Judge: Steven A. Ellis, Case: 22STCV06676, Date: 2024-09-18 Tentative Ruling

Case Number: 22STCV06676    Hearing Date: September 18, 2024    Dept: 29

Rivera v. Garza
22STCV06676
Defendant’s Motion for Summary Adjudication

Tentative

The motion is granted in part and denied in part.

Background

On February 23, 2022, Anjela Rivera (“Plaintiff”) filed a complaint against Ricardo Garza and Does 1 through 50 relating to an alleged attack by a dog on February 26, 2020.  Plaintiff asserts causes of action for: (1) statutory strict liability, (2) common law strict liability, (3) negligence, (4) negligence per se, (5) premises liability, (6) negligent infliction of emotional distress, and (7) battery.  Plaintiff seeks to recover compensatory and punitive damages.

On November 13, 2023, Ricarda Garza (erroneously sued as Ricardo Garza) (“Defendant”) filed her answer to Plaintiff’s complaint.

On June 28, 2024, Defendant filed this motion for summary adjudication. Plaintiff filed an opposition on September 3, 2024.  Defendant filed a reply, and objections to some of Plaintiff’s evidence, on September 13.

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 shifts 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

Defendant objects to some of Plaintiffs’ 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).)

Defendant asserts raises 12 objections to Plaintiff’s Declaration and 9 objections to the Declaration of Virginia Perez.

The Court notes the objections are not properly formatted under California Rules of Court, rule 3.1354, as the objections are unnumbered.  Nonetheless, the Court will exercise its discretion to consider the objections.

The Court SUSTAINS in part the objection to paragraph 2 of Plaintiff’s declaration.  The statement, “[The dog] is known in the neighborhood to have dangerous propensities” lacks foundation and appears to be based on hearsay.  The objection to the remainder of the paragraph is OVERRULED. 

The Court SUSTAINS the objections to paragraphs 3, 4, 5, 6, 8, 9, and 15 of Plaintiff’s declaration.  The statements lack foundation and appear to be based on hearsay.  To the extent that the declarant is summarizing the testimony of others, the Court will base its decision only on the admissible evidence in the record, not declarant’s summary.

The Court OVERRULES the objections to paragraphs 11, 13, and 19 of Plaintiff’s declaration. 

The Court SUSTAINS in part the objection to paragraph 21 of Plaintiff’s declaration.  The statement, “It is evident to me that she does not want to protect against other attacks” lacks foundation and is speculative.  The objection to the remainder of the paragraph is OVERRULED.

The Court SUSTAINS the objection to paragraph 4 of the Perez declaration.  The statements lack foundation and appear to be based on hearsay.

The Court OVERRULES the objections to paragraphs 2, 3, 5, 6, 7, 9 and 10 of the Perez declaration.

The Court SUSTAINS in part the objection to paragraph 8 of the Perz declaration.  The statement, “The entire neighborhood is afraid of being attacked by Poly” lacks foundation and appears to be based on hearsay.  The objection to the remainder of the paragraph is OVERRULED.

Discussion 

The incident at issue in this litigation occurred in front of Defendant’s home at approximately 9:00 am on February 26, 2020, on Woolwine Drive in Los Angeles.  (Defendant’s Statement of Undisputed Material Facts [“DSUMF”], No. 1; Plaintiff’s Decl., ¶ 10.)  Plaintiff was walking her three small dogs.  (DSUMF, No. 5; Defendant’s Compendium, Exh. B, Responses to Form Interrogatories 20.4 & 20.8.)  Defendant had just arrived home with her dog from a visit with the veterinarian.  (DSUMF, No. 3; Defendant’s Decl., ¶ 3; Defendant’s Compendium, Exh. E [“Plaintiff’s Depo.”], at 22:3-24:15, 32:7-18.)    

There is some dispute about exactly what happened next, but it is undisputed that Defendant’s dog lunged at or charged or attacked Plaintiff and her dogs, and both Plaintiff and Defendant were injured.  Plaintiff fell on her elbow and wrist and broke her wrist and/or her arm. (Plaintiff’s Decl., ¶ 11; Plaintiff’s Depo., at 19:15-18; Defendant’s Compendium, Exh. B, Response to Form Interrogatory 20.8.)  According to a text message that Defendant sent to Plaintiff, Defendant suffered a concussion, second degree burns, dislocated hand bones, an infection on her fact, and an injury to her knee.  (Defendant’s Compendium, Exh. F.)

On summary adjudication, the Court views the evidence in the light most favorable to the nonmoving party.  There is evidence in the record that Defendant’s dog “ran and charged and attacked” Plaintiff.  (Plaintiff’s Decl., ¶ 10; see also Plaintiff’s Depo., at 22:3-24:15, 35:6-13, 38:11-20, 39: 16-19, 40:9-12; Defendant’s Compendium, Exh. C.)  Defendant’s dog “attacked and jumped on” Plaintiff.  (Plaintiff’s Decl., ¶ 12; see also Defendant’s Compendium, Exh. C.)  The attack by Defendant’s dog on Plaintiff and her dogs was unprovoked.  (Plaintiff’s Depo., at 22:3-24:15; 35:14-18; Plaintiff’s Decl., ¶ 10.)  The Court recognizes that there is contrary evidence in the record and does not, on summary adjudication, weigh the evidence or resolve any factual disputes.

Defendant’s dog did not bite Plaintiff or her dogs.  (Plaintiff’s Depo., at 38:11-20, 40:13-41:1.)

Plaintiff knew that Defendant lived next door to her but had never spoken to Defendant before the incident.  (Plaintiff’s Depo., at 24:18-25.)

In the evidence, Defendant’s dog is sometimes referred to as “Poly” and sometimes as “Paw-Li.”  The discrepancy in the spelling is not material to the resolution of this motion.

Defendant moves for summary adjudication of the following six issues: (1) punitive damages are not available as a matter of law; (2) Defendant is not liable as a matter of law on the First Cause of Action for statutory strict liability; (3) Defendant is not liable as a matter of law on the Second Cause of Action for common law strict liability; (4) Defendant is not liable as a matter of law on the Fifth Cause of Action for premises liability; (5) Defendant is not liable as a matter of law on the Sixth Cause of Action for negligent infliction of emotional distress; and (6) Defendant is not liable as a matter of law on the Seventh Cause of Action for battery.

As a preliminary matter, the Court notes that there is a disconnect between the causes of action listed on the page one of Plaintiff’s complaint and the causes of action actually contained in the body of the Complaint.  Normally, and here, the allegations in the body of the Complaint control over the inconsistent enumeration of causes of action on page one.  Nonetheless, Defendant’s moving papers refer to the numbering of the causes of action as set forth on page one.

The Court also notes: (a) that Defendant does not move summary adjudication of the Third Cause of Action (for negligence and negligence per se); and (b) the body of Plaintiff’s complaint contains no Sixth Cause of Action (the Seventh Cause of Action follows immediately after the Fifth).

The Court considers each of Defendant’s summary adjudication requests in turn.

Punitive Damages

To recover punitive damages under Civil Code section 3294, a plaintiff must show by clear and convincing evidence that the defendant that the defendant has been guilty of malice, oppression, or fraud.

“Malice” is defined in section 3294, subdivision (c)(1), as “conduct which is intended by the defendant to cause injury” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.”

“Oppression” is defined in section 3294, subdivision (c)(2), as “despicable conduct subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.”

“Fraud” is defined in section 3294, subdivision (c)(3), as “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” 

The term “despicable conduct,” as used in subdivisions (c)(1) and (c)(2), has been defined in the case law as conduct that is “base,” “vile,” or “contemptible.” (See, e.g., College Hosp., Inc. v. Super. Ct. (1994) 8 Cal.4th 704, 725; Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal. App. 4th 847, 891; see also CACI 3940 [“Despicable conduct is conduct that is so vile, base, or contemptible that it would be looked down on and despised by reasonable people.”].)

Evidence of negligence, gross negligence, or even recklessness is not sufficient. (Dawes v. Super. Ct. (1980) 111 Cal. App. 3d 82, 87.) Rather, a plaintiff must prove that the defendant intended to cause harm to plaintiff or “acted in such an outrageous and reprehensible manner that the jury could infer that [the defendant] knowingly disregarded the substantial certainty of injury to others.” (Id., at p. 90; see also, e.g., American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017.).

While “the ‘clear and convincing’ evidentiary standard is a stringent one, it does not impose on a plaintiff the obligation to ‘prove’ a case for punitive damages at summary judgment.” (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1053.) Nonetheless, “a trial court deciding whether to allow a plaintiff to proceed with a claim for punitive damages must assess the plaintiff’s evidence with reference to the clear-and-convincing evidentiary burden.” (Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1119.)¿

“[O]n a motion for summary adjudication with respect to a punitive damages claim, the higher evidentiary standard applies. If the plaintiff is going to prevail on a punitive damage claim, he or she can only do so by establishing malice, oppression or fraud by clear and convincing evidence. Thus, any evidence submitted in response to a motion for summary adjudication must necessarily meet that standard.”

(Id., at p. 1121.)¿¿ 

Defendant stated in her declaration that her dog has no dangerous propensities, has never acted aggressively toward anyone prior to the incident, and has never bitten anyone.  (Defendant’s Decl., ¶ 11.)  But there is contrary evidence in the record.  Both Plaintiff and a nonparty witness Virginia Perez testified that the dog is aggressive; that when people walk by, the dog viciously and loudly barks, shows her teeth, and throws herself against the fence to try to get out; and that Defendant regularly allows the dog to get out and run around the street without a leash.  (Plaintiff’s Decl., ¶¶ 3, 7, 17; Perez Decl., at 2:6-8, 2:14-17, 2:19-20.)  Ms. Perez further testified that she filed a complaint with animal control about the dog and that she has personally told Defendant “on numerous occasions that her dog has vicious propensities and should be put down.”  (Perez Decl., at 2:9-10, 2:17-19.)

Viewing the evidence in the light most favorable to the non-moving party, and drawing all reasonable inferences in her favor, the finder of fact could determine that, prior to the incident, Defendant’s dog had aggressive and dangerous tendencies, that Defendant was aware of this, and that Defendant took no action.  The finder of fact might determine otherwise, but there is sufficient evidence in the record to support a determination, by clear and convincing evidence, that Defendant’s conduct was outrageous and reprehensible in that she knowingly disregarded the substantial certainty of harm to others from her dangerous dog.

Accordingly, the request for summary adjudication of Plaintiff’s claim for punitive damages is denied.

First Cause of Action (Statutory Strict Liability)

In her First Cause of Action, Plaintiff asserts a claim for strict liability under Civil Code section 3342.  Civil Code section 3342 provides in part:

“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.”

(Civil Code § 3342, subd. (a).)

Here, the evidence is undisputed that Plaintiff was not bitten by Defendant’s dog.  (Plaintiff’s Depo., at 38:11-20, 40:24-41:1.)  Accordingly, the request for summary adjudication of Plaintiff’s First Cause of Action (for statutory strict liability) is granted.

Second Cause of Action (Common Law Strict Liability)

In her Second Cause of Action, Plaintiff alleges that there is a basis for common law strict liability because Defendant knew or should have known that her dog possessed vicious and dangerous propensities and was inclined to attack persons or other animals.  (Complaint, ¶ 19.)  California case law recognizes a strict liability theory of cause of action when a person is injured by a dog or other domestic animal that the owner knows or should know has unusually dangerous tendencies.  (See Priebe v. Nelson (2006) 39 Cal.4th 1112, 1115; Hillman v. Garcia-Ruby (1955) 44 Cal.2d 625, 626-628; CACI No. 462.)

As noted above, viewing the evidence in the light most favorable to the nonmoving party, and drawing all inferences in her favor, the Court finds that there are disputed issues of fact in relation to whether Defendant’s dog had dangerous propensities. 

Accordingly, the request for summary adjudication of Plaintiff’s Second Cause of Action (for common law strict liability) is denied.

Fifth Cause of Action (Premises Liability)

Defendant moves for summary adjudication as to the Fifth Cause of Action in the Complaint for premises liability.  In the body of the Complaint (as opposed to the enumeration of the causes of action on page one of the Complaint), however, there is no Fifth Cause of Action for premises liability.  The Fifth Cause of Action is for negligent infliction of emotional distress.

Accordingly, the request for summary adjudication of a cause of action that is not in the body of the Complaint is denied as moot.

Fifth Cause of Action (Negligence Infliction of Emotion Distress)

In the fifth cause of action in the body of the Complaint, Plaintiff alleges that the incident, and Defendant’s negligence, caused her to suffer from emotional distress.  “Negligent infliction of emotional distress is not an independent tort, but the tort of negligence, to which traditional elements of duty, breach of duty, causation, and damages apply.”  (Downey v. City of Riverside (2024) 16 Cal.5th 539, 547 [quoting Burgess v. Super. Ct. (1992) 2 Cal.4th 1064, 1072].) 

When a plaintiff has suffered physical injuries caused by the negligence of the defendant, the cause of action is for negligence, and the plaintiff can recover not only for the physical injuries but also for the emotional distress associated with the incident.  But when a plaintiff has not suffered physical injuries, a plaintiff can still under certain circumstances bring a cause of action for negligence – and specifically for negligent infliction of emotional distress (“NIED”).  (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 928.)

Courts have recognized two situations in which a cause of action for NIED may arise.  In the first, the plaintiff is a “direct victim” of the negligence.  Absent physical harm, a cause of action for NIED arises only when the defendant has negligently breached a duty arising out of a preexisting relationship between the parties.  (See Burgess v. Super. Ct. (1992) 2 Cal.4th 1064, 1076-1077 [doctor-patient relationship].)  (A cause of action for NIED may also arise in certain other limited circumstances not applicable here, such as mishandling of a corpse or negligent misdiagnosis of a disease).  Defendant and Plaintiff were neighbors but otherwise they had no preexisting relationship; they had no relationship that gives rise to any special duty (other than the ordinary duty of care owed to all).  Thus, Plaintiff has no cause of action for NIED against Defendant under a “direct victim” theory.

Second, courts have recognized a cause of action for NIED for a “bystander” who is not herself physically injured but who (a) is closely related to the victim of the physical injury; (b) who witnesses the injury-producing event and is aware that it is causing injury to the victim; and (c) as a result suffers serious emotional distress beyond that anticipated for a disinterested witness.  (Downey, supra, 16 Cal.5th at p. 550; Thing v. La Chusa (1989) 48 Cal.3d 644, 647.  “Absent exceptional circumstances, recovery [is] limited to relatives residing in the same household, or parents, siblings, children, and grandparents of the victim.”  (Thing, supra, 48 Cal.3d at p. 668, fn. 10.)  Defendant and Plaintiff here were not close relatives.  Thus, Plaintiff has no cause of action for NIED against Defendant under a “bystander” theory.

Accordingly, Defendant’s request for summary adjudication of Plaintiff’s Fifth Cause of Action (for negligent infliction of emotional distress) is granted.

Seventh Cause of Action (Battery)

In the seventh cause of action in the body of the complaint, Plaintiff alleges battery.  “The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant's conduct; and (4) a reasonable person in plaintiff's position would have been offended by the touching.” (So v. Shin (2013) 212 Cal.App.4th 652, 669.) “In an action for civil battery the element of intent is satisfied if the evidence shows defendant acted with a ‘willful disregard’ of the plaintiff's rights.” (Ashcraft v. King (1991) 228 Cal.App.3d 604, 609-610 228.)

Defendant contends that she had no knowledge of any dangerous propensities of her dog.  As noted above, viewing the evidence in the light most favorable to the nonmoving party, and drawing all inferences in her favor, the Court finds that there are disputed issues of fact in relation to whether Defendant knowingly and willfully disregarded the substantial risk of harm to others from her dangerous dog.

Accordingly, Defendant’s request for summary adjudication of Plaintiff’s Seventh Cause of Action (for battery) is denied.

Conclusion

The Court GRANTS IN PART and DENIES IN PART Defendant’s motion for summary adjudication.

The Court GRANTS the motion as to the First Cause of Action (for statutory strict liability) and the Fifth Cause of Action (for negligent infliction of emotional distress).

The Court DENIES the remainder of the motion.

Moving Party to give notice.