Donald J. Lewis v. William V. Sullenberger, DVM, et al.

TENTATIVE RULINGS Donald J. Lewis v. William V. Sullenberger, DVM, et al.

Defendants’ Demurrer to the Second Amended Complaint

Defendants’ Motion to Strike the Second Amended Complaint

Hearing Date: August 28, 2026

NOTE RE TENTATIVE RULINGS

Each of these tentative rulings becomes the court’s order, and no hearing shall be held unless one of the parties contests it by following Rule 3.1308 of the California Rules of Court and Monterey County Local Rule 7.9. Those parties wishing to present an oral argument must notify all other parties and the Court no later than 4:00 p.m. on the court day before the hearing; otherwise, NO ORAL ARGUMENT WILL BE PERMITTED, AND EACH TENTATIVE RULING WILL BECOME THE ORDER OF THE COURT AND THE RELATED HEARING VACATED. You must notify the court by email or by calling the Calendar Department at 831-647-5800, extension 3040, before 4:00 p.m. on the court day before the hearing.

Tentative Ruling: Demurrer

Defendants’ Demurrer to the Second Amended Complaint

Defendants William V. Sullenberger, DVM, and BluePearl California, Inc. (“BluePearl”) (collectively, “Defendants”) demur to the Sixth and Seventh Causes of Action in Plaintiff Donald J. Lewis’s (“Plaintiff”) Second Amended Complaint (“SAC”) on sufficiency grounds [Code Civ. Proc. §430.10, subd. (e)]. The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. Defendants shall prepare the Proposed Order consistent with this Tentative Ruling and have 10 days from the date of service of the Court’s signed order to answer the SAC. [Cal. Rules of Ct., rule 3.1320, subd. (g).]

Due to the Court’s ruling, the Case Management Conference (“CMC”) scheduled for August 28, 2026, is CONTINUED to September 29, 2026, at 9:00 a.m. in Department 14. If the case is at issue by that time, the Court will likely set a trial date. No additional CMC Statements are needed unless required; the CMC Statement each party filed on August 13, 2026, will suffice. Additionally, if Plaintiff still wants a jury trial, he must pay the fees by September 25, 2026. The Fee Waiver Order from June 24, 2025, does not cover Plaintiff’s jury fees and expenses. Plaintiff must file a Request to Waive Additional Court Fees (FW-002) and receive an order approving it by the September 25 deadline.

Legal Standard.

A demurrer for sufficiency assesses whether the complaint properly states a cause of action. [Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.] Courts interpreting demurrers tend to view allegations broadly and contextually. [Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.] Defects must be apparent on the face of the pleading or evident through proper judicial notice. [Code Civ. Proc. § 430.30, subd. (a).] A demurrer only considers the pleadings, not evidence, legal arguments, or outside facts. [SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.]

Discussion.

A. Meet-and-Confer Requirement.

Preliminarily, the declaration of defense counsel Lauren Fazio reflects that the meet-andconfer requirement was satisfied. [Defense’s Fazio Decl. at ¶ 2; Code Civ. Proc. § 430.41.]

B. Sixth Cause of Action: Breach of Bailment as to BluePearl.

On the evening of July 2, 2024, Plaintiff decided to take his cat, Starbur, to a veterinarian. [SAC at ¶ 18.] This is because Starbur was unwell, lethargic, and experiencing breathing difficulties. [Id. at 16.] With no other known options, Plaintiff went to BluePearl, which was open 24 hours a day. [Id. at ¶ 17.] Allegations about BluePearl’s conduct in the SAC relate to the provision of veterinary services. [See SAC at ¶¶ 19-43A, 150-152B.] Further, Exhibit 5 to the SAC is the statement signed by Plaintiff, which confirms his authorization of BluePearl and its staff to perform the treatment, with no guarantee of successful treatment. [SAC at ¶¶ 64, 150, and Exh. 5.]

Tentative Ruling: Demurrer

Previously, on March 2, 2026, this Court sustained Defendants’ demurrer to the Sixth Cause of Action in the First Amended Complaint (“FAC”) based on similar allegations. However, Plaintiff was given leave to amend to allow him to “plead facts regarding BluePearl’s custodial process, separate from the veterinary services, with damages resulting from that custodial process.” [Demurrer Order at 7:13-15.]

Here, Plaintiff again attempts to plead bailment by characterizing BluePearl as a non‐veterinary entity that accepted possession of Starbur, allegedly triggering bailment obligations. However, the SAC’s additional allegations continue to treat the transaction as one for veterinary medical care rather than custodial safekeeping. [SAC at ¶¶150A, 151A, 152A-B, and 153C.] Plaintiff still alleges no facts showing a non‐medical custodial process distinct from treatment.

California law requires veterinary professionals to exercise ordinary professional skill and care; adverse medical outcomes are governed by negligence standards rather than bailment. [See Williamson v. Prida (1999) 75 Cal.App.4th 1417, 1424-1425 (a veterinarian must exercise the ordinary skill or care typical of the profession and will not be liable for adverse outcomes without a breach of such reasonable care and skill); Civ. Code § 1834 (requiring a depositary to provide animals with necessary and prompt veterinary care); Price v.

Brown (1996) 545 Pa. 216, 219 (“[A]llegations of a breach of a bailment agreement are insufficient to state a cause of action against a veterinarian who has performed surgery on an animal when the animal suffers an injury as a result or does not survive the surgery.”).] Plaintiff’s allegations challenge only the medical care rendered, falling squarely within professional veterinary negligence, not bailment. The court previously granted leave to amend only if Plaintiff could allege a separate custodial bailment.

The SAC confirms Plaintiff cannot do so.

Therefore, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND, as Plaintiff has now had multiple opportunities and cannot allege facts establishing a bailment claim outside the veterinary‐treatment context.

To the extent Plaintiff requests that this Court reconsider its prior demurrer order, the request is DENIED because there is no new controlling authority, changed law, or newly discovered fact. [See Defendants’ Reply at 1-2.]

C. Seventh Cause of Action: Breach of Contract as to BluePearl.

In the prior demurrer order, the Court sustained the Seventh Cause of Action for breach of contract because Plaintiff failed to allege facts sufficient to establish a cause of action for breach of an implied-in-fact bailment contract. [Demurrer Order at 7:16-8:2.] However, the Court gave Plaintiff leave to amend the Seventh Cause of Action “if he can allege the elements of a breach of contract, including the existence of such a contract and the facts upon which the promise is implied, if attempting to assert a breach of implied contract.” [Ibid.]

In the SAC, Plaintiff again fails to allege facts sufficient to establish a cause of action for breach of an implied-in-fact bailment contract. Plaintiff must allege the contract, his performance

Tentative Ruling: Demurrer

or excuse for nonperformance, BluePearl’s breach, and resulting damages. [See Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.] Because there was no bailment, the Seventh Cause of Action must rely upon a different contract.

Now, Plaintiff has abandoned the prior implied‐bailment theory and alleges an implied‐in‐fact contract promising “exceptional care,” “highest medical standards,” and “the very best advanced medical care” based on marketing statements on BluePearl’s website. [SAC at ¶¶ 53, 160B.] The SAC does not allege Plaintiff ever read or relied on the website before contracting for services. [See SAC, passim.] Indeed, Plaintiff in his opposition argues that it is irrelevant whether he read the statements on BluePearl’s website. [Opp. at 14:15-16.]

The SAC’s allegations are insufficient to allege the existence of an implied-in-fact contract. First, a contract requires mutual assent. [See Levy v. Only Cremations for Pets, Inc. (2020) 57 Cal.App.5th 203, 210-211.] Second, BluePearl’s statements on its website do not rise to the level of an implied contract. Generalized advertising language of quality constitutes non‐actionable puffery [Newcal Industries, Inc. v. Ikon Office Solution (9th Cir. 2008) 513 F.3d 1038, 1053] and is insufficient to manifest contractual promises or mutual assent [Division of Labor Law Enforcement v.

Transpacific Transportation Co. (1977) 69 Cal.App.3d 268, 275- 277]. Kahsmiri v. Regents of U. of Cal. (2007) 156 Cal.App.4th 809, 833-834, is inapposite because, unlike the generalized advertising statements here, the defendant in that case made express promises on its website not to raise certain fees, and the appellate court held them to be terms of implied contracts.

The SAC identifies no objective, definite contractual term, no specific oral promise, and no conduct manifesting mutual assent to a heightened contractual standard of care beyond professional veterinary negligence. Moreover, exhibits incorporated into prior pleadings state there was no guarantee of outcome, contradicting Plaintiff’s theory of an enforceable contractual promise of “exceptional” results. Because Plaintiff does not explain as to how further amendment could cure the defects, the demurrer to the Seventh Cause of Action is SUSTAINED WITHOUT LEAVE TO AMEND.

Conclusion.

Defendants’ demurrer to the Sixth and Seventh Causes of Action is SUSTAINED WITHOUT LEAVE TO AMEND. Defendants shall prepare the Proposed Order consistent with this Tentative Ruling and have 10 days from the date of service of the Court’s signed order to answer the SAC. [Cal. Rules of Ct., rule 3.1320, subd. (g).] The August 28, 2026, CMC is CONTINUED to September 29, 2026, at 9:00 a.m. in Department 14.

Tentative Ruling: Motion to Strike

Defendants’ Motion to Strike the Second Amended Complaint

The motion of Defendants William V. Sullenberger, DVM, and BluePearl California, Inc. (“BluePearl”) (collectively, “Defendants”) to strike portions of the Second Amended Complaint (“SAC”) of Plaintiff Donald J. Lewis (“Plaintiff”) is GRANTED. Plaintiff’s Request for Judicial Notice is DENIED as irrelevant to the issues raised in the motion. Defendants shall prepare the Proposed Order consistent with this Tentative Ruling and have 10 days from the date of service of the Court’s signed order to answer the SAC. [Cal. Rules of Ct., rule 3.1320, subd. (g).]

Due to the Court’s ruling, the Case Management Conference (“CMC”) scheduled for August 28, 2026, is CONTINUED to September 29, 2026, at 9:00 a.m. in Department 14. If the case is at issue by that time, the Court will likely set a trial date. No additional CMC Statements are needed unless required; the CMC Statement each party filed on August 13, 2026, will suffice. Additionally, if Plaintiff still wants a jury trial, he must pay the fees by September 25, 2026. The Fee Waiver Order from June 24, 2025, does not cover Plaintiff’s jury fees and expenses. Plaintiff must file a Request to Waive Additional Court Fees (FW-002) and receive an order approving it by the September 25 deadline.

Legal Standard.

The court may, upon a motion or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. [Code Civ. Proc. § 436, subd. (a).] The court may also strike all or any part of any pleading that is not drawn or filed in compliance with the laws of this state, a court rule, or an order of the court. [Code Civ. Proc. § 436, subd. (b).] The grounds for a motion to strike are that the pleading contains irrelevant, false, or improper matter, or has not been drawn or filed in accordance with the laws. [Code Civ. Proc. § 436.] The grounds for moving to strike must be apparent on the face of the pleading or by way of judicial notice. [Code Civ. Proc. § 437.]

Discussion.

A. Meet-and-Confer Requirement.

The declaration of defense counsel Lauren Fazio reflects that the meet-and-confer requirement was satisfied. [Defense’s Fazio Decl. at ¶ 2; Code Civ. Proc. § 430.41.]

B. Plaintiff’s Request for Judicial Notice (“RJN”).

Plaintiff seeks judicial notice of the following documents on file with the Secretary of State relating to Veterinary Surgical Specialists, a Veterinary Corporation (“VSS”): (1) Articles of Incorporation and Statements of Information [RJN Exh. 1]; and (2) Limited Liability Company Certificate of Amendment, Articles of Organization, and Statement of Information [RJN Exh. 2] (collectively, the “RJN Documents”).

Plaintiff contends that these businesses are the same as those involved in McMahon v. Craig (2009) 176 Cal.App.4th 1502), where Gail McMahon sued Diane Craig, D.V.M.,

Tentative Ruling: Motion to Strike

Veterinary Surgical Specialists, Inc., and Advanced Veterinary Specialty Group, LLC (“AVSG”), claiming malpractice and emotional distress after her dog died under their care. Plaintiff argues that these entities are significantly different from BluePearl, as the documents indicate that the defendants in McMahon were a professional veterinary corporation and a small Limited Liability Company that is owned and operated by five veterinarians. In contrast, BluePearl is “a nationwide general corporation that is a subsidiary of the world’s largest junk food conglomerate, Mars.” [Opp. at 11.]

The characterization that the entity defendants in McMahon were Limited Liability Companies is not established in the RJN Documents. Nor does judicial notice mean that a court can take judicial notice of the truth of the documents’ contents. [People v. Woodell (1998) 17 Cal.4th 448, 455.] Beyond that, the RJN Documents are irrelevant to the SAC. Neither VSS nor AVSG are parties to this action. McMahon did not address the entity style as a factor in reaching its ruling, which disallowed extending emotional distress damages to owners of companion pets arising from veterinary malpractice because it would have unknown consequences for both the cost and availability of veterinary care. [McMahon, 176 Cal.App.4th at 1514-1515.]

Such costs would be unaffected by the form of the entity in which the professional veterinary services were provided. Therefore, Plaintiff’s RJN is DENIED as irrelevant.

C. Motion to Strike.

Defendants’ motion to strike is GRANTED as follows:

First, as detailed in its tentative ruling on Defendants’ demurrer to the SAC, this Court sustained Defendants’ demurrer to the SAC’s Sixth and Seventh Causes of Action without leave to amend. As a result, all requests in the SAC’s Prayer for Relief related to bailment and contract damages, including emotional distress, are MOOT and hereby STRICKEN on that basis. [SAC at 55:12-24.]

Second, the SAC includes no separately pled cause of action for financial elder abuse, and Plaintiff was not granted leave to add one. Adding new causes of action following the sustaining of a demurrer is improper. [Zakk v. Diesel (2019) 33 Cal.App.3d 431, 456.] Thus, the prayer for attorney’s fees under Welfare & Institutions Code section 15657.5 is STRICKEN. [SAC at 53:28, 54:9, 54:18, 54:28, and 55:11.]

Third, Plaintiff did not oppose Defendants’ motion to strike the Prayer for Relief for Restitution. [Motion at 12:4-13.] Therefore, that Prayer for Relief is STRICKEN. [SAC at 55:17-19.]

Fourth, Plaintiff did not oppose Defendants’ motion to strike the statement in the Prayer for Relief E.5, which states, in part, that “Plaintiff will seek leave to pray for noneconomic damages pursuant to CCP (sic) § 3333.2...” [SAC at 55:7-10; Motion at 12-13.] Thus, that Prayer for Relief is STRICKEN. [SAC at 55:7-10.] Consequently, on the Court’s own motion, lines 26 and 27 on page 54 of the SAC regarding respondeat superior damages are also STRICKEN because the requested relief is “pursuant to prayer E.5.” [SAC at 54:26-27.]

Tentative Ruling: Motion to Strike

Fifth, Plaintiff did not oppose Defendants’ motion to strike the Prayer for Relief seeking a determination of willful or gross negligence. [Motion at 13.] That Prayer for Relief is also STRICKEN. [SAC at 55:14-15.]

Sixth, Plaintiff again seeks damages for psychiatric treatment [SAC at 53:25-26, 54:5-7, 54:15-16, 54:24-25, 55:5-6, 55:23-24] and for lost income and diminished earning capacity [id. at 53:24, 54:5, 54:14, 54:23, 55:4, and 55:22]. Plaintiff has not alleged facts showing that Defendants owed a duty to protect Plaintiff’s psychiatric health, income, and earning capacity under Biakanja v. Irving (1958) 49 Cal.2d 647 or Rowland v. Christian (1968) 69 Cal.2d 108. As the appellate court reasoned in McMahon, 176 Cal.App.4th at 1514, “[r]egardless of how foreseeable a pet owner’s emotional distress may be in losing a beloved animal, we discern no basis in policy or reason to impose a duty on a veterinarian to avoid causing emotional distress to the owner of the animal being treated, while not imposing such a duty on a doctor to the parents of a child receiving treatment.”

Because Plaintiff provides no new facts supporting amendment, the motion is GRANTED WITHOUT LEAVE TO AMEND, and the aforementioned pages and lines cited in this paragraph are STRICKEN.

Seventh, Plaintiff requests, for all causes of action, “[e]xemplary damages against Dr. Sullenberger and BluePearl pursuant to Civil Code § 3340 where wrongful injuries to Starbur, committed willfully or by gross negligence in disregard of humanity are proven.” [SAC at 55:28-56:2.] Plaintiff points to Paragraph 52 of the SAC as the basis for section 3340’s application. [Opp. at 15-16.] However, the allegations in that paragraph do not amount to a severe deviation from the standard care or show a lack of even minimal care. [Rosencrans v.

Cover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082; Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1276-1277.] Paragraph 52 does not provide enough facts to justify applying section 3340, which penalizes wrongful injuries to animals committed intentionally or through gross negligence. The other parts of the SAC cited in the opposition—such as medical errors, inadequate monitoring, and the veterinarian’s emotional demeanor—are similarly unpersuasive. [Opp. at 16 (citing SAC at 5:13-15, 6:1-8, 6:11-12, 6:23-7:23, 8:3-5, 8:10-9:4, 12:19-27, 14:12- 15:4, and 17:20-18:24).]

Accordingly, the motion is GRANTED WITHOUT LEAVE TO AMEND because Plaintiff has not shown that such portions are capable of amendment, and page 55, line 28 through page 56, line 2, of the SAC is STRICKEN.

Conclusion.

As detailed above, Defendants’ motion to strike is GRANTED, and Plaintiff’s Request for Judicial Notice is DENIED. Defendants shall prepare the Proposed Order consistent with this Tentative Ruling and have 10 days from the date of service of the Court’s signed order to answer the SAC. The CMC is continued to September 29, 2026, at 9 a.m. in Department 14.

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