Judge: Daniel M. Crowley, Case: 22STCV03072, Date: 2022-09-20 Tentative Ruling
Case Number: 22STCV03072 Hearing Date: September 20, 2022 Dept: 28
City of Long Beach’s Demurrer without Motion to Strike.
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On January 26, 2022, Plaintiff Reinaldo Piedra (“Plaintiff”) filed this action against Defendants Senta Maria Perea (“Perea”), Long Beach Animal Care Services/Animal Control (“LBACS”), City of Long Beach (“City”), Massimo Gagliardi (“Gagliardi”) and Devon Wallis (“Wallis”) for general negligence and strict liability.
On April 7, 2022, Plaintiff filed the FAC.
On July 5, 2022, Plaintiff filed the SAC, noting strict liability was only against Perea.
On March 17, 2022, the City filed a Cross-Complaint against Perea and Gagliardi, and Wallis for indemnity, declaratory relief, equitable apportionment of fault, and contribution.
On August 4, 2022, the City filed a Demurrer to be heard on September 20, 2022. On September 7, 2022, Plaintiff filed an opposition. On September 8, 2022, the City filed a reply.
Trial is scheduled for January 12, 2023.
PARTY’S REQUESTS
The City request the Court sustain the Demurrer, without leave to amend. The demurrer is based on the failure to state a valid claim against a government entity. The City also requests that the Court grant the City its costs of suit.
Plaintiff requests the Court overrule the demurrer.
LEGAL STANDARD
CCP § 430.10 states: “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have the legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible; and (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.”
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.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (CCP § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Id.) 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, 147 Cal.App.4th at 747.)
DISCUSSION
Plaintiff alleges that the City failed to hold a hearing in 2015 to determine whether the subject dog was a vicious animal and should be subject to euthanasia; Plaintiff’s SAC argues that this failure to conduct this meeting resulted in Plaintiff’s injuries 6 years later. As articulated in the Court’s last ruling on a demurrer in this case, Plaintiff does not provide a sufficient basis for the articulation of the elements of causation. There are no factual allegations that establish how the City’s failure to hold this meeting was a substantial factor in causing damages to Plaintiff 6 years later.
As previously articulated, the Plaintiff does not identify a statute that imposes liability on the Defendant, City of Long Beach, for his injuries. The Plaintiff identifies Long Beach Ordinances 6.04.040, 6.6.250, 6.6.270, 6.6.280, and 6.6.290, which identify duties to take up and deliver loose animals, that define “vicious animal”, that state when a hearing shall be heard on whether a dog is a vicious animal, and that any animal found to be vicious may be destroyed. None of these ordinances impose liability on the City of Long Beach for a dog bite. The failure to identify a statute creating liability is the second ground to sustain the demurrer.
Based on the above, the Court sustains the demurrer.
CONCLUSION
Defendants City of Long Beach’s Demurrer is SUSTAINED, with 30 days leave to amend.
Moving party is ordered to give notice of this ruling.
Moving Party is ordered to file the proof of service of this ruling with the Court within five days.
The parties are directed to the header of this tentative ruling for further instructions.