Metropolitan News-Enterprise


Wednesday, September 5, 2012


Page 1


C.A. Upholds Award for Emotional Toll of Attack on Dog




California law permits an award of emotional distress damages resulting from a malicious attack on the plaintiff’s animal, the Fourth District Court of Appeal has ruled.

Div. Three Friday cut the award of damages to David and Joyce Plotnik from more than $350,000 to $160,000 in their suit against neighbor John Miehaus Jr. and his sons, Greg Miehaus and John Miehaus III, but agreed with the Plotniks and the trial judge that the Miehauses could be held liable for emotional distress as a result of having struck the Plotniks’ dog with a baseball bat.

The panel also upheld an award of more than $90,000 in attorney fees that the Plotniks incurred in order to enforce a settlement agreement in previous litigation with the elder Miehaus.

An Orange Superior Court jury had awarded the Plotniks more than $435,000, but Judge Sheila Fell granted a remittitur.

The opinion by Justice William Rylaarsdam recounted a long history of aggressive conduct by John Miehaus Jr. towards the Plotniks, who moved into their Laguna Niguel home in 2003.

Earlier Lawsuit

Miehaus and his wife sued the Plotniks and their community association after the Plotniks built a six-foot fence along the boundary between the two houses. In a 2007 settlement agreement, the plaintiffs agreed to relocate the fence, by moving it three feet back but putting in a gate allowing them to access the portion of their property on the other side.

The agreement also included a mutual general release; a mutual restraint against harassment or defamation; and an attorney’s fee clause.

After the Miehauses allegedly attacked their dog in 2009, the Plotniks sued. In addition to the trespass to chattel and intentional and negligent emotional distress claims arising from the attack on the dog, the plaintiffs alleged that the elder Miehaus had, on several occasions, breached the settlement agreement by harassing and trying to intimidate them.

In support of their claims, the Plotniks presented photographs of debris which they said Miehaus had thrown onto their property, as well as testimony from themselves, and friends and family members, of various incidents, including that Miehaus once stared at Joyce Plotnik for 20 minutes at the community pool. With regard to the attack on the plaintiffs’ dog, Romeo, David Plotnik said he was out taking photographs of his damaged fence and debris that Miehaus had once again thrown on to his property when he heard the dog squeal and found him injured, with Miehaus standing nearby holding a baseball bat. The defendant, he said, raised the bat to waist level, came within two feet of him, and told him he needed to “get your dogs to stop barking.”

Miehaus denied striking the dog, saying he had merely used the bat to “guide” the dog back onto the plaintiffs’ property. The plaintiffs said the dog was injured, requiring surgery that the veterinarian opined was the result of a traumatic event.

Later that day, Plotnik testified, he was confronted by Miehaus’ sons, who threatened to kill him and his dog and swore at him. The sons, in their 20s, said they approached Plotnik because he was photographing the Miehaus home and said the exchange of insults had been mutual.

The trial resulted in a lengthy special verdict. Jurors found that the elder Miehaus had breached the earlier settlement agreement and caused the plaintiffs emotional distress by doing so, that his sons had assaulted David Plotnik, that John Miehaus Jr. had negligently and intentionally attacked the dog, and that all three defendants intentionally and negligently inflicted emotional distress on David Plotnik and that the elder Miehaus had done so to Joyce Plotnik.

On Miehaus’ cross-complaint for breach of the settlement agreement, the jury found no liability on the part of David Plotnik, and found Joyce Plotnik liable but did not award damages.

‘Part of Everyday Life’

Rylaarsdam, writing for the Court of Appeal, said that some of the conduct complained of by the plaintiffs amounted to no more than the type of annoyance that “is a part of everyday life in an urban environment.” But the constant shoving of debris across the property line, and the use of repeated use of vulgarity toward the plaintiffs and the children, supported the jury’s verdict for breach of the settlement agreement.

California law, the justice went on to say, supports liability for attacking an animal, which may also constitute a crime under Penal Code Sec. 597. This is particularly so, he said, when the plaintiff seeks compensation for intentional injury to a family pet.

This principle has been recognized by other states, he noted, citing, among other cases, one in which the Florida Supreme Court noted that “the affection of a master for his dog is a very real thing and . . . the malicious destruction of the pet provides an element of damage for which the owner should recover, irrespective of the value of the animal.”

The plaintiffs, however, should not have been awarded compensation for both breach of contract and infliction of emotional distress arising from the same conduct, Rylaarsdam said. And separate awards of damages for trespass to chattel and intentional infliction of emotional distress, both arising from the attack on the dog, were similarly duplicative, the jurist said.

The case is  Plotnik v. Meihaus, 12 S.O.S. 4589.


Copyright 2012, Metropolitan News Company