Judge: Lynette Gridiron Winston, Case: 24PSCV04108, Date: 2025-03-20 Tentative Ruling

Case Number: 24PSCV04108    Hearing Date: March 20, 2025    Dept: 6

CASE NAME:  Haiqin Tan, et al. v. Aiping Kuang, et al. 

Defendants Aiping Kuang and Huiqing Zhao’s Demurrer to Complaint 

TENTATIVE RULING 

The Court OVERRULES Defendants’ demurrer to the Second and Third Causes of Action of Plaintiffs’ complaint. The Court OVERRULES the demurrer to the Fourth and Ninth Causes of Action as to Defendant Kuang, but SUSTAINS it as to Defendant Zhao. The Court SUSTAINS the demurrer to the Fifth and Sixth Causes of Action. The Court will hear from Plaintiffs whether facts can be alleged to correct the defects identified herein. The Court also directs Plaintiffs to submit a corrected proof of service for the demurrer before the hearing on this motion. 

The Court DENIES Defendants’ motion to strike as to Defendant Kuang, but GRANTS it as to Defendant Zhao as to the following portions of the complaint: 

·         Page 19, Paragraph 78, line 2: deleting the language, “constitute malice, oppression or fraud”;

·         Page 19, Paragraph 78, line 3: deleting the language, “punitive damages”; 

The Court DENIES the motion as moot in all other respects as to Defendant Zhao. The Court will hear from Plaintiffs whether facts can be alleged to correct the defects identified herein. 

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

BACKGROUND 

This is a dispute arising out of a brief residential property rental. On December 2, 2024, plaintiffs Haiqin Tan (Tan) and Jimmy Taeng (Taeng) (collectively, Plaintiffs) filed this action against defendants Aiping Kuang (Kuang), Huiqing Zhao (Zhao) (collectively, Defendants) and Does 1 through 10, alleging causes of action for liability based on the dog bite statute, general negligence, common law liability, battery (first count), negligence per se – failure to provide identity/information about rabies, negligent infliction of emotional distress, unlawful trespass, assault, battery (second count), trespass to chattels, and conversion (failure to return security deposit & prorated rent). 

On February 14, 2025, Defendants demurred to and moved to strike portions of the complaint. The motions are unopposed. 

LEGAL STANDARD – Demurrer 

            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 (Donabedian).) 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. at pp. 993-994.) 

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 pleading, cause of action, or affirmative defense. (See Cal. Rules of Court, rule 3.1320, subd. (a); 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, 1046-1047.) 

PRELIMINARY ISSUE – Demurrer 

            “Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.” (Cal. Rules of Court, rule 3.1320, subd. (a).) The Court notes that Defendants’ demurrer combines the grounds for demurrer for each cause of action into one paragraph in violation of Rule 3.1320, subdivision (a), of the California Rules of Court. The Court will still consider the demurrer, but admonishes Defendants to comply with the requirements of the California Rules of Court going forward. 

            The Court also notes that the proof of service attached to the demurrer indicates that Defendant’s answer to the complaint and demand for jury trial were served on February 14, 2025, but does not mention the demurrer. (Demurrer, p. 13 of pdf.) The Court assumes this was a typo, as the proof of service for the motion to strike filed with the demurrer lists the motion to strike as the document served. (Motion to Strike, p. 9 of pdf.) The Court will still consider the demurrer, but requests Defendants provide a corrected proof of service before the hearing on this motion. 

DISCUSSION – Demurrer 

Meet and Confer 

Per Code of Civil Procedure section 430.41, subdivision (a), Defendants were required to meet and confer in person, by telephone, or by video conference before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) The Court finds Defendants’ efforts to meet and confer sufficient. (McNally Decl., ¶ 5.) 

Second Cause of Action – General Negligence 

To plead a cause of action for negligence, the plaintiff must allege facts demonstrating, “(1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the duty, and (3) the breach proximately or legally caused (4) the plaintiff's damages or injuries. [Citations.]” (Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662.) 

Defendants demur to the Second Cause of Action for general negligence on the grounds that the complaint fails to allege sufficient facts to constitute a cause of action and is uncertain. Defendants contend this cause of action is supported by insufficient facts and makes conclusory assertions. Defendants contend Plaintiffs do not plead what Defendants’ duty was and what actions breached that duty. 

The Court finds the complaint alleges sufficient facts to state a cause of action for general negligence. A landlord owes a duty of care to a tenant to provide and maintain safe conditions on the leased premises. (Becker v. IRM Corp. (1985) 38 Cal.3d 454, 467.) The complaint alleges that Plaintiffs were Defendants’ tenants and that they were permitted to hang clothes for drying in the Defendants’ backyard when Kuang let Defendants’ dogs into the backyard without supervision or restraint, and one of those dogs bit Plaintiff Tan’s leg. (Compl., ¶¶ 10-12.) The complaint also alleges facts demonstrating that Defendants’ dogs had previously scratched Kuang’s legs, which demonstrates foreseeability. (Compl., ¶ 12; Martinez v. Bank of Am. Nat. Tr. & Sav. Ass'n (2000) 82 Cal.App.4th 883, 896 [foreseeability is question of law to be determined by court when determining existence or scope of duty of care].) 

Accordingly, the Court OVERRULES the demurrer to the Second Cause of Action. 

Third Cause of Action – Common Law Liability 

To state a cause of action for common law liability based on a dog bite, the plaintiff must allege facts demonstrating that the owner of the dog knew or had reason to know of the dog’s vicious propensities. (Priebe v. Nelson (2006) 39 Cal.4th 1112, 1115.) 

Defendants demur to the Third Cause of Action for common law liability on the grounds that it fails to allege facts sufficient to constitute a cause of action and is uncertain. Defendants contend Plaintiffs only make conclusory allegations about the dog’s dangerous tendencies, and does not allege facts demonstrating that Defendants’ dog had a tendency to injure people or that Defendants’ knew of that tendency. 

The Court disagrees with Defendants. The complaint alleges that Defendants allowed their dogs to run unsupervised in the backyard while Tan was hanging laundry to dry, and that after Defendants’ dog bit Tan, Kuang showed Plaintiffs scratches Kuang previously received from the dogs. (Compl., ¶ 12.) The Court finds this allegation sufficient to demonstrate that Defendants knew or had reason to know their dogs had dangerous tendencies. (Drake v. Dean (1993) 15 Cal.App.4th 915, 925-929 [whether dog posed a risk of harm, whether the owner failed to secure the dog properly, or whether the owner failed to exercise reasonable care are questions of fact]; M.F. v. Pac. Pearl Hotel Mgmt. LLC (2017) 16 Cal.App.5th 693, 703 [questions of fact generally not suitable for demurrer].) 

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

Fifth Cause of Action – Negligence Per Se-Failure to Provide Identity/Information About Rabies 

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

Defendants demur to the Fifth Cause of Action for negligence per se – failure to provide identity/information about rabies on the grounds that it fails to constitute a proper cause of action that would be subject to the Court’s jurisdiction, fails to allege facts sufficient to constitute a cause of action, and is uncertain. Defendants contend this cause of action is not supported by sufficient facts and contains conclusory assertions. Defendants contend the Court has no jurisdiction over this cause of action. Defendants contend negligence per se does not provide a right of action for violation of a statute, and is not a separate cause of action. 

The Court agrees with Defendants. Negligence per se is not an independent cause of action. (McKenna v. Beesley (2021) 67 Cal.App.5th 552, 574, fn. 26.) Moreover, the complaint does not allege any facts demonstrating that Plaintiff Tan was injured by Defendants’ alleged failure to provide Tan with their names, address, telephone number, and license tag number of the dog that bit her. (Compl., ¶ 54; Penal Code, § 398, subd. (a).) Additionally, given that Tan was a tenant who shared the residential space with Defendants, Tan presumably already would know most of this information. (See Compl., ¶¶ 10-12.) 

Therefore, the Court SUSTAINS the demurrer to the Fifth Cause of Action. The Court will hear from Plaintiffs whether facts can be alleged to remedy the defects identified herein. 

Sixth Cause of Action – Negligent Infliction of Emotional Distress 

To plead a cause of action, the plaintiff must allege facts that would support a cause of action for negligence, namely duty, breach, causation, and damages. (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 729.) 

Defendants demur to the Sixth Cause of Action for negligent infliction of emotional distress (NIED) on the grounds that the complaint does not allege facts sufficient to constitute a cause of action and is uncertain. Defendants contend this cause of action adds no new facts other than Plaintiffs’ sole habitability claim. Defendants contend this cause of action fails because there is no independent tort of negligent infliction of emotional distress. 

The Court agrees with Defendants. NIED is not a separate tort or cause of action. (See Eriksson v. Nunnink, supra, 233 Cal.App.4th at p. 729.) Defendants also correctly note that this cause of action adds no new facts by reiterating Plaintiffs’ third cause of action for general negligence based on the alleged dog bite, and is thus duplicative, which renders it subject to demurrer. (Compl., ¶ 62; Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.) 

Based on the foregoing, the Court SUSTAINS the demurrer to the Sixth Cause of Action. The Court will hear from Plaintiffs whether facts can be alleged to remedy the defects identified herein. 

Fourth and Ninth Causes of Action – Battery 

To plead a cause of action for battery, the plaintiff must allege facts demonstrating an intentional harmful or offensive contact with the plaintiff’s person, the plaintiff did not consent, and the plaintiff suffered damages as a result. (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1495.) 

Defendants demur to the Fourth and Ninth Causes of Action for battery on the grounds that the complaint is duplicative, fails to allege facts sufficient to constitute a cause of action, and is uncertain. Defendants contend these causes of action arise from the same facts, are duplicative of each other, and add no new facts. 

The Court disagrees with Defendants that the causes of action are duplicative of each other. The Fourth Cause of Action is based on the dog bite incident, while the Ninth Cause of Action is based on the CVS incident. (Compl., ¶¶ 40-46, 79-85.) These are two separate incidents and are thus not duplicative of each other. (See Palm Springs Villas II Homeowners Assn., Inc. v. Parth, supra, 248 Cal.App.4th at p. 290.) 

The Court otherwise finds that the Fourth alleges sufficient facts to state causes of action for battery against Defendant Kuang, but not Defendant Zhao. For the Fourth Cause of Action, the complaint alleges that Kuang sent Defendants’ dogs into the backyard unsupervised where Plaintiff Tan was hanging laundry to dry, said it would be a good idea for the dogs to get acquainted with Tan, one dog bit Tan’s leg, and Kuang then showed Tan the scratches on Kuang’s leg previously caused by the dogs. (See Compl., ¶ 12; see Ashcraft v. King (1991) 228 Cal.App.3d 604, 613 [intent is a question of fact for the jury].) However, although not directly mentioned by Defendants, the Court notes that the complaint does not allege any facts demonstrating that Zhao sent the dogs out. (See Compl., ¶ 12.) 

For the Ninth Cause of Action, the Court also finds the complaint alleges sufficient facts to state a cause of action against Kuang, but not Zhao. The complaint alleges that Kuang pushed Tan aside, preventing Tan from handing her passport to the staff at the CVS clinic, and caused Tan’s body to strike the wall. (Compl., ¶ 13.) The complaint does not allege any facts here demonstrating that Zhao pushed Tan aside. (See Compl., ¶ 13.) 

Accordingly, the Court OVERRULES the demurrer to the Fourth and Ninth Causes of Action as to Defendant Kuang, but SUSTAINS it as to Defendant Zhao. The Court will hear from Plaintiffs whether facts can be alleged to remedy the defects identified herein.

LEGAL STANDARD – 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, but this time limitation shall not apply to motions specified in subdivision (e).” (Code Civ. Proc., § 435, subd. (b)(2).) “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out 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.” (Id., § 436.) 

DISCUSSION – Motion to Strike 

Meet and Confer 

Per Code of Civil Procedure section 435.5, subdivision (a), Defendants were required to meet and confer in person, by telephone, or by video conference before bringing this motion to strike. (Code Civ. Proc., § 435.5, subd. (a).) The Court finds Defendants’ efforts to meet and confer sufficient. (McNally Decl., ¶ 5.) 

Punitive Damages

A claim for punitive damages is subject to a motion to strike when the allegations fail to rise to the level of malice, oppression, or fraud necessary under Civil Code section 3294. (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 64.)

Defendants move to strike the punitive damages language in the complaint on the grounds that it does not plead facts showing that Defendants’ conduct toward Plaintiffs was intentional, despicable, or malicious. Defendants contend Plaintiffs cannot know of Defendant’s state of mind,[1] and that Plaintiffs do not offer proof of evil motive or outrageous conduct. Defendants contend the complaint even mentions Defendants let the dogs out to introduce them to Plaintiffs to get used to Plaintiffs. 

Given the Court’s overruling of the demurrer to the Fourth and Ninth Causes of Action as to Defendant Kuang, the Court finds the complaint alleges sufficient facts to support a claim for punitive damages against Kuang. (Compl., ¶¶ 12-14, 40-46, 79-85; see Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 922 [intentional torts support punitive damages awards]; Civ. Code, § 3294, subd. (c)(1).) Since the Court sustained the demurrer to the Fourth and Ninth Causes of Action as to Defendant Zhao, the motion to strike the punitive damage allegations is denied as moot with respect to those two causes of action against Defendant Zhao. 

With respect to the Eighth Cause of Action for assault, the allegations are based on the CVS incident, but again the complaint alleges no facts showing Zhao’s involvement in that incident. (Compl., ¶¶ 13, 73-78.) Also, given that Defendants did not demur to the Eighth Cause of Action for assault, the Court finds the complaint alleges sufficient facts here to support a punitive damages claim against Kuang, but not against Zhao. 

For the same reasons discussed above, the Court declines to strike the language in the prayer for relief at page 23, line 112 (or rather line 8). The complaint contains  causes of action that support a punitive damages claim against Defendant Zhang. 

            Based on the foregoing, the Court DENIES the motion to strike as to Defendant Kuang. The Court GRANTS the motion as to Defendant Zhao, but only as to the following portions of the complaint: 

·         Page 19, Paragraph 78, line 2: deleting the language, “constitute malice, oppression or fraud”;

·         Page 19, Paragraph 78, line 3: deleting the language, “punitive damages”; 

The Court DENIES the motion as moot in all other respects as to Defendant Zhao. The Court will hear from Plaintiffs whether facts can be alleged to correct the defects identified herein. 

CONCLUSION 

The Court OVERRULES Defendants’ demurrer to the Second and Third Causes of Action of Plaintiffs’ complaint. The Court OVERRULES the demurrer to the Fourth and Ninth Causes of Action as to Defendant Kuang, but SUSTAINS it as to Defendant Zhao. The Court SUSTAINS the demurrer to the Fifth and Sixth Causes of Action. The Court will hear from Plaintiffs whether facts can be alleged to correct the defects identified herein. The Court also directs Plaintiffs to submit a corrected proof of service for the demurrer before the hearing on this motion. 

The Court DENIES Defendants’ motion to strike as to Defendant Kuang, but GRANTS it as to Defendant Zhao as to the following portions of the complaint: 

·         Page 19, Paragraph 78, line 2: deleting the language, “constitute malice, oppression or fraud”;

·         Page 19, Paragraph 78, line 3: deleting the language, “punitive damages”; 

The Court DENIES the motion as moot in all other respects as to Defendant Zhao. The Court will hear from Plaintiffs whether facts can be alleged to correct the defects identified herein. 

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