Judge Lynne M. Hobbs, Case Number: 20STCV29666, Date: 2024-03-04 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 20STCV29666, Date: 2024-03-04 Tentative Ruling

PLEASE NOTE:

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.

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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.

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Case Number: 20STCV29666 Hearing Date: March 4, 2024 Dept: 30

BRITTNEY LEE vs STEVEN MAY, et al.

TENTATIVE

Defendant Alec Tarshis’ motion for summary judgment is GRANTED.

Moving party is ordered to give notice.

Legal Standard

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.)

Discussion

Strict Liability

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 § 3342(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.)

Defendant presents evidence that he did not own the dog at issue, and the dog was owned by Defendant May. (UMF No. 16.)

Defendant has met his initial burden to show that there are no triable issues of material fact as to Plaintiff’s cause of action for strict liability against him because he has provided evidence to show he is not the owner of the dog and that Defendant May is. The burden shifts to Plaintiff.

Plaintiff has not addressed this argument, and has therefore failed to provide evidence to show there are triable issues of material fact. As such, Defendant is entitled to summary adjudication as to the cause of action for strict liability.

Negligence and Premises Liability

The elements of negligence are “the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

The general rule is that a landowner is not liable for injuries caused by a guest’s dog, unless the landowner knew the dog was dangerous. (Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 510-11.) “It is well established that a landlord does not owe a duty of care to protect a third party from his or her tenant's dog unless the landlord has actual knowledge of the dog’s dangerous propensities, and the ability to control or prevent the harm.” (Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1369.) A landlord is under no duty to inspect a premises for the purpose of discovering a tenant’s dangerous animal. (Martinez v. Bank of America Nat. Trust & Sav. Ass’n (2000) 82 Cal.App.4th 882, 891-92.)

Moreover, whether a landlord has a duty to prevent or control dangerous conditions on a property related to injuries suffered from an animal, depends on the landlord’s knowledge of an animal’s vicious nature. (Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 1838-39.) “It should be emphasized that a duty of care may not be imposed on a landlord without proof that he knew of the dog and its dangerous propensities.” (Uccello, 44 Cal.App.3d at 514.) Further, because the harboring of pets is such an important part of our way of life and because the exclusive possession of rented premises normally is vested in the tenant, actual knowledge and not mere constructive knowledge is required. (Id.)

Defendant presents evidence that he is the owner of the property where Plaintiff alleges she was bitten by the dog. (UMF No. 9.) Defendant Tarshis and Defendant May have never met in person. Defendant Tarshis has never visited the subject property since May started renting it on February 22, 2017. (Id., Nos. 10- 11.) Defendant had never seen May’s dogs. (Id.)

May had owned the dog for about 5 years on the day of the subject incident. (UMF No. 4.) The Chihuahua was adopted from Westside Pavilion, in care of the West L.A. Animal Shelter. (UMF No. 5.) At no time during the adoption process was May put on notice that the Chihuahua had ever bitten a person. (UMF No. 6.) From the time May adopted the Chihuahua to the date of the subject incident, the dog had never bitten a person. (UMF No. 7.) Prior to the subject incident, May never received any notices from Animal Control or neighbor complaints regarding any of his dogs. (UMF No. 8.)

Defendant argues if the owner of the subject chihuahua and the walker of the subject chihuahua had no knowledge of any vicious propensity, then Defendant argues it could not have any such knowledge. Moreover, prior to the subject incident (August 23, 2018), Defendant Tarshis never received any complaints regarding May’s dogs, from neighbors or any other members of the public or visitors to the property. Nor did May inform Tarshis of any incidents or complaints in his knowledge about the dogs. (UMF No. 13.)

The Court finds that Defendant has met its burden on summary judgment to show there are no triable issues of material fact as to the cause of action for negligence and premises liability as he has presented evidence that was an absentee landlord, and he did not have actual knowledge of the dog’s dangerous or vicious tendencies.

The burden shifts to Plaintiff to establish triable issues of fact. Plaintiff argues that there is a triable issue of material fact as to whether Tarshis’ failure to properly exercise control over the property was the cause of Plaintiff’s injuries. Plaintiff argues that Tarshis was negligent in failing to check on his property for 10 years before the incident, not requiring May to have a dog warning sign, and to allow the Chihuahua dog to be on his property. Plaintiff also argues that Defendant May knew characteristics of the Chihuahua, and said "he's a bitter." Plaintiff argues Defendant May’s knowledge is transferred to defendant Tarshis.

As to Plaintiff’s theory regarding Defendant’s negligent management of his property, there is evidence that Defendant was an absentee landlord, and Plaintiff is asserting passive negligence on the part of Defendant for the failure to inspect or take security measures to protect third parties on a tenant’s property. There is no duty in such a case. Where a landlord has relinquished control of property to a tenant, a "bright line" rule has developed to moderate the landlord's duty of care owed to a third party injured on the property as compared with the tenant who enjoys possession and control. "`Because a landlord has relinquished possessory interest in the land, his or her duty of care to third parties injured on the land is attenuated as compared with the tenant who enjoys possession and control. Thus, before liability may be thrust on a landlord for a third party's injury due to a dangerous condition on the land, the plaintiff must show that the landlord had actual knowledge of the dangerous condition in question, plus the right and ability to cure the condition.' [¶] Limiting a landlord's obligations releases it from needing to engage in potentially intrusive oversight of the property, thus permitting the tenant to enjoy its tenancy unmolested." (Salinas v. Martin (2008) 166 Cal.App.4th 404, 412.) Here, Plaintiff has failed to present evidence that Defendant Tarshis had actual knowledge of the dog’s vicious propensities.

Next, Plaintiff points to no evidence that May said the dog was a “biter.” The evidence Plaintiff cites shows that Defendant May said “no, stop” to Plaintiff when she came in, because he didn’t want the gate to open due to fear that the dogs would run away. (May Depo., pg 53.) In any event, even if May did say that the dog is a biter, Plaintiff is required to show that Defendant Tarshis had actual knowledge, and therefore, Defendant May’s knowledge cannot be transferred to Defendant Tarshis, as Plaintiff contends.

As a result, the Court finds that Plaintiff has failed to show there are triable issues of fact regarding whether Defendant knew of the dog’s vicious or dangerous tendencies in order to hold Defendant liable under Plaintiff’s causes of action for negligence and premises liability. Thus, Defendant is entitled to summary judgment.