Alec B. Wisner (SBN 63221)
H. Scott Leviant (SBN 200834)
Stanbury & Fishelman, Inc.
9200 Sunset Boulevard, Penthouse 30
Los Angeles, CA 90069-3601
Tel: (310) 278-1800
Fax: (310) 278-1802
Attorneys for Plaintiff, LINDA DALZIEL
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
LINDA DALZIEL,Plaintiff,
vs.
BARBARA PARKENING, DOE Defendants 1-50, inclusive,
Defendants. / Case No.: EC 026 281
Hon. Carl J. West
FIRST AMENDED COMPLAINT
1.STRICT LIABILITY
2.RESPONDEAT SUPERIOR
3.LANDOWNER/PREMISES LIABILITY
4.NEGLIGENCE/
NEGLIGENCE PER SE
5.NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
6.CIVIL RIGHTS VIOLATIONS
7.INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
DEMAND FOR JURY TRIAL
Plaintiff, LINDA DALZIEL, complains of Defendants and alleges as follows:
INTRODUCTORY ALLEGATIONS
“There is no rampart that will hold out against malice.” – Tartuffe [1664], act I, sc. i, Molière [Jean Baptiste Poquelin]
1.Lemurs are members of the Order of Primates, which Order includes two distinct Suborders. The Anthropoid Suborder includes the more advanced primates, such as monkeys, apes, gorillas and man. The Prosimian Suborder, of which lemurs are members, encompasses primates reminiscent of the primitive ancestors of modern primates. Lemurs are indigenous exclusively to the island of Madagascar (with the city of Burbank being one possible exception). Lemurs are predominantly arboreal in nature, leaping amongst tree branches with great facility.
2.One unusual feature common to most lemurs, found on the second digit of their hind feet, is an enlarged “toilet claw” used for grooming. This claw is long and hook-shaped, designed to comb through thick fur; however, this same claw can be utilized as a weapon to slash flesh when used in conjunction with a lemur’s extraordinary leaping ability.
3.Two of the most common causes of death in young lemurs are falls from high tree branches and savage attacks by other lemurs. Young lemurs are so instinctually driven to leap as a mode of travel that they often attempt such jumps between tree branches before they are sufficiently matured to accomplish these leaps with the requisite dexterity. The primitive and violent instincts of the prosimian lemur are exemplified by the behavior of adult lemurs that encounter undefended youngsters; they will often rip them apart in a display of feral territorialism.
4.In the instant matter, Plaintiff, LINDA DALZIEL, was the victim of the primitive, wild instincts of a dangerously violent lemur. Lawfully present, as an invitee, in the residence of Defendant, BARBARA PARKENING, Plaintiff was attacked by Defendant’s lemur, a member of Defendant’s menagerie of illegally owned wild animals. The lemur ripped open Plaintiff’s face to the bone, once in the cheek and once in the soft tissue between her eyebrow and eye, by leaping at Plaintiff and using the force of its impact to gouge deeply into her flesh with its hooked “toilet claw.” Plaintiff, a professional singer who had toured with such notables as Al Jarreau, Boz Skaggs and Tears for Fears, suffered more than the shock and pain of having her face torn open by a wild animal; she suffered the agonizing realization that, in an industry driven as much by appearance as by ability, her singing career was as mangled as her bleeding face.
5.Defendant, BARBARA PARKENING, suffered no such agonies. In fact, her every action before and after the attack on Plaintiff has demonstrated, through her inexcusable conduct, a complete disdain for the safety and well-being of humans and a complete indifference to the injuries that her illegally maintained “pets” have inflicted upon others. The attack on Plaintiff was not the first time that Defendant’s lemur had injured a person. At least one other person had been attacked prior to Plaintiff, but Defendant, BARBARA PARKENING, did nothing to prevent the recurrence that injured Plaintiff; her wild animal menagerie was more precious to her than was the safety of other humans. After Plaintiff was attacked, Defendant continued her demonstrably callous disregard for the safety of others by persisting in her unlawful behavior. Defendant even engaged in such outrageous conduct as attempting to intimidate Plaintiff from pursuing her legal rights through a series of threatening and harassing telephone calls from Defendant and her agents. Subsequent to the attack upon Plaintiff, Defendant’s lemur has attacked other humans and, still, Defendant continues her malicious refusal to take corrective action. Even after the filing of this lawsuit, Defendant’s residence is still a de facto illegal zoo; exemplary damages are the only means by which Defendant’s improper and illegal behavior will be appropriately modified.
PARTIES
6.Plaintiff, LINDA DALZIEL (hereinafter “Plaintiff DALZIEL”) is an individual and, at all times mentioned in this Complaint, has been a resident of the County of Los Angeles, State of California.
7.Defendant, BARBARA PARKENING (hereinafter “Defendant PARKENING”) is an individual and, at all material times herein, has been a resident of the State of California.
8.Plaintiff is unaware of the true names, identities and capacities of Defendants sued herein as DOE Defendants 1-50, and Plaintiff will amend this Complaint to allege their true names and capacities when ascertained. Plaintiff is informed and believes, and based thereupon alleges, that each of the individuals and/or entities sued herein as a DOE Defendant is legally responsible in some manner for the events and happenings set forth herein, and has legally caused injuries and damages to Plaintiff as set forth below.
9.Plaintiff is informed and believes, and based thereupon alleges, that each of the Defendants, including DOE Defendants 1-50 was the agent, ostensible agent, servant, representative, associate, borrowed servant, employee and/or joint venturer of each other Defendant, and at all relevant times was acting in the course and scope of such agency, service, employment and/or joint venture, and with the consent, permission and/or ratification of the co-defendants, and each of them. Upon further information and belief, each and every Defendant as aforesaid, when acting as a principal, was negligent in the selection, hiring and supervision of each and every Defendant as an agent, servant, employee and/or joint venturer.
10.At all times set forth herein, the acts and omissions of each Defendant caused, led and/or contributed to the various acts and omissions of each and all of the other Defendants, legally causing Plaintiff’s injuries and damages as set forth below.
GENERAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
11.At all times set forth herein, Defendant PARKENING owned, maintained, controlled, supervised, managed and entrusted an apartment located at 1002 Riverside Drive, #32, Burbank, California (hereinafter “the Apartment”).
12.Fish and Game Code section 2118 provides, in pertinent part:
It is unlawful to import, transport, possess, or release alive into this state, except under a revocable, nontransferable permit as provided in this chapter and the regulations pertaining thereto, any wild animal of the following species:
. . .
(b) Class Mammalia (mammals)
Order Primates
All species except those in family Homonidae
. . .
Order Rodentia (rodents)
All species, except domesticated golden hamsters, also known as Syrian hamster, Mesocricetus auratus; domesticated races of rats or mice (white or albino; trained, dancing or spinning, laboratory-reared); and domestic strains of guinea pigs (Cavia porcellus).
Order Carnivora (carnivores)
All species, except domestic dogs (Canis familiaris)and domestic cats (Felis catus).
13.Burbank Municipal Code section 6-302, subdivision (a) provides:
No person shall keep any nondomestic animal not listed in Section 6-301 without first obtaining a permit from the Animal Shelter Superintendent so to do.
Lemurs are not included in the list of animals set forth in Burbank Municipal Code section 6-301.
14.Burbank Municipal Code section 6-302, subdivision (f) provides:
It is hereby declared a nuisance for any person to keep any such animal without complying with this section, or to allow such animal to escape and injure or damage any person or property. In addition to any other remedy in this Code, penal or otherwise, the City Attorney may institute an action to summarily abate such nuisance, and if a permit has been issued it may be summarily revoked by the Animal Shelter Superintendent.
15.Burbank Municipal Code section 6-303, subdivision (a) provides:
No person shall keep any animal, wild or domestic, other than horses, dogs, cats, pigs, fish, white mice, rats, turtles, canaries or birds of the parrot or psittacine family within thirty-five (35) feet of any inhabited structure.
16.Burbank Municipal Code section 6-1002 provides:
No person keeping a dog or other animal known by him to be vicious or dangerous shall allow the same to run at large or to run loose on or within the premises of such person, in such a manner as to endanger the life or limb of any person lawfully entering such premises.
17.Burbank Municipal Code section 6-1101 provides:
No animal shall be allowed to cause or to constitute a hazard or menace to the health, peace or safety of the community.
18.At all times set forth herein, Defendant PARKENING housed wild animals in her Apartment without obtaining the necessary permits or licenses required by law. The wild animals included a lemur, which is a primate of the primitive Prosimian suborder, a serval, which is a large spotted jungle cat, approximately three feet in length and two feet high at the shoulder, found in most parts of non-arid Africa, and a flying squirrel. A true and accurate copy of a picture of a lemur is attached hereto as Exhibit “A,” and incorporated herein by this reference. A true and accurate copy of a picture of a serval is attached hereto as Exhibit “B,” and incorporated herein by this reference.
19.Other individuals, known to Defendant PARKENING, resided in, and/or were given open access to, her Apartment. These individuals included, but were not limited to: Aubrey Larker, Angela Langtree, Randall Johnson, and Defendant PARKENING’s nephew, Vic, whose last name is presently unknown to Plaintiff. Defendant PARKENING was aware of the habitual presence of these individuals in her Apartment. Defendant PARKENING was further aware that these individuals brought guests with them to her Apartment. Despite her awareness of substantial guest traffic in her Apartment and despite her awareness of the unusual risks posed by her wild animals housed therein, Defendant PARKENING made no effort whatsoever to limit such access to her Apartment.
20.For some time prior to January 7, 1998, Lisa Bradley (hereinafter “Bradley”), a former Olympic equestrian gold medal winner, was employed by Defendant PARKENING to care for certain animals, including but not limited to a lemur, a serval and a flying squirrel, all of which were housed in the Apartment and owned by Defendant PARKENING. During all relevant times herein, Defendant PARKENING was on vacation and had entrusted access to the Apartment to Bradley to perform duties related to her employment. Defendant PARKENING would leave detailed instructions behind in her residence, specifying feeding times, feed amounts and other care directives for her employee, Lisa Bradley, but at no time did those instructions include prohibitions against inviting guests to accompany Lisa Bradley while she engaged in her animal care duties. In fact, the written care instructions left by Defendant PARKENING for Lisa Bradley were utterly lacking in safety directives of any sort.
21.Defendant PARKENING’s possession, in her Apartment, of wild animals known to have vicious propensities constituting a hazard, was in violation of, inter alia, Fish and Game Code section 2118, and the Burbank Municipal Code, sections 6-302, 6-303, 6-1002 and 6-1101.
22.Approximately two weeks prior to January 9, 1998, Defendant’s lemur attacked Aubrey Larker. Plaintiff is informed and believes, and thereupon alleges, that Aubrey Larker required stitches to close the wound inflicted by Defendant’s unlawfully housed lemur. Defendant was aware of the attack upon Aubrey Larker prior to January 9, 1998, but callously refused to take action to safeguard others entering her Apartment. Defendant also failed to issue any sort of warning to her employees charged with caring for her wild animals. Defendant PARKENING, through such conduct, expressed an utter disregard for the safety of others by willfully, maliciously and recklessly failing to even attempt to reduce the risks posed by her illegally owned wild animals that she kept in her highly trafficked residence.
23.On or about January 9, 1998, Plaintiff DALZIEL accompanied Lisa Bradley to the Apartment of Defendant PARKENING. Plaintiff DALZIEL, at that time, had no knowledge of the previous attack by the lemur on Aubrey Larker. Angela Langtree arrived at the Apartment in close temporal proximity to the arrival of Plaintiff DALZIEL and Lisa Bradley. All three women then entered the Apartment.
24.At that time and place, while Plaintiff DALZIEL was quietly waiting for her friend, Lisa Bradley, to complete her animal care duties, Defendant PARKENING’s lemur leapt approximately five (5) feet from a nearby countertop, violently striking Plaintiff in the face and tearing open a deep gash in her cheek with its “toilet claw.” Plaintiff covered her face with her hands in complete shock after the unexpected and unprovoked attack.
25.At that time and place, Angela Langtree, in apparent shock at the vicious attack upon Plaintiff DALZIEL, exclaimed “Oh my God, I think the monkey got her!” Angela Langtree then requested that Plaintiff DALZIEL reveal to her any facial injuries that DALZIEL had sustained. Plaintiff lowered her hands so that Angela could inspect her face. As soon as Plaintiff lowered her hands from her face, the lemur again launched itself at Plaintiff, once again using its hooked “toilet claw” to gouge a second deep wound in her face, this one approximately one centimeter above her eye.
26.Immediately after the two attacks by the wild lemur, Plaintiff DALZIEL’s face began bleeding profusely. Plaintiff went into a bathroom in the Apartment, accompanied by Lisa Bradley and Angela Langtree, to see what damage had been done. Plaintiff was horrified to see a substantial amount of blood streaming down her face, and the three women used several towels in a futile effort to staunch the unrelenting seepage of blood from the two gashes on her face. At some point during the efforts to stop the bleeding from Plaintiff’s face, Aubrey Larker arrived at the Apartment. Upon seeing Plaintiff’s face, Aubrey Larker urged Plaintiff to seek immediate hospital attention for her injuries.
27.Later that same day, Plaintiff sought treatment at Providence Saint Joseph Medical Center. Plaintiff received stitches to close the wounds; however, the hospital did not provide the services of a cosmetic surgeon to close the wounds in a manner designed to minimize scarring. Because of the risk of infection, no bandages could be placed over the sutures on Plaintiff’s face. Plaintiff was thus forced to endure the subsequent humiliation of displaying her swollen, red face with prominently visible blue sutures whenever she went out of her residence.
28.On the morning of the day after the attack, Plaintiff awoke and was shocked at the sight of her damaged face when she inspected her injuries in a mirror. Plaintiff DALZIEL photographed her face to document the repugnant state in which Defendant PARKENING’s illegally maintained wild primate had left her. A true and accurate color copy of that photograph is attached hereto as Exhibit “C,” and incorporated herein by this reference.
29.In the weeks following the lemur attack, the area around Plaintiff’s injured eye became black and swollen, and remained noticeably disfigured and discolored for well over a month. The sutures were removed after approximately one week; however, the laceration to Plaintiff’s cheek oozed purulent fluid (pus) for a month, prompting a physician that saw Plaintiff about one month after the lemur attack to prescribe Cipro, an antibiotic.
30.Approximately one month after the attack, Dr. Dennis Witlow, a cosmetic surgeon, evaluated Plaintiff’s facial damage. Plaintiff was devastated to learn that, while the scarring could be minimized through future cosmetic procedures, the scars could never be entirely eliminated.
31.Approximately four days after the January 9, 1999, attack by Defendant PARKENING’s lemur upon Plaintiff’s person, Plaintiff DALZIEL was approached by Defendant PARKENING at the Los Angeles Equestrian Center where Plaintiff stables her horse and Defendant stables approximately 40 horses, occupying two barn aisles. At that time, Defendant PARKENING indicated that she was aware that Plaintiff DALZIEL had been attacked.
32.After the attack upon Plaintiff DALZIEL, Defendant PARKENING continued to display her disdain for human safety, placing her desire to own exotic wild animals above the rights and safety of human beings that she permitted to encounter her wild animals. Defendant PARKENING refused to take any sort of precautionary measure to ensure the safety of those individuals encountering her illegal collection of wild animals. Her persistent refusal to acknowledge the impropriety of her behavior, even after multiple attacks upon innocent persons, including Plaintiff, indicates that the threat of compensatory damages alone has not modified Defendant PARKENING’s malicious, oppressive and reckless behavior. Her conduct has expressed a mental state and outlook that requires punitive damages to adequately sanction and modify.