Case Number: PC054366    Hearing Date: October 31, 2014    Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

BEATA BECK-GOODMAN, ET AL.,
Plaintiff(s),
vs.
TERESA DEUTSCH, ET AL.,
Defendant(s).

Case No.: PC054366

[TENTATIVE] ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Dept. 92
1:30 p.m. — #23
October 31, 2014

Defendants’ Motion for Summary Judgment is Denied.

1. Facts
Plaintiffs, Beata Beck-Goodman and Lloyd Goodman filed this action against Defendants, Teresa and Harry Deutsch for damages arising out of a dog-related incident. Plaintiffs and Defendants live in an HOA development for persons aged 55 and over. At the time of the incident, Plaintiff, Beata was walking her 55-pound boxer named Maverick. Defendants’ seven-pound toy fox terrier named Skippy was off-leash, and approached Plaintiff and Maverick. Maverick became agitated, and began pulling on his leash; the pulling on the leash caused Plaintiff to fall to the ground, sustaining a broken femur and related injuries.

Plaintiffs’ complaint includes causes of action for negligence per se and loss of consortium. The negligence per se cause of action is based on the allegations that Plaintiffs and Defendants live in a community that has a leash law; additionally, the City of Santa Clarita, where the incident took place, also has a leash law. Plaintiffs contend the incident occurred because Defendants’ dog was off-leash, the incident was of the sort the leash laws are designed to preclude, and Plaintiffs were injured as a result.

Plaintiffs’ original complaint included Teresa and Harry Deutsch as the sole defendants. Plaintiffs subsequently added Sue Bratsven as a doe defendant; Bratsven is Teresa’s mother, and is alleged to have been a co-owner of the dog.

2. Motion for Summary Judgment
Defendants move for summary judgment, contending:
• The negligence per se theory fails because:
o The ordinance as not enacted to protect against the type of occurrence at issue;
o The lack of a leash did not cause the accident;
• To the extent this is a negligence – strict liability cause of action, it fails because:
o Skippy was docile by nature;
o There is no evidence that Defendants knew Skippy to be aggressive;
• The complaint against Sue Bratsven is barred by the statute of limitations.

a. Evidentiary Objections
Plaintiffs filed evidentiary objections with their opposition papers. Objections 1-13 are to the separate statement. Objections to a separate statement are not proper. See CRC 3.1354(b). Objections must be to evidence, not to facts. Objections 1-13 are therefore overruled. Objections 14, 16, 17, 18, 19, 20, and 21 are sustained; objection 15 is overruled.

b. Negligence Per Se
Defendants move for summary judgment on the negligence per se cause of action, contending the incident was not of the type that leash laws are designed to protect against, and also contending the lack of a leash did not cause or contribute to the accident.

¿Evidence Code section 669 creates a presumption of negligence from the violation of a statute or ordinance. There are four “basic facts” which must be shown for this presumption to apply: (1) the violation; (2) the violation as a proximate cause of the injury; (3) an injury resulting from an occurrence of the nature which the statute was designed to prevent; and (4) the injured party being a member of the class of persons for whose protection the statute was adopted.: Salinero v. Pon (1981) 124 Cal.App.3d 120, 134.

Defendants’ first argument is that the injury did not result from an occurrence of the nature which the statute was designed to prevent. Defendants cite several cases that explain the general law concerning whether and when an injury results from an occurrence of the nature which the statute is designed to prevent, but Defendants fail to cite to any cases decided in the context of an injury resulting from a dog being off-leash. Plaintiffs, on the contrary, cite numerous cases decided in this context. Those cases include:
• Brotemarkle v. Snyder (1950) 99 Cal.App.2d 388 – off-leash dog ran into the plaintiff’s motor scooter, causing the plaintiff to fall down; negligence per se held to apply;
• Garson v. Juarizue (1979) 99 Cal.Ap.3d 769 – off-leash dog ran into the plaintiff and her dog and caused the plaintiff to fall down; negligence per se held to apply;
• Rollins v. Hedin (1952) 114 Cal.App.2d 488, 490 – off-leash dog grabbed hold of the plaintiff’s pants and caused the plaintiff to fall; negligence per se held to apply.

Defendants argue each of the foregoing cases is distinguishable because, in each cited case, there was physical contact between the subject dog and the plaintiff or the plaintiff’s scooter/dog. Defendants argue that, in this case, Skippy did not make contact with Plaintiff or her dog, and therefore the cases do not apply. There is no cited authority making this distinction, and the Court does not believe it is a meaningful one. The purpose of leash laws is to ensure that off-leash dogs do not engage in a variety of behaviors. It is reasonable to believe that one such behavior would be running at a person and an on-leash dog, causing the on-leash dog to become excited/agitated and harm the person.

Defendants provide a number of hypotheticals that they contend show the absurdity of imposing liability under such facts. Defendants argue that there is no distinction between a two-year-old running at Maverick and Skippy running at Maverick, and a two-year-old could have caused the same agitation. This is not, however, entirely true. First, there are no leash laws for two-year-olds. Second, a person can meaningfully communicate with a two-year-old, telling the child to back off if she is approaching a dog that is likely to become excited/agitated, and explaining to the child why doing so is necessary. It is not possible to communicate with a dog in the same manner. Defendants cite to other situations where Maverick could have gotten excited and caused Plaintiff to fall; those situations are all distinguishable from the facts of this case. One of the purposes of a leash law is so that both of the owners can control their animals if an event begins to occur. If Skippy had been on a leash, he could have been precluded from approaching Plaintiff and Maverick, and this is a part of the purpose of a leash law. At a minimum, there is no authority for the position that a leash law does not exist to preclude this type of incident.

Defendants’ second argument is that the lack of a leash did not cause Plaintiff’s damages; Defendants contend it was Maverick’s pulling on the leash that caused the damages. Defendants failed to carry their burden of proof in this regard. It appears that Skippy and his lack of a leash was a “but-for” factor in Maverick pulling on his leash and Plaintiff falling down. The Court, therefore, cannot say that the lack of a leash did not cause or contribute to the incident.

c. Strict Liability
Defendants’ second argument is that they cannot be held liable on a strict liability theory. This argument need not be decided, as the Court finds against Defendants on their argument that they are entitled to summary judgment on the negligence per se theory. Additionally, it does not appear that Plaintiffs are pursuing a strict liability theory, so this appears to be a red herring.

d. Defendant, Sue Bratsven
Bratsven was added as a doe defendant more than two years after the incident. She contends Plaintiffs fully knew of her identity and relationship to the dog prior to filing suit, and therefore the claims against her are barred by the statute of limitations.

Designating a defendant by a fictitious name is proper only if plaintiff alleges in the complaint that he or she is “ignorant of the name of a defendant.” [CCP § 474] Plaintiff’s requisite “ignorance” of defendant’s name has been expansively interpreted to mean either:
—plaintiff was unaware of defendant’s identity;
—plaintiff was unaware of defendant’s culpability (facts giving rise to a cause of action against the defendant); or
—the law did not give plaintiff a right of action until after commencement of the action. See Marasco v. Wadsworth (1978) 21 C3d 82, 88; Snoke v. Bolen (1991) 235 CA3d 1427, 1431.

“(T)he relevant inquiry when the plaintiff seeks to substitute a real defendant for one sued fictitiously is what facts the plaintiff actually knew at the time the original complaint was filed.” General Motors Corp. v. Sup.Ct. (Jeffrey) (1996) 48 CA4th 580, 588. If the actual knowledge test (above) is satisfied, it is irrelevant that plaintiff was negligent or failed to exercise reasonable diligence in not having discovered defendant’s identity or liability earlier: “(A) plaintiff will not be refused the right to use a Doe pleading even where the plaintiff’s lack of actual knowledge is attributable to plaintiff’s own negligence.” CCP § 474 allows delay in naming particular persons as defendants where plaintiff lacks knowledge of sufficient facts to cause a reasonable person to believe liability is probable: “The distinction between a suspicion that some cause could exist and a factual basis to believe a cause exists is critical in the operation of § 474.” General Motors Corp. v. Sup.Ct. (Jeffrey) (1996) 48 CA4th 580, 595, Grinnell Fire Protection System Co. v. American Sav. & Loan Ass’n (1986) 183 CA3d 352, 359.

Defendants provide testimony from Plaintiff’s deposition, taken on 2/14/14 (Plaintiff amended her complaint on 6/12/14), wherein Plaintiff testified that she wasn’t sure who owned the dog, but thought it may have been owned by “Mrs. Deutsch’s mother.” She stated she didn’t know who owned the dog, but knew it lived at the Deutschs’ house. She stated she had seen the dog with Mrs. Deutsch’s mother in the yard.

As noted above, a suspicion that a person may be liable, as opposed to knowledge that a person is liable, is not sufficient to defeat the relation back statute. Plaintiffs provide evidence, in opposition to the motion, that they propounded special interrogatories asking who the owner of the dog is, and Defendants responded that Teresa Deutsch is the owner. Plaintiffs also provide evidence that Defendants, in response to a demand for production of documents, produced a certificate from the United Kennel Club that lists Teresa as Skippy’s owner. Plaintiffs note that the first time Teresa denied ownership of the dog was on 6/09/14, at her deposition, a week after the statute of limitations ran against Sue.

The Court finds there are triable issues of material fact concerning whether Plaintiffs knew of Sue’s identity and liability at the time they filed the complaint. Sue’s motion for summary judgment is therefore denied.

The Court notes that the parties, in their briefs, also discuss the issue of whether Teresa and/or Harry owns Skippy. Teresa and Harry did not make a motion for summary judgment on the ground that they do not own the dog, and therefore the Court declines to consider this issue, as it is not relevant to the disposition of the motion.

Dated this 31st day of October, 2014

Hon. Elia Weinbach
Judge of the Superior Court