Judge Lisa K. Sepe-Wiesenfeld, Case Number: 23SMCV03770, Date: 2024-06-26 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 23SMCV03770, Date: 2024-06-26 Tentative Ruling

Case Number: 23SMCV03770 Hearing Date: June 26, 2024 Dept: N

TENTATIVE RULING

Defendant Heather Village Association’s Demurrer to Plaintiff Eve Elsaid’s Complaint is SUSTAINED with thirty (30) days leave to amend.

Defendant Heather Village Association’s Motion to Strike False Improper and Non-Conforming Matter from Plaintiff Eve Elsaid’s Complaint is DENIED as MOOT.

Plaintiff Eve Elsaid may amend her complaint only as authorized by the Court’s order and may not amend the complaint to add a new party or cause of action without having obtained permission to do so. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)

Defendant Heather Village Association to give notice.

REASONING

Defendant Heather Village Association (“Defendant”) demurs to each claim within Plaintiff Eve Elsaid (“Plaintiff”)’s complaint and moves to strike Plaintiff’s allegation that Defendant is in violation of Civil Code section 3342.

As a preliminary matter, Plaintiff argues that Defendant’s demurrer is untimely. First, Defendant provides evidence that Plaintiff’s counsel agreed to an extension of time for Defendant to file and serve a responsive pleading, and the parties engaged in meet-and-confer efforts, making the demurrer timely. Thus, the Court considers the present demurrer timely.

Legal Standard

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967), but the Court does not “assume the truth of contentions, deductions, or conclusions of fact or law” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125).

Further, the court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. (Code Civ. Proc., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 [“A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment.”]; Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [“When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.”].) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

First Cause of Action: Negligence and Second Cause of Action: Premises Liability

In order to state a claim for negligence, Plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) “The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) “Premises liability is grounded in the possession of the premises and the attendant right to control and manage the premises.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158, quotation marks omitted.)

In the first cause of action, Plaintiff alleges that Defendant Javonte Sales (“Sales”)’s dog attacked and bit her, and she alleges that Defendant had a duty to ensure that invitees and employees onto their property are safeguarded against dog attacks. (Compl., pp. 4, 6.) Put simply, merely stating that Defendant had a duty does not make it so. Plaintiff does not allege that Defendant had knowledge of Sales’ dog’s tendencies, it is not clear that Defendant even had knowledge of Sales’ presence on the property, and there is no basis to concluding that Defendant owed Plaintiff any duty insofar as it related to Sales’ dog as alleged. Further, Civil Code section 3342, subdivision (a), imputes liability on an owner of a dog for damages incurred from a dog bite, and there are no allegations that Defendant owned the dog. For these reasons, Defendant Heather Village Association’s Demurrer to Plaintiff Eve Elsaid’s Complaint is SUSTAINED with thirty (30) days leave to amend.

Motion to Strike

Given the Court’s ruling on demurrer, Defendant Heather Village Association’s Motion to Strike False Improper and Non-Conforming Matter from Plaintiff Eve Elsaid’s Complaint is DENIED as MOOT.