Judge: Ashfaq G. Chowdhury, Case: 24GDCV00357, Date: 2024-10-03 Tentative Ruling

Case Number: 24GDCV00357    Hearing Date: October 3, 2024    Dept: E

Case No: 24GDCV00357
Hearing Date:  10/03/2024 – 8:30am

Trial Date: Unset

Case Name: NATHAN NAKAMURA by and through his Guardian Ad Litem, DAVID ANTHONY NAKAMURA v. AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA; ALEX MATTHEW AGUILA; DOES 1-10

[TENTATIVE RULING ON DEMURRER]

RELIEF REQUESTED
“Defendant AUTOMOBILE CLUB OF SOUTHERN CALIFORNIA (“ACSC”), will demur to the First Amended Complaint (“FAC”) on file herein.

This Demurrer will be made and based on the grounds that the allegations of the Third cause of action for strict liability in the FAC fails to state facts sufficient facts to constitute a cause of action against this demurring Defendant.

This Demurrer is filed following telephonic meet and confer conference between defense counsel and plaintiff’s counsel on August 14, 2024, as required by Code of Civil Procedure §430.41. (Jensen Decla., para. 2).

This Demurrer will be made and based upon Code of Civil Procedure §430.10(e), upon this Notice of hearing, the attached Demurrer to the First Amended Complaint, the instant Memorandum of Points and Authorities, upon all of the records and documents on file herein, and upon such oral and documentary evidence as may be presented at the hearing of this matter.”

(Def. Mot. p. 2.)

BACKGROUND
Plaintiff filed the original Complaint on 2/27/2024.

On 7/15/2024, Plaintiff, Nathan Nakamura by and through his Guardian Ad Litem, David Anthony Nakamura, filed a First Amended Complaint (FAC) alleging three causes of action for: (1) General Negligence, (2) Premises Liability, and (3) Strict Liability.

The first cause of action is alleged against Defendant Alex Matthew Aguila.

The second cause of action for premises liability is alleged against Defendant Automobile Club of Southern California.

The third cause of action for strict liability is alleged against all Defendants.

PROCEDURAL ANALYSIS
Moving Party: Defendant, Automobile Club of Southern California (Defendant or ACSC)

Responding Party: Plaintiff, Nathan Nakamura by and through his Guardian Ad Litem, David Anthony Nakamura

Moving Papers: Demurrer; Request for Judicial Notice

Opposition Papers: Opposition

Reply Papers: Reply

Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP § 1005(b)): Ok
Proper Address (CCP § 1013, § 1013a, § 1013b): Ok

Meet and Confer
A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.”  (Code Civ. Proc., §430.41, subd. (a).)  “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.”  (Code Civ. Proc., §430.41, subd. (a)(2).)

Failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., §430.41(a)(4).)

Here, Defendant’s counsel met and conferred with Plaintiff’s counsel, but the two were not able to resolve the issues raised by Defendant. (Jensen Decl. ¶ 2.)

LEGAL STANDARDS FOR DEMURRERS
Demurrer – Sufficiency
A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda, (2007) 147 Cal.App.4th 740, 747.)  When considering demurrers, courts read the allegations liberally and in context.  (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.)  The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….”  (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)  In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.  (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)  A demurrer tests the pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Code Civ. Proc., §§ 430.30, 430.70.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.) 

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts.  (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.)  “All that is required of a plaintiff, as a matter of pleading … is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.”  (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) 

On demurrer, a trial court has an independent duty to “determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory.”  (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.)  Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.”  (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)  “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.”  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

ANALYSIS

Third Cause of Action – Strict Liability
The instant action arises from a dog bite incident that occurred at the Automobile Club of Southern California, Glendale Branch Office.

Failure to State Sufficient Facts

Defendant, ACSC, demurs to the third cause of action in the FAC for strict liability on the grounds that Plaintiff failed to state facts sufficient to constitute a cause of action.

Defendant’s first argument with respect to strict liability is somewhat unclear.

Defendant argues that the standard applicable to ACSC is negligence, not strict liability.

However, Defendant does not provide support for its argument that Plaintiff can only allege negligence and not both negligence and strict liability.

Defendant cites to negligence cases that set forth the negligence standard for storekeepers that do not own the dog that committed the injury, but those cases simply explain the negligence standard. Those cases do not support Defendant’s argument that Plaintiff can bring only a negligence claim and cannot also bring a strict liability claim.

In fact, Defendant appears to undercut its own argument by citing to CACI 462 and stating that strict liability for a domestic animal with unusually dangerous propensities applies to someone who owned, kept, or controlled the subject animal and had prior knowledge of the animal’s unusually dangerous nature or tendency.

Using Defendant’s own standard set forth in CACI 462 for strict liability, Plaintiff alleged exactly that. Plaintiff alleged that ACSC controlled the canine while it was on its premises, that the canine had an unusually dangerous nature or tendency, and that ACSC knew or should have know that the canine had this nature or tendency.

Therefore, under Defendant’s own standard, Plaintiff did in fact allege the elements of strict liability.

Sham Pleading
Defendant’s arguments with respect to the sham pleading doctrine are confusing to decipher and appear to be unavailing.

Defendant points to case law that explains how under the sham pleading doctrine, when plaintiffs add facts inconsistent with those of previous pleadings, the court may take judicial notice of prior pleadings and may disregard any inconsistent allegations. Defendant also points to case law that explains how under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment.

Defendant argues that the FAC adds new allegations not in the original Complaint in an attempt to support the strict liability claim by alleging that ACSC controlled the canine while it was on its premises. Defendant argues that these allegations should be disregarded pursuant to the sham pleading doctrine.

The Court finds Defendant’s argument unavailing.

The added allegations with respect to ACSC do not add facts that are inconsistent with the prior pleading. While the FAC does in fact add allegations, those allegations are not inconsistent with the prior pleading. Defendant appears to be arguing that since the original complaint alleged that Aguila controlled the dog, the FAC cannot allege that both Aguila and ACSC controlled the dog. However, Defendant fails to realize that two people can exert control over the same thing. Therefore, the additional allegations that ACSC also controlled the dog are not inconsistent with the prior pleading.

Defendant also points to the Complaint and the FAC and how both allege that Aguila owned and controlled the dog and that Plaintiff’s injuries were caused due to Aguila’s failure to control the animal.

Defendant then points to the fact that the FAC adds new allegations that were not in the original Complaint that ACSC controlled the dog while on the premises, that ACSC knew or should have known the dog had a dangerous nature, and that Plaintiff was harmed when the dog escaped from Aguila’s and Defendant’s possession and control.

Defendant’s arguments as to this are also unavailing.

Defendant appears to be under the impression that since Plaintiff alleged Aguila controlled the dog/failed to control the dog, that Plaintiff cannot also allege ACSC also controlled the dog/failed to control the dog. Defendant’s argument is unavailing.

Defendant also makes an argument that does not appear to be related to the sham pleading doctrine. Defendant argues that Plaintiff failed to add any facts that support an allegation that ACSC assumed control over Aguila’s dog or knew or should have known the animal was dangerous.

The Court does not find this argument availing at the pleading stage.

As stated in Dino, Inc. v. Boreta Enterprises, Inc. :

It is, of course, the rule that ultimate facts must be pleaded, rather than legal conclusions, yet the distinction between ultimate facts and conclusions of law is not always clear or easy to state. In Burks v. Poppy Construction Co., 57 Cal.2d 463, 473-474 [20 Cal.Rptr. 609, 370 P.2d 313], the court said: “The distinction between conclusions of law and ultimate facts is not at all clear and involves at most a matter of degree. (Estate of Bixler, 194 Cal. 585, 589 [229 P. 704]; see Clark on Code Pleading (2d ed. 1947) 231; Chadbourne, Grossman, Van Alstyne, Cal. Pleading (1961) 812 et seq.; 2 Witkin, Cal. Procedure (1954) 1140.) For example, the courts have permitted allegations which obviously included conclusions of law and have termed them 'ultimate facts' or 'conclusions of fact.' (See Peninsula etc. Co. v. County of Santa Cruz, 34 Cal.2d 626, 629 [213 P.2d 489] [one is the 'owner' of property]; Rannard v. Lockheed Aircraft Corp., 26 Cal.2d 149, 154 [157 P.2d 1] [act was 'negligently' done]; May v. Farrell, 94 Cal.App. 703, 707 [271 P. 789] [employee was 'acting within the scope of his employment'].) In permitting allegations to be made in general terms the courts have said that the particularity of pleading required depends upon the extent to which the defendant in fairness needs detailed information that can be conveniently provided by the plaintiff, and that less particularity is required where the defendant may be assumed to possess knowledge of the facts at least equal, if not superior, to that possessed by the plaintiff. ...”

(Dino, Inc. v. Boreta Enterprises, Inc. (1964) 226 Cal.App.2d 336, 340.)

TENTATIVE RULING
Defendant’s demurrer to the third cause of action for strict liability is OVERRULED.

Defendant’s request for judicial notice of the Complaint and the FAC is GRANTED.