Sheila Andrews vs Steven M. Nailen, et al.

21CV-03285 Sheila Andrews vs Steven M. Nailen, et al.

Motion for Summary Judgment

Defendant Nailen’s motion for summary judgment is GRANTED.

“[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. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, as modified (July 11, 2001).)

Defendant’s undisputed material facts 13, 15, and 16, supported by admissible evidence, establish a prima facie case that Defendant had no actual knowledge of the dogs’ dangerous propensities and is entitled to judgment as a matter of law.

In opposition, Plaintiff offers testimony that Defendant gave permission for the dogs to be on the property, that Defendant was aware of the dogs, that a next-door neighbor complained directly to Defendant that the dogs had broken through the fence on multiple

occasions, and that Defendant had an opportunity to view the dogs’ behavior. (See, evidence cited in Plaintiff’s response to Defendant’s UMFs 13, 15, and 16.)

Yet Plaintiff’s evidence does not establish a triable issue of material fact as to Defendant’s actual knowledge of the dogs’ dangerous propensities. Knowledge the dogs existed and the ability to view their behavior is not evidence Defendant knew the dogs were dangerous. Even knowledge that the dogs may have broken through a neighboring fence does not demonstrate actual knowledge the dogs had the propensity to be dangerous.

Without actual knowledge of the dogs’ dangerous propensities, Defendant owed no duty to Plaintiff. As Defendant owed to duty to Plaintiff, he is entitled to judgment as a matter of law.

As the prevailing party, Defendant is ordered to submit a written order consistent with this ruling pursuant to California Rules of Court, rule 3.1312, for this Court’s signature.