Donchin v. Guerrero - Animal behavior dog bite expert witness

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Page 2 knew of the dogs' existence. This is evidenced both from the initial rental agreement and from monthly visits Swift made to the property when collecting rent. According to declarations from Swift and Guerrero, Swift never knew of the dogs' vicious propensities. Swift even stated he would play with the dogs during his visits to the property. Moreover, Guerrero stated in his deposition the dogs never bit or attacked his roommate's three-year-old child. Finally, Guerrero claimed he never observed the dogs ever behave viciously when he took them on their daily walks. Ms. Donchin, however, claims Swift was indeed aware of the dogs' viciousness. Ms. Donchin substantiated her claim with declarations from several individuals, including a neighbor, a parcel carrier and a canine expert. Robert Kaylor, a neighbor, declared he knew of the dogs' viciousness. According to Kaylor, the dogs frequently ran loose around the neighborhood, lunging towards both people and other dogs. Kaylor stated he was so afraid of the dogs he kept a baseball bat outside his back door as a safety measure. Scott Schreiner, a United Parcel Service (UPS) employee, declared he avoided entering Guerrero's yard to deliver packages because of the rottweilers' threatening behavior toward him. Instead he would toss the packages over the fence into the yard because he feared the two rottweilers. In her declaration, Renae McCarthy, a paralegal working for Donchin's attorney, testified Swift called her office regarding his receipt of the summons and complaint in the instant case. He told McCarthy he did not know there were dogs of any kind living on his property. He further stated he had never authorized his tenant to have dogs on the premises. (Subsequently, however, in response to Donchin's special interrogatories, Swift admitted he had always known about the existence of the rottweilers and the fact they were living on his property.) Finally, Richard H. Polsky, Ph.D., an animal behavior expert, declared that if the dogs were vicious towards Kaylor and Schreiner, then they were probably vicious towards others, including Swift during his regular visits to the premises. 1 1 Donchin offers a further challenge to the credibility of Swift's declaration denying knowledge of the rottweillers' vicious propensities. She contends Swift is a convicted felon, having pled guilty and served time for felony forgery. Respondent, while not denying the conviction, claims this court nonetheless should disregard it because Donchin failed to offer any admissible evidence concerning Swift's conviction at the summary judgment motion. We find the record unclear as to what was before the trial court to prove the prior felony conviction. We agree a prior conviction for forgery would be admissible and quite relevant on the credibility of Swift's denial of knowledge. However, we find other evidence in the record sufficient to create a triable issue about the crediblity of Swift's denial without considering the effect of this prior felony conviction. Thus, we need not and do not consider whether appellant succeeded in proving the existence of this conviction in the trial court and thus preserved the issue for appeal. On May 9, 1991, Ms. Donchin filed her complaint for personal injuries against Guerrero and Swift. Donchin claims to have suffered injuries to her body, including a fractured right hip which necessitated open reduction surgery. On November 19, 1993, the trial court heard codefendant Swift's motion for summary judgment and filed the following order ". . . the court finds there is no triable issue of material fact in this action and that the moving parties are entitled to summary judgment as a matter of law." The notice of appeal was filed December 9, 1993. DISCUSSION I. The Proper Standard of Review of a Summary Judgment Is De Novo Review, Not Abuse of Discretion. Both appellant and respondent state the trial court's summary judgment can be reversed only if the Court of Appeal finds the court abused its discretion in granting the motion. However, in 1973 the Legislature amended subdivision (c) of Code of Civil Procedure section 437c, making it mandatory, not discretionary, for a trial court to enter a summary judgment when there are no triable issues. The following wording was added: "The motion for 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
Page 3 judgment as a matter of law." (Italics added.) In other words, if there is no triable issue of material fact the court must grant summary judgment pursuant to motion. If, on the other hand, there is a triable issue it is error for the trial court to grant summary judgment. In Saldana v. Globe-Weis Systems Co. (1991) 233 Cal. App. 3d 1505 [285 Cal. Rptr. 385] the court cited a long line of cases holding ". . . there is no discretion to be exercised by a trial court in considering a motion for summary judgment." Moreover, "[i]n reviewing an order on a summary judgment, the reviewing court employs the same process as the trial court in determining whether, as a matter of law, summary judgment was appropriate." ( Id. at p. 1515.) Accordingly, we follow previous cases holding the proper standard on appeal of a summary judgment is independent review. (See Stratton v. First Nat. Life Ins. Co. (1989) 210 Cal. App. 3d 1071, 1083 [258 Cal. Rptr. 721] [court held that an appellate court examines the facts presented to the trial court on a summary judgment motion and independently examines their effect as a matter of law]; see also Szadolci v. Hollywood Park Operating Co. (1993) 14 Cal. App. 4th 16, 19 [17 Cal. Rptr. 2d 356] [the Court of Appeal stated that when reviewing a trial court's summary judgment it is not bound by the court's finding, and stated "[w]e review the ruling, not its rationale."], citing Barnett v. Delta Lines, Inc. (1982) 137 Cal. App. 3d 674, 682 [187 Cal. Rptr. 219].) Past cases have outlined a three-stage approach to appellate review of a summary judgment. In Planned Parenthood v. City of Santa Maria (1993) 16 Cal. App. 4th 685 [20 Cal. Rptr. 2d 391], the court explained: " '[P] [f]irst we identify the issues framed by the pleadings. . . . [P] Secondly, we determine whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in movant's favor . . . [P] [T]he third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.' " ( Id. at p. 690, citing AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal. App. 3d 1061, 1064-1065 [225 Cal. Rptr. 203]; see also Torres v. Reardon (1992) 3 Cal. App. 4th 831, 836 [5 Cal. Rptr. 2d 52], citing Zuckerman v. Pacific Savings Bank (1986) 187 Cal. App. 3d 1394, 1400-1401 [232 Cal. Rptr. 458].) With the above mentioned principles in mind, we review plaintiff's claim. II. A Landlord's Liability for Injuries by Tenant's Dog FollowingEscape From Landlord's Premises Is Determined by Whether the Landlord Knew of the Dog's Vicious Propensity and Had the Ability to Prevent the Dog's Attack. In granting summary judgment, the trial court ruled plaintiff did not raise a triable issue whether Swift possessed knowledge the rottweillers had vicious propensities. (1) 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. In this court's view, this inquiry into the landlord's duty involves a two-step approach. The first step is to determine the landlord's knowledge of the dog's vicious nature. In Uccello v. Laudenslayer (1975) 44 Cal. App. 3d 504 [118 Cal. Rptr. 741, 81 A.L.R.3d 628], the court established a landlord can only be liable if he or she had actual knowledge of the dog's vicious propensity. This actual knowledge rule has been followed in Lundy v. California Realty (1985) 170 Cal. App. 3d 813 [216 Cal. Rptr. 575] and in Portillo v. Aiassa (1994) 27 Cal. App. 4th 1128 [32 Cal. Rptr. 2d 755]. However, it can be satisfied by circumstantial evidence the landlord must have known about the dog's dangerousness as well as direct evidence he actually knew. ( Uccello v. Laudenslayer, supra, 44 Cal. App. 3d 504, 514, fn. 4.) The second step involves a landlord's ability to prevent the foreseeable harm. In Uccello the court relied on Dennis v. City of Orange (1930) 110 Cal. App. 16 [293 P. 865] to establish the principle the landlord's duty derives from his control and ability to prevent dangerous conditions on his property. In Dennis, a landlord was held liable for a nuisance created by a tenant's gravel excavation. The court stated, "[t]he ground of the defendant's liability for the nuisance is that it existed at a time when he had the opportunity or power to abate or remove it and failed to do so." ( Id. at p. 24.) Thus, the injuries the dogs cause must be ones which would not have occurred if the landlord had taken actions which
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Donchin v. Guerrero - Animal behavior dog bite expert witness

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