MOTION TO STRIKE Amended COMPLAINT
Set for Law and Motion/Discovery Calendar on Wednesday, March 04, 2026, Line 14.
Defendants' motion to strike the request for emotional distress damages in the first amended complaint ("FAC") is DENIED. (Berry v. Frazier (2023) 90 Cal.App.5th 1258.) Moving Defendants seek to strike the request for emotional distress damages as a whole and do not highlight particular allegations. At the very least, the fraud and trespass to chattel claims support the prayer.
In Berry, the court allowed emotional distress damages where the veterinarian intentionally misrepresented the method of euthanasia. In this case, plaintiff similarly alleges that defendant intentionally misrepresented that the bone in Brody's leg was cancerous with a moth-eaten appearance and needed to be amputated. (FAC, pars. 25 (second one), 39, 58-59.)
"Trespass to chattel, although seldom employed as a tort theory in California ..., 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, 1566, fn. omitted.) Trespass to chattel can be alleged to recover for damages, including emotional distress damages, for injury to a pet dog because "[p]ets are considered property of their owners." (Kimes v. Grosser (2011) 195 Cal.App.4th 1556, 1559; see also Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1272-1273; Levy v. Only Cremations for Pets, Inc. (2020) 57 Cal.App.5th 203, 216 [emotional distress damages are available in a trespass to chattel action].)
Moving Defendants' citation to McMahon v. Craig (2009) 176 Cal.App.4th 1502
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Moving Defendants to file an answer within 20 days of notice of this order.
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