Judge: Michael E. Whitaker, Case: 23SMCV02339, Date: 2025-02-18 Tentative Ruling
Case Number: 23SMCV02339 Hearing Date: February 18, 2025 Dept: 207
TENTATIVE
RULING
|
DEPARTMENT |
207 |
|
HEARING DATE |
February
18, 2025 |
|
CASE NUMBER |
23SMCV02339 |
|
MOTION |
Motion
for Summary Judgment or Summary Adjudication |
|
Defendant Michael Bezjian |
|
|
OPPOSING PARTY |
Plaintiff
Brett Stelter |
MOVING PAPERS:
REPLY PAPERS:
BACKGROUND
This case arises from a dog attack.
On May 30, 2023, Plaintiff Brett Stelter (“Plaintiff”) brought suit
alleging three causes of action for (1) general negligence; (2) premises
liability; and (3) strict liability against Defendants The Artist Project (“The
Artist”); Michael Bezjian (“Bezjian” or “Defendant”); and Toby Jones (“Jones”)
(together, “Defendants”). The Artist and
Jones are in default. Bezjian now moves
for summary judgment, or in the alternative, summary adjudication on the
following issues:
ISSUE ONE: Defendant is entitled to summary
judgment on Plaintiff’s entire complaint because the undisputed evidence
establishes (1) the Defendant did not own the dog which bit the Plaintiff and
that the owner of the dog was Defendant Toby Jones (hereinafter “Jones”) and
(2) Defendant was not the owner or landlord of the location, 6111 Warner Drive,
Los Angeles, California (hereinafter “Subject Premises”), where the Plaintiff
was bit and thus had no duty toward Plaintiff under California Civil Code section
3342(a) and the holdings in Uccello v. Laudenslayer, 44 Cal. App. 3d 504
(1975) and other California case law.
ISSUE TWO: Defendant is entitled to summary
adjudication on Plaintiff’s first cause of action for general negligence
because Defendant did not own the dog that bit Plaintiff, was not responsible
for the dog’s care, and was not the owner or landlord of the Subject Premises
and thus Defendant did not owe a duty to Plaintiff and did not breach any duty
owed to Plaintiff.
ISSUE THREE: Defendant is entitled to summary
adjudication on Plaintiff’s second cause of action for premises liability
because Defendant was not the owner or the landlord of the Subject Premises and
had no control or owner ship over the Subject Premises or right to take
possession of the Subject Premises from Jones or his dog.
ISSUE FOUR: Defendant is entitled to summary
adjudication on Plaintiff’s third cause of action for strict liability because
Defendant did not own the subject dog and in California strict liability is
only imposed to the Owner of the dog.
Plaintiff opposes the motion and the
Defendant replies.
EVIDENTIARY OBJECTIONS
The
Court rules as follows with respect to Defendant’s objections to Plaintiff’s
evidence:
1. Overruled
2. Overruled
3. Sustained
4. Sustained
LEGAL STANDARDS – MOTION FOR SUMMARY
JUDGMENT/ADJUDICATION
“[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
(hereafter 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.” ¿(Ibid.; Smith v. Wells Fargo Bank,
N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar
apply to summary adjudication motions].)
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.” (Aguilar, supra, 25 Cal.4th. 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”].)
A party may move for
summary adjudication as to one or more causes of action, affirmative defenses,
claims for damages, or issues of duty if that party contends that there is no
merit to the cause of action, defense, or claim for damages, or if the party
contends that there is no duty owed. (See Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be
granted only if it completely disposes of a cause of action, an affirmative
defense, a claim for damages, or an issue of duty.” (Ibid.) A cause of action has no merit if: (1) one or
more elements of the cause of action cannot be separately established, even if
that element is separately pleaded, or (2) a defendant establishes an
affirmative defense to that cause of action.
(See Code Civ. Proc., §
437c, subd. (n); Union Bank v. Superior
Court (1995) 31 Cal.App.4th 573, 583.)
Once the defendant has shown that a cause of action has no merit, the
burden shifts to the plaintiff to show that a triable issue of material fact
exists as to that cause of action. (See Code Civ. Proc., § 437c, subd. (o)(2); Union Bank v. Superior Court, supra, 31 Cal.App.4th at p.
583.) Additionally, in line with Aguilar,
“[o]n a motion for summary adjudication, the trial court has no discretion to
exercise. If a triable issue of material fact exists as to the challenged
causes of action, the motion must be denied. If there is no triable issue of
fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp.
v. Superior Court (2003) 114 Cal.App.4th 309, 320.)
DISCUSSION
“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, citation omitted.) “Those who own, possess, or control property generally have a duty to exercise ordinary
care in managing the property in order to avoid exposing others to an
unreasonable risk of harm.” (Annocki v. Peterson Enterprises, LLC (2014)
232 Cal.App.4th 32, 37, emphasis added.)
California law also imposes
strict liability on dog owners. “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, subd. (a).)
With respect to property owners/landlords,
a duty of care arises only for those who (1) know of the dog’s dangerous
propensities; and (2) have the right to remove the dog from the premises. (Uccello v. Laudenslayer (1975) 44
Cal.App.3d 504, 514.)
1. DEFENDANT’S EVIDENCE
Defendant argues that he owes
Plaintiff no duty of care and is not strictly liable for Plaintiff’s injuries
resulting from the dog attack because Defendant did not own or control the dog
or the premises where the attack occurred.
In support, Defendant has
provided excerpts from Plaintiff’s deposition testimony, and Defendant’s
Declaration, indicating the following:
·
On the
day of the incident, Plaintiff came over to Defendant’s residence to borrow a
charger. (Ex. B to Haggar Decl. (“Stelter
Depo”) at pp. 21:6-14; 34:8-35:9.)
·
Once
Plaintiff arrived at the premises, Defendant opened a waist high gate to the
driveway, at which point the dog ran through the open gate, jumped up on
Plaintiff, and began biting him.
(Stelter Depo at p. 37:8-22.)
·
The dog was
owned by Defendant’s roommate, Jones, not Defendant. (Bezjian Decl. at ¶¶ 2-3; Stelter Depo at p.
37:8-22.)
·
Defendant
did not own the subject premises.
(Bezjian Decl. ¶ 4; Stelter Depo at pp. 21:16-17; 62:18-63:3.)
But even if Defendant did not
own the dog or the subject property, a duty arises for purposes of negligence
and premises liability, for those who possess, or control the property.
Here, Defendant possessed and
controlled the subject property, because he lived there and was the dog owner’s
roommate. Indeed, it was Defendant who
invited Plaintiff over, and Defendant who opened the gate that exposed
Plaintiff to the dog. Thus, Defendant
owed a general duty of care to protect invitees, like Plaintiff, from an
unreasonable risk of harm at the premises.
As for breach, Defendant has
not provided any evidence of any steps Defendant took to protect Plaintiff from
being harmed by the dog. As such, the
Court finds Defendant has not met his initial burdens of production and
persuasion to demonstrate that Defendant owed no duty of care and did not
breach that duty. The Court thus denies
summary judgment/adjudication as to Issues 1, 2, and 3.
As for Issue 4, strict
liability arises only as to the dog’s owner, and Defendant provided evidence
that he did not own the dog or the property.
Therefore, Defendant has met his initial burdens of production and
persuasion that he is not strictly liable for the dog attack.
2. PLAINTIFF’S EVIDENCE
Plaintiff does not offer any
evidence that Defendant owned the dog.
Rather, Plaintiff argues that Defendant may have possessed,
controlled, or been the “keeper” of the dog for purposes of strict liability to
attach because Defendant was the only one home at the time of the attack. Plaintiff also requests additional time to
allow evidence from various witnesses and records sought via subpoena to come
in.
However, Plaintiff conceded in
deposition that he was aware “the dog was Toby’s, not Michael’s.” (Bezjian Depo at p. 37:17-19.) Further, Defendant’s declaration provides:
3. The dog that Plaintiff alleges bit him, was owned by a
roommate, Defendant Toby Jones. I was not the owner of the dog that bit the
Plaintiff. I was not responsible for the care of the dog that bit the
Plaintiff. I did not buy food for the dog that bit the Plaintiff. I did not pay
any veterinary bills for the dog that bit the Plaintiff. I am not on any bill
of sale for the purchase of the dog that bit the Plaintiff. Defendant Toby
Jones lived in a different room at the Subject Premises than I did at the time
of the Subject Incident. I was never responsible for the care of the dog that
bit the Plaintiff. I am not listed on any dog license as the owner of the dog
that bit the Plaintiff.
(Stelter Decl. at ¶ 3.)
Moreover, Plaintiff has not
specified what witnesses or records have been subpoenaed or what specific
information Plaintiff intends to discover that could counter the above evidence
and show that Defendant actually owned the dog for purposes of strict
liability.
“If it appears from the affidavits submitted in
opposition to a motion for
summary judgment or summary adjudication, or both, that facts essential to
justify opposition may exist but cannot, for reasons stated, be presented, the
court shall deny the motion, order a continuance to permit affidavits to be
obtained or discovery to be had, or make any other order as may be just. The
application to continue the motion to obtain necessary discovery may also be
made by ex parte motion at any time on or before the date the opposition
response to the motion is due.”
(Code Civ. Proc., § 437c, subd. (h), emphasis
added.)
Here, Plaintiff has provided
no such affidavits or even any information in the briefing about what facts
Plaintiff may discover.
Therefore, Plaintiff has not
met his burden of production, and has not provided affidavits or information to
support his request for additional discovery.
CONCLUSION AND ORDER
Therefore, the Court grants in part and denies in part Defendants
Motion for Summary Adjudication. With
respect to Issues 1, 2, and 3, having found Defendant failed to meet his
initial burdens of production and persuasion that he did not owe a duty of care
or breach a duty of care, the Court denies summary judgment and summary
adjudication. With respect to Issue 4,
having found Defendant met his initial burdens of production and persuasion
that he did not own the dog in question, and having found that Plaintiff failed
to meet his burden of production to demonstrate otherwise, or specify by
affidavit what evidence Plaintiff hoped yet to discover, the Court grants
summary adjudication as to Issue 4.
Defendant shall provide notice of the Court’s ruling and file the
notice with a proof of service forthwith.
DATED: February 18, 2025 ___________________________
Michael
E. Whitaker
Judge
of the Superior Court