Case Number: BC705696 Hearing Date: August 31, 2018 Dept: 4

The court considered the moving, opposition, and reply papers.

Background

Plaintiff Tagui Kaladzhyan and Lily Grigorian (“Plaintiffs”) filed a complaint on May 9, 2018, alleging two causes of action for general negligence and premises liability. On August 2, 2018, Defendant Macy’s West Stores, Inc. (“Defendant”) filed a demurrer to the complaint. Plaintiff filed an opposition on August 20, 2018. Defendant filed a reply on August 21, 2018.

Plaintiffs’ complaint arises from an incident at Defendant’s store. On May 12, 2016, Plaintiffs were at Defendant’s store when Defendants negligently allowed a dog onto its premises. The dog jumped on Plaintiffs, injuring them.

Defendants demur to the two causes of action. They argue that case law holds that a third party can be liable when the dog of another bites the plaintiff only if the third party knows of the dog’s vicious nature, which is unalleged. Defendant asserts that case law also holds the occurrence of a dog bite is not a condition of property for purposes of premises liability.

Plaintiffs oppose and argues they have pled sufficient facts. Plaintiffs assert that the complaint does not raise a claim for a dog bite, vicious propensities, or strict liability for ownership, as the demurrer contends. Plaintiffs instead explain that Defendant had a duty as a possessor of land to make the premises reasonably safe, including preventing the hazard of another customer bringing a dog into the aisles of a department store. Plaintiffs contend that they do not need to allege a violation of the dog bite statute or ordinance to maintain their negligence based causes of action.

On reply, Defendant argues that Plaintiff utterly fail to address that third-party liability only follows where the animal had known vicious or dangerous propensities abnormal to its class. Defendant asserts that there are no allegations that the dog had any such propensities or that Macy’s had any knowledge of that. Defendant reiterates that Plaintiff cites no authority that Macy’s had a duty to prohibit patrons from bringing in dogs to the store or evaluate the viciousness of any dog brought into the store. Defendant concludes that Plaintiff cited no authority contradicting that animals are not part of the premises.

LEGAL STANDARD

Meet and Confer Requirement

CCP section 430.41(a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Emphasis added.) The parties are to meet and confer at least five days before the date the responsive pleading is due. (CCP § 430.41(a)(2).) The demurring party must also file and serve a declaration detailing the meet and confer efforts. (CCP § 430.41(a)(3).) If an amended pleading is filed, the parties must meet and confer again before a demurrer may be filed to the amended pleading. (CCP § 430.41(a).)

Demurrer

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.) No other extrinsic evidence can be considered (i.e., no “speaking demurrers”).

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 Dep’t of Water & Power (2006) 144 Cal. App. 4th 1216, 1228.) 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 Ct. (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, 147 Cal.App.4th at 747.)

DISCUSSION

Meet and Confer Requirement

Counsel’s declaration satisfies CCP sections 430.41(a)(3)(B)’s declaration requirements. (Agbayani Decl. ¶¶ 3-4.)

Demurrer Analysis

Premises liability is a form of negligence where a plaintiff must show the well-known elements of negligence: 1) defendant owed a duty based on his ownership or control of property; 2) defendant was negligent in the use, maintenance or management of the property; 3) the plaintiff was harmed; and 4) defendant’s negligence was a substantial factor in causing plaintiff’s harm. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) The property owner’s duty is to use due care and to act affirmatively so that his or her property does not create an unreasonable risk of harm to others. (Ericson v. Federal Express Corp. (2008) 162 Cal.App.4th 1291.)

“Ordinarily, negligence may be alleged in general terms, without specific facts showing how the injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his cause of action, and . . . the plaintiff must indicate the acts or omissions which are said to have been negligently performed. He may not recover upon the bare statement that the defendant’s negligence has caused him injury.’ [Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) However, there is no requirement that plaintiff identify and allege the precise moment of the injury or the exact nature of the wrongful act. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Here, Plaintiff generally alleges that Defendants negligently managed and maintained their premises by allowing a dog present within the store to jump on Plaintiffs, causing them damages. (Compl. pp. 4-5.) Plaintiff therefore alleges a duty under general negligence principles—not a violation of a strict liability statute—and alleges that Defendants breached this duty by negligently allowing the dog onto their premises where it hurt Plaintiffs. Given the above authorities, this generally states a cause of action under general negligence principles and premises liability.

Defendant has failed to demonstrate that such a cause of action is improper as a matter of law. Defendant’s contentions that there is no statute or ordinance that forbids dogs from being inside a store is unpersuasive, and does not preclude a general negligence theory of liability. (Baley v. J.F. Hink and Son (1955) 133 Cal.App.2d 102.) Defendant also failed to provide any authority that a general negligence/premises liability claim requires Plaintiff to specifically plead that the dog was vicious and that a defendant knew that the dog was vicious. Most of Defendant’s cited cases specifically deal with strict liability for dog bites, as opposed to general negligence claims regarding a dog injuring people in other ways. (E.g. Priebe v. Nelson (2006) 39 Cal.4th 1112, 1115-1116 [common law strict liability cause of action requires knowledge of vicious propensities]; Drake v. Dean (1993) 15 Cal.App.4th 915 [jury question existed, in an action under both strict liability and general negligence theories against the owner of a pit bull for injuries that a plaintiff sustained when the dog jumped on her, as to whether pit bull posed risk of harm to others despite jury’s finding that it was not a vicious animal].) In fact, the cited cases state that the requirements of knowledge for strict liability against owners are not required. (Ibid.) The Drake case differentiated between the negligence theory of liability and strict liability theory and specifically rejected interposing strict liability requirements on a general negligence claim when analyzing jury instructions. (Id. at pp. 924-932.) Whether Defendant actually had sufficient notice or that the injury was foreseeable under the general negligence theory would be a fact specific, evidence driven analysis that is not required at the pleading stage on demurrer.

Lastly, Defendant has cited no case that states that injuries arising from an animal cannot be brought under a premises liability theory. Defendant’s only authority on this point, Safeco, analyzes the terms of an insurance contract and whether or not a dog bite was an injury “arising out of the premises” as defined by the specific terms of that contract. (See Safeco Ins. Co. v. Hale (1983) 140 Cal.App.3d 347, 352-353.) General negligence principles only require that a defendant unreasonably used, maintenance or managed her premises, and not that the injury “arises” from the premises. The ruling in Safeco is therefore immaterial to general negligence principles.

Accordingly, Defendant’s demurrer is OVERRULED.

The court orders:

Defendant’s demurrer is OVERRULED.

Defendant is to file and serve an answer within 10 days.

The moving party is ordered to provide notice of this order and file proof of service of such.

IT IS SO ORDERED.

DATED: August 31, 2018

___________________________

Christopher K. Lui

Judge of the Superior Court