Orozco vs. Amador Hernandez

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, 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.)

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, 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, 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.)

In this motion, Moving Defendants contend that the three causes of action for negligence, strict liability pursuant to Civ. Code § 3342, and punitive damages fail because Moving Defendants had no actual knowledge of Defendant Alexis Christina Amador Hernandez’s dog, let alone the dog’s dangerous propensity. With regards to the second claim for strict liability, Defendants contend that this claim fails

because only dog owners are subject to strict liability under Civ. Code § 3342.

Failure to Comply with Cal. R. Ct., rule 3.1350, subd. (b)

As a preliminary matter, Moving Defendants’ notice of motion did not specify the separate issues for adjudication. Cal. R. Ct., rule 3.1350, subd. (b) provides: “If made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (Emphasis added). While Moving Defendants complied with the requirement in their separate statement, they did not set forth the issues separately in their notice of motion.

However, Plaintiff did not object. Therefore, the court will consider both the motion for summary judgment and the alternative motion for summary adjudication.

Negligence

In an action for negligence, Plaintiff must demonstrate that the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the breach proximately caused the plaintiff’s injuries. (John B. v. Superior Ct. (2006) 38 Cal.4th 1177, 1188.) The existence of duty is a question of law for the court. (Isaacs v. Huntington Mem. Hosp. (1985) 38 Cal.3d 112, 124.)

“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. In other words, where a third person is bitten or attacked by a tenant's dog, the landlord's duty of reasonable care to the injured third person depends on whether the dog's vicious behavior was reasonably foreseeable. Without 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.” (Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 1838).

As the court explained in Martinez v. Bank of America National Trust & Savings Association (2000) 82 Cal.App.4th 883, 891: “First, we ask whether the landlord had actual knowledge that the dog was

vicious. This element can be shown either by circumstantial evidence that the landlord must have known the dog was dangerous or by direct evidence that the landlord actually knew the dog was dangerous.... Second, we ask whether the landlord had the ability to prevent the foreseeable harm. That ability derives from the landlord's control over his property and his ability to prevent dangerous conditions on that property.”

With regards to circumstantial evidence, “[o]nly where the circumstances are such that the defendant ‘must have known’ and not ‘should have known’ will an inference of actual knowledge be permitted.” (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 163).

Moving Defendants contend that they had no actual knowledge of the dog “Shiloh” that belonged to Co-Defendant Amador Hernandez, or its dangerous propensity. Moving Defendants present the following in their Separate Statement of Undisputed Material Fact (SSUMF):

Plaintiff Lisa Orozco seeks monetary recovery from an alleged dog bite incident that took place on October 1, 2023, at 2714 West Keller #1, Santa Ana, California (subject property). (SSUMF 1, 9). Amador Hernandez was the owner of the subject dog, Shiloh. (SSUMF 12).

On October 1, 2023, Defendants David Sheng-Lin Yuan and Grace Yuan owned the subject property. (SSUMF 10). On October 1, 2023, OCPM managed the subject property. (SSUMF 11).

Upon taking over management in 2014, OCPM required the preexisting tenants at the subject property to complete an updated rental application to obtain current tenant information. (SSUMF 1, 2). OCPM entered into a renewed Lease Agreement dated October 29, 2014, with tenants Armando Moreno Perez and Betsabe Moreno (“the Lease Agreement”), which also identified Christopher Moreno, Eva Danielle Moreno, and Alexis Christina as additional residents. (SSUMF 3). Paragraph 9 of the Lease Agreement prohibits tenants from keeping any animal on the premises without prior written consent of the owner. (SSUMF 5).

At the time the updated rental application was completed, the Tenants reported having no pets. (SSUMF 6). The Tenants did not obtain prior written consent to keep the subject dog at the subject property. (SSUMF 7). Defendants David Sheng-Lin Yuan, Grace Yuan, and Orange County Property Management, Inc. did not find out that the subject dog was living at the subject property, without their permission and in direct violation of the lease agreement, until after the subject incident occurred. (SSUMF 8).

Defendants had no prior, actual knowledge that the subject dog was dangerous or had any vicious propensities. (SSUMF

13). Defendants had no knowledge of any previous occurrences involving the subject dog injuring another person. (SSUMF 19). Defendants had no knowledge of the alleged prior incident involving the subject dog because no one had ever told them about it. (SSUMF 20).

Moving Defendants have established that Co-Defendant Amador Hernandez did not disclose in the application that she had any pets, and never informed Moving Defendants about the dog. Moving Defendants established that they had no knowledge of the dog, let alone the dog’s dangerous propensities, until after the dog bite incident on October 1, 2023.

Moving Defendants have met their burden of demonstrating no actual knowledge of the dog or the dog’s dangerous propensities. Therefore, the burden shifts to Plaintiff to create a triable issue of material fact.

In Plaintiff’s Opposition, Plaintiff contends that her evidence establishes that Moving Defendants did, in fact, have actual knowledge of the dog Shiloh in Co-Defendant Amador Hernandez’s unit, as well as the dog’s dangerous propensities.

Plaintiff presents the following in her Additional Material Facts (AMF), and the declaration of Ms. Randhawa and exhibits attached therewith: OCPM did not conduct any interior inspection of Unit 1 of the subject property from September 2019 through October 1, 2023 — a span of over four years preceding the attack on Plaintiff. (AMF 25).

Betsabe Ortiz Moreno is the named lessee on the operative OCPM Lease Agreement for Unit 1 of the subject property and has resided at 2714 W. Keller Avenue, Unit 1, since at least 2011. (AMF 29). Ms. Moreno testified at her April 17, 2026, deposition that she had spoken with OCPM’s Vice President and Person Most Qualified, Lance Reichert, by telephone “several times over the phone” over the years in connection with the subject property, and met him in person at a property inspection in 2025. (AMF 30).

Ms. Moreno testified that throughout the years OCPM has managed the property, OCPM employees attending the unit’s annual inspections were personally aware that the tenants kept other pets at the unit- specifically a Chihuahua and a cat — in violation of Paragraph 9 of the Lease Agreement. One OCPM employee “even played with the little Chihuahua” during an inspection. OCPM took no enforcement action. (AMF 31).

Pet water bowls were openly kept in the kitchen of Unit 1 during OCPM inspections. (AMF 32). When Ms. Moreno asked Reichert after the October 1, 2023, attack on Plaintiff why she alone had to remove her pets when “every single neighbor has a dog and cats. All of them,” Reichert “stayed quiet ... didn’t say anything.” (AMF 33).

Plaintiff also presents evidence that Mr. Yuan himself conducted permitter inspections of 2714 Keller prior to the incident. (AMF 45, 46).

The subject dog Shiloh has been at 2714 W. Keller since at least December 2019, as documented by Santa Ana Police Department records reflecting a December 18, 2019, welfare check at the subject property for a Pitbull observed on the patio without food, water, or shelter, and as confirmed by the lessee’s sworn deposition testimony that “in 2019 at some point, Shiloh was on the property.” (AMF 34).

On April 20, 2023 — approximately five months before the attack on Plaintiff — the Santa Ana Police Department received an anonymous report describing a Pitbull at 2714 W. Keller as having been “abandoned on side of resd” and “heard barking and will jump up and lunge at the windows.” (AMF 35).

In May 2023 — approximately five months before the attack on Plaintiff — witness Nicole King Duran called the property management telephone number posted at 2714 W. Keller, which is OCPM’s telephone number, and left a voicemail complaining about the dog. (AMF 38).

On July 22, 2023 — approximately ten weeks before the attack on Plaintiff — the subject dog Shiloh broke through a window of Unit 1, chased down a neighbor (Crystal Sifuentes), and bit her. The attack was witnessed by Nicole King Duran, who provided a sworn statement to the Santa Ana Police Department documenting the incident. Ms. Moreno, another lessee at the unit, also provided sworn deposition testimony that Shiloh “broke a window” at the unit. (AMF 36). Ms. Duran’s sworn statement provided, in part: “I am concerned for my safety and the believe this animal could accidentally kill a child if it got out.

The incident that I observed was in July and it involved my neighbor. She was attacked by the dog next door when it broke through its window and proceeded to chase and bite her. I came at the tail end of it. And could see the dog rushing her then being taken back in along with all the glass and my neighbor visibly shaken. The dog has been known to hang out the front window in its effort to escape and attack. It’s scary.” (Decl. of Randhawa, Ex. 6).

On July 23–24, 2023, witness Nicole King Duran also contacted Santa Ana City Councilmember Phil Bacerra regarding the dog at 2714 W. Keller. (AMF 38).

On August 23, 2023 — approximately five weeks before the attack on Plaintiff — Animal Control responded to a documented BITE REPORT at 2714 W. Keller. The responding officer left a notice tag at the property requesting a callback from the dog owners and requiring the dog to be licensed by September 6, 2023. (AMF 37).

On October 5, 2023, OCPM served a Three-Day Notice to Perform Conditions and/or Covenants or Quit on the tenants, which provides: “Our office was notified that you are housing a dog in your unit; animals are not permitted on your lease. It was also reported that your dog attacked another residents recently.” (AMF 41).

It is clear that Plaintiff created a triable issue as to whether Defendants knew that there was a dog on the premises. Plaintiff provided evidence that the lessees at the subject property openly kept water bowls in the kitchen during the routine/annual inspections by OCPM, and that an employee played with the chihuahua. Plaintiff provided evidence that a neighbor and witness, Ms. Duran, called and left a voicemail to OCPM in May of 2023 (months before the October 2023 attack) complaining about Shiloh. Plaintiff provided evidence that management was aware of other pets on the unit and did nothing to have the pets removed.

But whether Defendants knew of Shiloh’s “dangerous propensity”, specifically, presents a much closer issue. While Plaintiff relies on the voicemail that Ms. Duran left to OCPM in May of 2023, Ms. Duran testified that this voicemail was only in regards to Shiloh’s barking. (Decl. of Randhawa, Ex. 2).

Next, Plaintiff relies on the language of the Three-Day Notice to Perform Conditions and/or Covenants or Quit, which provides, in part: “Our office was notified that you are housing a dog in your unit; animals are not permitted on your lease. It was also reported that your dog attacked another residents recently.” (Emphasis added). Plaintiff asks this court to find that use of the term “another” in this context could refer to another attack. But a fair and reasonable interpretation of this notice would be that the phrase “attacked another resident” is referring to the subject incident, where the dog bit another resident (i.e., not the tenant, but another resident).

Plaintiff also provided evidence establishing that Shiloh would jump and lunge at windows, and that Shiloh broke through the window on

one occasion and bit another neighbor, Crystal, in July of 2023. This dog bite was reported to the Santa Ana Police Department and Animal Control. Animal Control left a notice tag at the property. Ms. Moreno also confirmed that the dog broke through the screen. Plaintiff also established that Mr. Yuan lived within 30 minutes of the property and conducted inspections of 2714 W. Keller perimeter, sprinklers, and water meter on multiple occasions before the incident.

Plaintiff relies on the court’s analysis in Donchin, supra, where the court found that the circumstantial evidence was sufficient to create a triable issue as to whether the landlord had actual knowledge. First, the court in Donchin found that the landlord’s “false exculpatory statements” denying the dog’s existence in the first instance may be used to infer guilty consciousness as to his knowledge of the dog’s viciousness: “In our view, the key evidence bearing on the credibility of Swift's denial of knowledge about the Rottweilers' dangerous nature is his earlier ‘false exculpatory statement’ denying he even knew the dogs existed and denying he had given permission for them to be housed on his property.” (Donchin, supra, 34 Cal.App.4th at 1841).

However, in Donchin, Swift later admitted that his statement was false in his interrogatories. (Id. at 1842). Here, there is no admission from either OCPM or the Yuans that they did in fact know of the dog’s existence and that any earlier statement to the contrary was false. However, the facts certainly create a triable issue in this regard.

The court in Donchin also found that “there was ample evidence before the trial court at the summary judgment stage to create a triable issue as to whether Swift was aware of the Rottweilers' vicious propensities.” (Id. at 1846). This evidence included the following: the Landlord knew of the dog’s existence; According to one neighbor, the dogs frequently ran loose around the neighborhood, lunging towards both people and other dogs; a United Parcel Service (UPS) employee, declared he avoided entering the yard to deliver packages because of the Rottweilers threatening behavior toward him; and finally, the plaintiff’s expert opined that if the dog was vicious toward the neighbor and UPS employee, it would be vicious to others. (Id. at 1836).

Defendants rely on Yuzon, supra, where the court distinguished Donchin and found in favor of the landlord pursuant to the following facts:

We distinguish Donchin, supra, 34 Cal.App.4th 1832, 41 Cal.Rptr.2d 192, in which the tenant's dogs displayed vicious

propensities that would have been apparent to anyone, including the landlord, who regularly visited the property. In Donchin, a neighbor attested that “the dogs frequently ran loose around the neighborhood, lunging towards both people and other dogs.” (Id. at p. 1836, 41 Cal.Rptr.2d 192.) In addition, a UPS employee described the behavior of the dogs as so “threatening ... toward him” that he would “toss the packages over the fence into the yard because he feared the two rottweilers.” (Ibid.) The UPS employee stated that “he saw the rottweilers once a week, and every time he entered their area they would ‘growl and show their teeth, ram the wood fence, attempt to jump the fence and appeared extremely ferocious.’ ” (Id. at p. 1843, 41 Cal.Rptr.2d 192.)

In this case, on the other hand, there is no evidence that Kemo ever lunged at people or other dogs before this incident, or that he ever growled, bared his teeth, rammed a fence (or other barrier), or appeared extremely (or even slightly) ferocious. There is also no evidence that Kemo was kept in the front yard, where he could be seen exhibiting threatening behavior toward outsiders such as was observed by the UPS employee in Donchin, who was so afraid that he tossed the packages over the fence. On the contrary, in this case the record supports the inference that Kemo was kept inside the house, away from view of those walking by the home.

(Yuzon, supra, 116 Cal.App.4th at 164-165).

The court finds that the circumstantial evidence provided in this instance is more analogous to Donchin than Yuzon. OCPM’s person most qualified denies having any knowledge of the dog on the property, and Mr. Reichert declares that “[t]he Lease Agreement prohibits tenants from keeping any animal on the premises without prior written consent.” (Decl. of Reichert, ¶ 5). But Ms. Duran testified that she informed OCPM about Shiloh in May of 2023, and Ms. Moreno testified that OCPM employees knew of other animals, and even played with the chihuahua during inspections.

As to the Yuan Defendants, Plaintiff argues that OCPM’s knowledge is imputed to the Yuans as their agent, pursuant to Civ. Code § 2332, which provides: “As against a principal, both principal and agent are deemed to have notice of whatever either has notice of, and ought, in good faith and the exercise of ordinary care and diligence, to communicate to the other.” The Yuan Defendants do not contest that OCPM was acting as their agent.

Plaintiff also presented evidence of the dog’s prior incidents and dangerous propensities- specifically, that the dog had broken a window and attacked a neighbor. Plaintiff presented evidence of the broken window with broken glass on the unit, the broken screen on the unit, and the notice that Animal Control had posted to the unit. Finally, Plaintiff presented evidence that OCPM and Mr. Yuan would conduct inspections of the premises. Pursuant to Donchin, such circumstantial evidence may create a triable issue as to whether the landlords had actual knowledge.

Regarding the second inquiry of landlord liability (whether the landlord had the ability to prevent the foreseeable harm) Defendants do not make the argument that OCPM and the Yuan defendants lack the ability to prevent further attacks by the dog. In any event, Plaintiff has created a triable issue in this regard. (AMF 49, 50).

Accordingly, the court denies the motion for summary judgment, and the motion for summary adjudication, as to this cause of action.

Strict Liability

Civil Code § 3342(a) states, in part: “The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness.”

Defendants contend that this cause of action fails because the undisputed facts show that Defendants Grace Yuan, David Yuan and OCPM did not own or control the dog. In her Opposition, Plaintiff concedes this argument: “Plaintiff does not oppose summary adjudication of the strict liability cause of action under Civil Code section 3342 against the moving Defendants only, as that statute imposes liability solely on the dog’s owner. However, because triable issues remain as to negligence and punitive damages, summary judgment must still be denied.” (Opp., 3:21-24).

Because Defendants have met their burden of establishing that they did not own or control the dog, and because Plaintiff failed to create a triable issue of material fact, the court GRANTS the motion for summary adjudication as to this claim.

Punitive Damages

Finally, Moving Defendants move for summary adjudication as to punitive damages.

Civ. Code § 3294, subd. (a), provides: “(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”

According to Civ. Code § 3294 (c)(1), (2) and (3):

(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

Despicable conduct is conduct that is “so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by most ordinary decent people.” (Pac. Gas & Elec. Co. v. Superior Court (2018) 24 Cal.App.5th 1150, 1159 (internal citations omitted)). “Conscious disregard” means that “the defendant must ‘have actual knowledge of the risk of harm it is creating and, in the face of that knowledge, fail to take steps it knows will reduce or eliminate the risk of harm.’” (Id. (internal citations omitted)).

As discussed previously, the court finds that Plaintiff has created a triable issue as to whether Defendants had actual knowledge of the dog’s dangerous propensities, yet failed to take steps that would eliminate the danger. “Conscious disregard” is defined as actual knowledge of the risk of harm and, in the face of that knowledge, failing to reduce or eliminate the risk of harm. Plaintiff’s additional material facts nos. 25-41 create a triable issue as to whether Defendants had actual knowledge of the risk of harm it created by allowing Shiloh to remain on the premises prior to the October 1, 2023, attack. Plaintiff has also created a triable issue as to whether Moving Defendants had the ability to eliminate this harm, but failed to do so until after the October 1, 2023, attack.

Accordingly, the court denies the motion as to this issue.

Moving Defendants shall give notice.

14 Builderwell TENTATIVE RULING: HLP LLC vs. Collier Motion to Be Relieved As Counsel of Record

Don Fisher and Kevin J. Castellanos move to be relieved as counsel of record for Defendant Michael Collier. The motion is GRANTED. The order relieving counsel will be effective upon the filing of a proof of service of the executed order upon all parties.

Moving counsel shall give notice of this ruling.

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