Filed 4/25/16 Shebairo v. Perez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

RAYMOND SHEBAIRO,
                                                                                           F071193
         Plaintiff and Appellant,
                                                                             (Super. Ct. No. VCU252231)
                   v.

VICTOR PEREZ et al.,                                                                     OPINION
         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Tulare County. James T.
LaPorte, Judge. (Judge of the Kings Sup. Ct. assigned by the Chief Justice pursuant to
art. VI, § 6, of the Cal. Const.)
         Law Offices of Douglas L. Hurt and Douglas L. Hurt for Plaintiff and Appellant.
         McNamara, Ney, Beatty, Slattery, Borges & Ambacher, Thomas G. Beatty and
Lisa R. Roberts for Defendants and Respondents.
                                                        -ooOoo-
       This is an appeal from a judgment of the Superior Court of Tulare County entered
on an order granting a motion for summary judgment in favor of defendants and
respondents Victor Perez and Norma Castellanos-Perez.1 Plaintiff and appellant
Raymond Shebairo contends the court should have denied this motion. For the reasons
set forth below, we affirm the judgment.
                     FACTUAL AND PROCEDURAL HISTORY2
       Respondents owned a townhouse located at 4935 West Westgate Court in Visalia.
They rented the property to their daughter Victoria Perez. Respondents were aware
Victoria owned and kept two dogs: a pit bull named Monster and a mutt named Cookie.
       On November 27, 2012, appellant was walking his dog on South Crenshaw Street
when he was mauled by Monster and/or Cookie. Officer Leah Klascius arrived on the
scene and spotted a broken wire mesh board beneath 4935 West Westgate Court’s front
gate. Klascius observed one of Victoria’s dogs entering the opening and the other poking
its head through the opening from behind the gate. Both displayed blood stains on their
faces. Thereafter, appellant filed a lawsuit against respondents, inter alios, alleging they
were liable as the landlords.
       Respondents and Victoria were deposed. Each testified a dog belonging to the
neighbors, the Camarenases, had previously burrowed into 4935 West Westgate Court’s
backyard and fought Monster, resulting in injuries to both dogs. Neither respondents,
Victoria, nor the Camarenases witnessed the actual skirmish. In particular, appellant’s
attorney Douglas Hurt elicited the following testimony from Victoria:

1       To avoid confusion, we identify individuals who share the same surname by their
first names. No disrespect is intended.
2      The facts are based on the parties’ separate statements of undisputed facts. (See
Code Civ. Proc., § 437c, subd. (b)(1); see also Mills v. Forestex Co. (2003) 108
Cal.App.4th 625, 641 [“ ‘ “[A]ll material facts must be set forth in the separate statement.
‘This is the Golden Rule of Summary Adjudication: if it is not set forth in the separate
statement, it does not exist.’ ” ’ ”].)


                                             2.
      “[HURT:] Tell me about that incident.

      “[VICTORIA:] The animal had burrowed his way into my yard, and so my
      dog had attacked it, I guess. I don’t know what happened to be honest with
      you. I just came outside and found my dog and found the [Camarenases’]
      dog. [¶] . . . [¶]

      “[HURT:] Could you tell who bit whom?

      “[VICTORIA:] No. I know that my animal had his ear shredded, and the
      other dog I couldn’t really see the injuries . . . , but I know that it was
      injured. [¶] . . . [¶]

      “[HURT:] Okay. When you went out in the backyard, did you see the
      dogs actually fighting still?

      “[VICTORIA:] No. [¶] . . . [¶]

      “[HURT:] . . . We’ll give Monster the benefit of the doubt there. I guess if
      Monster were a human being, he could have shot the [other] dog because he
      was defending his property. . . .” (Boldface omitted.)
As a result of the dogfight, sometime between March 2011 and March 2012, respondents
had their son Alejandro Perez install a wire mesh barrier under segments of the fence
adjoining the Camarenases’ residence. Alejandro also mounted a wire mesh board
beneath the front gate, which Victor assumed was an extra precautionary measure.
      In addition, Victor testified Monster had left the backyard once before. On that
occasion, animal control retrieved the dog without difficulty. Thereafter, Victor
inspected the property and did not find any excavated holes or broken fence posts. He
concluded a meter reader failed to close and/or latch the gate. Respondents and Victoria
maintained they never observed or heard about either Monster or Cookie acting
aggressively toward humans before the November 27, 2012, incident.
      Respondents filed a motion for summary judgment, arguing they owed no duty to
appellant because they had no actual knowledge of Monster’s and Cookie’s dangerous
propensities. Appellant asserted otherwise in his opposition. The superior court granted




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the motion, finding no triable issue as to whether respondents had actual knowledge of
the dogs’ dangerous propensities.
                                       DISCUSSION
I.     Overview of the summary judgment remedy.
       Summary judgment “provide[s] courts with a mechanism to cut through the
parties’ pleadings in order to determine whether, despite their allegations, trial is in fact
necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 843 (Aguilar); see Lee v. Marchetti (1970) 4 Cal.App.3d 97, 99 [“ ‘The salient
philosophy behind this procedural device is to provide a method for the prompt
disposition of actions and proceedings which have no merit and in which there is no
triable material issue of fact . . . .’ ”].) A 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 judgment as a matter of law.” (Code Civ. Proc.,
§ 437c, subd. (c).)3 “In determining whether the papers show that there is no triable issue
as to any material fact[,] the court shall consider all of the evidence set forth in the
papers, except that to which objections have been made and sustained by the court, and
all inferences reasonably deducible from the evidence, except summary judgment may
not be granted by the court based on inferences reasonably deducible from the evidence if
contradicted by other inferences or evidence that raise a triable issue as to any material
fact.” (Ibid.)
       A defendant seeking summary judgment bears the initial burden to produce
evidence demonstrating either one or more elements of the cause of action cannot be
established or there is a complete defense to that cause of action. (§ 437c, subd. (p)(2);
Aguilar, supra, 25 Cal.4th at pp. 849-850, 854-855.) If the motion is made against a
plaintiff who would bear the burden of proof by a preponderance of evidence at trial, the

3      Subsequent statutory citations refer to the Code of Civil Procedure.


                                               4.
defendant “must present evidence that would require a reasonable trier of fact not to find
any underlying material fact more likely than not—otherwise, he would not be entitled to
judgment as a matter of law, but would have to present his evidence to a trier of fact.”
(Aguilar, supra, at p. 851, italics & fn. omitted.) If the defendant makes a prima facie
showing, then the burden of production “shifts to the plaintiff . . . to show that a triable
issue of one or more material facts exists as to that cause of action or a defense thereto.”
(§ 437c, subd. (p)(2); accord, Aguilar, supra, at p. 849.) “The plaintiff . . . shall not rely
upon the mere allegations or denials of its pleadings to show that a triable issue of
material fact exists but, instead, shall set forth the specific facts showing that a triable
issue of material fact exists as to that cause of action or a defense thereto.” (§ 437c,
subd. (p)(2); accord, Aguilar, supra, at p. 849.) “[F]rom commencement to conclusion,
the party moving for summary judgment bears the burden of persuasion[4] that there is no
triable issue of material fact and that he is entitled to judgment as a matter of law.”
(Aguilar, supra, 25 Cal.4th at p. 850, fn. omitted.)
II.    Standard of review.
       “[A]s the reviewing court, we determine de novo whether an issue of material fact
exists and whether the moving party was entitled to summary judgment as a matter of
law.” (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.) “In other words, we must
assume the role of the trial court and reassess the merits of the motion.” (Ibid.) “In doing
so, we will consider only the facts properly before the trial court at the time it ruled on
the motion.” (Ibid.) “We apply the same three-step analysis required of the trial court.
First, we identify the issues framed by the pleadings since it is these allegations to which
the motion must respond. Second, we determine whether the moving party’s showing
has established facts which negate the opponent’s claim and justify a judgment in the

4      Whereas a burden of production entails only the presentation of evidence, a
burden of persuasion entails the establishment of a requisite degree of belief by way of
such evidence. (Aguilar, supra, 25 Cal.4th at p. 850.)


                                               5.
moving party’s favor. When a summary judgment motion prima facie justifies a
judgment, the third and final step is to determine whether the opposition demonstrates the
existence of a triable issue of material fact.” (Hutton v. Fidelity National Title Co. (2013)
213 Cal.App.4th 486, 493-494.) “In so doing, we liberally construe the opposing party’s
evidence, strictly construe the moving party’s evidence, and resolve all doubts in favor of
the opposing party.” (Id. at p. 494.)

III.   Analysis.
       “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; see Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 514
(Uccello), italics & fn. omitted [“Because the harboring of pets is such an important part
of our way of life and because the exclusive possession of rented premises normally is
vested in the tenant, we believe that actual knowledge and not mere constructive
knowledge is required.”].) Actual knowledge may be shown “not only by direct
evidence, but also by circumstantial evidence.” (Uccello, supra, 44 Cal.App.3d at p. 514,
fn. 4.) “However, actual knowledge can be inferred from the circumstances only if, in
the light of the evidence, such inference is not based on speculation or conjecture. Only
where the circumstances are such that the defendant ‘must have known’ and not ‘should
have known’ will an inference of actual knowledge be permitted.” (Ibid.)
       Respondents concede (1) they were the residential landlords of 4935 West
Westgate Court; (2) they rented the property to their daughter Victoria; (3) they knew



                                             6.
Victoria owned two dogs, Monster and Cookie, and kept them on-site; (4) they were
well-acquainted with Monster and Cookie; (5) one time prior to the November 27, 2012,
incident, Monster and the Camarenases’ dog fought; (6) as a result of the dogfight, their
son Alejandro installed a wire mesh barrier under segments of the backyard fence
adjoining the Camarenases’ residence as well as a wire mesh board beneath the front
gate; (7) one time prior to the November 27, 2012, incident, Monster left the backyard;
and (8) on November 27, 2012, Monster and Cookie escaped from the backyard by going
through a breach in the wire mesh board under the front gate. Nonetheless, respondents
contend they are entitled to summary judgment as a matter of law because they had no
actual knowledge of Monster’s and Cookie’s vicious natures prior to the November 27,
2012, incident.
       As noted, the party moving for summary judgment bears the initial burden to
produce evidence demonstrating an element of a cause of action cannot be established.
(§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 849-850, 854-855.) Here,
respondents testified they never saw or received complaints about either Monster or
Cookie acting aggressively toward humans before the November 27, 2012, incident.
Although Monster was previously involved in a scuffle with the Camarenases’ dog,
respondents and Victoria attested (1) the Camarenases’ dog burrowed into 4935 West
Westgate Court’s backyard; (2) both the Camarenases’ dog and Monster sustained
injuries; and (3) no one watched the dogfight in real time, meaning no one saw which dog
attacked first.5 As for the time Monster left the backyard before the November 27, 2012,
incident, Victor testified (1) the fence and the ground remained intact, indicating Monster
did not use brute force or dig a hole to escape; and (2) animal control retrieved Monster
without incident. That respondents must have known of Monster’s as well as Cookie’s

5      Moreover, even assuming arguendo Monster instigated the dogfight, knowledge of
a propensity to attack or fight with another dog does not necessarily equate to knowledge
of a propensity to attack or fight humans. (See Rest.2d Torts, § 509, com. i, pp. 18-19.)


                                            7.
dangerous propensities from these circumstances would be speculative at best. (See
Uccello, supra, 44 Cal.App.3d at p. 514, fn. 4; see also Giannini v. Southern Pacific Co.
(1929) 98 Cal.App. 126, 136 [inferences cannot be drawn contrary to uncontradicted
testimony and based on imagination, speculation, or supposition].) We believe this
evidence, standing alone, “would require a reasonable trier of fact not to find [the]
underlying material fact [of respondents’ actual knowledge of Monster’s and Cookie’s
vicious natures] more likely than not . . . .” (Aguilar, supra, 25 Cal.4th at p. 851, italics
& fn. omitted.)
       Since respondents have satisfied their initial burden of production, we must now
decide whether appellant has produced evidence showing a triable issue. Appellant
argues respondents had actual knowledge of Monster’s and Cookie’s dangerous
propensities because they (1) knew the dogs were living at 4935 West Westgate Court;
(2) knew the dogs had attacked the Camarenases’ dog; (3) knew the dogs had previously
escaped; and (4) installed the mesh wire to prevent the dogs from attacking anyone or
anything.6 These assertions are either immaterial or unsubstantiated. First, knowledge of
a dog’s mere existence does not impute knowledge of its dangerous propensities. (See
Chee v. Amanda Goldt Property Management, supra, 143 Cal.App.4th at p. 1370.)
Second, there is no direct evidence Monster or Cookie attacked the Camarenases’ dog
and, based on the deposition testimony, such an inference cannot be drawn. At best, the
evidence shows Monster fought the Camarenases’ dog, the latter infiltrating the former’s
territory. Third, although Monster escaped from the backyard on one occasion, the
evidence demonstrates the dog did not dig a hole or otherwise use brute force to leave the
confines and, once outside, did not harm anyone. Finally, the evidence indicates the


6      Appellant also invokes “common sense” with regard to pit bulls. To the extent he
suggests an inference of actual knowledge can be made based upon a dog’s breed, we
disagree. (See Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th
1360, 1371-1372; Lundy v. California Realty (1985) 170 Cal.App.3d 813, 821-822.)


                                              8.
mesh wire barrier and mesh wire board were installed to prevent the Camarenases’ dog
from burrowing into 4935 West Westgate Court’s backyard again.
      We conclude appellant has failed to establish a triable issue as to whether
respondents had actual knowledge of Monster’s and Cookie’s dangerous propensities.
Accordingly, we find the superior court properly granted summary judgment.
                                    DISPOSITION
      The judgment of the superior court is affirmed. Costs on appeal are awarded to
respondents.


                                                               _____________________
                                                                          DETJEN, J.
WE CONCUR:


 _____________________
 LEVY, Acting P.J.


 _____________________
 FRANSON, J.




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