Hal Pedersen et al vs County of Santa Barbara

Case Number

24CV06085

Case Type

Hearing Date / Time

Fri, 05/02/2025 - 10:00

Nature of Proceedings

CMC; Demurrer and Motion to Strike

Tentative Ruling

(1) For all reasons discussed herein, the demurrer of defendant to portions of plaintiffs’ unverified complaint is sustained, in part as to the third cause of action alleged in the complaint, with leave to amend. Except as otherwise herein sustained, the demurrer is overruled.

(2) For all reasons discussed herein, the motion of defendant to strike portions of plaintiffs’ complaint is granted, in part and with leave to amend. The following matters are stricken from plaintiffs’ complaint: (1) “Plaintiffs are therefore entitled to and claim an award of punitive damages” (appearing at page 12, lines 22-23); (2) “Plaintiffs are therefore entitled to and claim an award of punitive damages” (appearing at page 14, lines 1-2); and (3) prayer paragraph 6 (“For punitive damages” appearing at page 15, line 12). Except as herein granted, the motion is otherwise denied.

(3) Plaintiffs shall file and serve their first amended complaint, if any, on or before May 16, 2025.

Background:

On October 30, 2024, plaintiffs Hal Pedersen (Pedersen) and Ming Yi (Yi) (collectively, plaintiffs) filed a complaint against defendant County of Santa Barbara (the County), alleging seven causes of action: (1) Civil Code section 3342 statutory liability (by Pedersen only); (2) violation of Civil Code section 3342.5 (by Pedersen only); (3) violation of Food and Agricultural Code section 30503.5; (4) negligence; (5) misrepresentation/deceit; (6) willful misconduct; and (7) loss of consortium (by Yi only). As alleged in the complaint:

The County owned a white Siberian Husky named “Zeus” which the County advertised as being available for adoption from an animal shelter (the Shelter) operated by the County. (Compl., ¶¶ 3 & 7-8.) The County described Zeus as “a gentle soul,” “very sweet,” “charming,” “friendly and easy going,” with a “gentle demeanor and friendly nature” and a “calm disposition,” a polite easy going demeanor” and stated that Zeus was an “ideal partner for those looking for a well-behaved and easy to manage furry friend….” (Compl., ¶ 8.)

Yi, who was considering adopting a dog, visited the Shelter on March 2, 2024, and explained to its staff that any adopted dog would be for her son and family, and that Yi wanted a dog that was “nice, gentle and calm….” (Compl., ¶ 9.) Shelter staff confirmed that Zeus was a great candidate for adoption. (Ibid.)

A female employee of the County at the Shelter brought Zeus out to meet Yi and her children, and represented that Zeus was gentle, calm, smart, and would be the right dog for the family. (Compl., ¶ 10.) Based on these representations, Yi agreed to foster Zeus for the day, with the understanding that Zeus would remain the sole property of the County. (Compl., ¶ 11.)

During the afternoon of March 2, 2024, Yi returned to the Shelter to learn more about Zeus’ history. (Compl., ¶ 12.) An employee of the County at the Shelter and her manager looked up information on their computer and represented that there was not much history but that the Zeus was a nice dog. (Ibid.). Based upon this representation, Yi continued to foster Zeus for the day. (Compl., ¶ 13.)

On March 2, 2024, Zeus attacked and bit Pedersen (the attack) causing serious injuries. (Compl., ¶ 14.) Plaintiffs believe that Zeus had a documented prior history of aggression, biting people, and breaking the skin requiring a mandated bite quarantine within the meaning of Food and Agricultural Code section 30503.5, including while Zeus was four months old. (Compl., ¶ 15.) The County knew of but failed to warn Yi about Zeus’ prior history before allowing Yi to foster Zeus, and before the attack. (Compl., ¶ 16.) The County also had an unwritten policy under which it would house and place dangerous dogs into the community, including dogs that it knew had a documented history of aggression. (Compl., ¶ 17.)

After the attack, plaintiffs returned Zeus to the Shelter. (Compl., ¶ 18.) The County continued to advertise Zeus as available for adoption, describing Zeus as the “epitome of a friendly and easy going companion”. (Compl., ¶ 18.)

On February 6, 2025, the County filed a demurrer directed to the second through sixth causes of action alleged in the complaint, on the grounds that the complaint fails to state facts sufficient to constitute a cause of action and is uncertain, and separately filed a motion to strike portions of the complaint.

The demurrer and motion to strike are each separately opposed by plaintiffs

Analysis:

(1) Demurrer

On demurrer, the court determines whether the complaint states a cause of action. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) “ ‘The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer as admitting all material facts properly pleaded, but also ‘give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.’ ” (Zhang v. Superior Court (2013) 57 Cal.4th 364, 370, internal quotation marks and citations omitted.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

Demurrer to the second cause of action:

In the second cause of action alleged in the complaint, Pedersen alleges that the County owed a mandatory duty under Civil Code section 3342.5, which it breached by failing to take reasonable steps necessary to remove any danger presented to Pedersen from bites by Zeus. (Compl., ¶ 28.) Pedersen further alleges that the County’s breach of its duties under Civil Code section 3342.5 resulted in the attack, and the damages and injuries sustained by Pedersen, which are of a nature that the statute was designed to prevent. (Compl., ¶¶ 29-33.)

In its demurrer to the second cause of action, the County contends that the statute at issue identifies only a right to request that a court determine whether the danger presented by a dog has been removed, and that plaintiffs have alleged no facts showing that any such request was made or that a hearing was conducted. For these reasons, the County argues, Civil Code section 3342.5 is not relevant or applicable to this litigation, does not create a duty owed by the County that the County violated, and does not confer standing under the circumstances present here.

The Government Claims Act or “Act”, codified as Government Code section 810 et seq., “is a comprehensive statutory scheme that sets forth the liabilities and immunities of public entities and public employees for torts.” (Kizer v. County of San Mateo (1991) 53 Cal.3d 139, 145, original italics & fn. omitted, overruled on another ground in Los Angeles Unified School Dist. v. Superior Court (2023) 14 Cal.5th 758, 775; see also County of Santa Clara v. Superior Court (2023) 14 Cal.5th 1034, 1047.) (Note: Undesignated code references shall be to the Government Code unless otherwise stated.)

Under section 815 of the Act, “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (Gov. Code, § 815, subd. (a).) Therefore, “public entities and their employees are immune from tort liability for legislative action or discretionary law enforcement activity.” (Danielson v. County of Humboldt (2024) 103 Cal.App.5th 1, 13 (Danielson).)

“However, this broad grant of immunity is subject to the exception contained in Government Code section 815.6 for certain ministerial acts not subject to the exercise of discretion. ‘Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.’ [Citation.] In other words, ‘ “[a]ctions that are manifestly ministerial, because they amount only to obedience to orders which leave the officer no choice, plainly include actions governed by specific statutory or regulatory directives. Such actions have been found nondiscretionary, and thus not immunized, because they entail the fulfillment of enacted requirements.” ’ [Citations.]” (Danielson, supra, 103 Cal.App.5th at pp. 13-14, original italics.)

Civil Code section 3342.5 provides that the “owner of any dog that has bitten a human being shall have the duty to take such reasonable steps as are necessary to remove any danger presented to other persons from bites by the animal.” (Civ. Code, § 3342.5, subd. (a).) The term “shall” as used in this section indicates that the duty imposed by the statute is not discretionary. (Ortega v. Sacramento County Dept. of Health & Human Services (2008) 161 Cal.App.4th 713, 728.) Further, in its reply to plaintiffs’ opposition, the County notes that Civil Code section 3342.5 addresses what the County describes as “post bite obligations to remove the danger to other people” (Reply at p. 2, ll. 25-26, italics added.) For this reason, the County does not appear to dispute that, to the extent Civil Code section 3342.5 applies here, the duty to take necessary and reasonable steps to remove any danger presented from bites by Zeus that may be imposed under Civil Code section 3342.5 is not discretionary.

Described above, plaintiffs allege in the complaint that the County owned Zeus, that Zeus had a prior history of biting people, and that the County knew of Zeus’ prior history of biting people before it allowed Yi to foster Zeus. These allegations are incorporated into the second cause of action. (Compl., 27.) These allegations are sufficient, for present purposes, to show that Zeus had bitten a human being prior to the time Yi agreed to foster Zeus.

In addition, allegations regarding the attack and which show that Pedersen was bitten by Zeus are sufficient to show that the injury at issue falls within the particular kind of injury (here, bites by Zeus) that Civil Code section 3342.5, subdivision (a), was designed to protect against. (Gov. Code, § 815.6.)

Though Civil Code section 3342.5 also includes a separate subdivision (b) authorizing an action against an owner of an animal that has bitten a human being on two separate occasions, and the court to make any order it deems appropriate to prevent the recurrence of such an incident, the second cause of action does not appear to be premised on any such action or court order following a hearing as the County appears to contend.

Instead, giving the complaint a reasonable interpretation, it can be inferred from the allegations described above that the second cause of action for violation of Civil Code section 3342.5 arises from what plaintiffs allege was a duty owed by the County to take reasonable steps to remove any danger presented to plaintiffs, including Pederson, before or at the time Yi agreed to foster Zeus, based on the County’s knowledge of Zeus’ prior bite history. By way of example, plaintiffs allege in the complaint that the County did not disclose or warn Yi of Zeus’ prior history, and described Zeus to Yi as, among other things, gentle, friendly, calm, and well-behaved. Plaintiffs allege that, by not warning or otherwise informing Yi that Zeus had a prior history of biting people, or by not removing any danger of bites by Zeus when allowing Yi to foster Zeus, that the County failed to discharge the duty imposed under Civil Code section 3342.5.

The County fails to offer any reasoned argument showing why the provisions of Civil Code section 3342.5, subdivision (a), do not, under the circumstances alleged in the complaint, impose a mandatory duty on the County to take necessary reasonable steps to remove any danger presented to plaintiffs from bites by Zeus, or why the allegations of the complaint show that the County took reasonable steps to remove any danger presented to plaintiffs at or during the time plaintiffs fostered Zeus.

Moreover, to the extent the allegations of the complaint are in some respects uncertain as to any duty imposed on the County based on Zeus’ prior bite history or why the County failed to discharge that duty, these “ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

For all reasons discussed above, the allegations of the complaint, if proven, are sufficient to show that, to the extent the County knew that Zeus previously bit a human being, the County had a mandatory duty to take reasonable steps to remove any danger presented to plaintiffs from bites by Zeus. The allegations of the complaint are also sufficient to show that the County did not disclose or warn of Zeus’ prior bite history when allowing Yi to foster Zeus, and that Pedersen suffered the kind of injury the statute was designed to protect against. A reasonable trier of fact could find that, if these allegations are proven, the County failed to remove any danger from bites by Zeus. For these reasons, the allegations of the complaint are sufficient at this stage of the proceedings to state a cause of action under Civil Code section 3342.5, subdivision (a), notwithstanding whether plaintiffs can prove these allegations. (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.) Therefore, and for all further reasons discussed above, the court will overrule the demurrer to the second cause of action alleged in the complaint.

Demurrer to the third cause of action:

In the third cause of action, plaintiffs allege that the County failed to provide a written disclosure of Zeus’ bite history before releasing Zeus to Yi, failed to obtain or provide a copy of an acknowledgment of Zeus’ bite history signed by Yi, and failed to retain the original of any such acknowledgment in its files as required under Food and Agricultural Code section 30503.5. (Compl., ¶ 35.)

Plaintiffs further allege that, had the County provided a written disclosure of Zeus’ bite history as required under Food and Agricultural Code section 30503.5, Yi would have declined to foster Zeus, and that a result of the County’s failure to provide the required written disclosures, Pedersen and Yi were each injured. (Compl., ¶¶ 26-42.)

The County contends that the allegations of the complaint show that Zeus was not transferred, given away, or sold to plaintiffs. For this reason, the County argues, the requirement to provide documentation set forth in the statute at issue in the third cause of action was not triggered. The County further contends that any fines that may be imposed under Food and Agricultural Code section 30503.5 are not payable to plaintiffs. For these reasons, the County argues, plaintiffs have failed to allege facts sufficient to show that the statute creates any direct liability of the County or that plaintiffs have standing to maintain a cause of action for a violation of its provisions.

Based on the points raised by the County in its demurrer to the third cause of action, there is a question as to whether Food and Agricultural Code section 30503.5 creates a private cause of action.

“A violation of a state statute does not necessarily give rise to a private cause of action. [Citation.] Instead, whether a party has a right to sue depends on whether the Legislature has ‘manifested an intent to create such a private cause of action’ under the statute. [Citations.] Such legislative intent, if any, is revealed through the language of the statute and its legislative history.” (Lu v. Hawaiian Gardens Casino, Inc. (2010) 50 Cal.4th 592, 596 (Lu). ) “The burden of persuasion is with the party claiming a statutory right to sue.” (San Diegans for Open Government v. Public Facilities Financing Authority of City of San Diego (2019) 8 Cal.5th 733, 739.)

Relevant here, Food and Agricultural Code section 30503.5 requires an “animal shelter”, as that term is defined in the statute, that knows that a dog has bitten a person and broke that person’s skin at the age of four months or older to “[d]isclose in writing to the person to whom the dog is sold, given away, or transferred, the dog’s known bite history and the circumstances related to the bite” and to obtain a signed acknowledgment “from the person to whom the dog is sold, given away, or transferred that the person has been provided information about the dog as required” by the statute. (Food & Agr. Code, § 30503.5, subd. (b)(1)-(2).)

A violation of Food and Agricultural Code section 30503.5 is “punished by a civil fine not to exceed five hundred dollars” which is imposed by the “city or county in which the animal shelter or rescue group is located” and which, under the circumstances alleged in the complaint, “shall be deposited into the treasury of the city or county in which the public animal control agency or shelter is located.” (Food & Agr. Code, § 30503.5, subd. (d).)

The statute under which plaintiffs allege the third cause of action does not “expressly state that a person has or is liable for a cause of action for a particular violation.” (Lu, supra, 50 Cal.4th at p. 597.) As Food and Agricultural Code section 30503.5 does not expressly state that persons such as plaintiffs have a cause of action for any violation of its provisions by an animal shelter such as the County, there exists no direct indication in the plain language of the statute that the Legislature intended to create a private cause of action for any violation of its provisions.

“[M]ore commonly, a statute may refer to a remedy or means of enforcing its substantive provisions, i.e., by way of an action.” (Lu, supra, 50 Cal.4th at p. 597.) The plain language of Food and Agricultural Code section 30503.5 also does not expressly provide for a direct suit, or include language permitting any person to bring an action for a violation of its provisions. (Ibid. [setting forth examples of statutory language sufficient to create a cause of action].)

“If, however, a statute does not contain such obvious language, resort to its legislative history is next in order.” (Lu, supra, 50 Cal.4th at p. 597.) Apart from arguing that statute creates mandatory disclosure duties owed by the County and is applicable to circumstances where a dog is fostered through an animal shelter, plaintiffs, who bear the burden of persuasion on this issue, offer no reasoned argument to show why the Legislature intended, either expressly or impliedly, a private right of action in Food and Agricultural Code section 30503.5. (Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, 300.)

In addition, the language of the statute itself provides that any fines for a violation of its provisions are to be “imposed by the city or county in which the animal shelter is located” and does not require the fine to be paid to a person to whom a dog is sold, given away, or transferred. (Food & Agr. Code, § 30503.5, subd. (d).) These express provisions imply that there does not exist a private right of action for a violation of Food and Agricultural Code section 30503.5, or, at most, that the Legislature has expressed “no intent on the matter either way….” (See, e.g., Animal Legal Defense Fund v. Mendes (2008) 160 Cal.App.4th 136, 142.) For these and all reasons further discussed above, Food and Agricultural Code section 30503.5 does not establish a private right of action.

Even if the court were to assume without deciding that the County breached any mandatory duty imposed under Food and Agricultural Code section 30503.5 with respect to the disclosures required under the statute, plaintiffs have failed to show that there exists a private right of action for that violation. For these and all further reasons noted above, the court will sustain the demurrer to the third cause of action alleged in the complaint.

Demurrer to the fourth cause of action:

In the fourth cause of action for negligence, plaintiffs allege that the County had a duty to, among other things, avoid placing dangerous dogs into the community, disclose Zeus’ history of aggression to persons considering adopting or fostering Zeus, and take necessary and reasonable steps to remove any danger presented from bites by Zeus considering the County knew that Zeus had previously bitten other persons. Plaintiffs further allege that the County breached these duties by allowing Yi to foster Zeus, failing to provide mandatory disclosures required under Food and Agricultural Code section 30503.5, failing to remove any danger presented to other persons from bites by Zeus, and placing Zeus in the community. (See Compl., ¶¶ 44-45.)

The County contends in its demurrer that plaintiffs have failed to allege a statutory ground or basis for a cause of action for negligence.

Though a plaintiff cannot assert a common law negligence claim against a public entity (Doe v. Los Angeles County Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 686), plaintiffs have, for reasons further discussed above, alleged facts sufficient to state a cause of action under Civil Code section 3342.5, based on a mandatory statutory duty which plaintiffs allege the County failed to perform. (See Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1458-1459 [general discussion of sufficiency of negligence claim against public entity]; Washington v. County of Contra Costa (1995) 38 Cal.App.4th 890, 896 [same].)

The same reasoning and analysis apply here. For all reasons discussed above, as plaintiffs have sufficiently pled the existence of a statutory duty which the County purportedly did not perform, and as the County offers no further reasoned argument to show why the fourth cause of action for negligence is otherwise deficient or why it is otherwise immune from liability, plaintiffs have sufficiently alleged a cause of action for negligence. For these reasons, the court will overrule the demurrer to the fourth cause of action alleged in the complaint.

Demurrer to the fifth and sixth causes of action:

The fifth cause of action for misrepresentation and deceit arises from the representations regarding Zeus and the purported failure by the County to disclose Zeus’ prior bite history, which are further described above. In its demurrer, the County contends that plaintiffs have failed to allege facts showing actual fraud, corruption, or actual malice as required under Government Code section 822.2. The County further contends that, even if the court determines that plaintiffs have alleged facts sufficient to show actual fraud, corruption, or actual malice, the County is immune from liability under the provisions of Government Code section 818.8.

Plaintiffs contend that the misrepresentations and damages or losses at issue did not result from a commercial transaction, and involved a risk of physical harm. For these reasons, plaintiffs argue, the County is not, under the circumstances alleged in the complaint, statutorily immune from liability under sections 818.8 and 822.2.

Under section 818.8, “[a] public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional.” (Gov. Code, § 818.8.) Section 822.2 further provides that a “public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice.” (Gov. Code, § 822.2.)

Under sections 818.8 and 822.2, the immunity provided to “both public entities (§ 818.8) and their employees (§ 822.2) for damages resulting from either negligent or intentional misrepresentations made by the employees” is “absolute for the public entity [citation], but may be forfeited by the public employee if he ‘is guilty of actual fraud, corruption or actual malice.’ [Citation.]” (Tokeshi v. State of California (1990) 217 Cal.App.3d 999, 1004 (Tokeshi). )

“[B]efore the immunities under sections 818.8 and 822.2 can be raised it must be determined that the statement in question was a misrepresentation within the meaning of the statutes.” (Tokeshi, supra, 217 Cal.App.3d at p. 1005.) The scope of the immunity provided by these sections is “limited.” (Michael J. v. Los Angeles County Dept. of Adoptions (1988) 201 Cal.App.3d 859, 868 (Michael J.).) “In short, ‘misrepresentation,’ as a tort distinct from the general milieu of negligent and intentional wrongs, applies to interferences with financial or commercial interest.” (Johnson v. State (1968) 69 Cal.2d 782, 800.) Therefore, “immunity will prevail where the governmental misrepresentation interfered with either a commercial or financial interest.” (Tokeshi, supra, 217 Cal.App.3d at p. 1006.)

Though the County asserts in a conclusory manner that the fostering of Zeus constitutes a business transaction between Yi and the County, wholly absent from the demurrer is any reasoned argument showing why the allegations of the complaint are sufficient to show that the representations described above, which plaintiffs allege were false or deceptive, interfered with a commercial or financial interest of plaintiffs, notwithstanding that plaintiffs allege that Pedersen incurred medical and other expenses as a result of being bitten by Zeus. (See, e.g., Michael J., supra, 201 Cal.App.3d at p. 872 [medical expenses did not result from a commercial transaction].)

By way of example, there are no allegations showing that the County charged plaintiffs a fee to foster Zeus, or that plaintiffs leased, purchased, or contracted for the purchase or lease of Zeus. (Michael J., supra, 201 Cal.App.3d at p. 872; Hirsch v. Department of Motor Vehicles (1974) 42 Cal.App.3d 252, 258 [involving purchase of automobile from person to whom public entity had issued an ownership certificate].) There are also no allegations to suggest that the alleged misrepresentations at issue concerned the terms of any contract or other arrangement for the purchase or lease of Zeus by plaintiffs, or other business transaction between Yi and the County with respect to Zeus. (Cf. Burden v. County of Santa Clara (2000) 81 Cal.App.4th 244, 251 [noting that the hiring at issue was an “integral and necessary” task without which the public entity could not function].)

Moreover, though the complaint does not allege facts showing that plaintiffs adopted or agreed to adopt Zeus, to the extent the allegations are sufficient to show that Yi agreed to foster Zeus for the purpose of an eventual adoption of Zeus, relevant case law suggest that the adoption of an animal does not constitute a commercial transaction.

“[T]he law … treats animals differently from other forms of personal property.” (Martinez v. Robledo (2012) 210 Cal.App.4th 384, 391.) For example, “most pets have minimal to no market value….” (Id. at p. 390.) Though damages for wrongful injury to an animal may be recoverable under some circumstances, an injured pet owner typically may recover “the reasonable and necessary costs incurred in the treatment and care of the animal attributable to the injury….” (Id. at p. 392.)

The principles addressed above suggest that the fostering or adoption of an animal such as Zeus does not implicate commercial or financial interests, and does not constitute a commercial transaction for purposes of the Act’s immunity provisions described above. Instead, the fostering of Zeus by plaintiffs, and the purported representations made in connection with Yi’s agreement to foster Zeus, appear to suggest that the County was performing a gratuitous service and not engaging in a transaction for the sale, purchase, or lease of Zeus, or a transaction that interefered with any financial interests of plaintiffs. (Connelly v. State of California (1970) 3 Cal.App.3d 744, 752 [general discussion].)

For all reasons discussed above, the County has failed to show, with reasoned argument, that the injuries or losses alleged in the complaint resulted from a commercial transaction with the County, or the County’s interference with a commercial transaction or any financial interest of plaintiffs. Therefore, and for all reasons discussed above, the court will overrule the demurrer to the fifth cause of action alleged in the complaint.

The sixth cause of action for willful misconduct arises from what plaintiffs contend is the County’s failure to warn Yi of Zeus’ prior bite history prior to allowing Yi to foster Zeus. The tort of willful misconduct “is not a separate tort, but simply ‘ “ ‘an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care’ [citation].” ’ [Citation.]” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526 (Berkley).)

As grounds for its demurrer to the sixth cause of action, the County asserts the same or similar arguments as those further discussed above. The same reasoning and analysis apply. For all reasons discussed above, the court will overrule the demurrer to the sixth cause of action for willful misconduct alleged in the complaint.

Demurrer to the second through sixth causes of action on the ground of uncertainty:

The County specially demurs to the second through sixth cause of action on the ground of uncertainty. For all reasons discussed below, the court will overrule the special demurrer of the County.

A party may object by special demurrer on the grounds that the subject pleading is uncertain. (Code Civ. Proc., § 430.10, subd. (f).) “ ‘[U]ncertain’ includes ambiguous and unintelligible.” (Smith v. Kern County Land Co. (1958) 51 Cal.2d 205, 209.) “A special demurrer on the ground that [a pleading] is (a) ambiguous, (b) unintelligible, or (c) uncertain is insufficient unless the demurrer points out specifically wherein the pleading is ambiguous, uncertain or unintelligible.” (Coons v. Thompson (1946) 75 Cal.App.2d 687, 690.)

As to the second cause of action for violation of Civil Code section 3342.5, the same reasoning and analysis apply. For all reasons discussed above, the court will overrule the special demurrer of the County to the second cause of action alleged in the complaint.

As to the third through fifth causes of action alleged in the complaint, the County includes in its demurrer a general description of the allegations of the complaint including with respect to the specific representations which plaintiffs contend were false or deceptive. The recitation of these allegations by the County, including with respect to whether they demonstrate that the County is immune under the Act, shows that the complaint is not so unintelligible or ambiguous that the County cannot understand the issues or the nature of the claims alleged by plaintiffs. (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245 [“a plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action”].) For this reason, the third through fifth causes of action are not so incomprehensible that the County cannot reasonably respond. (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292.)

As to the sixth cause of action, pleading requirements for the tort of willful misconduct “are similar to negligence but stricter.” (Berkley, supra, 152 Cal.App.4th at p. 526.) The tort “necessarily involves deliberate, intentional, or wanton conduct in doing or omitting to perform acts, with knowledge or appreciation of the fact, on the part of the culpable person, that danger is likely to result therefrom[,]” and requires the plaintiff to recite “specific facts upon [sic] which that charge is based ….” (Snider v. Whitson (1960) 184 Cal.App.2d 211, 214-215.)

Noted above, plaintiffs allege in the complaint the specific acts or representations which give rise to the claim alleged in the sixth cause of action, which plaintiffs assert is the failure of the County to warn Yi of Zeus’ prior bite history which was allegedly known to the County. Plaintiffs also allege facts showing that, on the date Yi agreed to foster Zeus, the County’s employee and that employee’s manager represented that there was not much history, and that Zeus was a nice dog. The County fails to explain why these facts are not sufficiently specific to allege a claim for willful misconduct based on the County’s failure to warn Yi of Zeus’ prior bite history, which was purportedly known to the County.

Leave to amend:

In their opposition to the demurrer, plaintiffs request leave to amend. As to the third cause of action further discussed above, apart from this general request, plaintiffs offer no reasoned argument showing the manner in which the defects in that cause of action may be cured by an amendment to the complaint. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Further, Food and Agricultural Code section 30503.5 does not, for all reasons discussed above, give rise to a private cause of action. For this reason, it does not appear that the complaint is capable of amendment as to the third cause of action.

Though plaintiffs have failed to meet their burden in requesting leave to amend, in the interests of justice, the court will grant plaintiffs an opportunity to amend the complaint to cure the deficiencies discussed above as to the third cause of action for violation of Food and Agricultural Code section 30503.5. (Eghtesad v. State Farm General Insurance Company (2020) 51 Cal.App.5th 406, 411.)

Though the court will grant plaintiffs leave to amend as to the third cause of action, the court notes that while the question of whether there exists a private right of action in Food and Agricultural Code section 30503.5 was effectively raised in the papers supporting and opposing the demurrer, briefing on this issue was not robust. To the extent plaintiff amends the complaint to allege a cause of action for violation of Food and Agricultural Code section 30503.5, and the County challenges that cause of action, the court expects that the question of whether a violation of Food and Agricultural Code section 30503.5 gives rise to a private cause of action will be fully briefed by the parties.

(2) Motion to Strike

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof[.]” (Code Civ. Proc., § 435, subd. (b)(1).) Upon a motion to strike made under Code of Civil Procedure section 435, the court may “strike out any irrelevant, false, or improper matter inserted in any pleading” or “strike all or part of any pleading not filed in conformity with applicable law, court rules, or an order of the court.” (Code Civ. Proc., §436(a) & (b).) The grounds for a motion to strike must appear on the face of the pleading or from matters of which the court may take judicial notice. (Code Civ. Proc., § 437, subd. (a).)

The County requests an order striking paragraphs 29 through 33 of the complaint, in which Pedersen alleges that as a result of the County’s breach of a mandatory duty under Civil Code section 3342.5, Pederson was injured and suffered damages.

For all reasons noted above, the court will overrule the demurrer to the second cause of action. The County fails to otherwise explain why paragraphs 29 through 33 are not “drawn or filed in conformity with the laws of this state, a court rule, or an order of the court”, or why there exist “improprieties in its form or in the procedures pursuant to which [the complaint] was filed.” (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528 (Ferraro), original italics; see also Code Civ. Proc., § 431.10, subd. (b)(1)-(3) & (c) [describing “irrelevant” matter for purposes of a motion to strike].)

Furthermore, the allegations of paragraphs 29 through 33 appear essential to the second cause of action alleged in the complaint. Therefore, the court may not strike these portions of the complaint. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1281.) For these and all further reasons discussed above, the court will deny the motion to strike paragraphs 29 through 33 of the complaint.

The County also requests an order striking paragraphs 37 through 42 of the complaint, in which plaintiffs allege that Pederson was injured and suffered damages as a result of the County’s violation of Food and Agricultural Code section 30503.5. Though the court will sustain the demurrer to the third cause of action for violation of this statute for reasons further discussed above, the same analysis and reasoning apply. For all reasons discussed above, the motion to strike as to paragraphs 37 through 42 does not properly fall within the provisions of Code of Civil Procedure section 436. Therefore, the Court will deny the motion to strike as to these paragraphs.

The County also requests an order striking paragraphs 62, 70, and prayer paragraph 6 of the complaint, on the grounds that the allegations are conclusory and that plaintiffs have failed to allege facts sufficient to support an award of punitive damages.

Though the existence of allegations which are too conclusory to state facts sufficient to constitute a cause of action is not ground for a motion to strike (Ferraro, supra, 161 Cal.App.4th at p. 529), “a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.” (Gov. Code, § 818.)

Giving the complaint a reasonable interpretation, the punitive damages sought by plaintiffs appear intended for “retribution and deterrence” and to punish the County. (X.M. v. Superior Court (2021) 68 Cal.App.5th 1014, 1022.) Considering that plaintiffs do not allege in the complaint any claims against an individual employee of the County, the court will grant the motion to strike as to those portions of paragraphs 62 and 70 that include a claim for punitive damages, and prayer paragraph 6, with leave to amend. (Id. at pp. 1022-1023.)

The court notes that, as to paragraphs 62 and 70, plaintiffs’ punitive damages claims include allegations that “[p]laintiffs are therefore entitled to and claim an award of punitive damages”, which appear at page 12, lines 22 through 23, and page 14, lines 1-2. As to the remaining portions of paragraphs 62 and 70 included in the motion, these allegations appear essential to the fifth and sixth causes of action alleged in the complaint. Therefore, the motion will be denied as to these portions for all reasons discussed above.