Fitch v. Krietenberg

The first cause of action is styled as a claim for “gross negligence.” Defendants are correct is arguing that gross negligence is not a separate cause of action. “Gross negligence is pleaded by alleging the traditional elements of negligence: duty, breach, causation, and damages.” (Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082.) “However, to set forth a claim for ‘gross negligence’ the plaintiff must allege extreme conduct on the part of the defendant,” in that the conduct alleged “must rise to the level of “either a ‘ “ ‘want of even scant care’ ” ' or ‘ “ ‘an extreme departure from the ordinary standard of conduct.” (Ibid.)

Defendants contend that gross negligence is not an independent cause of action but, rather, a theory of liability relevant only to punitive damages. The authorities cited by Defendants in support of this proposition illustrate that the distinction between gross negligence and ordinary negligence is only relevant in limited circumstances, such as where a release is involved. (See, e.g., City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 781 (“[W]ith the advent of comparative fault, the need to categorize misconduct into degrees has been ‘diminished.’ . . . the abrogation of gross negligence as a general matter, nevertheless may require that the law continue to recognize gross negligence in the context of ‘anticipatory releases and exculpatory clauses.’” (internal citations omitted).) This is not relevant here.

However, the complaint states a cause of action for negligence, and Defendants have not met their burden of demonstrating that Plaintiffs cannot establish an element of negligence (i.e., breach, causation or damages). Summary adjudication is DENIED as to the first cause of action.

Request for Punitive Damages as to First Cause of Action for “Gross Negligence”

Plaintiffs’ first cause of action for “gross negligence” contains a request for punitive damages.

Defendants contend that Plaintiffs cannot establish the requisite necessary mental state to show that Defendants acted with malice, oppression, or fraud, which is the standard for punitive damages set forth in Civil Code §3294. The Complaint alleges that Defendants acted with malice. (Compl. ¶¶ 103-109, 114.) Malice is defined by Civil Code §3294(c)(1) as “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.”

Here, there are triable issues of fact based upon which a jury could conclude that Defendants’ behavior amounted to malice. Plaintiffs have submitted evidence that prior to the date of the incident, one of Elliot’s chow chows had bitten another dog, and that Elliot decided to muzzle FJ based in part on “FJ’s past incidents in 2020.” (Elliot Kreitenberg Depo. at 29:6-8; 34:13-23.) These incidents occurred at Melissa and Arthur’s property.

A trier of fact could find that Defendants acted with willful and conscious disregard of the rights or safety of others by failing to take appropriate measures to keep FJ confined within the property.

Accordingly, summary adjudication is DENIED as to the issue of punitive damages.

Second Cause of Action for Negligence Per Se and Fourth Cause of Action for Strict Liability Under CCP §3342

“Under Evidence Code section 669, negligence is presumed where the following elements are met: (1) the defendant violated a statute, (2) the violation proximately caused injury to a person or property, (3) the injury resulted from an occurrence of a type the statute was designed to prevent, and (4) the person suffering injury was one of the class of persons for whose protection the statute was adopted.” (Drury v. Ryan (2025) 109 Cal.App.5th 1102, 1109.) This is commonly known as negligence per se.

Here, the Complaint alleges that the injuries suffered were of the type that Civil Code section 3342 was

designed to prevent. However, section 3342 specifically provides that “[t]he owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness.” (CCP §3342(a) (emphasis added).) The parties do not dispute that neither Marie nor Ian was bitten by FJ. (UF 5, 6.)

Accordingly, Plaintiffs cannot demonstrate liability based directly on § 3342 or in the form of negligence per se based on a violation of §3342.

Summary adjudication is GRANTED as to the second and fourth causes of action.

Third Cause of Action for Strict Liability Based on Common Law

“California has long followed the common law rule of strict liability for harm done by a domestic animal with known vicious or dangerous propensities abnormal to its class.” (Drake v. Dean (1993) 15 Cal.App.4th 915, 921.) The question of whether a domestic animal is vicious or dangerous is ordinarily a factual one for the jury. (Heath v. Fruzia (1942) 50 Cal.App.2d 598, 601.)

Here, as discussed above in connection with punitive damages, Plaintiffs have presented evidence of prior incidents involving FJ. Thus, Plaintiffs have raised triable issues of fact as to whether FJ could be considered vicious or dangerous. Each of the incidents occurred at Arthur and Melissa’s property, and Defendants have presented no evidence that Arthur and Melissa could not be considered the keepers of FJ, who was apparently a frequent visitor to their property, albeit owned by their son, Elliot. (See (Hillman v. Garcia-Ruby (1955) 44 Cal.2d 625, 626 (“The gist of the action is not the manner of keeping the vicious animal, but the keeping him at all with knowledge of the vicious propensities.”).)

Summary adjudication as to the third cause of action is DENIED.

Fifth Cause of Action for Negligent Infliction of Emotional Distress

Citing McMahon v. Craig and Plotnik v. Meihaus, Defendants contend that California courts do not allow emotional distress damages for claims of negligence involving harm to pets. (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1512–13; Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1606–07.) Plaintiffs do not provide any authority or argument to dispute this contention.

Accordingly, summary adjudication is GRANTED as to the fifth cause of action.

Sixth Cause of Action for Private Nuisance

“[T]he essence of a private nuisance is its interference with the use and enjoyment of land. The activity in issue must ‘disturb or prevent the comfortable enjoyment of property,’ such as smoke from an asphalt mixing plant, noise and odors from the operation of a refreshment stand, or the noise and vibration of machinery.” (Oliver v. AT&T Wireless Services (1999) 76 Cal.App.4th 521, 534, internal citations omitted.)

As Defendants point out, Plaintiffs do not plead any interference with the use and enjoyment of their real property. Plaintiffs offer no reasoned argument in opposition to Defendants’ contention.

Summary adjudication is GRANTED as to the sixth cause of action.

Seventh Cause of Action for Public Nuisance

“A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” (Civ. Code § 3480.)

The facts alleged in the Complaint give no indication that the incident affected the community or neighborhood or any considerable number of persons,

and Plaintiffs do not deny that they have no evidence which would support such a finding.

Summary adjudication is GRANTED as to the seventh cause of action.

Damages

Defendants finally request that the Court adjudicate that Plaintiffs’ damages are limited to property loss. However, as set forth above, the Court finds that Plaintiffs have raised triable issues of fact as to punitive damages.

Accordingly, Defendants’ request for adjudication as to the issue of damages is DENIED.

Objections

Plaintiffs’ objections to Defendants’ evidence are OVERRULED for failure to comply with CRC 3.1354(b). Because Plaintiffs did not identify the specific material being objected to by page and line number, and by quoting the specific material, the Court is unable to ascertain exactly which portions of the materials are purportedly objectionable.

Defendants’ Objections No. 2 to the Linda Kovanda report and No. 3 to the Dottie Simpson/Molly report are SUSTAINED on the grounds of lack of foundation and lack of authentication. Objection No. 5 regarding Plaintiffs’ characterization of the March 28, 2022 OC Animal Care letter is OVERRULED. Objections No. 6-12 are OVERRULED for failure to comply with CRC 3.1354(b) and/or because the objections improperly object to statements made in Plaintiffs’ separate statement rather than to the underlying evidence.

The Court declines to rule on the remainder of the objections as immaterial to the disposition of this motion.

In summary, the motion for summary adjudication is GRANTED as to the second, fourth, fifth, sixth, and seventh causes of action, and DENIED as to the first and third casesus of action. Defendants to give notice.

107 Grant v. Bank of DEMURRER – SUSTAINED WITH LEAVE TO America, 2026- AMEND 01560009 The present complaint appears to be the fourth complaint filed by Plaintiffs Gavin and Michelle Grant to avoid nonjudicial foreclosure on their home. This court will take judicial notice of the court’s records in Gavin Grant v. Bank of America, N.A. and Clear Recon, 2017-00898495; Gavin Grant v. Bank of America, N.A. and Clear Recon, 2018-00993609; Gavin & Michelle Grant v. Bank of America, N.A., et al 2023- 01332810. (Evid Code, § 452, subd. (d)(1); Scott v. JP Morgan Chase Bank, N.A. (2013) 214 Cal.App.4 th 743, 752 [court may take judicial notice of its own files on demurrer on its own motion].) Each of those complaints was ultimately dismissed, and the orders of dismissal were affirmed on appeal.

In the present case, Plaintiffs allege Bank of America divested itself of interest in the loan on their property. Plaintiffs also allege Bank of America’s substitution of Clear Recon as trustee was ineffective because Bank of America had no interest and no right to change the trustee. Plaintiffs also allege the notice of trustee’s sale by Clear Recon on February 20, 2026 is a new independent wrongful act (Complaint, ¶9) and therefore the final orders of dismissal in the previous cases does not bar the current complaint.

However, the 2026 notice of trustee’s sale can only be a new wrongful act if Clear Recon was not properly acting as the trustee. And Plaintiffs can only assert this in the present case if they could not have done so in one of the earlier cases. Plaintiffs do not allege when they learned about Bank of America’s divestiture of its interest. The complaint alleges Plaintiffs discovered Bank of America’s internal accounting records in 2022 (¶20), and they “did not discover the chain of title until years later.” (¶53) Plaintiffs also attach to their complaint the declaration of Esquivel which raises the issue of the assignment of the Deed of Trust to the trust claiming interest which cut off Bank of America’s interest. (See also amended complaint in 2023-01332810, ¶¶36-39)

The court’s tentative ruling as to Clear Recon’s demurrer is to sustain the demurrer with leave to amend all causes of action. In addition to addressing the specific issues raised by the demurrer, Plaintiff must also allege when and how they