Plotnik v. Meihaus, s. G045885

CourtCalifornia Court of Appeals
Citation208 Cal.App.4th 1590,146 Cal.Rptr.3d 585
Decision Date12 December 2012
Docket NumberNos. G045885,G046260.,s. G045885
PartiesDavid PLOTNIK et al., Plaintiffs and Respondents, v. John MEIHAUS, Jr., et al., Defendants and Appellants. John Meihaus, Jr., Cross-complainant and Appellant, v. David Plotnik et al., Cross-defendants and Respondents.

208 Cal.App.4th 1590
146 Cal.Rptr.3d 585

David PLOTNIK et al., Plaintiffs and Respondents,
John MEIHAUS, Jr., et al., Defendants and Appellants.

John Meihaus, Jr., Cross-complainant and Appellant,
David Plotnik et al., Cross-defendants and Respondents.

Nos. G045885, G046260.

Court of Appeal, Fourth District, Division 3, California.

Aug. 31, 2012.
Review Denied Dec. 12, 2012.

See 6 Witkin, Summary of Cal.
Law (10th ed. 2005) Torts, § 1718.

146 Cal.Rptr.3d 591]Law Offices of Steven R. Young and Jim P. Mahacek, for Defendants, Cross-complainant, and Appellants.
Donna Bader, Laguna Beach, for Plaintiffs, Cross-defendants, and Respondents.



[208 Cal.App.4th 1595

Plaintiffs David and Joyce Plotnik sued their neighbor, defendant John Meihaus, Jr. (Meihaus), and two of his sons, defendants Greg Meihaus and John Meihaus III, alleging both contract and tort claims. In part, plaintiffs sought recovery for the emotional distress they suffered when Meihaus injured their dog. The superior court entered a judgment on jury verdicts that awarded David Plotnik over $175,000 against all defendants and Joyce Plotnik over $255,000 against Meihaus. The awards included emotional distress damages resulting from the dog's injury. In response to defendants' motion for new trial, the superior court entered an amended judgment after plaintiffs accepted a remittitur reducing the damage awards to $146,600 for David Plotnik and $205,209.53 for Joyce Plotnik. The court also granted plaintiffs $93,780 in attorney fees against Meihaus on the breach of contract claim.

Defendants appeal from both the original and amended judgments. While some of their claims have merit, requiring a further reduction of the amended judgment's damage awards, we hold California law allows a pet owner to recover for mental suffering caused by another's intentional act that injures or kills his or her animal.

[208 Cal.App.4th 1596]


Plaintiffs and their two children moved into a home in Laguna Niguel in 2003. The rear portion of the property slopes upward, abutting the Meihaus's lot. At the time, a three-foot high fence on the property line separated the two parcels.

Plaintiffs claimed that, shortly after moving into their home, they began to have problems with the Meihaus family. Plaintiffs built a six-foot fence along the parcels' common boundary. In response, Meihaus and his wife sued plaintiffs and the community association. That lawsuit was resolved in 2007 by a written settlement. In it, plaintiffs agreed to relocate the rear fence, moving it three feet back from the common boundary. The new fence has a gate that allows plaintiffs access to the portion of their property on the opposite side of the fence.

The settlement agreement contained clauses whereby each party “release[d] and discharge[d]” the other “from any and all claims, demands, or causes of action, known or unknown, which [they] now own or hold, or have at any time have heretofore owned....” It also included a mutual restraint provision, stating “[t]he [p]arties ... agree not to harass, vex or annoy[ ] each other either personally or by employing or encouragement of another for such purpose. Further neither party shall either verbally or in writing communicate to any other person or entity, whether in the form of purported statement of fact or opinion, any slanderous or disparaging matter concerning the personal or professional character or reputation of any other [p]arty....” The settlement authorized the prevailing party's recovery of its legal [146 Cal.Rptr.3d 592]expenses “in the event any action, suit or other proceeding ... is instituted to remedy, prevent or obtain relief from a breach of this Agreement/Release[ or] arising out of a breach of this Agreement/Release....”

At trial, plaintiffs presented evidence of several incidents that occurred between the parties after the settlement. Plaintiffs testified they found yard clippings and trash on their side of the rear fence. They documented some of this activity by taking photographs and saving some of the debris. David Plotnik testified the flower clippings were similar to plants he saw in the Meihaus's backyard.

David Plotnik and his daughter testified that on several occasions when driving through the neighborhood, they saw Meihaus jogging. As they passed him, Meihaus often raised a fist and extended his middle finger at them. According to David Plotnik the “entire family witnessed [this gesture] probably 15[to] 20 times.” Meihaus testified he did not recall these incidents.

One day in July 2008, Joyce Plotnik and a friend took their children swimming at the community association's pool. Joyce Plotnik testified that as

[208 Cal.App.4th 1597]

she pulled into the parking lot, Meihaus arrived and entered the pool area. When the Plotniks' guests arrived the group entered the pool area together. Plaintiffs' witnesses testified they saw Meihaus, wearing street clothes and sunglasses, sitting by the pool. According to them, he stared in the direction of Joyce Plotnik for approximately 20 minutes before leaving the area. Joyce Plotnik testified she “thought [she] was going to get sick.” Meihaus also denied any recollection of this incident.

Plaintiffs presented testimony concerning other instances when Joyce Plotnik encountered members of the Meihaus family. She testified that once while she and her son were walking their dog, Meihaus approached and said, “ ‘Don't let your dog piss on other people's lawns.’ ” Meihaus acknowledged this incident occurred.

On another occasion while Joyce Plotnik and a neighbor were walking to a nearby mountain ridge, members of the Meihaus family crossed in front of them going towards the same area. Joyce Plotnik and her companion decided to walk in another direction. In February 2010, Joyce Plotnik and Carol Gomez, a friend, were walking down a street when Meihaus drove past them. He stopped and began backing up the street toward his house. Gomez testified she told Joyce, “ ‘I think he's trying to intimidate you....’ ” The two turned around and walked in the opposite direction. Meihaus denied any recollection of this incident.

In October 2008, upon returning from a vacation, plaintiffs discovered the portion of their side yard fence closest to the Meihaus's lot had been cut and two nearby trees had been damaged.

Things came to a head on April 9, 2009. David Plotnik testified that, around noon, he went to the backyard and began photographing yard clippings. Romeo, the family's 12– to 15–pound, 12–inch tall miniature pinscher was with him. He denied Romeo was barking or growling. Plotnik heard loud banging against the opposite side of the rear fence. When he opened the gate, Romeo ran into the Meihaus's backyard. Losing sight of Romeo, Plotnik assumed the dog ran to the front of their residence. He returned to his lot and began walking along the adjacent public street. At that point, he heard Romeo barking and then squeal. He hurried home, arriving in time to see Romeo rolling down the slope through the open gate and hit a tree.

[146 Cal.Rptr.3d 593]Plotnik went through the gate and saw Meihaus holding a bat, returning to his house. He confronted Meihaus, yelling “ ‘Why did you hit our dog?’ ” Plotnik testified Meihaus raised the bat to waist level, came within two feet of him, yelling, “ ‘You need to be more courteous and get your dogs to stop barking.’ ” Plotnik then accused Meihaus of damaging the side yard fence

[208 Cal.App.4th 1598]

and throwing debris over the rear fence, all of which Meihaus denied. Claiming Romeo was agitated and kept barking and growling at him, Meihaus testified he obtained a bat from the garage and used it to “guide” Romeo back to the Plotnik's yard. He denied striking the dog.

After this exchange, Plotnik returned to his residence to check on Romeo. The dog had difficulty walking. The family took him to a veterinarian. Eventually, Romeo needed surgery to repair his right rear leg. The surgery cost $2,600 and Joyce Plotnik paid another $209.53 for a stroller to help Romeo get around after the surgery. At trial, the veterinarian opined Romeo's leg injury resulted from a traumatic event.

Later the same afternoon, David Plotnik returned to the backyard and went to the opposite side of the rear fence and started photographing it. Defendants Greg Meihaus and John Meihaus III, both of whom were in their 20's, came out of the house and confronted him.

Plotnik testified John Meihaus III rushed to within two feet of him, put a camera in his face and said, “ ‘I'm going to take pictures of you.’ ” Greg Meihaus said, “ ‘How is your wife doing,’ ” stood in front of Plotnik, called him names such as “ ‘punk ass bitch’ ” and “ ‘fatty,’ ” threatened “to kick [his] ass” and “ ‘kill [him],’ ” and said “ ‘Why don't you suck my dick.’ ” John Meihaus III also said, “ ‘We are going to kill your dog.’ ” During the 10–minute confrontation Plotnik testified he became scared and began shaking. It ended when Joyce Plotnik appeared and told her husband to return home.

The Meihaus brothers acknowledged the confrontation occurred, but denied knowing Plotnik at the time and claimed they approached him because he was photographing their parents' house, not the fence. They also acknowledged arguing with Plotnik and making insulting statements, but claimed he did as well.

Plaintiffs filed this lawsuit. Meihaus responded with a cross-complaint for breach of contract against plaintiffs.

The parties submitted a 33–page verdict form to the jury that sought rulings on 32 issues. The first and second special verdicts concerned whether Meihaus breached the 2007 settlement agreements as to each plaintiff. The jury found he did and awarded emotional distress damages of $35,000 to David Plotnik and $70,000 to Joyce Plotnik.

Special verdicts 3, 4, and 5 involved David Plotnik's causes of action for assault against each defendant. The jury found Meihaus not liable on...

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