Willenberg v. Superior Court

• Court: California Court of Appeals
• Citation: 185 Cal.App.3d 185,229 Cal.Rptr. 625
• Decision Date: 05 September 1986
• Parties: Travis WILLENBERG et al., Petitioners, v. SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent. David WEULE, D.V.M., Real Party in Interest. B021855.

Page 625

229 Cal.Rptr. 625 185 Cal.App.3d 185 Travis WILLENBERG et al., Petitioners,
v.
SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent.
David WEULE, D.V.M., Real Party in Interest. B021855. Court of Appeal, Second District, Division 5, California. Sept. 5, 1986.

[185 Cal.App.3d 186] Early, Maslach, Nutt & Peterson, Lynn R. Eastman, Los Angeles, Greines, Martin, Stein & Richland, Irving H. Greines, Beverly Hills, for petitioners.

No appearance for respondent.

Hurley, Grassini & Wrinkle, Roland Wrinkle, North Hollywood, for real party in interest.

ASHBY, Associate Justice.

Petitioners, defendants in a personal injury action, seek a writ of mandate directing the respondent court to grant their motion for summary judgment. We hold that petitioners are entitled to summary judgment and accordingly direct the issuance of a peremptory writ of mandate.

Petitioners are the owners of a half-Doberman, half-German Shepherd dog named Pebbles. Real party (plaintiff) is Pebbles' veterinarian. Plaintiff had treated Pebbles throughout her puppyhood without incident, and the dog never exhibited any violent propensities. During a visit to plaintiff's office on March 24, 1984, Pebbles got away from her owner (petitioner Travis

Page 626

Willenberg) and leaped onto plaintiff. Plaintiff managed to fend her off but she jumped on plaintiff again, forcing plaintiff to "wrestle her down." In doing so plaintiff injured his shoulder. Pebbles did not bite plaintiff, one factor which plaintiff claims distinguishes this case from Nelson v. Hall (1985) 165 Cal.App.3d 709, 211 Cal.Rptr. 668.

The plaintiff in Nelson was a veterinarian's assistant who filed suit after being bitten by a "patient" who had not previously exhibited any violent tendencies. The dog's owners moved for summary judgment on the ground that dog bites were an inherent risk of the veterinary profession. In affirming the summary judgment in favor of defendants, the court, referring to the declaration of plaintiff's employer, stated: "[I]t is generally accepted in the veterinary profession that any animal may react strangely or dangerously while receiving treatment, regardless of its behavior in the home environment. A veterinarian cannot assume a normally gentle dog will act gently while receiving treatment." (Nelson v. Hall, supra, 165 Cal.App.3d at p. 712, 211 Cal.Rptr. 668.)

The court concluded that "[a] veterinarian or a veterinary assistant who accepts...