Judge Stephen Morgan, Case 20AVCV00107 2022-12-15 Tentative Ruling

If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at ATPDeptA14@LACOURT.ORG.

If a matter is also scheduled for a CMC, TSC, OSC, etc., an appearance is still required even if the parties are willing to submit on the tentative ruling.

The is a premises liability action arising out of a dog bite incident. On or about February 25, 2018, Plaintiffs Vanessa Wheeler (“Vanessa”) and Ryan Wheeler (“Ryan”), husband and wife, and Joseph Reed (“Reed” or, collectively, “Plaintiffs”), Vanessa’s father, were walking on a street behind a home located at 44233 Elm Street, Lancaster, CA 93534 (the “Property”), when “Rosie,” a shepherd dog, located on the Property escaped through a broken or open piece of fence and allegedly ran after Vanessa’s dog. Vanessa alleges that she attempted to pick up her dog and was bitten by Rosie, leading to her dropping her dog. Reed alleges that after Vanessa was bitten, Rosie continued chasing after Vanessa’s dog, knocking into his legs and walker, causing the walker to get knocked out from under him, and causing him to fall to the ground. Ryan is alleged to have witnessed the events.

On February 18, 2020, Plaintiffs filed their Complaint alleging seven (7) causes of action against Defendant Manuel Mendoza (“Mendoza”), Rosie’s registered owner and tenant at the Property, and Defendants Vatche Kasumyan (“Vatche”) and Klara Kasumyan (“Klara” and collectively “the Kasumyans”), the Property owner, for (1) Negligence; (2) Strict Liability (Civ. Code § 3342); (3) Strict Liability (Common Law); (4) Premises Liability; (5) Intentional Infliction of Emotional Distress; (6) Negligent Infliction of Emotional Distress (Bystander); and (7) Negligent Infliction of Emotional Distress (Direct Victim). Plaintiffs served the Kasumyans with the Summons and Complaint on January 22, 2021.

On May 06, 2021, Plaintiffs filed their First Amended Complaint (“FAC”) alleging the same seven (7) causes of action against Mendoza and the Kasumuyans, but limiting Punitive or Exemplary Damages to Causes of Action numbers 2, 3, and 5.

On February 17, 2022, Plaintiffs amended the ficticious/incorrect name of Doe 1 to Sandy Esparza.

The Kasumyans filed a Motion to Strike, heard on July 13, 2021, which was granted.

On June 23, 2022, the Kasumyans filed this Motion for Summary Judgment, or in the alternative, Summary Adjudication (“Motion for Summary Judgmnet”).

On August 09, 2022, Plaintiffs filed an Ex Parte Application to Continue the Kasumyans’ Motion for Summary Judgment, granted on August 10, 2022. This continued the Motion for Summary Judgment to November 15, 2022.

On August 15, 2022, the Kasumyans filed an Ex Parte Application for Order Shortening the Time to Notice and Hear Motion for Protective Order, granted on August 16, 2022. This continued the Motion for Summary Judgment to December 15, 2022.

On October 27, 2022, Plaintiffs amended the following fictitious/incorrect names in the FAC:

On November 15, 2022, Klara Kasumyan as Trustee for Kasumyan Family Trust, Vatche Kasumyan as Trustee for Kasumyan Family Trust, and Precise Real Estate Investments filed their Answer to the FAC.

On December 01, 2022, Plaintiffs filed their Opposition to the Motion for Summary Judgment.

On December 12, 2022, the Kasumyans filed their Reply. “A reply to the opposition shall be served and filed by the moving party not less than five days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.” (Cal. Code Civ. Proc. § 437c(b)(3)(4).) The hearing is scheduled for December 15, 2022. As such, a Reply was due no later than December 10, 2022. December 10, 2022 is a Saturday. “Unless otherwise provided by law, if the last day for the performance of any act that is required by these rules to be performed within a specific period of time falls on a Saturday, Sunday, or other legal holiday, the period is extended to and includes the next day that is not a holiday.” (Cal. Rules of Court, Rule 1.10(b).) Thus, a Reply was due no later than Monday, December 12, 2022. The Reply is timely.[1]

On December 12, 2022, Plaintiffs filed their Supplemental Memorandum of Points and Authorities Opposition To Defendant Vatche Kasumyan And Klara Kasumyan’s Reply in Support of their Motion for Summary Judgment,

Standard for Summary Judgment – 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.) Cal. Code Civ. Proc.¿§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 party moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Cal.¿Code Civ.¿Proc.¿§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 opposing party 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.)¿¿¿

Campano Declaration – Plaintiff’s attorney, Angelo F. Campano (“Campano”) requests a continuance on the Motion for Summary Judgment, or in the alternative, Summary Adjudication. Specifically, Campano presents that the Kasumyans have not provided the contact information for the property inspector, “Gary;” information to locate Gary; contact information for other tenants that lived at the Property (i.e. Defendants Watts and Mendoza); the Kasumyan’s purchase and sale agreements for the Property; messages between Vatche Kasumyan and Mendoza, payments for the Property; and contact information for the real estate company involved in the purchase and sale of the Property.

The Court declines to continue the Motion for Summary Judgment, or in the alternative, Summary Adjudication as the information not provided, though important, does not impact the motion.

First, regarding negligence, the Kasumyans present that there must be duty, breach, that the breach was a substantial factor in causing the resulting injuries, and damages. The Kasumyans believe that (1) the existence of duty is a question of law for the Court, (2) no one owes a duty to aid another unless there is some form of special relationship, (3) that no special relationship exists between the Kasumyans and Plaintiffs. The Kasumyans also present that there was no indication that Rosie was dangerous and that there is no general duty of landlords to periodically inspect the non-common areas of their leased premises for which they have relinquished control to the tenant.

Second, regarding Plaintiffs’ Second and Third Causes of Action, the Kasumyans present that Cal. Civ. Code § 3342, the statute imposing strict liability for dog bites, only applies to the owner of the dog. In the case of common law strict liability, the Kasumyans present that plaintiff must prove that: (1) the defendant owned, kept, or controlled a dog; (2) the dog had an unusually dangerous nature or tendency; (3) before the plaintiff was injured, the defendant knew or should have known the dog had this nature or tendency; (4) the plaintiff was harmed; and (5) the dog’s unusually dangerous nature or tendency was a substantial factor in causing the plaintiff’s harm.

As to Plaintiffs’ Fourth Cause of Action for Premises Liability, the Kasumyans argue that it fails because (1) landlords typically cannot be held liable for injuries caused by defective conditions on leased property, unless they knew or had reason to know about the condition, and had a reasonable opportunity to correct it; (2) , as a general rule, public policy precludes landlord liability for a dangerous condition on the premises which came into existence after possession has passed to a tenant as the landlord has surrendered possession and control of the land to the tenant and has no right to enter without the permission of the tenant; (3) the absence of prior accidents may be admissible on the issue of notice; and (4) Plaintiffs cannot show that Rosie had ever bitten anyone before (i.e., no notice of dangerous propensity) and whether the Kasumyans knew or should have known there was a hole in the wall for Rosie to escape does not matter if the Rosie is not shown to have a dangerous propensity.

Regarding the Fifth Cause of Action for Intentional Infliction of Emotional Distress (“IIED”), the Kasumyans argue that there is no evidence that they acted intentionally, let alone that the conduct rose to the level of outrageous conduct and that Plaintiffs have no evidence that they have suffered emotional distress.

Finally, the Kasumyans argue that the Sixth and Seventh Causes of Action for Negligent Infliction of Emotional Distress (“NIED”) fail because NIED is not a separate tort, but one of negligence. Further, argue that NIED for a direct victim includes only the three types of cases: (1) the negligent mishandling of corpses (Christensen v. Superior Court (1991) 54 Cal.3d 868, 879); (2) the negligent misdiagnosis of a disease that could potentially harm another (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 923); and (3) the negligent breach of a duty arising out of a pre-existing relationship. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1076.) Thus, the Kasumyans believe that NIED claims fail as the First Cause of Action (Negligence) fails.

Plaintiffs’ Opposition includes 19 pages of introduction, the legal standard for motions for summary judgments/adjudication, and disputed facts. For the purpose of brevity of this Court’s Opinion, the Court does not summarize them.

Plaintiffs argue that the Kasumyans are liable for the First and Fourth casues of action for premises liability as (1) "California law requires landowners to maintain land in their possession and control in a reasonably safe condition[]" (See Ann M v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674) and, to comply with this duty, a person who control property must inspect the condition of the premises. Plaintiffs present that (1) Vatche took it upon himself to maintain the property, (2) the Kasumyans are liable under res ipsa loquitor, (3) the Kasumyans are liable undern the principles of negligence per se as Cal. Civ. Code § 1714(a), and (4) the Kasumyans are liable under Cal. Civ. Code § 1953(a)(5) impute a statutory duty on them.

Plaintiffs withdraw their Second Cause of Action for Strict Liability under Cal. Civ. Code §3342.

As to the Third Cause of Action, Plaintiffs present persons who do not own the dog, but who harbor or keep it, may be strictly liable at common law if the person knew the dog had vicious tendencies and the Kasumyans harbored Rosie because they included the keeping of a dog in the lease and did not make any effort to remove the dog. Plaintiffs argue that Donchin v. Guerrero (1995) 34 Cal.App.4th 1832 provides a basis for discarding the necessity of knowledge of a dog’s vicious propensities where a defendant property owner’s credibility was in doubt.

Plaintiffs argue that the Kasumyans are liable for the Fifth Cause of Action, IIED, as they did not inspect their property which is a complete disregard of (1) the condition of their property and (2) the probability that individuals would experience distress resulting from a lack of inspecting the property.

Regarding the Sith and Seventh causes of action for NIED, Plaintiffs present that a bystander can recover under NIED so long as the bystander has a close relationship to the victim, is present at the scene and suffers emotional distress. Plaintiff presents for BIED related to a direct victim, the only difference is that defendant violated a duty owed directly to a plaintiff and, here, the Kasumyans did just that by failing to inspect their property for defective conditions, inspecting the back wall wood lattice, and the inspecting the defective chain link gate fence.

As an initial matter the Court notes that the facts in Plaintiffs’ Opposition are substantially different from the FAC. That is, while the FAC alleges that Mendoza leased the property, the Opposition states that the only tenants on the lease are Defendant Sandra Esparza and Valerie Watts. (Opposition 8:5-7; Pl.’s UMF No. 17.)

With a summary judgment motion, a three-step analysis is required of the trial court. (AARTS Productions, Inc. v. Crocker Nat’l Bank (1986) 179 Cal. App. 3d 1061, 1064–65.) First, the trial court must identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading. (Id. [emphasis added]) Secondly, the court must determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor. Id. When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. (Id.)

Accordingly, the Court analyzes the Motion for Summary Judgment, or in the alternative, Summary Adjudication on the basis of the issues framed by the pleadings, not those presented in Plaintiffs’ Opposition.

“ ‘The elements of a cause of action for negligence are well established. They are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c)the breach as the proximate or legal cause of the resulting injury.” ’ ” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)

The Kasumyans also present that there was no indication that Rosie was dangerous and that there is no general duty of landlords to periodically inspect the non-common areas of their leased premises for which they have relinquished control to the tenant.

The Complaint alleges that all defendants (1) “owed a duty to maintain and control their dog and to take all reasonable precautions to warn others, including Plaintiffs, as well as to avoid causing injury. Further, Defendants owed a duty to protect others, including Plaintiffs, from their dog since Defendants allowed their dog to approach others without restraint[;]” and (2) “Defendants had a duty to use reasonable care so as to avoid injury to others, including that duty to warn of a dangerous condition, which they created and/or knew or should have known.” (FAC ¶¶ 38-39.)

It is undisputed by both parties that Rosie is not the Kasumyans’ dog. (See Pl.’s UMF No. 7 [stating that Mendoza was the owner of Rosie and that Plaintiffs dispute this only to the extent the Kasumyans contend that they were not responsible at all for the dog].) Combined with the legal standard provided by the Kasumyans, the Kasumyans have met their burden to show that there is no triable issue of material fact as to Plaintiffs’ Negligence Cause of Action and the burden shifts to Plaintiffs to prove that an issue of material fact exists.

Plaintiffs’ arguments include: (1) “California law requires landowners to maintain land in their possession and control in a reasonably safe condition[]” (See Ann M v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674) and, to comply with this duty, a person who control property must inspect the condition of the premises. Plaintiffs present that (1) Vatche took it upon himself to maintain the property, (2) the Kasumyans are liable under res ipsa loquitor, (3) the Kasumyans are liable undern the principles of negligence per se as Cal. Civ. Code § 1714(a), and (4) the Kasumyans are liable under Cal. Civ. Code § 1953(a)(5) impute a statutory duty on them.

Plaintiffs’ arguments address the Kasumyans as landowners, not Rosie’s owner. The First Cause of Action in the FAC is based solely on the alleged fact that all defendants owned Rosie. Plaintiffs do not address the issue of whether the Kasumyans had knowledge of Rosie’s alleged dangerous propensities in order to constitute Rosie as a dangerous condition.

Plaintiffs do not meet their burden to demonstrate that a dispute of material fact or defense thereto exists.

“A common law strict liability cause of action may also be maintained if the owner of a domestic animal that bites or injures another person knew or had reason to know of the animal’s vicious propensities. If [defendant] knew or should have known of his dog’s vicious propensities and failed to inform[plaintiff] of such facts, he could be found to have exposed [plaintiff] to an unknown risk and thereby be held strictly liable at common law for her injuries. Under such circumstances, the defense of primary assumption of risk would not bar [plaintiff]’s claim since she could not be found to have assumed a risk of which she was unaware.” (Priebe v. Nelson (2006) 39 Cal.4th 1112, 1115-1116.) The court notes that the idea of strict liability is not limited to owners, but also to one[s] who keep or harbors a dog with unusually dangerous propensities. (See Priebe v. Nelson (2006) 39 Cal.4th 1112, 1115; Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 665; and Restat 2d of Torts, § 509.)

The pleadings, despite stating that this action is based on common law, allege Cal. Civ. Code § 3342 as the basis for this cause of action. (See FAC ¶ 51 [“Under California Civil Code Section 3342, the dog bite statute, a dog owner is liable for damages suffered by any person who is bitten by a dog.”]

As such, the Court analyzes this on the basis of the pleadings – Strict liability under Cal. Civ. Code § 3342.

The Kasumyans provide that strict liability only applies to the owner of the dog. Specifically, the Kasumyans focus on the language of the statute:

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. A person is lawfully upon the private property of such owner within the meaning of this section when he is on such property in the performance of any duty imposed upon him by the laws of this state or by the laws or postal regulations of the United States, or when he is on such property upon the invitation, express or implied, of the owner.

As to non-owners, the Kasumyans present that it has been held that, “[A] keeper, in contrast to an owner, is not an insurer of the good behavior of a dog, but must have scienter or knowledge of the vicious propensities of the animal before liability for injuries inflicted by such animal shall attach to him.” (Buffington v. Nicholson (1947) 78 Cal.App.2d. 37, 42.) The Kasumyans reiterate that they had no knowledge of Rosie having dangerous propensities.

The Kasumyans have met their burden to show that there is no triable issue of material fact as to Plaintiffs’ Third Cause of Action, based on Cal. Civ. Code § 3342, though titled differently, and the burden shifts to Plaintiffs to prove that an issue of material fact or defense thereto exists.

Plaintiffs present only a common law strict liability argument, though the pleadings allege a Cal. Civ. Code § 3342. As such, Plaintiffs do not meet their burden to show that there is a dispute of material fact or defense thereto as to the Third Cause of Action.

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. Premises liability ‘ “is grounded in the possession of the premises and the attendant right to control and manage the premises” ’; accordingly, ‘ “mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.” ’ But the duty arising from possession and control of property is adherence to the same standard of care that applies in negligence cases. In determining whether a premises owner owes a duty to persons on its property, we apply the Rowland [Rowland v. Christian (1968) 69 Cal.2d 108. [70 Cal.Rptr. 97, 443 P.2d 561]] factors. Indeed, Rowland itself involved premises liability.’ ” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, [internal citations omitted.].) “ ‘ “[A] landowner’s duty of care to avoid exposing others to a risk of injury is not limited to injuries that occur on premises owned or controlled by the landowner.” ’ ‘Rather, the duty of care encompasses a duty to avoid exposing persons to risks of injury that occur off site if the landowner’s property is maintained in such a manner as to expose persons to an unreasonable risk of injury offsite.’ ” (Id. at p. 1159.)

Because the basis of the First Cause of Action (Negligence) and the Fourth Cause of Action (Premise Liability) are different, the Court analyses them separately.

The pleadings in relation to the Premise Liability cause of action is that all defendants “owed a duty of reasonable care toward PLAINTIFFS and others based on As [sic] against Defendants ownership, possession and operation of the property where the injury occurred. Defendants, as the owners, maintainers, controllers, managers, lessors, and operators of the property were negligent in that, among other things, they failed to exercise due care in the ownership, construction, operation, control maintenance [sic] of the property including but not limited to hiring, training, retention, and supervision of persons working inside the property, to ensure that PLAINTIFFS was [sic] not subject to any unreasonable risk of harm when at the property.” (FAC ¶¶ 58-59.)

As mentioned, ante, the Kasumyans argue that: (1) landlords typically cannot be held liable for injuries caused by defective conditions on leased property, unless they knew or had reason to know about the condition, and had a reasonable opportunity to correct it; (2) , as a general rule, public policy precludes landlord liability for a dangerous condition on the premises which came into existence after possession has passed to a tenant as the landlord has surrendered possession and control of the land to the tenant and has no right to enter without the permission of the tenant; (3) the absence of prior accidents may be admissible on the issue of notice; and (4) Plaintiffs cannot show that Rosie had ever bitten anyone before (i.e., no notice of dangerous propensity) and whether the Kasumyans knew or should have known there was a hole in the wall for Rosie to escape does not matter if the Rosie is not shown to have a dangerous propensity.

As previously analyzed, Plaintiffs do not address the issue of whether the Kasumyans had knowledge of Rosie’s alleged dangerous propensities in order to constitute Rosie as a dangerous condition. Case precedent provides:

“[W]here a landlord has relinquished control of property to a tenant, a ‘bright line’ rule has developed to moderate the landlord's duty of care owed to a third party injured on the property as compared with the tenant who enjoys possession and control. ‘“Because a landlord has relinquished possessory interest in the land, his or her duty of care to third parties injured on the land is attenuated as compared with the tenant who enjoys possession and control. Thus, before liability may be thrust on a landlord for a third party's injury due to a dangerous condition on the land, the plaintiff must show that the landlord had actual knowledge of the dangerous condition in question, plus the right and ability to cure the condition.” [¶] Limiting a landlord's obligations releases it from needing to engage in potentially intrusive oversight of the property, thus permitting the tenant to enjoy its tenancy unmolested.’”

With the Kasumyans argument backed by case precedent and the lack of allegations that Rosie had a dangerous propensity, the Kasumyans have succeeded in meeting their burden. The burden shifts to Plaintiffs to prove that an issue of material fact or defense thereto exists.

Plaintiffs have combined their argument with that of the First Cause of Action (Negligence).

First, Plaintiffs argue that Vatche undertook a duty to maintain the property when he volunteered to be responsible for repairs. Plaintiffs present that “the sliding gate did not close entirely and he believed it to be a reason the dog, "Rosie", escaped from his yard.” Plaintiffs, however, also present that the Animal Control Officer testified that Rosie escaped through the rotted broken wood lattice in the wall. Plaintiffs present two further arguments: (1) that the Kasumyans are liable for Premise liability under Cal. Civ. Cde § 1714(a) and Cal. Civ. Code § 1953(a)(5), and (2) the Kasumyans are liable under res ipsa loquitur.

The presentation of the sliding gate is a non-issue. The FAC, Plaintiff’s depositions, and the Animal Control Officer state that Rosie escaped through a broken wood lattice. (Pl.’s Exhs. L, M, G, and I.)

Here, it is not alleged that the Kasumyans had knowledge of the defect in the wood lattice and Rosie’s alleged dangerous propensity.

It appears that Plaintiffs may also be trying to argue that Mendoza was the Kasumyan’s agent. However, (1) there are no allegations in the FAC that Mendoza is the Kasumyan’s agent, and (2) Plaintiffs own argument defeats itself. That is, Plaintiff presents that “an agent is one who represents another, called the principal, in dealings with third persons[] See Civ. Code 2295[]” (Opposition 18:10-11) while Plaintiffs do not argue that Mendoza ever represented himself as an agent to others. Plaintiffs only present that the Kasumyans had an agreement with Mendoza that Mendoza was to notify them should any repairs be needed on the property. (See Def. UMF No. 27.)

Regarding res ipsa loquitur, “[t]he (a) vicious propensities and dangerous character of a dog and (b) knowledge thereof by his owner may be inferred from evidence that the dog was kept (1) tied (2) as a watchdog and also (3) from his size and breed. (Davis v. Mene, 52 Cal.App. 368, 369 [198 P. 840]; Warner v. Chamberlin, 7 Houst. (Del.) 18 [30 A. 638, 639]; Montgomery v. Koester, 35 La.Ann. 1091, 1093 [48 Am.Rep. 253].)” (Frederickson v. Kepner (1947) 82 Cal. App. 2d 905.) The only allegation directed to Rosie is that she is a “shepard type dog.” (FAC ¶ 5.) There is not enough information to infer the vicious propensities of Rosie.[2] Regarding Plaintiffs’ specific res ipsa loquitur arguments – Rosie excaped through a broken wooden lattice, the backyard was under the control of the Kasumyans, and there is no dispute that Wheeler or Reed had anything to do with the dog’s escape – Plaintiffs neglect to provide a showing that the property was under the exclusive control of the Kasumyans. That is, “[i]n California, the doctrine of res ipsa loquitur is defined by statute as ‘a presumption affecting the burden of producing evidence.’ The presumption arises when the evidence satisfies three conditions: ‘(1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.’ A presumption affecting the burden of producing evidence ‘require[s] the trier of fact to assume the existence of the presumed fact’ unless the defendant introduces evidence to the contrary. The presumed fact, in this context, is that ‘a proximate cause of the occurrence was some negligent conduct on the part of the defendant . . . .’ If the defendant introduces ‘evidence which would support a finding that he was not negligent or that any negligence on his part was not a proximate cause of the occurrence,’ the trier of fact determines whether defendant was negligent without regard to the presumption, simply by weighing the evidence.” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825-826.) Plaintiffs specifically allege that Mendoza resided at the Property (FAC ¶ 6); therefore, the property is not in the exclusive control of the Kasumyans.

Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself. The design, distribution, or marketing of firearms and ammunition is not exempt from the duty to use ordinary care and skill that is required by this section. The extent of liability in these cases is defined by the Title on Compensatory Relief.

Any provision of a lease or rental agreement of a dwelling by which the lessee agrees to modify or waive any of the following rights shall be void as contrary to public policy:

(5) His right to have the landlord exercise a duty of care to prevent personal injury or personal property damage where that duty is imposed by law.

Despite this presentation by Plaintiffs, Plaintiffs fail to address the precedent cited by the Kasumyans in which a landlord’s duty of care to a third party after relinquishing control of the premises requires knowledge. Further, the lease provided is not between Mendoza and the Kasumyans and, had it been between Mendoza and the Kasumyans, it does not seek to absolve the Kasumyans of their duty of care. (See Def.’s Exh. B.) Further, Plaintiffs present that the Kasumyans made it clear that they took responsibility for repairs and maintenance of the property. (See Def. UMF No. Ex 26 [citing Exh. K].)

Plaintiffs do not meet their burden to show that there is a dispute of material fact or defense thereto as to the Fourth Cause of Action.

“A cause of action for intentional infliction of emotional distress exists when there is ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress;(2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.’ A defendant’s conduct is ‘outrageous’ when it is so ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ And the defendant’s conduct must be ‘intended to inflict injury or engaged in with the realization that injury will result.’ ” (Hughes v. Pair (2009) 46 Cal.4th 1035,1050-1051.)

The acts and/or omissions of Defendants, including but not limited to allowing her dog to attack and bite PLAINTIFFS, and failing to stop these actions from happening could never be construed as tolerated by a civilized society.

The act/or omissions described within this cause of action, and those alleged herein throughout the Complaint, either separately or in totality, were so extreme and outrageous that they cannot be tolerated by a civilized society.

The Kasumyans present that there is no evidence that they acted intentionally let alone that any of their conduct rose to the level of outrageous conduct that is intolerable in a civilized community nor do Plaintiffs have evidence that they suffered severe emotional distress.

The FAC does not have an allegation of intent. It specifically focuses on all defendants’ failures to stop their dog. The Court does note that the Responses to Defendants’ Form Interrogatories that the Kasumyans rely on to show that Plaintiffs have not suffered severe emotion distress evidence that Vanessa and Reed have a fear of large dogs and fear and anxiety. (Def.’s Exh. D.)

However, as intent is a necessary element of IIED, the Kasumyans have met their burden to show that there is no triable issue of material fact as to Plaintiffs’ Fifth Cause of Action.

Plaintiffs argue in opposition that the Kasumyan’s failure to inspect its property before they rented it to Defendant Esparza is evidence of the outrageous conduct. This argument does not align with the pleadings. There are no arguments by Plaintiffs that address the issues framed by the pleading.

As such, Plaintiffs do not meet their burden to show that a dispute of material fact or defense thereto exists as to the Fifth Cause of Action for IIED.

“ ‘[The] negligent causing of emotional distress is not an independent tort but the tort of negligence . . . .’ ‘The traditional elements of duty, breach of duty, causation, and damages apply. Whether a defendant owes a duty of care is a question of law. Its existence depends upon the foreseeability of the risk and upon a weighing of policy considerations for and against imposition of liability.’ ” (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48Cal.3d 583, 588.) “ ‘Direct victim’ cases are cases in which the plaintiff’s claim of emotional distress is not based upon witnessing an injury to someone else, but rather is based upon the violation of a duty owed directly to the plaintiff.” (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 205.) The California Supreme Court has allowed plaintiffs to recover damages as “direct victims” in only three types of factual situations: (1) the negligent mishandling of corpses (Christensen v. Superior Court (1991) 54 Cal.3d868, 879 [2 Cal.Rptr.2d 79, 820 P.2d 181]); (2) the negligent misdiagnosis of a disease that could potentially harm another (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, at p. 923); and(3) the negligent breach of a duty arising out of a preexisting relationship (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1076.) “In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the plaintiff: (1) is closely related to the injury victim, (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim and, (3) as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness.” (Thing v. La Chusa (1989) 48 Cal.3d 644, 647.) In the context of recovering damages for NIED on a relative, "relative" is defined as, “ ‘[A] person connected with another by blood or affinity; a kinsman.’ (Black's Law Dict. (7th ed. 1999) p. 1291, col. 2.) Affinity is defined as: "1. A close agreement. 2. The relation that one spouse has to the blood relatives of the other spouse; relationship by marriage. 3. Any familial relation resulting from a marriage.’ (Id. at p. 59, col. 1.)” (Moon v. Guardian Postacute Servs. (2002) 95 Cal. App. 4th 1005, 1010.) NIED has been sanctioned in cases of spouses. (See Krouse v. Graham (1977) 19 Cal.3d 59, 74-78 [NIED on behalf of a spouse who was present when his wife was struck and killed by another vehicle] and Drew v. Drake (1980) 110 Cal. App. 3d 555 [holding that witnessing an injury to spouse or child meets the Dillon v. Legg (1968) 68 Cal.2d 728 test because it is reasonably foreseeable that a person standing in such close relationship to the injured person may be present and suffer intense distress].)

The FAC alleges NIED as a direct victim for Vanessa and Reed and as a bystander as to all Plaintiffs.

The Kasumyans cite the Supreme Court cases regarding direct victim NIED and emphasize the need for a close relationship for bystander NIED. The Kasumyans respectfully submit that, if, as already argued, Plaintiffs’ First Cause of Action for Negligence and Fourth Cause of Action for Premises Liability, a form of negligence, fail because Plaintiffs cannot establish the necessary elements of these causes of action, so too must Plaintiffs’ Sixth and Seventh Causes of action for NIED.

Regarding direct victim NIED, this case does not fall under the three types of cases set out by the California Supreme Court for NIED of direct victims (i.e., a dog bite incident is not the negligent mishandling of corpses [Christensen v. Superior Court (1991) 54 Cal.3d868, 879], the negligent misdiagnosis of a disease that could potentially harm another [Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, at p. 923], or the negligent breach of a duty arising out of a preexisting relationship [Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1076.].)

Accordingly, as (1) the dog bite case does not fall under the standard set by the California Supreme Court and (2) no emotional damages are alleged from witnessing the harm done to any Plaintiff, the Kasumyans met their burden to show that there is no triable issue of material fact as to Plaintiffs’ Sixth and Seventh Causes of Action.

Plaintiffs argue that all Plaintiffs are related to each other by blood and/or marriage and have “suffered serious emotional distress by having to not only be attacked physically but watch helplessly as their family members are also attacked.” (Opposition 25:1-3.) The Court notes that Ryan was not physically injured or affected by Rosie as alleged in the FAC. Plaintiffs argue that direct victim NIED requires a violation of a duty and reiterate that the Kasumyans violated their duty to maintain their land in a reasonably safe condition m causing harm to others.

Plaintiffs’ arguments regarding direct victim NIED do not sway the Court as it is bound by the California Supreme Court’s holding. Plaintiffs’ arguments regarding bystander NIED fail due to their discovery responses. Plaintiffs' discovery responses are party admissions. “ ‘Admissions contained in depositions and interrogatories are admissible in evidence to establish any material fact.’ (Leasman v. Beech Aircraft Corp. (1975) 48 Cal.App.3d 376, 380 [121 Cal. Rptr. 768]; see also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 [107 Cal. Rptr. 2d 841, 24 P.3d 493] [listing “‘answers to interrogatories’” as a type of “‘evidence’” that may be presented in favor or in opposition to a motion for summary judgment].) In particular, Plaintiffs' admissions are statements of a party opponent and not subject to exclusion under the hearsay rule. (Evid. Code, § 1220; see also People v. Rodriguez (2014) 58 Cal.4th 587, 637 [168 Cal. Rptr. 3d 380, 319 P.3d 151].)” (Rycz v. Superior Court (2022) 81 Cal. App. 5th 824, 845.)

Thus, Plaintiffs fail to demonstrate a dispute of material fact or defense thereto exists as to their Sixth and Seventh Causes of Action.

The Kasumyans present that Plaintiffs erroneously rely on Donchin. The Kasumyans point out that, in Donchin, the issue was whether the dog was dangerous; however, here, there is insufficient circumstantial evidence to warrant a triable issue whether Rosie was dangerous. Further, the Kasumyans argue that Donchin created a two-part test to determining a landlord’s liability for a dog bite off the leased premises and it follows that, if Plaintiffs cannot meet the first part (i.e., that Rosie was dangerous), Plaintiffs cannot proceed to the final step. The Kasumyans reiterate that there is no triable issue of material fact as to whether the Kasumyan’s are the keepers of Rosie and as to the inspections. Finally, the Kasumyans present that they are not liable under res ipsa loqitur as the instrumentality that caused the accident is not the broken lattice or the chain link fence, but rather Rosie’s alleged dangerous propensity.

The Kasumyans filed a document titled “Response to Plaintiffs Additional Material Facts In Opposition To Motion For Summary Judgment, Or In The Alternative For Summary Judgment.” In this filing, the Kasumyans present that they do not dispute the material facts presented by Plaintiffs, they dispute the facts presented by Plaintiffs, or present an evidentiary objection. An exception is their response to Plaintiffs’ Material Fact No. 50 in which they object, but state that the fact is undisputed. Cal. Rules of Court, Rule 3.1354(b) presents:

All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement. Each written objection must be numbered consecutively and must:

(1) Identify the name of the document in which the specific material objected to is located;

(2) State the exhibit, title, page, and line number of the material objected to;

The Kasumyans have not followed Cal. Rules of Court, Rule 3.1354(b) and, as such, the Court does not rule on their objections.

In this court's view, this inquiry into the landlord's duty involves a two-step approach. The first step is to determine the landlord's knowledge of the dog's vicious nature. In Uccello v. Laudenslayer (1975) 44 Cal. App. 3d 504 [118 Cal. Rptr. 741, 81 A.L.R.3d 628], the court established a landlord can only be liable if he or she had actual knowledge of the dog's vicious propensity. This actual knowledge rule has been followed in Lundy v. California Realty (1985) 170 Cal. App. 3d 813 [216 Cal. Rptr. 575] and in Portillo v. Aiassa (1994) 27 Cal. App. 4th 1128 [32 Cal. Rptr. 2d 755]. However, it can be satisfied by circumstantial evidence the landlord must have known about the dog's dangerousness as well as direct evidence he actually knew. (Uccello v. Laudenslayer, supra, 44 Cal. App. 3d 504, 514, fn. 4.)

The second step involves a landlord's ability to prevent the foreseeable harm. In Uccello the court relied on Dennis v. City of Orange (1930) 110 Cal. App. 16 [293 P. 865] to establish the principle the landlord's duty derives from his control and ability to prevent dangerous conditions on his property. In Dennis, a landlord was held liable for a nuisance created by a tenant's gravel excavation. The court stated, "[t]he ground of the defendant's liability for the nuisance is that it existed at a time when he had the opportunity or power to abate or remove it and failed to do so." (Id. at p. 24.) Thus, the injuries the dogs cause must be ones which would not have occurred if the landlord had taken actions which were within his power. In the cases of dangerous dogs, that potential power is found in whatever rights the landlord may have to insist the tenant remove the dogs from the leased premises or to insure the property is so secure the dogs cannot escape to harm persons on or off the property. (See discussion at pp. 1846-1847, post.)

The Court’s analysis has been that (1) it is not alleged that the Kasumyans had knowledge of the defect in the wood lattice and Rosie’s alleged dangerous propensity, and (2) Plaintiffs do not address the issue of whether the Kasumyans had knowledge of Rosie’s alleged dangerous propensities in order to constitute Rosie as a dangerous condition.

Accordingly, this case is more akin to Yuzon v. Collings (2004) 116 Cal. App. 4th 149, which holds:

We distinguish Donchin, supra, 34 Cal.App.4th 1832, in which the tenant’s dogs displayed vicious propensities that would have been apparent to anyone, including the landlord, who regularly visited the property.

In Donchin, the landlord regularly visited the property. (34 Cal.App.4th at p. 1836.) Accordingly, it was reasonable to infer in Donchin that the landlord must have seen the dogs behaving aggressively, in the same manner as was described by the UPS employee and neighbor. In this case, on the other hand, Collins visited the property infrequently and Kemo was not kept outside where his vicious propensities could be observed. We therefore distinguish Donchin, where the landlord’s false exculpatory denials of any knowledge of the vicious dogs’ existence and of having given permission for the dogs to be present on the property, were deemed to constitute evidence of his consciousness of liability. (Donchin, supra, 34 Cal.App.4th at pp. 1840–1844.) Moreover, in this case, Collins never denied having given permission for the dogs to be present. A fair reading of Collins’ testimony shows that he knew there were dogs on the property, but not that Kemo, or any other particular dog, was on the property. While portions of Collins’s deposition may be taken as a denial of any knowledge that dogs were present, he did not make the same sort of denial as the landlord in Donchin. Unlike the landlord in Donchin, Collins also testified that he did not know what specific dogs were present but that he knew the lease permitted dogs.

Given the absence of any evidence of prior vicious propensities in this case, Collins’ request to have the dogs confined while the insurance inspector looked in the backyard does not support a reasonable inference that Collins had actual knowledge of Kemo’s vicious propensities. In the absence of any evidence that Collins knew or must have known Kemo was dangerous, it would be purely speculative to infer that his request to confine the dogs was based on his knowledge that Kemo was dangerous. “An issue of fact can only be created by a conflict of evidence. It is not created by ‘speculation, conjecture, imagination or guess work.’ [Citation.] Further, an issue of fact is not raised by ‘cryptic, broadly phrased, and conclusory assertions’ [citation], or mere possibilities [citation].” (Sinai Memorial Chapel v. Dudler (1991) 231 Cal. App. 3d 190, 196–197 [282 Cal. Rptr. 263].)

Regarding Plaintiffs’ Supplemental Memorandum, the Court addressed Plaintiffs’ first argument in footnote 1 to the “Background” section of this Statement of Decision.

As to the second argument, it appears that Plaintiffs take issue with this statement in the Kasumyan’s Reply:

However, nowhere in Plaintiff’s Opposition Plaintiff’s proffered any evidence implicating any of these newly-named Defendants, and therefore it is respectfully submitted that summary judgment or summary adjudication also extend to these Defendants.

Plaintiffs argue that a joinder must be timely and in proper form, a joinder filed a few days before the hearing is not sufficient to obtain relief, and that the joining party must file and serve a request for relief in their own name and such request must be timely filed and served.

The Court agrees. First, it is well established that new arguments presented in reply briefs will not be considered. (See In re Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467, 1477-78 [“ ‘Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant. [Citations.]” (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11 [142 Cal. Rptr. 429, 572 P.2d 43].) ‘ “[T]he rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before. [Citations.]” [Citation.]’ (People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26 [86 Cal. Rptr. 2d 243, 978 P.2d 1171].) The argument that appellant was not required to show changed circumstances was forfeited by her failure to raise it in her opening brief. In any case, the contention is without merit.”].) Second, joinders have to be filed with the same notice as regular motions. (See Barak v. Quisenberry Law Firm (2006) 135 Cal. App. 4th 654, 660-662 [joinder allowed when timely filed].)

The Court does not consider the Kasumyan’s argument about the extension of the Motion for Summary Judgment to the newly-named defendants.

[1] Plaintiffs’ Supplemental Memorandum argues that the Reply is untimely by citing Cal. Code Civ. Proc. §§ 12c and 1005(c). Plaintiffs Supplemental Memorandum fails to address Cal. Rules of Court Rule 1.10 entirely. Further, Cal. Code Civ. Proc. § 1005(c) does not address electronic delivery directly. (See Cal. Code Civ. Proc. § 1005(c) [“Notwithstanding any other provision of this section, all papers opposing a motion and all reply papers shall be served by personal delivery, facsimile transmission, express mail, or other means consistent with Sections 1010, 1011, 1012, and 1013, and reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time the opposing papers or reply papers, as applicable, are filed. This subdivision applies to the service of opposition and reply papers regarding motions for summary judgment or summary adjudication, in addition to the motions listed in subdivision (a).”].) Cal. Code Civ. Proc. § 1010.6 addresses electronic delivery and states: (1) “[i]f a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of that document is deemed complete at the time of the electronic transmission of the document or at the time that the electronic notification of service of the document is sent[]” (Cal. Code Civ. Proc. § 1010.6(a)(3)(A) and (2) “[a]ny period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days, but the extension shall not apply to extend the time for filing any of the following: (i) A notice of intention to move for new trial. (ii) A notice of intention to move to vacate judgment under Section 663a. (iii) A notice of appeal[]” (Cal. Code Civ. Proc. § 1010.6(a)(3)(B)). That is, to comply with Cal. Code Civ. Proc. § 1010.6, Plaintiffs have an extension of two Court days to respond. The Court notes that a surreply, such as their memorandum, is not addressed in Cal. Code Civ. Proc. §437c.

[2] The Court notes that Exhibit I has an image of a dog, but it is labeled “Photo of dog cage, kennel run and broken lattice in backyard Eo taken by Los Angeles County Animal Control Report.” As such, it is unclear that the dog pictured is Rosie. Further, no specific information is provided about the dog pictured.