Judge: Anne Hwang, Case: 22STCV00962, Date: 2023-08-09 Tentative Ruling

Case Number: 22STCV00962    Hearing Date: December 4, 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 and Motion for Summary Adjudication; Memorandum of Points and Authorities; Declarations of Edwin Raquel, Leilani Raquel, and Bradley Anderson

2.      Separate Statement of Undisputed Material Facts

3.      Defendants Compendium of Exhibits

OPPOSITION PAPERS

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

2.      Plaintiff’s Separate Statement in Opposition

3.      Evidentiary Objections

4.      Declaration of Richard Powers

5.      Compendium of Evidence

REPLY PAPERS

1.      Defendants’ Reply Brief

2.      Response to Plaintiff’s Separate Statement

SUPPLEMENTAL OPPOSITION

1.      Plaintiff’s Supplemental Memorandum

2.      Plaintiff’s Supplemental Separate Statement

3.      Evidentiary Objections

4.      Plaintiff’s Supplemental Compendium of Evidence

SUPPLEMENTAL REPLY

1.      Defendants’ Reply Brief

2.      Response to Plaintiff’s Supplemental Separate Statement

BACKGROUND

On January 10, 2022, Plaintiff Kelly Soon Lee (Plaintiff) filed a complaint against Defendants Edwin Raquel and Leilani Raquel (Defendants) based on injuries from a dog bite. Plaintiff alleges that Defendants’ dog bit her on December 5, 2021. Plaintiff seeks punitive damages.

Defendants now move for summary adjudication on the claim for punitive damages, arguing that no triable issue of fact exists. This motion was originally set for a hearing on August 9, 2023. Plaintiff requested a continuance in order to depose Christina Raquel, Caroline Raquel, and Tamar Geller. The Court granted the continuance and allowed the parties to file supplemental opposition and reply papers. (Min. Order, 8/9/24.)

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”].) 

EVDIENTIARY OBJECTIONS

The Court sustains Plaintiff’s objections 5-10.

The remainder of Plaintiff’s objections are overruled.

DISCUSSION

Punitive damages may be imposed where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.¿ (Civ. Code, § 3294, subd. (a).)¿ “Malice” is conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on with a willful and conscious disregard of the rights or safety of others.¿ (Civ. Code, § 3294, subd. (c)(1).)¿ “‘Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.’¿ [Citation.]”¿ (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210.)¿¿¿¿ 

“As amended to include [despicable], the [Civil Code section 3294] plainly indicates that absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs’ interests.¿ The additional component of ‘despicable conduct’ must be found.”¿ (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) (emphasis added.)¿ The statute’s reference to despicable conduct represents a “new substantive limitation on punitive damage awards.”¿ (Ibid.)¿ Despicable conduct is “conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.¿ Such conduct has been described as ‘having the character of outrage frequently associated with crime.’”¿ (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)¿ Further, “[t]here must be evidence that defendant acted with knowledge of the probable dangerous consequences to plaintiff’s interests and deliberately failed to avoid these consequences.”¿ (Flyer’s Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155.)¿ 

“[M]alice is the basis for assessing punitive damages for nonintentional conduct; that is, acts performed without intent to harm. [Citation omitted.] Nonintentional conduct comes within the definition of malicious acts punishable by the assessment of punitive damages when a party intentionally performs an act from which he knows, or should know, it is highly probable that harm will result.” (Ford Motor Co. v. Home Ins. Co.¿(1981) 116 Cal.App.3d 374, 381.) A conscious disregard for the safety of others can constitute malice if the plaintiff establishes that “the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895–96.)

“[A]lthough the “clear and convincing” evidentiary standard is a stringent one, it does not impose on a plaintiff the obligation to “prove” a case for punitive damages at summary judgment. [Citation omitted.] However, where the plaintiff's ultimate burden of proof will be by clear and convincing evidence, the higher standard of proof must be taken into account in ruling on a motion for summary judgment or summary adjudication, since if a plaintiff is to prevail on a claim for punitive damages, it will be necessary that the evidence presented meet the higher evidentiary standard.” (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton¿(2002) 96 Cal.App.4th 1017, 1049.) “Summary judgment or summary adjudication on the issue of punitive damages is proper only when no reasonable jury could find the plaintiff's evidence to be clear and convincing proof of malice, fraud or oppression.” (Butte Fire Cases¿(2018) 24 Cal.App.5th 1150, 1159) (internal quotations omitted.)  

Here, it is undisputed that Defendants adopted the subject dog (Frankie) in June 2020. (UMF 1, 3.) The general facts on the day of the subject dog bite are also undisputed. On December 5, 2021, Frankie was running in the front yard in the presence of Defendants and their employee. (UMF 23.) Defendants’ property is fenced on all four sides. (UMF 27.) At one point, Frankie ran to the side of the property, out of sight, scaled the lowest part of the wall, and escaped. (UMF 25.) Within a few seconds, Mr. Raquel heard a scream. After running to where the scream occurred, Defendants discovered Plaintiff. (UMF 29–30.)

Defendants set forth the following facts:

-          After adopting Frankie, defendants hired Tamar Geller, a well-known dog trainer based in Bel-Air, to start obedience training at around two months old. (UMF 4.)

-          Ms. Geller trained Frankie for approximately 18 months, weekly for the first few months and including overnight stays when we were out of town. Training included one-on-one training sessions, group training sessions with other dogs and people present, regular group socialization with other dogs of various temperaments, sizes, and breeds, hikes and walks with other dogs, and a two week long training vacation when he stayed with Ms. Geller at her home to receive 24/7 training for two weeks. Initially, during the first few months, the training was done on a weekly basis and then it became less frequent. (UMF 5.)

-          During the entire time that Frankie was trained by Ms. Geller, she never expressed any concerns to defendants about Frankie. (UMF 7.)

-          The feedback defendants received from Ms. Geller is that Frankie was training and progressing well. (UMF 8.)

-          Prior to the incident on December 5, 2021, defendants never encountered any problems with Frankie. (UMF 9.)

-          Defendants never saw Frankie behave aggressively toward any person or other dog. (UMF 10.)

-          Defendants never saw Frankie bite anyone or any other dog. (UMF 11.)

-          Defendants never encountered problems with Frankie jumping or play biting. (UMF 12.)

-          Defendants never encountered Frankie barking in an excessive manner (UMF 13.)

-          Defendants never saw Frankie attempt to bark and chase any people who were on the street while Frankie was in the front yard, which is adjacent to the street. (UMF 14.)

-          Frankie regularly played with defendants’ daughters’ friends and their dogs without any incidents. (UMF 15.)

-          Frankie behaved well in dog parks or even on a plane ride. (UMF 16.)

-          Frankie was always affectionate to visitors at defendants’ house and never displayed any signs of aggression. (UMF 17.)

-          Frankie had never attempted to scale the boundary walls of defendants’ property and this was the first time that this type of incident had ever occurred. (UMF 45.)

-          Following the dog bite incident, defendants received communications from the Fremont Place Association with respect to the dog bite incident. One of the communications alleged that an earlier incident had occurred on November 24, 2021. The communication alleged that Frankie aggressively charged another neighbor and her family. (UMF 49.)

-          This was the first time defendants had ever been apprised of this alleged charging incident. Indeed, defendants were unaware of any alleged prior incident and were only advised of this when they received the correspondence from the Association. (UMF 50.)

-          Frankie was out of defendants’ property for a very short period of time on November 24. Mr. Raquel had opened the front gate (which closes automatically) and gone out to invite a driver to come in and eat some food at an event we were hosting at our home. Frankie managed to escape through the front gate when Mr. Raquel walked out to speak to the driver. (UMF 51.)

-          On that evening, both Grayson and Frankie were running freely amongst the basketball players and visitors on that evening. Frankie was extremely friendly and affectionate to the visitors. (UMF 53.)

-          Defendants’ two daughters went out and retrieved Frankie a short distance down the road and brought him back to the property. The two daughters were able to retrieve Frankie back without any difficulty or resistance from him. (UMF 54.)

-          Defendants are unaware of any further details of the alleged charging incident other than what is alleged in the correspondence from the homeowners’ association provided to defendants following the December 5, 2021 incident. (UMF 55.)

-          The Fremont Association was only informed about the November 24, 2021 incident after the dog bite incident had already occurred on December 5, 2021. (UMF 64.)

-          The Fremont Association only interacted and communicated with the defendants after the dog bite incident had already occurred on December 5, 2021. (UMF 65.)

Defendants have met their burden. The evidence presented shows that Frankie exhibited no dangerous or violent propensities known by Defendants that would lead Defendants to believe he was a danger to others. Further, is it undisputed that Frankie escaped on November 24, 2021 after Mr. Raquel opened the front gate to speak to a driver. (UMF 51.) Even if there were evidence of Frankie’s alleged propensity to escape, such evidence would not demonstrate a conscious disregard of any dangerous or violent propensities. Therefore, the burden shifts to Plaintiff.

Plaintiff primarily argues that Defendants knew Frankie had a propensity to escape since he left through the open gate on November 24, 2021, and growled at another dog while being trained. Plaintiff conducted the depositions of Defendants’ daughters, Caroline Raquel and Christina Raquel, on October 13, 2023. (PAMF 15–16.) The deposition of Tamar Geller took place on October 30, 2023. Plaintiff offers the following facts from her supplemental separate statement:

-          Daughters of Defendants, Christina, Catherine, and Caroline, were the ones who were most involved with training and caring of Frankie. (PAMF 3.)

-          Defendants had knowledge of the November 24, 2021 incident, prior to the incident concerning Plaintiff because Edwin recalls the fact that Frankie escaped when the gate was left open by Edwin, and Defendants’ daughters, Caroline and Christina, informed Defendants that Frankie had escaped upon their returning home with him the very same day. (PAMF 13.)

-          On November 24, 2021, Defendants’ dog, Frankie, ran down the street and aggressively charged at Dr. Margaret Lee, a neighbor of Defendants, and her 6-yearold daughter while Frankie was growling and barking. Thankfully, Dr. Lee was able to subdue Defendants’ dog before he was able to attack Dr. Lee and her child. (PAMF 14.)

-          Caroline Raquel witnessed Frankie exiting the driveway gate at the University of Pennsylvania event on November 24, 2021. (PAMF 18.)

-          After observing Frankie exit the driveway gate, Christina and Caroline Raquel went after him in their vehicle. (PAMF 19.)

-          Caroline and Christina Raquel located Frankie with Ms. Margaret Lee and her family on the southeast corner of West 8th Street and West Fremont Place. (PAMF 20.)

-          Upon returning to 56 Fremont Place on November 24, 2021, Caroline and Christina Raquel notified their parents that they had located Frankie after he escaped. (PAMF 21.)

-          Tamar Geller trained Frankie approximately 32 times from August 7, 2020 to November 16, 2021. (PAMF 24.)

-          Caroline Raquel informed Ms. Geller that Frankie exhibited aggressive behavior at home when Grayson would eat and Grayson was afraid to eat in Frankie’s presence. (PAMF 30.)

-          While at training with Tamar Geller, Frankie growled aggressively at a Mastiff, which Tamar Geller reported to the Raquel family. (PAMF 31.)

Plaintiff has failed to meet her burden. Here, the evidence does not show that Defendants were aware of any potentially dangerous propensity. Plaintiff does not present evidence to dispute that after the subject incident, Defendants became aware of the Dr. Lee November 24, 2021 incident where Frankie was allegedly growling and barking. Still, the deposition of Michelle Lee demonstrates that Frankie did not bite anyone and that she did not speak to Defendants’ daughters when they retrieved him. (Pl. Exh. 3, Lee Depo, 30:2–11, 31:4–32:1–11.) Similarly, the depositions of Caroline Raquel and Christina Raquel do not show evidence that they told Defendants that Frankie exhibited some dangerous behavior toward Dr. Lee and her family. Additionally, the fact that Frankie growled at another dog while in training is insufficient because it does not suggest a propensity that Frankie would bite another human.

Accordingly, considering the evidence in the light most favorable to Plaintiff including all inferences, Plaintiff has failed to demonstrate a triable issue of fact.  

CONCLUSION AND ORDER

Based on the foregoing, Defendants Edwin Raquel and Leilani Raquel’s Motion for Summary Adjudication is GRANTED.

            Defendants are ordered to give notice of this ruling and file a proof of service of such.