Filed 1/15/15 Pielstick v. Sagetree Village etc. Community CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


STEPHEN H. PIELSTICK,                                                B253733

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC478418)
         v.

SAGETREE VILLAGE
MANUFACTURED HOME
COMMUNITY,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Melvin D. Sandvig, Judge. Affirmed in part and reversed in part.
         Stephen H. Pielstick, in pro. per., and for Plaintiff and Appellant.
         Wood, Smith, Henning & Berman, Shannon M. Benbow and Danielle L.
Pittsenbarger for Defendant and Respondent.
                                             ——————————
       Plaintiff Stephen H. Pielstick1 appeals the trial court’s dismissal of his complaint
for damages arising out of dog bite Stephen Pielstick suffered at defendant Sagetree
Village Manufactured Home Community’s (Sagetree) mobile home park. The trial court
sustained Sagetree and Serissa Le Fever’s demurrer on the grounds that Pielstick’s
complaint was uncertain and defendants owed no duty to plaintiff. We reverse in part
and affirm in part.
            FACTUAL BACKGROUND AND PROCEDURAL HISTORY
       1.     Pielstick’s FAC
       Pielstick’s claims were based upon three incidents, although only Stephen
Pielstick’s dog bite injury is at issue on appeal.2 Pielstick’s FAC stated claims for
negligence, loss of consortium, elder abuse, intentional infliction of emotional distress,
tortious interference with contract, and slander against Sagetree, its manager Serissa Le
Fever, and the tenants Jose and Maria F. Uribe.3
       Pielstick’s FAC alleged that plaintiffs own a mobile home located at Sagetree’s
mobile home park in Lancaster, California. Pielstick’s home occupied space No. 240.
Defendants Jose and Maria F. Uribe lived next door in space No. 239. Pielstick rented
his unit to the Uribe’s daughter, who is also named “Maria Uribe.”
       On December 21, 2010, Pielstick was retrieving his personal property from the
Uribes at their invitation when the Uribes’ dog bit him on the hand, causing bodily injury
to Pielstick. Pielstick, who is 73 years old, suffers from memory loss and poor eyesight.

       1 The original complaint listed Stephen H. Pielstick as plaintiff. The first amended
complaint (FAC) added his spouse Patricia Pielstick as a plaintiff. However, the appeal
was brought only by Stephen H. Pielstick. Therefore, when we refer to “Pielstick,” we
are only referring to Stephen H. Pielstick.
       2 The other two incidents related to a claimed loss of the sale of his trailer due to
defendants’ conduct and statements, and statements and conduct by defendant Lawrence
Hales at a hearing in connection with the sale of the Pielsticks’ trailer.
       3Defendant Le Fever’s motion to change venue from the Central District (111
North Hill Street, Los Angeles) to the North District (42011 Fourth Street West,
Lancaster) was granted on May 17, 2012.

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Pielstick alleges that Sagetree was aware of the violent propensities of a dog owned by
the Uribes, and failed to take action.
       2.     Defendant’s Demurrer
       Sagetree and Le Fever demurred. With respect to the negligence claim (and the
attendant loss of consortium claim), defendants contended that these claims failed
because the demurring defendants owed no duty to plaintiff to warn of a dangerous
animal that Sagetree and Le Fever did not own, but which was being kept by plaintiff’s
tenant. Defendants also moved to strike plaintiff’s punitive damages prayer and portions
of the second amended complaint.
       In opposition, Pielstick, who appeared in propria persona, argued that (1) the court
should inform him of the standard of care the court used in finding that defendants were
not negligent in managing the vicious dogs roaming the mobile home park, and
defendants had a duty to warn a tenant’s invitees of dangerous animals on the premises;
(2) no fixed standard existed for determining the amount of damages on a loss of
consortium claim. Pielstick further asserted that defendants had been “forum shopping”
in changing venue.
       Pielstick attached to the complaint a declaration from a security guard at the
mobile home park who stated that he approached the owners of the dog who lived in
space No. 239 (Jose and Marie Uribe). The Uribe’s dog had chased him and attempted to
bite him in December 2010. In addition, Donald Jackson, the owner of a cleaning
company, stated that on May 22, 2011, he had gone to clean Pielstick’s mobile home and
as they approached, a small dog in space No. 239 began barking, and Pielstick told him
that a similar dog had bitten him. Jackson reported the dog to Le Fever, who told him the
park had just gotten rid of a dog that had bitten someone at that unit, but that as of July 1,
2011, Jackson observed the dog was still at space No. 239. Pielstick also submitted a
declaration in which he asserted that his tenant was “Maria Uribe,” the daughter of
Pielstick’s next-door neighbors, and not the owner of the vicious dog. The “Maria




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Uribe” named in the complaint was not his tenant in space 240, but the next-door
neighbor in space 239.
       In reply, defendants argued that as landlords, they had no duty to prevent injury to
the Uribes’ invitees and that they did not have actual notice of the Uribe’s dog’s violent
propensities.
       The trial court held that Pielstick’s negligence claim failed because Pielstick, not
defendant Sagetree, was the landlord of the owner of the vicious dog. The court noted
that “[a]t one point, [Pielstick] allege[s] that the Uribe defendants resided[d] in the
mobile home in the space next to their mobilehome, but also allege that prior to the
incident, the Uribe defendants rented [Pielstick’s] mobilehome. These allegations add to
the uncertainty of the pleading.” In conclusion, the court found that Pielstick had failed
to allege facts to show that defendants owed a duty to warn of the dangerous propensities
of the Uribe defendants’ dog.
                                       DISCUSSION
I.     Standard of Review
       “The function of a demurrer is to test the sufficiency of the complaint as a matter
of law,” and we apply the de novo standard of review in an appeal following the
sustaining of a demurrer without leave to amend. (Holiday Matinee, Inc. v. Rambus, Inc.
(2004) 118 Cal.App.4th 1413, 1420.) A complaint “is sufficient if it alleges ultimate
rather than evidentiary facts,” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550)
but the plaintiff must set forth the essential facts of his or her case “‘“with reasonable
precision and with particularity sufficient to acquaint [the] defendant with the nature,
source and extent”’” of the plaintiff’s claim. (Doheny Park Terrace Homeowners Assn.,
Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099.) Legal conclusions are
insufficient. (Id. at pp. 1098–1099; Doe, at p. 551, fn. 5.) “We assume the truth of the
allegations in the complaint, but do not assume the truth of contentions, deductions, or
conclusions of law.” (California Logistics, Inc. v. State of California (2008) 161




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Cal.App.4th 242, 247.) “The existence and scope of duty are legal questions for the
court. [Citation.]” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477.)
       The trial court errs in sustaining a demurrer “if the plaintiff has stated a cause of
action under any possible legal theory, and it is an abuse of discretion for the court to
sustain a demurrer without leave to amend if the plaintiff has shown there is a reasonable
possibility a defect can be cured by amendment.” (California Logistics, Inc. v. State of
California, supra, 161 Cal.App.4th at p. 247.) “To meet the . . . burden of showing abuse
of discretion, the plaintiff must show how the complaint can be amended to state a cause
of action. [Citation.] However, such a showing need not be made in the trial court so
long as it is made to the reviewing court.” (Careau & Co. v. Security Pacific Business
Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386.) Logically, this showing can be made by
materials in the record.
II.    Discussion
       Pielstick argues that4 Sagetree and its agent La Fever had a duty to warn him of a
dangerous condition on the property, namely, the Uribe’s vicious dog. We agree.
       A claim for negligence consists of “‘(1) a legal duty to use reasonable care,
(2) breach of that duty, and (3) proximate [or legal] cause between the breach and (4) the
plaintiff’s injury. [Citation.]’ [Citation.]” (Phillips v. TLC Plumbing, Inc. (2009) 172
Cal.App.4th 1133, 1139.) The relationship of a mobilehome park owner and the
mobilehome owner who leases a space in the mobilehome park is governed by special
rules (Civ. Code, § 798 et seq.) although except where so modified, the general rules of
landlord-tenant law apply. (11 Miller & Starr, Cal. Real Estate (3d ed. 2004) § 31:16.)
       In Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, the court recognized
exceptions to the general rule that a landlord has no liability for a dangerous condition
that arises after the tenant takes possession. Uccello observed that “[a] common element
in these exceptions is that either at or after the time possession is given to the tenant the

       4Plaintiffs do not make any arguments with respect to their remaining causes of
action on appeal.

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landlord retains or acquires a recognizable degree of control over the dangerous condition
with a concomitant right and power to obviate the condition and prevent the injury. In
these situations, the law imposes on the landlord a duty to use ordinary care to eliminate
the condition with resulting liability for injuries caused by his failure so to act.” (Id. at
p. 511.) As explained in Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, “[w]here there is
a duty to exercise reasonable care in the inspection of premises for dangerous conditions,
the lack of awareness of the dangerous condition does not generally preclude liability.”
(Id. at p. 1134.) “‘Although liability might easily be found where the landowner has
actual knowledge of the dangerous condition “[t]he landowner’s lack of knowledge of the
dangerous condition is not a defense. He has an affirmative duty to exercise ordinary
care to keep the premises in a reasonably safe condition, and therefore must inspect them
or take other proper means to ascertain their condition. And if, by the exercise of
reasonable care, he would have discovered the dangerous condition, he is liable.”’”
(Ibid.)
          Here, Sagetree, as landlord of the mobilehome park, owed a duty of care to
invitees of tenants of its mobilehome park. Sagetree had a manager on the premises who
had the authority to remove vicious dogs. Thus, Sagetree had a duty that extended to
Pielstick as an invitee of persons who owned or leased mobilehomes in the park. The
intricate facts here (Pielstick at one time leased a mobile home to the daughter of the
owner of the vicious dog) does not absolve Sagetree of a duty to ensure that no vicious
dogs are kept by tenants in the mobilehome park.
          Further, with respect to the identity of the dog owner, defendants stress two points:
plaintiffs’ complaints were hopelessly uncertain as to whether the owner of the offending
dog was his former tenant or his neighbor and mother of the former tenant—each bearing
the name “Maria Uribe,” and that the trial judge gave plaintiffs multiple opportunities to
make their claims clear and did not abuse its discretion in failing to give plaintiffs yet
another opportunity. Defendants indicate that there is nothing in the record
demonstrating that neighbor Maria Uribe was the dog owner other than improper and


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irrelevant declarations attached to plaintiffs’ opposition to the demurrer. However, in
describing defendants in the introductory paragraphs of the FAC, plaintiffs identify the
“Maria F. Uribe” residing in the neighboring space number 239, and not their unit at
number 240. The trial judge court’s conclusion in its minute order that the pleading
alleges that the dog owner was the former tenant and not the neighbor does not appear to
be an accurate reading of the pleading, especially assuming the truth of the allegations as
it had to in ruling on a demurrer.
       Furthermore, although the trial court does not find facts or consider evidence in
ruling on a demurrer, it may consider evidence to determine whether the plaintiff can
amend. (See Careau & Co. v. Security Pacific Business Credit, Inc., supra, 222
Cal.App.3d at p. 1386.) Pielstick asserts in the FAC that the “Maria Uribe” who owned
the dog was their next-door neighbor, not their tenant Maria Uribe. Further, there were
declarations attached to plaintiffs’ opposition, from which one could have inferred that
the owner of the dog at issue here was the neighbor and not plaintiffs’ former tenant.
These documents demonstrated an ability to amend to make the pleading clear, if it was
not already. These factual assertions eliminate defendants’ argument that Pielstick had
his own duty to ensure that a vicious dog was not kept by Pielstick’s tenants.
       We conclude that Pielstick has made a sufficient allegation of facts as to
negligence, to wit, that defendants had a duty to warn invitees of the mobilehome park
that a tenant kept a vicious dog. Our ruling extends to Pielstick’s loss of consortium
claim as it is based on the negligence claim for Pielstick’s injury.5
                                      DISPOSITION
       The judgment is reversed with respect to Stephen H. Pielstick’s negligence and
loss of consortium claims, affirmed as to the other causes of action of the first amended




       5 As Patricia Pielstick did not appeal the court’s judgment, and the time for her to
appeal has expired, the trial court’s judgment of dismissal of her claims is final and any
of such claims are not resurrected by this appeal.

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complaint asserted by Stephen H. Pielstick. Stephen H. Pielstick is to recover his costs
on appeal.
      NOT TO BE PUBLISHED.


                                         JOHNSON, J.


We concur:


      ROTHSCHILD, 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.

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