Court Prunes Judgment Against Dog Batterer

     SAN FRANCISCO (CN) – A man who struck his neighbors’ dog with a baseball bat persuaded a California appeals court to rein in a $430,000 emotional distress award.
     Set in the upscale coastal community of Laguna Niguel, the feud between the Plotniks and the Meihauses played out like a modern-day telling of the Hatfields and the McCoys.
     David and Joyce Plotnik said the trouble began when they moved next door to John Meihaus in 2003 and built a 6-foot fence along the common boundary between their properties.
     In 2007, the Plotniks settled an ensuing lawsuit by agreeing to move the fence back 3 feet. The settlement, which released both families from further claims, included a mutual restraint provision as well as a clause that prohibited both families from slandering the other publicly.
     But the Plotniks allegedly began finding trash and yard clippings dumped on their side of the fence. They claimed Meihaus often flipped them off when he was out jogging.
     Joyce Plotnik said Meihaus intimidated her one day at the community pool by sitting across from her and staring at her for 20 minutes. Meihaus denied all of these incidents, but did admit to warning the Plotniks to not “let your dog piss on other people’s lawns.”
     Things came to a head in 2009 when David Plotnik went out to photograph more yard clippings dumped over the fence. He said he opened the rear gate and his miniature Pinscher named Romeo ran into the Meihaus yard. He heard Romeo bark and then squeal, and then saw Romeo “rolling down the slope through the open gate and hit a tree. Plotnik went through the gate and saw Meihaus holding a bat, returning to his house.”
     When Plotnik confronted Meihaus, he said Meihaus told him to “be more courteous and get your dogs to stop barking.” Meihaus claimed he used the bat to “guide” Romeo back to the Plotnik yard.
     Later that day, Meihaus’ sons John III and Greg called Plotnik “punk ass bitch” and “fatty,” and threatened to “kick [his] ass” and “kill” him. They also asked: “Why don’t you suck my dick.”
     The Meihaus sons acknowledged the incident, but claimed Plotnik insulted them as well. Leg surgery for Romeo cost the Plotniks $2,600.
     When the Plotniks sued, Meihaus responded with his own breach of contract claim for violating the earlier settlement. A jury awarded David Plotnik a total of $175,600 for a variety of claims, including actual damages, emotional distress, assault and trespass; the same jury handed Joyce Plotnik $255,210.
     Meihaus moved for a new trial claiming the damage awards were excessive, but Orange County Superior Court Judge Sheila Fell reduced the total by $80,000 after the Plotniks accepted a remittitur.
     On Friday, however, California’s Fourth Appellate District said the award was still too high.
     “The Meihaus brothers aggressively approached Plotnik and threatened to both beat and kill him and the family dog,” Judge William Rylaarsdam wrote for three-member panel. “But Plotnik did not testify that either brother displayed a weapon, took a swing at him, or otherwise attempted to touch him.”
     “The brothers’ actions and words were aggressive and threatening, and while their behavior might support relief on some other ground, neither committed an act that could or was ‘inten[ded] … to inflict immediate injury on’ Plotnik,” the judge added, citing case law.
     Rylaarsdam also rejected claims that Meihaus hit Romeo in self-defense.
     While the Plotniks can recover economic and emotional damages out of the assault on Romeo, there is no basis for negligence and emotional distress awards.
     “The damages awarded to plaintiffs for negligent infliction of emotional distress are not identical to the sums they recovered for breach of the settlement agreement,” Rylaarsdam wrote. “But the duty underlying each cause of action is identical and we see no basis for distinguishing between the emotional distress plaintiffs suffered because of Meihaus’s breach of the settlement and his liability in tort for negligent infliction of emotional distress.”
     The emotional distress awards are “duplicative,” according to the ruling.
     “While Meihaus’s vexatious conduct and his injuring of Romeo might entitle plaintiffs to recover for intentional infliction of emotional distress, we have already upheld plaintiffs’ recovery on these grounds by affirming the contract and trespass to personal property verdicts,” Rylaarsdam wrote. “Allowing recovery for the same conduct here would amount to double recovery. Consequently, we reverse the damage awards both plaintiffs recovered against Meihaus for intentional infliction of emotional distress.”
     Meihaus cannot get a new trial.
     “In light of our limiting plaintiffs’ recovery to the damages awarded for breach of contract, trespass to personal property for injuring Romeo, negligence concerning the fence, and David Plotnik’s emotional distress claim against Greg Meihaus and John Meihaus III, the concern over a duplicative damage award has been eliminated,” Rylaarsdam wrote.
     The Plotniks will go home with just over $160,000, a $270,000 reduction.

%d bloggers like this: