Pette v. Burton

Filed 11/29/05 Pette v. Burton CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

LARNITA PETTE, Plaintiff and Appellant, v. WILLIAM BURTON et al., Defendants and Respondents.

A108369 (Solano County Super. Ct. No. FCS019882)

Appellant Larnita Pette appeals^[1] from a judgment of nonsuit granted at the close of her veterinary malpractice case, contending that the trial court erred in refusing to apply the doctrine of res ipsa loquitur. She also appeals the dismissal of her emotional distress claim. As well, Pette challenges the trial court’s rulings with respect to her dog’s “peculiar value,” a motion to amend the complaint and various evidentiary and bailment rulings. We affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 3, 2001, appellant brought her 10-year-old Yorkshire terrier, Monte, to respondent Benicia Veterinary Hospital (BVH) for an annual exam and routine vaccinations. Respondent William Burton, D.V.M., recommended that Monte have his teeth cleaned and Pette consented. Claire Bailey, an unlicensed veterinarian assistant, administered anesthesia to Monte. Another unlicensed veterinarian assistant, Rebecca Durham, performed Monte’s dental cleaning. The dog was monitored throughout the procedure, which was completed by 11:00 a.m. without incident. Dr. Burton called Pette to inform her that Monte was fine and could be picked up between 4:00 and 5:00 p.m.

Several hours later^[2] Pette received a call from Dr. Burton that Monte had collapsed. Dr. Burton attended to Monte, administered various drugs and placed him in an oxygen chamber. When Pette arrived at the hospital she was permitted to hold the dog. Treatment continued while Pette was present. At Dr. Burton’s recommendation, after-hours care for Monte was arranged at an emergency veterinary clinic and Dr. Burton transported the dog to it. The dog died several hours later at approximately 9:00 p.m.

A necropsy was performed that identified two possible causes of Monte’s death—collapsed trachea or alveolitis.

In June 2002, Pette filed a complaint against respondents Dr. Burton and BVH,^[3] alleging negligence, negligence per se, negligent infliction of emotional distress, conversion, fraud and deceit. Eleven months later she filed a first amended complaint alleging the same causes of action.

Dr. Burton and BVH moved for summary judgment/adjudication. The trial court granted summary adjudication as to the causes of action for fraud and deceit, conversion and negligent infliction of emotional distress. The court found that Pette had not contested the motion regarding fraud and conversion and there was no legal authority to support emotional distress recovery. The court denied defendants’ motion for negligence and negligence per se, and Pette’s claim for punitive damages. The court also denied motions for reconsideration filed by both sides.

Prior to commencement of trial, the court ruled on several motions in limine and determined, following a hearing pursuant to Evidence Code section 402, that Pette’s expert Dr. Emswiller could testify at trial.

During the course of a continuance, Pette unsuccessfully moved to further amend her complaint to reinstate causes of action for fraud, conversion and add a cause for failure to obtain informed consent. The court concluded that Pette had known of the facts giving rise to the proposed amendments months before the motion for summary adjudication was litigated and discovery closed, and that Dr. Burton and BVH would be prejudiced by the late amendment. The court also found that the proposed amendments failed to state causes of action.

At trial Dr. Emswiller testified for Pette, suggesting that aspiration of dental debris or fluid was a probable cause of Monte’s death. He also suggested aspiration pneumonia and anaphylaxis as other possibilities. Dr. Emswiller also testified that it was unusual for a dog to die following a routine dental operation. During his testimony, the court ruled that the res ipsa loquitur theory was not applicable and declined to give jury instructions on it. At the close of Pette’s evidence, the trial court granted defendants’ motion for nonsuit. This appeal followed entry of judgment.

II. DISCUSSION

A. Standard of Review

On appeal from a judgment of nonsuit, we will not sustain the judgment unless, “ ‘interpreting the evidence most favorably to plaintiff’s case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.’ ” (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839.) Neither speculation, suspicion, nor conjecture may substitute for credible evidence, and a judgment of nonsuit may be reversed only if there is “ ‘some substance to plaintiff’s evidence upon which reasonable minds could differ . . . .’ ” (Ibid.)

In granting nonsuit, the court refused Pette’s requested res ipsa loquitur instructions. In reviewing a claim of erroneously refused instructions, we review the evidence most favorable to the applicability of requested instructions, because a party is entitled to have the jury instructed on all presented theories which are supported by the evidence and pleadings. (Blackwell v. Hurst (1996) 46 Cal.App.4th 939, 943.)

B. Nonsuit on the Negligence Cause of Action Was Proper

1. Legal Framework

The court granted nonsuit upon finding that: (1) the specific cause of death of the dog was unknown, and (2) the alleged act or acts of omission or commission could not be linked to the dog’s demise. In granting nonsuit, the court rejected the application of res ipsa loquitur. Appellant argues that the doctrine of res ipsa loquitur applies to the facts of her case and the trial court erred in refusing to apply it.

In California, the doctrine of res ipsa loquitur is defined as “a presumption affecting the burden of producing evidence.” (Evid. Code, § 646, subd. (b).) For the presumption to arise three conditions must be satisfied: “ ‘ “(1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.” ’ ” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825-826, quoting Ybarra v. Spangard (1944) 25 Cal.2d 486, 489; Elcome v. Chin (2003) 110 Cal.App.4th 310, 316-317.) This presumption requires the trier of fact to presume that the defendant’s negligence was a proximate cause of the injury. (Evid. Code, § 646, subd. (c)(1); Brown v. Poway Unified School Dist., supra, 4 Cal.4th at p. 826.)

That a particular injury suffered by a patient as the result of an operation rarely occurs does not, in itself, prove that the injury was probably caused by the negligence of those in charge of the operation. (Siverson v. Weber (1962) 57 Cal.2d 834, 839.) “Where risks are inherent in an operation and an injury of a type which is rare does occur, the doctrine [of res ipsa loquitur] should not be applicable unless it can be said that, in the light of past experience, such an occurrence is more likely the result of negligence than some cause for which the defendant is not responsible.” (Ibid.) Further, “evidence of rarity, together with some other evidence indicating negligence, may warrant a conditional res ipsa instruction, particularly where the injury resulted from a commonplace procedure rather than from a complex or unusual operation.” (Hale v. Venuto (1982) 137 Cal.App.3d 910, 919, italics added.)

2. Analyses

In order to avoid a nonsuit, Pette was required to make a prima facie showing that Monte’s death was caused by negligence on the part of Dr. Burton or his staff. (Evid. Code, § 646, subd. (c)(2).)

In support of Pette’s claim of veterinary malpractice, Dr. Emswiller testified that Dr. Burton’s recordkeeping was below the standard of care. He further testified that it was below the standard of care for an underskilled and unlicensed assistant to perform a dental cleaning and for an unlicensed veterinary technician to induce anesthesia. Dr. Emswiller also opined that Monte was improperly monitored after the dental procedure. But he failed to offer any competent testimony that any of these breaches caused or contributed to Monte’s death.

With respect to the dog’s death, Dr. Emswiller testified that it was unusual for a dog to die following a routine dental procedure. The pathologist concluded in the necropsy report that either a collapsing trachea or alveolitis was the ultimate cause of Monte’s death. The X-ray, taken immediately after Monte collapsed, showed that there was fluid in both sides of the lung and the trachea was open. Relying on these reports, Dr. Emswiller assumed that: (1) alveolitis was the ultimate cause of death because of the fact that the trachea was open, and (2) the collapsing trachea probably had happened either right before or right after the animal died. He did not provide any basis for his assumption.^[4] Dr. Emswiller opined that alveolitis probably resulted from aspiration caused by debris or fluid going down the endotracheal tube during the dental operation. However, he speculated that the purported aspiration was the result of improper insertion and withdrawal of the endotracheal tube by a poorly trained veterinary assistant during dental cleaning. His opinion was without evidentiary foundation because there was no showing in the records of any specific negligent acts on the part of BVH assistants which could have caused the aspiration. The X-ray only showed that fluid, not the dental debris, was in the lung field. That the assistants were unlicensed could rise to negligence per se, but Dr. Emswiller did not causatively link the lack of licensing to Monte’s death.

“[T]he low incidence of accidents when due care is used plus negligent conduct of a type which could have caused the occurrence may make it probable that the occurrence was the result of someone’s negligence and that the defendant is probably the person who was responsible. Those are the requirements for applying res ipsa loquitur.” (Clark v. Gibbons (1967) 66 Cal.2d 399, 413, italics added.) Dr. Emswiller was unable to point to specific acts of negligence of a type which could have caused the injury and thus the decision not to give the res ipsa loquitur instruction was correct. All Pette was able to show was that the dog collapsed hours after a dental procedure performed by unlicensed and underskilled veterinary staff. Given the speculative nature of the expert testimony, there is no basis to conclude that a breach in the standard of care probably caused Monte’s death. On this record, an inference of negligence was not warranted and the trial court properly entered judgment of nonsuit after refusing to give the res ipsa loquitur instruction.

C. Emotional Distress Claim

Because the trial court was correct in refusing to instruct the jury on the doctrine of res ipsa loquitur, we also conclude that the court did not err in denying Pette’s claim for emotional distress recovery. Moreover, California law does not afford an animal owner emotional distress damages for the negligent damage or loss of that animal. (Erlich v. Menezes (1999) 21 Cal.4th 543, 554-555.)

D. Peculiar Value Damages

Because we find that the judgment of nonsuit was properly entered, we need not address the issue of damages.

E. Motion to Amend

Pette argues that the trial court erred in denying her motion to amend the complaint to add claims for conversion, fraud and failure to give informed consent. The trial court has wide discretion to allow the amendment of any pleading. As a matter of policy, on review we will uphold the ruling of the trial court unless “ ‘a manifest or gross abuse of discretion is shown.’ ” (Record v. Reason (1999) 73 Cal.App.4th 472, 486.) Here, the trial court properly granted summary adjudication on her claims for conversion and fraud. Nonetheless, Pette claimed she was entitled to reassert these claims and to add a new claim for failure to give informed consent.

Pette’s motion for leave to amend was untimely and properly denied by the trial court. She knew all the facts supporting her motion for almost a year before filing, long before the motion for summary adjudication was litigated and before discovery was closed. A party must submit a declaration to assist the court in determining whether good cause exists to permit a party to amend his or her pleading. (Cal. Rules of Court, rule 327.) A long, unexcused delay can be a proper basis for the court to deny permission to amend pleadings. (Record v. Reason, supra, 73 Cal.App.4th at pp. 486-487; Nelson v. Specialty Records, Inc. (1970) 11 Cal.App.3d 126, 139.) Denying leave to amend a complaint is not an abuse of discretion where a plaintiff knows that a claim has not been pled and takes no action until summary judgment had been granted against it. (Fisher v. Larsen (1982) 138 Cal.App.3d 627, 649.) The trial court properly denied Pette’s motion on grounds of unreasonable delay.

F. Bailment Ruling

The nonsuit encompassed appellant’s cause of action for violation of Civil Code section 1834, which provides that a “depositary of living animals shall provide the animals with necessary and prompt veterinary care . . . .” Appellant unsuccessfully requested instructions that a veterinary hospital is a depositary as a matter of law. On appeal she attacks the nonsuit as to this cause of action. The issue presented in this case is not whether necessary and prompt veterinary care was provided, but rather the nature of the treatment given and whether BVH negligently performed the dental procedure. These issues are outside the bailment inquiry.

G. Evidentiary Rulings

Pette challenges the court’s exclusion of evidence concerning the licensing status of the veterinary assistants who performed anesthesia and the dental cleaning of her dog, and the testimony of Registered Veterinary Technician (RVT) Teri Flynn. The court’s ruling on these matters of course is subject to an abuse of discretion standard, the proper test being whether the court exceeded the bounds of reason. (Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431.) There was no such abuse here.

Appellant contends that the licensing violation constituted negligence per se and exclusion of the proffered testimony was erroneous. When claiming negligence per se it is essential to establish a causal link between the alleged statutory violation and the harm suffered as a result of that violation. (Evid. Code, § 669, subd. (a)(1); Civ. Code, § 3281.) Pette did not provide any evidence of harm as a direct consequence of a statutory licensing violation by the veterinary assistants and thus the assistants’ licensing status is irrelevant in this case. Therefore, exclusion of this evidence was appropriate.

As to the testimony of RVT Flynn, appellant argues she should have been permitted to conduct a demonstration on intubation equipment and the manner of its use. There was no foundation for the evidence because Flynn had never seen the dog and had no knowledge of anesthesia, medication or proper intubation of Monte during the dental procedure. She had no opinion as to BVH’s conduct. Her testimony would not have assisted the jury and thus its exclusion was proper.

The judgment is affirmed.

_________________________

Reardon, Acting P.J.

We concur:

_________________________

Sepulveda, J.

_________________________

Munter, J.^*

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^[1] Pette filed a timely notice of appeal.

^[2] It is not clear from the record whether Dr. Burton called Pette at 3:45 p.m. or 4:45 p.m.

^[3] Employees of BVH were also named as defendants.

^[4] The necropsy report, marked for evidence but not ultimately admitted because of the nonsuit, indicated that the pathologist could not determine if tracheal collapse preceded development of acute alveolitis or alveolitis was present prior to collapse of the trachea. However, the pathologist indicated that extensive collapse of the trachea could potentially lead to the observed changes in the lung making it the most likely explanation.

^* Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.