RateMyHorsePRO - horseauthority.co · defendant mark arballo's notice of motion to strike portions of plaintiffs martha torkington's and river valley ranch, llc's ... the notice of

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NOU,17:14 Pin :34,9 L,

Regan Furcolo, Esq. (SBN 162956) Ashley W. Christensen, Esq. (SBN 265171) WALSII MCKEAN FURCOLO LLP 550 West C Street, Suite 950 San Diego. CA 92101 Telephone: (619) 232-8486 Facsimile: (619) 232-2691 rfurcolo:u \\ 11111 lp.corn achristenseit U'wmfllp.com

MARTHA TORKINGTON. an individual; and RIVER VALLEY RANCI LLC, a California limited liability company;

Plaintiffs,

vs.

N IARK ARI3ALLO, an individual dba Arballo Reining I Iorses; PATRICIA HOHL, an individual dba Arballo Reining Horses; and DOES 1 through 100, inclusive,

Defendants.

d

FPL Clerk of the Superior Court

NOV 17 2014

CASE NO. 37-2014-00032892-CU-PO-CTL

JUDGE: Hon. Joan M. Lewis DEPT.: C-65

DEFENDANT MARK ARBALLO'S NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS MARTHA TORKINGTON'S AND RIVER VALLEY RANCH, LLC'S COMPLAINT

[Filed Concurrently With Points & Authorities in Support of Motion to Strike; Notice of Demurrer; Points & Authorities in Support of Demurrer; Request for Judicial Notice in Support Thereof; and [Proposed' Orders Thereon]

Date: February 27, 2015 Time: 8:30 a.m. Dept.: C-65 Judge: lion. Joan M. Lewis

COMPLAINT FILED: September 26, 2014 TRIAL DATE: TBD

Attorneys for Defendants MARK ARBALLO, an individual dba ARBALLO REINING HORSES; PATRICIA IIOI IL, an individual dba ARBALLO REINING HORSES

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR TIIE COUNTY OF SAN DIEGO - CENTRAL DIVISION


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TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

PLEASE TAKE NOTICE that on February 27, 2015 at 8:30 a.m., or as soon thereafter

as the matter may be heard, in Department C-65 of the above-entitled court, located at 330 W.

Broadway, San Diego, CA 92101, Defendant MARK ARBALLO will and hereby does move

this Court, pursuant to California Code of Civil Procedure section 436 et seq., for an order

striking certain portions of Plaintiffs MARTHA TORKINGTON and RIVER VALLEY

RANCH, LLC's complaint, on file herein, including, but not limited to:

(1) Paragraph 27 at page 6, line 21, which states: "attorney's fees";

(2) Paragraph 28 at page 6, line 25, which states: "and attorney's fees";

(3) Paragraph 33 at page 7, line 14, which states: "attorney's fees";

(4) Paragraph 34 at page 7,1ine 17, which states: "and attorney's fees";

(5) Plaintiffs' Prayer for Damages at paragraph 3 at page 9, line 21, which states:

"Attorney's fees pursuant to California Civil Code section 1021 et seq.";

(6) Paragraph 27 at page 6, line 21-22, which states: "and severe emotional

distress";

(7) Paragraph 33 at page 7, line 14, which states: "and severe emotional distress";

(8) Page 6 at line 8 which states "Including Gross Negligence, Recklessness and

Willful Misconduct";

(9) Paragraph 26 at page 6, lines 17-18 which state "grossly negligent, reckless

and/or intentional";

(10) Paragraph 27 at page 6, lines 19-20 and Paragraph 28 at page 6 lines 23-34

which state "gross negligence, recklessness and/or intentional misconduct"

(11) Paragraph 29 at page 6 lines 26-28; Paragraph 35 at page 7 lines 18-20;

Paragraph 41 at page 8 lines 4-6; Paragraph 48 at page 8 lines 18-20; and

Paragraph 54 at page 9 lines 11-13 which each state: "Defendants' actions were

grossly negligent, reckless and/or intentional, were done without regard for

humanity and caused wrongful harm to an animal. Plaintiffs are therefore

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28 WALSH MCXEAN F1JRCOLO LIP

550 WEST C STREET SUITE 950

SAN DIEGO, CALIFORNA 92101

TELEPHONE (619) 232-9496


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entitled to an award of exemplary damages against Defendants pursuant to

California Civil Code section 3340."; and

(12) Plaintiffs' Prayer for Damages at paragraph 4 at page 9, line 22, which states:

"Exemplary damages pursuant to Civil Code sections 3294 and 3340."

This motion is based upon this notice of motion, the accompanying points and

authorities, the request for judicial notice filed concurrently herewith, the notice of demurrer and

demurrer filed concurrently herewith, all pleadings and records on file herein, and upon such oral

and documentary evidence as may be presented at the hearing on this motion.

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10 DATED: November 17, 2014 WALSH MCKEAN FURCOLO LLP

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By: ( i er•

Reg. rcolo, Esq. Ashley W. Christensen, Esq. Attorneys for Defendants MARK ARBALLO, an individual dba ARBALLO REINING HORSES; PATRICIA HOHL, an individual dba ARBALLO REINING HORSES

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3 DEFENDANT MARK ARBALLO'S NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS

MARTHA TORKINGTON'S AND RIVER VALLEY RANCH, LLC'S COMPLAINT

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28 WALSH MCKEAN FURCOLOW'

550 WEST C STREET SUTE 950

SAN DIEGO, CAIJFORNIA 92101

TEIEPHONE (619)23243455


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orsePRO.co

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Regan Furcolo, Esq. (SBN 162956) Ashley W. Christensen, Esq. (SBN 265171) WALSII MCKEAN FURCOLO LLP 550 West C Street, Suite 950 San Diego, CA 92101 Telephone: (619) 232-8486 Facsimile: (619) 232-2691 rfurcolo.ii wmillp.com achristensen'ci wmillp.com

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NM 47 1.4.01+ _21

Clerk ot the, Superior Court

NOV 17 2014

Attorneys for Defendants MARK ARBALLO, an individual dba ARBALLO REINING HORSES; PATRICIA HOHL, an individual dba ARBALLO REINING HORSES

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9 SUPERIOR COURT OF THE STATE OF CALIFORNIA

10 FOR THE COUNTY OF SAN DIEGO - CENTRAL DIVISION

CASE NO. 37-2014-00032892-CU-PO-CTL


DEFENDANT MARK ARBALLO'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF ITS MOTION TO STRIKE PORTIONS OF PLAINTIFFS MARTHA TORKINGTON'S AND RIVER VALLEY RANCH, LLC'S COMPLAINT

[Filed Concurrently With Notice of Demurrer and Demurrer; Request for Judicial Notice in Support Thereof; and [Proposed] Orders Thereon]

Date: February 27. 2015 Time: 8:30 a.m. Dept.: C-65 Judge: lion. Joan M. Lewis


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12 MARTHA TORKINGTON, an individual: and RIVER VALLEY RANCH, LI,C, a California limited liability company;

ti,

MARK ARBAIIA), an individual dba Arballo Reining Horses; PATRICIA HOHL, an individual dba Arballo Reining Horses; and DOES 1 through 100, inclusive,

Defendants.

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Defendant MARK ARBALLO ("Arballo") submits the following points and authorities

in support of his motion to strike portions of Plaintiffs' complaint filed in this action.

/ / /

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DEFENDANT MARK ARBALLO'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF ITS MOTION 1'0 STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT

28 NM SH1,1 ,:;Kk All LPL:CIL LLP

I.SO WEST 0 ::TPEL I SU IC 9E,.. ,)

NA. DIEGO. CALIFORNIA ':f2101

1E1 r:PLIOIJE L9 232 9436


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I. STATEMENT OF FACTS

Plaintiffs Martha Torkington and River Valley Ranch, LLC ("RVR") bring claims

against Defendant Mark Arballo arising from the unfortunate injury to, and ultimate euthanizing

of, Ms. Torkington's horse, Bella Gunnabe Gifted ("Bella"). Plaintiffs do not allege specifically

how Bella was injured, other than that she was tied up by Defendants using a specific training

technique, left alone, and then later found injured. Nevertheless, Plaintiffs now bring claims of

negligence, negligence per se, trespass to chattels, conversion, and intentional infliction of

emotional distress against Mr. Arballo. Plaintiffs seek general and special damages, including

emotional distress, as well as attorney's fees and exemplary/punitive damages.

II. LEGAL AUTHORITY

California Code of Civil Procedure, section 436 provides, in pertinent part, that a court

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(a) Strike out any irrelevant, false, or improper matter inserted in any pleading;

(b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state....

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(Emphasis added.) Pursuant to California Code of Civil Procedure section 431.10(c), an

"immaterial allegation" means an "irrelevant matter" as that term is used in California Code of

Civil Procedure section 436. Therefore, if a matter pleaded is immaterial it is also irrelevant

under California Code of Civil Procedure section 436 and should therefore be stricken. An

immaterial allegation is:

(1) An allegation that is not essential to the statement of a claim or defense.

(2) An allegation that is neither pertinent to nor supported by an otherwise

sufficient claim or defense.

(3) A demand for judgment requesting relief not supported by the allegations of

the complaint or cross-complaint.

Cal.Civ.Proc. § 431.10 (Emphasis added)

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2 DEFENDANT MARK ARBALLO'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF

ITS MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT

28 WALSH MCKEAN FURCOLO UP


SAN DIEGO, MAGMA 92101

TELEPHONE (619) 232-6406


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In the instant case, Plaintiffs have requested relief— attorneys fees, emotional distress

arising from negligent destruction of personal property, and punitive damages — which is not

supported by the allegations of the Complaint (or California law) and which are therefore

irrelevant and improper. Accordingly, the Court should strike these requests for relief.

III PLAINTIFFS' PRAYER AND REQUESTS FOR ATTORNEY'S FEES SHOULD

BE STRICKEN BECAUSE ATTORNEY'S FEES ARE NOT SUPPORTED BY

TIIE ALLEGATIONS OR ALLOWED AS A MATTER OF LAW.

Plaintiffs' complaint includes five causes of action: 1) negligence; 2) negligence per se;

3) trespass to chattels; 4) conversion; and 5) intentional infliction of emotional distress.

Plaintiffs request attomey's fees under the negligence and negligence per se counts, and again in

their prayer for relief. However, neither these (nor any of the other causes of action alleged)

support a claim for attorneys fees.

Each party to a lawsuit is responsible for his or her own attorney's fees in the absence of

an agreement between the parties for fees or a statute specifically authorizing fees. See,

California Code of Civil Procedure § 1021 et seq.; California Code of Civil Procedure section

1033.5, sets forth explicit requirements for the award of attorney fees as costs. Attorney fees are

only awarded when authorized by 1) contract, 2) statute, or 3) case authority. C.C.P. §

1033.5(a)(10)(A),(B) & (C).

This is simply a reflection of the American Rule, whereby each party bears its own

attorney's fees. Serrano v. Stefan Merli Plastering Co., Inc. (2011) 52 Ca1.4th 1018, 1030

("California follows the American rule, under which each party to litigation must generally pay

its own attorney fees."); Cargill, Inc. v. Souza (2011) 201 Cal.App.4th 962, 966. ("Each party to

a lawsuit must pay his or her own attorney fees except where a statute or contract provides

otherwise.").

Here, Plaintiffs have not pled any of these three requirements as a basis for their request

for attorney's fees. Mr. Arballo respectfully submits that Plaintiffs are unable to provide any

authority to support a claim for attorney's fees. Accordingly Mr. Arballo respectfully requests

that this Court strike Plaintiffs' requests for attorney's fees at paragraphs 27; 28; 33; 34 and at

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28 WALSH MCKEAN FURCOLO LIP

550 W EST C STREET SUITE 950

SAN DIEGO. CALIFORNIA 92101

TELEPHONE (619)232-8436




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Plaintiffs' Prayer for Damages at paragraph 3 as set forth in the notice of motion filed herewith

and incorporated herein by this reference.

IV. EMOTIONAL DISTRESS DAMAGES ARE IMPROPER UNDER A CLAIM FOR

NEGLIGENT DESTRUCTION OF PERSONAL PROPERTY, AND THIS

REQUEST SHOULD BE STRICKEN PURSUANT TO C.C.P. 4436 (a) and (b).

Plaintiff Torkington requests emotional distress damages in her negligence and

negligence per se claims, as well as her claim for intentional infliction of emotional distress. Mr.

Arballo addresses the impropriety of the intentional infliction of emotional distress claim in the

demurrer filed concurrently herewith and incorporates those arguments by reference herein.' For

purposes of this motion, Mr. Arballo addresses the emotional distress related to the negligence

claims only.

Domestic animals are considered the personal property of their owners. (Cal. Civ. Code

§ 655, stating"Nhere may be ownership of all inanimate things which are capable of

appropriation or of manual delivery; of all domestic animals; of all obligations... .") It is well

settled under California law that a plaintiff cannot recover emotional distress damages for mere

property damage claims arising from negligence. "No California case has allowed recovery for

emotional distress arising solely out of property damage." Erlich v. Menezes (1999) 21 Ca1.4th

543, 554; citing to Cooper v. Superior Court (1984) 153 Cal.App.3d 1008, 1012. Here, Plaintiff

Torkington's claims all arise from the loss of her personal property, as evidenced by the

allegations of Ms. Torkington herself. Ms. Torkington alleges that when she purchased the

horse, "Torkington expected to generate substantial income from Bella because of her pedigree

by breeding her and selling her eggs." Complaint at 3:28-4:1. She further alleges that she has

"lost profits" as a result of Bella's death and requests damages pursuant to Civil Code section

3355, which "refers to a property's unique economic value, not its sentimental or emotional

value." Ms. TorIcington clearly viewed Bella as a piece of property, a part of a business from

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In brief, Plaintiff may not recover for intentional infliction of emotional distress where the allegedly outrageous conduct was not directed at her and did not occur in her presence. Defendants' conduct (the training method) was directed at Bella and Plaintiff admits she was not at the ranch when it occurred.



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5E0 WEST C STREET SURE 950

SAII DIEGO, CALIFCRNIA 92101

TELEPIVIE (619) 232-8408


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which she intended to profit. She cannot recover emotional distress damages for the loss of this

personal property.

Moreover, even if Bella were considered a pet, and not a money-making business for

Plaintiff, it is well settled that "a pet owner could not recover damages for emotional distress or

loss of companionship" based on negligent treatment resulting in the death of a pet. McMahon

v. Craig (2009) 176 Cal.App.4th 1502, 1506. This was upheld in Plotnik v. Meihaus (2012) 208

Cal.App.4th 1590, 1605 holding plaintiffs could not recover for emotional distress arising from

the negligent injury to their dog. So too, Plaintiff Torkington may not recover emotional distress

arising from her claims for negligence and negligence per se.

Defendant Arballo therefore respectfully requests that the Court strike these requests at

Paragraph 27 page 6, lines 21-22 and at Paragraph 33 page 7, line 14 as set forth in the notice of

motion filed concurrently herewith.

V. PLAINTIFFS' ALLEGATIONS OF GROSS NEGLIGENCE, RECKLESSNESS

AND WILLFUL CONDUCT ARE NOT DRAWN IN CONFORMITY WITH

CALIFORNIA LAW AND THEREFORE SHOULD BE STRICKEN.

As set forth above, California Code of Civil Procedure section 436 allows the Court to

strike any part of any pleading not drawn or filed in conformity with the laws of this state. Here,

Plaintiffs' negligence cause of action is captioned as "FIRST CAUSE OF ACTION Negligence

(Including Gross Negligence, Recklessness, and Willful Misconduct)." However, Plaintiffs have

not properly pled claims for anything beyond mere negligence, and the Court therefore should

strike all references to gross negligence, recklessness and willful misconduct because they are

not drawn in conformity with California law and are therefore irrelevant and immaterial.

While pleading gross negligence requires the same allegations of duty, breach, causation

and damages as a negligence claim, to set forth a claim for "gross negligence" the plaintiff must

also allege extreme conduct on the part of the defendant. Rosencrans v. Dover Images, Ltd.

(2011) 192 Cal.App.4th 1072, 1082. Here, Plaintiffs have failed to allege any extreme conduct

on the part of Mr. Arballo. Plaintiffs simply allege that Defendants' actions "were negligent,

grossly negligent, reckless and/or intentional" without anything further. Plaintiffs have not

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28 WALSH MCXEM1FURCOtOLLP

55)W EST C STREET WM95)

SAN DIEGO, CALIFORNIA 92101

TELEPHONE (819)2324496




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drawn their pleadings in conformity with the requirements of California law and should be

stricken pursuant to California Code of Civil Procedure section 436(b). Also, their attempt to

characterize their negligence claim as one for "gross negligence" is irrelevant and improper

where they have not sufficiently pled a gross negligence claim; and therefore should be stricken

pursuant to California Code of Civil Procedure section 436(a) as well.

Similarly, Plaintiffs do not allege any facts constituting reckless conduct, other than

simply sprinkling the word "reckless" throughout their complaint. "Recklessness" refers to a

"subjective state of culpability greater than simple negligence, which has been described as a

'deliberate disregard' of the 'high degree of probability' that an injury will occur. Delaney v.

Baker (1999) 20 Ca1.4th 23, 31. Indeed, unlike negligence, recklessness "involves more than

'inadvertence, incompetence, unskillfulness, or a failure to take precautions' but rather rises to

the level of a 'conscious choice of a course of action ... with knowledge of the serious danger to

others involved in it.' Id. at 31-32. Again, no such allegations supporting a claim of

recklessness are made in Plaintiffs' complaint.

Moreover, when pleading willful misconduct, the burden of pleading is even higher, and

"[t]he act or omission must be even more specifically described in order to raise it to the level of

willful misconduct." Berkley v. Dowds (2007) 152 Cal.App.4th 518, 528 (affirming trial court's

ruling sustaining a demurrer to complaint for "willful conduct" without leave to amend.) No

claim of willful misconduct can be stated without alleging the specific act or omission that

caused the injury plus three additional elements which "'raise a negligent act to the level of

wilful misconduct: (1) actual or constructive knowledge of the peril to be apprehended, (2) actual

or constructive knowledge that injury is a probable, as opposed to a possible, result of the

danger, and (3) conscious failure to act to avoid the peril.' Id citing to Simmons v. Southern

Pac. Transportation Co. (1976) 62 Cal.App.3d 341, 360. Plaintiffs have not alleged any of these

three additional elements.

In sum, Plaintiffs have not drawn their complaint in conformity with California law to allege

claims for gross negligence, recklessness or willful misconduct, and their references to or

allegations of gross negligence, recklessness and willful misconduct are therefore irrelevant and WALSH MCKEAN FURCOLOLLP


SAN DIE GD, CALIFORNIA 92101

TELEPHONE (619)232-8496




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improper. Mr. Arballo therefore respectfully requests that any and all references to gross

negligence, recklessness and willful misconduct as set forth in the notice of motion filed

concurrently herewith be stricken pursuant to California Civil Code section 436 (a) and (b).

VI. PLAINTIFFS' CLAIMS FOR PUNITIVE DAMAGES PURSUANT TO EITHER

CIVIL CODE SECTION 3340 OR 3294 ARE UNSUPPORTED BY THE

ALLEGATIONS AND CALIFORNIA LAW AND SHOULD BE STRICKEN.

Plaintiffs' complaint contains multiple references to and requests for punitive damages

pursuant to Civil Code section 3340. In their prayer for relief, they request punitive damages

pursuant to both Civil Code section 3340 and, for the first time, pursuant to Civil Code section

3294 as well. However, the facts of the complaint do not contain any specific allegations which

would warrant exemplary damages under either of these sections, and the request therefore

should be stricken in its entirety.

A. PLAINTIFFS' PRAYER FOR PUNITIVE DAMAGES PURSUANT TO CIVIL

CODE SECTION 3340 SHOULD BE STRICKEN BECAUSE PLAINTIFFS'

HAVE NOT ALLEGED ANY SPECIFIC FACTS ESTABLISHING THAT

DEFENDANTS' ACTS WERE WILLFUL OR GROSSLY NEGLIGENT.

California courts have long disfavored the imposition of punitive damages. Dyna-Med,

Inc. v. Fair Employment & Housing Commission (1987) 43 Ca1.3d 1379, 1391-1392. Indeed,

Civil Code section 3294, which is the usual basis alleged for punitive damages, authorizes

punitive damages only upon a showing by "clear and convincing evidence", establishing a higher

burden of proof for punitive damages and codifying "the universally recognized principle that

" [t]he law does not favor punitive damages and they should be granted with the greatest

caution.'" Id. at 1391-1392 citing Beck v. State Farm Mutual Automobile Insurance Company

(1976) 54 Cal.App.3d 347, 355.

Civil Code section 3340 provides for the imposition of punitive damages only where

injury to an animal has been committed "willfully or by gross negligence" by the defendant. As

set forth above, Plaintiffs have not alleged any specific facts sufficient to support that

Defendants' conduct was willful because they have not alleged any of the three additional

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28 WALSH MCKEAN FIJRCOLO LIP

5E0 WEST C STREET SINE 950


TELEPHONE (619)23244496




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elements which raise a negligent act to the level of wilful misconduct. Berkley v. Dowds, supra,

152 Cal.App.4th at 528. Accordingly, their request for punitive damages is not proper and must

be stricken. Similarly, a claim for "gross negligence" requires that the plaintiff must "allege

extreme conduct on the part of the defendant." Rosencrans v. Dover Images, Ltd., supra, 192

Cal.App.4th at 1082. Additionally, as set forth above, Plaintiffs have not alleged any facts to

support that Defendants were "grossly" negligent because they have not established how using a

lcnown horse training technique constituted extreme misconduct. Plaintiffs' cannot recover

punitive damages arising from Civil Code section 3340 where they have failed to allege any

specific facts supporting the heightened degree of misconduct required to justify such an award.

B. PLAINTIFFS' PRAYER FOR PUNITIVE DAMAGES PURSUANT TO CIVIL

CODE SECTION 3294 SHOULD BE STRICKEN BECAUSE PLAINTIFFS

DON'T EVEN ALLEGE THAT DEFENDANTS ACTED WITH MALICE

OPPRESSION OR FRAUD.

As set forth above, under Civil Code section 3294, punitive damages may be awarded

only "where it is proven by clear and convincing evidence that the defendant has been guilty of

oppression, fraud, or malice...." As defined by the Code, "Malice" means conduct which is

intended by the defendant to cause injury to the plaintiff or despicable conduct carried with a

willful and conscious disregard of the rights or safety of others. "Oppression" means despicable

conduct that subjects a person to cruel and unjust hardship; while "fraud" means an intentional

misrepresentation, deceit, or concealment of a material fact.

Under the statute, a plaintiff is entitled to seek punitive damages provided malice, fraud, or

oppression have been properly pled. Davis v. Local Union No. 11, Internat. etc. of Elec. Workers

(1971) 16 Cal.App.3d 686, 697-698. Specific factual allegations supporting the conclusion that the

defendant acted with oppression, fraud or malice facts must be alleged. G.D. Searle & Co. v.

Superior Court (1975) 49 Cal.App.3d 22, 29. Conclusory characterizations of a defendant's

conduct, or, in this case — no allegations of malice, oppression or fraud — are insufficient to state a

cause of action for the recovery of punitive damages pursuant to Civil Code section 3294.

Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 869. Mere allegations that the defendant engaged WALSH LCKEAN FURCOLO LIP



TELEPHONE (619) 232-5465

DEFENDANT MARK ARBALLO'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF ITS MOTION TO STRIKE PORTIONS OF PLAINTIFF'S COMPLAINT


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. . .

in conduct "intentionally, willfully, fraudulently and with wanton, reckless disregard" of the

consequences is insufficient to support a demand for punitive damages. Id. at 872. Terms such as

"malice," "oppression" and "fraud" themselves, however, are conclusory. Blegen v. Superior Court

(1981) 125 Cal.App.3d 959, 963.

Where a complaint is devoid of specific factual assertions supporting a conclusion that the

defendant acted with oppression, fraud or malice, the demand for punitive damages may be

stricken. Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042. Such is the case in

Plaintiffs complaint. Mr. Arballo's motion to strike Plaintiffs' request for punitive damages

pursuant to Civil Code section 3294 therefore should be granted.

VII. CONCLUSION

Based on the foregoing, Mr. Arballo respectfully requests that the Court grant his motion

to strike and strike Plaintiffs' requests for attomey's fees; emotional distress damages on their

negligence claims; allegations of gross negligence, recklessness and willful conduct; and

requests for punitive and exemplary damages in the Complaint and prayer for relief, as set forth

in Mr. Arballo's notice of motion, without leave to amend.

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17 DATED: November 17, 2014 WALSH MCKEAN FURCOLO LLP

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By: Reg re urcolo, Esq. Ashley W. Christensen, Esq. Attorneys for Defendants MARK ARBALLO, an individual dba ARBALLO REINING HORSES; PATRICIA HOHL, an individual dba ARBALLO REINING HORSES

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550 INESTC STREET SUITE950

SAN DIEGO. CALIFORNIA 92101

TEIPHONE (€19) 2326186


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017 '14 ;Iry

Regan Furcolo, Esq. (SBN 162956) Ashley W. Christensen, Esq. (SBN 265171) WALSII MCKEAN FURCOLO LLP 550 West C Street, Suite 950 San Diego. CA 92101 Telephone: (619) 232-8486 Facsimile: (619) 232-2691 rfurcolo.ti.wrn11 lp.com achristensenkiwmfllp.coin

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Cittrk-of the Superihr'Court

NOV 7 2014

Attorneys for Defendants MARK ARBALLO, an individual dba ARBALLO REINING HORSES; PATRICIA HOHL, an individual dba ARBALLO REINING HORSES

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9 SUPERIOR COURT OF THE STATE OF CALIFORNIA

10 FOR THE COUNTY OF SAN DIEGO - CENTRAL DIVISION

CASE NO. 37-2014-00032892-CU-PO-CTL


DEFENDANT MARK ARBALLO'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF HIS DEMURRER AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS MARTIIA TORKINGTON'S AND RIVER VALLEY RANCH LLC'S COMPLAINT

[Filed Concurrently With Notice of Demurrer and Demurrer; Notice of Motion and Motion to Strike; and [Proposed] Orders Thereon]

Date: February 27, 2015 Time: 8:30 a.m. Dept.: C-65 Judge: Hon. Joan M. Lewis


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MARTHA TORKINGTON, an individual; and RIVER VALLEY RANCH, LLC, a California limited liability company:

Plaintiffs,

vs.

MARK ARBALLO, an individual dba Arballo Reining Horses; PATRICIA ROHL. an individual dba Arballo Reining Horses: and DOES 1 through 100, inclusive,

Defendants.

DEFENDANT MARK ARBALLO'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF HIS DEMURRER AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS COMPLAINT

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28 ./1ALS4 MKAN FUCCI 0 LLP

550 WI-SF C 5166E SITE 650

SAN DIEGO, 0.AL Ir0 ,:iN A K1C1

TELEPI10 E 16(9) 232-8186


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TO THE HONORABLE JOAN M. LEWIS OF THE SAN DIEGO COUNTY

SUPERIOR COURT:

Pursuant to Evidence Code sections 452 and 453, Defendant MARK ARBAI,I,0 hereby

requests that the Court take judicial notice of the following:

1. Complaint for Negligence, Negligence Per Se, Trespass to Chattels, Conversion

and Intentional Infliction of Emotional Distress in the matter of Martha Torkington, et al. v.

.11ark xlrhallo, et al.; San Diego Superior Court Case No. 37-2014-00032892-CU-PO-CTL; tiled

on September 26, 2014.

DATED: November 17, 2014 WALSI I MCKEAN FURCOLO I,I,P

By: Ad*/ Reg.. urcolo, Esq. Ashley W. Christensen, Esq. Attorneys for Defendants MARK ARBALLO, an individual dba ARBALLO REINING HORSES; PATRICIA 11011L, an individual dba ARBALLO REINING HORSES

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DEFENDANT MARK ARBALLO'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF HIS DEMURRER AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS COMPLAINT

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28 WALSH NICKCA% P.,ROOLD,

550 WES'0 STREET SLEF 90

SOS 09 CO. CA11:-ORNIA 92101

TFL FP/1011E (519) 232 8486


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1‘ EXHIBIT A


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F !LEO f;t1,11t.

u . •

Brian M. Hohn, Esq. (SBN: 255691) Natalie B. Holm, Esq. (SBN: 259457) HOLM LAW GROUP, PC 4370 La Jolla Village Drive, Suite 400 San Diego, California 92122 p. 858.707.5858 f. 888.483.3323 e. [email protected]

Attorneys for Plaintiffs

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CIA

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN DIEGO — CENTRAL DIVISION

MARTHA TORICINGTON, an individual; and Case No.: 37-2014-00032892-CUPOCIL

RIVER VALLEY RANCH, LLC, a California ) limited liability company; COMPLAINT FOR DAMAGES:

Plaintiffs, 2) Negligence Per Sc; 1) Negligence;

3) Trespass to Chattels; VS. 4) Conversion; and

5) Intentional Infliction of Emotional MARK ARBALLO, an individual dba Arballo Distress. Reining Horses; PATRICE HOHL, an

individual dba Arballo Reining Horses; and DOES 1 through 100, inclusive,

(IMAGED FILE)

Defendants. Unlimited Civil Action

Plaintiffs Martha Torkington ("Torkington") and River Valley Ranch, LLC ("River Valley

Ranch") (collectively, "Plaintiffs") hereby allege as follows:

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COMPLAINT FOR DAMAGES


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PARTIES

1. Torkington is and, at all times relevant herein, was an individual residing in the State of

California, County of San Diego.

2. River Valley Ranch is a California limited liability company that, at all times relevant

herein, conducted business in the State of California, County of San Diego. Torkington is a managing

member River Valley Ranch.

3. Defendant Mark Arballo ("Arballo") is an individual and was, at all relevant times

herein, residing in the State of California, County of San Diego. Plaintiffs are informed and believe and

allege thereon that, after the happenings discussed below, Arballo moved away from San Diego County

and now resides in the State of North Carolina, County of Nash.

4. Defendant Patrice Hohl ("Hohr) was, at all relevant times herein, an individual residing

in the State of California, County of San Diego. Plaintiffs are informed and believe and allege thereon

that, after the happenings discussed below, Hohl left San Diego County and now resides in the State of

North Carolina, County of Nash. Plaintiffs are further informed and believe that defendants Hohl and

Arballo are romantically involved.

5. Plaintiffs are informed and believe and thereon allege that Arballo Reining Horses is a

foreign business entity, an unregistered fictitious business name, or a general partnership used by

Arballo and Hohl to operate their joint horse training business.

6. Plaintiffs are ignorant of the true names and capacities of the Defendants sued herein as

Does Ito 100, inclusive, and therefore sue these Defendants by such fictitious names. Plaintiffs will

amend this complaint to allege their true names and capacities when ascertained. Plaintiffs allege that

fictitiously named DOES 1 to 100 authorized, participated in, consented to, and otherwise ratified

Defendants' (including each others') actions and inactions herein alleged.

7. Defendants were agents, servants, representatives, partners, joint venturers, affiliates,

parents, subsidiaries, and/or employees of each other in the acts and/or omissions herein alleged.

Defendants were acting within the course and scope of their authority as such agents, servants,

representatives, partners, joint venturers, alter-egos, affiliates, parents, subsidiaries, and/or employees

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with permission and consent of each other. Particularly, Hohl and Arballo were acting on behalf of

themselves, each other, and the named entity defendants at all times relevant to this complaint.

S. At all times mentioned herein, each of the Defendants acted as alter ego of the remaining

defendants and acted within the course and scope of such alter ego relationship, with the permission,

consent, and ratification of the other defendants. Recognition of the privilege of separate corporate

existences would promote injustice because Defendants have commingled their assets with one another,

diverted assets to and from one another, and created such a unity of ownership that separate identities

among Defendants have ceased. The corporate entities are controlled by the individual defendants and

are mere alter egos instrumentalities of those individuals.

JURISDICTION AND VENUE

9. This court has jurisdiction over the Defendants since their actions giving rise to the

claims below occurred in the State of California, County of San Diego. Venue is proper because the

actions giving rise to the claims herein transpired within ZIP code 92154.

COMMON FACTUAL ALLEGATIONS

10. River Valley Ranch operates a ranch in San Diego County that provides a variety of

equestrian services. As part of its ranching business, River Valley Ranch contracts with several horse

trainers who are permitted to use and enjoy River Valley Ranch's premises to conduct their training

businesses.

11. Around February 2011, River Valley Ranch entered into an agreement with Defendants

allowing Defendants to operate their business, Arballo Reining Horses, on River Valley Ranch's

premises. The agreement is memorialized in several ernsils. In addition, Defendants were given the

right use and enjoy a residence on the ranch. Instead of paying monthly rent, Defendants agreed to train

Plaintiffs' horses that were stabled at the ranch, including TorIcington's prize horse, Bella Gunnabe

Gifted (hereafter "Bella").

12. Bella came from a highly sought after bloodline. Bella's sire was Colonel's Smoking

Gun, who was a $5 Million sire and was known worldwide simply as "Gunner." Gunner is an inductee

into the National Reining Horse Association Hall of Fame. When she purchased Bella as a foal,

Torkington expected to generate substantial income from Bella because of her pedigree by breeding

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Bella and selling her eggs. In about July 2013, Gunner died prematurely leaving Bella as one of a few

horses with Gunner's bloodline, which further increased Bella's value and the value of her offspring and

eggs. Like her sire Gunner, Bella became very successful in horse reining competitions.

13. In about April 2013, Torkington heard rumors from other competitors that Defendants

were using abusive training techniques on the horses they trained at River Valley Ranch. Upon hearing

these rumors, Torlcington personally inspected and photographed each horse at River Valley Ranch for

any injuries or signs of abuse Torlcington found no signs of abuse.

14. In July 2013, while Plaintiffs were competing in a reining competition in El Cajon,

California, San Diego County, Department of Animal Services ("Animal Services") Control Officer,

Tiffany Mushet, served Defendants with notice of a complaint that had been anonymously filed with

Animal Services alleging Defendants had abused horses they trained at River Valley Ranch. Animal

Control Officer Mushet inspected the horses at the competition and found no signs of abuse. Two days

later, Plaintiffs hired an independent veterinarian to inspect all of the horses at River Valley Ranch for

any signs of abuse to investigate the anonymous complaint. The results were negative.

15. Around this same time, Torkington met with Arballo and he denied that he or Hail had

abused any horses at River Valley Ranch. Torkington advised Arballo that she may have to terminate

Defendants' contract at River Valley Ranch because, whether the negative attention was warranted or

not, it was hurting River Valley Ranch's business. From this point on, Defendants' attitudes toward

Torkington became very hostile and resentful.

16. The animosity grew even, more in August 2013 when Defendants' dog bit Bella and

caused several open gashes on Bella's nose. After a heated conversation, Toncington told Defendants to

never let their dog near any of Plaintiffs' horses again.

17. In early September 2013, Torkington discovered a bump on Bella's head after a training

session with Defendants. When confronted, Defendants denied having any knowledge of how the bump

occurred. After Torkington continued to press the issue, Defendants finally admitted that they had Bella

"bitted up" in the round pen when she struck her head. "Bitting up" a horse is a controversial and

potentially dangerous technique that involves putting a bit in the horse's mouth and tying the reins to the

horse's saddle in such a manner that the horse's neck is permanently bent back towards its rear.

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18. Torkington was furious when she learned that Defendants had used the technique on

Bella because Torkington had previously told Defendants she was not comfortable with the

controversial technique being use on any horses at the ranch, including Plaintiffs' horses. Torldngton

was also furious because Defendants had initially tried to cover up Bella's injury, and because she had

learned that Defendants had allowed their dog to be unleashed around Bella after it had already bit

Bella's nose. Torkington told Defendants that they were never to touch any of her horses again unless

she was present. Torlcington then set up scheduled times for training sessions with Bella when she knew

she would be available to supervise Defendants. This confrontation increased Defendants' animosity

toward Plaintiffs.

19. After the incident in early September 2013, Plaintiffs began taking the steps necessary to

terminate Defendants' contracts and remove Defendants from the residence on the property.

20. On September 21, 2013, before Plaintiffs had the chance to effectively terminate

Defendants' contract and evict them from the residence on the ranch property, Torkington left the ranch

property for a short period of time to attend to business matters. While Torldngton was gone,

Defendants removed Bella from her stable without Torldngton's knowledge or consent Defendants

then bitted up Bella with a shank bit/ and inexplicably left Bella unsupervised inside a round pen in this

contorted position.

21. Shortly thereafter, Bella was found lying on the ground with her reins still tied to her

saddle, barely conscious, nose severely maimed, and blood coming out of her ear. Witnesses said that

they found Arballo whipping Bella while she lay immobile on the ground when they arrived at the

scene. Another witness called Torldngton on her cell phone and relayed the news, which caused

Torkington to drop what she was doing rash back to the ranch. Another trainer at the ranch called a

veterinarian to come to Bella's aid. The efforts to revive Bella were unsuccessful and the veterinarian

was forced to euthanize Bella to prevent any further suffering.

22. News of Bella's death was aired on the local news and detailed in several equestrian

publications and quickly spread throughout the horse community in Southern California, and across the

A shank bit is a type of bit that uses leverage to increase the pressure of the bit in a horse's mouth. When using a shank bit, one pound of pressure on the reins may exert substantially more pounds of pressure on the bit in the horse's mouth.

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United States. As a direct result of Defendants' actions, almost every one of the tenants removed his or

her horse from River Valley Ranch and stopped paying monthly dues. This completely decimated River

Valley Ranch's business, which is now close to bankruptcy despite its best efforts to stay afloat

23. On September 8, 2014, San Diego's District Attorney filed felony animal abuse charges

against Arballo under California Penal Code section 597 for his actions that led to Bella's death. See,

San Diego Superior Court Case No CS274467.

FIRST CAUSE OF ACTION

Negligence (Including Gross Negligence, Recklessness, and Willful Misconduct)

(Plaintiffs Against Defendants and Does 1 - 100)

24. Plaintiffs hereby incorporate the allegations set forth above in paragraphs 1 through 23 as

though they are fully set forth herein.

25. Defendants owed Plaintiffs a duty to act as reasonable trainers would under the

circumstances when handling Bella. As independent contractors working on behalf of River Valley

Ranch, Defendants also owed a general duty to use reasonable care to prevent damage to persons whom

Defendants may reasonably expect to be affected by their work.

26. The actions relating to Defendants' abusive training practices while operating at River

Valley Ranch and Defendants' actions that ultimately killed Bella were negligent, grossly negligent,

reckless and/or intentional, and amount to breaches of the duties that Defendants owed to Plaintiffs.

27. As a direct and proximate result of Defendants' negligence, gross negligence,

recklessness and/or intentional misconduct, Torldngton has suffered serious injury, including, but not

limited to, general &ranges, special damages, loss of profits, attorney's fees, and severe emotional

distress.

28. As a direct and proximate result of Defendants' negligence, gross negligence,

recklessness and/or intentional misconduct, River Valley Ranch suffered serious injuries, including, but

not limited to, general damages, special damages, loss of profits, and attorney's fees.

29. Defendants' actions were grossly negligent, reeldess and/or intentional, were done

without regard for hurannity, and caused wrongful harm to an animal. Plaintiffs are therefore entitled to

an award of exemplary damages against Defendants pursuant to California Civil Code section 3340.

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SECOND CAUSE OF ACTION

Negligence Per Sc

(Plaintiffs Against Defendants and Does 1 - 100)

30. Plaintiffs hereby incorporate The allegations set forth above in paragraphs 1 through 29 as

Though they are fully set forth herein.

31. California Penal Code section 597 provides that "every person who maliciously and

intentionally maims, mutilates, tortures, or wounds a living animal, or maliciously and intentionally kills

an animal, is guilty of a crime punishable pursuant to subdivision (d)."

32. Bella's injury and death in this case was an occurrence the nature of which California

Penal Code section 597 was designed to prevent and Plaintiffs and Bella are within the class of persons

whom such statutes and regulations are intended to protect.

33. As a direct and proximate result of Defendants' violation of California Penal Code

section 597, Torkington has suffered serious injury, including, but not limited to, general damages,

special damages, loss of profits, attorney' s fees, and severe emotional distress.

34. As a direct and proximate result of Defendants' violation of California Penal Code

Section 597, River Valley Ranch suffered serious injuries, including, but not limited to, general

damages, special damages, loss of profits, and attorney' s fees.

35. Defendants' actions were grossly negligent, reckless and/or intentional, were done

without regard for humanity, and caused wrongful harm to an animal. Plaintiffs are therefore entitled to


THIRD CAUSE OF ACTION

Trespass to Chattels

(Torkington Against Defendants and Does 1 - 100)



37. At all relevant times mentioned herein, Torldngton owned Bella.

38. Defendants intentionally interfered with Torldngton's use and possession of; and caused

damage to, Bella.

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39. Torkington did not consent to Defendants' interference or damage to Bella.

40. Defendants' actions were a substantial factor in causing harm to Torkington, including

general damages, special damages, loss of profits, and severe emotional distress.

41. Defendants' actions were grossly negligent, reckless, and/or intentional, were done

without regard for humanity, and caused wrongful harm to an animal. Plaintiffs are therefore entitled to


FOURTH CAUSE OF ACTION

Conversion

(Torkington Against Defendants and Does 1 - 100')



43. At all relevant times mentioned herein, Torlcington owned Bella.

44. Defendants intentionally and substantially interfered with Torlcington's property by

taking possession of and killing Bella.

45. Torkington did not consent to Defendants' actions.

46. As a result of Defendants' actions, Torlcington hns suffered harm.

47. Defendants' conduct was a substantial factor in causing Torlcington's harm.

48. Defendants' actions were grossly negligent and/or intentional, were done without regard

for humanity, and caused wrongful harm to an animal. Plaintiffs are therefore entitled to an award of

exemplary damages against Defendants pursuant to California Civil Code section 3340.

FIFTH CAUSE OF ACTION

Intentional Infliction of Emotional Distress

frorldngton Against Defendants and Does 1 -100)



50. Due to the rising contentiousness between themselves and Torkington, and because of

Torlcington's threats of terminating Defendants' contract, Defendants intended to cause harm to

Torldngton's horse by bitting up Bella and leaving her alone in a round pen. Defendants knew that


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doing such would cause Bella to suffer serious injury or death, as Bella had previously hit her head

during a fall the last time Defendants had place Bella in this restrained position.

51. Defendants took these actions with the intention of causing Torkingt, on to suffer severe

emotional distress or with reckless disregard of the probability that Torlcington would suffer emotional

distress. Defendants were also aware that Torkington had recently suffered a traumatic brain injury that

caused Torlcington to be more susceptible to emotional harm.

52. Torkington suffered severe emotional distress and had to seek counseling to cope with

the loss of Bella.

53. Defendants' actions were a substantial factor in causing Plaintiffs' severe emotional

distress.

54. Defendants' actions were grossly negligent, reckless and/or intentional, were done

without regard for humanity, and caused wrongful harm to an animnl. Plaintiffs are therefore entitled to

an award of exemplary damages againct Defendants pursuant to California Civil Code section 3340.

PRAYER FOR DAMAGES

Wherefore, Plaintiffs respectfully pray for judgment against Defendants containing the following

relief:

1. General damages in an amount that exceeds $25,000,

2. Special damages in an amount that exceeds $25,000, including, but not limited to, lost

profits, veterinary expenses, and damage to personal property having unique value pursuant to

California Civil Code section 3355;

3. Attorney's fees pursuant to California Civil Code section 1021 et seq.;

4. Exemplary damages pursuant to Civil Code sections 3294 and 3340; and

5. All relief that this Court deems necessary and proper.

RESPECTFULLY SUBM111.ED: HOLM LAW GROUP, PC

Dated: September 1-S 2014

By:

Brian M. olm, Esq. Natalie B. Holm, Esq. Attorneys for Plaintiffs 9


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FOR COURT USE ONLY

NOV17'14 PH 3:1

Al I ORNLY OR PARTY WITL.OLT ATTORNEY ( Name and TELEPHONE NO

Regan Furcolo, Esq. (619) 232-8486 Ashley W. Christensen, Esq. WALSH MCKEAN FURCOLO LLP 550 West C Street, Suite 950 San Diego, CA 92101 ATTORNEY FOR: Defendants MARK ARBALLO, an individual dba ARBALLO REINING HORSES; PATRICIA HOHL, an individual dba ARBALLO REINING HORSES

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO STREET ADDRESS MAILING ADDRESS:

CITY AND ZIP CODE:

BRANCH NAME:

PLAINTIFF:

330 West Broadway

San Diego, CA 92101 Central MARTHA TORKINGTON

Clem of the Suoer;or Courz

Nov 1 -I 2014

DEFENDANT: MARK ARBALLO

PROOF OF SERVICE Case Number:

C.C.P. 1013a and 2015.5

37-2014-00032892-CU-PO-CTL

I, the undersigned, declare that: I am over the age of 18 years and not a party to the case; I am employed in. or am a resident of. the County of San

Diego, California, where the mailing occurs; and my business address is 550 West C Street, Suite 950, San Diego, CA 92101, telephone no, (619)

232-8486. facsimile no. (619) 232-2691. I further declare that I am readily familiar with the business practice for collection and processing of

correspondence, pleadings and discovery for Electronic Transfer through One Legal. LLC, mailing via U.S. Mail, UPS Overnight Mail, Facsimile

and/or Personal Service pursuant to which practice I served the following original document(s) or true copies thereof, with all exhibits:

1. DEFENDANT MARK ARBALLO'S NOTICE OF MOTION TO STRIKE PORTIONS OF PLAINTIFFS MARTHA TORKINGTON'S

AND RIVER VALLEY RANCH, LLC'S COMPLAINT

2. DEFENDANT MARK ARBALLO'S MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF ITS MOTION TO STRIKE

PORTIONS OF PLAINTIFFS MARTHA TORKINGTON'S AND RIVER VALLEY RANCH, LLC'S COMPLAINT

3. [PROPOSED] ORDER ON DEFENDANT MARK ARBALLO'S MOTION TO STRIKE PORTIONS OF PLAINTIFFS MARTHA

TORKINGTON'S AND RIVER VALLEY RANCH, LLC'S COMPLAINT

4. DEFENDANT MARK ARBALLOS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS MARTHA TORKINGTON'S

AND RIVER VALLEY RANCH, LLC'S COMPLAINT

5. [PROPOSED] ORDER ON DEFENDANT MARK ARBALLO'S DEMURRER TO PLAINTIFFS MARTHA TORKINGTON'S AND

RIVER VALLEY RANCH, LLC'S COMPLAINT

6. REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF HIS DEMURRER AND MOTION TO STRIKE PORTIONS OF

PLAINTIFFS MARTHA TORKINGTON'S AND RIVER VALLEY RANCH, LLC'S COMPLAINT

by one or more of the following methods of service for each addressee respectively as follows:

PLAINTIFFS COUNSEL Brian M. Holm, Esq.

Natalie B. Holm. Esq. HOLM LAW GROUP, PC

12636 High Bluff Drive, Suite 400 San Diego, CA 92130

Tel: (858) 707-5858; Fax: (888) 483-3323 Email Address: e.brianRholmlawqroup.com

[ X J By U.S. Mail. I sealed such document(s) in envelopes, and with the correct postage thereon fully prepaid, either deposited each in the

United States Postal Service or placed each for collection and mailing on November 17, 2014. at San Diego, California, following ordinary business

practices.

I declare under penalty of perjury under the laws of the State of California that the pegoing is true and correct.

Executed: November 17, 2014

LORRAINE RAMSEY


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RateMyHorsePRO - horseauthority.co · defendant mark arballo's notice of motion to strike portions of plaintiffs martha torkington's and river valley ranch, llc's ... the notice of