Judge: Steven A. Ellis, Case: 21STCV01417, Date: 2024-06-21 Tentative Ruling
Case Number: 21STCV01417 Hearing Date: June 21, 2024 Dept: 29
Motion for Summary Judgment filed by Defendants Rafiq Shah and Monica
Shah.
Tentative
The motion is granted.
Landlords do not
owe a duty of care to protect a third party from their tenants' dog unless the
landlords have actual knowledge of the dog’s dangerous propensities, and the
ability to control or prevent the harm. There is no evidence in the record that
would allow a finder of fact to draw a reasonable inference that Defendants had
actual knowledge of the vicious nature or dangerous propensities of the dog who
attacked Plaintiff.
Background
On January 13, 2021, Celia Gutierrez
(“Plaintiff”) filed a complaint against Gabrielle Ortega, Gabina Cabrales,
Rafiq Shah, Monica Shah, and Does 1 through 50 for injuries arising out of a
dog bite on February 1, 2019, on premises located at or near 6020 Stafford Avenue
in Huntington Park. Plaintiff asserted
causes of action for negligence and premises liability against all defendants
and an additional cause of action for strict liability against Gabrielle Ortega
and Gabina Cabrales.
On April 1, 2022, Gabrielle Ortega and Gabina
Cabrales filed an answer. On April 7,
2022, Rafiq and Monica Shah (“Defendants”) filed an answer.
On April 3, 2024, Defendants filed this motion
for summary judgment. Plaintiff filed an untimely opposition, along with
objections to evidence, on June 12, 2024. Defendant filed a reply on June 14,
2024.
Legal Standard
“The purpose
of the law of summary judgment is to provide courts with a mechanism to cut
through the parties’ pleadings in order to determine whether, despite their allegations,
trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section
437c, subdivision (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
cause of action as framed by the complaint, a defendant moving for summary
judgment or summary adjudication must satisfy the initial burden of proof by
presenting facts to show “that one or more elements of the cause of action ...
cannot be established, or that there is a complete defense to the cause of
action.” (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra,
25 Cal.4th at pp. 850-851; Scalf v. D. B. Log Homes, Inc. (2005) 128
Cal.App.4th 1510, 1520.) 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.” (Code Civ. Proc.,
§ 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp.
850-851.)
A plaintiff or
cross-complainant moving for summary judgment or summary adjudication must
satisfy the initial burden of proof by presenting facts to show “that there is
no defense to a cause of action if that party has proved each element of the
cause of action entitling the party to judgment on the cause of action.” (Code
Civ. Proc., § 437c, subd. (p)(1).) Once the plaintiff or cross-complainant has
met that burden, the burden shift to the defendant or cross-defendant to show
that a “triable issue of one or more material facts exists as to the cause of
action or a defense thereto.” (Ibid.)
The party
opposing a motion for summary judgment or summary adjudication may not simply
“rely upon the allegations or denials of its pleadings” but must instead “set
forth the specific facts showing that a triable issue of material fact exists.”
(Code Civ. Proc., § 437c, subds. (p)(1) & (p)(2). 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.)
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.)
Objections
to Evidence
Evidence presented in support of, or
in opposition to, a motion for summary judgment must be admissible. (Code Civ.
Proc., § 437c, subd. (d); Perry
v. Bakewell Hawthorne LLC
(2017) 2 Cal.5th 536, 541-43.) The court must “consider all of the evidence set forth in the papers,
except the evidence to which objections have been made and sustained.” (Code
Civ. Proc., § 437c, subd. (c).)
Plaintiff asserts
five objections to Defendants’ evidence.
Objections Nos. 1-4 are OVERRULED.
Objection No. 5 is SUSTAINED (interrogatory response is unverified).
Discussion
As a threshold
matter, the Court exercises its discretion to consider Plaintiff’s late-filed
opposition.
On February 1,
2019, Plaintiff was bitten by a dog named “Sebastian.” (Defendants’ Statement of Undisputed Material
Facts [“DSUMF”], Nos. 1-2; Plaintiff’s Statement of Additional Material Facts
[“PSAMF”], No. 1.) Sebastian was owned
by Gabrielle Ortega and Gabina
Cabrales. (DSUMF, Nos. 2-3; PSAMF, No.
1.) Defendants did not own Sebastian. (DSUMF, No. 3.) Defendants were the landlords of Sebastian’s
owners: Defendants owned the house on Stafford Avenue in which Sebastian and
his owners lived, but Defendants themselves did not reside there. (DSUMF, No. 4; PSAMF, Nos. 1-3.)
Gabina Cabrales testified in her deposition
that prior to the date that Sebastian bit Plaintiff, no one had ever complained
to her about the dog. (Katiraie Decl., Exh.
B & Shakhbazyan Decl., Exh. 2 [“Cabrales Depo.”], 64:7-22.) Prior to the incident, Ms. Cabrales was not
aware of Sebastian having any “vicious propensities.” (Id. at 66:8-67:1; see also DSUMF No.
6.) To the knowledge of Ms. Cabrales,
Defendants were not aware of any “vicious propensities” of Sebastian prior to
the incident. (Id. at 67:2-13.)
Plaintiff had not previously been attacked
by Sebastian; in fact, Plaintiff had never even seen the dog prior to the
incident. (Katiraie Decl., Exh. C &
Shakhbazyan Decl., Exh. 1 [“Plaintiff’s Depo.”], 17:17-18, 25:9-17, 27:6-19,
41:19-24.) Plaintiff testified that someone
else, a neighbor whose name she could not recall, told her afterwards that she (the
neighbor) had previously been attacked by the dog. (Id. at 47:3-22, 69:21-70:6.) Plaintiff testified that after the incident
her neighbors told her that they had seen Sebastian “running outside in the
alley” and “they feared the dog because it was big.” (Id. at 45:12-20.)
The lease agreement between Defendants and
Sebastian’s owners stated that Sebastian’s owners were not allowed to have any
dogs on the premises. (DSUMF, No. 10; PSAMF,
No. 4; Cabrales Depo., 18:1-15.)
Cabrales admitted, “I was not allowed to have pets in the house, and I
broke the lease.” (Cabrales Depo.,
19:18-19.) She tried to hide her pets from
Defendants, but eventually Defendants became aware of the animals, including
Sebastian. (Id. at 19:11-13, 23:19-25:8,
32:7-15.) Defendant Rafiq Shah, however,
denied that he knew of Sebastian prior to the incident. (Shakhbazyan Decl., Exh. 3 [“Rafiq Shah Depo.”],
16:19-21.)
In the
complaint, Plaintiff asserts causes of action for negligence and premises
liability against Defendants. (Defendants
argue in their memorandum that there is no basis for a strict liability claim against
them; that seems correct, but in any event Plaintiff asserts no such cause of
action against them in the complaint.)
The basic
elements of a cause of action for negligence and for premises liability are the
same: (1) the existence of a legal duty;
(2) breach of that duty; (3) causation; and (4) resulting damages. (Brown
v. USA Taekwondo (2021) 11 Cal.5th 204, 213; Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158; Castellon v. U.S. Bancorp
(2013) 220 Cal.App.4th 994, 998.) The existence and scope of duty are legal questions
for the court.¿¿(Brown, supra, 11 Cal.5th at p. 213; Annocki¿v.
Peterson Enterprises, LLC¿(2014) 232 Cal.App.4th 32, 36.)
The general rule
governing duty is set forth in Civil Code section 1714: “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.” (Civ. Code, § 1714, subd. (a).) This establishes what the California
Supreme Court has described as the “default rule” that every person has a legal
duty “to exercise, in his or her activities, reasonable care for the safety of
others.” (Brown, supra, 11 Cal.5th at p. 214.)
Those who own,
possess, or control property generally have a duty to exercise ordinary care in
managing the property to avoid exposing others to an unreasonable risk of harm.
(Annocki¿v.
Peterson Enterprises, LLC¿(2014) 232 Cal.App.4th 32, 37.) If
a dangerous condition exists, the property owner is “under a duty to exercise
ordinary care either to make the condition reasonably safe for their
[customers’] use or to give a warning adequate to enable them to avoid the
harm.” (Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446.)
“It is well established in
California that although a [property] owner is not an insurer of the safety of
its patrons, the owner does owe them a duty to exercise reasonable care in
keeping the premises reasonably safe.” (Ortega v. Kmart Corp. (2001) 26
Cal.4th 1200, 1205.) “A plaintiff alleging injuries based on a
dangerous condition must prove the defendant either: (1) created the dangerous
condition, or (2) knew or should have known of the dangerous condition.” (See Peralta
v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1036; see also Ortega,
supra, 26 Cal.4th at p. 1206.) “[A] defendant is entitled to judgment as a
matter of law if the plaintiff fails to show that the dangerous condition
existed for at least a sufficient time to be discovered by ordinary care and
inspection.” (Id. at p. 1207.) “The owner must inspect the premises or
take other proper action to ascertain their condition, and if, by the exercise
of reasonable care, the owner would have discovered the condition, he is liable
for failing to correct it.” (Ibid)
Courts in California have developed special rules
that apply where, as here, a plaintiff seeks to hold a property owner/landlord
liable for injuries caused by a bite or attack from a tenant’s dog:
“[A] duty of care may not be imposed on a
landlord without proof that he knew of the dog and its dangerous propensities.
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.
For this reason ... a landlord is under no duty to inspect the premises for the
purpose of discovering the existence of a tenant's dangerous animal; only when
the landlord has actual knowledge of the animal, coupled with the right to have
it removed from the premises, does a duty of care arise.”
(Yuzon v. Collins (2004) 116
Cal.App.4th 149, 163, quoting Uccello v. Laudenslayer (1975) 44
Cal.App.3d 504, 507; see also Donchin v. Guerrero (1995) 35 Cal.App.4th
1832, 1838 [“a landlord who does not have actual knowledge of a tenant's dog's
vicious nature cannot be held liable when the dog attacks a third person”].)
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.)
For example, in Lundy
v. California Realty (1985) 170
Cal.App.3d 813, the Fourth District Court of Appeal affirmed summary judgment
in favor of landlords where a tenant's dog chased a cable
television engineer. The plaintiff
entered the tenant's backyard, and injured himself jumping over a fence when
the dog came running toward him. (Id. at 817.)
Aside from knowing the tenants kept on the premises a German Shepherd, the
landlords knew nothing about the dog, and therefore the facts before the trial
court fell short of creating a triable issue of fact as to the landlords'
knowledge of any dangerous propensities on the part of the dog. (Id. at
818-822.)
Here, Plaintiff recognizes that she must
show both (1) that Defendants had actual knowledge of the dog’s vicious nature
prior to the incident; and (2) that Defendants had the ability to control or
prevent he harm. (Opp. at pp.
11-12.)
The Court has considered all of the
evidence in the record as well as the arguments of counsel. There is a dispute in the evidence regarding
whether Defendant Rafiq Shah knew that the tenants had a dog. (Cabrales Depo. at 19:11-13, 23:19-25:8, 32:7-15;
Rafiq Shah Depo., 16:19-21.) Viewing the
evidence in the light most favorable to the non-moving party, and drawing all
reasonable inferences in her favor, the Court determines, for purposes of
ruling on this motion, that Defendant Rafiq Shah knew that the tenants had
Sebastian prior to the incident.
Actual knowledge of Sebastian’s existence, however,
does not establish – or provide any basis for a trier of fact to draw a
reasonable inference of – actual knowledge of Sebastian’s vicious nature. Nor does any other evidence in the record show,
or support a reasonable inference, that either Defendant, or both Defendants,
had actual knowledge prior to the incident that Sebastian had a vicious nature
or dangerous propensities.
Plaintiff testified that after the
incident, an unnamed neighbor told Plaintiff that the neighbor had been
attacked by Sebastian and that either the same or different unnamed neighbors
expressed a fear about Sebastian because he sometimes ran outside and he was
big. (Plaintiff’s Depo. at 45:12-20, 47:3-22,
69:21-70:6.) Aside from the obvious
hearsay nature of these statements (if offered to prove the truth of the
matters asserted), and even assuming, for purposes of ruling on this motion,
that these statements from the neighbors are true, there is no evidence in the
record that any of this information was ever communicated to Defendants. Nor, viewing the evidence in the light most
favorable to Plaintiff, are there any facts in the record that would allow a
finder of fact to draw a reasonable inference that this information was communicated
to Defendants. The issue is what
Defendants actually knew, not what they might have learned if they had reached
out and spoken to their tenants’ neighbors prior to the incident. And there is not, on this record, a triable
issue as to Defendants’ actual knowledge of Sebastians’s vicious nature or
dangerous propensities prior to the incident.
In sum,
Defendants have met their initial burden on summary judgment to show at least
one of the elements of Plaintiff’s causes of action cannot be established. (Code Civ. Proc., § 437c, subd. (p)(2).) Here, that element is duty. The law is well settled that a landlord has
no duty to protect a third party from a tenant’s dog unless the landlord has
actual knowledge, prior to the incident, of the vicious nature or dangerous
propensities of the dog, and there is no evidence of such actual knowledge in
the record here. Once Defendants met their
initial burden, the burden then shifts to Plaintiff to show that a “triable
issue of one or more material facts exists” as to Defendants’ actual
knowledge. (Code Civ. Proc., § 437c, subd. (p)(2).) Plaintiff has not done so.
As there is no
triable issue as to Defendants’ actual knowledge, prior to the incident, of
Sebastian’s vicious nature or dangerous propensities, Defendants are entitled to
judgment as a matter of law. Their
motion for summary judgment is granted.
Conclusion
The Court
GRANTS Defendants’ motion for summary judgment.
Moving Parties
are ORDERED to give notice.