On 04/30/2018 MARIA ANDAGUA filed a Personal Injury - Other Personal Injury lawsuit against JAMES ARMOR. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are CHRISTOPHER K. LUI and DANIEL M. CROWLEY. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
CHRISTOPHER K. LUI
DANIEL M. CROWLEY
DOES 1 TO 25
GENASSY MANAGEMENT & DEVELOPMENT
POWERS ANTHONY AKA TONY
GHERMEZIAN RAYMOND ESQ.
MARK R. WEINER & ASSOCIATES
5/22/2020: Notice - NOTICE NOTICE THAT MOTIONS FOR ORDER COMPELLING RESPONSES TO INSPECTION DEMAND, FORM INTERROGATORIES, ESTABLISHING ADMISSIONS AND SUPPLEMENTAL INTERROGATORIES HAVE BEEN TAKEN OFF CALENDAR
3/18/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 03/18/2020
3/23/2020: Notice - NOTICE NOTICE OF CONTINUANCE
4/16/2020: Motion in Limine - MOTION IN LIMINE MOTION IN LIMINE NO. 4 TO EXCLUDE/PRECLUDE/PROHIBIT PLAINTIFF'S USE OF OR ARGUMENT REGARDING THE GOLDEN RULE
4/16/2020: Motion in Limine - MOTION IN LIMINE DEFENDANT'S MOTION IN LIMINE NO. 10 TO EXCLUDE/PRECLUDE/PROHIBIT EVIDENCE REQUESTED
4/16/2020: Motion in Limine - MOTION IN LIMINE MOTION IN LIMINE NO. 3 FOR AN ORDER PROHIBITING PLAINTIFF FROM ARGUING/IMPOSING AN IMPROPER STANDARD OF CARE
2/20/2020: Notice - NOTICE THAT MOTION TO DISMISS PLAINTIFF HAS BEEN TAKEN OFF CALENDAR
2/18/2020: Motion for Order - MOTION FOR ORDER ESTABLISHING ADMISSIONS AS TO MARIA ANDAGUA
11/26/2019: Notice of Ruling
11/20/2019: Reply - REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MSJ
11/20/2019: Objection - OBJECTION MOVING PARTIES' EVIDENTIARY OBJECTIONS TO THE EVIDENCE SUBMITTED BY PLAINTIFF IN OPPOSITION TO MSJ
11/8/2019: Declaration - DECLARATION DECLARATION OF BAHMAN MEHDIZADEH
11/8/2019: Separate Statement
7/23/2019: Amendment to Complaint (Fictitious/Incorrect Name)
7/23/2019: Amendment to Complaint (Fictitious/Incorrect Name)
4/30/2018: SUMMONS -
4/30/2018: COMPLAINT FOR DAMAGES 1. STRICT LIABILITY (CIVIL CODE 3342) ;ETC
Hearing04/23/2021 at 08:30 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearing04/09/2021 at 10:00 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Docketat 08:30 AM in Department 28, Daniel M. Crowley, Presiding; Hearing on Motion to Deem Request for Admissions Admitted (Set Four; Sanctions) - Not Held - Continued - Party's MotionRead MoreRead Less
Docketat 08:30 AM in Department 28, Daniel M. Crowley, Presiding; Trial Setting Conference - HeldRead MoreRead Less
DocketMinute Order ( (Trial Setting Conference)); Filed by ClerkRead MoreRead Less
DocketNotice (Notice that Hearing Date of Defendants' Motion for Order Establishing Requests for Admission (Set Four) Has Been Taken Off Calendar); Filed by James Armor (Defendant); Genassy Management & Development (Defendant)Read MoreRead Less
DocketNotice (Notice that Hearing Date of Defendants' Motion for Order Compelling Plaintiff's Verified Responses to Form Interrogatories (Set Four) Has Been Taken Off Calendar); Filed by James Armor (Defendant); Genassy Management & Development (Defendant)Read MoreRead Less
Docketat 08:30 AM in Department 28, Daniel M. Crowley, Presiding; Trial Setting Conference - Not Held - Advanced and Continued - by CourtRead MoreRead Less
Docketat 08:30 AM in Department 28, Daniel M. Crowley, Presiding; Hearing on Motion to Compel Discovery (not "Further Discovery") (Responses to Interrogatories) - Not Held - Taken Off Calendar by PartyRead MoreRead Less
Docketat 08:30 AM in Department 28, Daniel M. Crowley, Presiding; Hearing on Motion to Deem Request for Admissions Admitted - Not Held - Taken Off Calendar by PartyRead MoreRead Less
DocketNotice (Notice that IDC and Motion for Order Compelling Plaintiff's Further Responses to Special Interrogatories Have Been Taken Off Calendar); Filed by James Armor (Defendant)Read MoreRead Less
DocketSeparate Statement (of Special Interrogatories and Plaintiff's Responses in Dispute); Filed by James Armor (Defendant)Read MoreRead Less
DocketMotion for Order (Compelling Plaintiff's further Responses); Filed by James Armor (Defendant)Read MoreRead Less
DocketReceiptRead MoreRead Less
DocketCIVIL DEPOSITRead MoreRead Less
DocketANSWER TO COMPLAINT ON BEHALF OF DEFENDANT JAMES ARMOR; DEMAND FOR TRIAL BY JURYRead MoreRead Less
DocketAnswer; Filed by James Armor (Defendant)Read MoreRead Less
DocketComplaint; Filed by Maria Andagua (Plaintiff)Read MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketCOMPLAINT FOR DAMAGES 1. STRICT LIABILITY (CIVIL CODE 3342) ;ETCRead MoreRead Less
Case Number: BC704260 Hearing Date: November 25, 2019 Dept: 4A
Motion for Summary Judgment
Having considered the moving, opposing, and reply papers, the Court rules as follows.
On April 30, 2018, Plaintiff Maria Andagua (“Plaintiff”) filed a complaint against Defendant James Armor alleging strict liability for violation of Civil Code section 3342, common law strict liability for damages caused by an animal with known dangerous propensities, negligence, and negligence per se for a dog bite that occurred on January 20, 2016.
On February 19, 2019, Plaintiff filed an amendment to her complaint renaming Doe 1 as Defendant Genessy Management & Development.
On July 23, 2019, Plaintiff filed an amendment to her complaint renaming Doe 1 and Doe 2 as Defendant Anthony (AkA Tony) Powers.
On September 9, 2019, Defendant Genessy Management & Development filed a motion for summary judgment pursuant to California Code of Civil Procedure section 437c.
Trial is set for April 30, 2020.
Defendant Genessy Management & Development (“Moving Defendant”) asks the Court to grant summary judgment in its favor and against Plaintiff because it did not have actual knowledge of the subject dog’s dangerous propensities and did not own, keep or control the subject dog.
The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)
“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., § 437c(p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Id.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)
“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)
Lack of Actual Notice Defense
“Under California law, a landlord who does not have actual knowledge of a tenant’s dog’s vicious nature cannot be held liable when the dog attacks a third person” when the landlord does not have actual knowledge of the dog’s dangerous propensity. (Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 1838-1839 (emphasis added).) California courts have consistently applied this exception only where the dangerous dog belongs to the tenant. (See id. at pp. 1835, 1838-1839; Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1369-1372; Martinez v. Bank of America National Trust & Savings Assoc. (2000) 82 Cal.App.4th 883, 888, 891; Lundy v. California Realty (1985) 170 Cal.App.3d 813, 815, 821-822; Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 514.) he general duty of care owed by a landowner in the management of his or her property is attenuated when the premises are let because the landlord is not in possession, and usually lacks the right to control the tenant and the tenant's use of the property.” (Chee v. Amanda Goldt Property Management, supra, 143 Cal.App.4th at 1369.) As a result, “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.” (Ibid.)
Moving Defendant’s undisputed material facts establish the following. Defendant Armor owned a rental property where Plaintiff resided. (UMF Nos. 1-2, pp. 2:4-3:2.) Plaintiff alleges that on January 20, 2018, a dog bit Plaintiff while she stood outside the door to her home. (UMF No. 3, p. 3:4-3:14.) The dog belonged to Anthony, the son of another tenant. (UMF No. 4 pp. 3:16-3:4.) Moving Defendant did not own or care for the dog that bit Plaintiff. (UMF No. 5, p. 4:5-4:17.) Anthony was never a tenant of an adjacent property or Defendant Armor’s property. (Ibid.)
The evidence underlying Moving Defendant’s undisputed material facts consists of the following. Plaintiff testified that she does not know where Anthony lives. (Plaintiff Depo., p. 30:6-30:7.) Anthony visits his mother who is a tenant at Defendant Armor’s property. (Plaintiff Depo., p. 27:9-27:25.) Plaintiff has seen Anthony “[m]any times.” (Plaintiff Depo., pp. 24:25-25:6.) Plaintiff does not remember the last time she saw Anthony prior to her deposition was taken on February 13, 2019. (Plaintiff Depo., p. 25:7-25:9.)
Plaintiff’s submitted evidence demonstrating the following. Anthony did not live at the building on the date of the incident. (Miguel Mas Depo., p. 12:7-12:9.)
Moving Defendant argues that summary judgment is proper because it did not have actual knowledge of the dog’s dangerous propensities. (Motion, p. 7:8-7:12.) The Court finds Moving Defendant’s reliance on the decision in Laudenslayer and its progeny is misplaced, not only because Anthony is not Moving Defendant’s tenant but also because the dog was visiting the common area outside its tenant’s unit.
The Court finds the rationale in Salinas v. Martin (2008) 166 Cal.App.4th 404 to be instructive. In Salinas, Respondent Paolo Martin owned a residence where he hired two men to perform weeding and gardening. (Salinas, supra, 166 Cal.App.4th at p. 408.) Respondent Martin allowed the men to keep two dogs loose in the fenced back yard. (Id. at p. 409.) Appellant Stephen Salinas entered the back yard with consent from Respondent Martin’s contractor, who was hired to work on a construction project under Respondent Martin’s supervision. (Id. at pp. 408-409.) One of the dogs attacked Appellant Salinas. (Id. at p. 409.) The Court in Salinas refused to follow the cases imposing a duty on the landlordonly if it had actual knowledge of the dog’s dangerous propensities and the right to remove it from the premises. (Id. at p. 413-415.) Instead, that court went through the “totality of the factors set forth in Rowland v. Christianson  that are pertinent to determination of the scope of respondent’s duty.” (Id. at p. 415.) Prior to doing so, the appellate court observed the following:
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.
(Id. at p. 413.)
Here, Anthony, the owner of the dog that bit Plaintiff, was not Defendant Armor’s tenant, and did not live at Defendant Armor’s building at the time of the incident. The submitted evidence shows that Anthony had visited the property many times in the past, but there is no evidence showing that Anthony visited the property as regularly as a tenant would, either with or without his dog. The submitted evidence also shows that the dog that bit Plaintiff was tied up in a common area, unleashed in the common area, and bit Plaintiff in a common area. Neither Anthony nor his tenant mother was vested with exclusive possession of this part of the property. Nor was Anthony entitled to keep his dog at the property without express permission from Defendant Armor. Accordingly, like the situation in Salinas, it cannot be said that either Anthony or his mother had exclusive control over the area where the dog was visiting, such that Defendant Armor had to have actual knowledge of the dog’s dangerous tendencies in order to intercede.
As the court in Salinas required of the defendant landlord there, Moving Defendant must demonstrate it did not owe a duty of care to Plaintiff through the typical duty analysis. Moving Defendant has not argued it did not owe a duty to Plaintiff using this analysis and, thus, summary judgment cannot be granted on this ground.
Civil Code section 3342
A court may not summarily adjudicate claims or defenses when the notice of the motion only seeks summary judgment. (Homestead Savings v. Superior Court (1986) 179 Cal.App.3d 494, 498-499.)
Moving Defendant may have a viable defense against Plaintiff’s Civil Code section 3342 cause of action, but the Court may not entertain such a defense. This is because Moving Defendant did not seek summary adjudication here.
The motion is therefore DENIED.
Moving Defendant is ordered to give notice of this ruling.