KEVIN RYAN VS METROPOLITAN ANIMAL SPECIALTY HOSPITAL, ET AL.

Tentative Rulings

Case Number: 23STCV06115 Hearing Date: June 26, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: June 26, 2023 TRIAL DATE: Not set.

CASE: Kevin Ryan v. Metropolitan Animal Specialty Hospital, et al.

CASE NO.: 23STCV06115

DEMURRER TO VERIFIED COMPLAINT WITH MOTION TO STRIKE

MOVING PARTY: Defendants NVA Mash Capital Partners LP dba Metropolitan Animal Specialty Hospital and Eileen Wong, DVM, Dacvecc

RESPONDING PARTY(S): Plaintiff Kevin Ryan

CASE HISTORY:

03/20/23: Complaint filed.

04/26/23: Demurrer filed.

06/12/23: Opposition filed.

06/16/23: Reply filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff’s action is for the alleged wrongful and unlawful treatment of his ten-year-old female German Shepherd dog (“Copper”), which is considered his property under California law. Plaintiff alleges the following causes of action:

1. Violation of Civ. Code 1750 et seq. Civil Legal Remedies Act (“CLRA”)

2. Violation of Bus. & Prof. Code 17500 et seq. (FAL)

3. Violation of Bus. & Prof. Code 17200, et seq. (UCL)

4. Negligence

5. Trespass to Chattel

6. Intentional Infliction of Emotional Distress

Defendants demur to the verified Complaint on the grounds that the first, second, third, fifth, and sixth causes of action fail to state facts sufficient to support the alleged cause of action.

TENTATIVE RULING:

Defendants NVA Mash Capital Partners LP dba Metropolitan Animal Specialty Hospital and Eileen Wong, DVM, Dacvecc’s demurrer is SUSTAINED WITH LEAVE TO AMEND and motion to strike is GRANTED WITH LEAVE TO AMEND. Plaintiff may file a First Amended Complaint within 30 days of this Order.

DISCUSSION:

Demurrer

Meet and Confer

The Declaration of Attorney Stephanie Beale reflects that the parties met and conferred and could not come to an informal resolution. This satisfies CCP 430.41(a)(3)(B).

Legal Standard

A demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (Code Civil Proc. 430.30, subd. (a); Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “We assume the truth of the allegations in the complaint, but do not assume the truth of contentions, deductions, or conclusions of law.” (California Logistics, Inc. v. State (2008) 161 Cal.App.4th 242, 247.)

A demurrer may be sustained without leave to amend when there is no reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan, supra, 39 Cal.3d at 318.) Indeed, where the facts are not in dispute and the nature of the plaintiff's claim is clear, but no liability exists under substantive law and no amendment would change the result, the sustaining of a demurrer without leave to amend is proper. (City of Ceres v. City of Modesto (1969) 274 Cal. App. 2d 545, 554.) The burden is on the plaintiff to show how the complaint might be amended so as to cure the defect. (Ass’n of Community Orgs. for Reform Now v. Dept. of Industrial Relations (1995) 41 Cal.App.4th 298, 302.)

1. First Cause of Action for Violation of Civ. Code 1750 et seq.

Pursuant to Civil Code section 1770(a), “[t]he following unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or that results in the sale or lease of goods or services to any consumer are unlawful: . . .

(5) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have.

…

(7) representing that goods or services are of a particular standard, quality, or grade.

The Complaint alleges that Defendant Mash violated the CLRA by making numerous misrepresentations about its services, including by stating the following on its website:

a. “The vets at MASH have access to cutting-edge equipment to help diagnose even the most complicated disease processes.”

b. “Combining the latest and safest techniques, along with years of expertise, the team at MASH ensures you and your pet get the most compassionate experience.”

Based on these representations, Plaintiff alleges:

COPPER was grossly misdiagnosed by MASH despite their claiming to be a specialty hospital able to diagnose even the most complicated diseases, thereby violating Civil Code section 1770(a)(7).

Plaintiff relied upon messages similar to, or on, the above non-exhaustive examples of advertising and marketing at all relevant times.

Plaintiff relied upon Defendant’s direct advertisements and marketing representations as set forth above, and Plaintiff further relied upon Defendant’s additional general public advertising and marketing about itself, and therefore selected Defendant as the veterinary facility to which he would entrust his beloved companion, COPPER.

A reasonable member of the public would be likely to be deceived by these representations to believe that the veterinarians at MASH would be equipped to diagnose even the most complicated disease processes. Plaintiff was actually deceived into believing the foregoing.

Based on all facts pled above, the elements of a cause of action under the CLRA are established: (1) Plaintiff paid the money owed to MASH for services for personal, family, and or household purposes; (2) Defendant violated and continue to violate the CLRA by engaging in the practices described above proscribed by Civ. Code section 1770(a) in transactions with Plaintiff which were intended by Defendant to result in, and did result in, the sale of services; (3) Defendant engaged and, upon Plaintiff’s information and belief, continues to engage in the above practice specifically enumerated by and prohibited by Civ. Code section 1770(a); (4) Plaintiff was harmed; and, (5) Plaintiff’s harm resulted from Defendant’s conduct. Additionally, although not required, as pled above, Plaintiff relied on one or more of Defendant’s representations, advertisements, and/or marketing efforts, establishing that Defendant’s conduct was a substantial factor in Plaintiff’s reasonable decisions. Plaintiff contends Defendant, through their acts, intended to deceive Plaintiff.

(Compl. 20, 24, 26-31.)

The court finds that the alleged misrepresentations do not constitute violations of the statutes. Plaintiff’s allegations fail to show that statements are factual representations which are likely to deceive a reasonable consumer. Unlike in Consumer Advocates v. Echostar Satellite Corp. (2003) 113 Cal.App.4th 1351, 1361-1362, where the court found that a television service company’s advertisement that a consumer would be able to view the schedule “up to 7 days in advance,” and that 50 channels would be provided constituted factual representations, here, the statement that the vets at MASH have “access to cutting-edge equipment to help diagnose” diseases do not constitute objective statements which make any guarantees regarding the outcome of any diagnosis or care. Similarly, the statement that “the team at MASH ensures you and your pet get the most compassionate experience” does not make any representation regarding the particular standard, quality, or grade the veterinary treatment would provide. Thus, the court sustains the demurrer as to the first cause of action.

2. Second Cause of Action for Violation of Bus. & Prof. Code 17500 et seq. (FAL)

“The False Advertising Law, or FAL, ‘broadly prohibit[s] false or misleading advertising, declaring that it is unlawful for any person or business to make or distribute any statement to induce the public to enter into a transaction “which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading.”’ [Citation.] The FAL is ‘“designed to protect consumers from false or deceptive advertising.”’ [Citations (“The UCL and false advertising law are both intended to preserve fair competition and protect consumers from market distortions.”).] (People v. Johnson & Johnson (2022) 77 Cal.App.5th 295, 317.)

“‘Like the choice of the term “unfair” in the UCL, the governing substantive standard of the FAL—prohibiting advertising that is “untrue or misleading” [citation]—is set forth in broad and open-ended language that is intended to permit a court of equity to reach any novel or creative scheme of false or misleading advertising that a deceptive business may devise.’ [Citation.] ‘[T]he FAL prohibits “‘not only advertising which is false, but also advertising which[,] although true, is either actually misleading or which has a capacity, likelihood or tendency to deceive or confuse the public.’ [Citation.] Thus, to state a claim under either the UCL or the false advertising law, based on false advertising or promotional practices, ‘it is necessary only to show that ‘members of the public are likely to be deceived.’ ” ’ (Ibid.) FAL actions may be brought by the Attorney General, designated public prosecutors, or ‘any person who has suffered injury in fact and has lost money or property’ as a result of a violation of the FAL. ( 17535.) The trial court may enjoin FAL violators. (Ibid.) Similar to the UCL, the Attorney General and other public prosecutors may seek civil penalties not to exceed $2,500 for each violation of the FAL. ( 17536, subd. (a).)” (Johnson & Johnson, supra, 77 Cal.App.5th at 318.)

“The remedies and penalties provided for in the UCL and FAL generally are cumulative to each other and to remedies and penalties available under other laws. ( 17205, 17534.5.) Thus, conduct that violates both the UCL and FAL can result in separate penalties of up to $2,500 for each UCL violation and for each FAL violation. [Citation (the UCL and FAL ‘allow for cumulative remedies, indicating a legislative intent to allow ... double fines’).]” (Johnson & Johnson, supra, 77 Cal.App.5th at 318.)

As to this cause of action, the Complaint alleges the same statements as stated above. Based on the court’s discussion above, the statements alleged here are not factual statements which are capable of being determined as misleading and/or untrue. Again, there is no guarantee made in the statements that the veterinarians at MASH would accurately diagnose all diseases. It merely states that they have access to such equipment which would assist in diagnosing “even the most complicated disease processes.” Additionally, Plaintiff fails to allege how these statements are by definition false. Neither does he allege that although literally true, the statements are nevertheless misleading and deceptive. Thus, the Court sustains the demurrer as to the second cause of action.

3. Third Cause of Action for Violation of Bus. & Prof. Code 17200, et seq. (UCL)

“California’s unfair competition law bars ‘unfair competition’ and defines the term as a ‘business act or practice’ that is (1) ‘fraudulent,’ (2) ‘unlawful,’ or (3) ‘unfair.’ (Bus. & Prof. Code, 17200; [Citation].) Each is its own independent ground for liability under the unfair competition law [Citation (noting independent ‘prong[s]’)], but their unifying and underlying purpose ‘is to protect both consumers and competitors by promoting fair competition in commercial markets for goods and services.’ [Citation.] (Shaeffer v. Califia Farms, LLC (2020) 44 Cal.App.5th 1125, 1135.)

Based on the foregoing analysis for the CLRA and FAL, the Court finds that the allegations fail to constitute actionable statements under the UCL. Thus, the Court sustains the demurrer as to the third cause of action.

4. Fifth Cause of Action for Trespass to Chattel

“[T]he tort of trespass to chattels allows recovery for interferences with possession of personal property ‘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.’ [Citation.] ‘Though not amounting to conversion, the defendant’s interference must, to be actionable, have caused some injury to the chattel or to the plaintiff's rights in it. Under California law, trespass to chattels “lies where an intentional interference with the possession of personal property has proximately caused injury.” [Citation.] 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.” [Citations.] In modern American law generally, “[t]respass remains as an occasional remedy for minor interferences, resulting in some damage, but not sufficiently serious or sufficiently important to amount to the greater tort” of conversion.’ [Citation.] (Jamgotchian v. Slender (2009) 170 Cal.App.4th 1384, 1400-1401.)

The Complaint alleges:

In March 2022, Defendants willfully and intentionally interfered with Plaintiff’s property, COPPER, and damaged the property. Specifically, Defendants knowingly or intentionally took possession of COPPER. Defendants then intentionally and, without Plaintiff’s consent, failed to provide COPPER with proper veterinary care, harming COPPER. They put COPPER through an invasive procedure and recommended she undergo another extreme surgery. COPPER died less than a year later after undergoing these procedures that she did not actually need because of MASH and WONG’s gross misdiagnosis.

Plaintiff did not consent to the damage done to his beloved family member and legal property.

(Compl. 80-81.)

The only element parties contest is the element regarding consent. Although Plaintiff argues that he sufficiently pled facts sufficient to maintain a cause of action for trespass to chattels because he did not provide informed consent for the performed procedure, Plaintiff fails to provide any authority which imposes the standard for informed consent to be applied to a claim for trespass to chattels. Plaintiff does not contest that he consented to Defendants’ use or possession of his property, only arguing that the consent was uninformed. Thus, the Court finds that Plaintiff cannot maintain a cause of action for trespass to chattels and therefore sustains the demurrer as to the fifth cause of action.

5. Sixth Cause of Action for Intentional Infliction of Emotional Distress

The elements of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) plaintiff’s suffering or severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Plotnik, supra, 208 Cal.App.4th at p. 1609.) “No California case has allowed recovery for emotional distress arising solely out of property damage, absent a threshold showing of some preexisting relationship or intentional tort.” (Cooper v. Superior Court (1984) 153 Cal.App.3d 1008, 1012.) “However, ‘[i]t is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware.’ [Citation.]” (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1516.)

The Complaint alleges:

Defendants failed to care for COPPER and failed to take basic precautions for her wellbeing.

Defendants’ actions caused COPPER to undergo multiple unnecessary, serious, and invasive procedures, costing Plaintiff tens of thousands of dollars. Defendants even told Plaintiff he should euthanize her that very day and that she only had ten (10) days to live, which caused him extreme distress. She ended up living for another nine (9) months.

As set forth above, COPPER was Plaintiff’s trained service dog and assisted him with vertigo. Being without the assistance of his service dog throughout the procedures and then losing his service dog has also been extremely distressing to Plaintiff. Without COPPER, his vertigo has become immobilizing; as a result, he now needs to obtain a new service dog; the cost for a properly trained service dog is high.

In committing the acts and omissions alleged herein, Defendants engaged in outrageous conduct, with intent to act in ways that caused Plaintiff to suffer emotional distress as to the mistreatment of his beloved, precious, and unique family companion and service dog, COPPER.

As a direct and legal cause of the actions of Defendants, Plaintiff has suffered mental anguish, emotional and physical distress, shock, nervousness, anxiety, and depression.

Defendants thereby intentionally, knowingly, unreasonably, or with gross negligence in disregard of humanity, acted to inflict upon Plaintiff’s mental anguish, humiliation, emotional and physical distress, shock, nervousness, anxiety, and depression.

Defendants’ conduct has had a severe, traumatic, and lasting effect on Plaintiff’s emotional tranquility. As a direct and proximate result of the outrageous acts of Defendants, Plaintiff has suffered the severe emotional distress alleged herein.

(Compl. 87-93.)

Here, the Complaint does not meet the prerequisites for an intentional infliction of emotional distress claim because it does not allege that Defendants’ actions were directed at Plaintiff or done in his presence. Defendants’ actions may be viewed as despicable conduct, “[b]ut ‘[i]n evaluating whether the defendant’s conduct was outrageous, it is “not ... enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”’ [Citation.]” (McMahon, supra, 176 Cal.App.4th at 1517.) Plaintiff’s allegations fail to meet this required standard. Thus, the Court sustains the demurrer as to the sixth cause of action.

Motion to Strike

Defendants request the court strike the following from the Complaint:

1. Prayer of Plaintiff’s Complaint in which he asks, “For injunctive relief to prevent Defendants from continuing to violate California law[.]” Complaint, p. 22:13-14, Prayer, 1;

2. Prayer of Plaintiff’s Complaint in which he asks, “For actual damages, restitution, and punitive damages, pursuant to Civil Code section 1780(a) in an amount according to proof[.]” Complaint, p. 22:15-17, Prayer, 2;

3. Prayer of Plaintiff’s Complaint in which he asks, “For restitution pursuant to Bus. & Prof. Code section 17500[.]” Complaint, p. 22:18, Prayer, 3;

4. Prayer of Plaintiff’s Complaint in which he asks, “For actual damages and equitable relief pursuant to Bus. & Prof. Code section 17200[.]” Complaint, p. 22:19-21, Prayer, 4.

5. Prayer of Plaintiff’s Complaint in which he asks, “For punitive damages pursuant to Civil Code 3340 (as to Trespass to Chattel and Intentional Infliction of Emotional Distress Cause of Action[.]” Complaint, p. 22:26-28, Prayer, 9.

Given the court’s sustaining of the demurrer as to the causes of action for violation of the CLRA and Business and Professions Code sections, the court grants Defendants’ request to strike the portions asking for injunctive relief, actual damages, restitution, punitive damages, and equitable relief pursuant to Civil Code section 1780(a) and Business and Professions Code Sections 17200 and 17500.

Given the court’s sustaining of the demurrer as to the causes of action for trespass to chattel and intentional infliction of emotional distress, the court grants Defendants’ request to strike the portions requesting for punitive damages.

Accordingly, Defendants NVA Mash Capital Partners LP dba Metropolitan Animal Specialty Hospital and Eileen Wong, DVM, Dacvecc’s demurrer is SUSTAINED WITH LEAVE TO AMEND and motion to strike is GRANTED WITH LEAVE TO AMEND. Plaintiff may file a First Amended Complaint within 30 days of this Order.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: June 26, 2023

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.