Judge: Katherine Chilton, Case: 22STLC01891, Date: 2023-04-04 Tentative Ruling

Case Number: 22STLC01891     Hearing Date: April 4, 2023    Dept: 25

PROCEEDINGS:      MOTION FOR SUMMARY JUDGMENT, or alternatively, SUMMARY ADJUDICATION

MOVING PARTY:   Defendants 5 STAR K-9 ACADEMY, INC. dba ROYAL DOG ACADEMY erroneously sued and served as MASTER DOG TRAINING and ROYAL DOG ACADEMY and MAXIM BASYRO

RESP. PARTY:         Plaintiff James White

MOTION FOR SUMMARY JUDGMENT, or alternatively,

SUMMARY ADJUDICATION

(CCP § 437c)

TENTATIVE RULING:

The Motion for Summary Judgment, alternatively Summary Adjudication, filed by Defendants 5 Star K-9 Academy, Inc. and Maxim Basyro is DENIED.

SERVICE: 

[X] Proof of Service Timely Filed (CRC 3.1300)             OK

[X] Correct Address (CCP 1013, 1013a)                                     OK

[X] 75/80 Day Lapse (CCP 12c and 1005 (b))                     OK

OPPOSITION:          Filed on March 20, 2023.                                    [   ] Late                      [   ] None

REPLY:                     None filed as of April 2, 2023.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

On March 23, 2022, Plaintiff James White (“Plaintiff” or “White”) filed an action against Defendants Maxim Basyro (“Basyro”), Master Dog Training (“MST”), and Royal Dog Academy (“RDA”) (collectively “Defendants”) for general negligence.

On May 27, 2022, Defendants collectively filed an Answer to the Complaint.  On September 8, 2022, defense counsel filed a Notice of Errata stating that the Answer was mistakenly filed on behalf of Defendants MST, RDA, and Basyro, instead of 5 Star K-9 Academy, Inc. dba Royal Dog Academy, erroneously sued and served as Master Dog Training and Royal Dog Academy (“Royal Dog Academy” or “RDA”).

On December 13, 2022, Defendants RDA and Basyro filed a Motion for Summary Judgment or in the alternative, Summary Adjudication (“MSJ”).

On March 20, 2023, Plaintiff filed an Opposition to the MSJ.  No reply has been filed.

II.              Judicial Notice

Defendants filed a Request for Judicial Notice (“RJN”) of the following documents:

1)     Exhibit 4 – Plaintiff’s Complaint, filed on March 24, 2022.

2)     Exhibit 5 – Defendants’ Answer, filed on May 27, 2022.

3)     Exhibit 6 – Plaintiff’s request for default, filed on May 9, 2022.

4)     Exhibit 7 – Court’s denial of Plaintiff’s request for default, filed on May 11, 2022.

5)     Exhibit 8 – Yelp results for Dog Training Services within 5 miles of Plaintiff’s residence.

6)     Exhibit 9 – State Public Health Officer’s list of Essential Critical Infrastructure workers.

According to Evidence Code § 452, the Court may take judicial notice of matters that include records or rules of another court and “facts or propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.”

The Court finds that it is not necessary to take judicial notice of Exhibits 4-7, as these are documents in the instant case, but grants Defendants’ request as to Exhibits 4-7, pursuant to Evidence Code § 452.

However, Defendants’ request for judicial notice of Exhibits 8 and 9 is DENIED.  (Joley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 888 [concluding that there is no “official web site” provision for judicial notice in California” and simply being on the Internet does not make information indisputable].)

III.            Legal Standard

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law.  (Code Civ. Proc. § 437c(c).)  The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition.  (Villa v. McFerren (1995) 35 Cal.App.4th 733, 742-743.)  Thus, “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 (citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

When a plaintiff seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought.  (Code Civ. Proc., § 437c(p)(1).)  When a defendant seeks summary judgment, he/she has the “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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.”  (Code of Civ. Proc. § 437c(p)(2).)

The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden.  (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832, 840.)  Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial.  (Code Civ. Proc. § 437c(p).)  The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162.)  Summary judgment must be granted “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.)

As to any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden-shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute.  (Code Civ. Proc., § 437c(f)(1).)  “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (Ibid.)

IV.           Discussion

A.    Defendants’ Motion for Summary Judgment

Defendants seek a court order granting summary judgment in their favor and against Plaintiff on the ground that “no triable issue of material fact exists” as to Plaintiff’s claim for general negligence because Plaintiff signed a liability waiver.  (MSJ p. 2.)

Plaintiff asserts a cause of action for “general negligence” based on the following facts.  On October 4, 2021, Plaintiff left his dog, valued at $12,000, in the care of Defendants for a six-week live-in training program.  (Compl. p. 4.)  The following day, Defendant Basyro “negligently allowed the dog to slip away from him and run into traffic, where he was hit and killed by an oncoming car.”  (Ibid.)  Plaintiff alleges that each Defendant owed a duty of care to Plaintiff “to keep his dog safe while in their care” as they “hold themselves out as master dog trainers, at a very high level of expertise.”  (Ibid.)  Defendants breached this duty because they allowed the “untrained dog…to be on a busy street, and to get away from Defendants.”  (Ibid.)  Defendants’ breach of their duty “was the direct cause of the death of the dog, Indy, and as a result, Plaintiff suffered the damages described below.”  (Ibid.)  Following the incident, Defendants attempted to provide the dog with medical assistance by taking him to a nearby emergency veterinarian, however, he could not be saved and passed away.  (Ibid.)  The dog was cremated.  (Ibid.)  Plaintiff seeks damages as follows: $12,000 for the value of the dog, $594 for the emergency vet bill, and $280 for the cost of cremation, for a total of $12,874.  (Ibid.)

Defendants submit the declaration of Maxim Basyro, “Master Trainer” at 5 Star K-9 Academy, dba Royal Dog Academy and Master Dog Training (“RDA”).  (Basyro Decl. ¶ 4.)  Basyro has been employed at RDA since 2017 and has been responsible for “training animals, working with the customers to complete the customer intake forms, which includes the release of liability.”  (Ibid.)  In this capacity, he has “access to the records kept in the ordinary course of business.”  (Ibid.)  Basyro states that he was assigned to Plaintiff’s dog Indy for the six-week live in training program.  (Ibid. at ¶¶ 5-6.)  Basyro “witnessed Plaintiff sign his name at the beginning of the ‘Liability’ section and sign his name at the end of the “Customer” Agreement the day before the accident, on October 4, 2021.”  (Ibid. at ¶ 7, Ex. 1.)  The Liability section of the Customer Agreement is a standard clause in RDA’s Customer Agreements and “Plaintiff was not coerced, pressured, or rushed into signing the Customer Agreement.”  (Ibid. at ¶¶ 7-9, Ex. 1.)  The section states: “I, James White, as the legal owner/agent of the aforementioned dog(s), having carefully read and fully understand this agreement, do hereby waive and release the trainer from any and all liability of any nature.  This includes any injury, death, sickness, or damage my dog(s) may suffer during or after training.”  (Ibid.)  Defendants have submitted Exhibit 8, showing the various dog training services within 5 miles of Plaintiff’s residence, and Exhibit 9, California’s list of essential workers, however, Exhibits 8-9 are not authenticated and the Court denies Defendants’ Request for Judicial Notice of these exhibits.

On October 5, 2021, Basyro took Indy on a training walk outside the facility.  (Ibid. at ¶ 9.)  During this walk, “Indy lunged at a passerby,” Basyro “attempted to correct Indy” but Indy escaped Basyro’s control and started to run away.  (Ibid.)  Basyro pursued Indy, however, the dog ran into the into the intersection of Ventura Boulevard and Quakerton Ave and was struck by a vehicle.  (Ibid. at ¶ 10.)  Following the incident, Basyro “rushed [Indy] over to the nearest pet hospital,” Access Specialty Hospital, where Indy died of injuries.  (Ibid. at ¶ 11, Ex. 2.)  Basyro was employed by RDA at the time and was acting within the scope of his employment.  (Ibid. at ¶ 12.)  Basyro refunded Plaintiff the entire amount of the training program.  (Ibid. at ¶ 13.)

Defendants argue that “Plaintiff’s claims are not actionable based upon Plaintiff’s release of liability and the express assumption of risk doctrine.”  (MSJ p. 7.)  Here, “Plaintiff expressly assumed the risk associated with training dogs” by signing an Agreement containing a Liability section with “clear, unambiguous, and explicit” language “enough to appropriately appraise Plaintiff that signing the agreement would have the effect of releasing Royal Dog Academy from liability.”  (Ibid. at p. 8.)  Given that Indy escaped at the time Basyro was attempting to train him, the dog’s injuries and death “fall directly within the activities and risks covered in the Liability waiver” and the waiver “negates Royal Dog Academy and Basyro’s duty of care.”  (Ibid.)

Furthermore, Defendants argue that the (1) the Agreement is not against public policy and (2) the language of the release provision is clear, explicitly, and comprehensible.  (Ibid.)  Defendants analyzes public factors considered in determining the validity of a waiver under Tunkl v. Regents of University of California.  (Ibid. at p. 9; Tunkl v. Regents of University of Cal. (1963) 60 Cal.2d 92, 101.)  Based on these factors, the Customer Agreement is not against public policy.  First, Defendants’ business “is not generally suitable for public regulation because only a portion of the public needs to use dog trainers.”  (Ibid.)  Second, Plaintiff had several options in choosing a dog trainer in the vicinity of his residence and thus, Defendants did not have “a decisive advantage in bargaining power.”  (Ibid.)  Third, a dog training academy is not an essential service and is not within the list of California’s Public Health Officer’s list of essential workers.  (Ibid. at pp. 9-10.)  Fourth, there is no evidence Defendants used bargaining power to coerce, pressure, or rush Plaintiff into signing the Agreement.  (Ibid. at p. 10.)  Defendants also add that the language of the Liability section is “clear, explicit and comprehensible” as it is contained in a bolded “Liability” section, it outlines who waives liability (James White), damages Defendants cannot be held liable for (death and injury), and the activity under which liability is waiver (training and after training).  (Ibid.)  Thus, the waiver does not violate public policy and negates Defendants’ duty of care to Plaintiff.  (Ibid.)

Defendants also argue that the Agreement and Liability section are not unconscionable.  First, there is no procedural unconscionability because “Plaintiff had a meaningful choice and the ability to negotiate” given the prevalence of dog training programs in Plaintiff’s vicinity.  (Ibid. at p. 11.)  Second, there was no substantive unconscionability as the Liability section was “clear and easily discoverable in the Customer Agreement” and was not a hidden term.  (Ibid.)

B.    Plaintiff’s Opposition

            Plaintiff opposes Defendants’ Motion on the ground that there are triable issues of material fact and thus, the Motion should be denied.  (Oppos. p. 6.)

            Plaintiff has submitted the Declarations of Plaintiff James White and the Declaration of Elizabeth Dozier, Plaintiff’s fiancé and witness.

Plaintiff and his fiancé Elizabeth Dozier took the dog Indy to Defendants’ training academy for a 6-week live-in training program on October 4, 2021.  (White Decl. ¶ 5; Dozier Decl. ¶ 5.)  They observed the training inside the facility and the boarding areas and spoke to Basyro regarding the training.  (White Decl. ¶¶ 6-8; Dozier Decl. ¶¶ 6-8.)  However, they did not see any training taking place outside the facility and were not informed that the dogs were taken outside as part of the program.  (Ibid.)  Plaintiff and his fiancé reasonably believed that the training program would be conducted inside the facility.  (Ibid.)  They would not have chosen the program if they were aware that Indy would be taken outside and his safety would be at risk.  (Ibid.)  Plaintiff and his fiancé were presented with a Customer Agreement; Plaintiff’s fiancé filled out his name and address in certain sections.  (White Decl. ¶¶ 9-11, Ex. B; Dozier Decl. ¶ 9.)  Plaintiff did not write his name in the Liability waiver section and did not sign the section.  (White Decl. ¶ 10.)  Plaintiff’s fiancé initialed the Aggressive Behavior Addendum, the first paragraph of the Terms and Conditions section, and the Medical Treatment section.  (White Decl. ¶ 12; Dozier Decl. ¶ 11.)  Plaintiff only signed the Payment Information section, while his fiancé signed the Credit Card Authorization Form.  (White Decl. ¶ 12; Dozier Decl. ¶ 10.)  Plaintiff asserts that he did not sign below the Miscellaneous Section attesting to having read, understood, and agreed to all the contractual terms.  (White Decl. ¶ 13.)  Moreover, no one signed the Miscellaneous section on Defendants’ behalf.  (White Decl. ¶ 14; Dozier Decl. ¶ 13.)  As no one “signed the section executing the entire document as a whole,” Plaintiff does not “consider the contract to be fully executed.”  (White Decl. ¶ 15.)  Plaintiff and his fiancé elected the particular training facility and paid a higher rate for a Master Trainer, due to its specialization in large dog breeds and higher standard of training.  (White Decl. ¶ 17; Dozier Decl. ¶ 14.)  Plaintiff states that after the dog’s passing, he and his fiancé spoke to Demitri, an employee of Defendants’ business, within a couple of days of the incident.  (White Decl. ¶ 19; Dozier Decl. ¶ 16.)  Plaintiff and his fiancé describe the telephone conversation and the information relayed by Demitri and Basyro.  (White Decl. ¶ 20; Dozier Decl. ¶ 17.)  The Court finds these statements to constitute hearsay, pursuant to Evidence Code § 1200, and does not admit them into evidence.  Plaintiff and his fiancé received a tuition refund, as promised by Defendants, but did not receive reimbursement for the veterinarian and cremations bills.  (White Decl. ¶¶ 21-22, Exs. C-D; Dozier Decl. ¶ 18.)  Plaintiff suffered the loss of his family pet, economic losses, and expenses caused by the pet’s death.  (White Decl. ¶ 23.)

Plaintiff argues that pursuant to California law, a liability waiver must be constructed against the party seeking to be released.  (Oppos. pp. 7-8.)  Plaintiff cites to Civil Code § 1654 and case law for this assertion.  (Ibid.)  Furthermore, Plaintiff argues that Defendants’ MSJ is premised on the incorrect “assumption that the parties mutually assented to the liability waiver.”  (Ibid. at p. 9.)  Here, Plaintiff was never informed that his dog would be taken outside the facility, where risks to the dog’s safety were higher, and did not intend to accept the liability waiver for any activity outside the facility.  (Ibid.)  Furthermore, Plaintiff did not execute the liability waiver or the contract, in general, as the signature lines for both Plaintiff and Defendants are blank in the Miscellaneous section.  (Ibid.at p. 10.)  Plaintiff’s name, printed in the liability waiver section, was not printed by Plaintiff and “cannot be construed as Plaintiff’s ‘signature’ executing the liability waiver.”  (Ibid.)  Given that certain portions of the contract were signed, and others were not, “shows that there is ambiguity as to the intention of the parties to accept and agree to the assumption of risk.”  (Ibid.)

Finally, Plaintiff argues that the Court does not have to address “whether the purported waiver is against public policy” as the lack of signature in this case “renders the Defendants’ discussion of the validity of the release moot.”  (Ibid.)

C.    Analysis

“The essential elements of a cause of action for negligence are: (1) the defendant's legal duty of care toward the plaintiff; (2) the defendant's breach of duty—the negligent act or omission; (3) injury to the plaintiff as a result of the breach—proximate or legal cause; and (4) damage to the plaintiff.”  (Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.)  Owing a duty of care to the plaintiff is an indispensable prerequisite to the imposition of liability for negligence.  (Richards v. Stanley (1954) 43 Cal.2d 60, 63.)  A duty is an “obligation, recognized by the law, requiring the actor to conform to certain standard of conduct, for the protection of others against unreasonable risks.”  (Hilyar v. Union Ice Co. (1955) 45 Cal. 2d 30, 36-37.)  Generally, an omission to perform a contract obligation is not a tort, unless that omission is also an omission of a legal duty.  (Jones v. Kelly (1929) 208 Cal. 251, 255.)

For a waiver of future negligence liability to be effective, it must make a “clear, unambiguous, and explicit” waiver of liability for the relevant behavior. (Bennett v. United States Cycling Fed’n (1987) 193 Cal.App.3d 1485, 1490.)  The agreement must clearly notify the party agreeing to release the tortfeasor from liability of the effect of signing the agreement.  (Ibid.)

"Under California law, the intent of the parties determines the meaning of the contract. [Citation.] The relevant intent is 'objective' – that is, the intent manifested in the agreement and by surrounding conduct – rather than the subjective beliefs of the parties. [Citation.]"  United Commer. Ins. Serv. V. Paymaster Corp. (9th Cir. 1992) 962 F.2d 853, 856; Civil Code § 1636.)  "The mutual intention of the parties is determined by examining factors including the words used in the agreement, the surrounding circumstances under which the parties negotiated or entered into the contract, and the subsequent conduct of the parties."  (Ambat v. City & County of San Francisco (N.D.Cal. May 27, 2011, No. C 07-03622 SI) 2011 U.S.Dist.LEXIS 57438 *6.)

Here, Plaintiff disputes that he agreed to waive liability because he was not informed that the training would take place outside the facility and entail additional risks to the safety of his dog.  Plaintiff also refers to the fact that the contract in whole was not signed by Plaintiff or Defendants and he was not the one who printed his name in the Liability waiver section.  The Court finds that the instant contract is not within the category of contracts that require a written instrument to be valid.  (See Civil Code § 1624.)  Moreover, Plaintiff has not cited to any authority demonstrating that the liability waiver is invalid due to the lack of signature.

However, the Court finds that Plaintiff has produced sufficient evidence to demonstrate that there is a triable issue of material fact as to Defendants’ duty and the clarity and validity of the liability waiver.  For this reason, the Court DENIES Defendants’ Motion for Summary Judgment.  Given that there is only one cause of action for general negligence pleaded in the Complaint, Defendants’ Motion for Summary Adjudication is also DENIED.

V.             Conclusion & Order

For the foregoing reasons,

The Motion for Summary Judgment, alternatively Summary Adjudication, filed by Defendants 5 Star K-9 Academy, Inc. and Maxim Basyro is DENIED.

Moving party is ordered to give notice.