SALINAS v. MARTIN

• Decision Date: 12 November 2008
• Docket Number: No. A119733.,A119733.
• Citation: 82 Cal.Rptr.3d 735,166 Cal.App.4th 404
• Court: California Court of Appeals Court of Appeals
• Parties: Stephen SALINAS, Plaintiff and Appellant, v. Paolo MARTIN, Defendant and Respondent.

166 Cal.App.4th 404

82 Cal.Rptr.3d 735

Stephen SALINAS, Plaintiff and Appellant,

v.Paolo MARTIN, Defendant and Respondent.

No. A119733.

Court of Appeal, First District, Division 1, California.

Aug. 28, 2008.

As Modified on Denial of Rehearing Sept. 22, 2008.

Review Denied Nov. 12, 2008.

COPYRIGHT MATERIAL OMITTED.

Robert Stevens Condie, Esq., for Plaintiff and Appellant.

Valerian, Patterson & Stratman, Scott C. Stratman, Esq., Hayes, Davis, Bonino, Ellingson, McLay & Scott, LLP, Mark G. Bonino, Esq., Phuong N. Fingerman, Esq., Redwood Shores, for Defendant and Respondent.

SWAGER, J.

The trial court granted respondent's motion for summary judgment upon a finding that respondent owed no duty of care to prevent an attack of appellant by a pit bull present on respondent's property with his express consent. We conclude that respondent owed a duty of care to appellant and reverse the judgment.

STATEMENT OF FACTS

Respondent was the owner of a residence located on McLaughlin Street in Richmond. In 2005, he embarked upon a remodeling project at the residence that included construction of a new foundation. Respondent hired Burle Southard to act as general contractor for the project. Southard, in turn, hired appellant as an employee to work on the construction project under his supervision for a period of three to four months. With respondent's approval, appellant and Southard stored equipment and materials in the back yard and garage of the residence. Appellant was given permission by respondent to enter the yard “at any time” to retrieve equipment or materials he stored there.

Respondent also hired two men, Armand and Greg Sanchez, to perform “weeding and gardening” work on the premises. The Sanchez's had two dogs, a pit bull terrier and a smaller pit bull, Labrador mix. Respondent agreed that the Sanchezes could keep their two dogs loose in the fenced back yard and in a van they kept on the property. According to respondent's declaration, he did not see or hear the dogs attack, bite or appear aggressive with anyone; they seemed “tame and friendly” to him.

Southard expressed a different view of the dogs. He declared that he “saw a ferocious looking pit bull dog” in the Sanchezes' “very dilapidated looking van” in June or July of 2005. Southard confronted respondent about the dog. Respondent explained that the “van had been broken into in the past, and the dog was there to guard the van.” Southard communicated his fear and view to respondent that “he should certainly not have this pit bull” which had been trained as a “ ‘guard dog’ around this job site.” He told respondent, “that's a pit bull,' meaning that the dog was dangerous.” Southard thought respondent understood the concern he conveyed that “the dog would attack someone.”

On August 1, 2005, appellant called Southard to report that he needed to retrieve “wood planks for scaffolding” that were stored in respondent's yard. In accordance with the consent previously given by respondent, Southard advised appellant to “go ahead and pick up what he needed.” The same day, respondent had specifically given Armand Sanchez permission to let the dogs “roam in the backyard.” Respondent left the house before appellant arrived and was gone for four or five hours. He was not advised that appellant “intended to visit” the residence that day. If respondent had known appellant planned to enter the yard, he would have “warned him about the pit bull.”

Appellant had never seen the dogs at the residence before, so he entered the back yard through a 12-inch gap in a cyclone fence around the house. Once appellant was about 10-12 feet into the yard at the corner of the foundation, the smaller mixed-breed dog growled at him, then the pit bull attacked him. Appellant escaped through the gap in the fence, but the pit bull followed into the driveway and continued to repeatedly bite him until he managed to jump onto respondent's car.

The trial court determined that respondent had “no duty of care” to appellant to prevent the dog attack. The court found that property owners “must have actual knowledge of the vicious nature or dangerous propensities of another's dog” to incur liability for injuries incurred on their property, and appellant “has not raised a triable issue of material fact as to the lack of [respondent's] knowledge about the dangerous tendencies of the dog.” The summary judgment motion of respondent was granted, and judgment was entered in his favor. This appeal followed.

DISCUSSION

Appellant argues that the trial court erred by granting defendant's motion for summary judgment and dismissing his negligence action. He asserts that the trial court committed several errors in resolving the summary judgment motion. First, he complains that the court applied “the wrong standard” of duty analysis that requires a “residential landlord” to “have actual knowledge of the vicious nature or dangerous propensities of another's dog” to incur liability, whereas “this is not a landlord/tenant case.” Appellant also claims that the evidence adduced by defendant failed to meet his burden of proving he “did not actually know the dogs were dangerous,” even if we follow the erroneous “residential landlord/tenant's pet” standard. Appellant adds that his evidence in opposition to the motion, particularly Southard's declaration, established a “triable issue of fact” as to respondent's knowledge of the danger posed by the pit bull guard dog.

I. The Summary Judgment Standards.

We adhere to established rules in reviewing the trial court's ruling on respondent's summary judgment motion. “A defendant's motion for summary judgment should be granted if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) The burden of persuasion remains with the party moving for summary judgment. [Citation.] When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff ‘does not possess and cannot reasonably obtain, needed evidence.’ [Citation.]” ( Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003, 4 Cal.Rptr.3d 103, 75 P.3d 30.) “ ‘A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.’ (Code Civ. Proc., § 437c, subd. (p)(2).)” ( Lewis v. Chevron U.S.A., Inc. (2004) 119 Cal.App.4th 690, 693, 14 Cal.Rptr.3d 636.)

Appellant's negligence action “requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached that duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff.” ( Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1532, 53 Cal.Rptr.3d 700.) Respondent's summary judgment motion challenged the proof that he owed a legal duty of care to appellant, which is a necessary element of causes of action for negligence and premises liability. ( Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673, 25 Cal.Rptr.2d 137, 863 P.2d 207; Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1369, 50 Cal.Rptr.3d 40.) To obtain a summary judgment a defendant may conclusively negate an essential element of plaintiff's action, but is not required to do so. ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853 [107 Cal.Rptr.2d 841, 24 P.3d 493]; Castillo v. Barrera (2007) 146 Cal.App.4th 1317, 1323 .) “Summary judgment in favor of the defendant will be upheld when the evidentiary submissions conclusively negate a necessary element of the plaintiff's cause of action or show that under no hypothesis is there a material issue of fact requiring the process of a trial.” ( Biscotti v. Yuba City Unified School Dist. (2007) 158 Cal.App.4th 554, 557-558 .)

“On appeal from a summary judgment, ‘[w]e review the trial court's decision de novo, considering all of the evidence the parties offered in connection with the motion ... and the uncontradicted inferences the evidence reasonably supports.’ [Citation.] The evidence must be viewed in favor of the plaintiff as the losing party, construing the submissions of the plaintiff liberally and those of the defendant strictly.” ( Bell. v. Greg Agee Construction, Inc. (2004) 125 Cal.App.4th 453, 459, 23 Cal.Rptr.3d 33.)

II. Respondent's Duty of Care as a Landowner.

Our inquiry proceeds to the nature and extent of respondent's legal duty of care as landowner for the injuries incurred on his property by appellant. “ ‘Generally, one owes a duty of ordinary care not to cause an unreasonable risk of harm to others....' [Citation.]” ( Padilla v. Rodas (2008) 160 Cal.App.4th 742, 747, 73 Cal.Rptr.3d 114.) “Civil Code section 1714 sets forth the general duty of a property owner toward others: ‘Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.’ The application of this provision entails an inquiry as to ‘whether in the management of his property he...