RateMyHorsePRO.com I',40V 17:14* P Clerk of the Superior Court NOV

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1 I',0V :* 0.MASH MC'F:Arl rurcol.r. [ [ WE Sr C Sr-i I ' sari (>.) CAI -f...-a Al' Regan Furcolo, Esq. (SBN ) Ashley W. Christensen, Esq. (SBN ) WALSH MCKEAN FURCOLO LLP 0 West C Street, Suite 0 San Diego, CA Telephone: () - Facsimile: () - rfurcolora)wmp.com achristensenrcii WM tlip.com P Clerk of the Superior Court NOV. 0 Attorneys for Defendants MARK ARBALLO, an individual dba ARBALLO REINING HORSES; PATRICIA HOHL, an individual dba ARBALLO REINING HORSES SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO - CENTRAL DIVISION MARTIIA TORKINGTON, an individual; and RIVER VALLEY RANCH, LLC, a California limited liability company; Plaintiffs, Vs. MARK ARBALLO, an individual dba Arballo Reining Horses: PATRICIA HOHI an individual dba Arballo Reining Horses; and DOES through 0, inclusive, Defendants. CASE NO CU-PO-CTL JUDGE: Hon. Joan M. Lewis DEPT.: C- DEFENDANT MARK ARBALLO'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS MARTHA TORKINGTON'S AND RIVER VALLEY RANCH, LLC'S COMPLAINT [Filed Concurrently with Notice of Motion and Motion to Strike; Request for Judicial Notice in Support Thereof; and [Proposed] Orders Thereon] Date: February, 0 Time: :0 a.m. Dept.: C- Judge: Hon. Joan M. Lewis COMPLAINT FILED: September. 0 FRA, DATE: TBD TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on February, 0 at :0 a.m., or as soon thereafter as the matter may be heard, in Department C- of the above-entitled court, located at 0 W. NITA DANT MARK ARBALLO'S NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFFS MARTHA

2 Broadway, San Diego, CA, the Honorable Joan M. Lewis presiding, the court will hear the demurrer of Defendant MARK ARBALLO. The demurrer is based upon this notice, the demurrer, the attached memorandum of points and authorities, the request for judicial notice, and the pleadings, papers and records on file with the Court herein, and upon such oral and documentary evidence as may be presented at the hearing of this demurrer. DATED: November, 0 WALSH MCKEAN FURCOLO LLP 0 By: Ren 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 WALSH MCKEAN FLIRCOLOCIP 0 WE SIC MEET SUITE 0 SAN DIEGO, CALIFORNIA TELEPHONE () - TORICINGTON'S AND RIVER VALLEY RANCH, LLC'S COMPLAINT

3 DEMURRER TO PLAINTIFFS' COMPLAINT Defendant MARK ARBALLO ("ARBALLO") hereby demurs to the complaint of Plaintiff MARTHA TORKINGTON and RIVER VALLEY RANCH, LLC (hereinafter "Plaintiffs") on the grounds that:. Plaintiffs' "negligence per se" cause of action against Defendant ARBALLO is fatally uncertain pursuant to California Code of Civil Procedure 0.(f).. Plaintiffs' complaint does not state facts sufficient to constitute a cause of action for "negligence per se" against Defendant ARBALLO pursuant to California Code of Civil Procedure 0.(e).. Plaintiffs' complaint does not state facts sufficient to constitute a cause of action for "Gross Negligence, Recklessness and Willful Misconduct" against Defendant ARBALLO pursuant to California Code of Civil Procedure 0.(e).. Plaintiffs' trespass to chattels cause of action against Defendant ARBALLO is fatally uncertain pursuant to California Code of Civil Procedure 0.(0.. Plaintiffs' complaint does not state facts sufficient to constitute a cause of action for intentional infliction of emotional distress against Defendant ARBALLO pursuant to California Code of Civil Procedure 0.(e). DATED: Ndvember, 0 WALSH MCKEAN FURCOLO LLP 0 By: difra Reb"urcolo, Ir Esq. As ley W. Christensen, Esq. Attorneys for Defendants MARK ARBALLO, an individual dba ARBALLO REINING HORSES; PATRICIA HOHL, an individual dba ARBALLO REINING HORSES WALSH MCKEAN FURCOLO LIP 0 WE STC STREET SUITE 0 SPA DIEGO, CALIFORMA TELEPHONE ()

4 0 WALSH MCKEAN FURCOLO LLP 0 WEST C STREET SUITE 0 SAN DIEGO. CALIFORNV, TELEPHONE ()- I. INTRODUCTION MEMORANDUM OF POINTS AND AUTHORITIES 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. Torlcington'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 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. Mr. Arballo demurs to Plaintiffs' allegations of negligence per se pursuant to California Code of Civil Procedure section 0.(e) and (f) on the grounds that Plaintiffs fail to state a cause of action for negligence per se and their allegations are uncertain because negligence per se is not a separate cause of action. Mr. Arballo further demurs to Plaintiffs' negligenceper se claim pursuant to CCP 0.(e) on the grounds that Plaintiffs cannot, as a matter of law, establish that they are within the class of persons Penal Code section is intended to protect, and they therefore cannot use Penal Code section to establish a standard of care for their negligence claim in any event. Mr. Arballo also demurs to Plaintiffs' claim of "Gross Negligence, Recklessness and Willful Misconduct" pursuant to Code of Civil Procedure section 0.(e) on the grounds that Plaintiffs have not alleged the specific elements required to establish any of these claims. Mr. Arballo also demurs to Plaintiffs' claim for trespass to chattels pursuant to Code of Civil Procedure section 0.(f) on the grounds that Plaintiffs' complaint is uncertain because it alleges the complete dispossession of property, which does not support a claim for trespass to chattels. Finally, Mr. Arballo demurs to Plaintiff Torkington's claim for intentional infliction of emotional distress pursuant to Code of Civil Procedure section 0.(e) on the grounds that Ms. Torkington fails to state a cause of action because the conduct complained of was primarily directed at Bella, not Ms. Torkington and because Ms. Torkington admits that she was not

5 0 WALSH MCKEAN F URCOL 0 LIP 0 WEST C STREET SUITE 0 SAN DIEGO, CALIFORNIA TELEPHONE () present when the alleged conduct occurred. Therefore, she has not, and cannot, state a cause of action for intentional infliction of emotional distress. II. SUMMARY OF THE FACTS Plaintiffs allege that around February 0, Defendants Arballo and Hohl entered into an agreement with RVR to operate their business, Arballo Reining Horses, on RVR's premises. (Plaintiffs' Complaint which is attached as Exhibit "A" to the Request for Judicial Notice filed concurrently herewith at :-.) Defendants were allegedly provided a place to live on the ranch in exchange for Defendants training Plaintiffs' horses, including the subject horse Bella. Id. at :-. Plaintiffs allege that they intended to profit from Bella by breeding her and selling her eggs. Id. at :-:. Plaintiffs allege that more than two years after hiring Mr. Arballo, Plaintiff Torkington began hearing rumors that he was using abusive training techniques on the horses he trained at RVR. Id. at :-. However, Plaintiffs allege that the reports were unfounded, as supported by inspections by an Animal Control Officer, an independent veterinarian, and by Ms. Torkington herself Plaintiffs allege that no one found any signs of abuse and that "the results were negative." Id. at :. As to the subject incident, Plaintiffs allege that on September, 0, Defendants "bitted up Bella with a shank bit and inexplicably left Bella unsupervised inside a round pen in this contorted position." Id. at :-. Plaintiffs allege that Bella was later found injured. Id. at :-. Plaintiff Torkington affirms that she was not present when the alleged injuries occurred. Id. at :-. As a result of her injuries, Bella had to be humanely euthanized. Id. at :-. Plaintiff Torkington now seeks to recover damages, including vet costs and speculative lost profits, plus attorney's fees and punitive damages. Plaintiff RVR seeks to recover economic and "general" damages as well as attorney's fees and punitive damage claims. Mr. Arballo has filed a motion to strike Plaintiffs' requests for attorney's fees and punitive damages, as well as Ms. Torkington's claims for emotional distress arising from negligence concurrently with this demurrer. / / /

6 0 WALSH MCKEAN FUCCLO UP 0 WEST C STREET SUITE 0 SAN DIEGO. CAL IFORNIA TELEPHONE () -0 III. SUMMARY OF APPLICABLE LAW Under California law, a party is permitted to file a general demurrer to "test the legal sufficiency of factual allegations" of an opponent's pleading. Consumer Cause, Inc. v. Arkopharma, Inc. (00) Cal.App.th,.) A complaint is subject to a general demurrer if it fails to state sufficient facts to constitute a cause of action. C.C.P. 0.(e); Schmier v. Supreme Ct. (000) Cal.App.th 0, 0. A defendant may demur to a complaint on the ground that the pleading is "uncertain" which is defined to mean that it is "ambiguous and unintelligible." C.C.P. 0.(e). The requirement is that the allegations be "sufficiently clear to apprise the defendant of the issues he is to meet" Smith v. Williams () Ca.d, or "the nature, source, and extent" of the cause of action. Longshore v. County of Ventura () Ca.d, 0. A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action stated therein. (CCP 0.0.) Although courts must treat as true all material facts alleged in the challenged pleading, "contentions, deductions or conclusions of fact or law alleged in the [pleading] are not considered in judging" the pleading's sufficiency. State v. Bank of Am. Corp. (00) Cal.App.th, -0 (citation omitted). In ruling on a demurrer, doubt in the complaint may be resolved against plaintiff, and facts not alleged are presumed not to exist. Kramer v. Intuit Inc. (00) Cal.App.th,. IV. PLAINTIFFS' COMPLAINT IS FATALLY UNCERTAIN AND FAILS TO STATE A CAUSE OF ACTION FOR NEGLIGENCE PER SE BECAUSE NEGLIGENCE PER SE IS NOT AN INDEPENDENT CAUSE OF ACTION. Plaintiffs' second cause of action is for negligence per se based on an alleged violation of Penal Code section. Under Evidence Code section, a plaintiff can establish a presumption of negligence if he can prove: () The defendant violated a statute, ordinance, or regulation of a public entity; () The violation proximately caused death or injury to person or property;

7 0 WALSH MCKEAN FURCOLO LP 0 WEST C STREET BUTE 0 SAN DIEGO, CALIF ORMA TELEPHONE () () The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and () The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted. However," RThe doctrine of negligence per se is not a separate cause of action." Das v. Bank of Am., N.A. (0) Cal. App. th, - (citations omitted.) Instead, negligence per se is an evidentiary doctrine that merely "creates an evidentiary presumption that affects the standard of care in a cause of action for negligence." Id. Therefore, Mr. Arballo demurs to Plaintiffs' claim for negligence per se on the grounds that they fail to state a cause of action and the complaint is uncertain because Plaintiffs purport to bring a cause of action that does not exist. As Plaintiffs cannot amend their complaint to bring a claim for negligence per se, Mr. Arballo requests that the court sustain his demurrer without leave to amend. V. PLAINTIFFS CANNOT SUPPORT A CLAIM FOR NEGLIGENCE BASED ON PENAL CODE SECTION BECAUSE PLAINTIFFS ARE NOT WITHIN THE CLASS OF PERSONS PENAL CODE IS INTENDED TO PROTECT. As set forth above, to establish a presumption of negligence under Evidence Code section, the plaintiff must prove not only that the defendant violated a statute or regulation and that the violation caused plaintiffs injury, but also that the plaintiff suffered the injury the statute was intended to protect against and that the plaintiff is within the class of persons for whose protection the statute or regulation was adopted. Evid. Code. "The first two elements are normally questions for the trier of fact and the last two are determined by the trial court as a matter of law." Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc. (0) Cal.App.th,. Plaintiffs fail to state a cause of action for negligence per se because Plaintiffs have not, and cannot, show that they are in the class of persons for whose protection the statute was adopted. Accordingly, Mr. Arballo's demurrer should be sustained. While no case has specifically addressed the negligence per se factors as applied to Penal Code section, several courts have pointed out in dicta that the intent of section is to protect animals and to prevent cruelty to animals. See, People v. Speegle () Cal.App.th

8 0 WALSH MCKEAN FURC0.0P 0 WEST C MEET SUITE 0 SAN 0 IT GO, CALIF ORNIA TD_EPHONE () -e 0,, stating "[i]n the panoply of statutes from section through f, the Legislature has manifested an unmistakable intent to prevent cruelty to animals"; see also, People v. Dunn () Cal.App.d, stating that section was "intended to prohibit cruelty to animals"; People v. Superior Court (Elder) () 0 Cal. App. d,, stating that an interpretation of b as requiring specific intent by a spectator of animal fighting "is consistent with, and implicit in, the Legislature's intent to prevent cruelty to animals." Therefore, the statute is clearly intended to protect animals. Neither Ms. Torkington nor RVR are within this class that the statute is intended to protect. Accordingly, they not only fail to state a cause of action for negligence per se, and but Plaintiffs cannot rely on Penal Code section to set a standard of care for Defendants because they have not, and cannot, establish that Penal Code section was intended to protect them. Accordingly, the Court should sustain Mr. Arballo's demurrer to this cause of action and further order that Plaintiff cannot establish their claim for negligence based on any purported violation of Penal Code section because they cannot meet the requirements of Evidence Code section ; to wit, that Penal Code section is intended to protect Plaintiffs. VI. PLAINTIFFS FAIL TO STATE A CAUSE OF ACTION FOR GROSS NEGLIGENCE, RECKLESSNESS OR WILLFUL CONDUCT. Plaintiffs' first cause of action for negligence is captioned as "FIRST CAUSE OF ACTION Negligence (Including Gross Negligence, Recklessness, and Willful Misconduct)." While gross negligence, recklessness and willful misconduct are not separate causes of action, they still require additional pleadings beyond the basic negligence allegations of duty, breach, causation and damages. Here, Plaintiffs simply allege that Defendants' actions "were negligent, grossly negligent, reckless and/or intentional" without anything further. To set forth a claim for "gross negligence" the plaintiff must allege extreme conduct on the part of the defendant. Rosencrans v. Dover Images. Ltd. (0) Cal.App.th,. They have not done so. Similarly, Plaintiffs do not allege any facts constituting reckless conduct." 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

9 0 WALSH IACKEAN FURCOLOLLP 0 WEST C STREET SUITE 0 SAN DIEGO, CAL!FORMA TELEPHONE ) - probability' that an injury will occur. Delaney v. Baker () 0 Ca.th,. 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 -. Again, no such allegations supporting a claim of recklessness are made in Plaintiffs' complaint. Finally, to plead willful misconduct, "Nile act or omission must be even more specifically described in order to raise it to the level of willful misconduct." Berkley v. Dowds, Cal. App. th, (00) (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: () actual or constructive knowledge of the peril to be apprehended, () actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and () conscious failure to act to avoid the peril.' " Id citing to Simmons v. Southern Pac. Transportation Co. () Cal.App.d, 0. Plaintiffs have not alleged any of the three specific elements required to plead a claim for willful misconduct. Accordingly, the complaint fails to state a cause of action for gross negligence, recklessness and willful misconduct. Mr. Arballo therefore requests that the Court sustain his demurrer as to these aggravated allegations of negligence without leave to amend. VII. PLAINTIFF TORKINGTON'S COMPLAINT IS UNCERTAIN AS TO HER TRESPASS TO CHATTELS CLAIM BECAUSE TORICINGTON HAS ALLEGED THE TOTAL LOSS OF HER PROPERTY. Ms. Torkington contends that as a result of Defendants' actions, she has been completely dispossessed of her personal property. The total dispossession of property supports a claim for conversion. The tort of trespass to chattels is intended for "for interferences with the possession of chattels which are not sufficiently important to be classed as conversion, and so to compel the defendant to pay the full value of the thing with which he has interfered. Trespass to chattels survives today, in other words, largely as a little brother of conversion." Thrifty-Tel. Inc. v. TORICINGTON'S AND RIVER VALLEY RANCH, LLC'S COMPLAINT

10 0 WALSH MCKEAN FURCOLO LIP 0 WEST C STREET SURE 0 SAN DI EGO. CALIFORNIA TELEPHONE () Bezenek () Cal. App. th, - citing to Prosser & Keeton on Torts (th ed. ), pp. -. Moreover, "[w]here the conduct complained of does not amount to a substantial interference with possession or the right thereto, but consists of intermeddling with or use of... the personal property, the owner has a cause of action for trespass" to chattel, but not for conversion. Zaslow v. ICroenert () Ca.d,. Here, Plaintiff Torkington alleges that she has been completely dispossessed of the use of her horse. She has sued for conversion as a result; yet also makes a claim for the lesser, and inapplicable, cause of action for trespass. While acknowledging that plaintiffs may allege inconsistent theories, Mr. Arballo contends that the allegation of both a trespass to chattels claim and a conversion claim renders the complaint uncertain as to the relief requested. If Plaintiff has been dispossessed of her property, as she contends, then she has a claim for conversion. If not, then she has a claim for trespass. However, she does not have a claim for both. Based on the foregoing, Defendant ARBALLO respectfully requests that the Court sustain his demurrer as to the trespass to chattels claim without leave to amend. VIII. PLAINTIFF TORKINGTON FAILS TO STATE A CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS BECAUSE SHE CANNOT ESTABLISH THAT THE ALLEGED ACTS WERE DIRECTED TOWARD HER OR OCCURRED IN HER PRESENCE. In support of her claim for intentional infliction of emotional distress, Ms. Torkington alleges that Defendants' bitting up of Bella was done "with the intention of causing Torkington to suffer severe emotional distress or with reckless disregard of the probability" that she would suffer such distress. (Complaint at :-.) However, these conclusory allegations cannot support a claim for intentional infliction of emotional distress. Moreover, the facts as alleged by Ms. Torkington evidence that she cannot prove the elements of a claim for intentional infliction of emotional distress and such cause of action should be stricken. To establish an intentional infliction of emotional distress claim, "Mt is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff; or occur in the presence of a plaintiff of whom the defendant is aware." McMahon v. Craig (00)

11 0 Cal. App. th, citing to Christensen v. Superior Court () Ca.d. Here, Plaintiff Torkington fails to state a claim for intentional infliction of emotional distress because she cannot show that Defendants' actions were directed at her or, alternatively, that she was present at the time the alleged outrageous conduct occurred. First, Plaintiff Torkington has not, and cannot, allege that the alleged outrageous behavior (the training techniques of Defendants) was directed at her. The training techniques were obviously directed at her horse. This is similar to the case in McMahon, supra, where the veterinarian defendant was alleged to have negligently provided veterinary care to plaintiffs dog and then lied about it to cover up the malpractice. The defendant demurred to plaintiffs claim for intentional infliction of emotional distress and the demurrer was sustained without leave to amend. In upholding the trial court's ruling, the appellate court concluded that the acts of the vet "do not meet the prerequisites for an intentional infliction of emotional distress claim because, as we have explained, they were neither directed at [plaintiff] nor were they done in her presence." Id. at. Just as the vet's negligent acts in McMahon were not directed at the plaintiff in that case, so to were the alleged acts of Defendants not directed at Ms. Torldngton. Additionally, Plaintiffs alternate theory (reckless disregard of the probability that plaintiff would suffer emotional distress) requires the presence of the plaintiff at the time of the outrageous conduct. Christensen v. Superior Court, supra, Ca.d at 0. Yet, Plaintiffs admit that on the date of the incident "Torkington left the ranch property" and that "[w]hile Torkington was gone" Defendants removed Bella from her stable and bitted her up. (Complaint at :-.) Ms. Torldngton further alleges that she had to "rush back to the ranch" upon hearing that Bella was injured, further confirming that she was not present when the injurious incident occurred. (Id. at :.) Therefore, Plaintiff Torkington cannot establish a cause of action for intentional infliction of emotional distress on this alternate theory either. WALSH MCKEAN FURCOLO LIP 0 WEST C STREET SUITE 0 SAN DIEGO, CMFORNIA TELEPHONE () I While not properly subject to demurrer, Mr. Arballo disputes that any conduct he engaged in was "intentional" or "outrageous" to support a claim for intentional infliction of emotional distress. "Bitting up" is a well-known technique in Western reining and a technique which Plaintiff Torkington endorsed and supported.

12 0 Accordingly, Mr. Arballo respectfully requests that the Court sustain his demurrer as to Plaintiff Torkington's claim for intentional infliction of emotional distress without leave to amend. IX. CONCLUSION Based on the foregoing, Defendant Arballo respectfully requests that this Court sustain his demurrer as to Plaintiffs' claims for negligence per se; gross negligence, recklessness and willful misconduct; trespass to chattels; and intentional infliction of emotional distress. Plaintiffs have failed to state a claim for each of these causes of action, or have pled uncertain claims which are properly subject to demurrer. DATED: November, 0 WALSH MCKEAN FURCOLO LLP By: RegfxffFurcolo, Esq. Ashley W. Christensen, Esq. Attorneys for Defendants MARK ARBALLO, an individual dba ARBALLO REINING HORSES; PATRICIA HOHL, an individual dba ARBALLO REINING HORSES WALSH,CXEM FURCOLO LIP 0 WEST C STREET SUITE 0 SAN DIEGO. CALIFORNIA TELEPHONE ()00