Case Number: BC687542 Hearing Date: June 06, 2019 Dept: 2

Defendants’ Motion for Summary Judgment is DENIED. The alternative Motion for Summary Adjudication, filed on 2/13/19, is GRANTED in part and DENIED in part as further explained below.

Plaintiff has not demonstrated that the separate statement is fatally defective. The issues to be adjudicated are separately set forth and identified as subparts A – D. Defendants set forth the material facts that are alleged to be undisputed. Defendants have adequately complied with the requirements for the contents of the separate statement. Cal. Rules of Court 3.1350.

Issue 1: Adjudication of the claim for strict liability is GRANTED under Cal. Code Civil Procedure § 3342. Defendants have established they are entitled to Adjudication of this issue based on the undisputed material facts asserted. Cal. Code Civil Procedure § 437c(p)(2).

For strict liability to attach, a person must be “bitten.” Cal. Civil Code § 3342.“

Section 3342 provides, in pertinent 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.” (Id., subd. (a).)” Priebe v. Nelson (2006) 39 Cal.4th 1112, 1120.

There is no dispute that Plaintiff did not attest that she was bitten, or that any part of the dog’s mouth made contact with her body. Rather she testified she was horrified, hysterical, crying, and shaking. She could hardly walk and could not drive. She did not attest to any bite marks to her body. Fact 11 is not disputed. Plaintiff argues this is a triable issue, because she testified that she “wasn’t sure” about being physically injured. This is not sufficient to create a triable issue.

Plaintiff further testified that when the accident happened, the dog bit Happy, and she tried to kick the dog. That was the only attempted physical contact she testified to. Fact 14 is undisputed.

Plaintiff does not dispute that she was treated for psychiatric issues such as PTSD and was treated with grief and depression therapy. UF 15.

Issues B-C Adjudication of the causes of action for negligence and premises liability is DENIED. Defendants have not met their burden of establishing Plaintiff is not entitled to damages arising from negligence or premises liability.

Plaintiff’s evidentiary objections.

#1, 3. Sustain.

#2. Overrule.

#4. Overrule.

While Defendants may move for adjudication of a claim for damages, adjudication can only be granted if it completely disposes of a cause of action or claim for damages.

“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, as specified in Section 3294 of the Civil Code, 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.” CCP § 437c(f)(1).

Defendants admit liability for the death of Plaintiff’s dog and will compensate Plaintiff for the dog’s value. Motion 9:15-16. Defendants’ claim that Plaintiff did not declare Happy as property lost due to the dog attack is disputed by Plaintiff’s discovery responses. Plaintiff does not regard the dog as “property” for purposes of Form Interrogatory, 7.1. She did disclose her loss of Happy as a damage in response to Form Interrogatory 6.2. Fact 18 is disputed.

Accordingly, at least one aspect of Plaintiff’s damage claims for negligence and premises liability remain viable.

Plaintiff also incurred veterinarian bills resulting from the incident, which she disclosed in response to Form Interrogatory 9.1. Defendants admit Plaintiff alleges other losses attributable to the incident, including medical and veterinary expense, hospital and medical expense, property damage, and lost earnings. UF 19. The motion does not individually address and negate all of these damages.

In ruling on a summary judgment motion, the issues which are material are limited to the allegations of the complaint. Lewinter v. Genmar Industries, Inc. (1994) 26 Cal.App.4th 1214, 1223. The matters at issue are determined by the pleadings; Eriksson v. Nunnink, (2011) 191 Cal. App. 4th 826, 848.

Defendants argue that since Plaintiff did not suffer a physical injury, she is not entitled to any damages in any form arising from negligence or premises liability. While a lack of a “bite” precludes application of strict liability under Cal. Civil Code §3342, the case cited by Defendants do not address damages attributed by Plaintiff arising from negligence and premises liability.

The only case authority cited by Defendants in support of this theory (lack of physical injury precludes a claim for damage) does not support this contention. The case cited by Defendants involve strict liability for a “bite.” Priebe v. Nelson (2006) 39 Cal.4th 1112, 1120.

Adjudication of Issue D is DENIED. Defendants focus on Plaintiff’s ability to recover damages for emotional distress or loss of companionship for the loss of a pet. This issue is not subject to adjudication, since it covers only one aspect of Plaintiff’s alleged damages as a whole.

Moving party is ordered to give notice.