Judge: Mark H. Epstein, Case: 24SMCV00510, Date: 2024-05-20 Tentative Ruling

Case Number: 24SMCV00510    Hearing Date: May 20, 2024    Dept: I

The demurrer is SUSTAINED as to the first cause of action and is otherwise OVERRULED.

This is a case in which plaintiff was allegedly attacked by defendant’s dog and sustained injury.  Defendant demurs.  The demurrer as to uncertainty is OVERRULED.  The complaint is not uncertain.

Turning to the specific demurrers, the demurrer is SUSTAINED as to the first cause of action.  Pursuant to Civil Code section 3342 subdivision (a), there is strict liability regarding damage caused by a dog bite.  However, the complaint does not allege that defendant’s dog bit plaintiff.  Without a dog bite, this statute does not come into play and the demurrer is therefore well taken.  Leave to amend will be granted if plaintiff can allege in good faith that she was bitten.  Otherwise, leave to amend will be denied regarding the statute.  The court notes that the statute is not mentioned in the cause of action.  However, the court presumes that this cause of action relates to the statute only because the second cause of action is for strict liability expressly under the common law.

As to the common law, it provides liability to harm done by a dog with a known vicious or dangerous propensity.  (Hillman v. Garcia-Ruby (1955) 44 Cal.2d 625.)  Reading the complaint as a whole, although plaintiff does not allege details of past behavior by the dog, plaintiff does allege that the dog attacked her suddenly and with no provocation.  It is certainly a not unreasonable inference that this might not be the first time the dog has exhibited such behavior, which could constitute a vicious nature.  And, for the same reason, plaintiff adequately establishes a cause of action for breach of the duty of care.  While it is not the strongest inference ever made, it is enough for the pleading stage.  Because a liberal reading of the complaint would give rise to enough to overcome a pleading motion, the remainder of the demurrer is OVERRULED. 

If plaintiff wants to amend, plaintiff can have 30 days to do so.  If plaintiff elects to stand on the complaint, then defendant will have 30 days to answer.