Judge: Daniel M. Crowley, Case: 21STCV16801, Date: 2022-09-20 Tentative Ruling

Case Number: 21STCV16801    Hearing Date: September 20, 2022    Dept: 28

Defendant Invitation Homes Realty California, Inc.’s Motion for Summary Judgment

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND

On May 4, 2021, Plaintiff David Yarovoy (“Plaintiff”) filed this action against Defendants Delores Vargas (“Vargas”), Juliana Dominguez (“Dominguez”) and Invitation Homes Realty California, Inc. (“IHRC”) for strict liability, negligence and premises liability.

On June 23, 2021, Vargas and Dominguez filed an answer.

On June 24, 2021, IHRC filed an answer. On April 1, 2022, IHRC Cross-Complaint against Cross-Complainants Vargas and Dominguez for equitable indemnity and contribution, implied indemnity, declaratory relief, breach of contract and express indemnity.

On July 7, 2022, IHRC filed a Motion for Summary Judgment to be heard on September 21, 2022. On September 6, 2022, Plaintiff filed an opposition. On September 14, 2022, IHRC filed a reply.

Trial is currently scheduled for November 1, 2022.

PARTY’S REQUESTS

IRHC requests the Court grant summary judgment on the basis that IRHC did not breach any duty to Plaintiff.

Plaintiff requests the Court deny the motion on the basis of insufficient service.

LEGAL STANDARD

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.) CCP § 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)  “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”  (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) 

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.)

A land possessor does not have a duty to warn an invitee of obvious dangers but does have a duty to warn about dangerous conditions known to the possessor and those that might have been found by exercise of ordinary care. (Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 27.) Obvious dangerous are those that which that an invitee will perceive “that which would be obvious to him through the ordinary use of his senses.” Id. A land possessor is not liable for damages caused “by a minor, trivial, or insignificant defect in property.” (Caloroso v. Hathaway (2004) 122 Cal. App. 4th 922, 927.)

DISCUSSION

Plaintiff alleges that he was attacked by a dog while on Vargas and Dominguez’s property, which they were renting from IRHC.

IRHC argues that IRHC was not on notice as to the dangerous propensities of the dog prior to the incident and did not owe any legal duty to Plaintiff. IRHC was on notice that Vargas and Dominguez (“Residents”) had a bulldog, pursuant to the animal addendum to their lease. (SS NO. 9). Residents were prohibited from keeping specific dog breeds, including a Pit Bull Terrier. (SS NO. 8). IRHC never exerted any control over dog, on or off the subject premises; they were not on notice that the dog had any dangerous propensities. (SS NO. 12-14.)

Plaintiff alleges that he was bit for the dog when delivering food; Residents purposefully opened the front door and the dog bit Plaintiff. (SS NO. 17.) There are no allegations that the dog escaped due to negligent maintenance—as such, the dog itself must have been a known dangerous condition. IRHC were not on actual or constructive notice that the dog would be considered a dangerous condition. IRHC were not aware of any dangerous propensities nor that the dog was any sort of danger to others. Residents confirmed that there were no other dogs living on the premises other than the agreed upon dog, and that the dog had never shown vicious propensities prior to the incident. (SS NO. 28.) As such, the Court finds that IRHC had no duty to Plaintiff. The burden shifts to Plaintiff.

Plaintiff argues that there was defective notice of the motion. IRHC served the motion on July 7, 2022, 75 calendars days before the date of the hearing. As the motion was only served electronically, it actually needed to be served 2 days prior, on July 5, 2022. Plaintiff cites Robinson v. Woods (2008) 168 Cal.App.4th 1258, which found that granting only a brief continuance was improper; instead, the Court noted that the Court needed to grant at least a 75-day continuance to not violate due process, as the continuance itself constituted the start of another notice period. Id. at 1268. As such, the Court will grant a continuance on the hearing. As trial is approaching, IRHC will need to seek a trial date continuance in order for the motion to be heard prior to trial.

CONCLUSION

Defendant Invitation Homes Realty California, Inc.’s Motion for Summary Judgment is CONTINUED to December 13, 2022, at 1:30 p.m. in Department 28 of the Spring Street Courthouse.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.