Dissenting Opinion Spotlight: Appeal should be re-briefed where jury found the actual tortfeasor had no liability

When majority upholds verdict finding School District but not employee is liable, a dissenting Justice asks the parties to submit new briefs

What happens in an appeal if the parties do not brief what may ultimately be the dispositive legal issue?  A remarkable dissent by Justice Richman in the First District's opinion in A.H. v. Tamalpais Union High School District (September 24, 2024) A165493 and A166684, posits that in such an instance should not decide the case on the issues actually briefed, but should instead ask for re-briefing on the most important legal issue raised by the case.

The complaint by A.H. alleged, inter alia, that he was molested by the employee of the defendant School District:

While still in middle school, A.H. began taking private tennis lessons from Burgos, and he joined the Tamalpais High School tennis team as a freshman. A.H. viewed Burgos as a mentor and the “most important person in [his] life” other than his parents. Burgos began sexually abusing A.H. in 2003. The abuse took place in Burgos’s office and later in the coaches’ locker room, both of which were next to the school’s boys’ locker room.m (Id., p. 2.)

The jury found for the plaintiff and the appellate court upheld the verdict, finding the defense had not raised any issue as to either jury instructions of the evidence admitted which required the verdict to be overturned:

On appeal, the District raises two claims: first, that the trial court improperly instructed the jury and, second, that the trial court erred in allowing A.H. to present inadmissible evidence of Burgos’s conduct with others. Finding no error, we affirm. (Id., p. 1.)

The dissent, however, found the parties had not briefed a crucial issue, and therefore dissented despite the fact it found no fault with the majority's analysis "as far as it goes."  According to Justice Richman, the crucial issue not briefed was not waived by the appellant but should in fact be re-briefed:

But there is where I part company with my colleagues. I would go further, and do something that to my knowledge this court has not done in my 18-and-a-half years’ experience here: raise on our own, and seek supplemental briefing on, an issue “not proposed or briefed by any party.” I would do this under the authority of Government Code section 68081, which provides in pertinent part as follows: 

“Before the Supreme Court, a court of appeal, or the appellate division of a superior court renders a decision in a proceeding other than a summary denial of a petition for an extraordinary writ, based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing.” (Dissent, p. 2.)

Specifically, the dissent argued the parties had not fully briefed the crucial issue of "whether the verdict allocating 100 percent responsibility for A.H.’s harm to the District, zero percent to Burgos, can support the judgment." (Id., pp. 1-2.)  The majority opinion noted that  the School District did not argue the apportionment of fault between itself and the employee was wrong, and therefore failed to make the distinct argument that the person committing the sexual assault cannot have zero liability while the party who is liable for this person's acts (for failing to supervise or properly hire him) has 100%.  

While the majority found the District had waived this argument, the dissent wanted the Appellate Court to utilize its power to order re-briefing so that this central flaw in the verdict could be considered.  As the dissent explained succinctly, it simply cannot be that the District is liable for the tort of its employee but the employee himself was not liable:

The jury went beyond the “extraordinary” request by counsel for A.H., and allocated 100 percent of responsibility for the harm to the District, zero to Burgos. That cannot be: if Burgos’s sexual battery did not harm A.H., then the District could not have been negligent in hiring him or failing to supervise him. Ortega v. Pajaro Valley Unified School Dist. (1998) 64 Cal.App.4th 1023 (Ortega), a case cited by the District is, on this point, on point. (Dissent, p. 3; emphasis added.)

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Short take-away: Release by bicycle rider absolved city of liability for injury from pothole

 

The First District has held that under California law a municipality may be absolved of liability by a release signed by a participant in a bicycle ride. (Ty v. White (Feb. 13,2024) A164483.)  The allegation, of course, was that the city failed to maintain the roadway:

Plaintiff Ty Whitehead sued defendant City of Oakland for injuries he suffered after his bicycle hit a pothole during a training ride for the AIDS LifeCycle fundraiser. Prior to the training ride, plaintiff signed an agreement releasing the “owners/lessors of the course or facilities used in the Event” from future liability. The trial court granted defendant’s motion for summary judgment, concluding the release was enforceable. Plaintiff appeals, arguing the release was invalid because it concerned a matter of public interest. (Id., p. 1.)

The appellate court affirmed the grant of summary judgment despite plaintiff's claim the release violated California's Civil Code section 1668,  barring the effect of a release where the transaction implicates the "public interest."  The Ty court rejected this argument, noting that this was not analogous to a release imposed by a charitable hospital, but, rather, involved an activity that was purely voluntary:

In this case, the overall transaction was plaintiff’s signing of a release of liability so that he could participate in the AIDS LifeCycle fundraiser and its organized training rides on defendant’s streets. We cannot, as plaintiff urges, ignore this aspect of this case. Likewise, it cannot reasonably be concluded that a cycling fundraiser is an essential service such that plaintiff was robbed of his free will in deciding whether to sign the release. (Id., p. 12.)

The plaintiff also argued the release was unenforceable because the defendant was grossly negligent and such cannot be waived by a release. The First District, however, found the release was valid because the city's alleged mistakes did not constitute gross negligence, i.e., "there is no evidence that these select mistakes substantially or unreasonably increased the inherent risk of the cycling activity at issue." (Id., p. 20.)

This opinion is of import because it not only reiterates the viability of agreements releasing municipalities from harm, but also because upholding the grant of summary judgment encourages trial courts to give motions for summary judgment and adjudication based on a release serious attention.  A contrary result from the appellate court, finding there were "triable issues" as to the effect of the release and that plaintiff was entitled to proceed to trial, would have discouraged trial courts from ruling a release is valid as a matter of law.

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Arbitration — Employer alleged to have received trade secrets from a new employee does not have a right to “arbitrate” claims brought by prior employer against the new employer (Mattson v. Applied)

 

Arbitration — while a former employee may demand that the former employer arbitrate its claims of trade secret theft against him, the new employer who allegedly received the secrets cannot claim any right to arbitrate the claims against it

The First District, Division Five, has held agreement signed by an employee agreeing to arbitrate claims related to his employment cannot be utilized by the employee’s new employer to force the former employer to arbitrate claims against it related to theft of trade secrets. (Mattson v. Applied (October 30, 2023) A165378.)  Defendant Applied is a competitor of plaintiff Mattson and hired at least 14 former employees of Mattson, including co-defendant Lai, who eventually admitted that he emailed himself documents from his tenure at Mattson before he left for Applied.  Mattson sued both Lai and Applied, and the defense moved to compel arbitration pursuant to the employment agreement signed by Lai and Mattson.  

Plaintiff alleged causes of action for 1) misappropriation under the Uniform Trade Secrets Act against each defendant, and, as against employee Lai, breach of his employment agreement.  Of course, at the time the agreement with Mattson was signed, there was no employment or other sort of contractual relationship between Lai and Applied.

The Hon. Evelio M. Grillo, Judge Presiding, of the Superior Court of Alameda County ruled that while Lai could compel arbitration, Applied had no right to compel former employer Mattson to arbitrate.  The trial court also issued a broad preliminary injunction regarding any use of trade secrets.  Moreover, the trial court declined to stay litigation of the claims of Mattson against Applied until the claims against Lai could arbitrated.

Justice Burns and a unanimous court upheld the first two of these trial court orders.  Even though Applied could claim no contractural privity, it argued that “equitable estoppel” prevented Mattson from refusing arbitration of its claims against Applied.  This argument was rejected by the First District because, inter alia, former employer Mattson made no attempt to apply any portion of the employment agreement with Lai against new employer Allied:

Equitable estoppel provides a limited exception to this general rule.  When a signatory to a contract asserts claims against a non-signatory that rely upon, or are inextricably bound up with, the contract terms, the non-signatory may invoke an arbitration clause in the same contract.  

This makes sense.  As a matter of fairness, when a party to a contract seeks to hold a non-signatory defendant liable for obligations imposed by the contract, the party cannot evade an arbitration clause in the contract simply because the defendant is a non-signatory.  It’s a two-way street. 

Keeping this policy in mind helps define the limits of the rule.  It is not enough that a complaint simply refers to a contract; the claims must be founded on the contract.  Nor is it sufficient that a complaint alleges collusion between a signatory and non-signatory defendant, or that the controversy would not have occurred but for the existence of the contract, provided the contract is not the basis for the claims against the non-signatory.  In these situations, the policy rationale for equitable estoppel—"relying on an agreement for one purpose while disavowing the arbitration clause of the agreement”—does not exist.  (Id., pp. 5-6; citations omitted and emphasis added.)

The Mattson court therefore relied upon a federal case, Waymo LLC v. Uber Techs., Inc. (Fed. Cir. 2017) 870 F. 3d 1342, at 1343-1344) where, likewise, the claims of misappropriation against the new employer did not rely upon the employee's contract with the former employer.

The appellate court also upheld the injunction against Applied, finding the trial court had a reasonable basis for granting its order.  However, it overturned the trial court’s order denying the request to stay the litigation to first permit the completion of the arbitration with Lai.  As the First District pointed out, California's Code of Civil Procedure section 1281.4 provides a “stay” in these circumstances “shall” be granted:

If a court of competent jurisdiction. . . has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, the court . . . shall . . . stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate. (Id., p. 12.)

Tips for practitioners

Equitable estoppel is often misapplied by counsel, not only because it is an equitable concept that relies heavily upon how the facts of a particular case are to be interpreted.  The concept is also applied in a sloppy and/or cursory way because counsel wrongly presume the concept is entirely malleable because it involves "equity;" therefore, counsel mistakenly focus more on what they believe are the sympathies in their particular case rather than the limitations of the doctrine set forth by case law.  

However, the key concept in equitable estoppel may be said to be the parameters of "estoppel" and not the broader concept of equity.

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Short take-away - offering advertisers a choice as to the gender and age may violate Calif. law (Liapes v. Facebook)

Short take-away - Plaintiffs may sue under the Unruh Civil Rights Act alleging racial and age-based discrimination based upon ads Facebook does or does not show

The First District, Division Three has reinstated a class action suit against Facebook alleging violations of California's Unruh Civil Rights Act. (Liapes v. Facebook (Sept. 29, 2023) A164880) Facebook, of course, requires users to reveal their age and gender and then offers advertisers the ability to target advertisements based on data that includes such.  Plaintiffs filed a class action lawsuit alleging, inter alia, that they were offered certain advertisements for insurance based on their age but were denied seeing other advertisements based on these criteria; indeed, advertisers had no choice but to select the preferred age and gender of users and, moreover, Facebook decides whom to target with a particular ad based on algorithms that rely on age and gender.

After the trial court sustained a demurrer to the complaint, plaintiffs appealed.  The First District found the plaintiffs had properly plead a violation of California law, assuming arguendo that the allegations in the complaint were true:

Liapes satisfied these requirements [of the Unruh Civil Rights Act]. As a Facebook user, she has transacted with it.  It knows her age and gender because all users must provide such information as a condition of joining Facebook. Liapes was interested in . . . obtaining life insurance because she did not have a policy at the time. . . .  But Facebook, Liapes alleged, used its Audience Selection tool, Lookalike Audience feature, and ad-delivery algorithm to exclude her from receiving certain insurance ads because of her gender and/or age.

The alleged injury is not conjectural or hypothetical.  Liapes identified a life insurance ad that was only sent to males ages 30 to 49 because the advertiser used the Audience Selection tool. (Id., pp. 9-10; citations omitted.)

Given that this class action suit takes direct aim at the business model of Facebook (Meta) it is likely that further judicial review and/or legislation will follow.  Facebook could, of course, settle this suit but it may face similar suits in other jurisdictions based upon the theory that targeted ads violate Civil Rights laws.

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Towing legally- parked cars for unpaid tickets violates 4th Amendment (Coalition v. SF)

 

Warrantless tows of parked vehicles for past parking violations constitute an unlawful seizure of private property

As do other municipalities, the City and County of San Fransisco tows vehicles that are lawfully-parked at present for past violations of parking rules and resulting unpaid parking fines.  The unstated subtext, of course, is that there may be persons residing in these lawfully-parked vehicles as such vehicles may also be used for purposes of sleeping.  At the same time, such vehicles are often considered abandoned as they be left in a particular spot for several days. 

The Coalition for the Homeless (“Coalition”) sued the City and County of San Francisco, law enforcement, and the local transit authority (“San Francisco”).  The Coalition the towing, and thus seizure and search, of a vehicle violates the Fourth Amendment, which bars warrantless searches unless there are “exigent circumstances” and/or other recognized exceptions to the requirement a warrant is needed.  

The California Court of Appeal for the First District agreed. (Coalition on Homelessness v. City and County of San Fransisco (July 21, 2023) A164180.)  Despite broad-ranging issues involving civil liberties, due process, and the enforcement of parking rules, the appellate court stated the issue succinctly and therefore held a Fourth Amendment analysis was dispositive:

The principal issue on appeal is whether the challenged warrantless tows are permissible under the vehicular community caretaking exception to the Fourth Amendment’s warrant requirement. We conclude respondents have not shown that legally parked cars with unpaid parking tickets that present no threat to “public safety and the efficient movement of vehicular traffic” may be towed under that exception. In particular, we reject respondents’ argument that their interest in deterring parking violations and nonpayment of parking fines justifies warrantless tows under the vehicular community caretaking exception. Such deterrence does not justify warrantless tows of lawfully registered and lawfully parked vehicles. (Id., p. 2; footnote and citation omitted.)

As discussed below, the appellate court also rejected the argument that towing the entire vehicle for unpaid parking tickets was justified as a “forfeiture” of private property.

The supposed “community caretaking” exception to the requirement that a warrant issue before a search and/or seizure does not apply to towing legally-parked vehicles

The First District began by discussing the statute upon which San Francisco relied for the authority to tow vehicles.  Vehicle Code section 22651 permits towing of vehicles where there is notice of multiple parking violations and there is no response within 21 days. Despite this statute, the Coalition filed a Petition for Writ of Mandate and Injunctive and Declaratory Relief.  San Francisco admitted it did not obtain a warrant before towing lawfully-parked vehicles, but argued that under section 22651 no warrant was required.  The trial court found no warrant was required pursuant to the so-called “community caretaking” exception to the Fourth Amendment and the Hon. Ethan P. Schulman of the San Francisco Superior Court therefore entered judgment for San Francisco.  Plaintiff appealed.

California has adopted Federal law as to the scope of the Fourth Amendment, and the Coalition court explained it was readily-apparent that towing a car is a “seizure” as defined by said amendment.  It also held the government has the burden of showing a particular seizure falls under one of the “few” and “specifically established” exceptions to the warrant requirement:

“ ‘A seizure conducted without a warrant is per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well delineated exceptions. The burden is on the Government to persuade the . . . court that a seizure comes under one of a few specifically established exceptions to the warrant requirement.’ ” (Miranda, supra, 429 F.3d at p. 862; see also City of Los Angeles v. Patel (2015) 576 U.S. 409, 419; Ovieda, supra, 7 Cal.5th at p. 1041 [“ ‘The burden is on the People to establish an exception applies.’ ”].)  (Id., p. 7.)

The appellate court found that San Francisco did not meet this burden, as it did not make any showing that a legally parked car was a public safety or health threat.  This is a crucial fact as the “community caretaking” exception has only been applied where there is such a present threat.  In point of fact, Coalition analyzed the scope and history of relevant precedent and found that, in reality, there was no “community caretaking” exception to the requirement that a warrant issue; rather, there is only a “vehicular community caretaking” exception, and such applies only where, at the time of the seizure, the vehicle is parked illegally. (Id., p 11-12; original emphasis.)  Therefore, this exception must serve an “immediate public need.” (Id.)

Coalition flatly rejected the argument that such “need” includes deterring future and hypothetical violations of parking regulations by making it possible to seize a legally-parked vehicle as a result of prior parking violations which have not yet been remedied:

We do not doubt that the threat of impoundment may encourage compliance with parking laws, by owners at all income levels. However, respondents cite no authority that such deterrence is a sufficient basis for a warrantless tow of a legally parked car under the vehicular community caretaker exception. To the contrary, the Miranda [v. City of Cornelius (9th Cir. 2005) 429 F.3d 858, at 865] court expressly rejected a deterrence rationale as justification for impoundment of a vehicle that was not “actually ‘impeding traffic or threatening public safety and convenience’ on the streets.” (Id., p. 18; other citations omitted but original emphasis.)

Not surprisingly, San Francisco argued the failure to tow legally-parked vehicles would mean that parking citations could be ignored with “impunity.”  But Coalition explained there in fact other remedies to collect these monies other than towing a legally-parked vehicle.  For example, where there has actually been an adjudicative process as to unpaid fines, the resulting default judgment may result in towing and impoundment of a vehicle even if legally parked. (Id., p. 26.)  Further, Coalition stressed its holding did not apply where, for example, there was an immediate need for a tow, the vehicle was unregistered, or the vehicle was otherwise illegally parked. (Id., p. 20.)

Finally, the First District rejected the claim that towing a legally-parked vehicle in order to collect unpaid parking violations was akin to a “forfeiture” of private property, i.e., a supposed “progressive forfeiture” based upon the fact the vehicle may, at some point, be legally sold in order to pay unpaid parking tickets.  Cases implying a vehicle may be sold after impoundment as a “forfeiture” were not analogous because here the vehicles were not subject to forfeiture at the time of towing and therefore would only be forfeited at a later date if the amounts owed were not paid.

The appellate court’s public policy analysis was less than robust

Other than responding to the arguments set forth in the briefs, the appellate court did not utilize this opportunity to fully discuss the public policy implications of its ruling vis a vis the towing policy.  On the one hand, one may argue that Fourth Amendment protections should not depend on how courts interpret ever-shifting public policy considerations. 

But it cannot be said that exceptions to the Fourth Amendment are not based, at least in part, upon rationales that involve public policy.  For example, the well-recognized “exigent circumstances” exception is rooted in concerns for public safety and the harm to public safety from the delay occasioned by obtaining a warrant, and therefore the application of this exception cannot be divorced from public policy.  

There is no doubt that the public policy issues involved in towing a vehicle which is presumably worth several times the amount of unpaid parking tickets have many dimensions.  For example, to the extent someone lives in the vehicle, such persons may now have nowhere to sleep.  

Further, the primary beneficiary of the towing policy may often be the towing company itself when one considers the increasingly large fees charged to tow and impound vehicles.  At the same time, general knowledge that warrantless tows of legally-parked vehicle are forbidden does nothing to encourage payment of parking tickets.  Further, the due process which a default judgment affords a vehicle owner prior to the vehicle being impounded benefits the owner but not necessarily the municipality.  The rejoinder is that the Fourth Amendment is not designed for the purpose of making law enforcement more efficient but in order to protect private citizens from governmental intrusion, and therefore applies even where its effect is quite the opposite.

Veterinarian may be liable for intentional infliction of emotional distress for fraudulent treatment of pet (Berry v. Frazier)

 

In California, a plaintiff may plead fraud and intentional infliction of emotional distress against a D.V.M. for the botched euthanasia of a pet and thus may state a claim for punitive damages 

In Berry v. Frazier (May 15, 2023) A164168, plaintiff engaged a service to provide humane in-home euthanasia of her cat.  This service in turn engaged defendant Frazier, a Doctor of Veterinarian Medicine, who ultimately ended up utilizing an intracardiac injection, allegedly without anesthesia, upon plaintiff’s feline.  As the doctor allegedly said, this was because an overdose of medication would “take too long:” 

Frazier and an assistant arrived at Berry’s home in the late afternoon. The euthanasia was to take place in the backyard, where Frazier and his assistant prepared the cat for the insertion of a catheter. During this initial attempt to sedate the cat, Frazier told Kraus and Berry [the owners of the cat], “ ‘Go over there,’ ’’ indicating they should move 30 feet away. They complied, and waited for Frazier to indicate when they could return. After a few moments, Frazier told them that he was unable to place the catheter even though he had tried to do so in all the cat’s limbs. Berry and Kraus became upset and Kraus suggested an overdose of an oral medication (buprenorphine) that had been prescribed for the cat. Frazier responded that it would “ ‘take too long,’ ” but did not explain how long or why the length of time was significant. 

Frazier then suggested euthanasia by “ ‘heart stick’ ” injection, the colloquial term for intracardiac injection, a procedure by which fluid is injected directly into the heart. When Kraus said he had never heard of the procedure, Frazier responded, in a calm and reassuring demeanor, with comments like, “ ‘[i]t’s a small needle,’ ” “ ‘it’s very quick,’ ” and the cat will “ ‘never know what’s happening’ ” and “ ‘won’t feel a thing.’ ” When Berry became emotional, Frazier again calmly described the procedure, adding phrases along the lines of “ ‘it’s the right thing.’ ” Based on Frazier’s representations and in reliance on Frazier’s expertise, Berry consented. Frazier then instructed Berry and Kraus to go inside the house, which they did. Frazier and his assistant completed the procedure and left with the cat.

Berry later learned of the “horrors” of using an intracardiac injection to euthanize a conscious cat. Contrary to Frazier’s representations, it was

“ ‘extremely painful’ ” and generally considered “ ‘inhumane’ ” when performed on a conscious cat. [Footnotes omitted.] (Id., pp. 3-4.)

Berry sued, alleging causes of action for 1) breach of fiduciary duty, 2) conversion of chattel, 3) trespass to chattel, 4) “fraud/deceit /intentional misrepresentation,” 5) intentional infliction of emotional distress, and 6) violation of Civil Code section 3340.  She also alleged entitlement to punitive or exemplary damages.  The trial court sustained the defendant doctor’s demurrer to the second through sixth causes of action and plaintiff dismissed the sole remaining cause of action.  The Hon. Ethan P. Schulman of the San Francisco County Superior Court then denied the motion to strike portions of the complaint, including the request for punitive damages, as moot. 

Judgment was then entered for the defendant and plaintiff appealed.  The California Cout of Appeal for the First District, Division Three, found the appeal from the judgment timely and proper, citing Abatti v. Imperial Irrigation Dist. (2012) 205 Cal. App. 4th 650, at 655.  Specifically, there were no portions of the complaint still pending and the parties had not stipulated to further litigate any claims.  At the same time, the appellate court dismissed the purported appeal from the Motion to Strike ruling as being made from a non-appealable order and not a final judgment. 

Plaintiff properly pled trespass and conversion of chattel

The Berry court rejected the defense claim that there could be no claims for conversion or trespass because the facts merely alleged “professional negligence.”  As the appellate court explained, such defense arguments “ignore the specific allegations that Berry had a legally protectable right to decide the time and manner of the euthanasia of her cat because the cat was her personal property.” (Berry, p. 16.) 

Plaintiff also properly pled intentional infliction of emotional distress and fraud based upon facts showing an intentional misrepresentation

Defendant also argued plaintiff could not state a claim for intentional infliction of emotional distress under her third cause of action, citing McMahon v. Craig (2009) 176 Cal. App. 4th 1502.)  In McMahon, plaintiff plead intentional infliction of emotional distress resulting from malpractice which caused the death of the plaintiff’s dog.  McMahon held the pet’s owner was not entitled to damages for loss of companionship and related emotional distress, as such a claim is not recognized by California law:

We recognize the love and loyalty a dog provides creates a strong emotional bond between an owner and his or her dog. But given California law does not allow parents to recover for the loss of companionship of their children, we are constrained not to allow a pet owner to recover for loss of the companionship of a pet. (McMahon, pp. 1519–1520.)

Berry, however, did not find McMahon dispositive, explaining that liability in McMahon was limited because it involved the measure of damages for professional malpractice.  Here, by contrast, plaintiff alleged not only fraud but also trespass to personal property:

In McMahon, the plaintiff alleged defendants engaged in negligent veterinary malpractice and lied to her to cover up their malpractice. (Id. at p. 1506.) While the complaint included a cause of action for conversion, McMahon did not address that cause of action in resolving the appeal. (Id. at pp. 1508– 1520.) Nor did the McMahon court address a cause of action for trespass to chattels. (See Plotnick, supra, 208 Cal.App.4th at p. 1606 [court held plaintiff could recover emotional distress damages for trespass to chattels cause of action, finding McMahon was inapposite as it “did not involve an action for trespass to personal property”].) (Id., pp. 14-15.) 

The First District further explained McMahon was inapposite because it did not involve a claim for fraud.  In stark contrast, here plaintiff alleged Dr. Frazier made an intentional misrepresentation to her.  Therefore, his actions were directed toward plaintiff Berry and not merely her animal:

In urging that Berry’s claimed loss (her right to “ ‘give the cat a good death’ ”) is not actionable because Berry was not the subject or beneficiary of the veterinary care, Frazier asks us to consider McMahon v. Craig (2009) 176 Cal.App.4th 1502 (McMahon) at page 1510: “[A]lthough a veterinarian is hired by the owner of the 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.” McMahon is inapposite as that court was not concerned with, and therefore had no occasion to address, the nature of damages that could be recovered for a claim of fraud based not on a veterinarian’s malpractice but rather on intentional misrepresentations made to induce a pet owner to consent to an unnecessary, unjustified, and painful procedure. [Citation.] (Id., p. 12; emphasis added.)

Plaintiff could not state a separate cause for action based upon Civil Code section 3340, though this statute could be the basis for a claim for punitive damages

The Berry court termed section 3340 “broadly-worded.” This section provides for punitive damages for “willful” and “inhumane” injury to animals and states in full:

For wrongful injuries to animals being subjects of property, committed willfully or by gross negligence, in disregard of humanity, exemplary damages may be given.

According to Berry, this section remains valid and relevant, but it does not support a separate cause of action.  Rather, it permits an award of punitive damages where a plaintiff proves its elements.  In other words, section 3340 may be the basis for punitive damages to be pled as part of the damages in other causes of action.

More importantly, Berry held that this section may support a claim for punitive damages independent of such a claim being made under Civil Code section 3294.  This latter section sets forth the basis for punitive damages in California and requires a plaintiff prove such by way of “clear and convincing evidence.”  Section 3294 also defines the “malice, oppression, and fraud” necessary to state a claim for punitive damages.  

However, as Berry explained, the procedural safeguards found in section 3294 do not apply to a claim for punitive damages under section 3340, which, as quoted above, applies where there has been an injury to an animal “in disregard of humanity.”  In holding each section could be read independently of the other, Berry aptly noted sections 3294 and 3340 were both enacted in 1874.  While the legislature has amended section 3294 multiple times over the years, it has not made similar changes to section 3340 despite the opportunity to do so. 

Advice for practitioners defending or prosecuting claims for injuries to animals

In summary, Berry overturned the judgment in favor of the defendant and remanded the matter back to the trial court.  Plaintiff was to be given an opportunity to amend her complaint to attempt to state a claim for punitive damages under section 3340 as to any remaining causes of action.

Counsel for plaintiffs are therefore advised to consider whether, under a cause of action involving a claim for injury to an animal which may be considered “inhumane,” they may claim punitive damages under either, or both, section 3340 (for injuries to animals “in disregard of humanity”) or section 3284 (for “malice, oppression, or fraud”).  

Defendants should, of course, be prepared to test the applicability and scope of these allegations by way of demurrer and/or motion to strike.  They should be aware that while section 3340 may provide the basis for a claim for punitive damages, it should not be pled as a separate cause of action.

Depending on the facts pled, a defendant may also wish to make public policy arguments in presenting their defense.  On the one hand, public policy supports discouraging any licensed professional from making fraudulent misrepresentations.  On the other hand, the doctor in Berry was likely paid only a modest fee for his services, being in turn hired by the service plaintiff engage.  Moreover, even plaintiff admitted the doctor attempted to use a catheter before pivoting to the injection plaintiff alleges was inhumane.  Despite this, the defendant doctor now faces potentially ruinous liability, given that any award of punitive damages is uninsurable. (See Insurance Code section 533 prohibiting the insurability of claims based upon intentional conduct.)  Therefore, California public policy may not favor making it riskier for a veterinarian to attempt at-home euthanasia of a pet. 

1 - For a discussion of negligent versus intentional infliction of emotional distress, see our discussion of (Downey v. City of Riverside (April 26, 2023) D080377.

Condo tenant owes no duty to visitors to remedy defect in common area (Moses v. McKeever)

 

Appellate court rejects claim tenant owes a duty to visitors because they have “implied control” over the porch owned by the homeowner association

The First District has held a tenant who does not have express control over the common area in a condominium association does not have a duty to either maintain this area or warn his invitees of any defective or dangerous condition. (Moses v. McKeever (May 5, 2023) A164405,)  As Justice Swope explained, the scope of the duty owed by a tenant as to common areas was dispositive and plaintiff Moses therefore could not state a claim for negligence.  In summary, Moses found the defendant tenant was entitled to summary judgment as to the entire complaint.

Plaintiff brought her claim after she fell while leaving the defendant’s residence:

. . . [Plaintiff] Moses provided her declaration stating that, upon her arrival to Roger-McKeever’s condominium, she mentioned to Roger-McKeever that the entryway was dark. Roger-McKeever acknowledged the issue and “was apologetic indicating that there was an electrical problem with the porch light.” According to Moses’s declaration, Roger-McKeever explained that her landlord had not been responsive in repairing the light. A photograph attached to the declaration depicted three steps leading up and away from a street sidewalk and to a short walkway that ended at a door to Roger- McKeever’s condominium (the entryway or walkway). Moses stated in her declaration that when she was leaving the condominium, she was not able to see the second step and lost her footing and fell. She also provided a declaration from a mechanical engineer, who opined that the steps were “grossly” out of compliance with applicable building code, and that the absence of a handrail and the riser heights of the steps were probable causes of the accident. (Moses, p. 3.)

Defendant maintained that, as a tenant, he had no duty to control the area outside his leased premises, especially as the lease gave him responsibility for maintaining any area outside the actual unit.  The trial court granted summary judgment in his favor and plaintiff appealed.  The appellate court upheld the judgment in favor of the defendant/tenant. [1]

  

Specifically, Moses found that a tenant whose lease gives neither the right nor responsibility to maintain a “common area” does not owe a duty to prevent or warn regarding any dangerous conditions over which the tenant has no control.  This is true even as to someone  invited to the premises, such as plaintiff.

  

Even under the most expansive view of duty, some sort of "control" of the premises is necessary to impose liability

Moses distinguished prior case law such as Alcarez v. Vece (1997) 14 Cal. 4^th 1149.  While ownership certainly is an indicia of control, lack of ownership does not absolve a defendant of responsibility for areas which over which they may exercise at least some control.  Plaintiff Alcarez fell upon a landscaped area whose ownership was unclear; however, whether or not the defendant owned this area or not, he owned the land adjoining this area.  Justice George wrote for a four to three majority which found an adjoining landowner potentially liable for a slip and fall despite lack of clear ownership where the landowner’s agents mowed the lawn and otherwise may have had some sort of “control” over this area.

  

Alcarez, of course, has led to a plethora of attempts by the plaintiffs’ bar to expand liability to include adjoining landowners to situations that are, under any logical analysis, patently unfair.  Indeed, Alcarez is often cited as providing for liability so expansive such includes not only the actual landowner but also someone who owns or maintains the premises adjacent to the area where plaintiff suffers harm. [2]

 

Unfortunately, trial courts often take this gambit and cite to Alcarez as a reason to not give full consideration to an adjoining tenant or landowner’s request for summary judgment, misreading Alcarez as providing for at least potential liability merely because the maintenance of one property might somehow spill over to the adjoining premises.  This includes, for example, landscape maintenance extending just beyond the property line.  This is so despite the fact Alcarez said:

. . . [T]he simple act of mowing a lawn on adjacent property (or otherwise performing minimal, neighborly maintenance of property owned by another) generally will, standing alone, constitute an exercise of control over property and give rise to a duty to protect or warn persons entering the property. (14 Cal. 4th at 1167.)

  

The problem, of course, is that in Alcarez the Supreme Court undermined this limitation by immediately adding, “[b]ut it cannot be doubted that such evidence is relevant on the issue of control,” strongly implying that whether such “neighborly maintenance” constitutes “control” is a factual issue. (Id.)  This in turn means a landowner foolish enough to tempt liability by performing such a neighborly act must therefore undergo the time and expense of a trial simply because they have performed a good deed and therefore cannot obtain dismissal by a motion for summary judgment. 

However, in Moses the Hon. Delbert C. Gee of the Alameda County Superior Court did not agree with plaintiff’s overly-broad interpretation of Alcarez. The appellate court unanimously affirmed the grant of summary judgment, readily distinguishing Alcarez and the other case law cited by the plaintiff.  Moses makes clear that any liability based upon Alcarez still requires the plaintiff show the crucial element of control. 

 

Therefore, contrary to what plaintiff argued, Moses held the possibility the defendant could have prevented the harm on the adjoining area controlled by another is not sufficient to impose liability:

To establish a duty of care under Alcaraz, it is insufficient to speculate that Roger-McKeever could have taken certain actions to prevent injury to Moses without showing that Roger-McKeever had actual control over the area where the injury occurred. “The mere possibility of influencing or affecting the condition of property owned or possessed by others does not constitute ‘control’ of such property.” (Donnell v. California Western School of Law (1988) 200 Cal.App.3d 715, 725–726.) To hold otherwise would undermine the general rule that a defendant is not liable for failing to protect the potential victim if he or she did not contribute to creating the risk. (Brown v. USA Taekwondo, supra, 11 Cal.5th at p. 214.) (Moses, p. 12.)

Moses rejected the idea inviting plaintiff meant the defendant "impliedly adopted" the area where plaintiff fell

Given that plaintiff could show no actual  control over the common-area plaintiff stressed that the circumstances showed “implied” control:

Moses’s primary argument is that despite Roger-McKeever’s lack of control over that area, Roger-McKeever owed her a duty of care because Roger-McKeever “impliedly adopted” the walkway by inviting Moses to her condominium. (Moses, p. 11.)

Moses therefore considered Hassaine v. Club Demonstration Services, Inc. (2022) 77 Cal. App. 5th 843, which had found that where a contractor had “impliedly adopted” the premises of a commercial enterprise, said enterprise could be held liable for the negligence of its contractor.  However, Moses found that even if such a precedent was correctly decided it should be limited to a "commercial" context:

We have not found, and the parties have not provided, any cases that extend Hassaine’s “impliedly adopted” rule to non-commercial contexts. Moreover, even in cases involving a commercial enterprise, “control” is still a required element where the business invitee was injured outside the business premises. [Citation.] (Moses, p. 16.)

A crucial difference, of course, between a tenant in a residential context and the operator of a business is the “special relationship” between the business and its patrons. (Moses, pp. 16-17.) [2]   Defendant in Moses therefore owed plaintiff no duty of due care to have prevented or warned about the harm from the porch step, making it irrelevant that plaintiff that submitted evidence supposedly showing defendant knew the lack of lighting on the porch was "dangerous."  Likewise, the fact the common area was allegedly out of compliance with the relevant building code did not expand the scope of the tenant’s duty to maintain the area he leased, tenant being a mere leaseholder and not an owner. [3]

1 - Apparently the owner of the condominium was not a party to the suit at the time the tenant brought his motion.
2 - Alcarez may be the case most miscited by the California Plaintiffs’ Bar.  This is in terms of 1) misleading the trial court as to the facts in Alcarez, and 2) brazen attempts to apply its holding to situations where its rationale cannot possibly apply.  Such arguments ignore both public policy and the extensive discussion in Alcarez, which does not contemplate an expansion of tort liability to include all adjoining landowners.
3 - The question arises as to the potential liability of the owner of the condominium.  An owner may have less knowledge as to the lack of lighting in the common area outside the unit than would a tenant supposing, for example, that a lighting fixture owned by the association has just malfunctioned.  Still, a court might find the owner of the premises, as opposed to a tenant, has a greater duty to communicate with the association as to known defects.  Indeed, the CC&Rs (Codes, Covenants, and Restrictions) of the association may be pertinent to show the responsibilities of the individual unit owners versus the association.

“Observance” by phone: mother who perceives injury to daughter while on a call may claim “bystander” emotional distress if aware of defendant’s negligence (Downey v. Riverside)

California recognizes emotional distress damages caused by witnessing physical harm to close family members

Lay persons are often surprised to learn one may recover for their own emotional distress due to the physical injury of another.  However, under California law, a party who experiences no physical harm may still claim emotional distress for the injury to a close family member as long as they contemporaneously perceive the injury caused by the defendant.  Nonetheless, there are important limitations on recovery for what is called “bystander” emotional distress.  Most importantly, the person claiming distress must have perceived the harm from the defendant as it is happening and been aware of such harm. (Dillon v. Legg (1968) 68 Cal. 2d 728, and Thing v. La Chusa (1989) 48 Cal. 3d 644.)  Dillon recognized bystander recovery for negligent infliction of emotional distress, sometimes given the odd acronym “NIED.” [1]  After the landmark Supreme Court holding in Dillon, the appellate court in Thing gave such amorphous claims crucial limitations so that a defendant who causes physical harm to a plaintiff is not also liable to each and every person who witnesses this harm.  In the absence of physical injury or impact to the plaintiff, damages for emotional distress should be recoverable only if the plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers emotional distress.

In light of the tendency of California courts to expand the scope of potential claims, there is tension between the limitations found in Thing and factual patterns presenting sympathetic claims for negligent infliction of emotional distress. These include situations that do not present a classic scenario such as a parent physically present at the very scene where their child is harmed.  Subsequent case law has sought to define how modern technology impacts the requirement that someone be “present at the scene” and is “aware” of the conduct which is causing a family member’s physical harm.

It is therefore important that in Downey the Fourth District, Division One, held a party may state a claim for NIED even where they perceive the injury to a loved one by way of a telephone call. (Downey v. City of Riverside (April 26, 2023) D080377.)  However, such a plaintiff must also plead and prove the person suffering emotional distress was aware of the connection of the defendant to the harm suffered by their loved one.  Plaintiff in Downey was the mother of a young woman injured while driving and, in fact, the two were talking on the telephone during the car crash. The mother stayed on the call though her daughter stopped speaking; a Good Samaritan then came to aid the daughter and asked the mother to hang up and call 911 for help. The mother and daughter sued the other driver, the homeowner adjacent to the intersection near the collision, and the City of Riverside, which maintained this intersection. The allegation against the latter two was that the accident was caused in part by the design of the intersection and/or homeowner’s maintenance of vegetation blocking the view of motorists.  

Riverside and the homeowner filed demurrers as to the mother’s claim, arguing neither could claim negligent infliction of emotional distress.  The demurrer was sustained without leave to amend by the trial court but the appellate court reversed.  A two-to-one majority held the mother had failed to properly plead she was aware of some sort of connection between, on the one hand, her daughter's harm, and, on the other hand, the negligence of Riverside and the homeowner.  The court further held the mother should be allowed to amend her complaint to plead such knowledge.

Negligent emotional distress is an element of negligence and is not plead as a separate tort as is “intentional infliction of emotional distress”

Of course, negligent infliction of emotional distress is not a separate cause of action but rather an element of damages recognized as compensation for negligent conduct. (Burgess v. Superior Court (1992) 2 Cal. 4th 1064, at 1072.)  A plaintiff claiming physical harm due to another’s negligence may therefore also claim damages for the emotional distress caused by the physical harm. Moreover, close family members who witness this harm may claim such distress, subject to certain strict limitations. [2]

By contrast, intentional infliction of emotional distress is predicated upon a defendant’s unprivileged commission of an “outrageous act" with the intent to inflict mental suffering, thus requiring 1) extreme and outrageous conduct by the defendant with the intent of causing emotional distress; 2) severe or extreme emotional distress suffered by the plaintiff; and 3) actual and proximate causation of the emotional distress by the alleged outrageous conduct. (Christensen v. Superior Court (1991) 54 Cal. 3d 868, at 903.)  In order to recover on this theory, a plaintiff must plead and prove that defendant’s acts were so extreme and outrageous as to exceed all bounds of decency and behavior beyond that normally tolerated in a civilized society. (Cervantez v. J. C. Penney Co. (1979) 24 Cal. 3d 579, at 593; Yurick v. Superior Court (1989) 209 Cal. 3d 1116, at 1128.)  As the court stated in Christiansen, “[t]he defendant must have engaged in conduct intended to inflict injury or engaged in with the realization that injury will result.”  The chief exception to the requirement of “intent” is where a defendant acts in “reckless disregard” of the plaintiff and with “substantial certainty” their conduct will cause severe emotional distress. (Id., p. 903.)

Plaintiff could recover even though she “observed” the incident from another location by listening to a phone call

The Downey court cited with approval to Ko v. Maxim (2020) 58 Cal. App. 5th 1144, where the Second District, Division Seven, ruled a “bystander” to physical injury to a close family member includes someone who observes the harm through electronic means.  This is important because Thing provided a bright line  test regarding the elements of a bystander’s claim for negligent infliction of emotional distress by stating a close family member may recover where they are 1) present at the scene when the injury-producing event happens, and 2) are aware the event is causing injury.

Plaintiffs in Ko brought claims for negligent infliction of emotional distress alleging an in-home nurse employed by defendant Maxim abused their disabled son while they were not at home.  The Kos alleged they witnessed the abuse of their son in real-time via a livestream video and audio on a smartphone from a “nanny cam.”  The trial court ruled the parents could not state a claim for negligent infliction of emotional distress because they were not physically present at the time of the harm to their son.  The appellate court reversed and held that a “live stream” of an event constituted sufficient “presence” to meet the requirements of Thing and Dillon. Specifically, Ko discussed the technological advances which have occurred since 1989 and explained these changes make it possible for someone to be present virtually in a manner not previously possible and therefore to observe harm to a family member.  Thing held the right to recovery is based upon the “impact” of the actual observation of harm, and thus “distinguishes the plaintiff’s resultant emotional distress from the emotion felt when one learns of the injury or death of a loved one from another, or observes pain and suffering but not the traumatic cause of the injury.” (Thing, 48 Cal. 3d at 666.) 

Downey therefore held the plaintiff mother had “contemporaneous observance” of both the incident and the harm her daughter suffered even though she was in a different location and merely heard but did not see, the crash.  The plaintiff had met the “contemporaneous observance” element of the claim for emotional distress by virtue of the facts plead:

. . . Downey [mother] heard Vance [daughter] take an audibly sharp, gasping breath; her frightened or shocked exclamation: “Oh!”; and the simultaneous, or near-simultaneous sounds of an explosive metal-on-metal vehicular crash; shattering glass; and rubber tires skidding or dragging across asphalt. Downey had not heard the sounds of skidding tires or squealing brakes in the seconds immediately preceding the impact. Then and there, Downey knew from the combination of the sounds she heard, and from having directed Vance where to drive, that Vance had been injured in a high-velocity motor vehicle collision at or near Via Zapata at Canyon Crest Drive. 

As the sound of tires skidding or dragging across asphalt diminished, and having heard no sounds or vocalizations from Vance, Downey understood Vance was injured so seriously she could not speak. Downey immediately left her office, telling people there something like, “I have to go, my daughter has been in a car accident, I have to go.” As Downey ran to her car and started driving toward the scene of the incident, she called out to Vance. For a time, Downey heard nothing, but then heard the sound of rustling in Vance’s car. Downey started screaming into her phone, “Can you hear me? Can you hear me? I can hear you, can you hear me?” She then heard a male voice say something like, “Would you stop? I’m trying to find a pulse.” Downey waited, then asked, “Is she alive?” Moments later, the man said, “She breathed. I got a breath.” He then said something like: “What I am going to tell you to do is going to be the hardest thing you will ever do in your life. I want you to hang up your phone and call 911, and have them respond to Via Zapata and Canyon Crest Drive in Riverside.” (Downey, pp. 4-5.)

However, plaintiff did not plead she was aware Riverside and the homeowner had any connection to the harm she observed

The City and homeowner argued the complaint did not plead a sufficient causal connection between their actions and the emotional distress supposedly suffered by the plaintiff, such as her familiarity with and awareness of the dangerous conditions they created at the intersection. 

This is because a plaintiff suing a particular defendant must plead not only observance of the actual harm but, as to a specific defendant, the “‘contemporaneous sensory awareness of the causal connection between the negligent conduct and the resulting injury.’” (Bird v. Saenz (2002) 28 Cal. 4th 910, at 918, quoting Golstein v. Superior Court (1990) 223 Cal.App. 3d 1415, at 1427-1428.)  In Bird the Supreme Court reversed the Second District, Division Seven, which had in turn reversed the trial court’s grant of summary judgment in favor of the medical malpractice defendants. Writing for a unanimous court, Justice Werdeger explained the defendants were entitled to summary judgment as the plaintiffs were not present at the time the medical malpractice occurred and were not aware until later that the defendants had caused the harm.  This was true even though there had been a call for a thoracic surgeon over the loudspeaker at the hospital because such a general announcement would not tell anyone in the waiting room anything about a specific surgical procedure being performed.

Plaintiff in Downey was permitted to amend to plead facts showing, at the time of the accident, awareness of the relationship of the defendants to the collision

In an opinion written by Justice O’Rourke, to which Justice O’Connell joined, the majority in Downey held Riverside and the homeowner were required to plead awareness of a connection between the defendants who supposedly created a dangerous intersection and the plaintiff who observed the harm.  Consequently, the trial court’s judgment of dismissal was vacated and the matter remanded to the trial court with instructions to permit the plaintiff to plead her awareness of the negligence of both Riverside and the homeowner.  Plaintiff, of course, maintained she had such awareness because she had been giving her daughter directions just before the crash and therefore knew where her daughter was, and was familiar with the intersection at issue and its problems.

Justice Dato concurred the judgment in favor of the demurring defendants should be set aside but argued the demurrer should have been overruled by the trial court.  The dissent argued a plaintiff who observed harm to a close family member should not have to plead awareness, at the very time of injury, of the relationship of each defendant to the harm.  According to the dissent, language in Bird indicating a plaintiff must meet this hurdle should be limited to a medical-malpractice context because in such suits “there is seldom a readily-perceptible traumatic incident.”  Here, by contrast, the plaintiff knew an accident was happening and that her daughter was injured. 

Advice for practitioners pleading and defending claims of negligent infliction of emotional distress where observed electronically

Plaintiffs seeking to claim emotional distress by way of an ordinary phone call, Zoom meeting, FaceTime call, or other methods of “livestreaming” should be aware of the holdings in both Ko and Downey. It should not matter that the stream involves, audio, video, or a combination of the two as long as the facts show “contemporaneous observance” of harm to a close family member.  

However, plaintiffs are advised to also plead some minimal knowledge of the relationship of each particular defendant to the harm. Specifically, each plaintiff should plead knowledge that the family member observing the harm is aware of the relationship of each defendant to the harm and, in particular, how their breach of the duty of due care contributed to the harm.

By contrast, defendants should be aware of the pleading requirements outlined in Thing, Ko, and Downey and should be ready to test pleadings by way of demurrer.  They should also propound specific discovery as to what knowledge the plaintiff had as to each defendant's relationship to the harm at the time it occurred.  Such discovery may be a necessary prerequisite to a motion for summary judgment and/or summary adjudication seeking to bar damages for negligent infliction of emotional distress.

Justice Dato concurred the judgment in favor to the demurring defendants should be set-aside but argued the demurer should have been overruled by the trial court.  The dissent argued a plaintiff who observed harm to a close family member should not have to plead awareness, at the very time of injury, of the relationship of each defendant to the harm.  According to the dissent, language in Bird indicating a plaintiff must meet this hurdle should be limited to a medical-malpractice context because in such suits “there is seldom a readily-perceptible traumatic incident.”  Here, by contrast, the plaintiff clearly knew an accident was happening and that her daughter was injured. 

Advice for practitioners pleading and defending claims of negligent infliction of emotional distress where observed electronically

Plaintiffs seeking to claim emotional distress by way of an ordinary phone call, a Zoom meeting, or a FaceTime call, or other method of “livestream” should be aware of the holdings in both Ko and Downey.  It should not matter that the stream involves, audio, video, or a combination of the two as long as the facts show “contemporaneous observance” of harm to a close family member.

However, plaintiffs are advised to also plead some minimal knowledge of the relationship of each particular defendant to the harm.  Specifically, it is advisable that each plaintiff plead the knowledge that the family member observing the harm is aware of the relationship of each defendant to the harm and, in particular, how their breach of the duty of due care contributed to the harm.

By contrast, defendants should be aware of the pleading requirements set forth in Thing, Ko, and Downey and should be ready to test pleadings by way of demurrer.  They should also propound specific discovery as to what knowledge the plaintiff had as to each defendant's relationship to the harm at the time it occurred.  Such discovery may be a  necessary prerequisite to a motion for summary judgment and/or summary adjudication as to claims for negligence infliction of emotional distress.

1- Not to be confused with Pharrell William’s band “N.E.R.D.”2: A separate discussion is required to define who qualifies as a “close” relative, but persons who may inherit property under intestate law succession usually qualify.

2 - A separate discussion is required to define who qualifies as a “close” relative, but persons who may inherit property under intestate law succession usually qualify.