LOS ANGELES (Legal Newsline) – The case of a blind man and his guide dog repeatedly attacked by a Bell Gardens, California truck hauling company's guard dog is headed back to a Los Angeles court after a three-justice appeals panel found earlier this month that a demurrer should not have been sustained.
California's 2nd District Court of Appeal reversed the Los Angeles County Superior Court's late-2016 decision and remanded the case Oct. 5. The Appeals Court also ruled that the plaintiff in the case, Oscar Ruiz, was entitled to recover the costs of his appeal from defendants.
Ruiz, legally blind since childhood, alleges that Musclewood Property Investments and the company's owner, Edward Lopez, violated his rights under the Disabled Persons Act (DPA) and the Bane Act when their guard dog repeatedly attacked him and his guide dog, Carbon, over a three-year period. In his appeal, Ruiz claimed the Superior Court was wrong when it sustained a demurrer in his case without leave to amend.
In its 14-page decision issued Oct. 5 and agreeing that the trail court erred, the appeals court also reversed the lower court's order that granted the defendants' motion to strike.
Judge Dorothy C. Kim wrote the appeals court's decision in which judges Lamar W. Baker and Carl H. Moor concurred.
Ruiz claimed the Musclewood Property Investments' guard dog attacked or growled at his guide dog, Carbon, on six occasions from July 2013 to June 2015. Ruiz complained to Lopez, Musclewood employees and the city's animal control department.
"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," the decision said. "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."
Carbon also became fearful of other dogs, aggressive and unable to consistently perform the duties of a guide dog, the ruling states.
Ruiz filed his first amended complaint in June 2016. That same month, defendants demurred, claiming Ruiz failed to allege unequal access claims and arguing Ruiz failed to allege denial of equal access because of his disability or that Musclewood maintained a policy or structure that denied equal access to the disabled.
Ruiz countered that he was not making claims under equal access provisions of the DPA and that the claims he was making were sufficient because blind people are less able than sighted people to defend themselves against dog attacks. Ruiz also claimed to have sufficiently alleged that defendants' policies based on their guard dog being allowed to roam unleashed and that the Musclewood property gate had been opened without controlling the guard dog interfered with his rights.
In September 2016, Los Angeles County Superior Court found Ruiz failed to allege that he was denied equal access because of his disability and sustained the defense demurrer. The Superior Court dismissed the case the following December and Ruiz appealed.
Another plaintiff in the original lawsuit, Nicole Bautista, did not participate in the appeal.
In reversing the Superior Court's decision, the appeals court ruled that the section of the DPA under which Ruiz brought his complaint maintains that individuals "have the right to full and free use" of sidewalks.
"Here, plaintiff alleged that he and his dog had been attacked six times by defendants' dog, while walking on the sidewalk," the Appeals Court's decision said. "He further alleged that as a result, he no longer walked on that portion of the sidewalk. Plaintiff sufficiently alleged a deprivation of his enjoyment of the sidewalk," the ruling states.