University of Vermont AAHS

HORSE RESCUE OF AMERICA v. D & D SERVICES

California Court of Appeal, 2d Dist., Div. 5

UNPUBLLISHED OPINION

2006 WL 134012

Jan. 19, 2006

Summary

This is a dispute arising out of the disposal of an adopted horse.  Peaches was an older adopted horse that became ill.  When treatment was unsuccessful the horse was “put Down.”  Peaches was to have been cremated and the remains returned to the owners.  However, a different company was used for the cremation and some parts of Peaches went to other destinations.  The trial court granted summary judgment in favor of the defendants and this court affirmed.

Text of Opinion

In separate appeals arising out of the same litigation, we first consider whether the trial court erred in granting summary judgment for defendants and, second, whether the trial court erred in awarding attorney fees and expert witness fees under Code of Civil Procedure section 2033, subdivision (o ), and section 998, respectively. Plaintiffs are Horse Rescue of America ("Horse Rescue"), Dedication and Everlasting Love to Animals ("DELTA"), and Leo Grillo, the director and chief executive officer of Horse Rescue and DELTA, two nonprofit organizations dedicated to the sheltering and care of animals. One of the animals rescued by plaintiffs, and the subject of this litigation, was a Belgian draft horse named Peaches. Plaintiffs sued a variety of entities and individuals that were allegedly involved in cremating Peaches, including D & D Services, Inc. ("D & D"); William Gorman, D & D's president, director, and shareholder; and David Brownstein, D & D's prior shareholder, who allegedly maintained some control over D & D.

At the core of plaintiffs' claims is the allegation that defendants failed to cremate Peaches as impliedly promised--that is, by cremating and returning the entire remains to plaintiffs. Rather, plaintiffs contend that defendants returned only a portion of the Peaches's ashes. Peaches's tail and mane were allegedly sold for profit, while another portion of the remains was allegedly "rendered" and sold as commercial feed or pet food.

FN3. " 'Rendering' means all recycling, processing, and conversion of animal and fish materials and carcasses and inedible kitchen grease into fats, oils, proteins, and other products that are used in the animal, poultry, and pet food industries and other industries ." (Food & Agr.Code, §  19213.)

Following completion of extensive discovery, the trial court granted summary judgment in favor of defendants, finding the contract claims failed because there was no triable issue either as to the existence of a contract between the parties or as to a breach--more specifically, the trial court found plaintiffs lacked any nonspeculative evidence that Peaches's remains had been mishandled. Plaintiffs' intentional misrepresentation claim failed because there was no evidence of reliance on any misrepresentation by defendants in connection with the cremation of Peaches. Finally, plaintiffs' claim under the Unfair Business Practices Act, also known as the Unfair Competition Law or "UCL" (Bus. & Prof.Code, § §  17200, 17500), seeking an injunction to prevent defendants from illegally rendering and disposing of animal remains, was found to rest entirely on speculation.

The trial court entered judgment in favor of defendants on October 1, 2004. Plaintiffs filed a timely notice of appeal on December 6, 2004, contending the trial court erred in granting summary judgment. We find that plaintiffs failed to carry their burden of showing a triable issue of material fact on the contract and misrepresentation claims. As to the unfair competition claim, we find it is barred by Proposition 64, enacted by the California electorate on November 3, 2004, while this matter was pending.

On December 6, 2004, the trial court entered its final order concerning the award of costs and attorney fees, finding defendants were entitled to costs of $5,635.21 and attorney fees of $2,835.00, based on plaintiffs' failure to admit the truth of facts, for a total of $8,470.21. Plaintiffs filed a separate timely notice of appeal from that ruling. We find that plaintiffs forfeited their claim of error regarding the award of attorney fees, and that their legal challenge to the award of costs is meritless. Accordingly, we affirm.

 Background

DELTA and Horse Rescue adopted and cared for Peaches in the horse's declining years. Peaches became sick in July of 2002. Horse Rescue sent Peaches to the Alamo Pintado Equine Medical Center for treatment; however, treatment was unavailing and on July 6, 2002, the horse was "put down." Approximately two days later, its carcass was taken from the medical center to D & D by a business named Dignified Dead Animal Disposal, either by its co-owner Roberta Warne or her employee.

FN5. Dignified Dead Animal Disposal was neither owned by nor affiliated with D & D. D & D never employed Warne or retained her as an agent. Plaintiffs presented evidence that Warne held her business out as being affiliated with "D & D Cremations" in a brochure she had produced, but she did so without the knowledge or authorization of D & D. Moreover, no one affiliated with plaintiffs spoke to Warne concerning D & D's services (or those of any of its related entities) prior to the incident involving Peaches. Plaintiffs were unaware of Warne's brochure at the time.

The medical center paid for the hauling. The carcass weighed 1,600 pounds at the time D & D received it.

When Grillo spoke to personnel at the medical center concerning the disposal of Peaches's carcass, he authorized the medical center to have "Roberta" do the hauling. Grillo assumed that she would take the carcass to the crematorium that plaintiffs had been using for the past two or three years, Ark Animal Removal and Cremation ("Ark"), owned and operated by Rhea Gardner. Grillo had intended to use Ark, not D & D. From plaintiffs' perspective, Peaches was taken to D & D by "accident," as the result of a "casual mix-up." Grillo had used D & D for horse cremations "about half a dozen" times during the 1980's and 1990's. Since then, plaintiffs had used Ark exclusively for horses.

On July 12, 2002, Grillo received Peaches's purported remains from D & D: a five-gallon can, containing horseshoes, ashes, and packing materials. There had been no communications between plaintiffs and D & D (or with Brownstein or Gorman) prior to Peaches's cremation. Based on the horse's size, Grillo expected that Peaches's remains would require two 5-gallon cans to hold its remains. D & D billed DELTA $1,640 for the cremation services.

 The Summary Judgment Motion

Defendants filed their motions for summary judgment and summary adjudication on July 2, 2004, relying on evidence produced during discovery and declarations. Plaintiffs opposed the motions, submitted supporting declarations, and filed a response to defendants' separate statement of undisputed material facts. Defendants filed evidentiary objections to substantial portions of plaintiffs' evidence, which defendants did not formally oppose. The trial court issued its tentative order on September 10, 2004, granting summary judgment and sustaining many of defendants' evidentiary objections. The parties submitted on the tentative ruling and waived argument. On appeal, plaintiffs do not challenge the trial court's evidentiary rulings.

 A. The Contract Claims

The first and second causes of action in the operative second amended complaint alleged breach of an implied contract and breach of contract as a third party beneficiary, on the theory that D & D had promised to cremate Peaches's entire carcass and return all the cremated remains to plaintiffs. For purposes of this appeal, because we address only the question of whether there was a triable issue of fact as to the existence of breach, we assume the existence of an implied or third party beneficiary contract.

Defendants presented evidence that Brownstein sold his entire interest in D & D to Gorman and others in 2000; since then, he has never been an employee, officer, or director of D & D--nor exercised any control over D & D's operations. Both during Brownstein's tenure and currently under Gorman, it was D & D's practice to cremate the entire carcass of each animal it received for that purpose and to return the entire amount of cremated remains (or "cremains" as the parties call them) to the person requesting them. It was never the custom or practice to render, or otherwise sell or dispose of, any portion of a carcass received for cremation.

Although defendants presented no declaration from a witness percipient to Peaches's cremation, Gorman testified from extensive personal experience as to the manner in which D & D consistently cremated horses and other animals within the relevant time period. Horses like Peaches that were heavier than 500 pounds would be sectioned so as to fit in D & D's cremation machine. Such a horse, however, would not be cremated with other animals. After three cremation cycles lasting five to six hours, all of the cremated remains would be passed through a mechanical ash granulator, which would pulverize them and, thereby, reduce their volume. The remains would then be collected in a plastic bag and placed within a five-gallon container. Styrofoam would be inserted in the container to stabilize the contents, before shipping the container to the person who requested the remains.

Gorman also testified, "Based upon my experience in cremating animal carcasses and weighing the remains to be shipped, I have formed the opinion that the weight of the cremains of the carcasses of animals, including horses, will differ even when the animals were of the same size and weight. It is also my opinion the cremains of a 1,640-pound [horse] could vary from 45 to 75 pounds."

Defendants also presented the expert declaration of Mark Mauney. He had five years of experience performing large animal cremations using the same type of equipment as D & D. In that time, he had performed approximately seven horse cremations. Based on his expertise and experience, he opined that the total weight of the cremated remains of horse carcasses would vary significantly, depending on a variety of factors including the horse's fat content, the temperature at which the crematorium's main chamber was operated, the cremation's duration, and other factors. Cremation of fatty tissues yields little in the way of solid remains. The amount of resulting bone ash mainly depends on the density of the animal's bones. As the cremation's temperature and duration increases, the amount of remains will decrease. Mechanical ash granulation is a common and standard practice designed to decrease the volume of cremated remains.

Mauney further testified that when he cremated a 1,200 pound horse's carcass, it resulted in 40 pounds of cremated remains. Based on his experience, he opined that the carcass of a 1,640 pound horse "that was sectioned, cremated at a high temperature for an extended period of time, could reasonably yield total cremated remains in the range of 45 to 75 pounds." He further opined "that the total volume of such cremated remains would depend largely upon the capability of the ash granulator employed." The cremated remains of two animals' carcasses of the same weight "will have different amounts of ashes after the process is finished."

Plaintiffs filed no evidentiary objections to defendants' proffered declarations. They attempted to rely primarily on a declaration by Gardner to dispute Gorman's and Mauney's testimony and conclusions. However, the trial court granted defendants' evidentiary objections to the potentially material aspects of Gardner's testimony. Plaintiffs do not challenge those rulings on appeal. As a result, the primary admissible evidence in support of defendants' claim that Peaches's remains were mishandled came from Grillo's deposition, in which he testified as to his belief that D & D only returned one-quarter of the horse's cremated remains. There was no evidence that Grillo had any expertise or specialized knowledge concerning large animal cremation. His only experience with horses cremated by D & D was as the recipient of remains "about half a dozen" times during the 1980's and 1990's. There was no evidence that Ark used similar machinery or applied similar procedures in horse cremations.

 B. The Intentional Misrepresentation Claim

The third cause of action was for intentional misrepresentation, alleging that D & D, Brownstein, and Gorman falsely represented to plaintiffs and others that D & D: (1) collected and cremated dead animals in a dignified manner; (2) on request, it returned to the owners the individual ashes of the cremated animals; and (3) it had the equipment necessary to do so. In having Peaches transported to D & D, plaintiffs relied on representations that "horses would be cremated and their entire remains returned and that none of the parts of Peaches would be rendered or sold for profit." In fact, plaintiffs alleged, D & D had a custom and practice of selling parts of dead animals for profit; using parts for rendering, instead of returning the complete remains; and selling the remains as pet food, in violation of state and federal regulations.

However, as set forth above, there was no evidence that plaintiffs intended to have D & D perform the cremation of Peaches, much less that they relied on any representation by defendants in that regard. At most, plaintiffs presented evidence that the dead animal hauler, Warne, held her business out as being affiliated with "D & D Cremations" in a brochure she had produced. But it was undisputed that she did so without the knowledge or authorization of D & D. Moreover, no one affiliated with plaintiffs spoke to Warne concerning D & D's services (or those of any of its related entities) prior to the incident involving Peaches, nor were plaintiffs aware of Warne's brochure at the time.

 C. The Unfair Competition Law Claim

Plaintiffs' fourth cause of action alleged that D & D, Gorman, and Brownstein violated California's unfair competition law either by rendering part of Peaches's remains, despite representations that the animal would be entirely cremated, or by selling rendered animal remains, including those of euthanized dogs and cats, for commercial feed or pet food in violation of California law. More specifically, plaintiffs claimed that the Food and Agriculture Code's regulations were intended to exclude dead dogs and cats from the scope of permissible rendering, and that the Health and Safety Code proscribes the use of any food product that comes from an animal that died by means other than slaughter. The only actual injury plaintiffs have identified as resulting from defendants' challenged conduct is that arising out of Peaches's cremation.

Defendants presented evidence that rendering, as performed by D & D, was the process of sterilizing and refining animal carcasses of virtually every available variety--including euthanized dogs and cats--through a high temperature sterilization process that separates the materials into solids and liquids. The solids are called protein meal; the liquids are called yellow grease. D & D's protein meal is not used in pet or human food; it is exported to Asia for use in commercial feed for chicken and swine. The yellow grease is sold mainly in California for use as a fattening agent for commercial cattle feed.

Plaintiffs did not substantially controvert defendants' factual showings in that regard. However, they contended that even if that evidence were true, the use of D & D's rendered product in cattle feed violated California law, specifically the provisions of Chapter Five of the Food and Agriculture Code section 19200 et seq., because those provisions define permissible rendering in such a way as to exclude the use of euthanized cats and dogs as a source of the end product. (See Food & Agr.Code, §  19213 [defining "rendering"]; §  19201 [defining " 'Animals' [to] mean[ ] burros, cattle, goats, horses, mules, sheep, swine and other large domesticated animals and poultry"].) Additionally, plaintiffs argued that D & D's use of yellow grease violated this state's Sherman Food, Drug, and Cosmetic Law, Health and Safety Code section 109875 et seq., which defines adulterated food to include "the product of ... any animal that has died otherwise than by slaughter." (Health & Saf.Code, §  110570.) As plaintiffs point out, for purposes of that set of laws, "food" is broadly defined to include "[a]ny article used or intended for use for food ... by man or other animal" or "[a]ny article used or intended for use as a component of any [such] article." (Id., §  109935, subd. (b).)

While we do not reach the merits of plaintiffs' unfair competition law claim, based on our finding that it is barred by the enactment of Proposition 64, it appears that the parties never addressed the state and federal regulations most directly applicable to the use of rendered products as an additive to commercial livestock feed. (See Food & Agr.Code, §  15041; Cal.Code Regs., tit. 3, §  2734, subd. (b); U.S.Code Fed. Regs., tit. 21, §  589.2000; see generally, Food & Agr.Code, §  14901.)

 Imposition of Costs and Attorney Fees

Prior to filing their summary judgment motions, defendants served statutory offers of compromise upon plaintiffs, pursuant to Code of Civil Procedure section 998. During discovery, defendants also served seven sets of requests for admissions on plaintiffs--three by Gorman and D & D, separately, to Grillo, DELTA, and Horse Rescue, and one by Brownstein to Horse Rescue. The various requests to each of the plaintiffs were largely overlapping. Defendants timely responded to the requests, interposing objections and denials to most of them.

In October of 2004, following the granting of the summary judgment motions, defendants filed a memorandum of costs, for a total of $32,040.42, including $500 for Mauney's expert witness fees. Defendants also filed a motion for attorney fees for failure to admit the truth of facts under prior Code of Civil Procedure section 2033, subdivision (o ), listing the numerous requests for admission that defendants contended were denied, but which had been proved true in connection with the summary judgment motions. Defendants opposed the attorney fees motion and filed a motion to tax costs.

Following the October 29, 2004 hearing on the attorney fees motion, the trial court, having reviewed all the pertinent discovery requests, objections, and responses, found that "[m]any of the denials, particularly those involving ... Brownstein's involvement with ... D & D, were without factual basis. Therefore, defendants are entitled to at least a portion of their fees incurred in bringing the motions for summary judgment." On the other hand, the trial court rejected as "specious" defendants' attempt to recover attorney fees in connection with the many denials as to facts not raised in the summary judgment motions. In its discretion, the trial court awarded $3,545.12 in attorney fees.

On November 22, 2004, after having listened to arguments and taken the matter under submission, the trial court ruled on the motion to tax costs. In connection with that motion, the trial court reduced its prior attorney fees award to $2,835.00, finding that it had erroneously included "certain costs for filing fees and exhibits" for the summary judgment motion. It also found an entitlement to $5,635.00 in costs, for a total of $8,470.21. The trial court's final order provided for an award against plaintiffs, jointly and severally, of that same total amount, "inclusive of attorneys' fees and costs awarded pursuant to [Code of Civil Procedure, section 2033]" in favor of defendants.

DISCUSSION

 Standard of Review

As our Supreme Court instructs, the party moving for summary judgment always  "bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar ), fn. omitted.) A triable issue of material fact exists "if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Ibid., fn. omitted.) Defendants bear "the burden of persuasion that 'one or more elements of' the 'cause of action' in question 'cannot be established,' or that 'there is a complete defense' thereto. [Citation.]" (Ibid.)

Accordingly, the moving party "bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar, supra, 25 Cal.4th at p. 850.) When a defendant moves for summary judgment against a plaintiff who ultimately bears the burden of proof at trial by a preponderance (as plaintiffs do in this case), the defendant "must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not--otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact." (Id. at p. 851, fn. omitted.) California summary judgment law does not require a defendant moving for summary judgment "to conclusively negate an element of the plaintiff's cause of action." (Id. at p. 853, fn. omitted.) Rather, "[a]ll that the defendant need do is to 'show[ ] that one or more elements of the cause of action ... cannot be established' by the plaintiff. [Citation.]" (Ibid.) In other words, "[i]f a party moving for summary judgment in any action ... would prevail at trial without submission of any issue of material fact to a trier of fact for determination, then he should prevail on summary judgment." (Id. at p. 855.)

" 'In determining the propriety of a summary judgment, the trial court is limited to facts shown by the evidentiary materials submitted, as well as those admitted and uncontested in the pleadings. [Citations.] The court must consider all evidence set forth in the parties' papers, and summary judgment is to be granted if all the papers submitted show there is no triable issue of material fact in the action, thereby entitling the moving party to judgment as a matter of law. [Citation.]' [Citation.] '[S]ummary judgment shall not be granted ... based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.' [Citations.]" (Elcome v. Chin (2003) 110 Cal.App.4th 310, 316 (Elcome ).)

"On appeal, 'our review is de novo, and we independently review the record before the trial court.' [Citation.] 'The trial court's stated reasons for granting summary judgment are not binding on us because we review its ruling, not its rationale.' " (Elcome, supra, 110 Cal.App.4th at p. 316, quoting Kids' Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)

In addition to challenging the summary judgment rulings on their merits, plaintiffs also contend the trial court should have denied the motions based on defendants' failure to follow the formal statutory requirements for summary judgment motions. Such contentions are reviewed for abuse of discretion. (See, e.g., Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1208 (Parkview ) ["The trial court's decision to grant a motion for summary judgment because the opposing party failed to comply with the requirements for a separate statement ... is reviewed for an abuse of discretion."].)

With regard to the trial court's rulings on the attorneys' fees and costs, we apply the de novo standard to the extent that plaintiffs challenge the legal basis of the trial court's ruling. (Barnett v. Penske Truck Leasing Co. (2001) 90 Cal.App.4th 494, 497 (Barnett ).) Of course, the question of whether a particular award is warranted under the facts and circumstances is reviewed for abuse of discretion. (Ibid., citing Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 637, fn. 10.)

 Summary Judgment Was Properly Entered Against Plaintiffs

We first address plaintiffs' assertion that the trial court abused its discretion by granting summary judgment, despite defendants' asserted noncompliance with the formal requirements for their separate statement. Initially, by failing to object below, plaintiffs forfeited their claim that defendants violated rule 342 of the California Rules of Court by failing to specify each cause of action that was subject to their alternative motion for summary adjudication. In any event, because defendants' summary judgment pleadings as a whole gave defendants unambiguous notice as to each of the causes of action at stake, there was no significant possibility that plaintiffs might have been prejudiced. Plaintiffs also forfeited their argument that defendants' separate statement violated rule 342(d)'s requirement that "the statement must state in numerical sequence the undisputed material facts in the first column and the evidence that establishes those undisputed facts in the second column." Plaintiffs did not object below on the ground asserted on appeal--that defendants' numbering skips from 24 to 34 at one point of the statement. Again, we see no significant possibility of prejudice due to this inconsequential typographical error.

Finally, plaintiffs assert that at specific points, defendants' statement did not comply with the requirement that a "party moving for summary judgment or summary adjudication must support the motion with 'a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.' " (Parkview, supra, 133 Cal.App.4th at p. 1209, citing Code Civ. Proc., §  437c, subd. (b)(1) .)

We see no violation, much less an abuse of discretion on the part of the trial court. "The requirement of a separate statement from the moving party and a responding statement from the party opposing summary judgment serves two functions: to give the parties notice of the material facts at issue in the motion and to permit the trial court to focus on whether those facts are truly undisputed." (Parkview, supra, 133 Cal.App.4th at p. 1210.) Defendants' statement adequately served those functions. Indeed, had the trial court ruled against defendants on such procedural grounds without first having given defendants an opportunity to correct any perceived errors, it might have abused its discretion. (See id. at pp. 1210-1216.)

Proceeding to the merits, we find that defendants presented affirmative evidence both as to the non-existence of a breach of contract and as to the lack of reliance by plaintiffs on any misrepresentation by defendants, thereby shifting the burden of production to plaintiffs. As the trial court found, plaintiffs failed to discharge their burden to make a prima facie showing of the existence of a triable issue of material fact on either essential element of their claims. Plaintiffs could only speculate as to any mishandling of Peaches's remains, and they could identify no statement by defendants or their agents on which they relied in sending Peaches's carcass to D & D. Indeed, plaintiffs did not even intend to have D & D cremate Peaches.

Defendants presented unchallenged evidence that when a customer requested animal cremation and a return of the remains, it was D & D's practice to cremate the animal's entire carcass and return the entire amount of cremated remains. Based on Gorman's unchallenged testimony as to the manner in which D & D consistently cremated horses within the relevant time period, expert witness Mauney gave uncontradicted testimony that the amount of remains received by plaintiffs was consistent with cremation of the entire carcass.

The determination of the amount of cremated remains that would result from an animal of a certain type and size, when cremated in a specific manner under certain conditions, is something outside the ken of a lay witness. Defendants improperly attempt to rely on paragraphs 9 through 12 of Gardner's declaration to dispute Gorman's and Mauney's testimonies and conclusions. The trial court sustained defendants' evidentiary objections as to those portions of Gardner's declaration, and plaintiffs do not challenge that ruling on appeal. Plaintiffs, therefore, forfeited any issues concerning the correctness of the trial court's evidentiary rulings. (Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014-1015; Code Civ. Proc., §  437c, subd. (b)(5).)

Nor does Grillo's deposition testimony as to his belief that D & D returned only one-quarter of the horse's cremated remains serve to raise a disputed issue of material fact. Far from having any expertise or specialized knowledge concerning large animal cremation, Grillo's only experience with horses cremated by D & D was limited to his receipt of cremated remains "about half a dozen" times during the 1980's and 1990's. There was no evidence that Ark--the source of his current experience with receiving such remains--used similar machinery or applied similar procedures in horse cremations. Accordingly, there was no admissible evidence that Grillo had the kind of personal experience that would support a reasonable inference that Peaches's cremated remains should have been more voluminous. Instead, plaintiffs could merely offer Grillo's speculations and suspicions.

The recent decision in Elcome is instructive. There, plaintiff sued her doctor for medical malpractice and attempted to rely on the res ipsa loquitur doctrine to establish her negligence claim. Dr. Chin moved for summary judgment based on the supporting expert declaration of Albert Yellin, M.D. The expert opined that Dr. Chin performed his responsibilities appropriately and that his conduct did not cause plaintiff's injuries. The hospital presented expert testimony to the same effect. In response to both motions, plaintiff submitted her own lay witness declaration, testifying that she was unconscious and under defendants' exclusive control during her pelvic surgery, but that she awoke to find herself in severe pain from her upper extremities--pain that worsened and spread downwards to her back and hip areas. In response to the hospital's motion, plaintiff also submitted an expert medical declaration. Plaintiff's expert opined that, while he did not know the cause of plaintiff's injuries (or whether she actually sustained them), such injuries are not the kind normally expected or ordinarily considered to be at risk for her type of surgery. (Elcome, supra, 110 Cal.App.4th at pp. 313-318.)

The Elcome court found that the defendants "met their initial burden of producing evidence that they did not breach the standard of care and did not cause plaintiff's injuries. The burden then shifted to plaintiff to raise a triable issue of material fact on the issues of negligence and causation." (Elcome, supra, 110 Cal.App.4th at p. 318.) The plaintiff failed to satisfy that burden by means of the "common knowledge" exception, her lay declaration, or her expert's declaration. This was not a situation in which the only reasonable inference regarding causation was negligence, such as where a foreign object is left inside the patient's body. Nor did either the lay or expert declaration offer an opinion that defendants caused the plaintiff's injuries. At most, they suggested the medical negligence was one of a variety of potential causes, without saying which "was more probable than the others." (Id. at pp. 318-319.) "On this record, plaintiff's injuries may or may not have occurred during the surgery, and may or may not have been caused by the negligence of one or more of the defendants. None of the alternative explanations for plaintiff's injuries is inherently more probable than the others. Thus, the doctrine of res ipsa loquitur did not apply, and defendants were entitled to summary judgment." (Id. at p. 320.)

As in Elcome, plaintiffs' best case merely supports the possibility that D & D might have mishandled Peaches's remains, without any basis for the reasonable inference that such mishandling was the more probable scenario. The determination of the quantity or volume of ashes that would result from a full cremation of a given animal is certainly not common knowledge. Defendants satisfied their burden of negating the element of breach by presenting evidence that Peaches's carcass was not mishandled and that the cremated remains plaintiffs received were consistent with a full and proper cremation. Grillo's lay declaration, as it amounted only to speculation, failed to satisfy plaintiffs' burden.

With regard to the intentional misrepresentation claim, we note that the essential elements of a cause of action for intentional misrepresentation are (1) a misrepresentation of fact, (2) knowledge of falsity, (3) intent to induce reliance, (4) justifiable reliance, and (5) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Here, it is undisputed that plaintiffs had no communications with defendants or their agents prior to Peaches's cremation. There was some evidence that Warne held her dead animal hauling business out as being affiliated with "D & D Cremations" in a brochure she had produced. However, it was undisputed that she did so without the knowledge or authorization of D & D. Moreover, there was no evidence that plaintiffs were aware of Warne's brochure at the time. In addition, Grillo made it clear that he had not intended to have Peaches cremated by D & D; he thought that he had authorized Peaches's carcass to be sent to Ark for cremation. As such, there was no triable issue of fact as to the reliance element of plaintiffs' misrepresentation claim.

Summary judgment was also appropriate as to the UCL claim, although for a reason different than that relied upon by the trial court. Proposition 64 took effect on November 3, 2004, after the trial court entered summary judgment in favor of defendants. As is relevant to this case, the proposition amended the UCL to limit the availability of private actions to "any person who has suffered injury in fact and has lost money or property as a result of such unfair competition." That is, the UCL no longer permits private parties from filing actions on behalf of the general public, unless they have been injured by the business practices at issue. If Proposition 64 applies to this case, as defendants assert it should, plaintiffs can prosecute their UCL claim only on the basis of the injury they suffered as a result of defendants' challenged course of conduct in connection with the alleged injury arising out of Peaches's cremation, not the alleged harm to the general public arising out of D & D's rendering operations.

We hold that under Government Code section 9606, which provides that "[a]ny statute may be repealed at any time, except when vested rights would be impaired," Proposition 64's amendments have immediate effect in all pending cases alleging claims under sections 17200 or 17500.  And from our prior discussion and findings regarding the contract and misrepresentation claims, it is clear that defendants successfully negated the existence of triable issues as to whether defendants mishandled Peaches's remains and whether plaintiffs relied on misrepresentations by defendants in authorizing D & D to perform the cremation.

Generally, there is a presumption that statutory enactments do not operate retroactively unless there is clear legislative intent to the contrary. (See, e.g., Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208["[B]oth this court and the Courts of Appeal have generally commenced analysis of the question of whether a statute applies retroactively with a restatement of the fundamental principle that 'legislative enactments are generally presumed to operate prospectively and not retroactively unless the Legislature expresses a different intention' "].) But by virtue of Government Code section 9606, this presumption does not apply when a statutory enactment repeals a purely statutory cause of action. In that instance, the enactment takes immediate effect in all pending cases--including cases in which a judgment has been entered but the matter is pending on appeal--unless the enactment contains a saving clause. (Governing Board v. Mann (1977) 18 Cal.3d 819, 829; Northern Cal. Carpenters Regional Council v. Warmington Hercules Assocs. (2004) 124 Cal.App.4th 296, 302; Beckman v. Thompson (1992) 4 Cal.App.4th 481, 489.)

Government Code section 9606 not only provides that any statute may be repealed at any time (except when vested rights would be impaired), but it gives notice that "[p]ersons acting under any statute act in contemplation of this power of repeal." In Callet v. Alioto (1930) 210 Cal. 65 (Callet ), the California Supreme Court explained the rule and its application, despite the general presumption against retroactivity. The Supreme Court there stated: "It is too well settled to require citation of authority, that in the absence of a clearly expressed intention to the contrary, every statute will be construed so as not to affect pending causes of action. Or, as the rule is generally stated, every statute will be construed to operate prospectively and will not be given a retrospective effect, unless the intention that it should have that effect is clearly expressed. It is also a general rule, subject to certain limitations not necessary to discuss here, that a cause of action or remedy dependent on a statute falls with a repeal of the statute, even after the action thereon is pending, in the absence of a saving clause in the repealing statute. [Citations.] The justification for this rule is that all statutory remedies are pursued with full realization that the legislature may abolish the right to recover at any time. (Sec. 327, Pol.Code [now Gov.Code, §  9606].) This rule only applies when the right in question is a statutory right and does not apply to an existing right of action which has accrued to a person under the rules of the common law, or by virtue of a statute codifying the common law. In such a case, it is generally stated, that the cause of action is a vested property right which may not be impaired by legislation. In other words, the repeal of such a statute or of such a right, should not be construed to affect existing causes of action." (Id. at pp. 67-68, emphasis added.)

Thus, in Callett, the Supreme Court reasoned that when a right of action or remedy is created entirely by statute, it is not a vested property right, and under Government Code section 9606 a person pursuing that statutory right of action or remedy is on notice that their statutory right may be impaired by legislation at any time. The Supreme Court's subsequent decision in Evangelatos v. Superior Court, supra, 44 Cal.3d 1188, does not affect this reasoning because the statute analyzed in Evangelatos "modified the traditional, common law 'joint and several liability' doctrine" (id. at p. 1192) and thus affected vested rights, to which the presumption of prospectivity applies--it did not repeal a statutory right of action or remedy that had not vested.

Thus, in accordance with Callet, to determine whether Proposition 64 applies to this pending action, we must address two questions. First, did the existing right of action accrue to plaintiffs under the rules of the common law or by virtue of a statute codifying the common law? If it did, the repeal rule does not apply and the amendments to the UCL and false advertising law do not apply in this case. Second, if the right of action accrued to plaintiffs solely by statute, did Proposition 64 repeal that statutory right? If so, the amendments apply to plaintiffs' claims.

Our Supreme Court repeatedly has held that the unfair competition tort set forth in section 17200 et seq., and its predecessor statute, "cannot be equated with the common law definition of 'unfair competition.' " (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 109 (Barquis ); accord, Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 181, fn. 9; Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1264.) Most importantly for the purposes of this case, the statute granted to persons who did not suffer competitive injury the right to bring representative actions on behalf of the general public--a right that did not exist under the common law.

As the Barquis court explained, "Although in a common law context, competitive injury originally composed an essential element of the tort of 'unfair competition,' the Legislature, by adopting [Civil Code] section 3369, broadened the scope of legal protection against wrongful business practices generally, and in so doing extended to the entire consuming public the protection once afforded only to business competitors.... [¶ ] ... [Civil Code s]ection 3369's ... broad proscription of 'unlawful [or] unfair ... business practice[s]' illustrates ... a concern for wronged consumers. Moreover, the section demonstrates a clear design to protect consumers as well as competitors by its final clause, permitting inter alia, any member of the public to sue on his own behalf or on behalf of the public generally. If the Legislature had been solely concerned with protection against the evil of unfair competitive advantage, it would certainly have more narrowly circumscribed the class of persons permitted to institute such actions." (Barquis, supra, 7 Cal.3d at pp. 109-110, fn. omitted; see also Bank of the West v. Superior Court, supra, 2 Cal.4th at p. 1264 [the primary purpose of the statutory unfair competition law was to extend to consumers the protection afforded only to business competitors under the common law; "[t]he common law tort of unfair competition, which required a showing of competitive injury, did not provide an effective remedy for consumers"].)

These authorities demonstrate that the right to sue for unfair competition (as well as for false advertising) on behalf of the general public without injury to the plaintiff did not exist at common law. Therefore, Proposition 64 applies in this case because it repealed that right and did not include a saving clause. Accordingly, plaintiffs cannot maintain their cause of action unless they have "suffered injury in fact and ha[ve] lost money or property as a result of [the alleged] unfair competition." (Bus. & Prof.Code, §  17204, as amended; see also Bus. & Prof.Code, §  17535, as amended.) As explained ante, the only allegations that would support such a showing of actual injury or loss have been eliminated through defendants' summary judgment motions.

Plaintiffs Cannot Establish Error With Regard to the Attorney Fees and Costs Award

Plaintiffs first contend the trial court committed legal error in awarding attorney fees in favor of all defendants and against all plaintiffs, jointly and severally. Plaintiffs' contention is based on Code of Civil Procedure section 2033.420, which provides in pertinent part: "If a party fails to admit ... the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves ... the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees." (Code Civ. Proc., §  2033.420, subd. (a), emphasis added.) We reject the contention because plaintiffs forfeited it by failing to object on that ground below. Not only did plaintiffs fail to press that concern in their opposition papers, but there is nothing in the record to suggest they voiced that objection at the hearing. Nor did plaintiffs seek to challenge the trial court's order, or seek clarification thereof, on that--or any--basis. Had plaintiffs brought this concern to the trial court's attention, it could easily have been addressed below. On this record, it would be impossible to assess how much of the fees are attributable to each plaintiff's conduct.

For instance, it appears that one of the bases on which the trial court granted attorney fees involved the denials concerning Brownstein's involvement with D & D. Those denials were asserted in Horse Rescue's response to Brownstein's requests for admissions. However, it is also clear that most of the denials at issue below involved all the parties, and plaintiffs never requested that the trial court make detailed findings as to the specific denials that formed the basis for its ruling.

Moreover, we perceive no substantial prejudice. Grillo verified the responses to the requests for admission, both on his own behalf and on behalf of DELTA and Horse Rescue. Grillo also testified at his deposition that he was the chief executive officer and a director of--and "spoke for"--both entities.

Plaintiffs also contend that the trial court committed legal error in awarding $500 in expert witness fees for Mauney because he did not testify at trial and was merely a consulting expert. In fact, however, Mauney's declaration was a decisive part of defendants' summary judgment motions. "Costs recoverable under section 998, subdivision (c) expressly include 'a reasonable sum to cover costs of the services of expert witnesses, ... reasonably necessary in either, or both, the preparation or trial of the case by the defendant.' " (Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 123; Evers v. Cornelson (1984) 163 Cal.App.3d 310, 317; see also Barnett, supra, 90 Cal.App.4th at pp. 497-498 [following summary judgment, expenses were properly awarded under Code Civ. Proc., §  2033, subd. (o ) ].)

DISPOSITION

The judgment is affirmed. Costs are awarded to defendants D & D Services, Inc., William Gorman, and David Brownstein on appeal. Respondents' request for sanctions on appeal is denied.

We concur: TURNER, P.J., and MOSK, J.

END OF DOCUMENT


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