Judge: Peter A. Hernandez, Case: 23PSCV02951, Date: 2024-02-27 Tentative Ruling

Case Number: 23PSCV02951    Hearing Date: February 27, 2024    Dept: K

Defendant Target Corporation’s Demurrer to Plaintiff’s Complaint is SUSTAINED. The court will hear from counsel for Plaintiff as to whether leave to amend is requested and will require an offer of proof if so.

Background[1]  

Plaintiff Francisco Castilla, by and through his Guardian Ad Litem Kathy Castilla (“Plaintiff”), alleges as follows:

On November 29, 2022, Plaintiff sustained injuries at a Target store after another patron’s dog attacked and bit him.

On September 25, 2023, Plaintiff filed a complaint, asserting a cause of action against Target Corporation (“Defendant”) and Does 1-20 for:

1.                  General Negligence

A Case Management Conference is set for February 27, 2024.

Legal Standard

A demurrer may be made on the grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)

Discussion

Defendant demurs to Plaintiff’s complaint, on the basis that it fails to state facts sufficient to constitute a cause of action.

“The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages.” (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5^th 680, 687.) “[W]hether a individual owes a duty of care to another is a question of law.” (Portillo v. Aiassa (1994) 27 Cal.App.4^th 1128, 1133.)

Defendant asserts that Plaintiff’s negligence cause of action fails because it did not own the subject dog and did not know of the dog’s dangerous propensities to bite.

Civil Code § 3342 makes the owner of any dog “liable for the damages suffered by any person who is bitten by the dog. . . regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness.” Also, “a storekeeper must exercise reasonable care to protect a customer from harm by dogs or other animals, but is, however, not liable for an injury by a dog not owned or kept by the storekeeper, where he did not know and had no reason to know that the dog would commit such an injury.” (Baley v. J.F. Hink & Son (1955) 133 Cal.App.2d 102, 110-111 [Emphasis added]).

Plaintiff has alleged that on November 29, 2022, he was at one of Defendant’s locations with his mother and that, as he walked by another patron, the patron’s dog attacked and bit him on the right side of his body. (Complaint, ¶ GN-1 [emphasis added].) Plaintiff thus concedes that Defendant did not own the dog, such that strict liability pursuant to Civil Code § 3342 would not apply.

Plaintiff has alleged only that “[t]he patron who owned the dog confirmed that the subject dog was not a service animal and that she had not been asked by a Target representative to not bring her dog into the subject store, nor had a representative asked her to remove her dog from the store.” (Complaint, ¶ GN-1). Plaintiff, then, has not alleged that Defendant had actual knowledge of the dog’s dangerous propensities.

Finally, while Plaintiff argues that Defendant is liable because it “permit[ed] customers to bring non-service dogs onto the Premises” (Opp. 2:20) and “fail[ed] to enforce the law (barring non-service dogs from the Premises” (Id., 2:22), Plaintiff has not identified the “law” Defendant violated. In fact, “there is no law prohibiting bringing a dog into a store.” (Baley, supra, 133 Cal.App.2d at 111).

Defendant’s demurrer is sustained.