Judge Daniel M. Crowley, Case 21STCV31460 2022-10-18 Tentative Ruling

Judge: Daniel M. Crowley, Case: 21STCV31460, Date: 2022-10-18 Tentative Ruling

Case Number: 21STCV31460 Hearing Date: October 18, 2022 Dept: 28

Boris Furman’s Motion for Summary Judgment

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

BACKGROUND

On August 25, 2021, Plaintiffs Armenak Jihanian (“Jihanian”) and Ani Boyadjian (“Boyadjian”) filed this action against Defendants Boris Furman (“Furman”) and Betty Marby (“Marby”) for strict liability, negligence and loss of consortium.

On October 13, 2021, Furman filed an answer and a Cross-Complaint against Cross-Defendant Mabry for equitable indemnity and express indemnity.

On October 29, 2021, Mabry filed an answer.

On August 4, 2022, Furman filed a Motion for Summary Judgment to be heard on October 18, 2022. On September 22, 2022, Plaintiffs filed an opposition.

Trial is currently scheduled for February 22, 2023.

PARTY’S REQUESTS

Furman requests the Court grant summary judgment on all three causes of action.

Plaintiff requests the Court deny the motion.

OBJECTION

Furman’s Objections:

Sustained: 6

Overruled: 1, 2, 3, 4, 5, 7, 8, 9

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.)

Common Law Strict Liability requires that Plaintiff show: (1) Defendant owned, kept, or controlled the dog; (2) that the dog had an unusually dangerous nature or tendency; (3) that before Plaintiff was injured, Defendant knew or should have known that the dog had this nature or tendency; (4) that Plaintiff was harmed; and (5) that the dog’s unusually dangerous nature or tendency was a substantial factor in causing Plaintiff’s harm. Priebe v. Nelson (2006) 39 Cal.4th 1112, 1115. “A landlord who does not have actual knowledge of a tenant’s dog’s vicious nature cannot be held liable when the dog attacks a third person.” Donchin v. Guerrero (1995) 34 Cal.App.4th 1834, 1838.

An action for loss of consortium cannot survive if the underlying claim does not prevail. Meighan v. Shore (1995) 34 Cal.App.4th 1025, 1034-1035.

DISCUSSION

Plaintiffs allege that that Jihanian was attacked by Mabry’s dog while at the subject premises. The subject premises were owned by Furman and had been rented to Mabry since approximately August 2001. (SSUMF 2, 3.) During Marby’s tenancy, she informed Furman she had adopted a dog and that she had the appropriate insurance for the dog. (SSUMF 4.)

Plaintiffs allege that Jihanian knocked on Marby’s front door and, after receiving no response, walked into the backyard to perform pre-arranged electrical work. He was then attacked by Marby’s dog.

Here, Plaintiff establishes that both that Marby’s dog was dangerous, and that Furman knew it was dangerous (Furman and Plaintiff elected not to work at Marby’s house when the dog was outside because it was barking and pulling on its leash (UMF Nos. 12 and 13)). Furman does not dispute in this motion that Plaintiff was injured and that Marby’s dog was a substantial factor in causing the injury. The only issue left is whether Furman had owner, kept, or controlled the dog.

It is undisputed that Furman did not own the dog. (UMF 23) It is also undisputed that all persons hired to work at the house were advised of the dog and told to coordinate with Marby to have her put the dog in the house. (UMFs 6, 20) Based on these facts, the Court finds that Furman did not own, keep, or control the dog, thereby rendering it impossible for Plaintiff to establish that Furman is liable to him for his injuries.

Furman has met his burden on strict liability and negligence; without an otherwise existing cause of action, a claim for loss of consortium fails. The burden shifts to Plaintiff.

Plaintiffs argue that Furman and Jihanian went to the property prior to the date of the incident; on that date, the two observed an aggressive dog that resembled a pit bull tied on a leash, barking at them. (UMF 12-13.). The two made the decision to leave in fear that the dog made the work unsafe. (UMF 12-13.). Approximately two weeks later, Jihanian notified Furman that an inspection was scheduled for the following day and requested that he notify Mabry. When Jihanian returned to perform work for the safety inspection, he was attacked by the subject dog which was left outside and untethered. (UMF 1, 7, 15.) Plaintiffs argue that by seeing the subject dog and deciding to return on a day where the dog was inside, Furman had knowledge that the subject dog had vicious tendencies.

Plaintiff’s opposition is neither sufficient to show evidentiary support for a cause of action for strict liability or negligence. Plaintiff’s opposition does not demonstrate that Furman owned, kept, or controlled the dog. Upon finding the dog leashed outside, both Plaintiff and Furman allegedly left the premises and only returned upon a day in which Mabry could move the dog. If Furman controlled the dog, Furman would be able to move the dog inside. In addition, it is clear that Jihanian was on notice that there was a dog on the property—Jihanian entered the property knowing full well that there was an ‘aggressive animal’ on the property, having seen it himself less than a month prior.

Plaintiffs have failed to meet their shifted burden. The Court grants the motion.

CONCLUSION

Defendant Boris Furman’s Motion for Summary Judgment is GRANTED.

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.