Berry v. Frazier

Filed 4/28/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
RYAN BERRY,
Plaintiff and Appellant,
v. A164168
JEFFERY R. FRAZIER, DVM,
(County and City of San Francisco
Defendant and Respondent. Super. Ct. No. CGC20587086)
Ryan Berry sued Jeffery R. Frazier, a Doctor of Veterinary Medicine,
for nominal and punitive damages based on the circumstances surrounding
the euthanasia of her cat. 1
The gravamen of the operative pleading (the first amended complaint,
hereafter FAC) is that Berry secured Frazier’s services to perform a humane
euthanasia on her cat. Instead, and without Berry’s informed consent,
Frazier performed the euthanasia by means of an unnecessary and
unjustified intracardiac injection, resulting in a horrific and painful death for
her cat and great emotional distress to Berry. The trial court granted
1 The FAC also named as defendants Vetted Petcare CA, Inc., a
California Corporation, Vetted Petcare, Inc., a Delaware Corporation, and
two corporate officers (hereafter Vetted). The causes of action against these
parties have been dismissed without prejudice.
1
Frazier’s demurrer without leave to amend causes of action for
fraud/deceit/intentional misrepresentation, conversion/trespass to chattels,
intentional infliction of emotional distress, and violation of Civil Code section
3340, which allows for an award of exemplary damages for wrongful injuries
to animals committed willfully or with gross negligence in disregard of
humanity. 2 Following the court’s order, Berry voluntarily dismissed the sole
remaining cause of action against Frazier and the court clerk entered a
dismissal of the entire FAC, resulting in a final judgment dismissing the
action.
We shall reverse the judgment and remand the matter for further
proceedings consistent with this opinion. As discussed below, the FAC
contained sufficient allegations to withstand demurrer to the causes of action
for fraud/deceit/intentional misrepresentation, conversion/trespass to
chattels, and intentional infliction of emotional distress. And while the trial
court properly sustained the demurrer without leave to amend the cause of
action for violation of section 3340, Berry should be granted leave to file a
second amended complaint to allege a request for section 3340 exemplary
damages in connection with other pleaded causes of action.
2 All further undesignated statutory references are to the Civil Code.
2
FACTUAL AND PROCEDURAL BACKGROUND 3
Euthanasia of Berry’s Cat
This lawsuit arose after the euthanasia of a cat owned by Berry and
James Kraus. 4 On the morning of April 18, 2019, the cat “was clearly dying,”
though she was not in substantial pain and not having seizures. Berry
worried that if the cat were to worsen during the day, warranting euthanasia
to prevent suffering, she would not be able to arrange for a veterinarian to
make a house call and a car ride to an emergency hospital would cause
additional pain and distress to both the cat and Berry.
To address Berry’s concern, Kraus contacted Vetted for the same-day
service of a veterinarian who would humanely euthanize the cat at home and
arrange a private cremation. Vetted represented that the veterinarian would
perform the following procedure during which the cat would remain in
Berry’s arms: the veterinarian would inject the cat with a sedative and then,
once Berry had said goodbye, the veterinarian would peacefully end the cat’s
life with a second injection.
3 Because this appeal arises from an order sustaining a demurrer, and
an appellant may even rely on statements made for the first time on appeal
to demonstrate a reasonable possibility the complaint can be amended to
state a cause of action (Eghtesad v. State Farm General Insurance Co. (2020)
51 Cal.App.5th 406, 414), we accept as true the factual allegations of the
FAC, supplemented by those made in Berry’s opposition to the demurrer.
(Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339,
1343.) We disregard Frazier’s version of the facts as set forth in his
responsive brief at pages 17–18 to the extent it is based on trial court
pleadings filed in support of his motion to strike certain allegations in the
FAC.
4 Kraus is not a plaintiff in this action. In the FAC, it is alleged that
Kraus has transferred to Berry any right he had to recover any kind of relief,
“including the $600 he paid to Vetted and any punitive/exemplary damages
that he might be awarded if he were to sue on his own behalf.”
3
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 Berry, “ ‘Go over there,’ ” indicating
she should move 30 feet away. Berry complied, and waited for Frazier to
indicate she could return. After a few moments, Frazier told Berry that he
was unable to place the catheter even though he had tried to do so in all the
cat’s limbs. Berry became upset and 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
4
performed on a conscious cat. 5 According to Berry, a veterinarian should
have been aware of the restrictions on the use of an intracardiac injection to
euthanize a conscious cat, and the “abhorrent and inhumane nature” of the
procedure. For example, since 2006 the Legislature had made the use of
intracardiac injection of a euthanasia agent on a conscious animal illegal
“ ‘unless the animal is heavily sedated or anesthetized in a humane manner,
or comatose, or unless, in light of all the relevant circumstances, the
procedure is justifiable.’ ” (Pen. Code, § 597u, subd. (a)(2), added by
Stats. 2005, ch. 652, § 1, effective January 1, 2006.) 6
Berry alleged that there was “no veterinary, statutory, or contractual
justification” for the use of the intracardiac injection as the cat was not in
acute, active distress and therefore did not have to be euthanized that day.
In addition, Frazier admitted the cat “could have been euthanized painlessly”
and died in Berry’s arms by giving the cat an “overdose of buprenorphine,”
even if it would “ ‘take too long.’ ” Had Berry understood the true nature of
the intracardiac injection, she would not have consented to the procedure but
5 In opposing the demurrer, Berry expanded upon her description of the
intracardiac injection procedure, alleging it involved the use of a “ ‘large
needle’ ” that “ ‘must puncture the chest wall, the pleura (thoracic lining), the
pericardium (heart lining), and the heart muscle, the last three of which are
full of nerves and capillaries, resulting in extreme pain and hemorrhage.’ ”
6 The FAC included legislative history of the penal code provision
prohibiting euthanasia by intracardiac injection except under specified
circumstances, as set forth in the analysis of Assembly Bill No. 1426 (2005-
2006 Reg. Sess.) as amended June 14, 2005, adding Pen. Code § 597u,
subd. (a)(2). As reported to the Legislature, the intracardiac injection of
euthanasia agents in a conscious animal is “ ‘extremely painful and
inhumane.’ ” “ ‘[T]he injection of euthanasia agents must be of the correct
strength and administered directly into heart,’ ” which could be “ ‘very
difficult . . . as the needle must travel between the ribs or underneath the
sternum, through several layers of muscle, and then to the heart.’ ”
5
instead would have opted to give the cat an overdose of buprenorphine and
held her cat until it died.
The euthanasia report stated that Berry had “elected humane
euthanasia” and Frazier had “[p]erformed an intracardiac inj of 1 ml euthasol
(brand name of sodium pentobarbital solution).” It was silent as to whether a
sedative had been administered.
Trial Court Proceedings
The forty-one page FAC includes 119 paragraphs (¶¶ 20–139) of facts
common to all causes of action, plus additional allegations supporting
labelled causes of action against Frazier for: (1) fraud/deceit/intentional
misrepresentation (third cause of action); (2) breach of fiduciary duty (fourth
cause of action); (3) conversion/trespass to chattels (fifth cause of action); (4)
intentional infliction of emotional distress (sixth cause of action); and (5)
violation of section 3340 (eighth cause of action). 7 The prayer for relief for
each cause of action sought nominal damages of $1, restitution of $600 (cost
of euthanasia), and punitive damages.
Frazier filed (1) a demurrer to the FAC challenging four of the five
causes of action against him (all except the cause of action for breach of
fiduciary duty); and (2) a motion to strike certain allegations in the FAC
including irrelevant historical information, all references to allegations of
Berry’s emotional distress, and all references to punitive or exemplary
damages. The trial court sustained Frazier’s demurrer without leave to
amend and treated as moot the motion to strike allegations directed at the
7 The FAC’s remaining causes of action for fraud (first cause of action),
false promise (second cause of action), and violation of the unfair competition
law (Bus. & Prof. Code, § 17200 et. seq.) (seventh cause of action) were
alleged against Vetted.
6
demurred causes of action. The court ruled on the motion to strike limited to
the FAC’s allegations directed at the cause of action for breach of fiduciary
duty.
At Berry’s request, the court clerk entered an October 26, 2021
dismissal without prejudice of the cause of action for breach of fiduciary duty
and an October 29, 2021 dismissal without prejudice of the entire FAC. This
appeal ensued. 8
DISCUSSION
I. The Appeal is Cognizable
Frazier argues Berry’s appeal must be dismissed because there is no
final judgment of dismissal allowing for appellate review. We disagree.
“Under California’s ‘one final judgment’ rule, a judgment that fails to
dispose of all causes of action pending between the parties is generally not
appealable.” (Kurwa v. Kislinger (2013) 57 Cal.4th 1097, 1100 (Kurwa).)
Here, all five causes of action pending between Berry and Frazier were
disposed of by a combination of the order sustaining the demurrer and the
voluntary dismissal without prejudice of the sole remaining cause of action,
the fourth cause of action for breach of fiduciary duty. Together, the trial
court’s “order sustaining the demurrers without leave to amend, combined
with the dismissal of the action, had the legal effect of a final, appealable
judgment.” (Gutkin v. University of Southern California (2002) 101
Cal.App.4th 967, 974.)
8 We granted the application of Expand Animal Rights Now for
permission to file an amicus curiae brief in support of Berry. Frazier filed a
response to the amicus brief. We granted Berry permission to file a reply to
Frazier’s response to the amicus brief, which reply was attached to her
request.
7
A plaintiff may appeal from a judgment rendered on adjudicated causes
of actions, notwithstanding that another cause of action has been dismissed
without prejudice, “as long as there are no remaining claims pending between
the parties and the parties have not entered into a stipulation that would
facilitate potential litigation of the dismissed” cause of action. (Abatti v.
Imperial Irrigation Dist. (2012) 205 Cal.App.4th 650, 655.) Because there are
no pending claims and no such stipulation in this case, Berry’s appeal
seeking review of the demurrer order is properly before us. 9 (Ibid.; see
Kurwa, supra, 57 Cal.4th at p. 1106 [when parties agree to waive or toll the
statute of limitations on a dismissed cause of action pending an appeal, “[i]t
is that assurance — the agreement keeping the dismissed count legally alive
9 We dismiss the separate appeal from the October 7, 2021 order on
demurrer as it is not separately appealable. (See Shepardson v. McLellan
(1963) 59 Cal.2d 83, 87 [“purported appeal from order sustaining demurrer
. . . is, of course, not separately appealable, but is reviewable on appeal from
the final judgment”]; Code Civ. Proc., § 906.)
We also dismiss the separate appeal from the October 7, 2021 order on
the motion to strike as it is not separately appealable. (Grieves v. Superior
Court (1984) 157 Cal.App.3d 159, 166, fn. 7 [“an order granting a motion to
strike is not itself appealable”].) While a motion to strike order is reviewable
on appeal from a final judgment (ibid.), review does not lie here because
Berry is not aggrieved by the order as the trial court limited its ruling to
striking allegations directed at the dismissed fourth cause of action for
breach of fiduciary duty. (El Dorado Irrigation Dist. v. State Water Resources
Control Bd. (2006) 142 Cal.App.4th 937, 977 [“ ‘[a] party who is not aggrieved
by an order or judgment has no standing to attack it on appeal’ ”].)
Finally, we dismiss the appeal from the October 26, 2021 order
dismissing the fourth cause of action for breach of fiduciary duty against
Frazier. Because Berry voluntarily dismissed that cause of action without
prejudice, she has no standing to appeal the order. (El Dorado Irrigation
Dist. v. State Water Resources Control Bd., supra, at 142 Cal.App.4th at
p. 977.)
8
— that prevents the judgment disposing of the other causes of action from
achieving finality”].)
II. Legal Framework for Review of Demurrer
“The rules by which the sufficiency of a complaint is tested against a
general demurrer are well settled. We not only treat the demurrer as
admitting all material facts properly pleaded, but also ‘give the complaint a
reasonable interpretation, reading it as a whole and its parts in their
context. . . .’ [¶] If the complaint states a cause of action under any theory,
regardless of the title under which the factual basis for relief is stated, that
aspect of the complaint is good against a demurrer.” (Quelimane Co. v.
Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38 (Quelimane).)
“ ‘The courts of this state have . . . long since departed from holding a
plaintiff strictly to the “form of action” [that] has [been] pleaded and instead
have adopted the more flexible approach of examining the facts alleged to
determine if a demurrer should be sustained.’ ” (Quelimane, supra, 19
Cal.4th at pp. 38–39.) Where, as here, the demurrer is based on a claim that
the pleading does not state facts sufficient to constitute a cause of action, if it
“ ‘appears that the plaintiff is entitled to any relief at the hands of the court
against the defendants, the complaint will be held good, although the facts
may not be clearly stated, or may be intermingled with a statement of other
facts irrelevant to the cause of action shown, or although the plaintiff may
demand relief to which he is not entitled under the facts alleged.’ ”
(Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 572.)
“In reviewing the legal sufficiency of a demurrer, we are not concerned
with plaintiff’s ability to prove the allegations of the complaint, or the
possible difficulties in making such proof. Neither are we bound by the trial
court’s construction of the pleadings; instead, we exercise our independent
9
judgment in determining whether the complaint states a cause of action.”
(Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.)
III. Third Cause of Action for Fraud/Deceit /Intentional
Misrepresentation (“Fraud”)
The essential elements of fraud that give rise to a cause of action for
deceit or intentional misrepresentation are: (a) misrepresentation (false
representation, concealment, or nondisclosure); (b) knowledge of falsity (or
scienter); (c) intent to defraud, i.e., to induce reliance; (d) actual and
justifiable reliance; and (e) resulting damage. (See Engalla v. Permanente
Medical Group, Inc. (1997) 15 Cal.4th 951, 974 [elements of intentional
misrepresentation]; Lazar v. Superior Court (1996) 12 Cal.4th 631, 638
[elements of deceit]; see §§ 1709, 1710 10.) The first element,
misrepresentation, is satisfied by a failure to fully disclose material facts.
(Collins v. eMachines, Inc. (2011) 202 Cal.App.4th 249, 255; see § 1710,
subd. 3; see also Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6
Cal.App.4th 603, 612–613.) Justifiable reliance may be premised upon
allegations that a defendant made representations in his professional
capacity, for example as a veterinarian. (See Brakke v. Economic Concepts,
Inc. (2013) 213 Cal.App.4th 761, 769 [a fraud claim may be based on opinion
10 Section 1709 reads: “One who willfully deceives another with the intent
to induce him to alter his position to his injury or risk, is liable for any
damage which he thereby suffers.” Section 1710 reads: “A deceit, within the
meaning of the last section, is either: [¶] 1. The suggestion, as a fact, of that
which is not true, by one who does not believe it to be true; [¶] 2. The
assertion, as a fact, of that which is not true, by one who has no reasonable
ground for believing it to be true; [¶] 3. The suppression of a fact, by one who
is bound to disclose it, or who gives information of other facts, which are
likely to mislead for want of communication of that fact; or, [¶] 4. A promise,
made without any intention of performing it.”
10
either “ ‘where a party holds himself out to be specially qualified and the
other party is so situated that he may reasonably rely upon the former’s
superior knowledge;’ ” or “ ‘where a party states his opinion as an existing
fact or as implying facts which justify a belief in the truth of the opinion’ ”].)
In sustaining the demurrer to the fraud cause of action, the trial court
stated: “Plaintiff alleges that Defendant intentionally misled her about the
method of euthanasia he performed on her cat and manipulated her into
giving consent for the intracardiac injection. (FAC, ¶ 107). Plaintiff fails to
allege with specificity that any of Defendant’s statements constituted
actionable false representations.” In a similar vein, Frazier argues that
Berry has not presented “any competent or reasonable evidence” that his
purported representations were false or that there was no justification for the
use of an intracardiac injection to euthanize the cat on that day.
We disagree as the FAC contains sufficient allegations showing how,
when, where, to whom, and by what means fraudulent representations were
made. For example, Berry alleged Frazier stated he would be using “ ‘a small
needle,’ ” the procedure would be “ ‘very quick,’ ” and the cat “ ‘wouldn’t feel
it.’ ” Berry gave her consent, but would never have done so had she known
the procedure was not a humane euthanasia as Frazier had represented, but
instead was “ ‘extremely painful’ ” and considered “ ‘inhumane.’ ” Berry
further alleged Frazier “admitted” the cat could have been euthanized
painlessly and in her arms with an overdose of buprenorphine, but it would
not be “fast enough for [Frazier’s] schedule.” The FAC’s allegations are
neither conclusory nor mere casual expressions of belief. The FAC sets forth
explicit affirmative representations made by Frazier concerning the use of an
intracardiac injection – that the procedure would be quick and painless – that
any animal owner would want to know before consenting to the procedure.
11
In addition, Berry was required only to plead facts showing entitlement
to some relief to survive demurrer; she was not required to present evidence.
(Brown v. Los Angeles Unified School Dist. (2021) 60 Cal.App.5th 1092,
1103.) And Berry was not required to allege facts not known to her as a lay
person not trained as a veterinarian. (Tarmann v. State Farm Mut. Auto.
Ins. Co. (1991) 2 Cal.App.4th 153, 158 [while a claim for fraud must be pled
with specificity, a plaintiff cannot allege facts not in her possession or when
the facts lie more in the defendant’s knowledge].)
Finally, we see no merit to Frazier’s argument that the demurrer to the
fraud cause of action was properly sustained because Berry failed to allege
legally cognizable damages. According to Frazier, Berry claimed she had the
right to “ ‘give the cat a good death’ ” and was damaged by being deprived of
that right. 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. (See Wishnev
v. The Northwestern Mutual Life Ins. Co. (2019) 8 Cal.5th 199, 217 [“[i]t is, of
course, ‘axiomatic that a decision does not stand for a proposition not
considered by the court’ ”].)
12
For the stated reasons, we conclude the demurrer to the third cause of
action for fraud should have been overruled. (See Gale v. Animal Med. Ctr.
(N.Y.A.D. 2013) 108 A.D.3d 497, 499 [plaintiff stated a cause of action for
fraud based on allegations, among others, that defendants knowingly made
false statements to plaintiff concerning the results of a CT scan to induce her
to consent to a contraindicated surgical procedure for her cat, which resulted
in the cat’s death].)
IV. Fifth Cause of Action for Conversion/Trespass to Chattels
The essential elements of conversion are: (1) the plaintiff owned or had
the right to possess the personal property; (2) the defendant disposed of the
property in a manner inconsistent with the plaintiff’s property rights; and (3)
resulting damages. (Voris v. Lampert (2019) 7 Cal.5th 1141, 1150–1151
(Voris).) The defendant’s conduct “must be knowingly or intentionally done,”
but a “wrongful intent” or motive is not a requirement. (Taylor v. Forte
Hotels International (1991) 235 Cal.App.3d 1119, 1124, italics in original
(Taylor); see Voris, supra, at p. 1150.) Because the defendant’s conduct “must
be knowingly done, ‘neither negligence, active or passive, nor a breach of
contract, even though it results in injury to, or loss of, specific property,
constitutes a conversion.’ [Citation.] It follows therefore that mistake, good
faith, and due care are ordinarily immaterial, and cannot be set up as
defenses in an action for conversion.” (Taylor, supra, at p. 1124.)
Nonetheless, “there can be no conversion where an owner either expressly or
impliedly assents to or ratifies the taking, use or disposition of his property.”
(Farrington v. A. Teichert & Son, Inc. (1943) 59 Cal.App.2d 468, 474.)
In contrast, trespass to chattels “lies where an intentional interference
with the possession of personal property has proximately caused injury”
(Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1556), but the
13
interference is “ ‘not sufficiently important to be classed as conversion’ ” (Intel
Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1350). “Though not amounting to
conversion,” in an action for trespass to chattels “the defendant’s interference
must . . . have caused some injury to the chattel or to the plaintiff’s rights in
it.” (Ibid.; see Plotnick v. Meihaus (2012) 208 Cal.App.4th 1590, 1605, 1606–
1608 (Plotnick) [owner of dog could sue for trespass to chattels for the
intentional striking of the dog with a bat]; Jamgotchian v. Slender (2009) 170
Cal.App.4th 1384, 1400–1402 (Jamgotchian) [owner of horse injured in race
could sue for trespass to chattels based upon track steward’s refusal to
remove the horse from the race].)
In sustaining the demurrer to the cause of action for
conversion/trespass to chattels, the trial court opined that “[t]he gravamen of
Plaintiff’s argument is that the procedure Plaintiff hired Defendant to
perform, and to which she consented, did not occur in exactly the manner
that Plaintiff hoped or expected.” On appeal, Frazier asserts that his alleged
conduct gives rise to nothing more than a professional negligence claim and
cannot form the basis for a trespass to chattels cause of action. However, the
FAC’s allegations go well beyond a claim of negligent performance of
veterinary services, or services that did not occur “exactly” as hoped or
expected.
We agree with Berry that Levy v. Only Cremations for Pets, Inc. (2020)
57 Cal.App.5th 203 (Levy) is instructive. In that case, the court recognized a
cause of action for trespass to chattels allowing for the recovery of emotional
distress damages based upon a pet crematorium’s alleged mishandling of pet
cremains — services geared toward the family members, and not the
deceased animal. (Id. at pp. 208, 216.) In recognizing that the animal owner
could pursue causes of action for trespass to chattel and negligence, the Levy
14
court commented that the relationship between the crematorium and the pet
owner was predicated on the crematory’s agreement to provide a “dignified
treatment of pet remains,” thereby giving “emotional solace to grieving pet
owners.” (Id. at p. 219.) Here, too, the veterinarian and pet owner are
alleged to have had a relationship predicated on the veterinarian’s agreement
to provide for a humane euthanasia of a dying animal (i.e., “dignified
treatment” of a dying pet), thereby giving “emotional solace” to a grieving pet
owner who has made the difficult decision to euthanize the pet.
We find the case before us is not akin to Stone v. Foster (1980) 106
Cal.App.3d 334 (Stone), as Frazier contends. In Stone, the court held that a
claim of fraud did not lie based on allegations that a physician had failed to
advise a patient of “ ‘low probability’ ” risks inherent in an operation. (Id. at
pp. 345–346.) Here we are concerned with the likely actual effects of
euthanasia by intracardiac injection on a conscious cat, and Berry specifically
alleges Frazier obtained her consent to the procedure by informing her it
would be painless when he knew or reasonably should have known that it
would indeed be extremely painful.
Frazier’s reliance on McMahon, supra, 176 Cal.App.4th 1502, is also
not persuasive as McMahon does not address the issues before us. 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
15
action, finding McMahon was inapposite as it “did not involve an action for
trespass to personal property”].)
Finally, we find no merit to Frazier’s arguments that Berry failed to
allege facts satisfying the elements of conversion or trespass to chattels –
including a protectible legal right, intent, and lack of consent – since the goal
of her request for services was the animal’s demise and he did not
intentionally harm the cat. These arguments ignore the specific allegations
that Berry had a legally protectible right to decide the time and manner of
the euthanasia of her cat because the cat was her personal property. The
FAC alleges Frazier acted in denial of Berry’s property rights by improperly
obtaining her consent to euthanize the cat by intracardiac injection after she
had entrusted the cat to him for humane euthanasia. (See Jamgotchian,
supra, 170 Cal.App.4th at pp. 1400–1402 [one who intentionally intermeddles
with another’s chattel is subject to liability if his intermeddling is harmful to
a possessor’s legally protected interest in the chattel]; Bono v. Clark (2002)
103 Cal.App.4th 1409, 1433 [“ ‘in practical terms, a conversion can only occur
after an owner has entrusted . . . property to another;’ ” “ ‘[t]hereafter, if the
possessor acts in a manner inconsistent with the owner’s interest, the owner’s
cause of action for conversion accrues’ ”]; see also Crisci v. Security Ins. Co.
(1967) 66 Cal.2d 425, 433 [“[d]amages for mental distress have been awarded
in cases where the tortious conduct was an interference with property rights
without any personal injuries apart from the mental distress”].)
Simply put, the allegations suffice to support a claim that trespass to
chattels is what Frazier accomplished by “fraudulently inducing” Berry to
consent to euthanizing the cat by intracardiac injection, “unsedated, and
without being able to be present or even say goodbye to her beloved
16
companion.” Accordingly, the demurrer to the fifth cause of action for
conversion/trespass to chattels should have been overruled.
V. Sixth Cause of Action for Intentional Infliction of Emotional
Distress (“IIED”)
The elements of a cause of action for IIED are as follows: (1) defendant
engaged in extreme and outrageous conduct (conduct so extreme as to exceed
all bounds of decency in a civilized community) with the intent to cause, or
with reckless disregard to the probability of causing, emotional distress; and
(2) as a result, plaintiff suffered extreme or severe emotional distress. (Potter
v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.) Additionally,
“ ‘[i]t must be conduct directed at the plaintiff, or occur in the presence of the
plaintiff of whom the defendant is aware.’ [Citation.] ‘The requirement that
the defendant’s conduct be directed primarily at the plaintiff is a factor which
distinguishes intentional infliction of emotional distress from the negligent
infliction of such injury.’ ” (Id. at p. 1002, italics in original; see So v. Shin
(2013) 212 Cal.App.4th 652, 671 (So) [conduct must be directed to the
plaintiff, but malicious or evil purpose is not required].)
It is well settled that “in a proper case a person’s intentional injuring or
killing a pet” will support an owner’s recovery of damages for IIED.
(Plotnick, supra, 208 Cal.App.4th at p. 1611 [award of IIED damages was
sustainable where the evidence supported a conclusion that one of the
defendants had gone to his garage, retrieved a bat, and used it to
intentionally strike plaintiff’s dog].) “[W]hether conduct is ‘outrageous’ is
usually a question of fact.” (So, supra, 212 Cal.App.4th at p. 672.) “ ‘[T]he
standard for judging outrageous conduct does not provide a “bright line”
rigidly separating that which is actionable from that which is not. Indeed, its
generality hazards a case-by-case appraisal of conduct filtered through the
17
prism of the appraiser’s values, sensitivity threshold, and standards of
civility. The process evoked by the test appears to be more intuitive than
analytical. . . .’ ” (KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th
1023, 1028.)
The trial court sustained the demurrer to the IIED cause of action
because Berry had consented to the intracardiac injection “which resulted in
the desired outcome,” the euthanasia procedure was not done in Berry’s
immediate presence thereby barring emotional distress damages, and there
were no allegations of extreme and outrageous conduct. We find the court’s
rationale unavailing.
First, and again, the FAC specifically includes allegations that Berry’s
consent had been secured by representations that were either affirmatively
false or at a minimum intentionally misleading as to the horrific effect of
using an intracardiac injection to euthanize a conscious cat. Moreover, the
FAC includes allegations that Frazier’s conduct was specifically directed at
Berry as Frazier was aware she sought a euthanasia that would be both
humane and would give her emotional solace. Nonetheless, Frazier, for his
own motives and aware of the suffering caused by an intracardiac injection,
intentionally misled Berry to secure her consent to the unnecessary and
unjustifiable procedure.
We are not persuaded by Frazier’s argument that dismissal of the IIED
cause of action is supported by McMahon, supra, 176 Cal.App.4th 1502. In
McMahon, the court found a claim for IIED could not be based on
concealment of negligent veterinary care (specifically, provision of pet food
after a surgery, failure to provide necessary postoperative care, and lying
about the severity of the pet’s recovery complication). (Id. at pp. 1515–1517.)
The IIED claim could not lie because the defendants’ “alleged acts of
18
malpractice . . . were neither directed at McMahon nor were they done in her
presence” and “medical care is directed only to the pet.” (Id. at pp. 1511,
1516.) Here, however, the IIED cause of action is predicated upon Frazier’s
alleged conduct directed at Berry – that he intentionally lied to or misled her
about the nature of an inhumane and painful euthanasia, thereby obtaining
consent under false pretenses and resulting in Berry suffering severe
emotional distress once she learned that she had allowed her cat to suffer an
unnecessary and extremely painful death. These allegations go far beyond
negligent care and describe conduct directed at Berry.
For these reasons, the demurrer to the sixth cause of action for IIED
should have been overruled.
VI. Eighth Cause of Action for Violation of Section 3340
A. Section 3340 Does Not Provide an Independent Cause of
Action for Exemplary Damages
The eighth cause of action is labelled “Violation of Section 3340,” which
statute reads in full: “For wrongful injuries to animals being subjects of
property, committed willfully or with gross negligence, in disregard of
humanity, exemplary damages may be given.” In sustaining the demurrer
without leave to amend, the trial court ruled that no separate cause of action
could be alleged for a violation of section 3340. We agree.
Generally, a plaintiff may allege a cause of action for a violation of a
statute only if the language of the statute or its legislative history
demonstrates the Legislature intended to create such a right. (Vikco Ins.
Services, Inc. v. Ohio Indemnity Co. (1999) 70 Cal.App.4th 55, 62–63.) Here,
there exists no legislative history to shed light on the Legislature’s intent.
And while the language of section 3340 makes clear that the Legislature
intended to provide a specific remedy (exemplary damages) for wrongful
19
injuries to animals, it does not define the term “wrongful injuries” and does
not otherwise evidence an intent to create a separate cause of action for a
violation of the statute.
In its 150-year history, whether section 3340 provides an independent
cause of action has never been analyzed or upheld. In the few cases that
have cited the section, the courts have interpreted the statute as permitting a
plaintiff to seek section 3340 exemplary damages in actions based on
wrongful injuries to an animal caused by intentional conduct but have not
expressly allowed or approved of an independent section 3340 cause of action.
(See, e.g., Plotnick, supra, 208 Cal.App.4th at p. 1607 [plaintiffs alleged their
dog was injured by defendant’s striking the dog with a bat; the court
commented that “one can be held liable for punitive damages if he or she
willfully or through gross negligence wrongfully injures an animal,” citing
§ 3340]; Kimes v. Grosser (2011) 195 Cal.App.4th 1556, 1563 (Kimes) [plaintiff
asserted his pet cat was intentionally shot with a pellet gun; the court held
that, in addition to the cost of care, punitive damages were available under
§ 3340 on a showing that the shooting was willful]; see also Dryer v. Cyriacks
(1931) 112 Cal. App. 279, 281, 284 [plaintiff sought compensatory and
exemplary damages under § 3340 based on the defendant firing shots at a car
and shooting the plaintiff’s dog (who, unbeknownst to the defendant, was in
the rear seat); the court upheld the grant of a new trial on damages stating,
in relevant part, that “under the circumstances under which the shooting
took place,” the jury’s award of $25,000 of exemplary damages was “grossly
excessive”].)
Accordingly, the trial court properly sustained the demurrer without
leave to amend the eighth cause of action labelled violation of section 3340.
20
B. Section 3340 Exemplary Damages May Be Sought as a
Remedy for Violation of Other Causes of Actions
While there is no independent cause of action for a violation of section
3340, it does provide the basis for exemplary damages in certain cases.
Section 3340 exemplary damages “are remedies available to a party who can
plead and prove the circumstances” set forth in the statute, namely, wrongful
injuries to animals who are subjects of property, committed willfully or with
gross negligence, in disregard of humanity. (See Hilliard v. A.H. Robins Co.
(1983) 148 Cal.App.3d 374, 391 (Hilliard) [while “there is no cause of action
for punitive damages,” those “damages are remedies available to a party who
can plead and prove the facts and circumstances set forth in Civil Code
section 3294, the cases interpreting this code section, or by other statutory
authority,” fns. omitted, italics added].) Because exemplary damages “ ‘are
merely incident to a cause of action and can never constitute a basis
thereof,’ ” Berry should have pleaded her request for section 3340 exemplary
damages in connection with other pleaded causes of action, using section
3340’s “statutory language plus sufficient facts” to support her allegation that
Frazier’s conduct (wrongful injury to Berry’s cat) was done willfully and in
disregard of humanity. 11 (Hilliard, supra, at p. 392 [court found plaintiff
should have pleaded request for section 3294 punitive damages in her
11 While section 3340 allows for exemplary damages based on conduct
committed either willfully or with gross negligence, in disregard of humanity,
the FAC currently eschews any reliance on a claim that Frazier’s conduct was
committed with “gross negligence.” The FAC specifically alleges that
Frazier’s conduct and actions “were not negligent; he did not simply fail to
use due care, even grossly so. His actions and conduct were intentional and
calculated to achieve the result that happened.”
21
negligence and strict liability causes of action, using § 3294 “statutory
language plus sufficient facts” to support an award under § 3294].)
Accordingly, we shall remand this matter to the trial court with
instructions to grant Berry’s request for permission to file a second amended
complaint to plead her request for section 3340 exemplary damages as a
remedy in connection with other causes of action. At this time, we do not
decide whether Berry may appropriately seek section 3340 exemplary
damages in connection with any particular existing cause of action set forth
in the FAC. Rather, we find only that 3340 exemplary damages may be
available as a remedy and, therefore, Berry should be allowed to claim such
damages. (See, e.g., Plotnick, supra, 208 Cal.App.4th at p. 1607 [§ 3340
exemplary damages are available in trespass to chattels action]; Kimes,
supra, 195 Cal.App.4th at p. 1563 [§ 3340 exemplary damages are available if
plaintiff proves intentional conduct caused injury to animal].) We express no
opinion as to whether Berry will be able to successfully plead section 3340
exemplary damages that will withstand a demurrer or a motion to strike. 12
Finally, we disagree with the trial court’s ruling that Berry could not
recover section 3340 exemplary damages because the cat’s demise was not
12 Because we are remanding the matter with instructions to the trial
court to allow Berry to file a second amended complaint, and the trial court
did not rule on Frazier’s motion to strike the requests for punitive damages
under section 3294 related to the causes of action for fraud,
conversion/trespass to chattels, and IIED, we need not and do not address the
parties’ arguments regarding Berry’s entitlement to exemplary damages
under section 3294 related to her causes of action for fraud,
conversion/trespass to chattels, and IIED, and whether Berry was required to
and, if so, did comply with Code of Civil Procedure section 425.13, which
imposes special procedural requirements on parties seeking punitive
damages under section 3294 against health care providers including
veterinarians.
22
“wrongful” as Berry had hired and consented to Frazier’s method of
euthanasia. In addressing the issue, we must give due deference to the
allegations as set forth in the FAC, which is replete with allegations that
there was no actual consent as any consent was achieved by Frazier’s alleged
fraudulent representations. Whether Berry will be able to demonstrate that
Frazier’s conduct supports an award of exemplary damages pursuant to
section 3340 is a question to be decided in future proceedings, and not on
demurrer.
C. The Demurrer Cannot Be Sustained on the Basis that
Section 3340 Does Not Apply to Veterinarians or that the
FAC States Only a Claim for Professional Negligence Not
Within the Scope of Section 3340
We see no merit to Frazier’s arguments that the request for relief under
section 3340 does not lie because the statute does not apply to veterinarians
and the FAC’s allegations state only a claim for professional negligence (i.e.
veterinary malpractice), which does not fall within the scope of section 3340.
Section 3340 is broadly worded to allow for an award of exemplary
damages against any defendant for wrongful injuries to an animal committed
“willfully or with gross negligence, in disregard of humanity.” We assume
“ ‘the Legislature knew how to create an exception if it wished to do so’ ” and
had the Legislature wanted to exclude certain potential defendants
(veterinarians) from the statute’s coverage, “it could readily have done so.”
(California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11
Cal.4th 342, 349.)
Frazier cites no cases for his assertion that his alleged conduct would
support only a cause of action for professional negligence, and not intentional
conduct under section 3340. (Golightly v. Molina (2014) 229 Cal.App.4th
231501, 1519 [appellate “ ‘review is limited to issues which have been
adequately raised and briefed’ ”].) Instead, he asks us to consider that he
acted within his professional judgment in recommending the use of the
intracardiac injection and that the procedure was justified as “the most
humane and compassionate option” under the circumstances. In resolving
this demurrer, we decline to rely on Frazier’s version of the events as a
challenge to the FAC’s allegations “is simply not the appropriate procedure
for determining the truth of disputed facts.” (Ramsden v. Western Union
(1977) 71 Cal.App.3d 873, 879.)
D. The Request for Section 3340 Exemplary Damages is Not
Subject to Section 3294’s Procedural Requisites
Frazier also contends that allowing Berry to pursue her request for
section 3340 exemplary damages ignores that she must also comply with the
procedural requisites under section 3294. We disagree.
Sections 3294 and 3340 were enacted in the same year. (Egan v.
Mutual of Omaha Ins. Co. (1979) 24 Cal.3d 809, 819; Martinez v. Robledo
(2012) 210 Cal.App.4th 384, 392.) Section 3294 has since been amended
several times, and currently provides for exemplary damages in an action not
arising from contract where it is proven by clear and convincing evidence that
the defendant has been guilty of oppression, fraud, or malice. (Id., subd. (a).)
“(1) ‘Malice’ means conduct which is intended by the defendant to cause
injury to the plaintiff or despicable conduct which is carried on by the
defendant with a willful and conscious disregard of the rights or safety of
others. [¶] (2) ‘Oppression’ means despicable conduct that subjects a person to
cruel and unjust hardship in conscious disregard of that person’s rights. [¶]
(3) ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of
a material fact known to the defendant with the intention on the part of the
24
defendant of thereby depriving a person of property or legal rights or
otherwise causing injury.” (Ibid., italics added.) As is evident on its face,
section 3294 governs an award of exemplary damages for wrongful conduct
that causes injury to persons.
In contrast, section 3340 is a special statute governing an award of
exemplary damages for wrongful conduct that causes injury to animals.
While section 3340 has not been amended since its enactment in 1872, its
continued validity and purpose is supported by later legislature. In 1975, the
Legislature enacted section 21855 of the Food and Agricultural Code in which
it provided that exemplary damages may be awarded as provided in section
3340 in “a proper case, which shall include the killing and slaughter of
cattle.” (Stats. 1975, ch. 292, § 1, p. 723.) Currently, section 21855 retains
the provision allowing for an award of exemplary damages as provided in
section 3340. (Stats. 2013, ch. 531, § 25, operative July 1, 2014.)
In addition, the few published California cases citing section 3340
interpret the statute as permitting an animal owner to seek exemplary
damages for intentional conduct in disregard of humanity in conjunction with
traditional tort causes of action without reference to the procedural requisites
of section 3294. (See, e.g., Plotnick, supra, 208 Cal.App.4th at p. 1607; Kimes,
supra, 195 Cal.App.4th at p. 1563.)
Considering the clear focus of section 3340, we see no reason to engraft
the procedural requisites of section 3294 into section 3340. It is well settled
that “[a] specific provision relating to a particular subject will govern in
respect to that subject, as against a general provision, although the latter,
standing alone, would be broad enough to include the subject to which the
more particular provision relates.” (Rose v. State of California (1942) 19
Cal.2d 713, 723–724; see Smith v. Rickard (1988) 205 Cal.App.3d 1354, 1361
25
[“ ‘[i]f a statute enumerates the persons or things to be affected by its
provisions, there is an implied exclusion of others’ ”].)
In any event, it is for the Legislature to determine whether the
procedural requisites of section 3294 should be applied to a request for
exemplary damages under section 3340. While over the years the Legislature
has modified the statute governing exemplary damages in general (§ 3294)
and enacted procedural requisites for requests for exemplary damages
against medical care providers including veterinarians (Code Civ. Proc.,
§ 425.13), it has not amended section 3340 since 1872. If we as an appellate
court were to engraft the procedural requisites of section 3294 into section
3340, we would be violating “the cardinal rule that a statute ‘. . . is to be
interpreted by the language in which it is written, and courts are no more at
liberty to add provisions to what is therein declared in definite language than
they are to disregard any of its express provisions.’ ” (Wells Fargo Bank v.
Superior Court (1991) 53 Cal.3d 1082, 1097; see, also People v. One 1940 Ford
V-8 Coupe (1950) 36 Cal.2d 471, 475 [a court of appeal is “not authorized to
insert qualifying provisions not included and may not rewrite the statute to
conform to an assumed intention which does not appear from its language”].)
DISPOSITION
The appeals from the October 7, 2021 demurrer order, the
October 7, 2021 motion to strike order, and the October 26, 2021 order
dismissing the fourth cause of action without prejudice, are dismissed.
We reverse the judgment of dismissal and remand the matter for
further proceedings. On remand the trial court is directed to vacate the
dismissal of the first amended complaint entered on October 29, 2021. The
trial court is also directed to modify its October 7, 2021 demurrer order by (1)
vacating the provisions sustaining the demurrer to the first amended
26
complaint without leave to amend the third, fifth, and sixth causes of action;
(2) adding provisions overruling the demurrer to the third, fifth, and sixth
causes of actions; and (3) granting plaintiff permission to file a second
amended complaint to include factual allegations in support of a request for
exemplary damages pursuant to Civil Code section 3340 in connection with
other pleaded causes of action. In all other respects, the October 7, 2021
demurrer order is affirmed. Because we are instructing the trial court to
permit Berry to file a second amended complaint, our decision is without
prejudice to Frazier filing a demurrer and motion to strike to any new
amended pleading.
Plaintiff and appellant Ryan Berry is awarded costs on appeal.
27
_________________________
Petrou, J.
WE CONCUR:
_________________________
Tucher, P.J.
_________________________
Rodríguez, J.
A164168/Berry v. Frazier
28
Trial Court: San Francisco County Superior Court
Trial Judge: Hon. Ethan P. Schulman
Counsel: James B. Kraus for Plaintiff and Appellant.
Ryther Law Group and Jill Ryther for Expand Animal
Rights Now as Amicus Curiae on behalf of Plaintiff and
Appellant.
Haapala, Thompson & Abern and Elizabeth Gong Landess
for Defendant and Respondent.
29