I. BACKGROUND 

Plaintiff Sara Ghasbeh Nasar (“Plaintiff”) filed this action against defendants 6546 Colgate, LLC, Alan Fattal, Shai Abishoor, Faviola Salvador, and Does 1 to 100 for damages arising from a dog bite. Plaintiff alleges all defendants owned, controlled, possessed, managed, kenneled, housed, and kept a certain dog at the premises of 1348 Omelveny Ave., San Fernando, CA 91340 AKA 806 S. Workman St., San Fernando, CA 91340 (“Omelveny Property” or “O’Melveny Property”) in a manner such that the unleashed dog pounced and bit Plaintiff while Plaintiff was delivering items to the Omelveny Property. (Compl. ¶¶ 4, 8.) Plaintiff sets forth against all defendants five causes of action for (1) premises liability, (2) general negligence, (3) negligence per se, (4) assault and battery, and (5) strict liability. 

6546 Colgate, LLC (“Colgate”), Alan Fattal (“Fattal”), and Shai Abishoor (“Abishoor”) (collectively, “Defendants”) now move for summary judgment against Plaintiff’s complaint on the grounds that they were not the owners or keepers of the dog, and that they had no duty to Plaintiff to inspect the premises to determine the dangerous propensity of the dog. Pursuant to the parties’ stipulation, the fourth cause of action for assault and battery has been stricken as to Defendants. (Stip. & Order, March 1, 2023.) 

Any opposition was due on or before May 20, 2024. (CCP § 437c(b)(2).) No opposition has been filed to date.  

II. MOTION FOR SUMMARY JUDGMENT 

A party may move for summary judgment “if it is contended that the action has no merit or that there is no defense to the action or proceeding.”  (Code Civ. Proc. § 437c, subd. (a).) “[I]f 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,” the moving party will be entitled to summary judgment.  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c, subd. (f)(2).)    

The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if the party does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord Code Civ. Proc. § 437c, subd. (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 the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.) 

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 0159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c(c).) 

  As framed by the complaint, the first cause of action alleges that Defendants failed to inspect, manage, investigate, supervise, or control the O’Melveny Property by restricting and preventing the dog from escaping the property, thereby exposing Plaintiff to an unreasonable risk of harm. (Compl. ¶¶ 11-12.) The second cause of action for general negligence incorporates the allegations contained in paragraphs 11-12 of the first cause of action. (Id. ¶ 18.) The third cause of action for negligence per se incorporates the same allegations. (Id. ¶ 23.) 

“An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff.” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673, 25.) 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.)¿ Duty is a legal issue and must be determined by the court. (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 124.)   

Defendants argue they had no duty to inspect the premises to determine that the dog was dangerous, and that they had no knowledge of any dangerous propensities of the dog. The undisputed material facts are as follows. Both Abishoor and Fatal are managing members of Colgate. (Fattal Decl. ¶ 1, Abishoor Decl. ¶ 1.) The O’Melveny Property was owned by Colgate. (UMF 3.) At the time of the incident, neither Fattal nor Abishoor lived at the O’Melveny Property. (UMF 4.) The O’Melveny Property was leased by Colgate to defendant Faviola Sanchez. (UMF 5.) The dog was owned by the tenants of the O’Melveny Property. (UMF 6.) Defendants aver that they neither owned nor kept the dog, and that prior to the incident, no one ever complained to Defendants about the dog. (UMFs 7-8.) Defendants further declare that they had no knowledge of any vicious or dangerous propensities of the dog. (UMF 9.) “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.)  

Defendants have met their prima facie burden that they did not breach any duty to Plaintiff under the first three causes of action, because they had no knowledge the dog was vicious since there were no prior incidents involving the dog, and that there was no foreseeable risk of harm. (Martinez v. Bank of America Nat. Trust & Sav. Ass’n (2000) 82 Cal.App.4th 883, 890-891.) The burden shifts therefore to Plaintiff to raise a triable issue of material fact. However, because Plaintiff did not oppose the motion, she necessarily fails to meet this burden. 

The fifth cause of action alleges that Defendants were the owners of the dog, and are strictly liable under Civil Code section 3342. (Compl. ¶¶ 36-37.) Civil Code section 3342 imposes 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.) 

Here, Defendants met their prima facie burden that they were neither the owners nor keepers of the dog, such that Civil Code section 3342 would be applicable to them. Plaintiff did not oppose the motion, and therefore has not raised a triable issue of material fact in this regard.  

III. CONCLUSION  

Based on the foregoing, the motion for summary judgment filed by defendants 6546 Colgate, LLC, Alan Fattal, and Shai Abishoor is GRANTED. 

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 31st day of May 2024