Judge: Serena R. Murillo, Case: 21STCV41031, Date: 2022-09-07 Tentative Ruling
Case Number: 21STCV41031 Hearing Date: September 7, 2022 Dept: 29
Elizabeth Sunu, et al. v. Gregorio
Guerrero, et al.
Wednesday, September 7, 2022
TENTATIVE
Defendant City of
Redondo Beach’s demurrer to the first amended complaint is SUSTAINED with 30
days leave to amend.
Request for Judicial Notice
Defendant requests judicial notice of: (1) a City issued
pet license to Guerrero for Duke; (2) Plaintiffs’ government tort claim
submission to the City; (3) a City police report pertaining to Duke; and (4) a
citation issued to Guerrero by City police regarding Duke.
The request is GRANTED pursuant to Evidence Code section
452(c).
Legal Standard
A demurrer for sufficiency tests
whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
When considering demurrers, courts read the allegations liberally and in
context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216,
1228.) The court “treat[s] the demurrer as admitting all material facts
properly pleaded, but not contentions, deductions or conclusions of fact or law
….” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525).) 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. (Code Civ. Proc., §§ 430.30, 430.70.) 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,
147 Cal.App.4th at 747.)
Meet and Confer
The demurrer is accompanied by the
declaration of Alexander Frank, which satisfies the meet and confer
requirements. (Code Civ. Proc. § 430.41.)
Discussion
Violation of Mandatory Duties Pursuant to Government Code
section 815.6
Defendant
demurs to the FAC, first arguing that Plaintiffs’ cause of action for violation
of mandatory duties pursuant to Government Code section 815.6 fails as a matter
of law because the City’s ordinance that establishes the impounding duty was
not designed to mitigate the risk of dog attack.
Government
Code, section 815.6 provides: “Where a public entity is under a mandatory duty
imposed by an enactment that is designed to protect against the risk of a
particular kind of injury, the public entity is liable for an injury of that
kind proximately caused by its failure to discharge the duty unless the public
entity establishes that it exercised reasonable diligence to discharge the
duty.” (Gov. Code, § 815.6.)
“Government Code
section 815.6 contains a
three-pronged test for determining whether liability may be imposed on a public
entity: (1) an enactment must impose a mandatory, not discretionary, duty [citation]; (2)
the enactment must intend to protect against the kind of risk of injury
suffered by the party asserting section 815.6 as a basis for liability [citations]; and
(3) breach of the mandatory duty must be a proximate cause of the injury
suffered. [Citations.]” (E.g., Davila v.
County of Los Angeles (1996) 50
Cal.App.4th 137, 140 (Davila).)
Whether an
enactment creates a mandatory duty is a question of law. (Haggis v.
City of Los Angeles (2000) 22 Cal.4th
490, 499 (Haggis).) As the Supreme
Court explained in Haggis,
The enactment’s language “is, of course, a
most important guide in determining legislative intent, [but] there are
unquestionably instances in which other factors will indicate that apparent
obligatory language was not intended to foreclose a governmental entity’s or officer’s
exercise of discretion.” [Citation.] Second, but equally important,
section 815.6 requires that the mandatory duty be “designed” to protect
against the particular
kind of injury the plaintiff suffered. The
plaintiff must show the injury is “ ‘one of the
consequences which the [enacting body] sought to prevent through imposing the alleged
mandatory duty.’ ”
[Citation.] Our inquiry in this regard goes to the legislative purpose of
imposing the duty. That the enactment ‘confers some benefit’ on the class
to which plaintiff belongs is not enough; if the benefit is “incidental” to the
enactment’s protective purpose, the enactment cannot serve as a predicate for
liability under section 815.6.
(Haggis, ibid.)
1.
Redondo
Beach Municipal Code sections 5-1.101-5-1.113
Plaintiffs first rely on Redondo
Beach Municipal Code sections 5-1.101-5-1.113 to argue that Defendant breached
its mandatory duty to impound unrestrained and unlicensed dogs.
Section § 5-1.102 provides:
“It shall be the duty of the
Poundmaster to make investigations concerning, take up, receive into the pound,
maintain in the pound and release, discharge or dispose of all dogs
found running at large upon any public highway, street, avenue, way, lane,
alley, park, square, sidewalk, beach or any other public place in the City;
provided, however, that the provisions of this section shall not apply to
dogs which are properly licensed and wearing current license tags, and
which comply with the provisions of Section 5-1.103 of this article. (§ 2, Ord.
1479 c.s.)”
(Redondo Beach Municipal Code section §
5-1.102 (emphasis added).)
Section § 5-1.111 provides:
“Any dog permitted
to run at large in violation of the provision of this chapter shall be taken in
charge by the Poundmaster. Such dog so taken while running at large without
a license shall be kept by the Poundmaster for a period of (5) days, at the
end of which time, unless redeemed as provided in this chapter, the dog shall
be humanely disposed of by the Poundmaster; provided, however, that no dog
shall be sold or given away by the Poundmaster unless the license fee and
penalties due the City for such dog shall have first been paid. (§ 10, Ord.
1479 c.s.)”
(Redondo Beach Municipal Code
section § 5-1.111 (emphasis added).)
Defendant argues
that the subject ordinances that require the City to impound an off leash dog
were not designed to prevent risk of harm. Rather, they are designed to
motivate dog owners to license their dogs, to facilitate the return of
lost dogs to their owners, and to raise revenue. This is clear because the
impoundment obligation arises only if the dog found roaming freely is unlicensed;
it does not apply if the dog is licensed and wearing its license tags.
(Ordinance § 5-1.102 “the provisions of this section shall not apply to dogs
which are properly licensed and wearing current license tags.”) This
arrangement makes sense, for if a dog found roaming the streets is licensed and
tagged, its tag will identify the dog’s owners and they can be contacted to
retrieve the dog. Indeed, that the City’s impoundment duty hinges on the
license status of the dog and nothing more shows that this ordinance is not a
public safety measure. Moreover, the ordinance authorizes the City’s
Poundmaster to dispose of an unlicensed dog after only five days, which creates
a strong incentive for dog owners to comply with the City’s license
requirement. (See Ordinance § 5-1.111 and § 5-1.105, requiring licensure of all
dogs that reside in the City.) Further, if the City encounters an unlicensed
and untagged dog, the City has no other option but to wait for the dog’s owner
to contact the City pound to see if the Poundmaster has possession of the dog.
If five days pass and that does not happen, the City presumes the dog is stray
and takes appropriate action. (§5-1.111.) And that is why the impoundment
obligation does not apply to licensed and tagged dogs – those dogs’ owners can
be contacted immediately.
Plaintiff argues that the plain language of the statutes
suggests that the purpose of the ordinance was to capture dogs that lacked
responsible ownership and contain them in a space away from the public. The
exclusion for licensed and tagged dogs makes this clear. If a dog is licensed
and tagged, the owner can easily be identified and held responsible for any
damage it causes to property or person. Plaintiff argues that the emphasis on
the capture and disposal of unlicensed, at large dogs shows the main intent of
the statute is to protect the public from potentially dangerous unattended
and/or stray dogs.
The Court does not
find that Redondo Beach Municipal Code sections 5-1.102 and 5-1.111 protect against the kind of risk of injury suffered by
Plaintiff. As Defendant argues, the impoundment obligation arises only
if the dog found roaming freely is unlicensed; it does not apply if the
dog is licensed and wearing its license tags. Simply because a dog is
unlicensed and untagged does not necessarily mean the dog is vicious or
dangerous. A dog may be licensed and tagged and yet still attack if it is prone
to attack, if it somehow escapes from the home of a responsible owner. In this
scenario, the dog would be returned to the owner and not impounded. But if
these ordinances were truly designed to prevent dog attacks, there would be no exclusion in their application
for licensed dogs. As Defendant points out, the way that these statutes operate
would impose no impoundment obligation on an off-leash 100-pound pit bull that
is licensed and wearing its tags, but an unlicensed and off- leash 15-pound
chihuahua would be subject to impoundment. Lastly, Plaintiff argues that if a
dog is licensed and tagged, then the owner can be identified and held
responsible if the dog attacks. But the focus here is not whether they can be
held responsible after the fact, but rather, whether these ordinances are
designed to prevent the harm in the first place.
Thus,
because the enactments do not protect against the kind of risk of injury
suffered by Plaintiff, she cannot rely on these ordinances to form the basis of
her cause of action
under Government Code section 815.6.
2.
Redondo
Beach Municipal Code, section 5-1.301
Defendant argues that Plaintiffs’ second theory fails
because it relies on a misinterpretation of what the City’s actual duty is
under the controlling City ordinance. The City’s only mandatory duty is to hold
a hearing about a dog if it receives a signed and written complaint that states
with specificity “all facts supporting such claim of [a dog’s] viciousness.”
(Redondo Beach Municipal Code section 5-1.301, Vicious Animal Procedures.)
Redondo Beach Municipal Code section 5-1.301 provides:
(a) Upon a written complaint to the
City that any animal is, in fact, vicious, a hearing shall be set before the
Chief Animal Control Officer of the City to determine whether such allegation
is correct. Such complaint shall be signed by the complainant and shall
specifically set forth all facts supporting such claim of viciousness. Any such
hearing shall be held not less than five (5) days nor more than fifteen (15)
days after notice thereof is given to the complainant, to any person keeping or
possessing the subject animal, and to any person requesting notice thereof.
Plaintiff alleges in the FAC that
prior to her attack, the failed to designate Duke as a Potentially Dangerous
and/or Vicious Dog despite the fact that Duke’s known, and documented incidents
clearly met the criteria. Further, she alleges in the FAC that Defendant
breached its mandatory duty under Redondo Beach Municipal Code 5-1.301 by its
failure to conduct a hearing to determine if Duke was potentially dangerous or
vicious on multiple occasions prior to the attack on Plaintiff.
However, Plaintiff has not alleged that Defendant ever
received a written and signed complaint to trigger the City’s duty to hold a
hearing. As such, this theory is not sufficiently pled and is subject to
demurrer.
As this cause of action does not rely on other statutes
or enactments, the demurrer is SUSTAINED in full. The remaining arguments do
not need to be addressed as the demurrer is sustained.
Conclusion
As such, Defendant’s demurrer is SUSTAINED with 30 days leave
to amend.
Moving party is ordered to give notice.