Judge: Dennis J. Keough, Case: 2021-01217849, Date: 2023-05-25 Tentative Ruling

Motion for Summary Judgement and/or Adjudication

Defendant, Doris Hyatt’s (“Defendant”) Motion for Summary Judgment (“Motion") is DENIED.

A motion for summary judgment shall be granted where there is no triable issue of any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) “A defendant moving for summary judgment meets his burden of showing that there is no merit to a cause of action if that party has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. [Citation.] If the defendant does so, the burden shifts back to the plaintiff to show that a triable issue of fact exists as to that cause of action or defense… A triable issue of material fact exists ‘if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ [Citation.].” Blue Shield of California Life & Health Ins. Co. v. Superior Court (2011) 192 Cal.App.4th 727, 732.

Defendant moves for summary judgment on Plaintiff, Aaron Matthew Jones’ (Plaintiff) Complaint on the grounds that Defendant had no liability under any theory of negligence or strict liability as she did not own or keep the dog (dog) which bit Plaintiff. Defendant additionally argues that there is nothing she did or did not do which caused or contributed to Plaintiff’s dog bite injuries. Further, Defendant argues that assuming she owed Plaintiff any duty of due care, there is no evidence that Defendant breached any such duty.

Defendant’s Declaration in Support of Motion states: “It is my understanding that a dog bite incident took place on July 18, 2020 at the Lago Santa Margarita Beach Club located at 21472 Avenida De Los Fundadores in Rancho Santa Margarita, California. [¶] I was not present at the time the dog bite incident occurred and did not observe or witness it in any way. [¶]While I was aware that my son owned a dog, at no point has any dog belonging to my son ever stayed at my house at any time. Nor have I ever brought or purchased food for any dog belonging to my son, or accompanied it to a veterinarian for any reason. [¶]I am aware that my son listed my address down when he applied for a dog license. It is my belief that he did so because my son has not had a steady or regular residence of his own for several years, as he has often been homeless or lived in public housing. His ability to receive mail has often been difficult, which is likely why he put my address down when he applied for a dog license. [¶] Prior to the dog bite incident that is the subject of this case, I never had any knowledge of any prior acts of aggression, biting or vicious acts by any dog that was owned by my son.” (Defendant Decl., ¶¶  3, 4, 8, 10, 11.)

Further, Defendant denied in responses to Request for Admissions that she owned the Dog, that she caused the incident, that she was aware that the Dog had bitten any other person prior to the Incident, that the Dog had any tendency to bite people, or that the Dog posed any danger to others, or that she warned others that the Dog may bite. (Declaration of Charles H. Harmon; Exhibit C, Nos. 2, 3, 9, 10, 12.)

The court finds that based on the submitted evidence, Defendant has met her burden as the moving party of showing that there is a defense to Plaintiff’s claims because Defendant has submitted evidence demonstrating that she is not the owner of the Dog.

In Opposition, Plaintiff contends that a triable issue exists with regard to whether Defendant was an owner or co-owner of the Dog for the following reasons: (1) Defendant represented herself to be an owner of the Dog to Animal Control when they came to collect the Dog after the incident, and (2) Defendant wrote her address on the dog license for the Dog and did not take affirmative steps to change the license address.

Plaintiff also cites to O’Rourke v. Finch (1908) 9 Cal.App.324, 325-326 (O’Rourke) for the argument that an individual who pays dog licensing fees should be considered the dog’s owner.

However, O’Rourke does not stand for this proposition. In O’Rourke, Plaintiff, a minor, was allegedly bitten and wounded by a dog alleged to have been kept by defendants and allowed to run at large. (O’Rourke, supra, 9 Cal.App. at 325.) The submitted evidence showed that appellant was seen on walks with the dog, that he bought the dog a collar, and that he paid the licensing fees for the dog. (Id.) Based on these facts together, the court notes that “the jury might well have believed that appellant was the owner of the dog at the time plaintiff was injured.” (Id. at 325-326.) Further, the O’Rourke ruling notes: “There was no error in refusing the defendants' requested instruction to the effect that one who treats a dog as living at his house and undertakes to control his actions is the owner of the dog within the meaning of the law.” (Id. at 326.)

Therefore, pursuant to O’Rourke the court may consider paying licensing fees as one of many factors to determine the legal owner of a dog.

Here, Defendant testified that she was made aware that Lobo was involved in an incident on 7-18-20. (Notice of Lodging (Defendant Deposition), 23:19-23.) At the time she was in the car with co-Defendant, she did not know whether he had spoken with anyone from Animal Control or the police. (Id.; 34:19-22.) Defendant testified that she met Animal Control at co-Defendant’s apartment and opened the door so that they could retrieve Lobo. (Id.; 38:2-24.) However, Defendant also testified that she agreed with co-Defendant to hand over the key to Animal Control for extraction of Lobo, as follows:

Q: So you recognized the need for Mr. Valenzuela to get professional help. And is that when – did you drive to his home and then take him to the hospital?

A: Yes.

Q: Was it during that interaction where you obtained the key to his apartment?

A: Yes.

Q: And did you inform him that you were going to coordinated with Animal Services to hand over Lobo?

A: Yes, we agreed that’s what should happen.

(Id.; 41:7-18.)

Defendant testified as follows regarding the address on the dog license for Lobo:

Q: Now, the license for the dog does not list 185 Aliento as the residence. Correct?

A: Yes, that’s correct.

Q: The dog license lists your address at 12 Pantano as the residence; correct?

A: Yes. It did, but not anymore.

…

Q: I don’t have any documents regarding that correction. Do you recall when you corrected that information?

A: No, I don’t.

Q: Was it after the incident or before the incident?

A: I think it was after the incident.

Q: Do you recall whether it was after you were named as a defendant or before you were named as a defendant?

A: No. When they came to my door trying to get the dog, I told them that the dog doesn’t live here. My son does not live here. So I told them the correct address. But on the license I don’t know that they went to their office and changed that.

(Id.; 44:8-45:7.)

Further, Defendant testified that although she received a second license for Lobo with her address, she only wrote “return to sender” on the envelope but did nothing else to change the address. (Id. at 45:16-46:8.) Defendant also testified that her son requested her to do the payment for Lobo’s license because “he didn’t know if he would get the license back from the licensing Mission Viejo Animal Control” (Id.; 56:10-13.) However, she also stated: “I think he put that address when he first got the dog.” (Id.; 56:14-15.)

Defendant also testified that co-Defendant told her he would sit on the benches outside the Beach Club during his walks with Lobos. (Id.; 67:21-68:8.)

Liberally construing the submitted evidence in support of Plaintiff, the court finds that Plaintiff has demonstrated the existence of a triable issue with respect to whether Defendant is an owner or co-owner of the Dog because Defendant conferred with co-Defendant to surrender the Dog to Animal Control and because Defendant did not take affirmative steps to change the address listed on the Dog’s license to co-Defendant’s address once she discovered that it was her address listed on the Dog’s license.

Therefore, because Plaintiff has met his burden of demonstrating the existence of a triable issue of fact, Defendant’s Motion is DENIED.

Plaintiff is to give notice.