Judge: Melvin D. Sandvig, Case: 23CHCV00395, Date: 2024-07-12 Tentative Ruling

Case Number: 23CHCV00395    Hearing Date: July 12, 2024    Dept: F47

Dept. F47

Date: 7/12/24

Case #23CHCV00395

DEMURRER TO THE ORIGINAL COMPLAINT

Demurrer filed on 5/22/24.

MOVING PARTY: Defendant Luis Rojas

RESPONDING PARTY: Plaintiff Martha Cuevas

NOTICE: ok

Demurrer is to the entire complaint:

            1.  Strict Liability

            2.  Negligence

RULING: The demurrer is overruled.  Answer is due within 20 days. 

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of dog bite sustained by Plaintiff Martha Cuevas (Plaintiff).  Plaintiff alleges that Defendant Luis Rojas (Rojas) owned the dog which bit her causing injuries. 

On 2/20/23, Plaintiff filed this action against Rojas, Qildero Macario and Does 1-25 for: (1) Strict Liability and (2) Negligence.  After Plaintiff failed to respond to Rojas’ meet and confer efforts, on 5/22/24, Rojas filed and served the instant demurrer to the entire complaint.  Plaintiff has not opposed or otherwise responded to the demurrer. 

ANALYSIS

Rojas argues that the 1^st cause of action for strict liability “fails and must be stricken” because “the Complaint fails to identify the actual owner of the dog;” “[t]he Complaint does not even mention the address (and or location) from whence the dog escaped;” and “the Complaint fails to identify who was supposed to have actual control of the dog.”  (See Demurrer, p.3:23-26).

Rojas argues that the 2^nd cause of action for negligence/negligence per se fails for the same reasons – i.e., Plaintiff has failed to adequately allege who owned the dog that bit her. 

Contrary to Rojas’ assertion, Plaintiff has adequately alleged that Rojas was one of the owners of the dog.  Specifically, the Complaint alleges that “[a]t all relevant times herein, Defendants were the owners of the DOG, within the meaning of Civil Code Section 3342.”  (See Complaint ¶26).  Rojas cites no authority for the proposition that a dog cannot have more than one owner.  Nor has Rojas cited any authority for the proposition that a Plaintiff must allege the address or location from which the dog came/escaped or who, other than the owners, was supposed to have actual control of the dog. 

The allegations that that the dog that attacked Plaintiff was “owned, controlled, and possessed by Defendants” which includes Rojas and that the dog escaped from Defendants’ property are sufficient to state the claims for strict liability and negligence against Rojas.  (See Complaint ¶¶14-18, 26, 42, 45).  Even if someone other than the alleged owners of the dog were supposed to have control of the dog at the time of the incident, Rojas cites no authority which states that such facts would relieve the owner or owners of the dog from liability for the injuries allegedly caused by their dog. 

CONCLUSION

The demurrer is overruled.  Answer is due within 20 days.

The Court notes that although the hearing was reserved for a demurrer with motion to strike and the document filed by Rojas is titled as a “Demurrer With Motion to Strike Plaintiff’s Complaint,” a separate motion to strike has not been filed.  Based on Rojas’ request to “grant this demurrer and strike both causes of action under Code of Civil Procedure Sec. 430.10(e), i.e., failure to state facts sufficient to constitute a cause of action,” it appears that Rojas did not separately move to strike the complaint.  (See Demurrer, p.4:20-22).