Ruiz v. Musclewood Inv. Props., LLC

238 Cal. Rptr. 3d 835, 28 Cal. App. 5th 15
CourtCalifornia Court of Appeal, 5th District
DecidedOctober 5, 2018
DocketB280928
StatusPublished
Cited by12 cases

This text of 238 Cal. Rptr. 3d 835 (Ruiz v. Musclewood Inv. Props., LLC) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ruiz v. Musclewood Inv. Props., LLC, 238 Cal. Rptr. 3d 835, 28 Cal. App. 5th 15 (Cal. Ct. App. 2018).

Opinion

KIM, J.

I. INTRODUCTION

Plaintiff Oscar Ruiz is a disabled person who uses a guide dog. He alleged that defendants Edward Lopez and Musclewood Investment Properties, LLC (Musclewood)1 violated his rights under the Disabled Persons Act ( Civ. Code, § 54 et seq. ) (DPA),2 by allowing their guard dog to interfere with and attack his guide dog. Plaintiff contends the trial court erred by sustaining a demurrer to his cause of action under the DPA without leave to amend. We agree and reverse. We also reverse the order granting the motion to strike.

II. BACKGROUND

A. Procedural History Prior to First Amended Complaint

On October 14, 2015, plaintiff filed a complaint against defendants for violation of the DPA, the Bane Act, and common law and per se negligence.3 Defendants demurred, and the trial court sustained the demurrer as to the first and second causes of action with leave to amend.

*838B. First Amended Complaint

On June 3, 2016, plaintiff filed his first amended complaint, asserting causes of action for violation of the DPA and common law and per se negligence only. According to the factual allegations in the first amended complaint, which we accept as true ( Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6, 40 Cal.Rptr.3d 205, 129 P.3d 394 ), plaintiff has been legally blind since the age of eight. Plaintiff used a guide dog named Carbon. Lopez was the owner of Musclewood, a business located in Bell Gardens, California. Defendants operated a truck hauling business that required trucks to enter and exit the property through a large metal gate. Defendants had a guard dog that they permitted to be loose on the property.

To maintain his independence, plaintiff had been trained to use a route that passed in front of defendants' business, when he travelled to the market or bus stop. It is not easy for a blind person to learn alternate routes. The metal gate of defendants' business was adjacent to a public sidewalk used by plaintiff for his route. Defendants' guard dog was not trained, leashed, or otherwise controlled or restrained and was thus free to exit the business property, through the metal gate, onto the sidewalk. The guard dog attacked or growled at plaintiff's guide dog on six occasions, including in July, September, and October 2013, September 2014, and February and June 2015. Plaintiff complained after these incidents to defendant Lopez, Musclewood employees, and animal control. Defendants did not act to restrain, control, or prevent their guard dog from attacking or threatening plaintiff's guide dog, nor did defendants attempt to keep the gate closed when plaintiff walked by. Because plaintiff could not see, he could not protect himself or his guide dog from the guard dog. As a result of these incidents, plaintiff stopped walking in front of defendants' business. Following the attacks by defendants' guard dog, plaintiff's guide dog became fearful of other dogs, aggressive, and unable to consistently perform its guide dog duties.

Plaintiff alleged a violation of the DPA, citing sections 54, 54.1, and 54.3. Plaintiff sought actual damages, attorney fees, injunctive relief, and treble damages.

C. Partial Demurrer, Motion to Strike, and Dismissal

On June 21, 2016, defendants demurred to the DPA cause of action. Defendants asserted that plaintiff had failed to allege unequal access. Defendants cited to plaintiff's original complaint, in which plaintiff alleged that defendants' guard dog attacked disabled as well as other pedestrians. Based on these prior pleadings,4 defendants argued plaintiff failed to allege he was denied equal access because of his disability. Defendants also contended that in order to state a claim under the DPA, plaintiff was required to-but had not-alleged that defendants maintained a policy or structure that denied a disabled person equal access.

Plaintiff responded that he was not pursuing a claim based on section 54.1, but instead alleged violations of sections 54 and 54.3. Alternatively, and even assuming it was necessary to allege a denial of equal access, plaintiff argued his allegations were sufficient because blind people are less able than others to defend themselves from dog attacks. Plaintiff also argued that he had sufficiently alleged that defendants' policies, of allowing their guard dog to roam unleashed and opening the property gate without controlling their guard dog, interfered with plaintiff's rights. Finally, plaintiff asserted that a violation under the *839DPA does not require any discriminatory intent by defendants.

On June 21, 2016, defendants moved to strike portions of plaintiff's first amended complaint, including: the first cause of action for violation of the DPA; prayer for injunctive relief; prayer for treble damages; and prayer for attorney fees. Defendants argued that since plaintiff failed to state a DPA cause of action, the injunctive relief, treble damages, and attorney fees requested should be stricken as these remedies are not available for a negligence cause of action.

On September 13, 2016, the trial court conducted a hearing on the demurrer and motion to strike. The court, citing plaintiff's original complaint, found plaintiff had failed to allege that he was denied equal access because of his disability. The trial court thus sustained the partial demurrer to the DPA cause of action without leave to amend. The trial court also granted the motion to strike in its entirety.

On December 22, 2016, plaintiff moved to dismiss the action with prejudice. The dismissal was entered the same day. Plaintiff appeals from the order sustaining the partial demurrer.

III. DISCUSSION

A. Standard of Review

"On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. ( Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126 [119 Cal.Rptr.2d 709, 45 P.3d 1171] [ ( Zelig ) ].) Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. (

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Cite This Page — Counsel Stack

Bluebook (online)
238 Cal. Rptr. 3d 835, 28 Cal. App. 5th 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ruiz-v-musclewood-inv-props-llc-calctapp5d-2018.