Judge: Andrew E. Cooper, Case: 23CHCV00014, Date: 2024-08-01 Tentative Ruling

Case Number: 23CHCV00014    Hearing Date: August 1, 2024    Dept: F51

MOTION FOR SUMMARY JUDGMENT

Motion Filed: 3/20/24                                                                      NON-JURY TRIAL: 6/23/25

MOVING PARTY: Defendants Jesus Vargas; and Alma Vargas (collectively, “Moving Defendants”)

RESPONDING PARTY: Plaintiff Zhanna Isayan (“Plaintiff”)

NOTICE: OK 

RELIEF REQUESTED: An order granting summary judgment in favor of Moving Defendants and against Plaintiff on Plaintiff’s complaint.

TENTATIVE RULING: The motion is granted.

EVIDENTIARY OBJECTIONS: Moving Defendants’ evidentiary objections Nos. 2–5 are sustained.

BACKGROUND

This is a personal injury action in which Plaintiff alleges that on 7/18/22, she was walking near the intersection of Terra Bella Street and Fenton Avenue, Los Angeles, CA 91342, when Defendants’ dog, Nala, attacked her and “began biting and ripping the flesh out of her leg” without warning or provocation, causing Plaintiff to sustain severe injuries. (Compl. ¶¶ 7–12.) Nala was owned by defendants Rosa Vargas and Odhed Munoz Rivera, who were residing with Moving Defendants at the time.

On 1/3/23, Plaintiff filed her complaint against Defendants, alleging the following causes of action: (1) Negligence; (2) Statutory Liability – Dog Bite Statute; and (3) Strict Liability. On 8/15/23, Plaintiff amended her complaint to name Moving Defendants as previously unnamed Doe defendants 1 and 2. On 11/22/23, Moving Defendants filed their answer.

On 3/20/24, Moving Defendants filed the instant motion for summary judgment. On 7/9/24, Plaintiff filed her opposition. On 7/12/24, Moving Defendants filed their reply.

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ANALYSIS

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 65, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381–382.) 

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519–1520.)  

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.) 

A.    Negligence

Plaintiff’s first cause of action against Defendants is Negligence. To state a claim for negligence, a plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Here, Plaintiff alleges that all Defendants had a duty to maintain Nala in a safe condition, and breached that duty when Nala attacked Plaintiff. (Compl. ¶¶ 14–17.) Moving Defendants argue that they owed no duty of care to Plaintiff because they did not own or keep Nala, and had no actual knowledge of any of Nala’s dangerous or vicious propensities. (MSJ 3:4–7.) In support of their arguments, Moving Defendants proffer each of their sworn declarations attesting that they “never owned, kept, or controlled Nala,” and never observed or otherwise knew of any instances where Nala was unfriendly or bit/attacked anyone else. (Decl. of Jesus Vargas, ¶¶ 6–9; Decl. of Alma Vargas, ¶¶ 6–9.)

Based on the foregoing, the Court finds that Moving Defendants have met their initial burden to negate an essential element of Plaintiff’s negligence cause of action. The burden thus shifts to Plaintiff to produce substantial evidence showing that a triable issue of fact exists.

In opposition, Plaintiff argues that “a trier of fact could reasonably find that a family pet and/or a dog that lives with both a daughter, and parents, could be extended to have multiple owners. Instead, Moving Defendants paint a picture in which they had no dominion or control over the subject incident dog, conveniently disregarding the fact that they were, in fact, housing the dog.” (Opp. 5:12–16.) In support of her argument, Plaintiff proffers her son’s declaration stating that “Nala was living at the same house as Rosa Vargas and Rosa Vargas’ parents, Alma Vargas, and Jesus Vargas, at the time of the subject incident.” (Decl. of Artour Issaian ¶ 5.)

However, as Moving Defendants note in reply, “Plaintiff presents no evidence that Jesus and Alma did anything to assume ownership like responsibility for the dogs [sic] essential needs.” (Reply 5:2–4.) Moreover, the Court sustains Moving Defendants’ evidentiary objections to the above statement on the bases of lack of foundation and lack of personal knowledge. Based on the foregoing, the Court finds that Plaintiff has failed to meet her responsive burden to show that a triable issue exists as to whether Moving Defendants owned Nala, and therefore whether they owed Plaintiff a duty of care. Accordingly, the motion is granted as to Plaintiff’s first cause of action.

B.     Violation of Civil Code Section 3342; Strict Liability

Plaintiff’s second cause of action alleges against Defendants a violation of Civil Code section 3342, otherwise known as the strict liability “Dog Bite Statute.” The statute provides for liability against “the owner of any dog … for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness.” (Civ. Code § 3342, subd. (a).)

A dog’s keeper, “in contrast to an owner, is not an insurer of the good behavior of a dog, but must have scienter or knowledge of the vicious propensities of the animal before liability for injuries inflicted by such animal shall attach to him.” (Buffington v. Nicholson (1947) 78 Cal.App.2d 37, 42.) “The word ‘keeper’ is equivalent to ‘the person who harbors.’ Harboring means protecting. So one who treats a dog as living at his house, and undertakes to control his actions, is the owner or keeper within the meaning of the law.” (Ibid.)

Here, as discussed above, the Court finds that Plaintiff has failed to show any triable issue as to whether Moving Defendants owned Nala. Moving Defendants further argue that “assuming, for argument’s sake, that Jesus and Alma were keepers of the dog, they still could not be held liable for plaintiff’s injuries because they had no prior notice of the dog’s alleged dangerous propensities.” (MSJ 5:24–26.) This argument is supported by Moving Defendants’ aforementioned declarations. (Decl. of Jesus Vargas, ¶¶ 6–9; Decl. of Alma Vargas, ¶¶ 6–9.)

Based on the foregoing, the Court finds that Moving Defendants have met their initial burden to negate an essential element of Plaintiff’s second and third causes of action. The burden thus shifts to Plaintiff to produce substantial evidence showing that a triable issue of fact exists as to Moving Defendants’ prior knowledge of Nala’s dangerous propensities.

In opposition, Plaintiff argues that “Moving Defendants had prior notice of aggressive propensities which can be reasonably inferred from the facts herein,” including that Nala “is a large dog, namely a labrador retriever mix, that has received no formal training.” (Opp. 6:2–4, 6:7–8.) In support of her argument, Plaintiff proffers defendant Rivera’s responses to Plaintiff’s Special Interrogatories, Set One, stating Nala’s breed and that she has not received formal training.

In reply, Moving Defendants argue that knowledge of a dog’s dangerous propensities cannot be gleaned from its breed. (Reply 3:3–4, citing Lundy v. California Realty (1985) 170 Cal.App.3d 813, 822 [Court of Appeal refused to take judicial notice that all German shepherds are dangerous.]) The Court agrees and finds that interrogatory responses stating a dog’s breed and lack of formal training are insufficient to create a triable issue of fact as to whether Moving Defendants had prior knowledge of Nala’s dangerous propensities, particularly where Moving Defendants have attested to the contrary.

Based on the foregoing, the Court finds that Plaintiff has failed to meet her responsive burden to show that a triable issue exists as to whether Moving Defendants are liable to her pursuant to Civil Code section 3342. Accordingly, the motion is granted as to Plaintiff’s second and third causes of action.

C.    Additional Discovery

“If it appears from the affidavits submitted in opposition to a motion for summary judgment … that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” (Code Civ. Proc. § 437c, subd. (h).) “A declaration in support of a request for continuance under section 437c, subdivision (h) must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts.” (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 [internal quotations omitted].)

Here, Plaintiff argues that additional discovery is needed to determine the scope of Moving Defendants’ authority over the dog and the dog’s dangerous propensities. (Opp. 6:10–7:25.) However, as Moving Defendants note in reply, “the declaration submitted with the opposition does not identify any specific discovery that plaintiff believes is necessary to oppose the motion, what essential facts plaintiff thinks may be garnered from that discovery or provide any explanation why the discovery has not been already been conducted.” (Reply 6:12–15.) The Court agrees with Moving Defendants that Plaintiff’s counsel’s declaration is lacking in this regard, and that “Plaintiff has had ample time to conduct discovery. Her failure to conduct necessary discovery does not warrant denial of Jesus and Alma’s motion.” (Id. at 5:14–16.)

Based on the foregoing, the Court finds that Plaintiff has not met her burden to justify a continuance of the instant motion based on a lack of necessary facts yet to be discovered. Accordingly, the Court denies Plaintiff’s request for any such continuance.

CONCLUSION

The motion is granted.