Stephen Paschal, et al. v. Yong Jiang, et al.

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; Donabedian, supra, 116 Cal.App.4th at p. 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862, disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287 [error to consider contents of release not part of court record].) A demurrer can be utilized where the “face of the complaint’ itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-972.) The “face of the complaint’ includes material contained in attached exhibits that are incorporated by reference into the complaint, or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [?[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits”].) A demurrer can only be sustained when it disposes of an entire pleading, cause of action, or affirmative defense. (See Cal. Rules of Court, rule 3.1320, subd. (a); Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046-1047.) PRELIMINARY ISSUES Defendants present their motion as both a demurrer and a motion to strike, but Defendants appear to be asking for the same relief, i.e., asking the Court to find that Plaintiffs’ premises liability claim fails to state a cause of action. Failure to state a cause of action is grounds for a general demurrer, not a motion to strike. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 529.) The Court will therefore construe this motion as a demurrer only. DISCUSSION Meet and Confer Per Code of Civil Procedure section 430.41, subdivision (a), Defendants were required to meet and confer in person, by telephone, or by video conference before bringing this demurrer. (Code Civ. Proc., § 430.41, subd. (a).) Defendants failed to meet and confer by any of those methods. (Hsu Decl., ¶¶ 3-4.) Second Cause of Action? Premises Liability Premises liability is a form of negligence wherein 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." (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619; see also CACI 1000 (stating elements for premises liability). “The elements of a cause of action for premises liability are the

same as those for negligence. Accordingly, the plaintiff must prove, a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207.) Defendants demur to the FAC?s Second Cause of Action for premises liability on the grounds that it fails to state facts sufficient to constitute a cause of action. Defendants contend this cause of action fails because the alleged injury occurred on a public highway, not Defendants’ premises. Defendants contend the FAC does not allege that Defendants had control over the public highway, and relies on knowledge of the dog’s propensity, which goes to foreseeability and not breach, rather than negligence in some form of breach of duty in securing the property. Defendants further contend that Plaintiffs relied on distinguishable or irrelevant authority in refusing to dismiss this cause of action, as the dog’s owners in this case had already purposefully taken it outside for a walk and were waiting to cross the road. Defendants also contend Plaintiffs do not allege Defendants negligently secured the property, but instead assert that Defendant knew of the dog’s propensity to leave the property and failed to secure the dog. In opposition, Plaintiffs contend the FAC alleges facts to support a premises liability claim, as it alleges Defendants owned or controlled the subject property and therefore owed a duty of care to keep individuals on the adjacent public highway free from unreasonable risks of injury caused by the subject animal. Plaintiffs contend the FAC alleges Defendants breached that duty by failing to maintain adequate control of the subject animal that they knew had a propensity to leave the premises and enter the adjacent public highway, thereby creating an unreasonable risk of injury. Plaintiffs contend the FAC alleges the subject animal left the premises and collided with Stephen’s vehicle, which caused him to lose control and suffer injuries. Plaintiffs further contend Defendants’ additional facts in their motion, which are not contained in the FAC, do not change the outcome here. Without deciding the applicability of the cases Defendants contend are raised by Plaintiffs, the Court finds the FAC alleges sufficient facts to state a cause of action for premises liability. In ruling on a demurrer, all material facts pleaded in the complaint are assumed to be true. (Donabedian, supra, 116 Cal.App.4th at p. 994.) The FAC alleges Defendants owned or controlled the property where the dog resided, that Defendants negligently maintained or managed the property, that the dog left Defendants’ premises and entered the public highway and collided with Plaintiff Stephen’s vehicle, causing harm to Stephen. (FAC, ¶¶ GN-1, Prem.L-1.) These allegations are sufficient to state a cause of action for premises liability at the pleading stage. Plaintiffs also correctly contend that the additional facts proffered in Defendants’ motion, specifically regarding Defendants having taken the dog outside the premises to go for a walk, are not alleged in the FAC or listed in something of which the Court took judicial notice. (See Motion, 7:20-23, 8:20-28.) On a demurrer, the Court is limited to the allegations contained in the FAC and to matters that are subject to judicial notice. (Donabedian, supra, 116 Cal.App.4th at p. 994.) Therefore, the Court may not consider Defendants’ proffered additional facts in ruling on the demurrer. Based on the foregoing, the Court OVERRULES the demurrer. CONCLUSION

The Court OVERRULES Defendants Yong Jiang, Yinglin Zhao, and Deshan Zhao’s partial demurrer or, alternatively, motion to strike First Amended Complaint as to cause of action for premises liability. Defendants must file an amended answer to all causes of action in the FAC within ten calendar days of this order. Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order. [1] The Court refers to Plaintiff Stephen Paschal as Stephen only to avoid confusion. No disrespect is intended. Home -->)" -->