Judge: Anne Hwang, Case: 21STCV05323, Date: 2024-03-06 Tentative Ruling

Case Number: 21STCV05323    Hearing Date: March 6, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.   

TENTATIVE RULING 

MOVING PAPERS:

1. Notice of Motion for Summary Judgment, or in the Alternative Summary Adjudication; Memorandum of Points and Authorities
2. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment, or in the Alternative Summary Adjudication
3. Request for Judicial Notice
4. Evidence in Support of Defendants’ Motion

OPPOSITION PAPERS:

1. Memorandum of Points and Authorities in Support of Plaintiff’s Opposition
2. Plaintiff’s Separate Statement of Disputed and Undisputed Material Facts and Additional Disputed Facts
3. Request for Judicial Notice
4. Declaration of Oscar A. Bustamante
5. Declaration of Demetra Lipkins
6. Declaration of Edi Kristopher

REPLY PAPERS:

1. Defendants’ Reply
2. Objections to Plaintiff’s Evidence
3. Defendants’ Response to Plaintiff’s Separate Statement
4. Evidence in Support of Defendant's Reply

BACKGROUND

On February 10, 2021, Plaintiff Demetra Lipkins (“Plaintiff”) filed a complaint against Defendants Elisa Enriquez and Does 1 to 25 alleging causes of action for negligence, negligence per se under Civil Code section 3342, and strict liability for a dog bite that occurred on September 5, 2020 at 1415 W. 107^th Street, Los Angeles. Plaintiff alleges the subject dog, a Husky named “Ajeno”, was owned by Elisa Enriquez and Does 1 to 25. (Complaint ¶ 8.)

On May 5, 2021, Plaintiff filed an amendment to the complaint, substituting Jeffrey Abernathy and Laura Abernathy as Does 1 and 2 respectively. Defendants Jeffrey Abernathy and Laura Abernathy (“Defendants”) filed an answer on June 14, 2021.

Defendants now moves for summary judgment, or in the alternative, summary adjudication, arguing that no triable issue of fact exists, specifically that: (1) they did not own the subject dog; (2) they did not have actual or constructive notice of the dog, let alone any dangerous propensity; and (3) Plaintiff cannot prove causation. In the alternative, Defendants move for summary adjudication of the third cause of action for strict liability because they did not own the dog and had no notice of a dangerous propensity. Plaintiff opposes and Defendants reply.

JUDICIAL NOTICE

Defendants’ request for judicial notice of exhibits 1–3 (Plaintiff’s complaint, Doe Amendments, and Defendants’ Answer) is granted. (Evid. Code § 452(d).)

Plaintiff’s request for judicial notice of exhibit 1, the Los Angeles County Development Authority Owner’s Guide to Section 8 is denied.

EVIDENTIARY OBJECTIONS

Plaintiff appears to object to Defendants’ evidence in her response to Defendants’ separate statement. However, since the objections were not asserted in a separate filing under California Rules of Court, rule 3.1354, the Court declines to rule on the objections asserted in the separate statement.

The Court declines to rule on Defendants’ objections as they have no effect on the ruling herein.

LEGAL STANDARD

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Id.) 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.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].)  Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise.  If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.) 

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].) 

DISCUSSION

1. Negligence

“The elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury. The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998 [citation omitted].)

“It is generally true that a person is liable for injuries to another only as a result of his or her own conduct. Liability is based not on responsibility for the conduct of others, but on the failure of the landowner or occupier to act reasonably under the circumstances when he or she has reason to anticipate the probability of injury and has an opportunity to prevent the injury or warn of the peril. Thus, liability is based on his or her own failure to act reasonably.” (Cody F. v. Falletti (2001) 92 Cal.App.4th 1232, 1242 [cleaned up]; Delgado v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406, fn. 1 [“premises liability alleges a defendant property owner allowed a dangerous condition on its property or failed to take reasonable steps to secure its property against criminal acts by third parties”].)  

“[I]t is well established that a landlord does not owe a duty of care to protect a third party from his or her tenant's dog unless the landlord has actual knowledge of the dog's dangerous propensities, and the ability to control or prevent the harm.” (Chee v. Amanda Goldt Prop. Mgmt. (2006) 143 Cal.App.4th 1360, 1369.) “[A] duty of care arises when the landlord has actual knowledge of the presence of the dangerous animal and when he has the right to remove the animal by retaking possession of the premises.” (Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 507.) A landlord owes a duty of care to his tenant's invitees to prevent injury from the tenant's vicious dog when the landlord has “actual knowledge” of the dog's vicious nature in time to protect against the dangerous condition on his property (Ibid.) The landlord must have “[a]ctual knowledge and not mere constructive knowledge” in order to be liable. (Ibid. at 514.)   Circumstantial evidence of a dog’s dangerousness, as well as direct evidence, can satisfy the requirement that a landlord have actual knowledge of the dangerous tendencies of an animal on their property. (Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 1838.)

2. Strict Liability/Negligence per se

Under Civil Code section 3342, dog owners are legally responsible for the monetary damages that result from any person who is bitten by their dog: “The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place … .” Strict liability for a dog bite can attach to a non-owner who is “knowingly keeping or harboring the dog upon his premises, after knowledge of his vicious propensities … .” (Buffington v. Nicholson (1947) 78 Cal.App.2d 37, 41, emphasis in original.) “The word ‘keeper’ is equivalent to ‘the person who harbors.’” (Ibid. citing 3 C.J.S., Animals § 165, p. 1266 ) “Harboring means protecting.” (Id.) “[O]ne who treats a dog as living at his house, and undertakes to control his actions” is considered to be “keeping or harboring” the dog. (Ibid.)

“The negligence per se doctrine, as codified in Evidence Code section 669, creates a presumption of negligence if four elements are established: (1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence of the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” (Spates v. Dameron Hospital Association (2003) 114 Cal.App.4th 208, 218, quotation marks omitted.) “The doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.” (Johnson v. Honeywell International Inc. (2009) 179 Cal.App.4th 549, 555, quotation marks and brackets omitted.)   

            3. Analysis

Here, the following facts are undisputed. At the time of the incident, Defendants owned the subject property which they rented out to Ms. Enriquez. (Pl. Resp. to UMF 5.) Defendants did not own the subject dog. (See Pl. Resp. to UMF 6.) Ms. Enriquez was a tenant at the subject property pursuant to the terms of Rental Agreement dated November 3, 2019, which she signed. (Pl. Resp. to UMF 7–8.) The Lease provided that the tenant, Ms. Enriquez was not allowed to keep an animal or pet on the subject property without defendants’ prior written consent. (Pl. Resp. to UMF 9.) Defendant Jeffrey Abernathy is Ms. Enriquez’s primary contact. (UMF 10.)

Defendants set forth the following additional facts:

-          Ms. Enriquez never informed defendants that a dog would be kept at the subject property. (UMF 11.)

-          Defendants never observed the subject dog being kept at the subject property. (UMF 12.)

Defendants have met their burden in showing that they had no notice of the subject dog that allegedly bit Plaintiff. As a result, the burden now shifts to Plaintiff to establish a triable issue of fact.

Plaintiff argues that Defendants knew of dangerous dogs on the premises. Plaintiff sets forth the following facts:

-          The Abernathy Defendant frequently drive by the Subject Property. (PAMF 7.)

-          There were at least three dogs on the premises. (PAMF 9.)

-          There were at least two adult sized huskies mix at the Subject property. (PAMF 10.)

-          The dogs are allowed to roam freely around the front yard of the property. (PAMF 13.)

-          The dogs have snarled, growled and harassed people in the past. (PAMF 14.)

-          Defendant Abernathy knew that Defendant Enriquez owned the husky involved in this Subject Incident. (PAMF 15.)

-          Defendant Abernathy knew that there were vicious dogs on the premises. (PAMF 16.)

-          Defendant Abernathy saw the large chicken fence installed on his property. (PAMF 17.)

-          Defendant, Jeffrey Abernathy by his own admission said he thought the chicken fence was for a small dog he had previously seen on the property. (PAMF 19.)

-          Defendant Abernathy also saw a large BEWARE OF DOG sign on his property. (PAMF 20.)

-          Defendant Abernathy did not speak to Defendant Enriquez about the BEWARE OF DOG when he saw the sign on his property. (PAMF 21.)

-          Defendant Abernathy testified that he only found out about the Subject Incident when he was served on May 14, 2021. (PAMF 22, 23.)

-          Defendant Abernathy’s text messages to Defendant Enriquez predate the date he was served. (PAMF 24.)

-          Defendant Abernathy admits that he intentionally did not follow the terms of his own lease agreement. (PAMF 25.)

“[A]ctual knowledge can be inferred from the circumstances only if, in the light of the evidence, such inference is not based on speculation or conjecture. Only where the circumstances are such that the defendant ‘must have known’ and not ‘should have known’ will an inference of actual knowledge be permitted.” (Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 514, fn. 4.) One way to set forth a fact is “to introduce evidence tending to show an opponent's denial of the existence of the fact is to be disbelieved, that is, evidence challenging the credibility of his denial.” (Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 1840.) “[I]f a party takes the affirmative step of testifying that he denies any knowledge about a certain topic it is possible to introduce evidence bearing on the credibility of that denial.” (Id.) “[A] civil defendant's false exculpatory statement can be evidence of his consciousness of liability and casts doubt on his denial of knowledge affecting his liability.” (Id. at 1841–1843 [landlord’s initial statement denying he knew his tenant had dogs is evidence of the falsity of his later denial that he knew the dogs had vicious propensities].)

Here, Plaintiff argues that Defendants knew of the subject dog. However, the text messages do not show that Defendants knew of the subject dog prior to being notified about this case. Plaintiff relies on conjecture to infer that since Jeffrey Abernathy texted that the dog was not his, nor the friend, he knew that the dog belonged to Ms. Enriquez. (Opp., 14.) Moreover, the text messages do not support an inference that Defendants knew of the dog’s dangerous propensities prior to the subject incident. Additionally, while Defendant Jeffrey Abernathy admitted to seeing the chicken wire around the front yard, he testified that he only saw a “little Chihuahua-like dog” and assumed the wire was to keep it out. (Kristopher Decl., Exh. 1, Abernathy Depo. 36:1–23.) Plaintiff also points to evidence that Defendants saw a “Beware of Dog” sign on the property, but not whether Defendant saw it before the incident. (See Exh. 1, Abernathy Depo. 27:18–28:8.) Also, Plaintiff has failed to show an inference that Defendants “must have known” of the subject dog that bit Plaintiff since the text messages occurred after the incident. Based on the above, there is no evidence creating a material triable issue of fact regarding actual knowledge.

CONCLUSION AND ORDER

            Based on the foregoing, Defendants Jeffrey Abernathy and Laura Abernathy’s Motion for Summary Judgment is GRANTED.  Defendants shall file a proposed judgment within 10 days.

Moving Defendants shall provide notice of this ruling and file a proof of service of such.