Hull v. Phelps CA2/6

Filed 3/17/14 Hull v. Phelps CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

JOHN M. HULL, 2d Civil No. B243383 (Super. Ct. No. 56-2011- Plaintiff and Appellant, 00389287-CU-PO-VTA) (Ventura County) v.

MICHAEL PHELPS,

Defendant and Respondent.

Plaintiff sued a property owner for personal injuries that occurred when a dog owned by the property owner's tenants bit him. A jury returned a verdict for defendant property owner. Plaintiff appeals on the grounds of jury misconduct and the trial court's refusal to instruct on nondelegable duty. We affirm. FACTS Michael Phelps owns property in Ventura on which there are two houses. Phelps rented the front unit to to Charles Warnock. Warnock lived there with his wife and daughters. In September 2008 Phelps rented the back unit to Kevin Lennon and Cecilia Jones. The rental application asked about pets. Lennon and Jones listed "Dog/American Staffordshire." Phelps did not know that an American Staffordshire is a pit bull. The lease allowed for one dog.

After Lennon and Jones moved in, the dog they owned at the time of the application died. They acquired a new pit bull puppy they named Cholo. Cholo grew to weigh 100 pounds. At some point, Cholo bit Warnock. The bite was not serious, and Warnock did not report it to Phelps, hoping it would not happen again. In October 2010 Warnock's wife left a message on Phelps's answering machine informing him that a pit bull bit Warnock "again." Warnock's wife also mentioned that Lennon had constructed a white gate across the driveway, and that they had to go through the gate to get to the garage. Phelps drove by his property and saw the gate across the driveway for the first time. He did not approve the gate or that a pit bull lived there. He wrote a letter to Lennon and Jones stating that he had been advised that Lennon's dog had bitten someone. The letter stated that "any animal not on the rental agreement" must be removed from the premises and the gate must also be removed. Phelps did not believe the dog that bit Warnock was on the rental agreement. After Phelps wrote the letter, he talked to Lennon and Jones on the telephone. They told Phelps that they would take care of the dog problem and that they had "somewhere for the dog to go." Phelps assumed that they were giving the dog away. About two weeks later, Phelps drove by the property and saw that the gates across the driveway had been removed. He assumed that the dog had been given away. In fact, the dog was still present. On November 16, 2010, John Hull entered the property to deliver keys and a repair estimate to Lennon and Jones. Without warning Cholo attacked Hull, injuring his arms and hands. Juror Affidavit The jury found Phelps not negligent by a margin of nine to three. Hull moved for a new trial based on juror misconduct. In support of his motion, he submitted a declaration by Jury Foreman, Robert Gold, as follows: