McMahon v. Craig

• Decision Date: 31 July 2009
• Docket Number: No. G040324.,G040324.
• Citation: 176 Cal.App.4th 1502
• Court: California Court of Appeals Court of Appeals
• Parties: GAIL M. McMAHON, Plaintiff and Appellant, v. DIANE CRAIG et al., Defendants and Respondents.

176 Cal.App.4th 1502

GAIL M. McMAHON, Plaintiff and Appellant, v. DIANE CRAIG et al., Defendants and Respondents.

No. G040324.

Court of Appeals of California, Fourth District, Division Three.

July 31, 2009.

As modified August 31, 2009.

Gail M. McMahon, in pro. per., for Plaintiff and Appellant.

Schiff Hardin and Bruce A. Wagman for Animal Legal Defense Fund as Amicus Curiae on behalf of Plaintiff and Appellant.

Wallace, Brown & Schwartz and George M. Wallace for Defendants and Respondents.

Shook, Hardy & Bacon, Paul B. La Scala, Victor E. Schwartz and Philip S. Goldberg for California Veterinary Medical Association, Animal Health Institute, American Animal Hospital Association, American Kennel Club, Cat Fanciers' Association, American Pet Products Association, American Veterinary Medical Association and Pet Industry Joint Advisory Council as Amici Curiae on behalf of Defendants and Respondents.

OPINION

ARONSON, J.

Plaintiff Gail M. McMahon sued defendants Diane Craig, D.V.M., Veterinary Surgical Specialists, Inc., and Advanced Veterinary Specialty Group, LLC, for, inter alia, veterinary malpractice and intentional infliction of emotional distress after McMahon's dog died while in defendants' care. McMahon contends the trial court erred in sustaining defendants' demurrer to her intentional infliction of emotional distress cause of action and in striking portions of her complaint seeking damages for emotional distress and loss of companionship.

(1) We conclude the trial court did not err. McMahon's complaint alleges defendants negligently rendered veterinary care and lied to cover up their malpractice. None of defendants' alleged conduct, however, is so extreme or outrageous to support a cause of action for intentional infliction of emotional distress. Emotional distress damages for negligence are not available to McMahon because she was neither a witness nor a direct victim of defendants' negligent acts. Finally, McMahon cannot recover damages for loss of companionship based on her dog's peculiar value to her. "[P]eculiar value" under Civil Code section 3355 refers to an item's characteristics that enhance its economic value to the owner, and does not include the owner's emotional attachment to it. Accordingly, we affirm.

I FACTUAL AND PROCEDURAL BACKGROUND

According to the first amended complaint, McMahon is an owner, occasional breeder, fancier, and handler of Maltese show dogs. One of the dogs McMahon owned was "Tootsie," a purebred Maltese. Tootsie's parents were champions, and she was the last of her bloodline. Tootsie "possessed exceptional and distinctive qualities for the needs and desires of plaintiff, including temperament, breed confirmation, and intelligence."

When Tootsie was two years old, she began to show signs of respiratory distress, which was diagnosed as laryngeal paralysis. Around age five Tootsie's problem became severe and interfered with the quality of her life. In December 2004, McMahon met with Craig, a doctor of veterinary medicine and a surgeon at the hospital. Craig confirmed the laryngeal paralysis diagnosis and recommended corrective surgery, in which Craig would tie back one of the two laryngeal folds in Tootsie's throat to open the airway and increase respiration. During presurgical consultations, McMahon told Craig about Tootsie's history, described her strong bond with Tootsie, and explained she would do whatever she could, regardless of cost, to help the animal. By letter, McMahon's friend told Craig about the special bond McMahon had with Tootsie, and McMahon's extensive efforts to have Tootsie's illness diagnosed. McMahon alleged defendants understood Tootsie's peculiar value to McMahon, and that McMahon would be emotionally devastated if Tootsie died.

Craig advised McMahon that aspiration pneumonia posed the biggest concern following surgery. McMahon understood that defendants would employ all necessary precautions to reduce this risk, including withholding all food and water from Tootsie for about 24 hours after surgery. Before Tootsie attempted to swallow for the first time, it was essential to allow the swelling in her throat to subside and the sedating drugs to wear off.

After Craig operated on Tootsie, she instructed a technician to give the animal water mixed with baby food within two hours of her surgery to test her ability to swallow. When this was done, Tootsie immediately aspirated the mixture into her lungs. Craig advised McMahon by telephone the next day that Tootsie had acquired aspiration pneumonia. Craig falsely claimed Tootsie had been given only water the day before. Craig reassured McMahon this was not a major setback, and promised her Tootsie would receive the best care and be monitored closely. Craig did not inform McMahon Tootsie had been given water mixed with baby food and the pneumonia posed a serious, life-threatening situation.

Contrary to Craig's promises, Tootsie was placed in a cage and left unmonitored in the back of the hospital. Defendants failed to provide appropriate antibiotics, oxygen, glucose, and other supportive care necessary to sustain life in a critical patient. Tootsie died about midnight the day after surgery and her death was discovered accidentally when a technician checked on another dog.

In the days immediately following Tootsie's death, Craig denied in writing that Tootsie ingested any food. Craig told McMahon Tootsie was under constant care and "`never left alone.'" She suggested the likely cause of Tootsie's death was from aspiration of "`oral secretions.'" Upon McMahon's request, defendants gave her some veterinary records regarding Tootsie, but initially withheld records demonstrating Tootsie had been given a mixture of food and water within two hours after surgery. After defendants learned McMahon obtained the omitted records from a third party, they altered their records to make them consistent with the third party documents.

A necropsy performed on Tootsie showed the animal likely died from aspiration pneumonia caused by food in her lungs. Three days after the operation, Craig directed the hospital to charge McMahon's credit card for all unpaid services rendered to Tootsie, without McMahon's knowledge or consent. They knew McMahon would not agree to pay for Tootsie's treatment.

McMahon sued defendants, alleging claims for, inter alia, veterinary malpractice, negligent failure to inform, intentional misrepresentation, negligent misrepresentation, constructive fraud, conversion, and intentional infliction of emotional distress. After the trial court sustained defendants' demurrer and granted defendants' motion to strike, McMahon filed a first amended complaint restating with greater clarity the same causes of action. As to the first amended complaint, the trial court again sustained without leave to amend defendants' demurrer to McMahon's cause of action for intentional infliction of emotional distress. The court also granted without leave to amend defendants' motion to strike McMahon's damage claims for loss of companionship and emotional distress. After defendants' answered and the parties conducted discovery, McMahon determined the trial court's rulings had severely impaired the value and viability of her case. Accordingly, McMahon stipulated to judgment against her to expedite appeal of the trial court's rulings. McMahon now appeals the judgment.¹

II DISCUSSION

A. General Principles Concerning Demurrer

On appeal from a judgment after an order sustaining a demurrer, we review the order de novo, exercising our independent judgment on whether the complaint states a cause of action as a matter of law. (Desai v. Farmers Ins. Exchange (1996) 47 Cal.App.4th 1110, 1115 .) We give the complaint a reasonable interpretation, reading it as a whole and viewing its parts in context. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal.Rptr. 718, 703 P.2d 58].) We deem all properly pleaded material facts as true. (Serrano v. Priest (1971) 5 Cal.3d 584, 591 [96 Cal.Rptr. 601, 487 P.2d 1241].) We must also accept as true those facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403 .)

While the decision to sustain or overrule a demurrer is a legal ruling subject to de novo review on appeal, the granting of leave to amend involves an exercise of the trial court's discretion. (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497-1498 .) When the trial court sustains a demurrer without leave to amend, we must also consider whether the complaint might state a cause of action if a defect could reasonably be cured by amendment. If the defect can be cured, then we must reverse the judgment of dismissal to allow the plaintiff an opportunity to correct the error. The plaintiff bears the burden of demonstrating a reasonable possibility to cure any defect by amendment. (Hendy v. Losse (1991) 54 Cal.3d 723, 742 [1 Cal.Rptr.2d 543, 819 P.2d 1].) A trial court abuses its discretion if it sustains a demurrer without leave to amend when the plaintiff shows a reasonable possibility to cure any defect by amendment. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967 [9 Cal.Rptr.2d 92, 831 P.2d 317].) If the plaintiff cannot show an abuse of discretion, the trial court's order sustaining the demurrer without leave to amend must be affirmed. (Hernandez, at p. 1498.)

B. Defendants' Alleged Acts Do Not Give Rise to Emotional Distress Damages

(2) "`[T]he negligent causing of emotional distress is not an independent tort but the tort of negligence. . . .' [Citation.] `The traditional elements of duty, breach of duty, causation, and damages apply. [¶] Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against imposition of liability.'" (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d...