Judge Audra Mori, Case BC708118 2022-10-13 Tentative Ruling

Plaintiff Ismar Morataya (“Plaintiff”) filed this action against Defendants Kendrick Yanai (“Yanai”) and Rebecca Sabol (“Sabol”) (collectively, “Defendants”) for damages relating to dog bite incident. The complaint (1) strict liability, (2) negligence, (3) violation of Civil Code § 3342, (4) violation of Civil Code § 3342.5, (5) negligence, (6) premises liability, and (7) negligent infliction of emotional distress.

Plaintiff now moves for summary judgement against Defendants.[1] Any opposition to the motion was due on or before September 29, 2022. As of October 7, 2022, Defendants have not filed any opposition.

Plaintiff asserts that he was working as part of a gardening crew at the property where Defendants reside when their dog attacked Plaintiff. Plaintiff provides that he served Requests for Admissions on Defendants on March 15, 2021, and that after Defendants failed to respond, Plaintiff filed motions to deem the RFAs admitted. The motions were granted on August 25, 2021. Plaintiff contends that as a result of facts and documents deemed admitted on August 25, 2021, there are no triable issues of material fact and Plaintiff is entitled to judgment as a matter of law. Plaintiff provides the RFAs served on Defendants are identical, and Defendants admitted liability, that their dog bit Plaintiff due to their negligence, and that their negligence caused Plaintiff harm.

Plaintiff requests judicial notice be taken of Exhibits 1-3 attached to the motion, which are the RFAs served on Defendants and the Court’s August 25, 2021 granting Plaintiff’s motion to deem RFAs admitted. The request is granted pursuant to Evidence Code § 452(d).

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (CCP §437c(c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A plaintiff moving for summary judgment or summary adjudication bears the initial burden of “prov[ing] each element of the cause of action entitling the party to judgment on that cause of action.” (CCP § 437c(p)(1).) To meet the initial burden of proof, a plaintiff moving for summary judgment or summary adjudication bears the same burden of proof a plaintiff would have at trial. (Aguilar, 25 Cal.4th at 851.) Upon meeting that burden, the burden shifts to the defendant “to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (CCP § 437c(p)(1); see Aguilar, at 853 [“All that the plaintiff need do is to ‘prove[ ] each element of the cause of action.’ ”].)

Here, pursuant to Plaintiff’s RFAs deemed admitted against each of the Defendants, Defendants’ dog attacked Plaintiff on January 24, 2022. (UMF 4.) Defendants breached their duty of care to Plaintiff, and Plaintiff sustained injuries to his left arm, wrist, and hand as a result of the incident. (UMF 13-14.) Defendants’ negligence was the proximate and substantial cause of Plaintiff’s injuries. (UMF 15-16.) Plaintiff identifies particular medical charges he incurred as a result of the incident. (UMF 29-36.) Plaintiff avers that as a result of the incident, he sustained general and special damages for which Defendants are liable, jointly and severally. (UMF 48-50.)

In moving for summary judgment, Plaintiff must prove every element of his claims against Defendants. One element of each of Plaintiff’s causes of action is damages. (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687 [“The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages.”]; see also Civ. Code 3342 [“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…”].) Plaintiff does not identify a specific amount of damages sought in his motion for summary judgment or establish that his damages are capable of exact determination. For instance, Plaintiff asserts he sustained general damages as a result of the incident, but it is well established that there is no prescribed method to calculate awards of general damages. (See Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1078-80.) “The law does not prescribe a definite standard or method to calculate compensation for pain and suffering…” (Id. at 1080.)[2]

While Plaintiff submits evidence showing he incurred some medical charges and that Defendants admitted their negligence, Plaintiff does not identify or establish the exact amount of damages to which he is entitled.

Hon. Audra Mori

Judge of the Superior Court

[1] Plaintiff’s motion fails to comply with California Rules of Court, Rule 3.1350(g). Plaintiff submits more than 200 pages of evidence but did not separately bind and file the evidence with a table of contents making it difficult to consider the evidence upon which Plaintiff seeks to rely. For this reason alone, the motion could be denied. As the Court has discretion to consider papers that are procedurally defective, the Court will address the motion. Nevertheless, Plaintiff’s counsel is advised that failure to comply with all applicable Rules of Court in the future may result in the Court taking matters off calendar.

[2] See also Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 300, “The difficulty inherent in assessing damages is plainly evident when noneconomic damages such as pain and suffering are at issue: “ ‘One of the most difficult tasks imposed upon a jury in deciding a case involving personal injuries is to determine the amount of money the plaintiff is to be awarded as compensation for pain and suffering. No method is available to the jury by which it can objectively evaluate such damages, and no witness may express his subjective opinion on the matter. [Citation.] In a very real sense, the jury is asked to evaluate in terms of money a determent for which monetary compensation cannot be ascertained with any demonstrable accuracy.’ ” [Citation].”