Mink v. Encina Veterinary Clinic



Filed 6/13/11 Mink v. Encina Veterinary Clinic CA1/1



NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.





IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

PERRI MINK, Plaintiff and Appellant, v. ENCINA VETERINARY CLINIC, INC., et al., Defendants and Respondents.

A129371 (Contra Costa County Super. Ct. No. MSC08-00931)

Plaintiff Perri Mink appeals the orders of the trial court sustaining without leave to amend the demurrers of defendants Encina Veterinary Clinic, Inc., Roger Johnson, Peter Nurre, Kathy Shuttlesworth, and Angela Linvill (collectively referred to as Encina), and Kevin W. Bissonnette and Mobile Animal Surgery Services (collectively referred to as Bissonnette). The court sustained the demurrers on the grounds that her fourth amended complaint fails to adequately state a cause of action and includes claims that are barred by the statute of limitations. We affirm the court's orders and the judgments of dismissal.
ALLEGATIONS OF THE COMPLAINT AND PROCEDURAL BACKGROUND
On April 4, 2008, plaintiff filed her initial complaint in this action.[1]
On April 14, 2008, plaintiff filed her first amended complaint (FAC).[2]
On July 8, 2008, Encina file a demurrer to the FAC, alleging that the complaint was ambiguous, lacked the specificity required for fraud causes of action, and was barred by the statute of limitations for veterinary malpractice under Code of Civil Procedure section 340, subdivision (c).[3]
On July 23, 2008, Bissonnette filed a demurrer to the FAC on the grounds that the FAC was uncertain, failed to state facts sufficient to constitute a cause of action, and was barred by the statute of limitations.
On September 10, 2008, the trial court sustained the demurrers with leave to amend.
On October 3, 2008, plaintiff filed her second amended complaint (SAC). The SAC states causes of action for (1) conspiracy to commit fraud, (2) intentional misrepresentation to a third party for unjust enrichment, (3) deceit, (4) fraud and negligent misrepresentation, (5) fraud and intentional misrepresentation, (6) constructive fraud, (7) intentional infliction of emotional distress, (8) conversion, and (9) trespass to unique chattel. The SAC alleges plaintiff brought her dog Elvira to Encina for treatment on April 11, 2006. Defendants recommended surgery and Elvira was operated on to remove a lump from her intestine. Bissonnette performed the surgery. About a week later, a second surgery was done to repair a leak at the site of the first surgery. Various treatments and medications, including chemotherapy, were provided over the next several weeks, but the dog's condition worsened. Elvira was euthanized on May 26, 2006. The gist of the complaint is that defendants wrongfully coerced plaintiff into agreeing to excessive treatments for Elvira, subjecting the dog to unnecessary pain and suffering and causing plaintiff to become liable for over $15,000 in veterinary services. The complaint includes a request to seek punitive damages.
On November 3, 2008, Encina filed a demurrer to the SAC. Encina argued that the SAC was uncertain, failed to state facts sufficient to constitute a cause of action, and was barred by the statute of limitations. Encina also argued that the request for punitive damages was barred under Code of Civil Procedure section 425.13.[4]
On November 7, 2008, Bissonnette demurred on the grounds that plaintiff's claims were barred by the statute of limitations, and that the SAC failed to allege facts sufficient to constitute fraud, intentional infliction of emotional distress, conversion, or trespass to chattels.
On February 4, 2009, the trial court sustained defendants' demurrers as to six of the nine causes of action with leave to amend. The demurrer to the conversion cause of action was sustained without leave to amend on the ground that plaintiff failed to allege defendants had any intention or purpose to exercise ownership over the dog or to prevent plaintiff from taking possession of it. The demurrer to the intentional misrepresentation claim was also sustained without leave to amend. The demurrer to the ninth cause of action for trespass to unique chattel was overruled.
On November 25, 2009, plaintiff filed her third amended complaint (TAC). The complaint states four causes of action: (1) fraud, (2) constructive fraud/breach of fiduciary and confidential relationships, (3) intentional infliction of emotional distress, and (4) trespass to unique chattel. It also purports to seek a preliminary and a permanent injunction under the Unruh Civil Rights Act.
On December 28, 2009, Bissonnette filed a demurrer to the TAC, arguing that the complaint was uncertain, failed to state facts sufficient to constitute a cause of action, and was barred by the statute of limitations. On this same day, Encina also filed a demurrer to the TAC.
On March 4, 2010, the trial court sustained defendants' demurrers with leave to amend. The court found the TAC to be both ambiguous and unintelligible.
On April 2, 2010, plaintiff filed her 69-page Fourth Amended Complaint (4AC). The 4AC contains multiple â€