Case Name: Debra Yvonne Miller v. Francisco Rodriguez, et al.

Case No.: 17CV306002

Defendant Jorge Alcarez’s Demurrer & Motion to Strike

Plaintiff Debra Yvonne Miller (“Miller”) alleges defendants Francisco Rodriguez, Alice Rodriguez, and Doe defendants (collectively, “Defendants”) owned, leased, managed, controlled, supervised, inspected, maintained, and otherwise acted and failed to act with respect to certain property located at or near 3474 Heritage Oaks Drive in San Jose. (Complaint, ¶GN-1(1).) Defendants owned, harbored, controlled, maintained, allowed to be harbored and maintained, managed, cared for, and supervised a pitbull, boxer, or other canine (“dog”). (Complaint, ¶GN-1(2).) On February 9, 2015, Defendants caused and/or allowed said dog to escape, menace, growl at, and attack plaintiff Miller causing plaintiff Miller to fall to the ground and suffer bodily injuries. (Complaint, ¶GN-1(6).)

On February 6, 2017, plaintiff Miller filed a Judicial Council form complaint against Defendants asserting causes of action for:

(1) General Negligence
(2) Premises Liability
(3) General Negligence
(4) General Negligence

On March 28, 2017, defendants Francisco Rodriguez and Alice Rodriguez filed an answer to the complaint.

On September 8, 2017, plaintiff Miller filed amendments to the complaint substituting defendant Gloria Alcarez for Doe defendant number one and substituting defendant Jorge Alcarez for Doe defendant number two.

On December 4, 2017, defendant Jorge Alcarez (“Alcarez”) filed the motion now before the court, a demurrer and motion to strike.

III. Defendant Alcarez’s demurrer to the complaint is OVERRULED.

“An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff.” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673.) “Premises liability is a form of negligence … and is described as follows: The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.

In demurring, defendant Alcarez argues that he owed no duty to plaintiff Miller. “[T]he existence of a duty is a question of law for the court.” (Kentucky Fried Chicken of California, Inc. v. Superior Court (1997) 14 Cal.4th 814, 819.) “The question of whether a duty exists is a question of law and must be decided by the court on a case-by-case basis.” (Dutton v. City of Pacifica (1995) 35 Cal.App.4th 1171, 1175.)

Defendant Alcarez contends plaintiff Miller has not sufficiently pleaded that defendant Alcarez owned, leased, managed, controlled, supervised, inspected, or maintained the premises and has not sufficiently pleaded that defendant Alcarez owned, harbored, controlled, maintained, allowed to be harbored and maintained, managed, cared for, and supervised said dog. Yet, these very allegations are found at paragraphs GN-1 of the complaint. Although defendant Alcarez’s name does not appear on the complaint itself, the complaint includes Doe allegations and defendant Alcarez has since been substituted for a Doe defendant.

Defendant Alcarez argues additionally that the complaint fails to specify the breach of any duty. Again, the allegation can be found in paragraph GN-1 where it is alleged, “Defendants caused and/or allowed said dog to escape, menace, growl at, and attack plaintiff Miller.”

Finally, defendant Alcarez asserts a failure to allege how the conduct was the proximate cause of plaintiff’s injuries. Defendant Alcarez ignores the basic allegation that by allowing the dog to attack plaintiff, it “cause[d] the Plaintiff to fall to the ground thereby directly and proximately causing the Plaintiff to suffer, and to continue to suffer, bodily injuries and legal damages.” (Complaint, ¶GN-1.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213 – 214.) The complaint adequately alleges proximate causation which the court accepts as true for purposes of demurrer.

Accordingly, defendant Alcarez’s demurrer to plaintiff Miller’s complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] is OVERRULED.