Judge: Mark H. Epstein, Case: 23SMCV05130, Date: 2024-08-28 Tentative Ruling

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Case Number: 23SMCV05130    Hearing Date: August 28, 2024    Dept: I

The demurrer is SUSTAINED WITH LEAVE TO AMEND.  The motion to strike is MOOT.

This is a dog bite case.  Plaintiff was bitten by a dog that was owned by demurring defendant’s tenant.  Defendant demurs because there is no alleged negligence.  In a dog bite case like this, the landlord is not liable for the tenant’s dog unless the owner knew of the danger at the time of the rental or learned of the danger and otherwise had the power to do something about it but negligently failed to do so.  Similarly, the HOA’s duties are limited to those it has under the pertinent governing documents.  The allegations here are that the landlord knew at an appropriate time, but the allegations are only on information and belief.  Plaintiff opposes the demurrer by literally saying that the complaint is good enough and pretty much nothing other than that sentence.  That is a gutsy opposition and not sufficient.  The HOA, which is the demurring party, has some duties, but it is unclear that the HOA has the power to do anything about the dog, assuming that the entity knew of the dog’s propensities.  There are no governing documents attached to the complaint and there is no allegation as to what it is exactly that the HOA ought to have done.  For example, the court does not know that the HOA had the power to force the dog’s owners to take any further action regarding the dog or to sell the dog or put the dog down.  The court has no reason to believe that the HOA had the power to approve or not approve the owner’s lease of the property to the dog’s owners or to force the unit’s owners to terminate the lease.  Without some indication of what the HOA should have done or had the power to do, the complaint is fatally flawed. 

The demurrer is therefore SUSTAINED WITH 30 DAYS’ LEAVE TO AMEND.  Because the demurrer is sustained, the motion to strike is MOOT.