for the general proposition that punitive damages are the same as exemplary damages. (See generally id. at pp. 7:12-8:10, citing Smith v. Wade (1983) 461 U.S. 30, 41; Bonesteel v. Nash (Ohio 2016) 65 N.E.3d 326, 329; Uhle v. Sachs Electric (Mo. 1992) 831 S.W.2d 774, 777 fn.1; Brown v. MHN Government Svcs. (Wash 2013) 306 P.3d 258, 277; Manor Care, Inc. v. Douglas (W.Va. 2014) 763 S.E.2d 73, 79; Harty v. Cantor Fitzgerald and Co. (Conn. 2005) 881 A.2d 139, 153; Pettengill v. Booth Newspapers, Inc. (Mich. 1979) 278 N.W.2d 682, 595, fn. 2; Madison v. Wigal (Ill. 1958) 153 N.E.2d 90, 94; Alabama Power Co. v. Dunlap (Ala. 1941) 200 So.2d 617, 621; Hofer v. Lavender (Tex. 1984) 679 S.W.2d 470, 477; Sexton v. Sewell (Ga. 2019) 830 S.E.2d 605, 611, fn. 29.)

Defendants also cite to California state court cases for the proposition that the courts have generally used the terms “punitive damages” and “exemplary damages” interchangeably. (Id. at p. 8:11-10:7, citing White v. Ultramar (1999) 21 Cal.4th 563, 568, 572; Bertero v. National General Corp. (1974) 13 Cal.3d 43, 66 fn. 13; Mother Cobb’s Chicken Turnovers, Inc. v. Fox (1937) 10 Cal.2d 203, 205; Plotnick v. Meihaus (2012) 208 Cal.App.4th 1590, 1607; Dreyer v. Cyriaks (1931) 112 Cal.App. 279, 281, 284; Covenant Care, Inc. v. Superior Ct. (2004) 32 Cal.4th 771, 776.)

In opposition, Plaintiffs argue that: (1) “Civ. Code § 425.13 specifically refers to Civ. Code § 3294 and makes no mention of Civ. Code § 3340[;]” (2) “Civ. Code § 3294 is specifically written to address health care providers, who treat humans; Civ. Code § 3340 is specifically written to address those who treat animals under property laws[;]” and (3) Defendants have not provided case law which the Court found previously lacking because “citing case law that links ‘exemplary’ and ‘punitive’ as synonymous terms is not the same as citing case law that shows Civ. Code § 425.13 applies to Civ. Code § 3340.” (Opp., pp. 3:4-4:3.)

Defendants still have not cited to any case law demonstrating a court order must be sought before seeking exemplary damages under Civil Code section 3340. CCP §425.13 explicitly cross-refers to Civil Code §3294, but not to Civil Code §3340. Defendants have not cited to case law or legislative history that demonstrates that Civil Code section 425.13 applies to Civil Code section 3340. Therefore, Defendants have not met their burden to show that Plaintiffs are barred as a matter of law from obtaining an award of exemplary damages against Defendants.

Accordingly, the Court DENIES Defendants’ motion for summary adjudication.