Logan vs. Hillis

Here, Cross-Complainant objects to Cross-Defendant’s Request for Judicial Notice. (See Opposition: 4:7-24.) While Cross-Complainant indicates she does “not deny for present purposes that her platform use was subject to Rover terms,” she nonetheless disputes assent to the specific terms offered by Cross-Defendant, within its Exhibit D. (Ibid.) As noted by Cross-Complainant, “Rover offers no declaration from a custodian or account-system witness establishing what version Hillis received, when and how she assented, or whether she opted out.” (Opposition: 4:13-15.) While Cross-Complainant proceeded to offer argument regarding the terms included within Exhibit D, Complainant nonetheless disputes having consented thereto and this dispute cannot be resolved on demurrer.

Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743 (Scott), cited by Cross-Defendant, is distinguishable. In Scott, the Court of Appeals affirmed judicial notice of a Purchase and Assumption Agreement between the FDIC and JPMorgan, concerning the assets and liabilities of Washington Mutual, on the basis the document was an official act of the FDIC and was not reasonably subject to dispute, in part due to the terms being publicly posted on the FDIC web site. (Id. at p. 753-754.) It is within this context, wherein the Scott Court explained: “Where, as here, judicial notice is requested of a legally operative document – like a contract – the court may take notice not only of the fact of the document and its recording or publication, but also facts that clearly derive from its legal effect.” (Id. at p. 754.)

“Scott is inapposite because the document being judicially noticed in that case was a government document and was accordingly governed by Evidence Code section 452, subdivision (c), under which judicial notice may be taken of ‘[o]fficial acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.’” (The Travelers Indemnity Co. of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 354.) “Scott does not provide authority allowing a court to take judicial notice of a contract between private parties.” (Ibid.)

Additionally, regardless, the Scott Court noted that judicial notice is appropriate only when there is no dispute as to the authenticity of the relevant agreement. (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 755.) As noted above, Cross- Complainant disputes being bound by the terms offered by Cross- Defendant.

Based on all the above, the Request for Judicial Notice, as directed towards the Terms of Service, is denied.

Proceeding to the remainder of the demurrer, “[w]e treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of law. [Citation.] We also consider matters which may be judicially noticed.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The function of a demurrer is therefore limited to testing the sufficiency of a complaint. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “In reviewing the ruling on a demurrer, a court cannot consider...the substance of declarations, matter not subject to judicial notice, or documents judicially noticed but not accepted for the truth of their contents.” (Ibid.)

Cross-Defendant demurrers pursuant to Code of Civil Procedure section 430.10, subdivision (a), for lack of subject matter jurisdiction. In putting forth this argument, Cross-Defendant relies on an alleged arbitration agreement and choice of forum provision, included within the Terms of Service; however, as the Terms of Service are not subject to judicial notice, this argument fails.

Moreover, “[t]he submission of a dispute to private arbitration does not oust the superior court of jurisdiction.” (Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 44.) Similarly, a forum selection clause within a contract does not deprive the Superior Court of jurisdiction. (See Korman v. Princess Cruise Lines, Ltd. (2019) 32 Cal.App.5th 206, 222.)

Thereafter, citing Sportsman v. A Place for Rover, Inc. (N.D. Cal. 2021) 537 F.Supp.3d 1081 (Sportsman), Cross-Defendant seems to assert that any individual dog-walker was an independent contractor, such that liability does not attach to Cross-Defendant. (Demurrer: 3:24-4:7.)

Notably, Cross-Defendant did not request the Court take judicial notice of any factual finding within Sportsman and even assuming it had, “neither a finding of fact made after a contested adversary hearing nor a finding of fact made after any other type of hearing can be indisputably deemed to have been a correct finding.” (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1568.) “A court may take judicial notice of [another] court’s action, but may not use it to prove the truth of the facts found and recited.” (Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120.)

Nor has Cross-Defendant established application of collateral estoppel, such as to bind Cross-Complainant to the decision in Sportsman. (Johnson v. GlaxoSmithKline, Inc. (2008) 166 Cal.App.4th 1497, 1507-1508.)

Based on the above, the factual findings in Sportsman are irrelevant herein and do not establish that Kenny Davis was an independent contractor.

Moreover, in contrast to Cross-Defendant’s assertion, the Cross- Complaint repeatedly alleges that Kenny Davis was an employee of Rover, Inc. (See ¶6, ¶7, ¶9 and ¶10 of Cross-Complaint.) Within the Reply, Cross-Defendant suggests that additional factual allegations are necessary to support this allegation; however, the allegation is an appropriate ultimate fact, that the Court is required to accept as true, for purposes of demurrer. (See Skopp v. Weaver (1976) 16 Cal.3d 432, 437.)

Thereafter, the Demurrer asserts that Cross-Complainant’s claims fail as “judicially noticed Terms hold Rover is not liable to crosscomplainant.” (Demurrer: 3:2-3; See also 8:12-25.) Cross-Defendant asserts that liability fails, based on release and indemnity language included within the Terms of Service. (Demurrer: 9:1-10:20.) However, given the Court cannot take judicial notice of the Terms of Service, these arguments fail.

At best, in addressing the substance of the allegations in the Cross- Complaint, the Demurrer asserts Cross-Complainant failed to allege damages, to support the claim for negligence. (See Demurrer: 8:8- 10.) However, the Cross-Complaint alleges Defendant’s negligence caused damage to Complainant, by way of her exposure to liability, defense costs, and potential judgment. (See ¶16 of Cross- Complaint.)

As noted by Complainant, where the tort of another has led one to incur attorneys’ fees, defending an action by a third party, such fees constitute tort damages. (See Prentice v. North Am. Title Guaranty Corp. (1963) 59 Cal.2d 618, 620-621 and Sooy v. Peter (1990) 220 Cal.App.3d 1305, 1310.) “A person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney’s fees, and other expenditures thereby suffered or incurred.” (Prentice v. North Am. Title Guaranty Corp. (1963) 59 Cal.2d 618, 620; See also Guinnane Construction Co., Inc. v. Chess (2026) 119 Cal.App.5th 689, 699.)

Based on all the above, the Demurrer to the Complaint brought by A Place for Rover, Inc. is overruled.

Cross-Defendant shall file its Answer to the Cross-Complaint, within 10 days of this order.