Case Name: Gandjei v. Barnes, et al.
Case No.: 2015-1-CV-278999

According to the allegations of the first amended complaint (“FAC”), defendants Roberta Hodgert (“Roberta”), Sabrina Barnes (“Barnes”) and Charles Thompson (“Thompson”) were making improvements at the residence located at 1668 Austin Avenue in Los Altos, owned by defendant Eric Barlich (“Barlich”). (See FAC, ¶¶ 10-12.) Barlich wanted to rent the property as soon as possible, so he agreed to have Roberta, Barnes and Thompson repair, clean up and fix the premises in exchange for an early possession of the premises by Roberta, and a reduced deposit. (See FAC, ¶ 11.) Thompson brought his pit bull, Theodore, to the property; however, he was arrested and left the dog at the premises, leaving Roberta and Barnes to care for Theodore. (See FAC, ¶ 13.) Roberta and Barnes let the pit bull roam free within the house and did nothing to secure it. (See FAC, ¶ 14.) On March 18, 2014, while Roberta and Barnes were bringing construction material into the house, Theodore exited the premises and attacked plaintiff Azita Gandjei (“Plaintiff”) and Plaintiff’s black Tibetan terrier, resulting in injury and medical care. (See FAC, ¶¶14-15.) Theodore possessed vicious and dangerous propensities and was inclined to attack, bite and maul other persons in and about the premises, and Barnes, Roberta and Thompson knew of Theodore’s viciousness and dangerousness and its inclination to attack. (See FAC, ¶¶ 20-21.) On August 18, 2015, after Barlich’s death, Gail Van Ryn and Boston Private Bank & Trust Co. became the personal representative of Barlich, and administrator of the Estate of Eric Barlich.

On July 24, 2017, Plaintiff filed the FAC against defendants Roberta, Barnes, Thompson, and the Estate of Eric Barlich, asserting causes of action for:

1) Negligence;
2) Strict liability; and,
3) Statutory liability.

On November 17, 2017, the Court sustained the demurrer to the second and third causes of action by defendants Boston Private Bank & Trust Co. and Gail Van Ryn as personal representatives of The Estate of Eric Barlich without leave to amend. Defendants Boston Private Bank & Trust Co. and Gail Van Ryn as personal representatives of The Estate of Eric Barlich (collectively, “moving defendants”) now move for summary judgment.

Defendant’s burden on summary adjudication

“A defendant seeking summary judgment 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; internal citations omitted; emphasis added.)

“The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff’s claim.” (Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 10:241, p.10-91, citing Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334; emphasis original.) “The moving party’s declarations and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff’s claim ‘in order to avoid unjustly depriving the plaintiff of a trial.’” (Id. at § 10:241.20, p.10-91, citing Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)

“Another way for a defendant to obtain summary judgment is to ‘show’ that an essential element of plaintiff’s claim cannot be established. Defendant does so by presenting evidence that plaintiff ‘does not possess and cannot reasonably obtain, needed evidence’ (because plaintiff must be allowed a reasonable opportunity to oppose the motion.) Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.” (Id. at ¶ 10:242, p.10-92, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)

Defendants’ request for judicial notice

Moving defendants’ request for judicial notice of the complaints, Barlich’s death certificate, the substitution of moving defendants as personal representatives of Barlich’s estate, and the orders is GRANTED. (Evid. Code § 452, subds. (c), (d), (h).)

Defendants fail to meet their initial burden

The facts are primarily undisputed. Moving defendants present evidence that Barlich owned a house at 1668 Austin Avenue in Los Altos. (See Bernate decl. in support of Defs.’ motion for summary judgment (“Bernate decl.”), exhs. 6 (“Pl.’s depo”), pp.39:15-25, 40:1-25, 113:5-9, 114:7-10, 115:14-25, 116:1-7; 7 (“Hodgert depo”), pp.17:15-25, 18:1-25, 19:1-25, 20:1-25, 21:1-25, 22:1-22; 12 (“lease agreements”).) Barlich was looking for a new tenant for the house, but the house was in “[n]ot very good” condition—“[t]he bathroom… needed to be fixed… there was a toilet that was not even working… the house had a fire 14 years or something like prior… the garage caught on fire… all of [the rooms] needed to be painted… a new toilet needed to be put on… [a]nd a sink… [t]he floor had to be replaced… [i]t needed… some brick work on the back… [the prior tenant] left a lot of things behind… resealed… the windows… textured two or three rooms….” (Hodgert depo, pp.16:20-25, 17:1-25, 18:1-25, 19:1-25, 20:1-7, 22:23-25, 23:1-8.) Because of the need for repairs, in February 2014, Barlich had prospective tenant Hodgert and her associates repair the house prior to any tenancy, which would start on April 1, 2014. (See Hodgert depo. at pp.17:14-25, 18:1-25, 19:1-25, 20:1-22, 21:18-25, 22:1-25, 23:1-25, 24:1-14; lease agreements.) Charles Thompson, one of the workers on the house, had a pit bull dog that he brought to the house when he was working on it. (See Hodgert depo, pp.22:23-25, 23:1-8, 26:7-14; see also evidence cited by Defs.’ separate statement of undisputed material facts nos. 8, 16.) At some point, Thompson was arrested, and the dog, Theodore, was left at the premises. (See Hodgert depo, pp.28:8-25, 29:1-25, 30:1-6.) Theodore stayed in the house; it was not tied up in the back. (See Hodgert depo, p.30:9-10.) Roberta Hodgert and Sabrina Barnes cared for Theodore in Thompson’s absence. (See evidence cited by Defs.’ separate statement of undisputed material facts no.7.) On March 18, 2014, Theodore attacked Plaintiff and her dogs, injuring Plaintiff. (See Pl.’s depo, pp.34:10-13, 36:22-25, 37:1-25, 38:1-25, 39:1-25, 40:1-25, 41:1-25, 42:1-25, 43:1-25, 44:1-25, 45:1-25, 46:1-25, 47:1-13; see also evidence cited by Defs.’ separate statement of undisputed material facts no. 6.)

Moving defendants argue that they cannot be held liable for negligence because Barlich did not have actual knowledge of Theodore’s dangerous propensities, Thompson was not a tenant of Barlich and thus Barlich lacked any right to control Thompson or his dog, and Plaintiff’s discovery responses demonstrate that she cannot obtain evidence that Barlich owned Theodore or knew of its dangerous propensities prior to the incident. In support of their argument, moving defendants cite to Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360. In Chee, supra, the plaintiff fell when the neighbor’s Jack Russell Terrier jumped on her, resulting in numerous injuries to the plaintiff. (Id. at p. 1364.) The plaintiff sued the landlord, asserting causes of action for negligence and premises liability. (Id. at pp.1364-1365.) The appellate court affirmed the trial court’s granting of the landlord’s motion for summary adjudication of these causes of action, stating that “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.” (Id. at p. 1369, citing Yuzon v. Collins (2004) 116 Cal.App.4th 149, 152.) Moving defendants also note that “Charles Thompson was not a tenant of Eric Barlich at the time of the incident….” (Defs.’ memorandum in support of motion for summary judgment, p.7:15.) Moving defendants reason, without citation to any authority, “[t]herefore, without a landlord-tenant relationship with Thompson, nor knowledge of Theodore’s existence or danger, Mr. Barlich lacked the ability, and therefore the duty, landlords are assigned to prevent dangerous animals from being on their property.” (Id. at p.7:24-26.) Moving defendants also cite to Plaintiff’s deposition testimony and discovery responses in which she stated that she lacked information that Barlich knew that Theodore had dangerous propensities prior to the incident, again apparently relying on their previous argument that a landlord cannot be held liable for the dog bite of his tenant’s dog absent actual knowledge of the dog’s dangerous propensities.

However, as moving defendants stated, Thompson was not a tenant of Barlich. Instead, moving defendants’ evidence demonstrates that Thompson was performing improvements on Barlich’s property and brought the dog with him when performing such work. Thus, Chee and Yuzon and the other cases regarding the liability of a landlord for the damages caused by a tenant’s dog are inapposite. Instead, this case is closer to Salinas v. Martin (2008) 166 Cal.App.4th 404. In Salinas, supra, the property owner hired gardeners who had two pit bull dogs. (Id. at p.408.) The owner “did not see or hear the dogs attack, bite or appear aggressive with anyone; they seemed ‘tame and friendly’ to him.” (Id. at p.409.) However, the plaintiff was attacked by the dogs where he was bit numerous times in the driveway of the property. (Id.) After citing both Yuzon and Chee, the Salinas court reversed the trial court’s granting of the motion for summary judgment, ultimately concluding that the property owner owed the plaintiff a duty of care, stating:

This is not a case, however, in which the plaintiff has asserted passive neglect on the part of a landlord for failure to inspect or take security measures to protect third parties from a dangerous condition on a tenant’s property. The present action is distinguishable on many decisive levels. First and foremost, respondent was not an absentee landlord with limited access to the property. He did not surrender his possessory interest in the property in any way; he continued to control the premises at least intermittently while the construction project proceeded. The dog owners were not respondent’s tenants who had sole possessory rights associated with the property, but rather temporary invitees who performed landscaping services. And unlike tenants, they were neither vested with exclusive possession of the property nor were entitled to keep their dogs there without express permission granted by respondent. Thus, the essential foundation that underlies the carefully circumscribed duty imposed upon landlords—the restraint upon the landlord’s right to engage in intrusive oversight or control of the tenant’s use of the property—is absent here….

“ ‘The crucial element is control.’ [Citation.]” (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1158.) “[W]e have placed major importance on the existence of possession and control as a basis for tortious liability for conditions on the land.” (Preston v. Goldman (1986) 42 Cal.3d 108, 119, 227 Cal.Rptr. 817, 720 P.2d 476, citing Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 368, 178 Cal.Rptr. 783, 636 P.2d 1121.) “In general, courts have imposed a duty to prevent the harm caused by a third party’s animal when a defendant possesses the means to control the animal or the relevant property and can take steps to prevent the harm.” (Cody F. v. Falletti (2001) 92 Cal.App.4th 1232, 1236, 112 Cal.Rptr.2d 593.)

Given respondent’s continued presence on the property, he not only had much greater awareness of events that occurred there, but he also did not relinquish the right or compromise his ability to prevent foreseeable harm on the premises….

Therefore, the cases that decline to impose a duty of care unless a landlord has actual knowledge of the animal, coupled with the right to have it removed from the premises, are not dispositive. Under the facts presented in the case before us, we do not merely examine the evidence for proof of respondent’s actual knowledge of the vicious nature of the dogs and his ability to prevent the attack, as we would if he was a residential landlord. (Portillo v. Aiassa [(1994)] 27 Cal.App.4th 1128, 1134, 32 Cal.Rptr.2d 755.) Instead, we must examine the totality of the factors “set forth in Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561],” that are pertinent to determination of the scope of respondent’s duty. (Morris v. De La Torre (2005) 36 Cal.4th 260, 276, 30 Cal.Rptr.3d 173, 113 P.3d 1182; see also Castaneda v. Olsher, supra, 41 Cal.4th 1205, 1213, 63 Cal.Rptr.3d 99, 162 P.3d 610.)

(Id. at pp.413-417.)

As Salinas states that the owner’s actual knowledge of the vicious nature of the dogs is not dispositive, and as the evidence also demonstrates that Barlich, as the property owner, retained control of the property while Thompson worked on it, the moving defendants fail to meet their initial burden to demonstrate that the FAC against them lacks merit.

Even if they were to have met their burden, Plaintiff, in opposition, presents evidence demonstrating a triable issue of material fact as to Barlich’s awareness of and permission for the dog to be on the property without restraint. (Barnes decl. in opposition to Defs.’ motion for summary judgment, ¶¶ 1-8.) Defendants’ objections do not substantially comply with Rule of Court 3.1354, subdivision (c), and thus, Defendants’ objections are OVERRULED. Even if Defendants’ objections complied with Rule of Court 3.1354, they would nevertheless be overruled.

Moving defendants’ motion for summary judgment is DENIED.

The Court will prepare the Order.