Johnson v. McMahan

Opinion

EPSTEIN, Acting P. J .

The sole issue in this case is whether the California dog bite statute, Civil Code section 3342, applies when the bitee does not suffer a wound. It does. The trial court ruled otherwise, granting defendants’ motion for summary adjudication. Plaintiff was unsuccessful in his other causes of action, and suffered an adverse judgment from which he appeals. Beyond this statement, we eschew word play opportunities offered by the factual context of the case. (See

Phillips

v.

San Luis Obispo County Dept. etc. Regulation

(1986) 183 Cal.App.3d 372, 374 [228 Cal.Rptr. 101];

Edwards

v.

Superior Court

(1991) 230 Cal.App.3d 173 175, fn. 3 [281 Cal.Rptr. 30].)

[175]

Factual and Procedural Summary

Plaintiff Bradley Johnson volunteered to repair a swamp cooler on the roof of the residence occupied by Robert and Jacqueline McMahan, the defendants. Plaintiff was on a ladder when Timber, defendants’ five-month-old German Shepherd dog, jumped at him. Timber’s jaws closed on plaintiff’s trousers. Plaintiff presented evidence that his leg was between the parts of his pants impacted by the dog’s jaws. He admitted that the skin was not broken. As a result of the dog’s action, plaintiff fell from the ladder and was injured. He sued the defendants on several causes of action, including premises liability, general negligence, intentional infliction of emotional distress, and strict liability under Civil Code section 3342. Defendants moved for full summary judgment or, in the alternative, for summary adjudication as to each of plaintiff’s four causes of action. Plaintiff withdrew the intentional tort. The trial court granted summary adjudication on the dog bite statute, and denied it on the other causes of action. Plaintiff sought our intervention by writ. We issued an alternative writ in response to his petition, but dismissed it because the petition was late, a jurisdictional defect. The lawsuit went to trial on the remaining causes of action, leading to a defense verdict. Plaintiff has appealed from the ensuing judgment. He does not challenge the adverse verdicts on the causes of action decided by the jury, but he argues that his section 3342 theory should not have been dismissed.