Judge Jill Feeney, Case 21STCV47251 2022-10-28 Tentative Ruling

Judge: Jill Feeney, Case: 21STCV47251, Date: 2022-10-28 Tentative Ruling

Case Number: 21STCV47251 Hearing Date: October 28, 2022 Dept: 30

Department 30, Spring Street Courthouse

October 28, 2022

21STCV47251

Demurrer filed by Defendant Jong Soon Han as to Plaintiff’s First Amended Complaint

DECISION

The demurrer is sustained with leave to amend as the first cause of action and is overruled as to the second cause of action.

If Plaintiff wishes to amend, a second amended complaint must be filed and served within 30 days after the date of this order.

Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.

Background

This is an action for strict liability and negligence arising from a dog bite incident which took place in December 2019. Plaintiff Chul Hee Lim filed his Complaint against Defendants Kung Soon Han, Jong Soon Han, and Does 1 to 20 on December 28, 2021.

Plaintiff filed a First Amended Complaint (“FAC”) on August 29, 2022.

Defendant Jung Soon Han filed his demurrer on September 12, 2022.

Summary

Moving Arguments

Defendant Jung Soon Han (“Jong Soon”) argues that (1) Plaintiff’s claims are time-barred and (2) the complaint does not contain allegations of the dog’s viciousness.

Opposing Arguments

In opposition, Plaintiff argues that the claims are not time-barred due to Judicial Council Emergency Rule 9. Plaintiff also argues that Defendant is strictly liable for any and all damages caused by her dog regardless of past signs of aggression. Additionally, Plaintiff argues the Complaint contains facts that Defendant was the property’s landlord and had prior knowledge of the dog’s vicious nature.

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.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally, and allegations contained therein are assumed to be true”].)

Meet and Confer

Before filing a demurrer and motion to strike, the demurring and moving party is required to meet and confer with the party who filed the pleading demurred to and sought to be stricken in person or by telephone for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the issues in argued in the demurrer and motion to strike. (Code of Civ. Proc. sections 430.41; 435.5.)

Jong Soon’s Counsel submitted a declaration stating he emailed Plaintiff’s counsel to schedule a meet and confer conference and never heard back. (Jeong Decl., ¶4.)

Discussion

Statute of Limitations

Jong Soon first demurs to Plaintiff’s FAC on the grounds that Plaintiff’s claims are time-barred.

Pursuant to California Code of Civil Procedure section 335.1, “Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.”

Here, Plaintiff’s FAC alleges that he was attacked by Defendant’s dog on December 25, 2019. (FAC ¶1.) Plaintiff’s deadline to file his complaint was December 25, 2021. Plaintiff’s Complaint was originally filed on December 28, 2021, which falls after two years from the date of the dog attack.

Plaintiff argues that his claims are not time-barred because the Judicial Council issued Emergency Rule 9 on April 6, 2020, which reads as follows:

Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020, until October 1, 2020.

At the time the Emergency Rule 9 came into effect on May 29, 2020, Plaintiff’s statute of limitations had not expired. Plaintiff’s claim had accrued 3 months and 12 days. Because the statute of limitations for Plaintiff’s claim exceeded 180 days, the statute of limitations was paused between April 6, 2020 and October 1, 2020. Plaintiff’s statute of limitations resumed after October 1, 2020. There were 14 months and 27 days between October 1, 2020 and December 28, 2021. When Plaintiff filed his Complaint, his claim accrued just over 18 months. Thus, Plaintiff’s Complaint was timely filed within 2 years of the attack.

Jong Soon’s demurrer is overruled on this ground.

Vicious Propensity

Jong Soon next argues that there are no allegations in the FAC alleging that his dog was vicious or that Jong Soon knew his dog was vicious.

Civil Code §3342(a) provides that, “The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owners of the dog, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness. . ..” Civil Code section 3342, subd. (a), known as the “dog bite” statute, allows one to recover without having to show fault. “Subdivision (a) of section 3342 has been recognized as imposing a duty of care on every dog owner to prevent his or her dog from biting persons in a public place or lawfully in a private place. (Davis v. Gaschler (1992) 11 Cal.App.4th 1392, 1399.) Simply put, the statute is designed “to prevent dogs from becoming a hazard to the community” (ibid.) by holding dog owners to such a standard of care, and assigning strict liability for its breach.” (Priebe v. Nelson (2006) 39 Cal.4th 1112, 1120.)

Here, Plaintiff’s FAC states that on the day of the attack, “Plaintiff was lawfully on” Jong Soon’s property. (FAC ¶22.) Jong Soon is the owner of the property where Plaintiff was a tenant and owner of the dog that attacked Plaintiff. (FAC ¶4.) Jong Soon’s dog attacked Plaintiff as he bent down to retrieve a key he dropped. (FAC ¶13.) The dog mauled, attacked, bit, scratched, and snapped at Plaintiff, who suffered injuries to his right hand. (FAC, ¶13.)

Because Jong Soon is the dog’s owner, he is strictly liable for injuries caused by the dog regardless of the dog’s past behavior. (Civil Code section 3342, subd. (a).) Although Jong Soon is also Plaintiff’s landlord, he is also the dog’s owner and is thus strictly liable for Plaintiff’s injuries from the dog attack regardless of whether he knew of any past vicious behavior.

Jong Soon cites cases including Drake v. Dean (1993) 15 Cal.App.4th 915, 922, which state that there is no liability when a dog owner has no other reason to know of any dangerous character of the dog. Although the common law rule that a dog owner is not liable for injuries caused by a dog when he is not on notice of the dog’s dangerous propensity abnormal to its class still stands, this rule only pertains to injuries caused by means other than biting. (Johnson v. McMahan (1998) 68 Cal.App.4th 173, 176.) A dog owner remains strictly liable to any person who is bitten by a dog under Civil Code section 3342, subd. (a) regardless s of the owner’s knowledge of former viciousness. Here, Plaintiff’s FAC alleges he was injured when Jong Soon’s dog mauled and bit him. Thus, the FAC alleges facts sufficient to support a claim for strict liability under Civil Code section 3342.

Jong Soon’s demurrer is overruled on this ground.

Aside from Plaintiff’s strict liability claims, Plaintiff also seeks damages under ordinary negligence.

A landlord owes a duty of care to victims of the landlord’s tenants’ dog if: (1) the landlord knows of the dog’s vicious propensities; and (2) the landlord had the power to have taken measures on the property which would have prevented the victim’s injuries. (Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 1839.) With respect to the element of landlord’s knowledge under the first step of this analysis, “a landlord can only be liable if he or she had actual knowledge of the dog’s vicious propensity.” (Id. at 1838.)

Here, Plaintiff’s FAC alleges that Jong Soon and the other property owners “negligently, unlawfully, and carelessly owned, operated, controlled, managed, maintained, and entrusted the aforementioned dog to cause it to run wild and be “at large” without any restraint or supervision and allow them to attack Plaintiff.” (FAC ¶14.) Additionally, Defendants “failed to have the dog under restraint.” (FAC ¶14.)

As Plaintiff’s landlord, Jong Soon owed a duty of care to Plaintiff if he knew of the dog’s vicious propensities. The facts alleged in the FAC merely show that Jong Soon and the other property owners allowed the dog to run free without restraint on the property. Alone, these facts do not show that Jong Soon knew his dog had vicious propensities. Plaintiff does allege that Defendants knew or should have known of the dog’s vicious nature. (FAC ¶1.) Since Plaintiff pled this in the alternative, the demurrer is sustained on this ground with leave to amend. Plaintiff must allege that Defendants had actual knowledge of the dog’s vicious nature.

Jong Soon also argues that there are no allegations as to breach because there are no factual allegations as to what reasonable measures he should have taken and how that failure caused the attack by the dog.

Plaintiff’s FAC cites Los Angeles County Ordinance 10.32.010, which reads:

A dog must be restrained on a substantial leash not exceeding six feet in length by a person capable of controlling the dog, while on public property or common areas of private property. An owner or custodian of a dog may allow the dog to be unrestrained on private property with the owner's or lessor's consent.

The FAC also states Defendants failed to restrain or control the dog, failed to comply with the ordinance, encouraged and allowed the dog to run wild, failed to train the dog, and failed to warn Plaintiff of the dog’s violent propensities. (FAC ¶15.) It is reasonable to infer from the allegations in the FAC that if Defendant had taken these measures, Plaintiff’s injuries would have been prevented. Thus, the FAC sufficiently alleges facts as to breach.

Jong Soon’s demurrer is overruled as to this argument.