Filed 3/23/15 Plumer v. Rigdon CA4/1
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               COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                             DIVISION ONE

                                      STATE OF CALIFORNIA



CAROL PLUMER,                                                       D066249

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. 37-2012-00058926
                                                                    CU-PO-NC)
REBECCA RIGDON et al.,

         Defendants and Respondents.


         APPEAL from a judgment of the Superior Court of San Diego County,

Jacqueline M. Stern, Judge. Affirmed.

         Michael G. Harris for Plaintiff and Appellant.

         Wallace, Brown & Schwartz, George M. Wallace, Jr. and Lisa J. Brown for

Defendants and Respondents.



         Plaintiff Carol Plumer appeals after the trial court entered summary

judgment in favor of Rebecca Rigdon and Rigdon Dressage (together Defendants)

on her negligence claim against them. We affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND

          Plumer boarded her horse at Arroyo Del Mar Stables (the Stables) where

Rigdon was a horse trainer. While Plumer walked inside the barn at the Stables,

Rigdon's dog ran into the barn from the outside, ran down the barn aisle, collided

with Plumer's right leg and continued on to some unknown destination. Plumer

suffered injuries as a result of the collision. Plumer had seen Rigdon's dog at the

Stables on multiple occasions before the date of her injury and was unaware of any

previous incidents in which the dog had collided with either persons or horses;

however, the dog seemed "rather hyper and not trained."

          Using an approved Judicial Council pleading form, Plumer sued

Defendants alleging a single cause of action for negligence. She claimed that

Rigdon, a principal of Rigdon Dressage, allowed her dog to run free without a

leash in violation of posted rules at the Stables stating, " 'NO DOGS.' " Rigdon

brought her dog with her to the Stables in violation of the rules and failed to

exercise reasonable control of the dog in such a manner as to prevent harm to

others.

          Defendants moved for summary judgment, arguing (1) no legal duty

existed to prevent the inadvertent injury caused by Rigdon's dog; and (2) the

presence of dogs was a condition known to Plumer and a risk she assumed both

explicitly in a release agreement with the Stables and implicitly by her regular

presence at the Stables. The trial court granted the motion, concluding Defendants


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owed Plumer no duty of care. It stated that the issue of duty was a legal issue for

the court to decide and turned in the question of foreseeability. The court

concluded the question of foreseeability in a negligence case involving a

nonvicious dog turned on whether the dog had a tendency to engage in potentially

harmful conduct and whether Defendants knew of that conduct. It found the

following:

          "Here, there is no evidence creating a triable issue of fact
          whether Defendant's dog was potentially harmful and whether
          Defendant had knowledge of such 'particular propensities.'
          [Citation.] [¶] Plaintiff cites to her deposition testimony
          showing that Defendant's dog 'seemed rather hyper and
          untrained' and that Defendant would leave the dog in her
          office at the stables with the door closed for much of the day
          and that on one occasion, Defendant's door was open and she
          saw the dog in the entryway and that Defendant was 'trying to
          get it not to run out, trying to get it to stay there.' [Citation.]
          This evidence does not create an underlying triable issue of
          fact. The evidence neither directly nor indirectly shows that
          Defendant's dog had a tendency to engage in the behavior
          which caused the incident, i.e., to 'collide' with people and
          knock them down, as alleged in Plaintiff's first amended
          complaint. No reasonable jury could decide, based on the
          evidence relied on by Plaintiff, that Defendant's dog was
          potentially harmful. Thus, the Court concludes the incident
          was not foreseeable and for that reason, Defendant did not
          owe Plaintiff a duty of care."

       The trial court entered a judgment in favor of Defendants. Thereafter,

Plumer moved for "reconsideration" under Code of Civil Procedure section 473,

citing a number of San Diego County Code of Regulatory Ordinances (the

Ordinances) and arguing that she had a prima facie claim that Rigdon's conduct in

allowing the dog to run free violated the Ordinances. (Undesignated statutory

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references are to the Code of Civil Procedure.) The court concluded it lacked

jurisdiction to rule on the motion as a judgment had already been entered. Plumer

timely appealed from the judgment.

                                    DISCUSSION

                             I. General Legal Principles

       Summary judgment is properly granted when there is no triable issue of

material fact and the moving party is entitled to judgment as a matter of law.

(§ 437c, subd. (c).) Where the defendant is the moving party, it must show that a

cause of action has no merit by putting forth evidence that either one or more

elements of the cause of action, even if separately pleaded, cannot be established

or that a complete defense exists thereto. (§ 437c, subds. (o) & (p)(2); Saelzler v.

Advanced Group 400 (2001) 25 Cal.4th 763, 768 (Saelzler).) If the defendant

meets this burden, the burden shifts to the plaintiff to establish that a triable issue

of material fact exists. (§ 437c, subd. (p)(2); Saelzler, supra, at p. 768.)

       We review the trial court's decision to grant summary judgment de novo.

(Saelzler, supra, 25 Cal.4th at p. 768.) We must view the evidence submitted in

connection with a motion for summary judgment in a light most favorable to the

party opposing the motion and resolve "any evidentiary doubts or ambiguities in

plaintiff's favor." (Ibid.) We independently determine whether the record

supports the trial court's conclusions that the asserted claims fail as a matter of




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law, and we are not bound by the trial court's stated reasoning or rationales.

(Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 951.)

                                     II. Analysis

A. Negligence Per Se

       Plumer asserts the trial court improperly granted summary judgment as

Defendants owed her a common law duty of care. In her reply brief, she asserted

Rigdon owed a duty of care based on a negligence per se theory under ordinances

requiring that dogs be leashed. In reviewing the record, we noted that Plumer did

not argue the issue of negligence per se as a theory of liability in opposition to the

summary judgment motion and Rigdon raised the issue in her reply brief below.

We requested that the parties submit further briefing on whether this theory of

liability was properly before us. Assuming the issue was properly before, the

parties were directed to address whether summary judgment should have been

denied on this ground. Both parties submitted letter briefs, which we have

considered.

       We conclude the theory of negligence per se is not properly before us.

Plumer did not argue negligence per se in opposition to the summary judgment

motion. Defendants addressed the negligence per se theory in their reply brief

below to distinguish a case cited by Plumer in her opposition. On appeal, Plumer

asserted in her opening brief that Rigdon allowed her dog to run at large in

violation of a county ordinance; however, Plumer never argued the theory of


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negligence per se applied or that the summary judgment motion should have been

denied on this ground. Rather, Plumer raised the issue for the first time in her

reply brief on appeal, arguing we can consider county ordinances under section

909, that the ordinances created a duty for Rigdon to maintain her dog on a leash

and her failure to do so constituted negligence per se.

       Section 909 is a seldom used statute that allows a reviewing court to "make

factual determinations contrary to or in addition to those made by the trial court"

in "cases where trial by jury is not a matter of right or where trial by jury has been

waived." This statute does not contemplate we should take original evidence to

reverse a judgment. (DeYoung v. Del Mar Thoroughbred Club (1984) 159

Cal.App.3d 858, 863, fn. 3.) Rather, it is well settled that arguments raised for the

first time in an appellant's reply brief are forfeited unless good reason has been

shown for failure to raise them earlier. (Garcia v. McCutchen (1997) 16 Cal.4th

469, 482, fn. 10; Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc.

(2000) 78 Cal.App.4th 847, 894, fn. 10.) Plumer does not explain why she failed

to address this theory in her opening brief and we conclude she forfeited this issue

by raising it for the first time in her reply brief.

B. Negligence

       Plumer asserts the trial court erred in granting summary judgment because

Rigdon owed her an ordinary duty to exercise reasonable care to control her dog.




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       "A determination that defendants owe plaintiff no duty of care would

negate an essential element of plaintiff's cause of action for negligence and would

constitute a complete defense. Whether a duty of care exists is a question of law

for the court and is reviewable de novo. All persons are required to use ordinary

care to prevent injury to others from their conduct." (Nichols v. Keller (1993) 15

Cal.App.4th 1672, 1685.) "[A] court's task—in determining 'duty'—is not to

decide whether a particular plaintiff's injury was reasonably foreseeable in light of

a particular defendant's conduct, but rather to evaluate more generally whether the

category of negligent conduct at issue is sufficiently likely to result in the kind of

harm experienced that liability may appropriately be imposed on the negligent

party." (Ballard v. Uribe (1986) 41 Cal.3d 564, 572-573, fn. 6.) "Foreseeability

of harm, though not determinative, has become the chief factor in duty analysis."

(Nichols v. Keller, supra, at p. 1686.) " 'Foreseeability, when analyzed to

determine the existence or scope of a duty, is a question of law to be decided by

the court.' " (Butcher v. Gay (1994) 29 Cal.App.4th 388, 401.)

       "To support a duty, foreseeability of harm must be reasonable. [Citations.]

Put another way, the degree of foreseeability must be high enough to charge the

defendant with a duty to act. [Citations.] . . . [T]he harm must be sufficiently

likely to arise from a given act. [Citations.] More than a mere possibility of

occurrence is required since, with hindsight, everything is foreseeable. [Citations.]

. . . '[T]he court evaluates . . . whether the category of negligent conduct at issue is


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sufficiently likely to result in the kind of harm experienced that liability may

appropriately be imposed on the negligent party. [Citation.] What is "sufficiently

likely" means what is " 'likely enough in the setting of modern life that a

reasonably thoughtful [person] would take account of it in guiding practical

conduct.' " [Citation.]' [Citation.]" (Friedman v. Merck & Co. (2003) 107

Cal.App.4th 454, 465-466.)

       Based on the evidence, the duty question in this case may be summarized as

follows: Could Rigdon have reasonably foreseen that injury would result from her

failure to control her dog where Rigdon knew the dog did not have a tendency to

run into people or other objects?

       In analyzing this issue, we start with the Restatement (Second) of Torts

which provides the following: "[O]ne who possesses or harbors a domestic animal

that he does not know or have reason to know to be abnormally dangerous, is

subject to liability for harm done by the animal if, but only if . . . (b) he is

negligent in failing to prevent the harm." (Rest.2d Torts, § 518, p. 30.) Comment

j to this section provides the following: "There are certain domestic animals so

unlikely to do harm if left to themselves . . . that they have traditionally been

permitted to run at large. This class includes dogs, . . . . Although it is not

impossible to confine dogs to the premises of their keepers or to keep them under

leash when taken into a public place, they have been traditionally regarded as

unlikely to do substantial harm if allowed to run at large, so that their keepers are


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not required to keep them under constant control. . . . However, although the

possessor or harborer of a dog . . . is privileged to allow it to run at large and

therefore is not required to exercise care to keep it under constant control, he is

liable if he sees his dog . . . about to attack a human being or animal or do harm to

crops or chattels and does not exercise reasonable care to prevent it from doing

so." (Id. at p. 32.)

       Here, while Rigdon's dog appeared "hyper and not trained," there is no

evidence the dog had a propensity to run into objects or had otherwise injured a

person. Thus, it was not reasonably foreseeable the dog was likely to run into

people and Rigdon had no common law duty to confine the dog. (Compare, Drake

v. Dean (1993) 15 Cal.App.4th 915, 931-932 [court erred in failing to instruct jury

on negligence theory where evidence revealed defendant knew dog had a habit of

jumping on people].) As the Drake court noted, "[I]t may reasonably be

anticipated that a dog which has jumped on people before will do it again, whereas

it is not reasonable to suppose that a dog that has, for whatever reason, run into an

immovable object will not have been discouraged from repeating that conduct."

(Id. at p. 931.) Finally, while Plumer notes the existence of a "no dogs" sign at the

Stables, she did not sue the Stables' owner and the manager of the Stables

presented a declaration stating the list of rules on the sign, including the no dogs

rule, pertains to boarders and does not apply to horse trainers such as Rigdon.




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Additionally, she failed to present any argument or authority explaining how this

fact impacted the duty analysis.

                                   DISPOSITION

       The judgment is affirmed. Respondents are entitled to their costs on

appeal.



                                                              MCINTYRE, J.

WE CONCUR:

MCCONNELL, P. J.

HUFFMAN, J.




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