Judge: William A. Crowfoot, Case: 21STCV14426, Date: 2022-08-10 Tentative Ruling

Case Number: 21STCV14426    Hearing Date: August 10, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On April 15, 2021, Plaintiff Curtis Jackson (“Plaintiff’) filed this action against Defendants Olga Voronova (“Voronova”), Edgar Aramouni (“Aramouni”), and K1 Group International (“K1 Group”) for (1) strict liability under Civil Code § 3342, (2) common law strict liability, (3) negligence, and (4) premises liability.

On July 19, 2021, pursuant to Plaintiff’s request, dismissal was entered as to Defendant Aramouni.

On May 25, 2022, Defendant K1 Group filed a motion for summary judgment, or in the alternative, summary adjudication.  Plaintiff filed opposition papers on July 27, 2022.  K1 Group filed reply papers on August 3, 2022.

II.          FACTUAL BACKGROUND

On or about February 17, 2021, Plaintiff was attacked by Defendant Voronova’s dog, Cairo, on the sidewalk in front of 11319 Collins St., North Hollywood, CA 91601 (“Property”).  (Complaint, ¶¶ 5, 15-16.)  Plaintiff alleges Defendant K1 Group is the owner of the Property and Voronova was a tenant.  (Id., ¶¶ 4, 6.)

III.        LEGAL STANDARD

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown 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).)  A moving defendant need not conclusively negate an element of plaintiff’s cause of action.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence.  (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)  The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”  (Ibid.)  The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.  (Aguilar, supra, 25 Cal.4th at p. 855.)

“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).)  The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”  (Ibid.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV.         REQUEST FOR JUDICIAL NOTICE

Defendant K1 Group requests judicial notice of (1) the complaint, (2) the answer filed by Defendant, (3) the request for dismissal as to Defendant Aramouni filed on July 15, 2021, and (4) Los Angeles Municipal Code, Chapter 5, Article 3, section 53.06.2.  Defendant’s request is granted.

V.           DISCUSSION

Defendant K1 Group moves for summary judgment in its favor and against Plaintiff on the second, third, and fourth causes of action asserted against it in Plaintiff’s complaint.  Alternatively, K1 Group moves for summary adjudication as to the second, third, and fourth causes of action.

A.   Second Cause of Action for Common Law Strict Liability

A possessor of a domestic animal with known vicious or dangerous propensities is subject to strict liability for the harm done by the animal.  (Drake v. Dean (1993) 15 Cal.App.4th 915, 921; Hillman v. Garcia-Ruby (1955) 44 Cal.2d 625, 626-27.)

Plaintiff’s theory of liability against Defendant K1 Group is that it harbored and kept Cairo knowing Cairo had a dangerous propensity, as it has attacked in the past.  (Complaint, ¶¶ 25-26.)

Defendant K1 Group argues that Plaintiff cannot establish this cause of action against it because Defendant lacked knowledge of Cairo’s dangerous propensity.

          A review of the parties’ evidence shows that triable issues of material fact exist as to whether Defendant, through its property manager Souha Traboulsi (“Traboulsi”), had knowledge of Cairo’s dangerous propensity.  Traboulsi testified at her deposition that she was never told Cairo was accustomed to barking at anything that walked by in front of the house or sticking its snout through the fence.  (Defendant’s Evidence, Ex. E, Traboulsi Deposition, pp. 72-73.)  However, Plaintiff’s landlord and co-defendant Voronova’s neighbor, Jane Melville (“Melville”), testified during her deposition that she spoke to Traboulsi about the attack on her dog, that Voronova’s dog was able to get through the fence with its mouth, that it was attacking or very aggressive, and that it would go up to the mailbox, put its head through the fencing, and growl and snap.  (Jordan Decl., ¶ 2, Ex. A, Melville Deposition, p. 28.)  Melville further testified that, after she told Traboulsi her dog was injured by the husky on the Property, Traboulsi said “I didn’t think that dog had it in him.  He’s just a lazy thing that just lies around the house” and Melville told her “no, he’s not. He’s very aggressive at the fence.”  (Id., p. 29.)  Melville’s testimony is sufficient to show that triable issues of material fact exist as to whether Defendant K1 Group, through Traboulsi, had actual knowledge of Cairo’s purported dangerous propensity.

          However, the evidence also shows that Cairo was Voronova’s dog.  This fact is undisputed.  It can be reasonably inferred from this that Defendant K1 Group was not the possessor or controller of Cairo.  Plaintiff has failed to present evidence showing otherwise.  As K1 Group was not the possessor or controller of Cairo, K1 Group cannot be held liable for common law strict liability.

          Accordingly, Defendant K1 Group is entitled to judgment on the second cause of action.

B.   Third Cause of Action for Negligence

The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff.  (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)

As pled, Plaintiff’s theory of liability against Defendant K1 Group is that K1 Group is the owner of the Property; that Defendant negligently owned, possessed, operated, supervised, managed, warned, designed, constructed, controlled, repaired and/or maintained the Property; that Defendant knew Cairo was dangerous; that Defendant failed to warn of the dog and make the Property safe; and that Plaintiff was injured due to Defendant’s negligence.  (Complaint, ¶¶ 29, 32-34.) 

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.)  “‘[A] landlord owes a duty of care to his tenant’s invitees to prevent injury from the tenant’s vicious dog when the landlord has ‘actual knowledge’ of the dog’s vicious nature in time to protect against the dangerous condition on his property.’”  (Salinas v. Martin (2008) 166 Cal.App.4th 404, 413 (quoting Yuzon v. Collins (2004) 116 Cal.App.4th 149, 152).)  “Conversely, ‘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.’”  (Id. (quoting Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1369).)  “‘‘[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.’‘”  (Id. (quoting Yuzon, supra, 116 Cal.App.4th at 163 (quoting Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 514)).)

Defendant K1 Group asserts that it cannot be liable for negligence because it did not have actual knowledge of Cairo’s dangerous propensity.  As discussed, triable issues of material fact exist as to whether Defendant had actual knowledge of Cairo’s dangerous propensity.

Given that triable issues of material fact exist as to whether K1 Group knew of Cairo’s dangerous propensity, the Court finds triable issues of material fact also exist as to whether Defendant had the ability to control or prevent the incident and Plaintiff’s injuries.  Plaintiff’s claim against Defendant is that Defendant failed to warn of the dog or otherwise make the property safe even though Defendant had knowledge of the dog’s dangerous propensity.  Defendant has not provided evidence that it took any action to warn of the dog or make the property safe.  There is also no evidence that Defendant had no control of the Property to make the property safe.  In fact, it appears that Defendant had control regarding making the property safe because Voronova had to ask for permission to make modifications to the fence.  (Defendant’s Evidence, Ex. C, Voronova Deposition, pp. 152-254; id., Ex. E, Traboulsi Deposition, p. 54.; Jordan Decl., ¶ 5, Ex. D, Defendant Voronova’s response to Request for Admissions, No. 51.)

Defendant argues that Voronova had exclusive possession of the Property, including the gate that restrained Cairo.  The Court finds Defendant’s arguments regarding Voronova’s control of the gate go towards causation, not lack of duty of care.  While Defendant purports to move for summary judgment and summary adjudication based on Defendant not engaging in any conduct that proximately caused Plaintiff’s damages in the notice of the motion, the Court finds that the actual arguments in the memorandum of points and authorities fail to make clear that Defendant is in fact moving for judgment based on a lack of causation.  Rather, Defendant’s arguments focus on the lack of duty due to the lack of actual knowledge of Cairo’s dangerous propensity.  The Court thus declines to address causation when it is not sufficiently clear Defendant is in fact moving on this ground.

Even assuming that it is sufficiently clear Defendant is moving based on a lack of causation, the Court finds Defendant has not presented sufficient evidence showing that Defendant did not in fact have control over the gate from which Cairo exited.  Defendant’s argument that it did not have control over the gate appears to rest on Defendant’s contention that Voronova had exclusive possession of the Property.  However, Defendant fails to point to evidence demonstrating that Voronova had exclusive possession of the Property.  Defendant argues in reply that it is an absentee landlord, but has also failed to provide evidence to support this argument.  Without such evidence, the Court cannot reasonably infer that Defendant did not have control over the gate because Voronova had exclusive control of the Property, including the gate.  (See Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832, 838-39 (stating that, in reviewing the evidence presented on summary judgment, the moving party’s evidence is strictly construed).)  Defendant has thus failed to establish that there is a lack of causation because Defendant did not control the gate from which Cairo exited.

As triable issues of material fact exist, Defendant is not entitled to judgment on the third cause of action.

C.   Fourth Cause of Action for Premises Liability

As with the negligence cause of action, Plaintiff’s theory of liability against Defendant K1 Group is that K1 Group is the owner of the Property where Cairo exited and attacked Plaintiff and K1 Group had actual knowledge of Cairo’s viciousness prior to the attack.  (Complaint, ¶¶ 40-42.)  What differs is that, under the premises liability cause of action, Plaintiff has specifically alleged Defendant could have prevented the attack from occurring by ordering Voronova to remove Cairo from the premises or otherwise controlling Voronova or Cairo itself prior to the attack.  (Id., ¶¶ 42-43.)

Defendant’s argument under this cause of action is the same as for the negligence cause of action—i.e., Defendant did not have actual knowledge of Cairo’s dangerous propensity and did not have control.  Specifically with regard to the premises liability claim, Defendant also argues in the notice of motion and separate statement that Defendant did not have any cause to remove Cairo from the Property.  This contention appears to be based on the argument that Defendant lacked actual knowledge of Cairo’s dangerous propensity.  As discussed with the negligence cause of action, triable issues of material fact exist as to whether Defendant had knowledge of Cairo’s dangerous propensity and whether Defendant had the ability to control or prevent the incident.  There is also no evidence that Defendant could not in fact remove Cairo from the Property.  Defendant’s only argument is that there was no cause to do so.

To the extent Defendant argument’s regarding a lack of causation based on the lack of control over the gate Cairo exited from also applies to this cause of action, Defendant’s argument fails for the reasons stated above.

          As triable issues of material fact exist, Defendant is not entitled to judgment on the fourth cause of action.

VI.     CONCLUSION

          In light of the foregoing, Defendant’s Motion for Summary Judgment is DENIED.

          Defendant’s alternative Motion for Summary Adjudication is GRANTED as to the second cause of action and DENIED as to the third and fourth causes of action.

Moving party to give notice. 

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.