Judge: Lisa R. Jaskol, Case: 22STCV29810, Date: 2025-05-29 Tentative Ruling

Case Number: 22STCV29810    Hearing Date: May 29, 2025    Dept: 28

Having considered the demurring 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 May 29, 2024, the Court sustained Vargas’s demurrer to the complaint with 30 days leave to amend. The Court denied as moot Vargas’s motion to strike the punitive damages allegations from the complaint. 

On August 12, 2024, the Court granted Gomez’s unopposed motion to strike Plaintiff’s punitive damages allegations with 30 days leave to amend. 

On February 19, 2025, Gomez filed an answer. 

On March 28, 2025, Plaintiff filed a first amended complaint against Gomez, Vargas, and Does 1-50 for general negligence, premises liability, and strict liability. 

On April 21, 2025, Vargas filed a demurrer to the first amended complaint.  Plaintiff has not filed an opposition. 

PARTY’S REQUEST 

Vargas asks the Court to sustain the demurrer to Plaintiff’s first amended complaint. 

LEGAL STANDARD 

A.   Demurrer 

Code of Civil Procedure section 430.10 provides in part: 

“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”].) 

“For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not conclusions, deductions, or conclusions of facts or law).”  (L. Edmon and C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2024) ¶ 7:43, p. 7(l)-25, emphasis omitted (Cal. Practice Guide).)  

“The demurrer should not be sustained where a plaintiff can cure a defective complaint by amendment or where the pleading, liberally construed, can state a cause of action.”  (Jager v. County of Alameda (1992) 8 Cal.App.4th 294, 297.) 

“ ‘To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.’ ” (Cal. Practice Guide, supra, ¶ 7:40, p. 7(l)-21, quoting C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) 

B.   Negligence and premises liability 

“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.) 

C.   Dog bite liability 

Under the common law, to establish strict liability for a dog bite, a 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).)

 “ ‘[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.) 

DISCUSSION 

A.   The first amended complaint 

The first amended complaint includes the following allegations: 

General negligence and premises liability claims: 

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 Plaintiff's injuries.” 

Strict liability claim: 

“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.” 

B.   The demurrer 

Vargas asks the Court to sustain the demurrer to the first amended complaint because Plaintiff fails to allege that Vargas owned the dog or actually knew about the dog’s allegedly dangerous propensities. 

As in Plaintiff’s original complaint, the first amended 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 therefore sustains the demurrer to Plaintiff’s negligence and premises liability claims asserted against Vargas.  Because Plaintiff has not filed an opposition to Vargas’s demurrer or suggested a way that Plaintiff can amend the first amended complaint to state a negligence or premises liability claim against Vargas, the Court sustains Vargas’s demurrer to the negligence and premises liability claims in the first amended complaint without leave to amend. 

Plaintiff’s first amended complaint asserts a claim for strict liability against “[a]ll Defendants.” The first amended complaint, however, does not allege that Vargas owned, kept, or controlled the dog.  The Court therefore sustains the demurrer to Plaintiff’s strict liability claim asserted against Vargas.  Because Plaintiff has not filed an opposition to Vargas’s demurrer or suggested a way that Plaintiff can amend the first amended complaint to state a strict liability claim against Vargas, the Court sustains Vargas’s demurrer to the first amended complaint’s strict liability claim without leave to amend. 

CONCLUSION 

The Court SUSTAINS Defendant Sergio Vargas’s demurrer to Plaintiff Derrick Bernard’s first amended complaint without leave to amend. 

Moving party is ordered to give notice of the Court’s ruling. 

Moving party is ordered to file the proof of service of this ruling within five days.