Judge: Daniel M. Crowley, Case: 22STCV03072, Date: 2022-12-22 Tentative Ruling

Case Number: 22STCV03072    Hearing Date: December 22, 2022    Dept: 28

Demurrer

Having considered the moving and opposing papers the Court rules as follows.

BACKGROUND

            On January 26, 2022 Plaintiff Reinaldo Piedra (“Plaintiff”) filed a Complaint.  The operative pleading is the Third Amended Complaint (“TAC”), which asserts causes of action for general negligence and strict liability against several defendants.  The TAC asserts the general negligence cause of action against Defendant City of Long Beach (“City”).

            Trial is set for July 26, 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 for negligence, and failure to state a cause of action against a government entity. The City also requests that the Court grant the City its costs of suit.

LEGAL STANDARD

            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 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.”  (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)  “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 p. 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 TAC argues that this failure to conduct this meeting resulted in Plaintiff’s injuries 6 years later.  As articulated in the Court’s two previous rulings in demurrers 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.

In addition, Plaintiff has for the second time failed to identify a statute that imposes liability on the City for his injuries.  Plaintiff identifies Long Beach Ordinances 6.04.040, 6.16.250, 6.16.270, 6.16.280, and 6.16.290, 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 for a dog bite.  The failure to identify a statute creating liability is a second ground to sustain this demurrer.

            Plaintiff sets forth the law for granting leave to amend, but fails to articulate how he can amend his cause of action against the City to render it sufficient.  (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290 [The burden is on the plaintiff “to articulate how it could amend its pleading to render it sufficient.”])  The Court has twice identified the deficiencies with Plaintiff’s cause of action against the City, and on both occasions Plaintiff failed to amend that cause of action to render it sufficient.  Plaintiff has failed to meet his burden and showing how this cause of action can be amended.

            Thus, the City’s Demurrer is SUSTAINED, without leave to amend.  To the extent that the City seeks to recover its costs for this matter, it may file a memorandum of costs pursuant to the applicable rules and laws.

CONCLUSION

            The City’s Demurrer is SUSTAINED, without leave to amend.  To the extent that the City seeks to recover its costs for this matter, it may file a memorandum of costs pursuant to the applicable rules and laws.

            The City is ordered to give notice of this ruling.

The City 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.