Judge: Michael E. Whitaker, Case: 19STCV07579, Date: 2022-09-07 Tentative Ruling
Case Number: 19STCV07579 Hearing Date: September 7, 2022 Dept: 32
PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged). Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.
TENTATIVE RULING
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DEPARTMENT |
32 |
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HEARING DATE |
July 25, 2022 – Continued to September 7, 2022 |
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CASE NUMBER |
19STCV07579 |
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MOTION |
Motion for Summary Judgment |
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Defendants Bo O Han and Jack Qun Fang | |
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OPPOSING PARTY |
Plaintiff Keishawn Simmons, a minor, by and through his Guardian ad Litem, Virginia Stephens |
MOVING PAPERS:
REPLY PAPERS:
BACKGROUND
Plaintiff Keishawn Simmons, a minor, by and through his Guardian ad Litem, Virginia Stephens (“Stephens”), sued defendants Bo O Han and Jack Qun Fang (collectively, “Moving Defendants”) based on injuries Plaintiffs alleges he sustained when he was bitten by a dog owned by defendant April Jenkins (“Jenkins”) on March 8, 2017 while on property owned and controlled by Moving Defendants. (See Complaint, ¶¶ 7-9.) At the time of the incident, Jenkins leased the subject premises from Moving Defendants. Moving Defendants move for summary judgment on Plaintiff’s complaint. Plaintiff opposes the motion.
Plaintiff objects to the motion for inadequate notice per Code of Civil Procedure section 437c(a)(2). Specifically, Plaintiff argues Moving Defendants afforded Plaintiff only 69 days’ notice between service of their amended notice of motion for summary judgment and the hearing date. Plaintiff’s objection is without merit. The Court specially set the hearing on the motion for July 25, 2022, pursuant to Moving Defendants’ ex parte application to advance the initial hearing date from May 31, 2022 to July 25, 2022, giving more time for Plaintiff to oppose the motion which was initially served on Plaintiff on March 8, 2022.
Further, despite the alleged procedural deficiency, Plaintiff nevertheless submitted an opposition with full briefing on the merits. The Court therefore finds that Plaintiff will suffer no prejudice from the Court’s consideration of the merits of Moving Defendants’ motion for summary judgment, and would exercise its discretion to do so.
EVIDENCE
With respect to Moving Defendants’ objections to Plaintiff’s evidence submitted in opposition to the motion, the Court rules as follows:
Sustained
Sustained
Sustained
Sustained
LEGAL STANDARD – MOTION FOR SUMMARY JUDGMENT
“[T]he 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[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[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.” (Ibid.)
“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)
DISCUSSION
Plaintiff asserts two causes of action against Moving Defendants for (1) “Negligence – Premises Liability” and (2) “Strict Liability” under Civil Code section 3342. Moving Defendants thus move for summary judgment on two grounds: (1) Plaintiff cannot establish that Moving Defendants had knowledge of the presence of dogs on the property and (2) strict liability does not apply to Moving Defendants as they did not own the subject dog.
PREMISES LIABILITY
The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.) The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) Therefore, to prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm. (See Rowland v. Christian (1968) 69 Cal.2d 108.)
Liability in a premises liability action is based not on responsibility for the conduct of others, but on the failure of the landowner or occupier to act reasonably under the circumstances when he or she has reason to anticipate the probability of injury and has an opportunity to prevent the injury or warn of the peril (Cody F. v. Falleti (2001) 92 Cal.App.4th 1232, 1242, see Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 676 [a landowner’s duty to take steps to prevent the wrongful acts of a third party is imposed only where such conduct can be reasonably anticipated].) Accordingly, premises liability alleges a defendant property owner either (1) allowed a dangerous condition on its property or (2) failed to take reasonable steps to secure its property against criminal acts by third parties. (Delgado v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406.)
Stated differently, because a property owner is not the insurer of the safety of its guests, the owner’s actual or constructive knowledge of the dangerous condition is key to establishing liability. (Hall v. Aurora Loan Servs., LLC (2013) 215 Cal.App.4th 1134, 1139-1140; Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206 [“to impose liability for injuries suffered by an invitee due to a defective condition of the premises, the owner or occupier must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises”] [cleaned up].)
The defendant market owner was not an insurer of the safety of his patrons, but owed them the duty to exercise reasonable care in keeping the premises safe for his invitees. To impose liability for injuries suffered by an invitee due to the defective condition of the premises, the owner or occupier must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises. His negligence in such cases is founded upon his failure to exercise ordinary care in remedying the defect after he has discovered it. Whether, under all the circumstances, the defective condition had existed long enough so that a reasonable man exercising reasonable care would have discovered it, is ordinarily a question of fact to be decided by the jury. The fact alone that a dangerous condition existed at the time the accident occurred will not warrant an inference that the defendant was negligent. There must be some evidence, direct or circumstantial, to support the conclusion that the condition had existed long enough for the proprietor, in the exercise of reasonable care, to have discovered and remedied it.
(Girvetz v. Boys' Market (1949) 91 Cal.App.2d 827, 829 [cleaned up].)
“[I]t 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 Prop. Mgmt. (2006) 143 Cal.App.4th 1360, 1369.) “[A] duty of care arises when the landlord has actual knowledge of the presence of the dangerous animal and when he has the right to remove the animal by retaking possession of the premises.” (Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 507.) A landlord owes a duty of care to his tenant's invitees to prevent injury from the tenant's vicious dog when the landlord has “actual knowledge” of the dog's vicious nature in time to protect against the dangerous condition on his property (Ibid.) Circumstantial evidence of a dog’s dangerousness, as well as direct evidence, can satisfy the requirement that a landlord have actual knowledge of the dangerous tendencies of an animal on their property. (Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 1838.)
In addition to actual knowledge that a dangerous animal is being kept at their property, a landlord must also have had an ability to prevent the harm. (Donchin v. Guerrero, supra, 34 Cal.App.4th at pp. 1838-1839.) “A landowner's liability for a tenant's dog's vicious attack that occurs off the premises is determined by the same standards of ordinary care as liability for attacks which occur on the premises.” (Id. at p. 1846.) “If the dog is taken on a leash by its owner, off the premises, prevention of an attack by the dog may be beyond the landlord's control. But if the dog escapes the landlord's property because of defects in that property, the landlord is liable for the off-site injuries.” (Ibid.)
Moving Defendants advance their own declarations. Moving Defendants aver that that they owned the subject premises on March 8, 2017 – the date of the incident. (Declaration of Jack Qun Fang, ¶ 2; Declaration of Bo O Han, ¶ 2.) Moving Defendants state that Jenkins’ rental application completed on March 30, 2013, does not indicate that Jenkins owned any pets. (Declaration of Jack Qun Fang, ¶ 4, Exhibit A; Declaration of Bo O Han, ¶ 4, Exhibit A.) Moving Defendants further state that Jenkins’ lease for the property does not mention any pets. (Declaration of Jack Qun Fang, ¶ 5, Exhibit B; Declaration of Bo O Han, ¶ 5, Exhibit B.) Moving Defendants state that they live approximately 100 miles from the subject property, and that at no time prior to the incident did Jenkins advise Moving Defendants that she was keeping dogs on the property. (Declaration of Jack Qun Fang, ¶¶ 6-7; Declaration of Bo O Han, ¶¶ 6-7.) Moving Defendants aver that, prior to the incident, they were unaware that Jenkins was keeping dogs at the property, were not advised of the dangerous propensities of Jenkins’ dogs, and did not receive any complaints of any kind regarding dogs on the subject property. (Declaration of Jack Qun Fang, ¶¶ 8-9; Declaration of Bo O Han, ¶¶ 8-9.)
This evidence meets Moving Defendants’ burden to show that Plaintiff will be unable to establish that Moving Defendants had actual knowledge of the subject dog or its vicious nature prior to the incident such that they owed Plaintiff a duty of care. Moving Defendants have shifted the burden to Plaintiff to raise a triable issue of material fact as to whether Moving Defendants had actual knowledge of the dog's dangerous propensities, and the ability to control or prevent the harm.
In opposition, Plaintiff advances Stephens’ declaration. However, the declaration is unsigned and thus it is not competent evidence and has no probative value. Notwithstanding, based upon the Court’s rulings on Defendants’ evidentiary objections to Stephens’ declaration, the declaration does not meet Plaintiff’s burden of production in opposing the summary judgment motion.
Plaintiff also advances a case report from the City of Victorville concerning a dog bite incident that occurred on February 14, 2017. Plaintiff does not establish, however, how this report resulted in actual notice to Moving Defendants of the incident or that the February 14, 2017 incident involving the same dog as the March 8, 2017 incident that led to Plaintiff’s claimed injuries. Further, Plaintiff advances photos of the subject property. However, it is unclear when the photos were taken and more important, Plaintiff fails to advance evidence that condition or status of the subject property provided actual notice to Moving Defendants of the presence of the dog that allegedly bit Plaintiff before the date of the incident.
Plaintiff’s evidence does not meet his burden to make a prima facie showing of the existence of a triable issue of material fact as to whether Moving Defendants had actual knowledge of the subject dog or its vicious nature prior to the incident such that they owed Plaintiff a duty of care.
STRICT LIABILITY – CIVIL CODE SECTION 3342
Civil Code section 3342, or the dog bite statute, provides in pertinent part: “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 owner of the dog, regardless of the former viciousness of the dog or the owner's knowledge of such viciousness.” (Civ. Code, § 3342, emphasis added; Buffington v. Nicholson (1947) 78 Cal. App. 2d 37, 41 [“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”].)
“Civil Code section 3342 creates a remedy. It allows one to recover damages caused by a dog bite without having to show fault, i.e., under strict liability. However, it applies only in specified circumstances, one of which is that the victim be lawfully on the premises when bitten. The statute does not purport to abrogate any common law remedies that might also be available to a dog-bite victim but merely withholds the benefits of strict liability from those guilty of trespassing.” (People v. Berry (1991) 1 Cal.App.4th 778, 787.)
But liability for a dog bite can attach to a non-owner of a dog under certain circumstances. “A person, although not the owner of a vicious dog, may make himself liable to others by knowingly keeping or harboring the dog upon his premises, after knowledge of his vicious propensities, and this is true even when such keeping is without the consent and against the wishes of the animal's owner. The owner of an animal is the person to whom it belongs. Whether or not a person is a keeper depends upon the peculiar facts and circumstances of each individual case. A man may own an animal and yet not be its keeper. The word ‘keeper’ is equivalent to ‘the person who harbors.’ Harboring means protecting. So one who treats a dog as living at his house, and undertakes to control his actions, is the owner or keeper within the meaning of the law; but the casual presence of an animal on his premises, if not so treated, does not constitute him such owner or keeper.” (Buffington v. Nicholson, supra, 78 Cal.App.2d at p. 42.)
Moving Defendants once again advance their own declarations. As noted above, Moving Defendants state they had no knowledge of Jenkins’ dogs at the property prior to the incident. Moving Defendants also state that they did not own the dogs at any time before or after the incident. (Declaration of Jack Qun Fang, ¶ 9; Declaration of Bo O Han, ¶ 9.)
Moving Defendants also advance Plaintiff’s responses to Moving Defendants’ respective written discovery. In those responses, Plaintiff affirms that Moving Defendants did not own the subject dog. (Declaration of Susan L. Mason, Exhibits B, C, D.)
This evidence meets Moving Defendants’ burden to show that Plaintiff will be unable to establish that Moving Defendants knowingly kept or harbored the dog at the premises, after knowledge of its vicious propensities. Moving Defendants have shifted the burden to Plaintiff to raise a triable issue of material fact as to whether Moving Defendants had actual knowledge of the dog's dangerous propensities and the ability to control or prevent the harm.
In opposition, Plaintiff does not offer any argument or specific evidence with respect to his claim for strict liability. Nevertheless, Plaintiff’s evidence in opposition the motion is wanting for the reasons cited above. Plaintiff is therefore unable to meet his burden to make a prima facie showing of the existence of a triable issue of material fact as to whether Moving Defendants had actual knowledge of the dog's dangerous propensities and the ability to control or prevent the harm.
Accordingly, in light of the Court’s rulings on Moving Defendants’ evidentiary objections, and considering the competent evidence proffered by Plaintiff and Moving Defendants, viewed most favorably to Plaintiff, the Court finds that there are no triable issues of material fact regarding Moving Defendants’ “Undisputed Materials Facts” Nos. 1-15.
CONCLUSION AND ORDER
The Court finds that Moving Defendants have met their burden of production/persuasion that there is no triable issue of material fact and that they are entitled to judgment as a matter of law. Therefore, the Court grants Moving Defendants’ motion for summary judgment.
Moving Defendants shall provide notice of the Court’s ruling and file a proof of service of the same.