Case Number: BC685278 Hearing Date: June 05, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEEFENDANT GHP MANAGEMENT’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

On November 29, 2017, Plaintiff Tala Tootoonchi (“Plaintiff”) filed this action against Defendants Robert Livingston (“Livingston”) (erroneously sued as Robert Levingston) and GHP Management (“GHP”) (collectively, “Defendants”) for strict liability and negligence against Livingston and negligence against GHP arising out of a November 29, 2015 dog bite. GHP moves for summary judgment.

II. FACTUAL BACKGROUND

This action arises out of a dog bite that occurred near the Warner Center Summit located at 22193 Carissa Court in Woodland Hills (“the Property”). (Undisputed Material Fact “UMF” No. 1.) GHP managed the Property and rented the Property to Livingston. (UMF Nos. 2, 3.) On November 29, 2015, Plaintiff was on the Property when she was bitten by the dog. (UMF No. 6.)

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.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

“[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. EVIDENTIARY OBJECTIONS

Plaintiff’s Evidentiary Objections to the Declaration of Vera Rodrigue

Objections Nos. 1-11 are OVERRULED.

V. DISCUSSION

As framed by the Complaint, Plaintiff alleges that on November 29, 2015, she was walking near her residence at the Property. (Complaint, ¶ 8.) Livingston was also outside with his dog who was not on a leash and not restrained in any way. (Complaint, ¶ 9.) Suddenly and without warning, Livingston’s dog attacked Plaintiff from behind and bit Plaintiff on her right buttock and leg, causing Plaintiff to fall to the ground and sustain severe injuries. (Complaint, ¶ 10.) Plaintiff alleges GHP owed her a higher standard of care because she was a tenant at the Property owned by GHP, the incident occurred on GHP property, and GHP owed a duty to enforce its lease agreement restrictions and to take reasonable steps to prevent incidents such as this from occurring on its property. (Complaint, ¶ 27.) GHP breached its duties by failing to warn the Plaintiff of pets on its property, enforce the lease agreement restrictions, and take reasondable steps to prevent incidents such as this. (Complaint, ¶ 28.)

Negligence

“The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages.” (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.) However, “[t]he general duty of care owed by a landowner in the management of his or her property is attenuated when the premises are let beause the landlord is not in possession, and usually lacks the right to control the tenant and tenant’s use of the property.” (Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1369.)

In determining a landlord’s duty, the court must first determine the landlord’s knowledge of the dog’s vicious nature. (Lundy v. California Realty (1985) 170 Cal.App.3d 813, 821.) “[I]t is well established that a landlord does not owe a duty of care to protect a third party from his or her tenanet’s dog unless the landlord has actual knowledge of the dog’s dangerous propensities, and the ability to control or prevent the harm.” (Chee, supra, 143 Cal.App.4th at p. 1369.) This knowledge requirement may be satisfied by circumstantial evidence that the landlord must have known about the dog’s propensities or by direct evidence that the landlord actually knew. (Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 514, fn. 4; Yuzon v. Collins (2004) 116 Cal.App.4th 149, 164.) Constructive knowledge of the dog’s dangerous propensities is insufficient to impose a duty on a landlord. (Lundy, supra, 170 Cal.App.3d at p. 821.) “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. 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, we believe that actual knowledge and not mere constructive knowledge is required.” (Ibid.)

Second, the landlord must have had the ability to prevent the foreseeable harm. (Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 1838.) “[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.” (Uccello, supra, 44 Cal.App.3d at p. 514.) “Under California law, 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. In other words, where a third person is bitten or attacked by a tenant’s dog, the landlord’s duty of reasonable care to the injured third person depends on whether the dog’s vicious behavior was reasonably foreseeable. Without knowledge of a dog’s propensities a landlord will not be able to foresee the animal poses a danger and thus will not have a duty to take measures to prevent the attack.” (Donchin, supra, 34 Cal.App.4th at p. 1838.)

GHP argues Plaintiff cannot establish it owed a duty with respect to the dog and dog bite incident. GHP is not the landowner of the Property but is the property management company responsible for the Property. As to negligence, the duty imposed on GHP as the property management company is the same duty owed by the landowner, meaning GHP owed no duty of care in the absence of actual knowledge of the dangerous propensities of the dog. (Chee, supra, 143 Cal.App.4th at p. 1378 [finding the duty of leasing agent was no different than that of the landlord].)

GHP argues it had no knowledge of the dog’s dangerous propensities. Plaintiff testified at her deposition that she saw the dog on the Property several times before the incident but never contacted the management company for any reason before the incident. (Exh. B, Pltff’s Depo., 26:20-25.) Plaintiff was unaware of anyone who had ever complained to the management or owner of the Property about the dog. (Exh. B, Pltff’s Depo., 76:2-6; 143:12-15.) Vera Rodrigue (“Rodrigue”), the Community Manager for the Property, declares she was notified in November 2015 that Livingston’s dog had bitten Plaintiff. (Declaration of Vera Rodrigue, ¶ 4.) But Livingston had not told GHP he was keeping a dog at his unit, no other tenant told GHP that Livingston had a dog at his unit, and GHP neither owned nor kept the dog that bit Plaintiff. (Rodrigue Decl., ¶¶ 5, 6, 8, 9.) Before the incident, Plaintiff never contacted Rodrigue to discuss any issues about a dog at the Property, and Rodrigue was unaware Livingston kept a dog at the Property. (Rodrigue Decl., ¶ 10.) No one ever told Rodrigue about a dog with vicious or dangerous propensities. (Rodrigue Decl., ¶ 12.)

GHP has met its initial burden of showing it had no knowledge of the dog’s presence on the Property or its dangerous propensities, and GHP therefore owed no duty to prevent Plaintiff’s injuries. The burden shifts to Plaintiff to show a triable issue of fact exists.

Plaintiff argues that Livingston’s deposition testimony directly contradicts Rodrigue’s declaration that GHP had no knowlwedge of his dog. Livingston testified at his deposition that although tenants were allowed to own pets, it was not part of his lease agreement that he had a pet. When asked if he notified the management company that he owned a dog, he responded that he “notified like the front desk, the counter, the management people and would take him there when he had some walks” and that he was never told or odered to get his dog out of the building. (Pltff’s Exh. B, Livingston Depo., 38:3-17.) Livingston also testified that “the management” saw his dog three or four times, and he and the dog would often walk by the office when taking walks two times per day. (Pltff’s Exh. B, Livingston Depo., 83:15-84:4.) Livingston estimated he walked by the management office with his dog over 50 times. (Pltff’s Exh. B, Livingston Depo., 84:22-24.)

Even if this testimony shows GHP knew Livingston was keeping a dog on the Property, it does not show GHP must have been aware of its dangerous propensities. Plaintiff argues “[w]hether or not Plaintiff was aware of the Canine’s dangerous propensities is immaterial to GHP’s imputed knowledge.” (Opp., 10:13-14.) Plaintiff also contends that because Livingston often walked his dog past the management office, “it was highly likely that GHP knew of Mr. Livingston Canine and of the known dangerous propensities.” (Opp., 10:17-18.) Plaintiff’s argument is incorrect. “[I]t 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” (Chee, supra, 143 Cal.App.4th at p. 1369) and “a duty of care may not be imposed on a landlord without proof that he knew of the dog and its dangerous propensities” (Lundy, supra, 170 Cal.App.3d at p. 821). Therefore, to meet her burden, Plaintiff must present evidence showing a triable issue of fact exists as to GHP’s actual knowledge of the dog’s dangerous propensities.

Plaintiff argues GHP “must have known of the dangerous and vicious propensities of the Canine” due “its prior history, behavior, as well as its size, breed, and aggressive personality.” But Plaintiff cites no evidence of the dog’s history or behavior. Plaintiff presents no evidence of the dog’s breed or size, let alone evidence that any particular breed is dangerous.

Plaintiff argues GHP owed a higher standard of care to Plaintiff, who was a tenant of the Proeprty, and that it owed a duty to warn tenants of pets on the Property, regardless of whether GHP had actual knowledg of the dog’s dangerous propensities. Plaintiff cites no legal authority for these assertions, which are contrary to the law discussed above.

Plaintiff argues GHP owed a duty to inspect the premises and enforce its lease restrictions. Absent actual knowledge of a dangerous dog, a landowner does not have a duty to inspect the premises to discover the existence of a tenant’s dangerous animal. (Uccello, supra, 44 Cal.App.3d at p. 514; Chee, supra, 143 Cal.App.3th at p. 1372.) Further, GHP did not owe a duty to Plaintiff to enforce the pet lease restrictions against Livingston. (Chee, supra, 143 Cal.App.4th at pp. 1375-1376 [holding that lease covenants, conditions, and restrictions (CC&R’s), “which are private recorded restrictions on the use of the property, do not operate as a legal basis for expanding the duty of care on the lessor of property to protect others from a dog owned and controlled by a tenant”].) “[I]n the absence of some other authority in support of plaintiff’s contentions, we see no reason to depart from the basic principle that the legal effects of CC&R’s should not be extended to include expansion of established tort law defining the duty of care and relationships for which vicarious liabilty is imposed for the act of another.” (Id. at p. 1376.)

In sum, Plaintiff did not establish disputed issues of material fact existence concerning GHP’s knowledge of the the dog’s dangerous propensities.

Plaintiff’s Request for Continuance

Plaintiff’s counsel states additional facts may exist that would justify oppoisition to the motion for summary judgment. (Declaration of Gabriella A. Pedone, ¶ 8.) “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” (Code Civ. Proc., § 437c(h).) “ ‘The affidavit or declaration in support of the continaunce request must detail the specific facts that would show the existence of controverting evidence.’ [Citation.]” (Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 420.) “[L]ack of diligence may be a ground for denying a request for a continuce of a summary judgment motion hearing.” (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 257.)

Plaintiff believes GHP’s person most knowledgeable, who may be Rodrigue, will be able to testify to the duty owed, the existence of Livingston’s dog on the premises and its dangerous propensities, and GHP’s failure to make the premises safe and to enforce lease terms. (Pedone Decl., ¶¶ 9, 10.)

Plaintiff’s counsel’s declaration does not establish that facts justifying the opposition may exist. Rodrigue declared she and GHP had no knowledge of Livingston’s dog or its dangerous propensities and that nobody contacted her or GHP to complain of the dog before the incident. Plaintiff does not establish that contrary facts may exist, such as evidence that Rodrigue or GHP actually had knowledge of the dog’s dangerous propensities or evidence that complaints about the dog had been made. (Granadino, supra, 236 Cal.App.4th at p. 420 [no error in denying request for continuance of hearing where declaration stated a witness’s deposition had not been taken but did not explain why the moving parties “believed the facts they sought through the depositions actually existed, why these facts were essential to oppose the summary judgment motion, and why [the witness’s] deposition had not been taken in the two years since the complaint was filed”].)

Plaintiff also did not explain why such facts cannot now be presented. She did not explain why she did not seek the deposition of the person most knowledge about the dog or Rodrigue’s deposition before the deadline for Plaintiff’s opposition. Plaintiff’s September 2018 deposition reveals Plaintiff knew about Vera Rodrigue’s role in this matter by at least September 2018 because she testified her boyfriend Abol complained to “Vera” about the dog bitting Plaintiff. (See Pltff’s Depo., 76:3-9.) Plaintiff had approximately 60 days after being served with the summary judgment motion to depose Rodrigue or serve a PMK deposition notice before her opposition was due, but apparently has never served such deposition notices.

Plaintiff also cites to GHP’s responses to Plaintiff’s Special Interrogatories where Plaintiff asked GHP to describe any and all incidents involving pets on the Property, and GHP responded with objections. Plaintiff contends that further factual discovery is required. However, these responses were served by GHP on November 21, 2018. Plaintiff never sought further responses and the deadline to compel further responses has passed. Even with a continuance, it is too late for Plaintiff to move to compel further responses. Again, Plaintiff gives no explanation for her failure to complete discover before opposing this motion.

Accordingly, Plaintiff has failed to meet her burden of showing triable issues of fact exist and has failed to establish good cause for a continuance to conduct additional discovery.

VI. CONCLUSION

In light of the foregoing, the Motion for summary judgment is GRANTED.

Moving party to give notice.