Judge: Salvatore Sirna, Case: 24PSCV00825, Date: 2024-10-02 Tentative Ruling

Case Number: 24PSCV00825    Hearing Date: October 2, 2024    Dept: G

Defendants Apex 2015, LLC; Hillcrest Court LP; and Art Ricalde’s Demurrer to Plaintiff’s Complaint

Respondent: NO OPPOSITION

TENTATIVE RULING

Defendants Apex 2015, LLC; Hillcrest Court LP; and Art Ricalde’s Demurrer to Plaintiff’s Complaint is OVERRULED.

Defendants are ordered to file their answer to the Complaint in ten (10) days.

BACKGROUND

This is a premises liability action. Defendants Apex 2015, LLC (Apex 2015), Hillcrest Court LP (Hillcrest Court), Art Ricalde, and Monica Aguilera allegedly own or operate a property in Diamond Bar. In July 2023, Plaintiff Mustafa Mohammed was walking a dog on the Diamond Bar property when dogs allegedly owned by Defendant Diana Madrigal attacked Mohammed.

On March 18, 2024, Mohammed filed a complaint against Apex 2015, Hillcrest Court, Madrigal, Ricalde, Aguilera, and Does 1-50, alleging the following causes of action: (1) negligence, (2) statutory liability – Dog Bite Statute, (3) strict liability, and (4) premises liability.

On August 26, 2024, Apex 2015, Hillcrest Court, and Ricalde (Defendants) filed the present demurrer. Prior to filing on August 22, 2024, Defendants’ counsel attempted to meet and confer telephonically with Mohammed’s counsel. (Tetzlaff Decl., ¶ 4.)

A hearing on the demurrer is set for October 2, 2024, along with an OSC Re: Proof of Service.

ANALYSIS

The court notes that plaintiff filed a First Amended Complaint on September 30, 2024.  Plaintiff filed the First Amended Complaint after the date upon which Plaintiff was required to oppose Defendants’ demurrer.  Further, the parties did not stipulate to the filing of Plaintiff’s First Amended Complaint.  As such, the court finds that Plaintiff’s First Amended Complaint was improperly file and is not permitted pursuant to Code of Civil Procedure, §472(a), which provides in relevant part: “A party may amend its pleading once without leave of court at any time . . . after a demurrer . . . is filed but before the demurrer . . . is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer . . . .  A party may amend the pleading after the date for filing an opposition to the demurrer . . ., upon stipulation by the parties.”

Accordingly, the court, on its own motion, strikes the First Amended Complaint filed on September 30, 2024, pursuant to Code of Civil Procedure, §472(a), and considers the demurrer on its merits.

Defendants demur to Mohammed’s second cause of action (statutory liability – Dog Bite Statute) and third cause of action (strict liability) on the grounds that they are insufficiently pled. For the following reasons, the court disagrees and OVERRULES their demurrer.

Legal Standard

Demurrer

A party may demur to a complaint on the grounds that it “does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) 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.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, at p. 747.)

Dog Bite Statute

Civil Code section 3342, also known as the Dog Bite Statute, “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.’” (Priebe v. Nelson (2006) 39 Cal.4th 1112, 1115, quoting Civ. Code, § 3342, subd. (a).)

Discussion

In this case, Defendants argue the Complaint fails to allege they are the owners of the dogs that attacked Plaintiff. (Demurrer, p. 5:12-28.) The Complaint does so, however, in paragraph forty (¶ 40) where it alleges Apex 2015, Hillcrest Court, Madrigal, Ricalde, Aguilera, and Does 1-50 “owned, controlled and maintained the dogs that bit [Mohammed].” (Complaint, ¶ 40.) To the extent Defendants may argue this allegation is contradicted by paragraph twelve (¶ 12) of the Complaint which alleges the dogs were owned by Madrigal and Does 1-50, the court notes this allegation does not allege they were the only owners. (Complaint, ¶ 12.)

Accordingly, the court OVERRULES Defendants’ demurrer to these causes of action.

CONCLUSION

Based on the foregoing, Defendants’ demurrer to Mohammed’s Complaint is OVERRULED in its entirety.

Defendants are ordered to file their answer to the Complaint in ten (10) days.