Judge: Daniel M. Crowley, Case: 21STCV34651, Date: 2023-02-16 Tentative Ruling

Case Number: 21STCV34651    Hearing Date: February 16, 2023    Dept: 28

Case Number: 21STCV34651   Hearing Date: February 9, 2023     Dept: 28

Defendants David Kaposy and Lenora Kaposy Motion for Summary Judgment

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

BACKGROUND

On September 20, 2021, Plaintiff Kevin France (“France”) filed this action against Defendants David Kaposy (“David”), Lenora Kaposy (“Lenora”) and Sydnee Lewis-Ennis (“Ennis”) for negligence, negligence per se, strict liability based on common law, strict liability based on dog bite statute and premises liability. Plaintiff later amended the complaint to include Defendants Corealliance, LLC (“Corealliance”) and Anshu Kumar Gupta (“Gupta”)

On December 22, 2021, David and Lenora filed an answer.

On November 21, 2022, David and Lenora (“Moving Defendants”) filed a Motion for Summary Judgment to be heard on February 9, 2023. On January 26, 2023, Plaintiff filed an opposition. On February 3, 2023, Defendants filed a reply.

Trial is currently scheduled for September 20, 2023.

PARTY’S REQUESTS

Moving Defendants request the Court grant summary judgment.

Plaintiff requests the Court to continue the hearing to August 21, 2023, or to deny the motion.

OBJECTIONS

Plaintiff’s Objections:

Sustained: 1, 2, 3, 8

Overruled: 4, 5, 6, 7,

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.)

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.

Civil Code §3342 removes the knowledge requirement in certain situations: 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, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness.

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 all Defendants owned, maintained, controlled, leased or managed the subject premises, and allowed at least four dogs to live at said premises. Moving Defendants owned the subject property, which was being leased by Ennis. (UMF 1, 3.) Plaintiff was attacked on the subject property, by Ennis’s dog, ‘Rockee’. (UMF 6).

Moving Defendant’s Argument

Common law strict liability for a dog bite has five elements: control, dangerous tendencies, knowledge of dangerous tendencies, damages, and proximate cause.  Under CC §3342, a Plaintiff need not show foreknowledge or vicious tendencies, should Plaintiff have been in a public place or lawfully on Defendants’ private property.

First, the Court notes that liability under CC §3342 is only imposed on the dog’s owner. Moving Defendants did not own Rockee; he was solely owned by Ennis. (UMF 6.) Therefore, Moving Defendants cannot be liable under CC § 3342.

Common law strict liability does not require ownership, but rather more general control of a dog. A landlord, like Moving Defendants, can only be held liable when a landlord has actual notice as to a dog’s dangerous propensities. Moving Defendants were not aware of Rockee’s dangerous tendencies. Ennis simply relayed she had two small dogs to Moving Defendants’ relator, who knew that the lease approved up to two pet dogs. (UMF 3-5.) Moving Defendants were not aware of the previous incident involving Rockee acting violently against another dog on the subject premises. Moving Defendants were never informed of the incident and, given that Animal Control was not contacted, had no means to learn about the alleged incident. (UMF 18-20, 31-32.) In the few times David visited the premises, David did not ever see or hear Rockee, as he did not enter the backyard or home. (UMF 23-26.) A witness testified that Ennis actively tried to hide her dogs from discovery. (UMF 29-30.) The evidence shows that Moving Defendants were not on notice as to any of Rockee’s dangerous propensities, defeating any cause of action for common law strict liability.

Plaintiff’s causes of action for negligence and premises liability are also defeated by this evidence. In order for a land possessor to be liable for premises liability, said owner must have actual or constructive knowledge of a dangerous condition that would be non-obvious to an invitee. The evidence shows that Moving Defendants did not have actual or constructive notice of the dangerous condition. Moving Defendants were aware that Ennis owned two small dogs but had no additional information beyond that. They were never made aware of any violent propensities. The evidence shows Ennis actively hid her dogs from Moving Defendants. Moving Defendants reasonably did not discover the dangerous condition as their tenant was actively concealing it from them. Therefore, Moving Defendants cannot be liable for premises liability.

Similarly, there is no duty of care or breach of duty that would give rise to negligence. Moving Defendants were not and could not reasonably be made aware of the dangerous condition—they cannot breach a duty they did not know existed.

Moving Defendants have met their burden as to all causes of action. The burden shifts to Plaintiff.

Plaintiff’s Opposition

Plaintiff first requests the Court grant a continuance on the basis that essential facts may exist but cannot be presented timely. Plaintiff claims he has attempted to serve Gupta, Moving Defendants’ employee and newly added Defendant, with a PMQ Deposition subpoena, but has been unable to do so. Plaintiff claims that discovery from Gupta and Corealliance is necessary as they will likely possess evidence that supports Plaintiff’s opposition, as Gupta was a declarant for Moving Defendants. Plaintiff believes that Gupta will possess evidence pertaining to Defendants’ knowledge of the dogs located on the premises and will allow him to present additional facts.

In order for a court to grant a continuance, Plaintiff must show why the necessary discovery could not have been completed prior to the hearing on the motion. Braganza v. Albertson’s LLC (2021) 67 Cal.App.5th 144, 156. Here, Plaintiff has not made an adequate showing as to why Gupta was not deposed earlier. Moving Defendants provided timely discovery responses on July 29, 2022, identifying Corealliance and Gupta as individuals with knowledge of the incident. Gupta was specifically cited in Moving Defendants moving papers, but Plaintiff still waited two additional months to serve a notice of Gupta’s deposition. Plaintiff has not made a diligent attempt to investigate the claims despite having the information necessary. This is insufficient to warrant a continuance on the hearing.

Plaintiff argues that the evidence offered in support of Moving Defendants is not credible. Plaintiff first cites to Lenora’s statement that she never visited the subject premises, arguing that this contradicts her admission that she “responded to maintenance requests and answered any tenant inquiries at the subject premises on the date of the incident.” The Court does not find this to be in conflict—Lenora did not visit the premises until the date of the incident. Her visiting after a dog attack, or simply responding to maintenance requests is not indicative of her declaration being deceptive.

Plaintiff then states that David’s claim he had no reason to believe that Rockee was a pitbull and potentially dangerous is false. Plaintiff primarily basis this on the fact that David emailed Ennis multiple times asking her to secure her dogs when maintenance workers came to the home. The Court, again, does not find this to be indicative of David being on notice as to any dangerous propensities. Moving Defendants have admitted they were on notice that Ennis owned two dogs. That is not in dispute. However, simply asking a tenant to secure their dogs is not proof that an individual knows that dog to be dangerous. Plaintiff otherwise points to the fact that Rockee regularly roamed in the yard, had toys and kennels in the yard, and would bark when anyone approached. Plaintiff cites to Salinas v. Martin (2008) 166 Cal.App.4th 404, 415, in support of his argument that the presence of a pit bull like Rockee is inherently evidence of a dangerous dog with aggressive tendencies. However, Plaintiff incorrectly quotes Salinas. Salinas did not find the subject dog to be dangerous merely because it was a pit-bull. It specifically found that “[i]t is reasonably foreseeable that a “guard dog” kept in an area open to others may injure someone.” Id. at 416. There is no indication that Rockee was ever presented as a guard dog or anything of the like that may present an inherent dangerousness. All other cases cited are not binding on this Court. As pointed out in Moving Defendants’ reply, California courts do not rely solely upon a dog’s breed to determine if it is dangerous. (Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1371-1372.)

Plaintiff has not offered any evidence that shows Moving Defendants’ evidence is not credible. Furthermore, Plaintiff has offered no evidence indicating that Moving Defendants were on notice as to Rockee’s violent propensities beyond a general statement that David asked Ennis to secure her dogs when maintenance workers were visiting the property. As noted in Moving Defendant’s reply, Plaintiff even stated that Rockee was not always outside, and had a playful and loving disposition. (UMF 21.)

Plaintiff has failed to show any dispute as to material fact or provide a reason as to why discovery was not conducted prior to the hearing. The Court grants Moving Defendants’ motion.

CONCLUSION

Defendants David Kaposy and Lenora Kaposy 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.