Case Number: BC662751 Hearing Date: February 06, 2019 Dept: 4B

[TENTATIVE] ORDER RE: MOTION FOR SUMMARY JUDGMENT BY DEFENDANTS MARIO R. HERNANDEZ AND KARINA CARBAJAL; GRANTED

I. INTRODUCTION

On May 25, 2017, Plaintiff Boghos Petrosian (“Plaintiff”) filed this action against Defendants Leo Dopp, Carly Seabrook, Mario Hernandez (“Hernandez”), and Karina Carbajal (“Carbajal”) for negligence and premises liability relating to a December 14, 2016 dog bite incident. Defendants Hernandez and Carbajal move for summary judgment. Plaintiff filed no opposition to this Motion.

II. FACTUAL BACKGROUND

Plaintiff alleges that on December 24, 2016, he was attacked and bit by a dog that lived next door to his property and that was owned by Leo Dopp and Carly Seabrook (“co-defendants”). (Undisputed Material Fact “UMF” No. 2.) The alleged incident occurred on the front yard of Plaintiff’s property located at 6807 Greeley Street, Tujunga, CA 91042. (UMF No.1.) Defendants Hernandez and Carbajal rented out the next door property, located at 6811 Greeley Street, Tujunga, CA 91042, to co-defendants. (UMF No. 3.) Hernandez and Carbajal are not the owners of the dog involved in the alleged incident and have never owned a dog that has been kept at the next-door property. (UMF No. 4.) At the time that co-defendants rented the next-door property from Hernandez and Carbajal, Defendants were told by co-defendants that they had a dog that was friendly and was a service dog. (UMF No. 5.)

Prior to the incident, Plaintiff did not have any interactions with the dog or know that the dog could jump the fence of the next-door property. (UMF Nos. 7-9.) No one ever presented any complaints concerning co-defendants’ dog prior to this alleged incident. (UMF No. 10.) Further, Hernandez and Carbajal have never witnessed or observed co-defendants’ dog bite or attack anyone, or display violent, aggressive, or vicious behavior. (UMF No. 11.) Hernandez and Carbajal were never informed that co-defendants’ dog actually attacked or bit anyone, or that the dog carried violent, aggressive, dangerous, or vicious propensities. (UMF Nos. 12-13.)

III. LEGAL STANDARDS

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. DISCUSSION

Negligence and Premises Liability

The elements of negligence are “the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) Premises liability is a form of negligence. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) Further, “[t]he owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.” (Id.)

The general rule is that a landlord is not liable for injuries caused by a tenant’s dog, unless the landlord knew the dog was dangerous. (Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 510-11.) “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.” (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.)

Moreover, whether a landlord has a duty to prevent or control dangeous conditions on a property related to injuries suffered from an animal, depends on the landlord’s knowledge of an animal’s vicious nature. (Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 1838-39.) “It should be emphasized that a duty of care may not be imposed on a landlord without proof that he knew of the dog and its dangerous propensities.” (Uccello, 44 Cal.App.3d at 514.) Further, 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. (Id.)

In Lundy v. California Realty (1985) 170 Cal.App.3d 813, the court applied Uccello to affirm a summary judgment in favor of the 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 shepherd dog, 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, Defendants Hernandez and Carbajal assert that they did not own the dog, and that they had no prior actual notice of any violent, aggressive, dangerous, or vicious propernsity of co-denfendat’s dog. As a result, Hernandez and Carbajal contend that they owed no duty to protect Plaintiff from the dog.

Although Hernandez and Carbajal were aware that co-defendants had a dog on the property, there is no evidence that Hernandez or Carbajal was actually aware of any dangerous propensities the dog may have possessed. (Hernandez Decl. ¶¶ 6-11; Carbajal Decl. ¶¶ 6-11.) Hernandez and Carbajal are not liable for Plaintiff’s injuries unless they actually knew that the subject dog involved in the incident was dangerous. (Uccello, 44 Cal.App.3d at 510-11.) Plaintiff does not oppose the summary judgment motion, and thus, does not dispute or provide any evidence to show that Hernandez or Carbajal were aware the dog had any dangeous propensities. Moreover, there is no evidence of any dangeours propensities the dog exhibited that should have made Hernandez and Carbajal aware that the dog was likely to cause another person harm, and Hernandez and Carbajal did not have a duty to inspect the property to discover if co-defendants kept a dangerous animal. (Martinez, 82 Cal.App.4th at 891-92.) As in Lundy, where the court found there was not a triable issue of fact because a landlord knew the tenant’s kept a dog on the premises but did not know anything about the dog, here, Hernandez and Carbajal provide that they did not know anything about the dog on the property and there is no evidence to show otherwise. (170 Cal.App.3d at 818-22.)

Additionally, although Plaintiff’s complaint alleges that Defendants’ property was not properly fenced and maintained for a dog, a landlord can only be liable for these alleged conditions if he or she had actual knowledge of the dog’s dangerous propensity. (Donchin, 34 Cal.App.4th at 1838-39.) Accordingly, Plaintiff’s claim that the fence on the subject property was not properly maintained is insufficient alone to find Hernandez and Carbajal liable for Plaintiff’s dog bite injuries.

There is no triable issue of fact concerning Hernandez or Carbajal’s liability under a negligence or premises liability claim.

VI. CONCLUSION

In light of the foregoing, Defendants Mario R. Hernandez and Karina Carbajal’s Motion for Summary judgment is GRANTED.

Moving party to give notice.