Case Number: LC099816 Hearing Date: June 25, 2014 Dept: 92

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

SUSAN PEOPLES, ET AL.,
Plaintiff(s),
vs.

ELLIOT MAGGIN, ET AL.,

Defendant(s).

CASE NO: LC099816

[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Dept. 92
1:30 p.m. — #41
June 25, 2014

Defendant, Elliot Maggin’s Motion for Summary Judgment is Granted.

1. Background Facts
Plaintiffs, Susan Peoples and Linda Peoples filed this action against Defendants, Elliot Maggin and Greg Gaston for damages arising out of a dog bite incident. The complaint includes causes of action for negligence (by Linda), negligence per se (by Linda), strict liability (scienter) (by Linda), strict liability (Civil Code §3342) (by Linda), and negligence (by Susan). The essential facts relating to this motion are not disputed, and include the following:
• Gregory Gaston has lived with Elliot Maggin in Maggin’s home since November of 2012 (fact 1);
• In December of 2012, Gaston took possession of a dog (“Coga”) previously owned by non-party, Hayley Zent (fact 3);
• On 12/30/12, Gaston placed Coga in the backyard of the home (fact 5);
• Coga got out of the backyard without Gaston’s knowledge (fact 6);
• Plaintiff, Linda Peoples was walking her Chihuahua (“Kahlua”) on 12/30/12, and Coga attacked Kahlua (facts 7 and 8);
• The attack caused Linda to fall to the ground and sustain injuries (fact 9).

2. Motion for Summary Judgment
Defendant, Maggin moves for summary judgment, contending:
• Maggin does not own the dog, and therefore cannot be held liable for strict liability per Civil Code §3342;
• Maggin is merely Gaston’s landlord, and therefore does not have liability for negligence absent knowledge of the dog’s vicious nature and ability to prevent foreseeable harm.

Plaintiffs oppose the motion, arguing:
• There are triable issues of material fact concerning Maggin’s ownership of the subject dog;
• There are triable issues of material fact concerning Maggin’s liability as the landlord on the property.

a. Ownership of the Dog
The first issue before the Court is whether Maggin met his initial burden to establish that he does not own Coga. Maggin attempts to do so via his own declaration and the declaration of Gaston, as well as facts 1, 3, 4, 16, and 17 to the moving papers.

Maggin, in his declaration, explains that he owns the subject home and has owned the home since 1997. He explains that, starting in November of 2012, he leased a bedroom in the home to Gaston, who was also allowed to use the common areas of the residence. He explains that Gaston, in December of 2012, brought the dog to his home; the dog stayed in Gaston’s room or the backyard. He declares that he did not own the dog, and did not possess, feed, or otherwise care for the dog.

Gaston, in his declaration, explains that he moved into Maggin’s home in November of 2012. He began to look after Coga in December of 2012. He declares that Maggin had no ownership interest in Coga and did not share in the care and supervision of Coga.

The Court finds the foregoing is sufficient to meet the initial burden to show that Maggin did not own Coga. The burden therefore shifts to Plaintiffs to raise a triable issue of material fact in this regard. Plaintiffs argue that Maggin allowed Coga to reside in his home and “harbored” Coga; Plaintiffs also argue Maggin exercised a degree of control over Coga. Plaintiffs cite Maggin’s deposition testimony, pages 23-28, in this regard. Maggin, at those pages, explains that Gaston moved the dog into the property on a temporary basis, that the dog lived in Gaston’s room, and that Maggin occasionally saw Coga in the backyard. Plaintiffs fail to show how any of the foregoing establishes “control” over the dog, or establishes that Maggin “harbored” the dog.

Plaintiffs failed to raise a triable issue of material fact concerning Maggin’s ownership of Coga. The motion for summary adjudication of the causes of action for strict liability based on ownership is therefore granted.

b. Landlord Liability
Maggin contends he was Gaston’s landlord. Maggin establishes that a landlord is only liable for harm to a third party if the landlord has knowledge of the dog’s vicious behavior and fails to take steps he could reasonably take to prevent the harm. Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 1837.

Plaintiffs argue that Maggin was NOT Gaston’s landlord, and therefore this authority does not apply. Plaintiffs argue, in the alternative, that Maggin knew of the dog’s vicious tendencies and failed to protect Plaintiffs from such tendencies.

Plaintiffs’ first argument is that Maggin actually was not Gaston’s landlord, but instead the two were mere housemates. If this is true, however, it is not clear from where liability on the part of Maggin would derive. As noted above, Maggin did not own the dog. Plaintiffs cite no authority for the position that a housemate of a dog owner is liable for the dog’s violent activities.

For purposes of this motion, the Court will assume Maggin was Gaston’s landlord. The first issue, therefore, is whether Maggin met his burden to establish that he lacked knowledge that the dog was vicious. Maggin attempts to do so via his own declaration and the declaration of Gaston, as well as facts 10-15. These facts explain that Maggin never saw the dog act in a vicious way, and that Gaston never told Maggin that the dog was violent or vicious. The foregoing is sufficient to meet the moving burden to establish that Maggin lacked knowledge that the dog was vicious.

The burden therefore shifts to Plaintiffs to raise a triable issue of material fact in this regard. Plaintiffs do so in only one way – they attach photos of Coga, and contend that the photos establish Coga is a pit bull, which is a breed with vicious tendencies. Plaintiffs cite no authority for the position that all pit bulls must be treated specially by all landlords because they are, de facto, dangerous. Additionally, the Court cannot take judicial notice that the subject photos are of pit bulls, as the Court is not an expert in breed identification. Plaintiffs failed to raise a triable issue of material fact in this regard.

Plaintiffs argue that, per Donchin, supra, at 1832, Maggin is liable for the fact that his gardener left the gate in the backyard open. Donchin, however, expressly discussed the “two-step approach” to determining whether a landlord is liable for a dog’s conduct. The Plaintiff must first show that the landlord had knowledge that the dog was dangerous. If and only if the Plaintiff makes such showing, the next inquiry is whether the landlord failed to take necessary steps to prevent an attack. Nothing in Donchin holds that a landlord is de facto liable for a dog’s vicious activities if the landlord leaves a fence open, etc. Absent a showing that the landlord knew the dog was vicious in the first instance, no duty attaches to prevent an attack.

Plaintiffs’ remaining causes of action fail because they rest on the premise that Maggin, as Gaston’s landlord, breached a duty to Plaintiffs. Because summary adjudication of the remaining causes of action is appropriate, in addition to summary adjudication of the strict liability causes of action, the Court finds summary judgment must be granted in its entirety.

Dated this 25th day of June, 2014

Hon. Elia Weinbach
Judge of the Superior Court