Judge Lee S. Arian, Case Number: 21STCV25964, Date: 2024-02-26 Tentative Ruling

Monday, February 26, 2024

Motion – Defendants’ Jose Fregoso’s & Maria Osorio’s Motion for Summary Judgment

Accordingly, Defendants’ Jose Fregoso’s & Maria Osorio’s Motion for Summary Judgment is GRANTED.

This action stems from an incident where Stephen Silva (Plaintiff) suffered a dog bite. On July 15, 2019, Plaintiff, an employee for the United States Postal Service, was making a delivery when he was attacked by a dog. (Complaint, ¶ Prem.L-1.) Plaintiff then filed a Complaint on July 14, 2021 against Jose Fregoso and Maria Osorio (collectively, Moving Defendants), the owners of a property located at 13847 Rath Street, La Puente, CA 91746^{^[1]}.

The Complaint alleges two causes of action against Moving Defendants: (1) negligence, and (2) premises liability. Moving Defendants then filed a Cross-Complaint on July 13, 2022 against Anna Vargas (Vargas), Isaias Lopez, and Hugo Navarro for indemnification, apportionment of fault, and declaratory relief. Moving Defendants base their Cross-Complaint and the instant motion before the Court on the fact that the dog that bit Plaintiff did not belong to Moving Defendants, nor were Moving Defendants aware of the presence of the dog on their property. The dog belonged to Vargas who was a tenant on the property that Moving Defendants owned. (Declaration of Lisa M. Williams, Exh. G) According to Moving Defendants, Vargas never made them aware of the presence of the dog. The motion before the Court is Moving Defendants’ Motion for Summary Judgment (Motion). The Motion is unopposed.

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 Section 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 cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) “Premises liability is grounded in the possession of the premises and the attendant right to control and manage the premises.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158, quotation marks omitted.) Moving Defendants base their Motion on the fact that not only did they not own the dog in question, but they were also never made aware of its presence on their property. They therefore argue that liability cannot attach to them. The Court agrees and grants the Motion.

It is undisputed that Moving Defendants did not own the dog at issue. (Separate Statement ISO Moving Defendants’ Motion for Summary Judgment, UMF 3.) Moving Defendants then address whether they had actual knowledge of the dog’s vicious propensities or the ability to prevent the attack.

Moving Defendants state that a duty of care is owed to all persons who are foreseeably in danger by a defendant’s conduct. (see CCP § 1714.) However, they contend there are limitations with respect to a landlord’s duty to a third person in a dog attack citing Donchin v. Guerrero (1995) 34 Cal.App.4^th 1821, 1838 (“Donchin”). Donchin lays out a two-step process for the determination of whether landlords can be held liable. “The first step is to determine the landlord's knowledge of the dog's vicious nature…The second step involves a landlord's ability to prevent the foreseeable harm.” (Donchin, supra, at 1838-1839.) The Donchin Court cited both Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504 and Lundy v. California Realty (1985) 170 Cal.App.3d 813 in explaining that the first step only allows for a landlord to be liable if the landlord had actual knowledge. The second step allows for a landlord to be liable if the landlord had the power to abate the dangerous condition but failed to do so.

Here, Moving Defendants state that not only were they unaware of the dog’s vicious propensities, but they were also unaware of the dog’s presence on their property because Vargas never informed them of the dog’s presence. (Motion 5:5. Also see Declaration of Lisa M. Williams, Exh. G, and Exh. H.) Thus, it would be impossible for them to be aware of the animal’s dangerous propensities. Therefore, as there are no material facts in dispute, the Motion must be granted.

Accordingly, Defendants’ Jose Fregoso’s & Maria Osorio’s Motion for Summary Judgment is GRANTED.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

[1] The Court notes that the Complaint states the incident occurred at 949 Le Borgne Ave., La Puente , CA 91746. However, nothing in the papers filed shows Moving Defendants own a property at that address. Moving Defendants state that the address of the property they own is 13847 Rath Street, La Puente, CA 91746.