Judge: Lisa R. Jaskol, Case: 22STCV25112, Date: 2025-02-25 Tentative Ruling

Case Number: 22STCV25112    Hearing Date: February 25, 2025    Dept: 28

Having considered the moving, opposition, and reply papers, the Court rules as follows. 

BACKGROUND 

A.   Previous proceedings 

On August 4, 2022, Plaintiff Wayne Johansson (“Plaintiff”) filed this action against Defendants Ze’ev Patrick Waismann (“Waismann”) and Does 1-50 for negligence and strict liability. 

On April 7, 2023, Waismann filed an answer. 

On June 27, 2023, Plaintiff filed a first amended complaint against Defendants Waismann, San Gabriel Valley Humane Society (“Humane Society”), and Does 1-50 for negligence and strict liability. 

On July 10, 2023, Humane Society filed an answer to the first amended complaint. 

On February 22, 2024, Waismann filed a cross-complaint against Cross-Defendants Humane Society and Does 1-50 for equitable and implied indemnity, apportionment of fault and/or contribution, and declaratory relief.  On March 26, 2024, the Humane Society filed an answer to the cross-complaint. 

Trial is currently scheduled for June 16, 2025. 

B.   This motion 

On January 19, 2024, Humane Society filed a motion for summary judgment.  The motion was set for hearing on April 4, 2024. 

On March 6, 2024, the Court granted Plaintiff’s ex parte application to continue the hearing on the motion for summary judgment.  The Court continued the hearing to July 18, 2024. 

On May 30, 2024, the Court continued the hearing on the summary judgment motion to February 25, 2025 based on counsel’s oral stipulation. 

On February 5, 2025, Waismann filed an opposition to the summary judgment motion.  On February 10, 2025, Plaintiff filed an opposition to the summary judgment motion.  On February 14, 2025, the Humane Society filed replies. 

PARTIES’ REQUESTS 

The Humane Society asks the Court to grant summary judgment of Plaintiff’s first amended complaint. 

Plaintiff and Waismann ask the Court to deny the motion. 

LEGAL STANDARD 

A.   Summary judgment 

“‘[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’”  (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 949, 945, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar)) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Aguilar, supra, 25 Cal.4th at p. 850.) 

When the moving party is a defendant, it must show that the plaintiff cannot establish at least one element of the cause of action.  (Aguilar, supra, 25 Cal.4th at p. 853.) “The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.”  (Id. at p. 854.) The defendant must “present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.”  (Ibid.) Thus, “the defendant must ‘support[ ]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ [Citation.] The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.”  (Id. at p. 855, original emphasis.) 

“Supporting and opposing affidavits or declarations . . . shall set forth admissible evidence.” (Code Civ. Proc., § 437c, subd. (d).) “Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits.”  (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)  

In ruling on the motion, the court must consider all the evidence and all the inferences reasonably drawn from it and must view such evidence and inferences in the light most favorable to the opposing party.  (Aguilar, supra, 25 Cal.4th at p. 843.) 

B.   Negligence 

“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, 1158.) 

“The underlying principle, set forth in Civil Code section 1714, subdivision (a), is that “‘[e]veryone is responsible ... for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person . . . .’” (Williams v. Fremont Corners, Inc. (2019) 37 Cal.App.5th 654, 663 (Williams).)  This rule “‘establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others.’” (Ibid., quoting Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1083 (Vasilenko); see Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 214).) 

“ ‘ “ ‘Courts ... invoke[ ] the concept of duty to limit generally “the otherwise potentially infinite liability which would follow from every negligent act ....” ’ ” ’ ” (Williams, supra, 37 Cal.App.5th at p. 663, quoting Vasilenko, supra, 3 Cal.5th at p. 1083.) “Our Supreme Court has explained that an exception to the general rule of Civil Code section 1714 must be “ ‘ “ ‘clearly supported by public policy.’ ” ’ ” (Ibid., quoting Vasilenko, supra, 3 Cal.5th at p. 1083.) “Courts look to what are commonly called ‘the Rowland factors’ in determining whether policy considerations favor such an exception.” (Ibid., citing Vasilenko, supra, 3 Cal.5th at p. 1083.)  “These are “ ‘ “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.”’ ” (Ibid., quoting Vasilenko, supra, 3 Cal.5th at p. 1083; see Rowland v. Christian (1968) 69 Cal.2d 108, 113 (Rowland).) 

EVIDENTIARY OBJECTIONS 

          “In granting or denying a motion for summary judgment or summary adjudication, the court need only rule on those objections to evidence that it deems material to its disposition of the motion.”  (Code Civ. Proc., § 437c, subd. (q).) 

The Court did not rely on the objected-to evidence in deciding the summary judgment motion. 

DISCUSSION 

A.   The first amended complaint 

The first amended complaint includes the following allegations: 

On or about August 8, 2020, a dog was returned to the Humane Society because he was “aggressive toward other animals.”  While the dog was with the Humane Society, he exhibited aggressive and dangerous propensities toward other dogs.  The Humane Society knew or should have known about the dog’s dangerous and aggressive propensities. 

On or about September 1, 2020, Waismann adopted the dog from the Humane Society and named him Gus. 

On or about August 23, 2021, Gus escaped from Waismann’s property and attacked/bit Plaintiff and his dog.  Waismann knew that Gus had previously escaped the property and knew that Gus had been aggressive toward other dogs. 

The first amended complaint asserts a negligence claim against the Humane Society. 

B.   Undisputed facts (for purposes of Humane Society's motion only) 

On or about July 1, 2020, a dog named Quest was surrendered to the Humane Society.  The reason given for the surrender was that Quest’s previous custodian had too many animals. 

On July 19, 2020, while in the Humane Society’s care, Quest attacked another dog. 

On or about August 2, 2020, a family adopted Quest from the Humane Society.  On or about August 8, 2020, the family returned Quest to the Humane Society because, according to the family, he was “aggressive towards other animals.”  The adoptive family indicated that Quest snapped and attacked a small dog. 

On August 31, 2020, Waismann reached out to the Humane Society to inquire about whether Quest was available for adoption.  On September 1, 2020, the Humane Society responded to Waismann's email and informed him that Quest was available for adoption and that the Humane Society wanted to set up a "meet & greet appointment." 

On or about September 1, 2020, the Humane Society received a Dog Adoption Application from Waismann.  In his application, Waismann stated that he had no preference in terms of type of dog he wanted, but he was looking for an "outdoorsy dog," a "mellow" dog, and an "affectionate" dog, and he preferred a dog who "can tolerate all other animals" and "would enjoy going to the dog park." 

On September 5, 2020, Waismann adopted Quest from the Humane Society by executing the Animal Adoption Contract.  Waismann re-named his dog Gus. 

The Humane Society’s Animal Adoption Contract notifies new adoptive owners, in bold: "Most of our animals are strays, and we are unable to guarantee the health or behavior of your new pet." 

According to Waismann, prior to adopting Gus, Waismann did not have any concerns or doubts about Gus's behavior based on the brief information the Humane Society provided him.  

On September 8, 2020, Waismann informed the Humane Society that Gus has "been a great pup."  On July 26, 2021, Waismann informed the Humane Society that Gus was "doing wonderfully and we're very happy to have him.  He's such a special creature." 

According to Waismann, based on his experience, "mellow" and "affectionate" are generally good descriptors of Gus's temperament.  According to Waismann, while in Waismann's custody and outside of the August 23, 2021 incident, when Gus socialized with other dogs, including at dog parks, Gus never exhibited any sort of aggressive behavior.  According to Waismann, while in Waismann's custody and outside of the August 23, 2021 incident, he would describe Gus's temperament as friendly, affectionate, not nervous, not particularly excitable, not unpredictable, not fearful, not particularly suspicious, and not particularly protective; overall, "a pretty wonderful dog."  Aside from the incident on August 23, 2021, based on Waismann’s experience and while in his custody, Waismann has no knowledge of Gus biting a person, biting another dog, displaying aggressiveness towards another person, instigating aggressiveness towards another dog, chasing another dog, or fighting with another dog. 

On or about August 23, 2021, Plaintiff was walking his dog when he saw Gus on Waismann’s premises.  Only Waismann managed or maintained his property, its contents, and his dog Gus.  According to Plaintiff, Gus pushed the gate open, came running towards him, and latched onto both his left hand and his dog’s throat at the same time. 

The August 23, 2021 incident happened away from the Humane Society’s place of business in San Gabriel.  Neither the Humane Society nor any Humane Society employee was physically present when the alleged dog bite occurred on August 23, 2021. 

At no time, after the August 21, 2021 incident, did Waismann consider surrendering Gus to the Humane Society because he believed what happened on the day of the incident fell "within normal parameters of canine behavior" and Gus was his responsibility. 

C.   The Humane Society has not carried its initial summary judgment burden 

The Humane Society argues that it did not owe Plaintiff a duty because it did not have a duty-creating relationship with Plaintiff.  Liability in dog-bite cases may be based on a landlord-tenant relationship or a relationship between the plaintiff and the person who owns or controls the dog.  Here, however, the Humane Society was not a landlord, did not own or control the property where the incident occurred, and had not owned or kept Gus since September 2020. 

In addition, according to the Humane Society, its knowledge that Gus had attacked two other dogs before Waismann adopted Gus does not create a duty under Rowland, supra, 69 Cal.2d 108 as a matter of law. 

Looking at Rowland’s foreseeability factor, the Court finds that the Humane Society has not carried its burden of showing that it could not reasonably be foreseen that Gus would attack a person or dog almost one year after Waismann adopted him.  Although the Humane Society focuses on the absence of evidence that Gus had previously attacked a person, a trier of fact could reasonably infer that a dog who bites another dog might also bite a person who is close to the other dog.   Here, it is undisputed that Gus latched onto both Plaintiff’s hand and his dog’s throat at the same time, suggesting that Plaintiff was quite close to his dog when Gus allegedly attacked them. 

Looking at some of the other Rowland factors, a trier of fact could find that the Humane Society’s conduct in failing to disclose Gus’s prior attacks on other dogs to Waismann was morally blameworthy, that imposing liability on the Humane Society would encourage it to disclose potential problems to other persons adopting animals, and that the Humane Society is in the best position to evaluate the animals it offers for adoption before finding them new homes. 

The Court denies the motion. 

CONCLUSION 

The Court DENIES Defendant San Gabriel Valley Humane Society’s motion for summary judgment. 

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.