Judge Anne Hwang, Case Number: 21STCV25331, Date: 2024-01-04 Tentative Ruling

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.

On January 10, 2022, Plaintiffs Poppy Webster, Ludovica Pietroiacovo, a minor, Valentina Pietroiacovo, a minor, and Michael Pietroiacovo (collectively, “Plaintiffs”) filed the operative second amended complaint (“SAC”) against Defendants Adam Gruen, Amanda Gruen, Palisades Homeowners Association #3, and Does 1 to 100. Against Moving Defendant Palisades Homeowners Association #3 (hereafter, “Defendant”), Plaintiffs alleged causes of action of negligence, negligent infliction of emotional distress, premises liability, and public and private nuisance.

The SAC alleges that on June 6, 2021, a pit bull owned by Adam Gruen and Amanda Gruen (collectively, “The Gruens”), attacked Michael Pietroiacovo and Poppy Webster’s daughter, Ludovica Pietroiacovo (“Lulu”), biting her in the head, while her sister, Valentina Pietroiacovo (“Valentina”) was present. (SAC ¶¶ 16–19.) Plaintiffs allege that at the time of the incident, Lulu and Valentina were guests in the Gruens’ house, and playing with other children in the Gruens’ garage; the subject dog was in the garage and tied to a cord that he subsequently escaped. (SAC ¶ 16–17.) Plaintiffs allege that Defendant had prior notice of the dog’s dangerous condition, based off two incidents in 2016 and 2018 (although only the 2018 incident is argued in opposition to the motion for summary judgment). Plaintiffs allege that Defendant, as the homeowner’s association in the community where Plaintiffs and the Gruens live, breached its duty of care to Plaintiffs “both by failing to enforce its own CC&Rs to abate the nuisance, enforce remedial measures, or otherwise mitigate the danger posed by the pit bull.” (SAC ¶ 46.) Plaintiffs allege Defendant could have warned the community, imposed restrictions on the dog, or sought a preliminary injunction. (Id. ¶ 46.)

The negligence and premises liability causes of action are asserted by Plaintiff Lulu only. The negligent infliction of emotional distress is brought by Plaintiff Valentina only. The public and private nuisance actions are brought by all Plaintiffs.

Defendant now moves for summary judgment, or in the alternative, summary adjudication, arguing that no triable issue of fact exists. Plaintiffs oppose.

The Court declines to rule on objection numbers 6 and 7 because there is insufficient information and the Court does not rely on the evidence in reaching the rulings herein.

“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”].)

“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”].)

“[T]raditional tort principles impose on landlords, no less than on homeowner associations that function as a landlord in maintaining the common areas of a large condominium complex, a duty to exercise due care for the residents' safety in those areas under their control.” (Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 499.) The fact that an injury takes place in an area where the landowner has no control over, does not automatically preclude liability; rather, failure to take reasonable precautions to safeguard the common areas under its control can contribute substantially to a plaintiff’s injuries. (See O'Hara v. Western Seven Trees Corp. (1977) 75 Cal.App.3d 798, 803.)

“[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.)

Defendant relies heavily on the argument that it did not own, possess, or control the subject garage where the incident occurred, arguing that “no California court has ever held a homeowners’ association responsible for conditions within an individual owner’s Unit.” (Motion at p. 7 [emphasis in original].) In Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 1846, the court rejected the argument that “liability does not extend to areas beyond his control,” where a dog attack occurred four blocks away from the landlord’s property. The court concluded that a “landowner’s liability for a tenant’s dog’s vicious attack that occurs off the premises is determined by the same standards of ordinary care as liability for attacks which occur on the premises. Liability will turn on the landowner’s ability to prevent the harm.” (Id.) “[T]he landlord’s control of the property from which the dog originated its attack, not his or her control over the property on which the attack occurred, determines the landlord’s liability.” (Id. at 1847.) The element of control is crucial. (Salinas v. Martin (2008) 166 Cal.App.4th 404, 414.) “In general, courts have imposed a duty to prevent the harm caused by a third party's animal when a defendant possesses the means to control the animal or the relevant property and can take steps to prevent the harm.” (Cody F. v. Falletti (2001) 92 Cal.App.4th 1232, 1236.)

Here, it is undisputed that the Gruens own the subject dog, and the garage where the incident took place. (See Pl. Response UMF 3, 5, 7, 8.) However, while Defendant offers undisputed facts that it did not own the property where the dog attack occurred, it does not set forth undisputed facts to establish that Defendant could not have taken steps to prevent the harm, other than offering that the Court denied a motion for preliminary injunction. (See UMF13-14.) For example, Plaintiffs argue that Defendant could have warned the community after the 2018 attack or “required that the pit bull wear a muzzle in common areas so that HOA members could observe the safeguards evidencing danger.” (Opposition at p. 10.) Accordingly, Defendant fails to meet its burden and triable issues of fact remain as to Defendant’s duty as to both the negligence and premises liability causes of action.

Next, Defendant argues it cannot be liable since it did not have actual notice of the dog’s dangerous propensity. Defendant offers the following facts:

- On September 4, 2018, Kim Marshall, a homeowner in the Community, notified the HOA Board of an incident concerning Bandit and Ms. Marshall’s dog, Natalie (2018 Incident). (UMF 19.)

- Regarding the 2018 Incident, Ms. Marshall claimed that Bandit “[tried] to sink its teeth in her [dog Natalie’s] neck . . . [but] as of now, we don’t see any injuries on Natalie.” (UMF 20.)

- Ms. Marshall stated that prior to the 2018 Incident, Bandit had “been nothing but friendly” to her. (UMF 21.)

- Regarding the 2018 Incident, Adam Gruen notified the HOA that Bandit “jumped on [Natalie]” but Mr. Gruen “promptly [and] easily removed [his] dog from the situation and brought him back inside.” He further notified the HOA that “ALL humans, animals and property were 100% unharmed from this brief occurrence.” (UMF 22.)

- In 2018, Kimberly Marshall reported to the HOA that as she passed by the Gruens’ home, one of the Gruens’ two pit bulls “ran out of the house and jumped on [the neighbor’s] dog, going for her jugular,” that Bandit “jumped in full attack mode” on her dog “and it started ferociously trying to sink its teeth in her neck,” that it took two adult men with considerable strength to pull the pit bulls from her dog, that the dogs did not listen to Adam Gruen’s commands and that the attack was “focused and frenzied.” (PAMF 11.)

- The HOA’s investigation into the 2018 Incident did not involve interviewing a single witness to the incident, including the man who Kimberly Marshall said had to punch the dog to get it to let go of Natalie. (PAMF 14.)

Viewing the evidence in the light most favorable to Plaintiffs, there is a triable issue of fact as to whether Defendant had actual notice. Here, the account from Kimberly Marshall to Defendant shows that the subject dog ran out of the house and appeared to attack another dog. According to that account, two men were required to help remove the dogs and they did not listen to Adam Gruen’s commands. Attacking another dog, regardless of whether the attack causes injury, is not the same as “pushing, barking, and jumping.” (Motion at p.8.) There is a triable issue of fact as to whether Defendant had knowledge of the dog’s dangerous propensities.

Next, Defendant argues that no facts exist that it proximately caused injury to Lulu. Causation is established by showing that a defendant’s breach of duty was a substantial factor in bringing about plaintiff’s injury, and there is no legal rule relieving defendant from liability. (Ortega, supra, 26 Cal.4th at p. 1205.) Defendant’s negligence is the actual cause, or cause in fact, of plaintiff’s injury if it is a substantial factor in bringing about the harm. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052.) The doctrine of proximate cause relieves defendants from liability for injuries they, in fact, caused, based on considerations of policy and justice. (Ortega, supra, 26 Cal.4th at p. 1205.)

Here, there is a triable issue of fact regarding causation. Defendant does not set forth undisputed facts regarding Defendant’s failure to notify the community regarding the 2018 incident. Defendant does set forth a fact regarding the muzzle requirement (UMF 10), however Plaintiffs dispute that fact. Moreover, Michael Pietroiacovo testified in a deposition that he would not have allowed Lulu and Valentina to play in the Gruens’ garage had he known of the dog’s prior incident of aggression.[1] (PAMF 35; Pl. Exh. ZZ.)

Therefore, the motion for summary adjudication as to the negligence and premises liability causes of action is denied.

“ ‘Negligent infliction of emotional distress is a form of the tort of negligence, to which the elements of duty, breach of duty, causation and damages apply…’ ”¿ (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129-130.)¿ “The law of negligent infliction of emotional distress in California is typically analyzed…by reference to two ‘theories' of recovery: the ‘bystander’ theory and the ‘direct victim’ theory.”¿ (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1071.)¿

The elements of a cause of action for the negligent infliction of emotional distress based on the bystander theory are: (1) the plaintiff is closely related to the injury victim; (2) is present at the scene of the injury producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress-a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.¿ (Thing v. La Chusa (1989) 48 Cal.3d 644, 667–68; see also Ra v. Sup. Ct. (2007) 154 Cal.App.4th 142, 148–49 [bystanders must be closely related to the victim, have been present at the scene and contemporaneously aware of injuring, and have suffered serious emotional distress]; Smith v. Pust (1993) 19 Cal.App.4th 263, 273 [plaintiff must be direct victim or a bystander who witnessed to the injury].)¿

Here, because there remain triable issues of fact regarding the duty owed by Defendant, the cause of action for negligent infliction of emotional distress (NIED) survives. Therefore, the motion for summary adjudication of the NIED claim is denied.

A nuisance is defined as follows: “[a]nything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway.” (Civ. Code § 3479.)

Private “[n]uisance liability arises from violation of a duty to another that interferes with the free use and enjoyment of his or her property.” (Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1373.) The elements of a private nuisance are: (1) “the plaintiff must prove an interference with his use and enjoyment of his property”; (2) “ ‘the invasion of the plaintiff’s interest in the use and enjoyment of the land [must be] substantial, i.e., that it cause[s] the plaintiff to suffer “substantial actual damage” ’ ”; and (3) “ ‘ “[t]he interference with the protected interest must not only be substantial, but it must also be unreasonable” [citation], i.e., it must be “of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land.” ’ [Citation.]” (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-63.) The test for whether the conduct is unreasonable, is “whether reasonable persons generally, looking at the whole situation impartially and objectively would consider [the interference] to be unreasonable.” (San Diego Gas & Elec. Co. v. Sup. Ct (1996) 13 Cal.4th 893, 938.) Additionally, the degree of harm is also an objective standard which asks, “what effect would the invasion have on persons of normal health and sensibilities living in the same community?” (Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263, 303.)

Here, Defendant argues Plaintiffs cannot prove the following elements: “(2) the HOA, by acting or failing to act, created a condition to exist that was an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . . (4) this condition substantially interfered with Plaintiffs’ use or enjoyment of their land, . . . and (8) the HOA’s conduct was a substantial factor in causing Plaintiffs’ harm.” (Motion, 20.)

Defendant repeats arguments that were already decided in the previous issues. Defendant offers the following facts:

- Following the subject incident, the HOA sent a letter on June 16, 2021, demanding Bandit be on a leash and muzzled in the Common Areas and calling the Gruens to two hearings to investigate the subject incident. (UMF 11.)

- Subsequently, the HOA Board unanimously voted to impose a $2,000 fine, demand the Gruens immediately remove Bandit from the Community, and keep Bandit muzzled in the Common Areas and avoid unnecessary contact with other animals and humans until Bandit was permanently removed from the Community. (UMF 12.)

- The HOA (including past and present board members and the HOA’s legal counsel) and five other families in the Community joined Plaintiffs’ efforts to remove Bandit from the Community through a Preliminary Injunction. (UMF 13.)

- The Court found it lacked sufficient evidence to remove Bandit from the Gruens’ home even after considering all the prior incidents, including the subject incident. (UMF 14.)

For the reasons discussed above, Defendant’s arguments are not persuasive here. Accordingly, the motion for summary adjudication is denied.

A public nuisance is a nuisance that simultaneously affects some other larger group of individuals. (Civ. Code, § 3480.) “[W]hen the nuisance is a private as well as public one, there is no requirement the plaintiff suffer damages different in kind from that suffered by the general public.” (Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1551.) The necessary elements for public nuisance are: (1) the defendant, by acting or failing to act, created a condition that was (a) harmful to health or (b) obstructed the free use of the property so as to interfere with the comfortable enjoyment of life or property; (2) the condition affected a substantial number of people at the same time; (3) an ordinary person would be reasonably annoyed or disturbed by the condition; (4) the seriousness of the harm outweighs the social utility of the conduct; (5) the plaintiff did not consent to the conduct; (6) the plaintiff suffered harm that was different from the type of harm suffered by the general public; and (7) the defendant’s conduct was a substantial factor in causing plaintiff’s harm. (See Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1548.)

Here, Defendant argues Plaintiffs cannot show that a substantial number of people within the community were affected by the dog. To support this, Defendant points to the six families who joined Plaintiffs’ effort to remove the dog through a preliminary injunction. (UMF 13.) Defendant notes that the community consists of 121 units. (UMF 4.) Defendant argues that 6 out of 121 is insufficient to demonstrate a “substantial number” for nuisance. However, this fact alone does not show that Plaintiff cannot reasonably obtain the needed evidence: i.e. whether more families are affected by the dog’s continued presence in the community. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855.) Therefore, Defendant fails to meet its burden. The motion for summary adjudication as to the public and private nuisance causes of action is denied.

Based on the foregoing, Defendant Palisades Homeowners Association #3’s Motion for Summary Judgment, or, in the alternative, for Summary Adjudication, is DENIED.

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

[1] Although Defendant argues that the evidence is inconsistent with other evidence, this is an issue for the jury to resolve. (See Def. Resp. to PAMF 35.)

DEPARTMENT	32
HEARING DATE	January 4, 2024
CASE NUMBER	21STCV25331
MOTION	Motion for Summary Judgment, or in the alternative, Motion for Summary Adjudication
MOVING PARTY	Defendant Palisades Homeowners Association #3
OPPOSING PARTY	Plaintiffs Poppy Webster, Ludovica Pietroiacovo, Valentina Pietroiacovo, and Michael Pietroiacovo