Case Number: KC065669    Hearing Date: September 08, 2014    Dept: 93

Superior Court of California
County of Los Angeles
Department 93

JIAZHI PAN, et al.,

Plaintiff(s),
v.

HOYT YANG, et al.,

Defendant(s).

And related cross-actions. Case No.: KC065669

Hearing Date: September 8, 2014

[TENTATIVE] RULING RE:
DEFENDANT / CROSS-COMPLAINANT JPN PUBLISHING, INC.’S MOTION FOR JUDGMENT ON THE PLEADINGS

Defendant / Cross-Complainant JPN Publishing, Inc.’s Motion for Judgment on the Pleadings is DENIED.

Legal Standard

The objection that a complaint does not state facts sufficient to constitute a cause of action is normally raised at an early stage in the proceedings by a general demurrer. However, a general demurrer is not the only procedural device available for this purpose, and it is possible to raise the objection more than once by different methods. The most common alternative method is a motion at trial, or prior to trial, for judgment on the pleadings pursuant to CCP Section 438(c)(1)(B). The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O’Reilly (2010) 183 Cal.App.4th 316, 321-322 (citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216).) Matters which are subject to mandatory judicial notice may be treated as part of the complaint and may be considered without notice to the parties. Matters which are subject to permissive judicial notice must be specified in the notice of motion, the supporting points and authorities, or as the court otherwise permits. (Id.)

Allegations in the Complaint

Plaintiffs allege the following facts with respect to the incident giving rise to this action:

On January 22, 2013, at approximately 8:35 am, plaintiff Jiazhi Pan and his wife plaintiff Ling Qi were legally walking on a public street when an unleashed and aggressive large dog owned and kept by defendants Hoyt Yang and Lynn Lou at their premises located at 19903 East Skyline Drive, Walnut, California 91748, jumped upon Jiazhi Pan causing him to fall and strike his head upon the ground which thereby rendered him unconscious and caused a traumatic brain injury.

The defendants negligently maintained and controlled their premises so as to allow their dangerous and aggressive large dog to escape from the premises; negligently controlled and/or failed to control their dangerous and aggressive large dog; and defendants violated inter alia Los Angeles County Leash Law which requires that dogs must be kept on a leash at all times when out of their yards. (Los Angeles County Code Title 10, Section 10.32.010.) As a direct and proximate result of said negligence of the defendants, plaintiff Jiazhi Pan sustained serious personal injuries including a traumatic brain injury.

(Complaint, p. 4.) Based on this incident, Plaintiffs allege claims for negligence, premises liability, strict liability, negligent infliction of emotional distress and loss of consortium. Defendant JPN was added to the action as a Doe defendant, and the Complaint broadly alleges that “Defendants, and each of them, were the owners, keepers, and controllers of a large dog with an unusually dangerous nature and/or tendencies.” (Complaint, Attachment 3 ¶2.)

Ownership of the Subject Dog

Defendant JPN’s motion does not articulate a challenge to each of the four causes of action set forth in Plaintiff’s Complaint, but broadly asserts that the failure adequately to allege it owned or controlled the dog supports Judgment on the Pleadings as to the entire Complaint. JPN argues that it is not “plausibly” alleged in the Complaint that it owned or controlled the subject dog, and the Complaint only makes the conclusory statement that it shared ownership and control of the dog with Defendants Yang and Lou.

The Complaint alleges as to JPN’s liability for the dog that “defendants negligently controlled and/or failed to control their dangerous and aggressive large dog” (First Cause of Action, Complaint p.4), “defendants who were the agents and employees of the other defendants and acted within the scope of the agency were … Hoyt Yang … Lynn Lou, … and Does 1 to 30 [including JPN]” (Second Cause of Action, Complaint p.5), and “Defendants, and each of them, were the owners, keepers, and controllers of a large dog with an unusually dangerous nature and/or tendencies” (Third Cause of Action, Complaint, p. 6).
JPN does not explain why joint ownership or control of a dog between a corporation and its employee is not plausible. JPN provides no authority for the idea that a corporation cannot own or be liable for controlling a dog. If JPN believes that there are no facts to support a showing that it did not own or control the dog, or that the individual defendants did not act in the scope of their employment or as agents of JPN in failing to control the dog, then this is a matter more properly presented in a motion for summary judgment. Indeed, in the case relied upon by Defendant, Baker v. Kinsey (1869) 38 Cal.631, the Court held that a verdict against defendant Kinsey was not supported by evidence at trial where there was no showing that Kinsey ever heard of the dog or directed the employee to keep a dog on the premises or agreed to keep the dog at the premises. (Id. at 633-34.)
Thus, unlike the procedural posture here, there was a factual determination by the Court that there was no basis for liability of the employer.

JPN also contends that the Complaint is deficient because the statement of ownership or control is too conclusory. Again, however, JPN provides no authority to support his argument that greater specificity was required in the pleading to allege ownership or control of a dog. JPN admits that negligence may be alleged in general terms; specific facts demonstrating the basis of its purported ownership or control of the dog are not required at this time.

Finally, JPN argues that the Complaint does not allege it knew of the subject dog, or its dangerous propensities. However, the Complaint alleges that JPN owned, kept or controlled the subject dog and prior to the attack upon Plaintiffs knew, or should have known it had unusually dangerous nature and/or tendencies. (Complaint, Attachment 3 ¶¶2-3.)

Given the allegations in the Complaint that JPN was an owner, keeper or controller of the subject dog, and/or that the individual defendants acted in the scope of their employment or as agents of their employer JPN, the motion for judgment on the pleadings is denied.
Plaintiffs are ordered to give notice.

DATED: September 8, 2014

_________________________
Hon. Gail Ruderman Feuer
Judge of the Superior Court