Jim Porter
Special to the Sun

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September 14, 2012
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Jim Porter: May you club your neighbor's do with a baseball bat?

TRUCKEE, Calif. — Robert Frost wrote “Good fences make good neighbors,” but in the extreme situation (see below), High fences make good neighbors.

Joyce and David Plotnik and their two children moved into a home in Laguna Niguel in 2003. The rear portion of their property slopes upward, abutting John Meihaus’ lot. After having problems with Meihaus, the Plotniks replaced their 3-foot back fence with a 6-foot fence. Meihaus sued, and the Plotniks and Meihaus signed a written settlement agreement in 2007 with mutual restraint and “no disparaging comments” language and an attorneys’ fees clause to the prevailing party if anyone sued.

The Nightmare Neighbor

Did the settlement agreement fully and finally resolve the neighbors’ differences? You know the answer. Meihaus, obviously a very angry man, began a campaign of harassing the Plotniks, including as the Court wrote, “often raising a fist and extending his middle finger (at the family).” Not once but 15 to 20 times. Meihaus would stare at Joyce Plotnik whenever possible. He would back up his car and follow the Plotniks as they walked down the street. A portion of the Plotniks’ fence was torn down and trees damaged. Yard clippings were constantly being dropped into their yard that happened to match clippings from Meihaus’ yard. And more. Then there was the infamous incident — the precipitating event.

Little Romeo Batted

Romeo, the Plotniks’ 12- to 15-pound, 12-inch tall miniature pinscher wandered into Meihaus’ yard. Oops. He made Meihaus’ day. When David Plotnik heard Romeo barking and then squealing, he arrived in time to see the little guy “rolling down the slope hitting a tree.”

Meihaus was holding a bat. In fact, he threatened Plotnik with the bat. When asked why he hit Romeo, Meihaus, who later testified he was acting in self-defense, said he merely used the bat to “guide” Romeo back to the Plotniks’ yard. Like Barry Bonds guiding balls into McCovey Cove.

His “guiding” Romeo seriously injured the dog resulting in significant veterinarian bills, which the treating vet later testified resulted from a traumatic event.

Later the same afternoon, Meihaus’ two sons, both in their 20s, accosted David Plotnik, calling him all sorts of names, even “fatty,” threatening to “kick your a--” and “kill you.” I’ll spare you the sexual disparagements (something about Plotnik’s mother), but they added, “We’re going to kill your dog.” All in all a bad day for the Plotnik family.

Lawsuit

The Plotniks sued Meihaus for breaching the settlement agreement, for assault and for the attack on Romeo, and they sued the sons — seeking punitive damages. The jury awarded substantial damages. The Meihauses appealed.

Breach of Contract

The jury gave the Plotniks damages for Meihaus’ violating the mutual restraint clause in the 2007 settlement agreement. The jury imposed punitive damages — mental suffering and emotional distress — for breach of settlement (contract).

That is very unusual. The Civil Code recites that for breach of contract the damage is “the amount which will compensate the party aggrieved for all of the detriment proximately caused.” Generally, that means no mental suffering and emotional distress damages.

But there is always an exception. One such exception is where the breach is “of such a kind that serious emotional disturbance was a particularly likely result.” The Court of Appeal upheld the jury and found that Meihaus’ repeated acts of harassment were breach of the settlement agreement. Emotional distress damages allowed.

The Attack on Romeo

Most of this Court of Appeal opinion analyzed whether the Plotniks could recover emotional distress damages for the baseball bat attack on their miniature pinscher. Generally, a negligent injury to an animal does not arise to damages for emotional distress. (Remember the case where the vet negligently killed the dog he was treating?)

The Court looked at whether Meihaus’ actions constituted intentional infliction of emotional distress and found that the rude and vulgar behavior was not much more than “mere annoyance.” However, the attack on Romeo was intentional, thus justifying emotional distress damages plus attorneys’ fees.

Here is the take-home quote from the case: “We believe good cause exists to allow the recovery of damages for emotional distress under the circumstances of this case. In the early case of Johnson v. McConnell, the court noted ‘while it has been said that (dogs) have nearly always been held ‘to be entitled to less regard and protection than more harmless domestic animals’ it is equally true that there are no other domestic animals to which the owner or his family can become more strongly attached, or the loss of which will be more keenly felt.’ Additionally, one can be held liable for punitive damages if he or she willfully or through gross negligence wrongfully injures an animal. (Civ. Code, §3340.) Intentionally maiming, mutilating, torturing, or wounding an animal also constitutes a crime. (Pen. Code, § 597.) Now you know.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. He may be reached at porter@portersimon.com or at the firm’s website www.portersimon.com.


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Tahoe Daily Tribune Updated Sep 14, 2012 11:57AM Published Sep 14, 2012 11:56AM Copyright 2012 Tahoe Daily Tribune. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.