Judge Ronald F. Frank, Case Number: 23TRCV00947, Date: 2023-10-24 Tentative Ruling

Judge: Ronald F. Frank, Case: 23TRCV00947, Date: 2023-10-24 Tentative Ruling

Case Number: 23TRCV00947 Hearing Date: October 24, 2023 Dept: 8

Tentative Ruling¿

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HEARING DATE: October 24, 2022¿¿

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CASE NUMBER: 23TRCV00947

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CASE NAME: Lauren Hogan, Armando Hogan v. South Park Doggie, Inc., et al.

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MOVING PARTY: Defendant, South Park Doggie, Inc.

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RESPONDING PARTY: Plaintiff, Lauren Hogan and Armando Hogan (No Opposition)

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TRIAL DATE: None set.

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MOTION:¿ (1) Demurrer¿

(2) Case Management Conference

Tentative Rulings: (1) Defendants’ Demurrer is SUSTAINED as to the strict liability (1^st) cause of action, possibly with leave to amend, and SUSTAINED without leave to amend as to the NIED (3^rd) cause of action.

(2) For the CMC, the Court will inquire of Plaintiff’s counsel if there are additional defendants yet to be served

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I. BACKGROUND¿¿

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A. Factual¿¿

On March 29, 2023, Plaintiff Lauren Hogan and Armando Hogan (collectively “Plaintiffs”) filed a Complaint against Defendants, South Park Doggie, Inc. aka South Park Doggie – Waterland, Doggieworld Enterprises, LLC, Garegin Khachatryan, M.J. Silva, Aimee Varguez, Ericka Varguez, Elizabeth “Liz” Varguez, Amir Nayebdadash, and DOES 1 through 20. The Complaint alleges causes of action for: (1) Strict Liability – Dangerous Animal; (2) Negligence; and (3) Negligent Infliction of Severe Emotional Distress.

Defendant, South Park Doggie, Inc. now filed a demurrer to the Complaint.

B. Procedural¿¿

On September 27, 2023, Defendant filed a Demurrer. To date, no opposition has been filed. On October 17, 2023, Defendant, South Park Doggie, Inc. filed a Notice of Non-Opposition.

¿II. MOVING PARTY’S GROUNDS

Defendant demurs to the First and Third Causes of Action on the grounds it argues the causes of action fail to state sufficient facts to constitute a cause of action against the demurring defendant.

¿III. ANALYSIS¿

A. Legal Standard

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.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿¿

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A pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿¿

B. Discussion

Plaintiffs’ Complaint alleges several causes of action arising from a tragic set of circumstances where Plaintiffs’ beloved Yorkshire Terrier named Skye was allegedly attacked, mauled, and killed by a pair of Besenjis who were placed in the same room or enclosure as Skye at the South Park Doggie pet care facility. While Plaintiffs allege that Skye was “a close and intimate member of Plaintiffs’ family,” (Complaint para. 17), under California tort law even the most beloved of pets are not treated in the same way as human members of a family. The Complaint further alleges that even though Plaintiffs informed Defendants about Skye’s age, fragility, and need for observation and monitoring, no reasonable steps were taken to protect Skye from unleashed, unmuzzled, vicious dogs that might be placed in the same enclosure as Skye. Plaintiffs had access to video of the enclosure, and witnessed the Basenjis’ attack on Skye via remote video.

Strict Liability

Civil Code section 3342 provides a cause of action for a person injured from a dog bite. Section 3342 provides: “The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the dog owner, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness.” However, to impose liability on someone other than the owner, even a keeper, “ ‘ previous knowledge of the dog’s vicious nature must appear.’” (Buffington v. Nicholson (1947) 78 Cal.App.2d 37, 41-42.) Section 3342 applies to create a cause of action in favor of a PERSON who is bitten, not the owner of a dog who is bitten and thereby suffers indirect injury, damage, or loss.

In Defendant’s demurrer, they argue that Plaintiffs have alleged the requisite knowledge of viciousness on the part of the South Park Doggie defendants in the Second Cause of Action for negligence. However, Defendant argues that as to the First Cause of Action for Strict Liability only lies against the Defendant Dog Owner, and not against the demurring Defendant. Paragraph 10 of the Complaint alleges that the owner of the Basenjis was an individual defendant, not South Park Doggie. Accordingly, in the Court’s view, there is no statutory cause of action under Section 3342 that applies to the facts of this case even if the Dog Bite Statute applied to owners of a dog that is bitten as distinguished from a directly injured plaintiff who is a person bitten by the allegedly vicious dog.

Under Plaintiffs’ cause of action for Strict Liability, Plaintiffs allege that Defendants, and each of them, knew, or, in the exercise of reasonable care, should have known, of the viciousness and dangerousness of the two African Hunting Dogs and of their inclination and habit of aggressively charging toward, attacking and biting other dogs that came onto or near their enclosure or space on the premises. (Complaint, ¶ 12.) Those allegations are allegations of negligence, not strict or absolute liability. Several published decisions under Section 3342 discuss the availability of the doctrine of strict liability in tort, but none of those cases involve a canine rather than a human who is the direct victim of a vicious dog bite. Plaintiff did not oppose the Demurrer but the Court would invite citation to any authority that might permit a strict liab8ility cause of action rather than a negligence or intentional tort claim in this factual context.

Based on this, Defendant’s demurrer as to the First Cause of Action for Strict Liability is SUSTAINED. The Court will invite Plaintiff’s counsel to argue as to whether any amendment could cure the pleading defect.

Negligent Infliction of Emotional Distress

Defendant also demurs to the Third Cause of Action for Negligent Infliction of Emotional Distress. “The law of negligent infliction of emotional distress in California is typically analyzed by reference to two theories of recovery: the ‘bystander’ theory and the ‘direct victim’ theory. The negligent causing of emotional distress is not an independent tort, but the tort of negligence. The traditional elements of duty, breach of duty, causation, and damages apply. Whether a defendant owes a duty of care is a question of law.” (Spates v. Dameron Hosp. Ass’n (2003) 114 Cal.App.4th 208, 213, ellipses, quotation marks, brackets, and paragraph breaks omitted.) The California Supreme Court continues to adhere to the distinction between “direct victim” and “bystander” claims for emotional distress arising from negligence. (Burgess v. Superior Court (1992) 2 Cal. 4th 965, 984.) “The distinction between the ‘bystander’ and the ‘direct victim’ cases is found in the source of the duty owed by the defendant to the plaintiff.” (Id. at 1072.) “Bystander” claims are typically based on breach of a duty owed to the public in general (Christensen v. Superior Court (1991) 54 Cal.3d 868, 884), whereas a right to recover for emotional distress as a “direct victim” arises from the breach of a duty that is assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of the defendant's preexisting relationship with the plaintiff. (Burgess, supra, 2 Cal.4th at pp. 1073–1074.)

Since “bystander” claims could be limitless, the Supreme Court has set forth limits for a “bystander” claim. (See Thing v. La Chusa (1989) 48 Cal.3d 644, 647 [stating that “bystander” liability arises where there is a close relationship between the victim and plaintiff, the plaintiff witnessed the injury to the victim, and it was foreseeable that as a result of the injury to the victim, the plaintiff would suffer emotional distress].) There is no duty to avoid negligently causing emotional distress to another.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.) Moreover, plaintiff bystanders must prove “serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances … [S]erious mental distress may be found where a reasonable person normally constituted would be unable to adequately cope with the mental distress engendered by the circumstances of the case.” (Thing v. La Chusa, 48 Cal.3d at 667-8, n. 12; see also Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1377 [evidence of losing sleep, upset stomach and anxiety did not constitute severe emotional distress of such lasting and enduring quality that no reasonable person should be expected to endure].)

Here, the Complaint alleges that as a direct and proximate result of the Defendants’ negligence Plaintiffs sustained severe emotional injury including, but not limited to, nightmares, restlessness, depression, crying spells, loneliness, and sever emotional distress. (Complaint, ¶ 34.) Further, Plaintiffs assert that the injuries caused, and continue to cause injury to their health, strength and emotional well being. (Complaint, ¶ 34.) Here, the Court notes the Fourth District has expressed that when deciding on whether plaintiffs can recover emotional distress damages for harm to a pet, it shares the sentiment of the court in Johnson v. Douglas (N.Y.Sup.Ct.2001) 187 Misc.2d 509, 510, which observed: “There is no doubt that some pet owners have become so attached to their family pets that the animals are considered members of the family. This is particularly true of owners of domesticated dogs who have been repeatedly referred to as ‘Man’s Best Friend’ and a faithful companion…Although we live in a particularly litigious society, the court is not about recognize a tortious cause of action to recover for emotional distress due to the death of a family pet. Such an expansion of the law would place an unnecessary burden on the ever burgeoning case loads of the court in resolving serious tort claims for injuries to individuals.” (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1514.) This Court agrees. Moreover, even if this Court were to acknowledge the relationship between a pet owner and their pet as a Plaintiff being “closely related to the injured victim,” Plaintiffs have still failed to allege that they witnessed the injury to their dog. As such, the Demurrer to the Third Cause of Action is SUSTAINED without leave to amend.

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