Department 30, Spring Street Courthouse

December 21, 2022

21STCV47251

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

The demurrer is overruled.

Moving party to provide notice. 

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 first demurrer on September 12, 2022 which was sustained with leave to amend on November 3, 2022.

On November 3, 2022, Plaintiff filed his Second Amended Complaint “SAC”.

On November 22, 2022, Defendant Jong Soon Han filed his demurrer to Plaintiff’s SAC.

Defendant Jung Soon Han argues that the SAC fails to state facts showing Jong Soon had knowledge of the dog’s dangerous propensity. Jong Soon Han alleges the SAC only contains conclusory statements with no real factual allegations pointing to whether he had any knowledge of the dog’s dangerous.

Plaintiff argues that the SAC now alleges Jong Soon Han had actual knowledge and includes new facts that show the dog had a history of growling, showing its teeth, and biting.

None.

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”].) 

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 Han’s Counsel submitted a declaration stating he emailed Plaintiff’s counsel and then met telephonically on this issue. (Jeong Decl., ¶4.) 

Jong Soon Han demurs to Plaintiff’s SAC on the grounds that that there are no allegations in the SAC alleging that his dog was vicious or that Jong Soon Han knew his dog was vicious.

A landlord owes a duty of care 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 SAC states that Jong Soon Han’s dog “had a vicious nature, disposition, and propensity, which was known by defendant. (SAC ¶1.) Prior to the attack, Jong Soon Han knew that his dog “had a history of growling, showing its teeth, and biting other persons and/or tenants.” (Id.) The dog “had a vicious nature, disposition, and propensity, which was known by Defendants. (SAC ¶13.) Defendants failed “to warn Plaintiff that the Subject Dog had violent propensities despite being aware of the Subject Dog’s viciousness as propensity to bite. (SAC ¶16.)

Plaintiff’s SAC alleges that Jong Soon Han knew of his dog was vicious and that he knew the dog had a history of biting other people and tenants. Because the SAC also alleges Jong Soon Han knew of his dog’s history with growling, showing his teeth, and biting, the facts alleged also show that Jong Soon Han should have known his dog was vicious. These are not merely legal conclusions as Jong Soon Han alleges. For the purposes of this demurrer, the SAC adequately alleges facts that show Jong Soon Han knew of his dog’s vicious nature. 

Defendant Jong Soon Han’s demurrer is overruled.