Plaintiff's First Amended Complaint:
1. Fraud and Deceit
2. Negligence (Lack of Consent)
3. Breach of Contract
On or about September 27, 1997, plaintiff consulted defendants and each of
them for veterinary services for plaintiff's beloved companion cat, RUSTY,
(hereinafter, "Rusty") owned by plaintiff. Defendants and each of them
verbally agreed to and undertook to provide paid service.
On or about September 28, 1997, defendant Dr. Rooks performed surgery on
plaintiff's beloved companion cat "Rusty;" thereafter
"Rusty" suffered for four days and on October 1, 1997,
"Rusty" died from cardiac arrest while in the care and possession of
the defendants and each of them.
Defendants' conduct resulting in "Rusty's" death caused plaintiff
to suffer damages in excess of $25,000.00.
All-Care paid off out of court.
Plaintiff is informed and believes and thereupon alleges that during 1997,
prior to September 27, 1997, defendants falsely and fraudulently and in
violation of Business and Professions Code sections 651, 4883(f) and (i) and
17500, through the medium of print ads (attached as Exhibits 1 and 2)
represented to the public, and that class of persons who seek high-level care
for their beloved companion animals, such as the plaintiff, that defendants Dr.
Rooks and All Care had a staff of Board Certified Specialists, specially-trained
nurses and state of the art equipment needed to provide top-level veterinary
care 24 hours a day. On or about September 27, 1997, defendant Dr. Rooks, for
himself, and as an agent of All Care, falsely and fraudulently represented
directly and verbally to the plaintiff that "we have the finest Board
Certified specialists and the very latest state of the art equipment. No one
else but ------- (a New York hospital plaintiff cannot recall) has anything
close to this"; Dr. Rooks indicated that the surgery was
"necessary" because "Rusty" was "in pain"; that
"Rusty" exhibited no symptoms of pain because "cats are
stoic", that "Rusty" would become "crippled" if he did
not have the surgery; Dr. Rooks characterized the surgery "simple and
routine", indicating that plaintiff would "have your kid home the next
day" and that if it were his cat "he would not hesitate, except, of
course, if money is a problem"; that Dr. Rooks derives his authority by
being the owner of All Care; Dr. Rooks was speaking to the plaintiff when he
made the foregoing misrepresentations and false and fraudulent statements; that
Dr. Rooks said that All Care was staffed with Board Certified specialists (said
verbally and by way of writings in the reception area of All Care) that All Care
had state of the art equipment, that surgery was necessary for plaintiff's cat
"Rusty," that the surgery was simple and routine; the statements were
made on or about September 27, 1997; the statements induced plaintiff's reliance
by making her feel certain that "Rusty" would be given the highest
quality care by board certified specialists with all the latest and best
equipment available to them and that given all of those circumstances surely
"Rusty" would be in good hands; plaintiff's reliance resulted in her
leaving "Rusty" in the care of the defendants where she did not
receive the care of board certified specialists and did not have the equipment
necessary for her care.
Plaintiff is informed and believes and thereupon alleges that the
representations were false; the true facts are that the nursing staff referred
to in the print ads is not "specialized"; the "nurses"
consist of unlicensed individuals hired as "veterinary technicians";
there is no "staff of Board Certified Specialists"; of the
veterinarians pictured in the ad, only defendant, Dr. Rooks, is Board Certified;
the remaining six are not only not "Board Certified" but do not have
any special training; of the remaining six veterinarians, several live out of
state and come to All Care rarely and irregularly, there are not "over 25
doctors on staff"; only the 13 doctors depicted in exhibits were "on
staff"; the equipment necessary to monitor plaintiff's beloved
"Rusty" after surgery was inadequate.
The facts that defendants, Dr. Rooks and All Care, falsely and fraudulently
misrepresented in its print ads and the facts falsely and fraudulently
misrepresented verbally by defendant Dr. Rooks directly to plaintiff were all
material in that they are the facts upon which plaintiff based her decision to
consult with defendants, Dr. Rooks and All Care, and her decision to leave her
beloved "Rusty" in defendants' care for surgery; defendants, All Car
and Dr. Rooks, knew that such facts would be the basis of plaintiff's decision
to engage defendants and each of their services as well as the basis of her
consent to the surgery and therefore that the facts were material, and
defendants and each of them also knew that the true facts were not known to or
readily accessible to the plaintiff; plaintiff acted in reliance on the
foregoing false and fraudulent statements by the defendants in deciding to
consult the defendants and in agreeing to allow defendant Dr. Rooks to do
surgery on "Rusty."
Plaintiff is informed and believes and thereupon alleges when defendants, All
Care and Dr. Rooks, made the false representations each knew that they were
false because defendant, Dr. Rooks, is the owner and operator of All Care and by
that capacity would have known the composition and qualifications of his own
staff, and the nature and condition of his equipment.
Plaintiff is informed and believes and thereupon alleges that defendants, All
Care and Dr. Rooks, misrepresented the aforestated material facts with an intent
to defraud the plaintiff and all members of that class of persons who want to
provide the best available health care for their companion animals, and for the
purpose of inducing said class of persons, including the plaintiff, to rely upon
such representations by trusting their companion animals including plaintiff's
beloved companion "Rusty" to defendants' for veterinary care.
At the time the aforementioned misrepresentations were made, and at the time
plaintiff took the action of leaving her beloved "Rusty" in the care
of the defendants and each of them, plaintiff was ignorant of the falsity of
said misrepresentations and believed them to be true. In reliance on all of
these misrepresentations, individually and in toto, plaintiff was induced to and
did consult with defendants and then did entrust her beloved "Rusty"
to defendants' care for surgery and post-operative care; plaintiff's reliance on
the representations of the defendants' was justified because defendants' print
ads were large and impressive and plaintiff had seen them many times in the
past; plaintiff had read about All Care and heard about defendant, Dr. Rooks, on
television; plaintiff was devoted to her companion cat "Rusty" and
wanted only the best care available thereby making her vulnerable to the
deceptive language defendants used in their ads which Dr. Rooks repeated to
plaintiff; plaintiff reposed trust and confidence in defendant, Dr. Rooks,
because of his superior knowledge, experience, education, and training;
plaintiff had no reason to doubt the defendants' truthfulness. Had plaintiff
known the true facts, i.e., that there was no "staff of Board Certified
Specialists", no "highly specialized doctor and nursing staff",
that in fact most of the technicians All Care employed had little or no training
and/or experience, and that the equipment "Rusty" needed would not be
available, plaintiff would never have engaged the services of defendants, All
Care and Dr. Rooks, and clearly would never have left her beloved
"Rusty" in defendants' care for surgery.
As a direct and proximate result of the aforementioned conduct and
misrepresentations of material facts by the defendants and each of them,
plaintiff suffered the loss of her companion cat, and was caused to incur the
expenses of pathologists and crematory services in connection with "Rusty's"