Judge: Serena R. Murillo, Case: 20STCV01168, Date: 2023-03-03 Tentative Ruling
DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)
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ALSO NOTE: If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar. THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.
Case Number: 20STCV01168 Hearing Date: March 3, 2023 Dept: 29
TENTATIVE
Defendant The Hollywood Brewery’s unopposed motion for summary
judgment is GRANTED.
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 argues that Plaintiff cannot
establish that Defendant exercised any ownership, or even control, over the
chihuahua which bit him. On the date of the incident, Pelkey was present at
Defendant’s property, Boomtown Brewery, with two dogs, including Defendant
Nuttall’s pet chihuahua, Moses. (Defendant’s Undisputed Material Fact (UMF)
Nos. 5, 6; Kagianaris Decl., ¶ 2.) At the time of the incident, Defendant
Nuttall was the owner of Moses. (UMF No. 7.) This chihuahua was not owned by
Defendant or any of its employees or agents. (UMF No. 8; Kagianaris Decl., ¶ 4.) Defendant Nuttall was the sole owner of the
subject chihuahua and never gave ownership or control to any agent,
representative, or employee of Defendant. (UMF Nos. 6-8.)
Therefore, Defendant has met its initial burden to show that it is
entitled to summary adjudication. The burden shifts to Plaintiff. However,
Plaintiff has not filed an opposition and thus, has not met his burden on
summary judgment to show that there are triable issues of material fact as to
whether Defendant owns the dog at issue. As such, summary adjudication is
granted as to the cause of action for strict liability.
Negligence
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 it is the owner of the property where Plaintiff was
bitten by Moses. (UMF Nos. 1-3, 14.) Both Defendants Pelkey and Nuttall were
unaware of any prior incidents with the chihuahua, vicious propensities, or any
complaints whatsoever about the chihuahua. (UMF Nos. 27-29.) 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 certainly could not have any such knowledge. Moreover,
nobody ever told Defendant that they believed the chihuahua was dangerous or
vicious prior to the incident. (UMF No. 31; Kagianaris Decl., ¶ 5.)
Defendant did not receive any pre-incident complaints regarding the chihuahua.
(Kagianaris Decl., ¶ 6.)
Defendant was not aware of any incident where the chihuahua bit or attacked
anyone else. (Id., ¶ 7.)
Defendant is not
liable for Plaintiff’s injuries unless Defendant actually knew that the subject
dog involved in the incident was dangerous. (Uccello, 44
Cal.App.3d at 510-11.) As a result, Defendant has met its burden on
summary judgment as to the cause of action for negligence as it has presented evidence
that it did not know of the dog’s dangerous or vicious tendencies. The burden
shifts to Plaintiff to establish triable issues of fact.
As discussed
above, Plaintiff has not filed an opposition, and thus, 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 a cause
of action for negligence. As such, summary adjudication is granted as to the
negligence cause of action.
Conclusion
Based on the foregoing, Defendant’s motion for summary
judgment is GRANTED.
Moving party is ordered to give notice.