Judge Holly J. Fujie, Case Number: 24STCV05130, Date: 2024-08-22 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

The Court has considered the moving and opposition papers. No reply has been filed. Any reply was required to have been filed and served at least five court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).)

This is a dog bite case brought by Plaintiff against Defendants Wilma Galathe and Imani Bakari. Plaintiff filed a complaint (the “Complaint”) on February 29, 2024, asserting the following causes of action: (1) negligence; and (2) strict liability – dog bite.

On June 27, 2024, Defendant filed the instant Motion to Dismiss For Failure to State A Claim Upon Which Relief Can Be Granted (the “Motion”). Plaintiff filed an opposition on August 6, 2024. No reply has been filed.

As an initial matter, the Court notes that Defendant’s Motion is, in substance, a demurrer and will be considered as such.

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 725.) As a general matter, 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 pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Civil Code section 3342 imposes strict liability on the owner of any dog who has bitten a person while “in a public place or lawfully in a private place . . . regardless of the former viciousness of the dog or the owner's knowledge of such viciousness.” (Civ. Code, § 3342, subd. (a).)

“To succeed in a negligence action, a plaintiff must show the following: (1) the defendant owed the plaintiff a legal duty; (2) the defendant breached the duty; and (3) the breach proximately or legally caused the plaintiff’s damages or injuries.” (Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662.)

Here, the Complaint alleges that on June 7, 2022, Plaintiff was viciously attacked by three pitbull dogs housed at 1412 W. 93rd Street, Los Angeles, CA 90047 (the “Premises”). (Complaint, ¶¶ 9-11.) Galathe is alleged to be the owner of the Premises, who rented it to her daughter, Imani Bakari. (Id., ¶ 13.) The Complaint states: “Indeed, GALATHE provided support to BAKARI to keep and feed the DOGS. At all relevant times, GALATHE knew about the violent nature and history of the DOGS, knew that the Premises were dilapidated and did not restrain the DOGS, and knew that the DOGS were a danger to the community. Nevertheless, GALATHE allowed the DOGS to live at the Premises… without any security or restraints to prevent the DOGS from roaming the neighborhood and harming people in the community.” (Id.)

Here, Defendant’s Motion is based on her assertion that she cannot be liable for the dog bite that occurred on the subject property because she is not the owner of the dogs, she did not have knowledge of the dogs’ presence on the property, and she gave no consent for any dogs to be kept on the property.

In a demurrer, the court only considers what is alleged on the face of the pleadings or from judicially noticeable facts. For pleading purposes, the Court finds that the factual allegations in the Complaint, which are assumed as true, are sufficiently pled to support Plaintiff’s causes of action for strict liability and negligence. Defendant’s contention that she cannot be liable since she is not the owner of the dogs and that she did not consent to the dogs being kept on the property is inapplicable at this stage.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court