Judge: Anne Hwang, Case: 21STCV37833, Date: 2023-09-18 Tentative Ruling

Case Number: 21STCV37833    Hearing Date: September 18, 2023    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. Request for Judicial Notice in Support of Motion for Summary Judgment, or in the Alternative Summary Adjudication

3. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment, or in the Alternative Summary Adjudication[1]

4. Evidence in Support of Motion for Summary Judgment, or in the Alternative Summary Adjudication

OPPOSITION PAPERS:

1. Memorandum of Points and Authorities in Opposition to Motion for Summary Judgment, or in the Alternative Summary Adjudication

2. Plaintiff’s Request for Judicial Notice

3. Plaintiff’s Response to Separate Statement of Undisputed Material Facts

4. Declaration of Alan A. Carrico in Opposition to Motion for Summary Judgment, or in the Alternative Summary Adjudication

5. Plaintiff’s Request for Denial of Summary Judgment Motion or for Continuance of Summary Judgment Hearing

REPLY PAPERS:

1. Reply Brief

2. Reply to Plaintiff’s Separate Statement of Undisputed Facts in Support of Opposition

SUPPLEMENTAL OPPOSITION:

1. Plaintiff’s Supplemental Memorandum of Points and Authorities in Opposition

SUPPLEMENTAL REPLY:

1. Defendants’ Supplemental Reply in Support of Motion for Summary Judgment; Memorandum of Points and Authorities; Supplemental Declaration of Mitchell F. Ducey

BACKGROUND

Plaintiff Lanna Woodruff (Plaintiff) sued Defendants David E. Johnson, Tamar J. Johnson, Andrew Johnson, and Eric Johnson (Defendants) based on injuries Plaintiff sustained while purportedly attempting to return a dog to their owner, Drew Algorri, when the dog unexpectedly pulled Plaintiff forward causing her to fall to the ground. Moving Defendants David E. Johnson and Tamari Johnson (collectively, Moving Defendants) owned the premises where Plaintiff was purportedly injured and Drew Algorri was their tenant. Defendant’s son, Caleb Johnson, was also a tenant on the premises.

Plaintiff asserts three causes of action against Defendants in the complaint: negligence, premises liability, and strict liability. Moving Defendants move for summary judgment, or in the alternative summary adjudication, on Plaintiff’s complaint. Plaintiff opposes the motion.

On June 23, 2023, the Court continued the hearing on summary judgment pursuant to Plaintiff’s request under Code of Civil Procedure § 437c, subd. (h) to obtain additional evidence.

JUDICIAL NOTICE

Under Evidence Code section 452, “[j]udicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: (a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state. (b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. (d) Record of (1) any court of this state or (2) any court of record of the United States or of any state of the United States . . . .” (Evid. Code, § 452, subds. (a)-(d).)

Pursuant to Evidence Code section 452, the Court grants Moving Defendants’ unopposed request for judicial notice of Plaintiff’s Complaint, Plaintiff’s Amendment to the Complaint, and Moving Defendants’ Answer to the Complaint.

The Court further grants Plaintiff’s unopposed request for judicial notice of the City of Azusa Municipal Code, section 10-1, and of the Los Angeles County Code, sections 10.32.010 and 10.40.010.

LEGAL STANDARD – SUMMARY JUDGMENT

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[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 and Premises Liability

“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.) “Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm.” (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

“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”].)  

Stated differently, “because the owner is not the insurer of the visitor's personal safety, the owner's actual or constructive knowledge of the dangerous condition is a key to establishing its liability. Although the owner's lack of knowledge is not a defense, to impose liability for injuries suffered by an invitee due to a defective condition of the premises, the owner or occupier must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises . . . .” (Hall v. Aurora Loan Services, LLC (2013) 215 Cal.App.4th 1134, 1139-1140 [cleaned up]; Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206 [“to impose liability for injuries suffered by an invitee due to a defective condition of the premises, the owner or occupier must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises”] [cleaned up].)

“[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.)

In addition to actual knowledge that a dangerous animal is being kept at their property, a landlord must also have had an ability to prevent the harm. (Donchin v. Guerrero, supra, 34 Cal.App.4th at pp. 1838-1839.) “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.” (Id. at p. 1846.) “If the dog is taken on a leash by its owner, off the premises, prevention of an attack by the dog may be beyond the landlord's control. But if the dog escapes the landlord's property because of defects in that property, the landlord is liable for the off-site injuries.” (Ibid.)

2. Strict Liability

Under Civil Code section 3342, or the dog bite statute, 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.)

3. Analysis

Defendants argue that Plaintiff’s causes of action for premises liability, negligence, and strict liability fail as to Defendants because the Undisputed Material Facts (hereafter UMF) establish that Defendants (1) did not own the dog that allegedly caused the harm, (2) did not have knowledge of the presence of the dog on the subject property, and (3) did not have knowledge of the dog’s dangerous propensities.

Defendants offer the following facts:

-        Mr. Algorri owned a dog named “Zuko” that he brought onto the subject property (sometimes referred to as the “subject dog”). (UMF 4.)

-        Mr. Algorri brought the subject dog onto the property two to three days prior to the subject incident in which plaintiff was injured. (UMF 12.)

-        Mr. Algorri never communicated to defendants that he was bringing a dog onto the subject property. (UMF 13; 21 (disputed that “Mr. Algorri communicated to defendants’ agent, Caleb Johnson, that he was bringing a dog onto the premises.”))

-        Mr. Algorri checked the height of the fences and any escape routes before he brought the dog onto the subject property. (UMF 14.)

-        The dog never escaped from the subject property before the date of the incident. (UMF 15.)

-        Defendants had no knowledge of the existence of any dog on the subject property, or that Mr. Algorri had brought a dog onto the property, or that there was any dog with dangerous tendencies at the property. (UMF 16 (disputed that “Defendants’ agent, Caleb Johnson, had knowledge and that knowledge was imputed to defendants.”))

-        Defendants did not own the dog involved in the subject incident (UMF 17.)

Plaintiff offers the following facts:

-        Defendant’s son Caleb collected rent from the tenants residing on the premises. Caleb would then send the rent to Defendants through direct deposit. (Pl. Supp., Exh, 1, p. 20:21-25.)

-        Defendants never rejected a potential tenant that Caleb had proposed. (Pl. Supp., Exh, 1, p. 46:12-20.)

-        Caleb had an obligation to maintain the property. (Pl. Supp., Exh. 1, p. 43:18-25.)

-        Caleb recalled three tenants who had kept a dog on the premises. In one instance, a tenant got permission to keep the dog by asking Caleb, who asked Defendants. (Pl. Supp., Exh, 1, p. 21:1-22:11.)   

-        Mr. Algorri asked Caleb if he could have a dog on the premises. Caleb responded that he would have to ask Defendants, but never did. (Pl. Supp., Exh, 1, p. 31:10-32:2.)  

-        Caleb could not recall his parents ever refusing permission to keep a dog at the rented premises. (Pl. Supp., Exh, 1, p. 26:25-27:6.)   

-        Caleb had knowledge of the dog, and that knowledge was imputed to Defendants. (PUMF 16.)

Based on the above, Defendants have met their burden to show that there are no facts that Defendants has actual knowledge about the subject dog, let alone any dangerous propensities it may have possessed or even any tendency to escape, such that they owed Plaintiff a duty of care. Additionally, there are no facts set forth that show Defendants were the owners of the subject dog, or knowingly kept or harbored the dog on the premises, after knowledge of its vicious propensities. The burden now shifts to Plaintiff to demonstrate a dispute of material fact.

In opposition, Plaintiff argues that Defendants knew or should have known of the dog’s presence because their son Caleb procured renters for the property and previously allowed tenants to keep dogs at the premises. They argue Defendants knew about the dog because Caleb had actual knowledge of the dog. First, constructive knowledge is not enough to make a landlord liable for a tenant’s dangerous animal; there must be actual knowledge. (Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 514 (“Because the harboring of pets is such an important part of our way of life and because the exclusive possession of rented premises normally is vested in the tenant, we believe that actual knowledge and not mere constructive knowledge is required. For this reason we hold that a landlord is under no duty to inspect the premises for purpose of discovering the existence of a tenant’s dangerous animal; only when the landlord has actual knowledge of the animal, coupled with the right to have it removed from the premises, does a duty of care arise.”) Plaintiff provides no facts that Defendants had actual knowledge of the dog.

Second, Plaintiff has not demonstrated a triable issue of fact that Caleb was an agent to Defendants. “ ‘Ostensible authority is such as a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess.’ (Civ. Code § 2317; see Civ. Code § 2316 [actual authority defined].) A corollary derived from this principle is that ostensible authority of an agent cannot be based solely upon the agent’s conduct.” (Pierson v. Helmerich & Payne Internat. Drilling Co. (2016) 4 Cal.App.5th 608, 635.) The undisputed evidence set forth by Plaintiff establishes that Algorri asked Caleb if he could have a dog on the premises and Caleb responded that he would have to ask his parents. Even regarding the other dogs on the property, the tenant got permission to keep the dog by asking Caleb, who asked Defendants.

Plaintiff appears to argue that previous tenants were allowed to keep dogs, and since those dogs had escaped, it was reasonably foreseeable that additional dogs, like Mr. Algorri’s, would be kept there. However, this argument ignores the law that landlords only owe a duty to third-parties harmed by a tenant’s dog when they have “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.) Plaintiff does not set forth evidence that Defendants (or even Caleb) knew of any dangerous propensities or any tendency to escape.

Plaintiff also argues that the owner of the premises owes a non-delegable duty to exercise ordinary care in the management of premises. (Opp., 8.) “The doctrine of nondelegable duty does not, however, create a duty where none would otherwise exist.” (Chee, supra, 143 Cal.App.4th at 1375.) Plaintiff argues the garage was defective and likely aided the dog’s escape. However, “[t]he general duty of care owed by a landowner in the management of his or her property is attenuated when the premises are let because the landlord is not in possession, and usually lacks the right to control the tenant and the tenant's use of the property.” (Chee, supra, 143 Cal.App.4th at 1369.) Additionally, Plaintiff does not dispute the fact that the dog had never before escaped and that Mr. Algorri had checked the height of the fences and any escape routes before bringing the dog onto the property. (PUMF 14, 15.) Plaintiff does not cite to any authority that suggests Defendants should be liable for a defect that could aid a dog’s escape when they did not know a dog was living on the premises.  

Lastly, Plaintiff contends that Defendants violated section 10.32.010 and 10.40.010 of the Los Angeles County Code of Ordinances. Section 10.32.010 requires a dog to be restrained on a leash by a person capable of controlling the dog. Plaintiff does not give facts that support why Defendants would be responsible for controlling the dog in question, since no facts were raised that they had actual knowledge. Similarly, section 10.40.010 applies to “a person who owns an animal or who owns or operates an animal facility.” Plaintiff does not provide facts that Defendants owned the dog or that the premises was an “animal facility.”

Therefore, after considering all competent evidence in the light most favorable to Plaintiff, Plaintiff has not met its burden to show there is a genuine dispute of material fact as to whether Defendants owed a duty of care to Plaintiff.

CONCLUSION AND ORDER

            Based on the foregoing, Defendants David E. Johnson and Tamara Johnson’s Motion for Summary Judgment is GRANTED.

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