Judge Lynette Gridiron Winston, Case Number: 22PSCV01744, Date: 2024-01-03 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 22PSCV01744, Date: 2024-01-03 Tentative Ruling

Case Number: 22PSCV01744 Hearing Date: January 3, 2024 Dept: 6

CASE NAME: Frances Gundlach v. Frank Flores, et al.

Demurrer to Plaintiff’s First Amended Complaint

TENTATIVE RULING

The Court OVERRULES the demurrer to the First Cause of Action, and SUSTAINS with leave to amend the demurrer to the Fourth Cause of Action. Plaintiff must file and serve the Second Amended Complaint within 10 days of the Court’s order, to which Defendants must file and serve a responsive pleading per the statutory deadline. If Plaintiff elects not to amend the Fourth Cause of Action and does not file and serve such an amended pleading within 10 days of the Court’s order, Defendants must file and serve an Answer to the First, Second and Third Causes of Action in the First Amended Complaint within 30 days of the Court’s order.

Defendants are ordered to give notice of the Court’s ruling within five calendar days of this order.

BACKGROUND

This is a cat bite case. On November 9, 2022, plaintiff Frances Gundlach (Plaintiff) filed this action against defendants Frank Flores, Lydia Flores and Does 1 through 100 (collectively, Defendants). On October 18, 2023, Plaintiffs filed the operative First Amended Complaint (FAC) against the same Defendants, alleging causes of action for strict liability, negligence, premises liability, and negligence per se.

On November 21, 2023, Defendants filed a demurrer to the First and Fourth Causes of Action of the FAC. On December 19, 2023, Plaintiff filed an opposition. On December 26, 2023, Defendants replied.

LEGAL STANDARD

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (Code Civ. Proc., § 422.10; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Id.)

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. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862, disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287 [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint, or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”])

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

DISCUSSION

Meet and Confer

Per Code of Civil Procedure section 430.41, subdivision (a), Defendants were required to meet and confer in person or by telephone before bringing a demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The Court finds Defendants’ meet-and-confer efforts to be insufficient because they were not conducted in person or by telephone. (Kraft Decl., ¶ 3.) Nevertheless, the Court may not overrule a demurrer due to inadequate meeting and conferring. (Code Civ. Proc., § 430.41, subd. (a)(4).) The Court admonishes Defendants to comply with the requirements of the Code of Civil Procedure going forward.

First Cause of Action – Strict Liability

Defendants demur to the First Cause of Action for strict liability on the grounds that it fails to state a cause of action. More specifically, Defendants contend there is no California strict liability law that creates strict liability for all pet owners as Plaintiff alleges. (See FAC, ¶ 11.) The Court disagrees.

“California has long followed the common law rule of strict liability for harm done by a domestic animal with known vicious or dangerous propensities abnormal to its class.” (Drake v. Dean (1993) 15 Cal.App.4th 915, 921.)

Defendants cite no legal authority to support their argument here. While Plaintiff’s opposition does not cite any legal authority either, the Court is aware that California has long established legal precedent regarding strict liability for harm caused by domestic animals with known dangerous propensities. (Drake, supra, 15 Cal.App.4th at p. 921.) The FAC alleges that Defendants owned the cat in question, the cat attacked other persons on other occasions, Defendants knew about those other attacks, and the cat bit Plaintiff, thereby causing Plaintiff harm. (FAC, ¶¶ 5-9; see Drake, supra, 15 Cal.App.4th at p. 921 [“(1) A possessor of a domestic animal that he knows or has reason to know has dangerous propensities abnormal to its class, is subject to liability for harm done by the animal to another, although he has exercised the utmost care to prevent it from doing the harm. [¶] (2) This liability is limited to harm that results from the abnormally dangerous propensity of which the possessor knows or has reason to know.”]; [§ 627] Injuries From Animals., 4 Witkin, Cal. Proc. 6th Plead § 627 (2023) [“the complaint should allege that (a) the defendant was the owner or keeper of the animal; (b) the animal had dangerous or vicious propensities; (c) the defendant knew or should have known of those propensities; and (d) the animal injured the plaintiff. [Citations.]”]) The Court finds these allegations sufficient to state a cause of action for strict liability against Defendants.

Based on the foregoing, the Court OVERRULES the demurrer to the First Cause of Action.

Fourth Cause of Action – Negligence Per Se

To state a cause of action for negligence per se, the plaintiff must allege facts demonstrating that: (1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused the plaintiff’s injury; (3) the injury resulted from an occurrence of the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the plaintiff was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted. (Spates v. Dameron Hospital Assn. (2003) 114 Cal.App.4th 208, 218.)

Defendants contend the Fourth Cause of Action in the FAC for negligence per se fails to state a cause of action. Defendants argue the FAC fails to set forth any statute, regulation, or ordinance that was allegedly violated. The Court agrees.

The FAC fails to allege or otherwise identify any specific statute, regulation, or ordinance that serves as the basis for a negligence per se claim. (See FAC, ¶¶ 32-36.) Plaintiff must allege the specific statute, ordinance, or regulation that was purportedly violated to support a negligence per se cause of action. (Spates, supra, 114 Cal.App.4th at p. 218.)

Based on the foregoing, the Court SUSTAINS the demurrer with leave to amend as to the Fourth Cause of Action.

CONCLUSION

Defendants are ordered to give notice of the Court’s ruling within five calendar days of this order.