Yuzon v. Collins

• Decision Date: 30 January 2004
• Docket Number: No. B163840.,B163840.
• Citation: 10 Cal.Rptr.3d 18,116 Cal.App.4th 149
• Court: California Court of Appeals Court of Appeals
• Parties: Brian YUZON, a Minor, etc., Plaintiff and Appellant, v. Gerald COLLINS, Defendant and Respondent.

10 Cal.Rptr.3d 18

116 Cal.App.4th 149

Brian YUZON, a Minor, etc., Plaintiff and Appellant, v. Gerald COLLINS, Defendant and Respondent.

No. B163840.

Court of Appeal, Second District, Division 1.

January 30, 2004.

Caesar S. Natividad for Plaintiff and Appellant.

Michael Maguire & Associates, Paul Kevin Wood and Brian Y. Fujita, Costa Mesa, for Defendant and Respondent.

ORTEGA, J.

Under California law, a landlord owes a duty of care to his tenant's invitees to prevent injury from the tenant's vicious dog when the landlord has "actual knowledge" of the dog's vicious nature in time to protect against the dangerous condition on his property. (Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 507, 118 Cal.Rptr. 741.)

In this case, plaintiff was bitten by a dog owned by defendant landlord's tenants. The landlord moved for summary judgment, contending, among other things, that he owed plaintiff no duty of care due to his lack of actual prior knowledge of the dog's vicious nature. The trial court granted the motion and entered summary judgment for the landlord. We affirm.

BACKGROUND

On April 30, 2001, plaintiff Brian Yuzon, a minor, was bitten by a dog, a pit bull or pit bull mix named Kemo. (While the complaint identified Kemo as a rotweiller, plaintiff's separate statement identified Kemo as a pit bull or a pit bull mix.) Kemo was owned by defendants Tracy Blackburn and Fin Blackburn, who are not parties to this appeal. The incident occurred at the Blackburns' Long Beach residence, which they were renting from their landlord, defendant Gerald Collins.

Plaintiff, by and through his guardian ad litem, filed this action against the Blackburns and Collins on October 3, 2001. With regard to Collins, the complaint alleged he had negligently owned, maintained, managed and operated the premises, and had willfully failed to guard or warn against a dangerous condition on his property.

Collins' Summary Judgment Motion

On August 8, 2002, Collins moved for summary judgment, contending, among other things, that he owed no duty of care to plaintiff because he "had no actual knowledge of the dangerous propensities of the subject dog."

Collins contended that although the Blackburns' 1993 rental agreement had authorized them to have a springer spaniel on the property, he was unaware of Kemo's presence on the property. The Blackburns' springer spaniel died in February 1994. According to Fin Blackburn's testimony, Collins did not know about the springer spaniel's death. In April 1994, the Blackburns acquired a dalmatian. The Blackburns acquired Kemo in 1999, about a year and a half before this incident. Fin Blackburn testified that when the Blackburns acquired Kemo, they did not tell Collins they had acquired Kemo.

Collins testified that while he knew the lease had authorized a springer spaniel on the property, he was not aware of any dogs on the property. Collins testified that he never saw or heard a dog barking on the premises. Collins testified that when he learned of this incident, he was not surprised to learn about the dogs' presence because "[t]he rental agreement permitted a dog in the house."

Fin Blackburn testified that he did not believe Collins had ever seen their dogs. Fin testified that if Collins were "in the front yard walking by," he would not have a chance to see the dogs. According to Fin, "the only time he [Collins] probably would have seen the dog is if it would have stuck its head out through the curtain."

According to the deposition of Tracy Blackburn, however, Collins "should have" seen their dogs whenever he visited the property, "because, you know, you open the door, and they kind of push you and bark and stuff. Usually, I would go outside the door just to keep from having to keep fighting them at the door. They would just get all excited and jump up on the screen and stuff." Tracy Blackburn testified that about one or two years before the incident, Collins told the Blackburns "the insurance guy was coming, to let him in the backyard to look around, because the dogs, we'd have to pin [sic] the dogs up so the guy could come in the backyard."

In addition to contending he was unaware of Kemo's presence, Collins also contended he did not know of Kemo's dangerous propensities. Collins contended he could not have known about Kemo's vicious nature because "there is no evidence that the subject dog had ever displayed any vicious propensities prior to this incident." As proof that Kemo had never displayed any vicious propensities before this incident, Collins relied upon the following deposition testimony by Tracy Blackburn:

"Q Prior to the dog-biting incident involving Brian Yuzon, had any of your dogs ever bitten anyone, to your knowledge?

"A No "Q Did you ever have any complaint about either of your dogs, the Dalmatian or Kemo acting aggressively?

"A No. Well, he'd run out — if the door got open, he'd run out and that would scare people. So yes, the people across the street, because their dog was on a leash, and it worried them. They said, `Please, make sure he doesn't get out.' "Q Was that ever reported to Mr. Collins or his wife?

"A Not that I know of.

"Q Any other problems with your dogs being aggressive or reported to Mr. Collins or to his wife?

"A No. I didn't see that as aggressive, because I didn't feel my dog was going to hurt them, he just wanted to go play."

Plaintiff's Opposition to Summary Judgment

In opposition to the summary judgment motion, plaintiff contended that Collins had misconstrued Tracy Blackburn's above-quoted testimony. Contrary to Collins' claim that Tracy Blackburn's testimony showed that Kemo did not demonstrate vicious propensities, plaintiff claimed the same testimony showed exactly the opposite — that Kemo had demonstrated vicious propensities. Plaintiff contended the fact that Kemo ran out and scared people showed that Kemo had a vicious nature. In addition, plaintiff claimed Kemo's vicious propensities were further established by Tracy Blackburn's testimony that Kemo was "territorial to where I wouldn't send somebody over to my house to feed my dog when I was gone, I would have kennel[ ]ed him."¹

As further evidence of Kemo's vicious nature, plaintiff referred to his own deposition testimony that "Kemo, the subject dog, was usually mean to visitors Kemo did not know." Plaintiff testified:

"Q Okay. How about of Kimo [sic], did you have any fears about Kimo [sic] before the accident?

"A Yes.

"Q Okay. And how come?

"A Because he's, like, usually mean to, like, visitors he doesn't know.

"Q He barks at them or what?

"A Yeah, barks."

Plaintiff contended that Collins' prior knowledge of Kemo's aggressive propensities could reasonably be inferred from Collins' request that the Blackburns "pin the dogs up" before an insurance inspection. Plaintiff stated below, "Here, it is clear that Mr. Collins had prior knowledge of the dog's dangerous nature. Why else would he need to warn the Blackburns first so they can `pin the dogs up' before the insurance inspector came?"

Citing Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 41 Cal.Rptr.2d 192 (Donchin), plaintiff also contended that Collins' actual knowledge of Kemo's dangerous nature could be inferred from Collins' allegedly false exculpatory denial that he knew there were dogs on the property. To show that Collins' denial was false, plaintiff relied upon Tracy Blackburn's testimony that Collins "should have" seen the dogs pushing and barking at the door whenever Collins visited the property.² Under Donchin, plaintiff contended Collins' false denial that he knew the dogs were present constituted evidence of his prior guilty knowledge of Kemo's vicious propensities.

Plaintiff's Request for Continuance

In his opposition to the summary judgment motion, plaintiff requested a continuance of the summary judgment hearing. Plaintiff contended that his animal behavior expert, Richard H. Polsky, Ph.D., needed more time to review discovery materials and prepare his declaration. (Code Civ. Proc., § 437c, subd. (h).)

Collins' Reply in Support of Summary Judgment

In reply, Collins sought to distinguish Donchin, supra, 34 Cal.App.4th 1832, 41 Cal.Rptr.2d 192, on the ground "that when Mr. Collins stated he had no knowledge of the dogs at the Blackburns['], he was specifically referring to the subject dog." Collins disputed that he had made a false exculpatory denial from which his guilty knowledge of Kemo's vicious propensities could be inferred. Collins emphasized that while the lease permitted the Blackburns to have a springer spaniel on the property, he "still did not know that the Blackburn[s] had acquired the subject dog. The subject dog's owner, Fin Blackburn, states as much as in his deposition: [¶] `Q. When you got the [subject dog], did you tell Collins[ ] that you had gotten a dog? [¶] A. No. (Deposition of Fin Blackburn, Page 25, Lines 13-15).[¶] Furthermore, when asked if Mr. Collins knew if the Blackburns had dogs or not, Mr. Blackburn replied, `I believe he probably assumed we had the springer spaniel. He didn't know the dog died, so he would have to assume we still had it.' (Deposition of Fin Blackburn, Page 21, Lines 23-25; page 22, lines 1-2). Mr. Blackburn also opined, `I don't believe Gerry [Collins] has ever seen the dogs.' (Deposition of Fin Blackburn, Page 19, Line 17).[¶] Defendant's motion for summary judgment emphasizes the fact that Mr. Collins did not know of the existence of the subject dog. This is not to say that Mr. Collins was not aware of the existence of dogs on the property. Mr. Collins believed that the springer spaniel dog was likely the dog on the property. He stated as much in his deposition testimony: [¶] `Q. At any time before Fin told you that there was a dog bite accident at 1502 Stevely, were you aware that there was a dog or dogs at 1502 Stevely that's not a springer spaniel dog? [¶] A. No. [¶] ... [¶] Q. Did you ever hear a dog barking from inside 1502 Stevely? [¶] A. No,...