Judge: Lynne M. Hobbs, Case: 22STCV18563, Date: 2024-01-10 Tentative Ruling

Case Number: 22STCV18563    Hearing Date: March 5, 2024    Dept: 30

BASHAR DAAS vs BOUTIQUE HOMES LLC, et al.

TENTATIVE

Defendant Peter Waldstein’s 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.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facia 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 or summary adjudication “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, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c(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 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.)

Request for Judicial Notice

The court must consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court. (Code Civ. Proc., § 437c(c).) Therefore, Defendant’s request is unnecessary and the Court declines to rule on the request.

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 Peter Waldstein presents evidence that he did not own the subject dog (UMF No. 10) and had never seen it or known of its existence prior to this lawsuit. (UMF No. 11.)

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. The burden shifts to Plaintiff.

Plaintiff has filed a notice of non-opposition and therefore, has not met his burden to show triable issues of material fact.

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 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.)¿¿Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property¿to¿avoid exposing others to an unreasonable risk of harm.¿¿(Annocki¿v. Peterson Enterprises, LLC¿(2014) 232 Cal.App.4th 32, 37.)¿¿The existence and scope of duty are legal questions for the court.¿¿(Id.¿at¿36.)

As framed by the complaint, Plaintiff alleges that Peter rented, maintained, lived in, controlled, managed, supervised, or exercised control over a room on the property of the Charlie and were guests there at the time of the incident. Plaintiff also alleges the Waldstein Defendants were the owners or caretakers of the dog. Defendant Peter Waldstein presents evidence that he had never been to The Charlie Hotel and was not a guest there at the time of the incident. (UMF No. 12.) Defendant did not book or pay for the room at The Charlie Hotel that was occupied by Defendant Steve Waldstein. (UMF No. 13.) Defendant Peter Waldstein also presents evidence that he did not own the subject dog (UMF No. 10) and had never seen it or known of its existence prior to this lawsuit. (UMF No. 11.)

The Court finds that Defendant has presented evidence sufficient to show that there are no triable issues of fact as to whether he had any duty to Plaintiff as he did not rent, maintain, live in, control, manage, supervise, or exercise control over a room at the Charlie because he had never been there, and that he did not own or know of the dog prior to this lawsuit, and thus, could not have been the caretaker as alleged in the complaint. As a result, Defendant met its burden for summary judgment as to the causes of action for negligence and premises liability. The burden shifts to Plaintiff to establish a triable issue of fact.

Plaintiff has not filed an opposition and has therefore failed to meet his burden. As a result, Defendant is entitled to summary judgment.

Conclusion

Based on the foregoing, Defendant’s motion for summary judgment is GRANTED.