Smith vs. Mendez

as Counsel– Civil (Form MC-053) removing from the order the deposition rescheduling in paragraph 8.

Counsel shall be relieved as counsel of record for Plaintiff effective upon the filing of a proof of service to the client and all parties showing timely service of the signed Form MC-053 and notice of this ruling.

The court finds that Counsel has complied with the requirements of Rule 3.1362 of the California Rules of Court, including serving the client with the motion papers by mail, after confirming within the last 30 days that the address is the client’s current address. Counsel also has declared a justifiable reason to be relieved as counsel — breakdown of the relationship with the client. (See Form MC-052 Attorney Decl. ¶ 2.)

Therefore, the court will grant the motion to be relieved as counsel.

Counsel does not state when Plaintiff’s deposition is set to occur. Furthermore, Counsel does not state if Defendants’ counsel agreed to rescheduling the deposition that was (presumably) noticed. The court will not order rescheduling without this information.

Moving Counsel shall give notice.

12 Smith vs. TENTATIVE RULING: Mendez Motion for Summary Judgment

For the reasons set forth below, Defendant Susan Mendez’s motion for summary judgment in favor of Defendant and against Plaintiff Thomas Smith is DENIED.

Defendant’s objections are overruled. The court notes Objection Nos. 1-6 concern evidence that Defendant also submitted in support of her motion for summary judgment.

Statement of Law

“Summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Civil Proc. Code, § 437c, subd. (c).)

A “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 . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.)

A defendant moving for summary judgment satisfies the initial burden by submitting undisputed evidence “showing that a cause of action has no merit [because] 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 the cause of action.” (Civil Proc. Code § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850-51.) However, “[t]he defendant must indeed present evidence.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 855, italics original.)

In addition, if a plaintiff has pleaded several theories, the defendant has the burden of demonstrating there are no material facts requiring trial on any of them. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.) If a defendant fails to meet this initial burden, the plaintiff need not oppose the motion and the motion must be denied. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.)

If the moving party meets its burden, the burden then shifts to the party opposing summary judgment to show, by reference to specific facts, the existence of a triable, material issue as to a cause of action or an affirmative defense. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 855; Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 575.)

The nonmoving party must present substantial evidence in order to avoid summary judgment. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) “In some instances..., ‘evidence may be so lacking in probative value that it fails to raise any triable issue.’” (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1083- 1084, quoting Advanced Micro Devices, Inc. v. Great American Surplus Lines Ins. Co. (1988) 199 Cal.App.3d 791, 795.) “‘If the plaintiff is unable to meet her burden of proof regarding an essential element of her case, all other facts are rendered immaterial.’” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780, quoting Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 482.) 482.)

In ruling on a motion for summary judgment, “the court must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably

drawn therefrom, and must view such evidence and such inferences in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843, citations omitted.) Courts “’construe the moving party’s affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.’” (Unilab Corp. v. Angeles-IPA (2016) 244 Cal.App.4th 622, 636, quoting Seo v. All–Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201– 1202.)

A court may not make credibility determinations or weigh the evidence on a motion for summary judgment or adjudication, and all evidentiary conflicts are to be resolved against the moving party. (McCabe v. American Honda Motor Corp. (2002) 100 Cal.App.4th 1111, 1119.) “The court . . . does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact.” (Johnson v. United Cerebral Palsy, etc. (2009) 173 Cal.App.4th 740, 754, citation omitted.) "[S]ummary judgment cannot be granted when the facts are susceptible [of] more than one reasonable inference . . .” (Rosas v. BASF Corp. (2015) 236 Cal.App.4th 1378, 1392.)

Relevant Background

A dog-bite incident (the “Incident”) occurred on August 4, 2022, at the property located at 12381 Beck Avenue, Garden Grove, California 92801 (the “Property”). (Def. Compendium of Evidence (“COE”), Exh. B, Susan Mendez (“S. Mendez”) Depo. Tr. at 14:20- 15:9 [ROA 44].) At the time of the Incident, Defendant owned the Property. (S. Mendez Depo. Tr. at 33:7-10.) Defendant did not reside at the Property during the relevant period. (S. Mendez Depo. Tr. at 25:16-26:7.) On the date of the Incident, the former fiancé of Defendant’s granddaughter, Darlene Mendez, lived at the Property with Darlene’s daughter. (S. Mendez Depo. Tr. at 26:12-21.) Darlene had passed away on August 10, 2021. (S. Mendez Depo. Tr. at 26:19- 27:27:8.)

Defendant’s daughter, Dolores Mendez, was homeless at the time of the Incident. (S. Mendez Depo. Tr. at 29:1-4.) Defendant told Dolores that Defendant did not want Dolores living at the Property, but gave Dolores permission to shower, wash clothes, cook, and eat at the Property. (S. Mendez Depo. Tr. at 29:11-30:6.) Defendant knew that Dolores would at times sleep at the Property. (S. Mendez Depo. Tr. at 29:10-11, 30:7-14, 30:25-31:7.)

Dolores had two dogs, Roxy and Trigger. (S. Mendez Depo. Tr. at 35:12-20.) When Dolores stayed at the Property, Roxy and Trigger would stay as well. (S. Mendez Depo. Tr. at 35:12-17.)

Defendant was not at the Property on the date of the Incident. (S. Mendez Depo. Tr. at 41:2-8.) Defendant did not know Dolores was at the Property on the date of the Incident. (S. Mendez Depo. Tr. at 67:17-19.)

On the day of the Incident, Plaintiff went up the driveway on the Property and approached the Property’s gate. (Pl. Compendium of Evidence (“COE”), Exh. 2, Smith Depo. Tr. at 20:15-21 [ROA 82].) Plaintiff heard two dogs barking and stopped where he was. (Smith Depo. Tr. at 20:20-22.) The gate was open and two dogs ran toward Plaintiff. (Smith Depo. Tr. at 20:22-23.) One of the dogs jumped on Plaintiff to bite at Plaintiff’s face. (Smith Depo. Tr. at 20:23-24.) Plaintiff put his hand up to guard his neck and the dog bit Plaintiff’s hand. (Smith Depo.

Tr. at 20:24-25, 21:5-6.) Plaintiff saw people outside. (Smith Depo. Tr. at 21:7.) With his hand still in the dog’s mouth, Plaintiff asked the people to grab their dogs. (Smith Depo. Tr. at 21:9-11.) Plaintiff eventually ripped his hand out of the dog’s mouth, turned, and ran towards the fence. (Smith Depo. Tr. at 21:12- 14.) Plaintiff jumped over the fence holding his hand. (Smith Depo. Tr. at 21:14.)

First Cause of Action for Premises Liability/Negligence

The first cause of action for premises liability/negligence alleges that on or about August 4, 2022, Plaintiff was lawfully on the property located at 12381 Beck Avenue, Garden Grove, California 92801 (the “Property”). (Compl. ¶¶ 5, 8.) Defendant owned, maintained, lived in, controlled, managed, supervised, and exercised control over the Property. (Id. at ¶ 5.) The Complaint alleges Defendant and DOES 26-50 were the owners of two pit bull dogs that were kept at the Property. (Id. at ¶ 6.) Defendant and DOES 1-50 had ownership, control, maintenance, management and supervision over the Pit Bulls at the time of the dog bite incident (the “Incident”).

The Complaint alleges Defendant had a duty to make sure that no dangerous dogs were kept at the Property or to properly restrain the dogs so that they would not be able to bite people who lawfully walked onto the Property. (Compl. ¶ 9.) Defendant allowed an unreasonably dangerous condition to exist at the Property, namely Defendant knew the two dangerous dogs had “vicious propensities and temperaments” and allowed them to roam on the Property without proper supervision or restraint. (Id. at ¶ 10.) Defendant failed

to warn about the dangerous condition, which was not reasonably apparent to a salesperson approaching the door for the first time. (Id. ¶¶ 10-11.)

On August 4, 2022, Plaintiff walked through the open front gate to knock on the front door to sell solar panels to Defendants. (Compl. ¶ 14.) Defendants negligently failed to maintain, manage, control, supervise, watch over and monitor the Property and the dogs. (Id. at ¶¶ 8, 14.) As a result, the dogs were allowed to attack and bite Plaintiff. (Id.)

“ ‘The elements of a cause of action for premises liability are the same as those for negligence.’ [Citation.] Accordingly, the plaintiff must prove, ‘ “a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.” ’ ” (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207.) Premises liability is grounded in possession and control of the premises, and “control is defined as the power to prevent, remedy or guard against the dangerous condition. [Citation]” (Colonial Van & Storage, Inc. v. Superior Court (2022) 76 Cal.App.5th 487, 497 [internal quotation marks omitted].)

Defendant contends Plaintiff’s negligence causes of action have no merit because Plaintiff cannot establish that Defendant owed Plaintiff a duty of care with respect to the dog which bit Plaintiff.

“ ‘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.) “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 has acted as a reasonable [person] in view of the probability of injury to others....' [Citations.]” (Laico v.

Chevron U.S.A., Inc. (2004) 123 Cal.App.4th 649, 659.) A landowner “ ‘ “has an affirmative duty to exercise ordinary care to keep the premises in a reasonably safe condition, and therefore must inspect them or take other proper means to ascertain their condition. And if, by the exercise of reasonable care, he would have discovered the dangerous condition, he is liable.” ’ [Citation.]” (Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1134.)

“ ‘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.’ ” (Fraser v. Farvid (2024) 99 Cal.App.5th 760, 763, quoting Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 1838.) The reason is that “ ‘[w]ithout knowledge of a dog’s propensities a landlord will not be able to foresee the animal poses a danger and thus will not have a duty to take measures to prevent the attack.’ ” (Ibid.) While the “ ‘actual knowledge rule’ can be satisfied ‘by circumstantial evidence the landlord must have known about the dog's dangerousness as well as direct evidence [that] he actually knew’ ” (ibid.), an inference based on circumstantial evidence “must reflect the landlord’s actual knowledge and not merely constructive knowledge or notice.” (Donchin, supra, 34 Cal.App.4th at p. 1839.)

“[A] duty of care arises when the landlord has actual knowledge of the presence of the dangerous animal and when he has the right to remove the animal by retaking possession of the premises” (Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 507.) “[W]here a landlord has relinquished control of property to a tenant, a ‘bright line’ rule has developed to moderate the landlord’s duty of care owed to a third party injured on the property as compared with the tenant who enjoys possession and control.

Because a landlord has relinquished possessory interest in the land, his or her duty of care to third parties injured on the land is attenuated as compared with the tenant who enjoys possession and control. Thus, before liability may be thrust on a landlord for a third party’s injury due to a dangerous condition on the land, the plaintiff must show that the landlord had actual knowledge of the dangerous condition in question, plus the right and ability to cure the condition.” (Salinas v. Martin (2008) 166 Cal.App.4th 404, 412 [internal quotation marks and citation omitted].)

It is undisputed that a dog-bite incident (the “Incident”) occurred on August 4, 2022, at the property located at 12381 Beck Avenue, Garden Grove, California 92801 (the “Property”). (Def. Compendium of Evidence (“COE”), Exh. B, Susan Mendez (“S. Mendez”) Depo. Tr. at 14:20-15:9.) At the time of the Incident, Defendant owned the Property. (S. Mendez Depo. Tr. at 33:7-10.) Defendant provided evidence that Defendant did not reside at the Property during the relevant period. (S. Mendez Depo. Tr. at 25:16- 26:7.) On the date of the Incident, the former fiancé, Junior, of Defendant’s granddaughter, Darlene Mendez, lived at the Property with Darlene’s daughter. (S. Mendez Depo. Tr. at 26:12-21.) Darlene had passed away on August 10, 2021. (S. Mendez Depo. Tr. at 26:19- 27:27:8.)

Defendant’s daughter, Dolores Mendez, was homeless at the time of the Incident. (S. Mendez Depo. Tr. at 29:1-4.) Defendant told Dolores that Defendant did not want Dolores living at the Property, but gave Dolores permission to shower, wash clothes, cook, and eat at the Property. (S. Mendez Depo. Tr. at 29:11-30:6.) Defendant knew that Dolores would at times sleep at the Property. (S. Mendez Depo. Tr. at 29:10-11, 30:7-14, 30:25-31:7.)

Like the homeowner in Salinas v. Martin (2008) 166 Cal.App.4th 404, Defendant is not an absentee landlord with limited access to the Property. Defendant did not submit evidence demonstrating she surrendered her possessory interest in the Property in any way. Rather, Defendant’s evidence indicates that she continued to control the Property at least intermittently. Defendant would try to make it to the Property to “pick up mail or just kind of walk through the house.” (S. Mendez Depo. Tr. at 28:5-11.)

Defendant also told Dolores that Defendant did not want Dolores living at the Property, but gave Dolores permission to shower, wash clothes, cook, and eat at the Property. (S. Mendez Depo. Tr. at 29:11-30:6.) Defendant knew that Dolores would at times sleep at the Property. (S. Mendez Depo. Tr. at 29:10-11, 30:7-14, 30:25-31:7, 71:19-21.) Dolores had two dogs. (S. Mendez Depo. Tr. at 35:12-20.) Defendant knew that the dogs would stay with Dolores when Dolores stayed at the Property. (S. Mendez Depo.

Tr. at 35:12-17, 71:19-24.) There is no evidence suggesting Junior or Dolores were vested with exclusive possession of the Property or that Dolores was entitled to keep her dogs there without express permission granted by Defendant.

Defendant did not meet her initial burden to show Defendant did not owe a duty of care to Plaintiff. Defendant’s own evidence demonstrates a triable issue of fact as to the scope of Defendant’s duty. Under the facts, there is a question regarding whether Defendant possessed the means to control the subject dog or the Property, and could have taken steps to prevent the harm. If so, then it would be improper to apply the standard of duty for landlords who have relinquished control over their property to a tenant. Evidence of Defendant’s actual knowledge about the dangerous nature of the dogs and Defendant’s ability to prevent the attack would be insufficient. Rather, the totality of factors set forth in Rowland v. Christian (1968) 69 Cal.2d 108 would determine the scope of Defendant’s duty. (Salinas, supra, 166 Cal.App.4th at p. 415.)

Defendant briefly argues that she did not breach her duty of care to Plaintiff because Defendant had no prior knowledge that the subject dog had any dangerous propensities. Defendant provided evidence

that Defendant did not know the subject dog well enough to describe the dog’s temperament or how Dolores’s dogs would act at a dog park. (S. Mendez Depo. Tr. at 75:3-5, 79:23-25.) Defendant did not remember hearing if Dolores had ever told Defendant that the subject dog had shown aggression toward males. (S. Mendez Depo. Tr. at 76:25-77:18.) Defendant recalled that Dolores had skinned her knees while walking the subject dog but could not remember the particulars of what had happened. (S. Mendez Depo.

Tr. at 77:5-15.) Defendant did not meet her initial burden to show Defendant did not breach a duty of care. The proffered evidence is not sufficient to establish Defendant’s lack of prior knowledge that the subject dog had dangerous propensities. Rather, the evidence indicates that Defendant could not describe the subject dog’s temperament and could not recall whether she had been told about any previous instances of aggression involving the subject dog.

In her Reply, Defendant argues that Plaintiff cannot establish causation. Because the issue of causation was not raised in Defendant’s opening brief, it is forfeited. “Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the [responding party] of an opportunity to counter the argument.” (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.)

Second Cause of Action for Negligence Per Se and Third Cause of Action for Strict Liability

The second cause of action for negligence per se incorporates the allegations above and further alleges Defendant’s actions violated Civil Code section 3342.5, subdivision (a) which provides: “The owner of any dog that has bitten a human being shall have the duty to take such reasonable steps as are necessary to remove any danger presented to other persons from bites by the animal.” (Compl. ¶ 23.)

The third cause of action for strict liability alleges Defendant’s actions violated Civil Code section 3342.5, subdivision (a) which provides: “The owner of any dog that has bitten a human being shall have the duty to take such reasonable steps as are necessary to remove any danger presented to other persons from bites by the animal.” (Compl. ¶ 25.)

Defendant argues that Plaintiff’s claims for violation of Civil Code section 3342.5 must fail because “it is undisputed that Defendants did not own the subject dog” (Motion at 9:1-2 [ROA 43]) and that “there is no doubt the dog belonged to Defendant’s daughter” (id. at 9:2-3.) Defendant, however, did not include this fact in her Separate

Statement (see generally ROA 36) or cite to any evidence to support this proposition. “Facts stated elsewhere [other than in the separate statement] need not be considered by the court [citation] ....” (Fleet v. CBS, Inc. (1996) 50 Cal.App.4th 1911, 1916, fn. 3.) Moreover, arguments raised in briefs constitute the unsworn statements or testimony of counsel, which do not constitute evidence within the meaning of the Evidence Code. (In re Zeth S. (2003) 31 Cal.4th 396, 413, fn. 11; see In re Marriage of Pasco (2019) 42 Cal.App.5th 585, 592 [arguments of counsel are not evidence]; see DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 683 [in context of motion for summary judgment, counsel’s unsworn statements not evidence].)

Defendant did not meet her initial burden to show Defendant was not the owner of the subject dog.

The motion for summary judgment is denied.

Plaintiff to give notice.

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