Judge: Lisa R. Jaskol, Case: 22STCV29810, Date: 2024-05-29 Tentative Ruling
Case Number: 22STCV29810 Hearing Date: May 29, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On September 13, 2022, Plaintiff Derrick Bernard (“Plaintiff”) filed this action against Defendants Ericka Gomez (“Gomez”), Sergio Vargas (“Vargas”), and Does 1-50 for general negligence, premises liability, and strict liability.
On April 2, 2024, Vargas filed a demurrer. On April 3, 2024, Vargas filed a motion to strike. The motions were set to be heard on April 30, 2024. On April 18, 2024, Plaintiff filed oppositions. On April 23 and 26, 2024, Vargas filed replies. The Court continued the hearing to May 29, 2024.
No trial date is currently scheduled.
PARTIES’ REQUESTS
Vargas asks the Court to sustain the demurrer and strike the request for punitive damages.
Plaintiff asks the Court to overrule the demurrer and deny the motion to strike.
LEGAL STANDARD
A. Demurrer
“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:
“(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.
“(b) The person who filed the pleading does not have the legal capacity to sue.
“(c) There is another action pending between the same parties on the same cause of action.
“(d) There is a defect or misjoinder of parties.
“(e) The pleading does not state facts sufficient to constitute a cause of action.
“(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.
“(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.
“(h) No certificate was filed as required by Section 411.35.”
(Code Civ. Proc., § 430.10.)
In a demurrer proceeding, the defects must be apparent on the face of the pleading or by judicial notice. (Code Civ. Proc., § 430.30, subd. (a) [“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading”].)
B. Motion to strike
“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof . . . .” (Code Civ. Proc., § 435, subd. (b)(1).) The Court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436, subd. (a).) “The grounds for a motion to strike shall appear on the face of the challenged pleading of from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)
“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Ibid.) “In ruling on a motion to strike, courts do not read allegations in isolation.” (Ibid.)
DISCUSSION
A. The complaint
The complaint alleges the following:
On or about October 22, 2020, “Defendants negligently, carelessly, recklessly and/or wantonly managed, owned, maintained, operated, controlled, safeguarded and designed the premises located at or near 123 W 58th St., Los Angeles, CA 90037 such that a dog known to have dangerous propensities was allowed to be left alone and/or unrestrained on the premises thereby constituting a dangerous area, and such that defendants failed to warn of the dangerous condition of the premises, and/or prematurely and/or incorrectly allowed foot traffic in the area where the dangerous condition existed, rendering the area on said premises dangerous and legally causing Plaintiff to be injured in the following manner: Plaintiff was walking near the subject premises when, suddenly and without warning, Plaintiff was bitten and/or attacked by Defendant ERICKA GOMEZ's dog causing Plaintiff to sustain serious injuries and damages as alleged hereinabove. Defendants' conduct was the proximate cause of Plaintiffs injuries. Defendants ERICKA GOMEZ, an individual; and DOES 1 TO 50, inclusive, knew or should have known about the dog's propensity to bite/attack humans and allowed the dog to roam freely unattended on the property and to come in contact with others unattended such that Defendants are subject to punitive damages as set forth in California Civil Code $3294.”
“Defendant ERICKA GOMEZ is strictly liable for the dog bite injuries sustained by Plaintiff because ERICKA GOMEZ is the legal owner of the dog that caused the injuries to Plaintiff. On or about or about October 22,2020, Plaintiff was lawfully walking near the premises located at or near 123 W 58th St., Los Angeles, CA 90037 when Defendants' dog bit and attacked Plaintiff, causing Plaintiff to sustain serious injuries as alleged hereinabove. Defendant ERICKA GOMEZ is the owner of the dog that caused the dog bite injuries to Plaintiff and is therefore strictly liable to Plaintiff for the serious injuries he sustained. Defendant ERICKA GOMEZ, the owner of the dog, knew or should have known about the dog's propensity to bite/attack humans and still allowed the dog to come in contact with others unattended such that Defendants are subject to punitive damages as set forth in California Civil Code § 3294.”
The complaint also alleges that Vargas negligently owned, maintained, managed, and operated the premises and caused Plaintiff’s damages.
B. Vargas’s demurrer
1. Negligence and premises liability claims
“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.)
“ ‘[I]t is well established that a landlord does not owe a duty of care to protect a third party from his or her tenant's dog unless the landlord has actual knowledge of the dog's dangerous propensities, and the ability to control or prevent the harm.’ ” (Salinas v. Martin (2008) 166 Cal.App.4th 404, 413 (Salinas), quoting Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1369; see Donchin v. Guerrero (1995) 34 Cal.App.4th 1834, 1838 [“A landlord who does not have actual knowledge of a tenant’s dog’s vicious nature cannot be held liable when the dog attacks a third person”]; Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 507.)
“ ‘ “ ‘[A] landlord is under no duty to inspect the premises for the purpose of discovering the existence of a tenant’s dangerous animal; only when the landlord has actual knowledge of the animal, coupled with the right to have it removed from the premises, does a duty of care arise. [Citations.]’ ” ’ ” (Salinas, supra, 166 Cal.App.4th at p. 413.)
Vargas asks the Court to sustain the demurrer because the complaint does not allege facts showing that he knew about the dog’s purportedly vicious nature. Plaintiff opposes the demurrer, arguing that Vargas knew about the dog’s dangerous propensities. Plaintiff points to the complaint’s allegation that “a dog known to have dangerous propensities was allowed to be left alone and/or unrestrained on the premises . . . .”
The Court finds that the complaint’s reference to unspecified individuals knowing about the dog’s dangerous propensities does not constitute an allegation that Vargas knew this information. The Court sustains the demurrer to the negligence and premises liability claims asserted against Vargas with leave to amend.
2. Negligence per se claim
Under the common law, to establish strict liability Plaintiff must show: (1) the defendant owned, kept, or controlled the dog; (2) the dog had an unusually dangerous nature or tendency; (3) before the plaintiff was injured, the defendant knew or should have known that the dog had this nature or tendency; (4) the plaintiff was harmed; and (5) the dog’s unusually dangerous nature or tendency was a substantial factor in causing the plaintiff’s harm. (Priebe v. Nelson (2006) 39 Cal.4th 1112, 1115.)
Civil Code section 3342, subdivision (a), provides:
“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 owner of the dog, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness. A person is lawfully upon the private property of such owner within the meaning of this section when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States, or when he is on such property upon the invitation, express or implied, of the owner.”
(Civ. Code, § 3342, subd. (a).)
Plaintiff asserted a claim for negligence per se against “[a]ll Defendants.” The complaint, however, does not allege that Vargas owned, kept, or controlled the dog. Plaintiff does not dispute Vargas’s contention that Plaintiff has not pleaded facts supporting a claim against Vargas for negligence per se.
The Court sustains the demurrer to Plaintiff’s negligence per se claim asserted against Vargas with leave to amend.
C. Vargas’s motion to strike punitive damages allegations
1. Punitive damages
“(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.
* * *
“(c) As used in this section, the following definitions shall apply:
“(1) ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.
“(2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.
(3) ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”
(Civ. Code, § 3294, subds. (a), (c).)
2. Vargas’s motion to strike
Vargas asks the Court to strike the complaint’s punitive damages allegations because Plaintiff has not alleged facts showing that Vargas engaged in conduct amounting to malice, oppression or fraud.
Because the Court has sustained the demurrer, the motion to strike is moot.
CONCLUSION
The Court SUSTAINS Sergio Vargas’ demurrer to Plaintiff Derrick Bernard’s complaint with 30 days leave to amend.
The Court DENIES as moot Sergio Vargas’ motion to strike the punitive damages allegations from Plaintiff Derrick Bernard’s complaint.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.