Judge: Daniel M. Crowley, Case: 21STCV34651, Date: 2023-03-10 Tentative Ruling

Case Number: 21STCV34651    Hearing Date: March 10, 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. The Court continued the hearing on the motion to February 16, 2023. On January 26, 2023, Plaintiff filed an opposition. On February 3, 2023, Defendants filed a reply. The Court continued the hearing on the motion to March 10, 2023, to allow parties to submit supplemental briefs.

On February 23, 2023, Plaintiff filed a supplemental brief. On March 2, 2023, Moving 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 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

Supplemental Briefs

The Court requested parties submit supplemental briefs on Defendants’ duty to inspect the property upon renewal of the lease and what that inspection would have revealed.

Plaintiff alleges that Moving Defendants breached their duty to conduct an inspection of the premises upon renewal of the lease; Moving Defendants, as landowners, may not delegate that duty to third-party maintenance personnel. Plaintiff cites to Srithong v. Total Investment Co. (1994) 23 Cal.App.4th 721, 726, a case in which a Plaintiff was injured by maintenance workers who were mopping tar on a roof, when said tar seeped through the ceiling and fell onto Plaintiff’s arm. The Court held that a landlord cannot escape liability for failure to maintain property in a safe condition by delegating such duty to an independent contractor; it does not specifically address any duty to inspect. It provides that a commercial landowner is liable for the negligent failure of a contractor to maintain a property as safe via vicarious liability. (Id. At 726-727.) There is no discussion as to a residential landlords’ obligations; regardless, the Court evaluates Plaintiff’s argument. Plaintiff states that Defendants routinely sent their agents to perform property maintenance on their behalf by hiring maintenance people, gardeners, fencers, handymen and plumbers to do work. Plaintiff argues that regular trips to the house by agents of Moving Defendants would have put Moving Defendants on notice as to Rockee. Plaintiff cites to 1) the fact Rockee would bark anytime someone would knock on the door; 2) that there was a large kennel in the yard of the house; 4) Rockee would bark and run up to the gate when anyone approached the yard; 5) Rockee was a large dog; and 7) Rockee would growl at strangers. An agents actual or constructive knowledge of a dangerous condition is imputed to their principal, and thus, if any agent had notice, Moving Defendants would be operation of law. Hall v. Rockcliff Realtors (2013) 215 Cal.App.4th 1134, 1141.)

Plaintiff also argues that Moving Defendants ‘understood’ that pitbulls are aggressive and dangerous. Lenora testified she had seen many pitbulls being vicious, and David testified he believed pitbulls are aggressive and dangerous.

Plaintiff cites to Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1134, in which the Portillo court found that a landowner has a duty to exercise reasonable care in the inspection of premises for dangerous conditions, including potential dogs being kept on the premises. The Court notes that this is specifically in regards to premises liability but may be applied to a common law dog bite claim. In both, one of the requirements is that a landowner was or should have been on notice as to the dangerous condition (Rockee). Ennis’ original lease expired before the alleged incident, and parties either entered into a new lease or it transferred to a month to month lease. A landlord has a duty to inspect for matters which would have been disclosed by a reasonable inspection. (Mora v. Baker Commodities, Inc. (1989) 210 Cal.App.3d 771, 781-782.)            As noted in Moving Defendants’ reply, Mora specifically is focused upon the obligations of a commercial landowner. No case law specifically has addressed a landowners obligation to inspect the renewal of a residential lease, and it would be unreasonable to impose such a duty on a month to month tenancy. There is no case law to support that a residential landlord has an obligation to inspect the premises of a renewing tenant without any report or indication of a potential hazard. The lease as written did not require an inspection prior to renewal. The Court does not find there was a duty to inspect the property prior to renewal that would have resulted in Moving Defendants being on notice.

In reviewing the facts provided, the Court does not find there is evidence that the agents were on notice that there was a dangerous dog on the premises. The facts establish that Rockee was a large pitbull who would bark and growl at strangers. As stated previously, 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.) There must be additional factors. A dog being large does not make it more dangerous. If barking or growling alone was indicative of a propensity for dangerous tendencies, there would be little need to require the element be shown. Barking or growling at strangers is a common behavior for dogs of all breeds and many temperaments. Generally speaking, dangerous tendencies consist of aggressive or violent behavior—none of which Plaintiff can cite that Moving Defendants or Moving Defendants’ agents would have been on notice regarding.

The Court grants the 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.

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