Tentative Rulings

Case Number: BC683366    Hearing Date: December 17, 2019    Dept: 5

Superior Court of California

County of Los Angeles

Department 5

BACKGROUND

Plaintiff He Hua Chen (“Plaintiff”) allegedly fell when a dog owned by Cross-Defendant Jie Liu (“Liu”) ran towards her while she was walking her own dog. Defendants Norjulaw, LLC, Ivan Tseng (“Ivan”), and Janet Tseng (collectively, “Defendants”) owned the rental property in which Liu and his dog resided. Plaintiff asserts causes of action for negligence and premises liability against Defendants. Now, Defendants move for summary judgment. Plaintiff opposes the motion, which is denied.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.]  There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  

DISCUSSION

A property owner has a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) A property owner has a duty of care to prevent dog bites when the it has actual knowledge that a dangerous animal is on the premises, and it has the right to remove the animal. (Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 514.)

Defendants fail to satisfy their burden on summary judgment. Tellingly, Defendants do not proffer their own declarations or deposition testimony stating that they did not know a dangerous animal was on their premises. The absence of such evidence preclude summary judgment.

Instead, Defendants rely on Liu’s deposition, citing Page #101 to Page #105, but Defendants did not file a copy of the transcript with Beth Hurley’s declaration. Plaintiff does not appear to dispute that Liu never informed Defendants about any complaints or a prior incident in which the dog had attacked another dog. (Plaintiff’s Response to Defendants’ Separate Statement of Undisputed Material Facts, ¶ 6.) Regardless, this does not satisfy Defendants’ burden because the mere fact Liu never reported any complaints or incidents does not mean Defendants were not aware that a dangerous dog was living on the property.

Finally, Defendants proffer their lease agreement with Liu, which states that “no animal or pet shall be kept on or about the Premises without Landlord’s prior written consent . . . ,” and does not list any exceptions. (Notice of Exhibits in Support of Motion for Summary Judgment, Exhibit A.) This does not support Defendants’ motion for summary judgment because there is no evidence that Defendants were unaware of the dog’s residence at the property. For example, there are no declarations or deposition transcripts from Defendants indicating that they never gave permission for the dog to reside at the property. Indeed, Ivan Tseng’s deposition testimony establishes that he gave Liu permission to keep the dog at the property.

Taken together, Defendants’ evidence does not satisfy their burden on summary judgment. Even if so, however, Plaintiffs proffer sufficient evidence to give rise to a triable issue. Plaintiff relies on Ivan Tseng’s deposition, during his he testified that, in fact, he knew Liu had a dog when Liu moved into the property. (Declaration of Jason Boyer in Support of Opposition to Motion for Summary Judgment, Exh. B, p. 18.) Ivan Tseng testified that he viewed the dog as security for the property because it barked at strangers. (Id., Exh. B, p. 31.)

Q: So was the dog like -- in your eyes was the dog a security dog?

A: Yes.

Q: And if some stranger would approach, would the dog bark to give security?

A: Yes.

Q: Do you feel when the dog would bark, that it could keep strangers away?

A: Yes.

(Ibid.) Ivan Tseng testified that he permitted Liu to build a doghouse for the dog on the property, meaning that he knew the dog would be outside at times. (Id., Exh. B, pp. 26-27.) Finally, Ivan Tseng testified that he knew the gate at the property did not secure the yard in which the dog lived. (Id., Exh. B., pp. 40-41.)

Even had Defendants satisfied their burden, Plaintiff’s evidence is sufficient to establish that Defendants permitted the dog to reside at the property, knowing that: (1) The dog lived in the yard; (2) The yard was not secure; and (3) The dog was aggressive toward strangers. This evidence is sufficient to create a triable issue.

Defendants did not address Janet Tseng or Norjulaw, LLC separately from Ivan Tseng. For example, Defendants proffer no evidence that Janet Tseng was unaware of the dog’s existence or nature. Nor do Defendants proffer any evidence that Norjulaw, LLC is not owned and/or controlled by Ivan Tseng. Therefore, the Court denies Defendants’ motion in its entirety.

CONCLUSION AND ORDER

Defendants’ motion for summary judgment is denied. Defendants shall provide notice and file proof of such with the Court.

DATED: December 17, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: BC683366    Hearing Date: December 05, 2019    Dept: 5

Superior Court of California

County of Los Angeles

Department 5

Plaintiff He Hua Chen (“Plaintiff”) alleges that she sustained injuries when a dog owned by Cross-Defendant Jie Liu (“Liu”) ran towards her while she was walking her own dog, causing her to fall. Defendants Norjulaw, LLC, Ivan Tseng, and Janet Tseng (“Defendants”) owned the rental property where Liu resided with his dog. Defendants move for summary judgment on Plaintiff’s complaint. While Defendants have filed a Volume of Evidence in support of their motion, Defendants have not attached the exhibits to that document. Nor have Defendants attached the exhibits to the declaration of Beth Hurley, which purports to authenticate them. Therefore, the Court continues the hearing on this motion to December 17, 2019, at 1:30 p.m. Defendants are ordered to file the exhibits no later than December 5, 2019. The Court’s clerk shall provide notice.

DATED: December 2, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court