Judge: Anne Hwang, Case: 21STCV28754, Date: 2023-11-09 Tentative Ruling

Case Number: 21STCV28754    Hearing Date: April 15, 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; Memorandum of Points and Authorities
2. Separate Statement of Undisputed Facts in Support of Motion for Summary Judgment
3. Request for Judicial Notice
4. Defendant’s Compendium of Exhibits in Support

OPPOSITION PAPERS:

1. Plaintiff’s Opposition
2. Plaintiff’s Response and Supporting Evidence in Opposition to Separate Statement of Undisputed Material Facts
3. Objections to Defendant’s Evidence
4. Declarations of John Meyer, Cheryl Hampton, and Diane Corker in Support
5. Declaration of Orlando J. Castano and Compendium of Exhibits

REPLY PAPERS:

1. None filed.

BACKGROUND

On August 4, 2021, Plaintiff Tatyana Ivanova (“Plaintiff”) filed a complaint against Defendants Xavier Ibarra, Chen Family Trust, Co-Trustees Jack M Chen and Shirley Chen, La Verne-Live Oak Homeowners Association, Inc., and Does 1 to 10 for strict liability, negligence, and premises liability surrounding a dog bite. Plaintiff alleges that on September 23, 2020, she was walking in a public area of the La Verne Live Oak Community, when Xavier Ibarra’s (“Ibarra”) dog, a Great Dane, bit her. (Complaint ¶ 2, 9.)

Plaintiff only asserts a negligence cause of action against Moving Defendant La Verne-Live Oak Homeowners Association (“Defendant”). Plaintiff alleges that Defendant failed to make inspections of properties and warn the HOA of the subject dog. (Id. ¶ 37.) 

Defendant now moves for summary judgment arguing it owed no duty since it had no actual notice of the dog’s dangerous propensities. Plaintiffs oppose. The reply was due April 10, 2024. No reply appears in the docket.  

JUDICIAL NOTICE

The Court takes judicial notice of Plaintiff’s complaint but denies the request for judicial notice of Defendant’s Exhibit 2.

OBJECTIONS

The Court overrules Plaintiff’s objections to the Declaration of Robin Carder.

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 Company, “[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

A. 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”].)  

“[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.)

B. Analysis

            Here, the following is undisputed. La Verne-Live Oak Homeowners Association has never owned, housed, or cared for the subject dog, or any dog housed at the subject property. (UMF 4.) The subject property is a residence located in the common interest development referred to as La Verne Live Oak Community, which was established on April 28, 1988, by the Declaration of Covenants, Conditions and Restrictions of La Verne Live Oak Homeowners Association (“CC&Rs”). (UMF 5.) The Association is charged with the duties and invested with the powers prescribed by law set forth in the CC&Rs. The CC&Rs constitute enforceable, equitable servitudes under California Civil Code §5975, which inure to the benefit of, and are binding upon, all owners of any lots or units in the La Verne-Live Oak Community, including the subject property. (UMF 8.)

From May 8, 2003, until the end of 2021, the HOA utilized the property management company Haven Management, LLC (“Haven Management”) to act as a property manager for the La Verne-Live Oak Community. (UMF 10.) Prior to the dog-bite incident involving Plaintiff, La Verne-Live Oak Homeowners Association, through the Board or otherwise, had not received any complaints from any source regarding the subject dog, or any dog being housed at the subject property, of any kind. (UMF 14.) Plaintiff admitted that she is not aware of the subject dog ever biting anyone prior to the subject incident on September 23, 2020. (UMF 18.) Plaintiff admitted that she had never seen the subject dog running loose before in the La Verne-Live Oak Community prior to the subject incident on September 23, 2020. (UMF 19.)     

Defendant has met its burden of establishing there are no facts that it had actual notice of the subject dog’s dangerous proclivities. The Declaration of Robin Carder, the HOA President since 2003, states that Defendant had not received any complaints from the subject dog, and therefore, had no actual notice of the dog’s dangerous propensities. The burden therefore shifts to Plaintiff.

In opposition, Plaintiff argues that had Defendant inspected the property that housed the dog (“Property”), pursuant to the CC&R, it would have obtained notice of the dog. (Opp., 8.) However, even if this were true, Plaintiff provides no evidence that Defendant would have obtained knowledge of the dog’s dangerous tendencies. Plaintiff offers no additional evidence through a separate statement, and Plaintiff’s response to Defendant’s separate statement fails to show the dog’s dangerousness prior to this incident. Additionally, none of the alleged CC&R violations attributed to the Property involved the dog. (Opp., 9.)

Plaintiff only provides evidence that the dog would bark at people passing by and jump on the gate with its head and paws looking over. (See Meyer Decl. ¶ 3–4; Corker Decl. ¶ 3; Hampton Decl. ¶ 4–5.) Plaintiff provides no evidence of a physical interaction with a member of the community prior to this incident.[1] Also, the dog’s barking and jumping on the fence do not appear to represent dangerous propensities on their own. (See Yuzon v. Collins (2004) 116 Cal.App.4th 149, 164 [noting that dog behavior like barking or jumping against a fence or screen door do not provide actual notice of vicious propensities].)

Plaintiff also argues the dog was not allowed to be within the HOA community because it was a Great Dane, which are naturally large dogs. (Opp., 7–8.) However, similar to canine behaviors such as pushing, barking, and jumping, the size of the dog does not establish the dog’s vicious nature, such that the HOA would have actual knowledge sufficient to give rise to a duty of care to prevent injury.

Lastly, Plaintiff argues that the standard under Uccello is not appropriate here since Defendant is an HOA. (Opp., 10–11.) However, though Plaintiff correctly observes Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490 is not a dog bite case, she does not address the general rule described there: that homeowner associations that function as a landlord in maintaining the common areas owe a similar duty as landowners to exercise due care for the resident’s safety in those areas. (Id. at 499.) Plaintiff provides no authority that Defendant, by being a homeowner’s association, is subject to a different standard (indeed, an apparently more stringent one) than a landlord when determining liability for dog bite cases.

Therefore, Plaintiff fails to meet her burden to establish a triable issue of fact. As a result, the motion for summary judgment is granted.

CONCLUSION AND ORDER

            Based on the foregoing, Defendant La Verne-Live Oak Homeowners Association’s Motion for Summary Judgment is GRANTED. Defendant shall file and serve a proposed judgment within 10 days.  

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