Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. PC039880, Melvin D. Sandvig, Judge.
Kamal Antoine Bilal for Plaintiffs and Appellants.
Raymond G. Fortner, Jr., County Counsel, Ralph L. Rosato, Assistant County Counsel, and Richard K. Kudo, Deputy County Counsel, for Defendant and Respondent.
BIGELOW, J.
Heiddy Gomez filed a complaint alleging a cause of action for negligence against the Los Angeles County Department of Animal Control (County) for injuries she sustained as the result of being attacked by two pit bull dogs in a bathroom at her school. The County filed a demurrer, arguing that it could not be held liable on general negligence allegations. The trial court sustained the County’s demurrer without leave to amend, and thereafter entered an order dismissing the action. Gomez’s sole argument on appeal is that the trial court abused its discretion when it denied her request for leave to file an amended complaint. We affirm.
FACTS
A. The Dog Attack Giving Rise to County’s Alleged Liability
On June 9, 2006, Gomez was lawfully at San Fernando Middle School, a public school under the control of defendant Los Angeles Unified School District. While in the bathroom, she was attacked by two pit bull dogs owned by defendant Orlando Vasquez and held by defendants Maria Ruiz and Antonio Mora at a residence on North Hagar Street in the City of San Fernando. The dogs had escaped from the Vasquez/Ruiz/Mora property.
B. The Complaint and Demurrer
In December 2006, Gomez filed a complaint alleging causes of action for strict liability and negligence against the dog owners, negligence against the school district, and negligence against the City and the County. Gomez’s causes of action against the dog owners, the school district, and the City were resolved, and are not involved in this appeal.
Gomez’s cause of action for negligence against the County alleged that it had breached a “duty to [Gomez] to exercise reasonable care in keeping the streets, property, and neighborhood safe and secure from animals such as the afore-described pit bull dogs from running loose and roaming the streets, property, and neighborhood unrestrained.” Gomez alleged she suffered injuries as a proximate result of the County’s breach of its duty of reasonable care.
In May 2007, the County filed a demurrer to Gomez’s original complaint, arguing that the pleading failed to allege a statutory basis for the County’s liability, and/or failed to allege any facts showing a “special relationship” imposing the duty of reasonable care allegedly breached by the County. In July 2007, Gomez filed an opposition to the demurrer, defending her pleading, and, in the alternative, requesting leave to file an amended complaint. Gomez lodged a proposed amended complaint.
At a hearing on July 23, 2007, the trial court heard argument on the County’s demurrer, and took the matter under submission. On July 25, 2007, the trial court entered a minute order sustaining the County’s demurrer without leave to amend. On August 21, 2007, the trial court signed and entered a formal order sustaining the County’s demurrer without leave to amend. On May 22, 2008, the trial court ordered the action dismissed.
Although labeled a “judgment,” the document signed in August 2007 did not constitute a final appealable order. (See O’Neill v. Hicks (1929) 101 Cal.App. 374.)
Gomez filed a timely notice of appeal.
DISCUSSION
I. The Trial Court Did Not Abuse Its Discretion in Sustaining the County’s Demurrer Without Leave to Amend
Gomez contends that she should have been granted leave to amend her complaint. More specifically, she contends there exists a statute which, if allowed to be included in an amended complaint, would support a cause of action for liability against the County. We disagree that Gomez should have been granted leave to amend her complaint.
A. Applicable Law
When reviewing a trial court’s ruling on a demurrer, an appellate court must treat the demurrer as admitting all material facts properly pleaded, as well as those facts which reasonably arise by implication, but not contentions, deductions or conclusions of fact or law. (See, e.g., Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126 (Zelig); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) When the trial court has sustained a demurrer without leave to amend, a reviewing court must determine whether there is a reasonable possibility that the pleadings defects can be cured by amendment; if it can be cured, the trial court has abused its discretion and will be reversed; if not, the trial court has not abused its discretion and will be affirmed. (Zelig, supra, 27 Cal.4th at p. 1126.) The burden of proving a reasonable possibility that an amended complaint will cure any pleading defects rests on the plaintiff/appellant. (Ibid.)
Gomez contends there exists a reasonable possibility that her complaint may be amended to state a viable cause of action under Government Code Section 815, which provides that a public entity may be held liable for an injury when a statute declares it to be liable, and Government Code section 815.6, which provides that a public entity is liable for failure to perform a statutorily mandated duty. (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 498.) Both parties agree that, in order to plead such a claim, it is not enough “that the public entity or officer have been under an obligation to perform a function if the function itself involves the exercise of discretion.” (Ibid.) In other words, the parties agree that a plaintiff must allege a violation of a mandatory duty imposed by statute. Whether a statute creates a mandatory duty upon a governmental entity or officer is a question of law to be determined by the court. (Id. at p. 499.) The statute alleged to impose a mandatory duty must be identified in the complaint. (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802 (Searcy).)
B. Analysis
Gomez concedes that her original complaint is insufficient to comply with the requirements under Government Code sections 815 and 815.6 and Searcy, but she has proposed amended language to be included in her complaint alleging that the County is liable for breaching a mandatory duty imposed by section 10.37.110 of the Los Angeles County Code. We reject Gomez’s arguments that she should be granted one opportunity to attempt to plead her statutory claim.
All further section references to section 10.37.110 are to that section of the Los Angeles County Code.
Section 10.37.110 provides in relevant part:
“If an animal control officer or a law enforcement officer has investigated and determined that there exists probable cause to believe that a dog is potentially dangerous or vicious, the [Department of Animal Control] shall petition the Superior Court, within the judicial district wherein the dog is owned or kept, for a hearing for the purpose of determining whether or not the dog in question should be declared potentially dangerous or vicious.” (Italics added.)
Implicit in Gomez’s argument is her suggestion that she will be able to allege that an animal control officer or a law enforcement officer had investigated the pit bulls, and had determined that probable cause existed to believe the dogs were dangerous, and that the County then failed to fulfill its mandatory duty to petition the local superior court for a declaration that the dogs were, in fact, dangerous. Further implicit in Gomez’s argument is the suggestion that, if the County had fulfilled it mandatory duty to file a superior court action, then the court would have declared in that action that the dogs were “dangerous.” The final implication in Gomez’s argument is that, if the superior court had declared that the dogs were dangerous, then the court would have ordered the dogs to be destroyed, or, would have otherwise ordered the dogs to be placed under some form of control (and the dog owners would have obeyed those court orders), all before June 2006, thus preventing her from being attacked. The element of causation requires nothing less.
We agree with the County that, even if section 10.37.110 imposed a mandatory duty on the County to file an action for a “dangerous dog” declaration, Gomez cannot, as a matter of law, allege sufficient facts to satisfy the element of causation. Although causation is generally viewed as a question of fact not subject to a determination in the context of a demurrer (see, e.g., Kiseskey v. Carpenters’ Trust for So. California (1983) 144 Cal.App.3d 222, 233), the steps which must be made to connect a violation of the duty under section 10.37.110 to a subsequent dog bite are too distant and attenuated, as a matter of law, to find that an alleged violation of the section will support a claim for money damages.
We summarily reject the County’s suggestion that Gomez may not raise the issue of section 10.37.110 for the first time on appeal. A request for leave to amend may be made for the first time on appeal. (Zelig, supra, 27 Cal.4th at p. 1126.)
DISPOSITION
The order of dismissal is affirmed. The parties are to bear their own costs on appeal.
We concur: FLIER, Acting P. J., BENDIX, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.