Case Name: Junnie Kim v. Roxana Orozco
Case No.: 2014-1-CV-274033

Motion by Defendant Roxana Orozco for Summary Judgment of Plaintiff Junnie Kim’s Complaint

Factual and Procedural Background

This is a dog bite case. On December 7, 2012, plaintiff Junnie Kim (“Plaintiff”) was at PetSmart when she “suffered severe dog bites while grooming dog ‘Paxil.’” (Complaint, ¶ GN-1.) As a result of the incident, Plaintiff sustained “personal injuries to her body and nervous system.” (Ibid.) Plaintiff alleges in a conclusory manner that defendant Roxana Orozco (“Defendant”) was negligent and the proximate cause of her injuries, but she does not set forth any facts tying Defendant incident. (Ibid.)

Based on the foregoing allegations, Plaintiff filed a complaint against Defendant on December 4, 2014, alleging a single cause of action for negligence.

Subsequently, Defendant filed an answer to the complaint, generally denying the allegations of the complaint and asserting five affirmative defenses.

On May 18, 2016, Defendant filed the instant motion for summary judgment of the complaint on the ground that the action is barred by the doctrine of primary assumption of the risk.

A few weeks later, on June 8, 2016, Defendant filed a first amended answer (“FAA”) to the complaint, adding a sixth affirmative defense based on the doctrine of primary assumption of the risk.

On July 18, 2016, Plaintiff filed papers in opposition to the motion for summary judgment. Defendant filed a reply one week later on July 25, 2016.

Discussion

Defendant moves for summary judgment of the complaint, arguing that Plaintiff’s negligence claim is barred by the doctrine of primary assumption of risk. Plaintiff opposes the motion, arguing that the doctrine of primary assumption of the risk does not apply to this case.

I. Request for Judicial Notice

Defendant’s request for judicial notice is GRANTED IN PART and DENIED IN PART. The request is GRANTED as to the complaint because it is a court record that is relevant to the pending matter. (See Evid. Code, § 452, subd. (d) [permitting judicial notice of court records].) The request is DENIED as to the answer because the FAA, not the answer, is the operative responsive pleading. (See People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2 [“[t]here is … a precondition to the taking of judicial notice in either its mandatory or permissive form-any matter to be judicially noticed must be relevant to a material issue”].)

II. Legal Standard for Motions for Summary Judgment

The pleadings limit the issues present for summary judgment, and a motion for summary judgment cannot be granted or denied on issues not raised by the pleadings. (Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a summary judgment motion”].) A defendant seeking summary judgment or adjudication “must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; see also Code Civ. Proc., § 437c, subd. (p)(2).) “‘There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272, internal citations omitted; see also Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1132; see also Intrieri v. Super. Ct. (2004) 117 Cal.App.4th 72, 82.)

For purposes of establishing their respective burdens, the parties involved in a motion for summary judgment must present admissible evidence. (See Saporta v. Barbagelata (1963) 220 Cal.App.2d 463.) Summary judgment may not be granted by the court based on inferences reasonably deducible from the papers submitted, if such inferences are contradicted by other inferences which raise a triable issue of fact. (Hepp v. Lockheed-California Co. (“Hepp”) (1978) 86 Cal.App.3d 714, 717-718.) Additionally, in ruling on the motion, a court cannot weigh said evidence or deny summary judgment or adjudication on the ground that any particular evidence lacks credibility. (See Melorich Builders v. Super. Ct. (1984) 160 Cal.App.3d 931, 935; see also Lerner v. Super. Ct. (1977) 70 Cal.App.3d 656, 660.) As summary judgment “is a drastic remedy eliminating trial,” the court must liberally construe evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party. (See Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389; see also Hepp, supra, 86 Cal.App.3d at p. 717.)

III. Primary Assumption of the Risk and Dog Bites

In the seminal case of Knight v. Jewett (“Knight”) (1992) 3 Cal.4th 296, the California Supreme Court explained and clarified the doctrine of primary assumption of the risk. (Neighbarger v. Irwin Industries, Inc. (“Neighbarger”) (1994) 8 Cal.4th 532, 537; Priebe v. Nelson (“Priebe”) (2006) 39 Cal.4th 1112, 1120.) In that case, the plaintiff sought compensation for injuries she suffered during a recreational touch-football game. (Neighbarger, supra, 8 Cal.4th at p. 537.) The court barred recovery, explaining that in recreational sports events a participant owes no duty of care to another participant to avoid careless conduct that frequently occurs during vigorous participation in the sport. (Ibid.) The court characterized primary assumption of the risk as “those instances in which the assumption of risk doctrine embodies a legal conclusion that there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk ….” (Knight, supra, 3 Cal.4th at p. 308.) It held that in primary assumption of the risk cases, “the question whether the defendant owed a legal duty [of care] to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiff’s conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.” (Id., at p. 309.)

The doctrine of primary assumption of the risk has been applied in cases outside of the sports setting, the fireman’s or firefighter’s rule being the most familiar example. (Priebe, supra, 39 Cal.4th at p. 1121.) “ ‘In its most classic form, the firefighter’s rule involves the question whether a person who negligently has started a fire is liable for an injury sustained by a firefighter who is summoned to fight the fire; the rule provides that the person who started the fire is not liable under such circumstances. [Citation.] Although a number of theories have been cited to support this conclusion, the most persuasive explanation is that the party who negligently started the fire had no legal duty to protect the firefighter from the very danger that the firefighter is employed to confront. [Citations.] Because the defendant in such a case owes no duty to protect the firefighter from such risks, the firefighter has no cause of action even if the risk created by the fire was so great that a trier of fact could find it was unreasonable for the firefighter to choose to encounter the risk.’ [Citation.]” (Id., at pp. 1121–1122.)

“The veterinarian’s rule, an offshoot of the firefighter’s rule, has also been recognized … as yet another application of the doctrine of primary assumption of risk.” (Priebe, supra, 39 Cal.4th at p. 1122.) The veterinarian’s rule has generally been held to exempt those who contract with veterinarians to treat their dogs from liability should the dog bite the veterinarian during treatment. (Neighbarger, supra, 8 Cal.4th at p. 544, citing Cohen v. McIntyre (“Cohen”) (1993) 16 Cal.App.4th 650 [veterinarian], Willenberg v. Super. Ct. (“Willenberg”) (1986) 185 Cal.App.3d 185 [same], and Nelson v. Hall (“Nelson”) (1985) 165 Cal.App.3d 709 [veterinary assistant].)

The rule was first set forth in Nelson, supra, 165 Cal.App.3d 709, 711, in which the plaintiff, a veterinary assistant, brought a strict liability action under the dog bite statute, Civil Code section 3342, for injuries sustained when she was bitten while assisting a veterinarian in preparing a dog for minor surgery at the animal hospital where she worked. The dog had been administered a sedative and was lifted onto the treatment table. (Id., at p. 712.) The plaintiff was standing alongside the table waiting for the sedative to take effect, her arms resting loosely on the dog. (Ibid.) She was not restraining him, and he appeared calm. (Ibid.) Without warning, he quickly turned and bit the plaintiff in the face, causing severe injuries. (Ibid.) The defendants, who were not aware their dog had any vicious propensities, contended the plaintiff assumed the risk of injury from dog bites, arguing that strict liability for their dog’s actions terminated when they delivered the dog to a qualified veterinarian and the veterinarian accepted employment. (Id., at pp. 712, 714.)

The Court of Appeal concluded that being bitten by a dog during treatment was a risk and hazard endemic to the veterinarian profession and those engaged in the occupation of assisting veterinarians in the medical treatment of dogs such that the plaintiff assumed the risk of being bitten during the course of treatment. (Nelson, supra, 165 Cal.App.3d at p. 714 [“A veterinarian or a veterinary assistant who accepts employment for the medical treatment of a dog, aware of the risk that any dog, regardless of its previous nature, might bite while being treated, has assumed this risk as part of his or her occupation.”].) The court also pointed out that “[t]he veterinarian determines the method of treatment and handling of the dog” and “is the person in possession and control of the dog and is in the best position to take necessary precautions and protective measures.” (Id., at p. 715.)

The veterinarian’s rule was next applied in Willenberg, which was decided one year after Nelson. In that case, the Court of Appeal applied the veterinarian’s rule to bar a personal injury claim by a veterinarian whose shoulder was injured when the dog he was about to examine suddenly leaped onto him from the examination table, forcing him to “ ‘wrestle her down.’ ” (Willenberg, supra, 185 Cal.App.3d at p. 186.) The plaintiff argued, in part, that the veterinarian’s rule did not apply because the dog was not undergoing treatment at the time the attack occurred, but was merely sitting on the examination table and leaped at plaintiff when he entered the room. (Id., at p. 187.) The court found Nelson to be dispositive on the issue and that the veterinarian’s rule applied, stating that “[t]he point of the Nelson case is that a visit to the veterinarian’s office can bring about unpredictable behavior in a normally docile animal, and this is an inherent risk which every veterinarian assumes.” (Ibid.)

Several years later, in Cohen, the Court of Appeal applied the veterinarian’s rule in a case where a veterinarian was bitten by a dog shortly after he finished performing a pre-neutering examination. (Cohen, supra, 16 Cal.App.4th at p. 653.) The court pointed out that the “[plaintiff], a licensed veterinarian, was injured during the course of treating an animal under his control, an activity for which he was employed and compensated and one in which the risk of being attacked and bitten is well known. Thus, [the case] is a classic situation where a defendant’s ordinary duty of care is negated due to the nature of the activity and the relationship of the defendant to the plaintiff.” (Id., at p. 655.)

The California Supreme Court has since held that the doctrine of primary assumption of the risk, as embodied in the veterinarian’s rule, bars liability in suits brought by those other than veterinarians who also cared for or handled dogs in a professional or commercial capacity. Specifically, in Priebe, the court held that the doctrine of primary assumption of the risk applied to bar the claim of a kennel worker who was bitten while walking a dog that was boarding at the kennel. (Priebe, supra, 39 Cal.4th at p. 1118.) The court pointed out that in two earlier California decisions, Prays v. Perryman (“Prays”) (1989) 213 Cal.App.3d 1133 and Davis v. Gaschler (“Davis”) (1992) 11 Cal.App.4th 1392, “the courts were arguably predisposed to extending the bar to recovery of damages in suits brought by those other than veterinarians who also cared for or handled dogs in a professional or commercial capacity, were it not for the fact that no contract for the services to be rendered had been entered into before the plaintiffs’ injuries were sustained, thereby precluding application of an assumption of risk defense.” (Priebe, supra, 39 Cal.4th at p. 1125, emphasis added; see Neighbarger, supra, 8 Cal.4th at p. 545 [“the ‘veterinarian’s rule” does not apply when the defendant dog owner has not contracted for the services of the plaintiff”].) The court noted that in Davis the veterinarian’s rule was inapplicable because the dog owner had not contracted for services from the plaintiff, an experienced dog breeder and handler, and in Prays the veterinarian’s rule was inapplicable because the “commercial dog groomer had not yet formally accepted defendant’s dog for grooming or entered into contractual grooming agreement.” (Ibid.)

The court also cited with approval a case from the Kentucky Court of Appeal, in which a dog groomer who was bitten by a dog she had accepted for grooming was found to have assumed the risk of being bitten by the animal and was thus barred from suing the dog owner under Kentucky’s strict liability dog bite statute. (Id., at pp. 1125-1126, citing Jordan v. Lusby (Ky.App.Ct.2002) 81 S.W.3d 523 [“The profession of dog grooming naturally entails a risk of being bitten by a client’s dog, as do other professions involving the care of animals such as kennel owner or veterinarian. Common sense dictates that a person who grooms dogs must be deemed to be aware of the risks involved in dealing with any dog, not just a dog of a particular breed.”].)

The California Supreme Court then found that there was nothing in the language of Civil Code 3342 to suggest the Legislature ever contemplated or intended that “a duty of care, and imposition of strict liability for its breach, should apply in those situations where the care, custody, and control of a dog has been entrusted to trained professionals in exchange for compensation, as is the case when a dog is left with a veterinarian for medical treatment, or placed in a licensed commercial kennel for boarding.” (Priebe, supra, 39 Cal.4th at p. 1128.) It stated that that “ ‘the business of kenneling is such that the kennel operators assume the care and handling of dogs entrusted to their professional care during the absence of their owners,’ and that ‘[o]nce a dog has been accepted for kenneling and the owner leaves, the kennel staff are in charge of the dog, not the owner. They determine the best way to handle the dog while at the kennel, and what protective measures, if any, should be taken to ensure employee safety.’ ” (Id., at p. 1129) The court further state that “[i]t seems counterintuitive to hold a dog owner strictly liable to a kennel worker for breach of the duty of care under section 3342 under circumstances where the dog owner has completely relinquished the care, custody, and control of his or her dog to a veterinarian or similar professional trained to care for and safely handle dogs, and the dog owner is therefore not in a position to supervise or prevent any conduct on the part of the dog.” (Ibid.)

The court concluded by explaining that various public policies justified excusing the specific duty of care imposed on dog owners under Civil Code section 3342 by extending the veterinarian’s rule as a bar to personal injury suits by kennel workers injured on the job by dogs left in their exclusive care and control. (Priebe, supra, 39 Cal.4th at p. 1129.) “[O]ne public policy supportive of the veterinarian’s rule is the common sense recognition that veterinarians, their trained assistants, and those in similarly situated professions (e.g., dog groomers, kennel technicians) are in the best position, and usually the only position, to take the necessary safety precautions and protective measures to avoid being bitten or otherwise injured by a dog left in their care and control.” (Id., at p. 1130.) “[A] second public policy supportive of the veterinarian’s rule is the common sense recognition that veterinarians, their trained assistants, and those in similarly situated professions (e.g., dog groomers, kennel technicians) enter into contractual relationships with dog owners and receive compensation for the services they provide, which services, by their very nature and design, include the safe care and handling of dogs left in their charge.” (Id., at p. 1131.) Another policy reason for extending the veterinarian’s rule to kennel workers is that dog owners are encouraged to “avail themselves of the services of licensed commercial dog kennels, without the threat of liability and lawsuits for injuries caused by their dogs’ conduct hanging over their heads, conduct they are in no position to guard against or control once the dog is surrendered to the kennel for boarding.” (Ibid.)

While California courts have yet to expressly extend the veterinarian’s rule to dog groomers, the case of Prays involved a dog groomer and facts that are somewhat similar to the present case. In that case, the defendant brought her dog into H & A Feed and Pet Supplies, Inc., where the plaintiff worked as a pet groomer. (Prays, supra, 213 Cal.App.3d at p. 1134.) The plaintiff testified that she arrived at the store, was told that there was a dog for her in a cage, and heard the dog growling and “going crazy” in the cage. (Id., at p. 1135.) She then asked the dog’s owner to come back and had a discussion with the owner about the dog’s behavior. (Ibid.) The plaintiff informed the owner that she was not going to take the dog out of the cage because she was concerned it would bite. (Ibid.) She also told the owner, “’If you want to take your dog out, and then we can see if the dog can be done, maybe, or maybe not, or are we going to take him home or are we going to muzzle him. We don’t know. We only can see after we take the dog out from the cage and hold him.” (Ibid.) The owner subsequently took the dog out of the cage, held it on a leash, and it calmed down. (Ibid.) As the plaintiff and the dog’s owner continue to discuss whether the plaintiff would be able to groom the dog, the dog jump up and bit the plaintiff on her face. (Id., at pp. 1135-1136.)

The Court of Appeal stated that it did not need to decide whether the veterinarian’s rule should be extended to pet groomers. (Prays, supra, 213 Cal.App.3d at p. 1137.) Rather, it found that even assuming arguendo that the veterinarian’s rule generally applied to pet groomers, the “caveat” articulated in Nelson—“that the defense of assumption of the risk extends only to the danger which the injured person has knowingly assumed; i.e., the danger the dog will bite while being treated”—applied to the case before it because the plaintiff “testified that at the time of the bite she was not grooming the dog and had told defendant she had not yet decided whether it was safe for her to do so.” (Ibid.) The Court concluded that “[a] trier of fact could find that the beast remained at all times under the exclusive control of defendant, who had uncaged it and was holding it on a leash.” (Ibid.)
IV. Defendant Fails to Meet her Initial Burden on Summary Judgment

As a threshold matter, the parties agree that the doctrine of primary assumption of the risk generally applies to dog groomers. Thus, the Court need not address that issue and proceeds to whether the doctrine of primary assumption of the risk, as embodied in the veterinarian’s rule, applies to the specific facts of this case.

Based on the UMF and evidence presented by Defendant, the Court finds that Defendant fails to meet her initial burden to show that the veterinarian’s rule bars Plaintiff’s claim for negligence, as a matter of law. The California precedent cited above establishes that the veterinarian’s rule does not apply when the animal has not been formally accepted for grooming services and/or the parties have not entered into a contract for the services to be rendered. (See Priebe, supra, 39 Cal.4th at p. 1125, emphasis added; see also Neighbarger, supra, 8 Cal.4th at p. 545; Davis, supra, 11 Cal.App.4th at p. 1401; Prays, supra, 213 Cal.App.3d at p. 1137.) Here, none of Defendant’s UMF address whether the parties entered into a contract regarding the services to be provided or whether Plaintiff otherwise formally accepted Paxil for grooming. (See UMF Nos. 1-6.) Moreover, it is unclear from the evidence presented if Plaintiff actually accepted Paxil for grooming or if the parties ever entered into a contract for the services to be rendered. At best, Defendant’s evidence shows that the incident occurred during course of the check-in process. (See UMF Nos. 2-5.) Defendant does not present any evidence or argument indicating that initiation of the check-in process constitutes formal acceptance of an animal for grooming services. In addition, Defendant does not demonstrate that the paperwork provided to her sister, Vanessa Orozco, regarding the services that were to be provided to Paxil, was ever signed; the paperwork constituted a contract for services; or Plaintiff otherwise formally accepted Paxil for grooming services. (P’s Evid., Ex. A, p. 10:3-25.) In fact, Defendant provided evidence that Plaintiff approached Paxil to determine what services might be needed, which supports an inference that Paxil had not yet been accepted for grooming services. (See UMF No. 5.)

In this case, the absence of evidence demonstrating that Paxil was formally accepted for grooming or that the parties entered into a contract regarding the services to be rendered is particularly troubling because some of the public policies that usually justify application of the veterinarian’s rule would not be served by application of the rule in this case. As stated above, “one public policy supportive of the veterinarian’s rule is the common sense recognition that veterinarians, their trained assistants, and those in similarly situated professions (e.g., dog groomers, kennel technicians) are in the best position, and usually the only position, to take the necessary safety precautions and protective measures to avoid being bitten or otherwise injured by a dog left in their care and control.” (Priebe, supra, 39 Cal.4th at p. 1130.) This public policy is not furthered here because Plaintiff did not have custody or control of Paxil at the time of the incident. In fact, Plaintiff’s evidence establishes that only Vanessa had custody and control of Paxil at the time of the incident as she was holding Paxil’s leash. (Opp’n., Ex. 1, p. 26:2-20.) Consequently, Plaintiff was arguably not in the best position, let alone the only position, to take the necessary safety precautions and protective measures to avoid being bitten. Additionally, the second public policy supportive of the veterinarian’s rule—that “veterinarians, their trained assistants, and those in similarly situated professions (e.g., dog groomers, kennel technicians) enter into contractual relationships with dog owners and receive compensation for the services they provide” (Priebe, supra, 39 Cal.4th at p. 1131)—is not served because there is no indication that any contract was entered into here such that compensation would be received for the services provided.

For these reasons, the motion for summary judgment is DENIED.