Judge Jill Feeney, Case 21STCV07554 2022-08-12 Tentative Ruling

Judge: Jill Feeney, Case: 21STCV07554, Date: 2022-08-12 Tentative Ruling

Case Number: 21STCV07554 Hearing Date: August 12, 2022 Dept: 30

Department 30, Spring Street Courthouse

August 12, 2022

21STCV07554

Motion for Summary Adjudication by Defendants Robert Huebel and Holly Ann Hannula

DECISION

The motion is denied.

Moving party is ordered to provide notice.

Background

This is an action for strict liability and negligence arising from a dog attack which took place in September 2020. Plaintiff April Mouton filed her Complaint against Defendants Robert Huebel and Holly Ann Hannula on February 25, 2021. Plaintiff alleges Defendants are strictly liable for her damages after their pit bull attacked her. Additionally, Plaintiff argues that Defendants negligently owned, controlled, kept, housed, trained, or failed to train, and failed to warn of their pit bull.

Defendants filed their motion for summary adjudication on April 15, 2022.

Summary

Moving Arguments

Defendants argue that Plaintiff’s claim for strict liability must fail as a matter of law because the veterinarian’s rule is applicable to bar her claim. Additionally, Plaintiff’s claim for strict liability must fail as a matter of law based on the doctrine of assumption of the risk.

Opposing Arguments

Plaintiff argues that the veterinarian’s rule does not apply because Plaintiff did not treat Defendants’ dog in a strange environment. Additionally, assumption of the risk does not apply in this case because Plaintiff did not know the risks involved in watching a dog. Assumption of risk may show comparative fault in this case, which would not bar Plaintiff’s claim. Lastly, the motion for summary adjudication must be denied or the hearing must be continued because essential evidence may exist which cannot be presented.

Reply Arguments

Defendants argue that the veterinarian’s rule does apply in this case because Plaintiff was hired to dog sit. Defendants further argue that Plaintiff’s claim is barred by the assumption of the risk doctrine because she was a dog sitter who should have known the risks of dog sitting.

Evidentiary Objections

Defendants’ objections to Plaintiff’s evidence:

Sustained: 3 (as to the photographs)

Overruled: 1, 2,

Plaintiff’s objections to Defendants’ evidence:

Plaintiff raises objections to Defendants’ evidence filed with their reply.

In relation to dispositive motions, new evidence lodged after opposition has been filed should normally not be considered. See, e.g., San Diego Watercrafts v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 313 (While Code Civ. Pro. section 437c, subd. (b) provides for reply papers, it makes no allowance for submitting additional evidence or filing a supplemental separate statement.); See also Weiss v. Chevron U.S.A., Inc. (1988) 204 Cal. App. 3d 1094, 1098, 1099 (The Court cannot consider new evidence filed for the first time after the opposition to a summary judgment or adjudication motion has been filed, without first considering opposing parties’ due-process rights, or allowing a continuance for a supplemental opposition.); Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362.

Plaintiff’s objections 1-6 as to Defendants’ supplementary evidence are sustained.

Legal Standard

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (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.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., § 437c, subd. (p)(2).) “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 the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., section 437c, subd. (c).)

Civil Code §3342(a) provides that, “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 owners of the dog, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness. . ..” Civil Code section 3342, subd. (a), known as the “dog bite” statute, allows one to recover without having to show fault. “Subdivision (a) of section 3342 has been recognized as imposing a duty of care on every dog owner to prevent his or her dog from biting persons in a public place or lawfully in a private place. (Davis v. Gaschler (1992) 11 Cal.App.4th 1392, 1399.) Simply put, the statute is designed “to prevent dogs from becoming a hazard to the community” (ibid.) by holding dog owners to such a standard of care, and assigning strict liability for its breach.” (Priebe v. Nelson (2006) 39 Cal.4th 1112, 1120.)

Discussion

Defendants’ motion for summary adjudication turns on whether Plaintiff assumed the risk of Defendants’ dog biting her when she accepted work dog sitting.

Here, Defendants claim that Plaintiff’s cause of action for strict liability under the dog bite statute are barred by the veterinarian’s rule and because she was an experienced dog sitter who assumed the risk of injury as a part of her occupation.

Veterinarian’s Rule

The veterinarian’s rule is an application of the primary assumption of risk doctrine. Where a dog owner contracts with a veterinarian to treat his or her dog, the owner is generally exempt from liability should the dog bite or injure the veterinarian or his assistant during medical treatment. (Priebe 39 Cal.4th 1112 at p. 1115.) The risk of dog bites during treatment is a specific known hazard to the veterinary occupation. (Id at 1123.) The veterinarian determines the method of treatment and handling of the dog and is therefore in the best position to take protective measures against the risk of being bitten. (Id at 1124.)

Those in similarly situated professions, such as dog groomers and kennel technicians, who are trained and paid professionals, are in the best and usually only position to take necessary safety precautions to avoid being bitten. (Priebe 39 Cal.4th 1112 at 1131.) A dog owner, who has relinquished the care, custody, and control of the dog to the veterinarian or similar professional trained to care for and safely handle dogs, owes no duty to the veterinarian or other similar professional to prevent any conduct on the part of the dog. (Id at 1129.)

Here, Defendants’ evidence shows that they rescued their pit bull, Elron, several years ago and took him into their home. (UMF Nos. 3-5.) Elron initially suffered from anxiety. (UMF No. 6.) After training and proper care, Elron became Defendants’ family dog. (UMF No.7.) Plaintiff considered herself to be an experienced dog sitter, having “lots” of prior experience watching dogs, including pit bulls. (UMF Nos. 8-9.) Prior to the subject incident, Plaintiff watched over an English bulldog that she co-owned with her then-boyfriend. (UMF No. 12.) Plaintiff also grew up with mixed breed dogs and watched her siblings’ dogs. (UMF No. 12.)

Q. Had you had any prior experience watching dogs before the incident?

A. Yes. Yeah. Lots.

Q. Okay. Could you tell me about that?

A. Yeah. I mean, you know, I, actually, did watch another friend’s pit bull mix in previous years here and there for maybe, like, one or 2 days at a time.

Yeah. My – prior to that, you know, a boyfriend and I had a dog together, watching that dog, and stuff like that.

Q. What kind of dog was that?

A. That was an English bulldog.

Q. So aside from watching, like, your friend’s pit bull mix and having an English bulldog, any other type of dog watching experience?

A. Yeah. Sibling – my siblings have dogs, retriever mixes.

(Mouton Depo. 83: 24-25, 84:1-13.) In September 2020, Defendants asked Plaintiff to care for Elron and housesit for a week in exchange for $500. (UMF No.16.) Plaintiff’s roommate, Defendants’ nanny, suggested that Plaintiff watch Elron. (UMR No. 17).

Q. So how was it that you came to dog sit and housesit for the defendants?

A. My roommate suggested it as that -- because they were all going out of town. My roommate is their nanny or was their nanny.

Q. Okay. So the nanny and the defendants -- they're all going out of town. The nanny, slash, roommate tells you “Hey, why don’t you dog sit, housesit for the defendants”; is that correct?

A. Yes.

Q. Did you guys have any type of written agreement?

A. No.

Q. And how much were the defendants going to pay you for dog and housesitting?

A. I think it was 500 for the week.

Q. Were you supposed to be at the house pretty much the whole day, or was it just that you would come by and check up on the house?

A. I was supposed to stay at the house, yeah, and I would be there majority of the day.”

Q. Do you know if this was going to be a reoccurring thing with the defendants where, you know, in the future, if they went out of town, you would – you were going to come by and dog and housesit for them, or was this kind of a one off situation

…

A. I imagined they’d inquire in the future situations, but as far as this, this was just a one off.

(Mouton Depo. 72: 20-25, 73: 1-25.) After Plaintiff agreed to house sit and dog sit, Defendants instructed her to separate Elron from the cleaning person, gardeners, and any other strangers visiting the property while Defendants were away. (UMF No. 18.) Defendants instructed Plaintiff to give Elron a treat upon first meeting him, walk him, and feed him.

A. No. It was more just, you know, they wanted me to meet the dog prior, you know, those 2 days to get comfortable so the dog could also be comfortable. And then I was instructed to make sure the dog was locked in the side yard when the maids came so that he wasn’t, like free and able to run around when they were there.

Q. Any instructions, like specific to the dog that were given to you about, you know, how to watch him, how to treat him?

A. Yeah. It was mainly just, you know, the routine instructions of I was instructed to give him a treat when I first got there, which is what, you know, I did the 2 days prior…Yeah. Give him a treat upon first seeing him, the normal instructions of when he should be fed and walked.

(Mouton Depo. 81:25, 82:1-16.)

Defendants’ evidence does not establish that the veterinarian’s rule bars Plaintiff’s cause of action for strict liability under the dog bite statute. In cases where California courts have extended the veterinarian’s rule to other occupations, the essential elements included that the victim was a paid and trained professional with special skills in the care and handling of dogs which were commercially offered to the public. (Priebe 39 Cal.4th 1112 at p. 1125.)

Here, Plaintiff, though she had some experience dog sitting, did not hold herself out as a professional with any special skills handling dogs. To the contrary, Plaintiff testified she had no knowledge on training dogs other than general knowledge about dogs:

Q. Do you know even about training dogs?

A. No. Just general. General dog knowledge.

(Mouton Decl., 84: 16-17.) Defendants do not provide evidence that Plaintiff is in business as a trained professional who handles dogs regularly in exchange for compensation. Plaintiff’s past experience watching her own dogs or those of family and friends show Plaintiff only occasionally watched dogs as personal favors, not as a commercial enterprise. Plaintiff obtained the opportunity to watch Elron through her roommate, Defendants’ nanny, and described it as a one-off job. Plaintiff’s responses to Special Interrogatories indicate she has a history of employment as a personal assistant, food service worker, actress, writer, and producer. (Defendants’ Compendium, Exhibit 3, p.16-17.) Defendants’ instructions to Plaintiff regarding how Elron should be watched, which included when he should be walked, when he should be fed, and that he should be kept away from the maids, did not require Plaintiff to have special skills handling dogs.

Defendants’ evidence demonstrates that at the time of the incident, Plaintiff was untrained, previously infrequently watched dogs for friends and family, and did not have any previous work experience that would show she was a professional who had the knowledge necessary to safely handle dogs. Thus, Defendants do not meet their burden of proving that there is no genuine issue of material fact as to the applicability of the veterinarian’s rule to this case. Thus, the burden does not shift to Plaintiff.

Defendants’ motion for summary adjudication is denied as to the veterinarian’s rule.

Assumption of Risk

Defendants next argue that Plaintiff assumed the risk of being bitten by Elron because she agreed to dog sit Elron with full understanding of his temperament. Defendants argue that they owed Plaintiff no duty to protect her from being bitten because she entered into an agreement to take care of and control Elron in exchange for $500.

California's assumption of risk doctrine takes two forms. Primary assumption of risk is a complete bar to recovery. It applies when, as a matter of law, the defendant owes no duty to guard against a particular risk of harm. Secondary assumption of risk applies when the defendant does owe a duty, but the plaintiff has knowingly encountered a risk of injury caused by the defendant's breach. Liability in such cases is adjudicated under the rules of comparative negligence. (Knight v. Jewett (1992) 3 Cal.4th 296, 308.)

Civil Code section 3342 imposes a duty of care on every dog owner to prevent his or her dog from biting persons in a public place or lawfully in a private place. (Davis v. Gaschler (1992) 11 Cal.App.4th 1392, 1399.) The veterinarian’s rule is the only doctrine which would, as a matter of law, relieve dog owners from their duty. Here, Defendants failed to meet their burden of showing the veterinarian’s rule applied. Defendants owed Plaintiff a duty to prevent their dog from biting her. Thus, the relevant doctrine is secondary assumption of risk. Thus, Plaintiff’s recovery is not completely barred even if Plaintiff knowingly encountered a risk of injury.

The defense of assumption of the risk is available in spite of the language of Civil Code, section 3342. (Burden v. Globerson (1967) 252 Cal.App.2d 468, 470.) “While the Dog Bite Statute does not found the liability on negligence, good morals and sound reasoning dictate that if a person lawfully upon the portion of another's property where the biting occurred should kick, tease, or otherwise provoke the dog, the law should and would recognize the defense that the injured person by his conduct invited injury and therefore, assumed the risk thereof.” (Smythe v. Schacht (1949) 93 Cal.App.2d 315, 321–322.) The doctrine of assumption of risk presupposes the existence of a dangerous situation or condition known to, or which reasonably should have been known to the injured party, who nevertheless chooses to enter upon or to remain within the area of risk. (Id. at 322.)

Defendant’s evidence shows that Plaintiff had been informed that Elron was “friendly but sensitive to strangers and other dogs,” meaning Elron was “not comfortable with strangers.” (UMF Nos. 22-23.) Prior to accepting the job to watch Elron, Plaintiff heard from another friend that Elron was “growly and snappy.” (UMF Nos. 26-27.) Defendants arranged for Plaintiff to meet Elron so the two could get familiar with each other. (UMF No. 28.) When Plaintiff first met Elron, he growled at her. (UMF No. 30.) Plaintiff and Defendants believed Elron growled because Plaintiff wore a mask and it was their first meeting. (UMF Nos. 31-32.) After taking a walk around the neighborhood with Plaintiff and Defendant Huebel, Elron stopped growing at Plaintiff and became more friendly. (UMF No. 34.) During Plaintiff’s second visit to Defendants’ home, Elron was hesitant, but did not growl at Plaintiff. (UMF Nos. 36-37.) Plaintiff and Defendant Huebel took Elron on another walk without incident. (UMF No. 38.) Plaintiff did not have concerns over watching Elron when she began watching him for Defendants. (UMF No. 40.) When Plaintiff arrived to watch Elron, Plaintiff understood Elron was sensitive to strangers and believed in general, dogs know when their family leaves. (UMF No. 45.) At the time Plaintiff was bitten, Elron was rolled over on his back with his stomach exposed. (UMF No. 48; Mouton Depo. 85:22-86:4.) Elron bit Plaintiff when she reached out to pet him. (UMR No. 49.)

Defendant’s evidence does not show that there is no genuine issue of material fact about whether Plaintiff knew or should have known of Elron’s dangerous condition. Plaintiff visited Defendants’ home on two occasions, during which she walked Elron without incident and was able to pet him. Although she knew he was sensitive to strangers, Plaintiff had met Elron twice for the express purpose of becoming familiar with him. After her visits, Plaintiff had no concerns about watching Elron. At the time of the incident, Elron was rolled over on his back and did not display hostile behavior that would have made the danger obvious. There is no evidence that Plaintiff’s actions provoked the attack. Defendant’s evidence does not show that Plaintiff would have known there was a risk of danger that she would be bitten by Elron. Defendants fail to meet their burden of showing no issues of material fact exist over whether Plaintiff assumed the risk of Elron biting her. The burden does not shift to Plaintiff.

Defendant’s motion for summary adjudication is denied as to assumption of the risk.