Case No. 2010-0037916-CU-POVTA
COMES NOW PLAINTIFF CHARIS WERNER WHO ALLEGES ON INFORMATION AND BELIEF AS FOLLOWS:
1. Plaintiff, CHARIS WERNER, is an adult female, who resides in Thousand Oaks, California.
2. Defendant, TOPOLINE FARM (“TOPOLINE’) is a business engaged in the purchase and sales of horses in the City of Redding, California with an unknown business designation. Its principal place of business is 7039 Ceres Ct., Redding, California 96002.
3. Defendant, HOLLY SINGLETON (‘SINGLETON’) was and is the owner and/or operator of TOPOLINE FARM. At all times material to this complaint, Defendant HOLLY SINGLETON either acted alone or was under the direct supervision, employment and control of Defendant TOPOLINE FARM. At all times mentioned herein, Defendant HOLLY SINGLETON was acting alone or in the course and scope of her employment or agency with the other Defendants. Plaintiff will seek leave to amend this complaint to insert the correct and true names of other Defendants once their true names become known.
4. Each Defendant is the agent of the other Defendants and each Defendant is a co-conspirator with the other Defendants relating to the acts alleged herein.
5. TOPOLINE FARM is a business which, among other things, sells horses to individuals, including individuals throughout the State of California. TOPOLINE and SINGLETON represented themselves as a dealer/broker of horses and represented that they had the experience, expertise and ability to provide horses to customers according to customer desires, anticipated uses and other guidelines.
6. On July 25, 2008, TOPOLINE entered into an agreement with CHARIS WERNER for the purchase of a horse described as ‘N-HIGGINS FOF’ (hereafter, “Higgins”) a Chestnut Haflinger with a white tail and mane, carrying registration number AHR#15049-00. The purchase price was $6,800.00 and the agreement reached between the parties allowed nullification of the agreement in the event of a material breach of the agreement. In the event of a breach, the agreement allowed for recovery of reasonable attorney’s fees and court costs to be awarded in the favor of the wronged party. A copy of the Agreement between the parties is attached hereto and incorporated herein as Exhibit “1”.
7. Plaintiff, CHARIS WERNER, paid her consideration of $6,800.00 and took possession of Higgins, thereby fully performing all obligations required of her under the agreement and contract of sale.
8. The contract for sale and the acts complained of herein occurred in the County of Ventura, which is the proper jurisdiction for this action.
9. The purchase of Higgins was entered into after extensive negotiations and research as to the quality, type and nature of the animal which was to be purchased. Specifically, CHARIS WERNER had told and otherwise informed SINGLETON and TOPOLINE that she was looking for a horse that would be a family pet, would be easy to ride, would be calm, and would not subject her to injury. SINGLETON represented that Higgins was such a horse.
10. As part of its advertising, TOPOLINE and/or SINGLETON classified Higgins as a horse as a beginner; a horse for someone who has just started riding and one who wants to walk and maybe trot.
11. SINGLETON specifically represented to Plaintiff that Higgins was taken on a trail several times, that he has gone out on his own and with mixed groups without any problems, that he had gone through water, roads, cars, busses, bikes, motorcycles and lots of dogs without a second glance. Higgins was also represented as being a fast learner, able to stand rock steady and that his verbal commands are obeyed without question. SINGLETON also informed Plaintiff that she wanted to make sure that Higgins was a calm, steady trail horse and assured Plaintiff that Higgins was.
12. Prior to purchase, SINGLETON made additional representations as to Higgins and his being the horse for Plaintiff, including, but not limited to the following: did well at being double hitched, that he was a ‘total gentleman’ with a beginner child rider – carrying the child carefully and gently all over the trails. Higgins was touted as having passed all of Defendants tests with flying colors, including tests for dogs, tarps, logs, water, roads, groups, riding alone, etc. Specifically, Higgins was described as a horse that was, ‘a beginner safe gelding that I (SINGLETON) am confident in his ability to go anywhere with either an adult or child rider.
13. Additional specific representations include that Higgins “really likes to go slow, more than to go”, that he is “very very good for the kids”.
14. Shortly after purchase, Plaintiff, CHARIS WERNER, rode Higgins and was almost immediately violently bucked off of the horse when Higgins threw a tantrum and broke gait in a canter. The actions of Higgins therefore being completely opposite of what the horse was represented and sold as, as he was not calm, docile and appropriate for a beginner rider. On this basis, Plaintiff alleges and believes that the actions, behaviors and overall demeanor of the horse, Higgins, were misrepresented to her by SINGLETON.
15. Plaintiff would not have purchased Higgins but for the representations that he was calm, quiet and an appropriate beginner horse. Plaintiff would not have ridden Higgins but for the representations that he was calm, quiet and an appropriate “beginner” horse.
16. Plaintiff suffered personal injuries as a result of the misrepresented actions of Higgins, and continues to suffer from such general and special damages.
17. Upon information and belief, Defendant TOPOLINE FARM, by and through their agents and employees, knew or reasonably should have known of violent and dangerous propensities of the horse Higgins, and despite this knowledge, Defendant TOPOLINE FARM and HOLLY SINGLETON represented and sold Higgins as calm and relaxed horse, suited for a “beginner” or “beginning” rider.
18. The information related to the violent tendencies of Higgins was known to Defendants before the acts committed upon Plaintiff.
19. Defendants TOPOLINE and SINGLETON knew or should have known of the prior violent history of Higgins and did nothing to prevent the injury caused to Plaintiff by Higgins attacks on Plaintiff and did nothing to prevent future attacks on other persons and/or patrons.
20. Immediately after the incident in which Plaintiff was injured, Defendants were notified of the injury, of the violent nature of the horse.
21. Immediately after the incident in which Plaintiff was injured, Plaintiff demanded that the horse be picked up by Defendant and that the purchase money for the horse be returned.
22. While the horse was eventually retrieved by Defendants, the purchase price was and has never been returned to Plaintiff despite Plaintiff’s continued demands.
23. CHARIS WERNER has suffered general damages as a result of the incident and will incur future lost earnings as a result of the incident.
24. CHARIS WERNER has suffered special damages as a result of the incident and will incur future lost earnings as a result of the incident.
25. CHARIS WERNER has lost income as a result of the incident and will incur future lost earnings as a result of the incident.
26. The horse, Higgins, was picked up by a representative of SINGLETON and/or TOPOLINE.
27. No payment or reimbursement for the purchase price paid by Plaintiff has been received; all monies have been retained by Defendants.
28. The horse, Higgins, has been resold by Defendants, with Defendants obtaining further monies for the horse, Higgins.
FIRST CAUSE OF ACTION FOR ASSAULT AND BATTERY
29. Plaintiff incorporates all paragraphs of this complaint as though fully set forth herein.
30. Defendant HOLLY SINGLETON engaged in unpermitted and harmful and offensive contact upon the person of Plaintiff CHARIS WERNER by representing to Plaintiff that the instrument of damage, a horse to be sold to Plaintiff, was calm, quiet, a “beginning” horse which was appropriate for children and beginner riders. The horse represented as such was not as indicated, and caused damage to Plaintiff by throwing her viciously to the ground when first ridden.
31. Defendant HOLLY SINGLETON was acting within the course and scope of her duties as a horse trainer, broker or seller or otherwise with the Defendant TOPOLINE FARM, when the horse was sold to Plaintiff.
32. Defendant TOPOLINE FARM and Defendant HOLLY SINGLETON knew or should have known that the horse, Higgins, was temperamental, not quiet, not calm, not appropriate for an inexperienced rider, prone to violence and that he would throw Plaintiff from his back.
33. As a result of the above-described conduct, CHARIS WERNER has suffered and continues to suffer great emotional distress, physical manifestations of emotional distress, embarrassment, loss of self-esteem, disgrace, humiliation and loss of enjoyment of life. As a further result of the conduct described herein, CHARIS WERNER has lost wages and may lose future wages as a result of the incidents.
34. In committing these acts, Defendants acted with willfulness, malice and oppression and with a conscious disregard of the rights, safety and well being of Plaintiff, entitling Plaintiff to an award of punitive damages.
SECOND CAUSE OF ACTION FOR NEGLIGENCE
35. Plaintiff incorporates all paragraphs of this complaint as though fully set forth herein, and as a distinct and separate cause of action, Plaintiff, CHARIS WERNER alleges that Defendants, TOPOLINE FARM and HOLLY SINGLETON acted negligently and were the proximate cause of damages to Plaintiff.
36. The Defendants negligently caused damage to Plaintiff on August 8, 2008 when Plaintiff first rode the horse, Higgins, and found him not to be calm, quiet and gentlemanly as was represented to Plaintiff to be the type of horse he was.
37. Defendants, and each of them, owed duties of care to Plaintiff, who would ride the horse, Higgins, including the duty to provide an adequate description of the type of animal that Higgins was, including his demeanor, style and proclivities for violent behavior. By failing to deliver a horse as they represented, Defendants, and each of them, breached their respective duties of care, by their acts, omissions and/or unlawful conduct as alleged herein.
38. As a result of their said acts, omissions and/or unlawful conduct, the Defendants and DOES 1 through 100, inclusive, and each of them, are liable to CHARIS WERNER for the injuries and damages resulting from the actions which were naturally incurred and were of the type and nature and type of occurrence that such provisions of law were designed to prevent. As a proximate result of the said acts, omissions and/or unlawful conduct of the Defendants, and each of them, Plaintiff was hurt and injured in her health, strength and activity, suffering severe bodily injuries, requiring paramedics, ambulance, hospitalizations, treatments and other type and/or manner of injuries; each and all of which have caused and continue to cause Plaintiff great mental and physical pain and suffering, and Plaintiff is informed and believes, and thereupon alleges, that her injuries will result in permanent disability or scarring, all to her general damage in an amount which will be shown according to proof at the time of trial.
39. As a further proximate result of the said acts, omissions and/or conduct of the Defendants, and each of them, Plaintiff was required to employ and continues to employ physicians and healthcare providers to examine, treat and care for her, and did and continues to incur medical and incidental expenses in an amount which will be shown according to proof at time of trial.
40. As a further proximate result of the said acts, omissions and/or conduct of the Defendants, Plaintiff will be required to employ health care providers and/or other qualified persons to provide for life care, rehabilitation, physical needs and/or functional assistance, for which the amount of expenses will be shown according to proof at time of trial.
41. As a further proximate result of the said acts, omissions, and/or conduct of the Defendants, and each of them, Plaintiff was prevented and will be prevented from attending to her usual occupation, and sustained loss of earnings and impairment of earning capacity, in an amount which will be shown according to proof at time of trial.
42. As a further proximate result of the said acts, omissions and/or conduct of the Defendants, and DOES 1 through 100, inclusive, and each of them, Plaintiff sustained and will in the future sustain further, other, consequential and/or incidental expenses and/or damages, in an amount which will be shown according to proof at time of trial.
43. As a result of these negligent acts and/or omissions to act, Plaintiff has suffered and continues to suffer general and special damages, including medical bills, lost earnings, great emotional distress, embarrassment, loss of self-esteem, humiliation and loss of enjoyment of life.
THIRD CAUSE OF ACTION FOR BREACH OF CONTRACT
44. Plaintiff incorporates all paragraphs of this complaint as though fully set forth herein, and as a distinct and separate cause of action, Plaintiff alleges that on July 25, 2008, an agreement was made between the Plaintiff CHARIS WERNER and Defendants HOLLY SINGLETON and/or TOPOLINE FARM for the sale and purchase of a horse. Under that agreement, SINGLETON and/or TOPOLINE was to provide a horse that was appropriate as ‘beginning’ or ‘beginners’ horse; one that was a family pet and had a calm and easy temperament and was easy horse to ride. SINGLETON and/or TOPOLINE assured, represented and otherwise convinced Plaintiff that the horse, Higgins, had all of the qualities and was the horse that Plaintiff was looking for. Based upon Defendants representations and comments about the horse, WERNER agreed to purchase and did pay Defendants $6,800.00 for the horse.
45. On or about August 8, 2008, Plaintiff WERNER rode the horse, Higgins, for the first time, and was immediately thrown from the horse. Plaintiff, through her husband, immediately contacted SINGLETON regarding the actions of the horse and informed SINGLETON that Plaintiff was in the hospital and that the horse would need to be returned.
46. On August 10, 2008 Defendants were again informed of the actions of the horse and Plaintiff again demanded that the horse be picked up as it was not a “beginning”, or “beginner’s” horse and was otherwise not as represented by Defendants.
47. On August 12, 2008, Defendant SINGLETON finally returned Plaintiff’s phone calls and agreed to pick up the horse and to return all monies paid for the horse.
48. No payment or reimbursement has been received.
49. Plaintiff has performed everything to be performed under the agreement, except those obligations which she was prevented or excused from performing by law or by acts or omissions of Defendants.
50. Plaintiff has suffered damages legally and/or proximately caused by Defendant’s breach of the agreement.
51. Plaintiff is entitled to interest on the principal sum owed by Defendant in an amount to be determined by competent proof, including interest at the legal rate from the date of Defendants breach of the contract.
52. Plaintiff is entitled to her reasonable attorney fees and court costs because of the material breach of the contract by Defendants
FOURTH CAUSE OF ACTION – FRAUD
53. Plaintiff incorporates all paragraphs of this complaint as though fully set forth herein, and as a distinct and separate cause of action, alleges that Defendants HOLLY SINGLETON and TOPOLINE FARM defrauded PLAINTFF as more fully set forth hereafter.
54. Prior to the entering of the agreement between the parties, Defendants SINGLETON and TOPOLINE made representations of material fact to Plaintiff that she had the experience, knowledge and expertise to properly offer for sale, broker or otherwise represent and sell a horse to Plaintiff and would sell to Plaintiff a horse that was apt and fit for Plaintiff’s use according to Plaintiffs guidelines and expectations. The representations made by Defendants as to the type, quality and nature of the horse, Higgins, were in fact false. The truth was that Defendants sold a horse that was not as represented and went ahead with the sale while misleading the Plaintiff by the untrue representations. When Defendants made the representations to Plaintiff as to the nature and demeanor of the horse being sold, Defendants knew that the representations were false or that they had no reasonable ground for believing the representations were true.
55. Defendants SINGLETON and/or TOPOLINE made the representations with the intent to defraud Plaintiff, CHARIS WERNER and induce her to make payments for a horse that was not what she was looking for and what Defendants had represented to her was the case. At the time the Plaintiff agreed to and did purchase the horse, Higgins, Plaintiff did not know Defendants representations were false and believed them to be true. Plaintiff acted in justifiable reliance upon the truth of the representations by Defendants.
56. The acts of Defendants, alleged above, were willful, knowing, wanton, malicious and oppressive, and justify the awarding of exemplary and punitive damages. Plaintiff WERNER did suffer severe and/or extreme emotional distress as a result of Defendant’s actions and Defendant’s outrageous conduct was the actual and proximate cause of Plaintiff’s emotional distress.
FIFTH CAUSE OF ACTION – CONVERSION
57. Plaintiff incorporates all paragraphs of this complaint as though fully set forth herein, and as a distinct and separate cause of action, alleges that Defendants converted funds paid and expended by CHARIS WERNER as more fully set forth herein.
58. Specifically Defendants sold the horse, Higgins to Plaintiff for $6,800.00, breached the contract of sale, retrieved the horse and then commingled and otherwise used funds provided by Plaintiff for their own purpose and to her/their own benefit, disregarding their responsibilities and obligations to Plaintiff.
59. Defendants had a duty to repay Plaintiff the purchase price. Defendants failed to do so to the detriment of Plaintiff, CHARIS WERNER.
60. As a direct and proximate result of the actions of defendants, and each of them, Plaintiff has suffered and will continue to suffer damages in an amount subject to competent proof and within the jurisdiction of this Court.
SIXTH CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
61. Plaintiff incorporates all paragraphs of this complaint as though fully set forth herein, and as a distinct and separate cause of action, alleges Defendant’s conduct was extreme and outrageous and was done intentionally or recklessly.
62. As a result of Defendants intentional or reckless conduct, Plaintiff experienced and continues to experience severe emotional distress resulting in bodily harm.
63. As a result of the above-described conduct, Plaintiff has suffered and continues to suffer great emotional distress, embarrassment, loss of self-esteem, humiliation and loss of enjoyment of life.
64. In committing these acts, Defendants acted with willfulness, malice and oppression and with a conscious disregard of the rights, safety and well being of Plaintiff, entitling Plaintiff to an award of punitive damages.
WHEREFORE, Plaintiff prays as follows:
1. For compensatory damages according to proof;
2. For special damages according to proof;
3. For punitive damages;
4. For attorney fees and costs;
5. For costs of suit;
6. For such other relief which the court deems just and proper.
Trial Hearing September 26, 2011
The court finds and enters judgment for plaintiff Charis Werner against Defendants Holly Singleton, individually and DBA TOPOLINE FARM, as follows: