Filed 10/16/15 Moorcraft v. Diaz CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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publication or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION THREE



JAMES MOORCROFT,                                                           B258019

      Plaintiff, Appellant, and                                            (Los Angeles County
Cross-Respondent,                                                          Super. Ct. No. PC054299)

         v.

DANTE DIAZ,

      Defendant, Respondent, and
Cross-Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
James A. Kaddo, Judge. Affirmed; cross-appeal dismissed as moot.
         Tofer & Associates, PLC, Michael P. Green and Lourdes DeArmas, for Plaintiff,
Appellant, and Cross-Respondent.
         Neil, Dymott, Frank, McFall, Trexler, McCabe & Hudson, APLC,
James A. McFall, Jarod A. Cauzza, and Christine Y. Dixon; Fidone & Motooka, LLP,
Marjorie E. Motooka and Gary F. Fidone, for Defendant, Respondent, and
Cross-Appellant.
                            _______________________________________
                                    INTRODUCTION
       Plaintiff James Moorcroft sued defendant Dante Diaz for, among other claims,
strict liability under Civil Code section 3342, subdivision (a)1 after Moorcroft and his
dog were bitten by Diaz’s dog on Diaz’s property. Before opening statements were
made to the jury, the trial court stated that it appeared that Moorcroft could not prevail
on his claim for strict liability. In response to the court’s statement, Moorcroft
requested, and received, an opportunity to submit briefing on the applicability of the
statute but did not object to the court resolving the issue. Thereafter, based on
stipulated facts and after hearing the parties’ arguments, the court ruled that Moorcroft
could not prevail on his strict liability claim. The lawsuit proceeded to trial on
Moorcroft’s remaining claims and the jury rendered a verdict in Diaz’s favor.
       On appeal, Moorcroft contends the court lacked authority to dismiss his strict
liability claim on its own motion. Alternatively, Moorcroft contends that even if the
court could dismiss his claim on its own motion, the court erred in doing so because
there was a factual dispute as to whether the evidence established he was lawfully on
Diaz’s property. In his cross-appeal, Diaz claims the court erred in granting
Moorcroft’s motion in limine to exclude requests for admissions that were deemed
admitted against Moorcroft in a prior lawsuit. We affirm the judgment against
Moorcroft and dismiss Diaz’s cross-appeal as moot.
                  FACTUAL AND PROCEDURAL BACKGROUND
       1.     Moorcroft’s First Lawsuit
       In 2011, Moorcroft sued Diaz for claims arising out of a dog bite incident that
occurred on Diaz’s property. During discovery in that case, Diaz propounded on
Moorcroft a request for admissions, requesting Moorcroft admit, among other things,
that at the time he was attacked by Diaz’s dog (1) he did not have permission to be on
Diaz’s property; (2) Diaz’s dog was secured behind a wooden fence; and (3) Diaz had

1
       This statute imposes strict liability on a dog owner for a dog bite occurring while
the person bitten was lawfully on the owner’s property.


                                             2
posted on his property a sign that read “Beware of Dog.” Moorcroft failed to respond to
Diaz’s requests, and Diaz successfully moved to have the facts contained in the requests
deemed admitted against him. Shortly after the requests were deemed admitted,
Moorcroft filed a request for dismissal without prejudice. Diaz never challenged that
dismissal.
       2.     The Current Lawsuit
       In 2012, Moorcroft filed a new lawsuit against Diaz for strict liability, negligence,
and liability for a dangerous animal arising out of the same dog-bite incident forming
the basis for his first lawsuit. The complaint alleged the following: In January 2011,
Moorcroft and his dog were lawfully on Diaz’s property when Diaz’s dog attacked
Moorcroft and his dog. As a result of the attack, Moorcroft sustained physical and
emotional injuries and his dog suffered physical injuries. Moorcroft sought damages,
including medical expenses for himself and his dog.
              A.     Moorcroft’s Motion in Limine to Exclude His Prior Admissions
       In May 2014, Diaz filed a brief advising the trial court of the facts deemed
admitted against Moorcroft in his prior lawsuit. Diaz argued Moorcroft should be
collaterally estopped in the current lawsuit from relitigating the facts covered by those
admissions. Diaz contended Moorcroft’s lawsuit was improperly dismissed without
prejudice after the facts were deemed admitted against Moorcroft. Diaz argued that
because the dismissal of Moorcroft’s prior lawsuit was improper, Moorcroft should not
be allowed to avoid the preclusive effect of his admissions in the current lawsuit.
       Several days before trial was set to begin in June 2014, Moorcroft filed a motion
in limine requesting the court exclude his prior admissions at trial. Moorcroft argued
collateral estoppel and res judicata did not apply to his admissions because his prior
lawsuit did not result in a final judgment on the merits. Moorcroft also argued Diaz’s
request should be denied because Diaz never objected to, or otherwise challenged, the
dismissal of his prior lawsuit. The court took Moorcroft’s motion under submission.




                                             3
          On June 23, 2014, the court granted Moorcroft’s motion in limine. The court
found that under Code of Civil Procedure section 2033.410, subdivision (b),2
Moorcroft’s admissions were not admissible in his new lawsuit. Although the court
acknowledged Moorcroft should not have been allowed to dismiss his prior lawsuit
without prejudice after Diaz’s requests for admissions were deemed admitted, it
concluded Diaz forfeited any reliance on those admissions by failing to challenge
Moorcroft’s dismissal in the prior lawsuit or file a demurrer in the current lawsuit
requesting dismissal of Moorcroft’s new complaint.
                 B.     The Court’s Ruling on Moorcroft’s Strict Liability Claim
          Immediately after granting Moorcroft’s motion in limine, the court informed the
parties it intended to find Moorcroft could not prevail on his claim for strict liability.
Specifically, the court stated it was inclined to find that, as a matter of law, Moorcroft
did not fall within the scope of Civil Code section 3342 because he was not lawfully on
Diaz’s property when he was attacked by Diaz’s dog.
          Moorcroft’s attorneys did not object to the court resolving Moorcroft’s strict
liability claim before trial. Instead, they argued only the merits of Moorcroft’s claim
and requested time to brief the issue of whether Diaz impliedly invited Moorcroft onto
his property. The court deferred its ruling to the next day to allow the parties to submit
briefs.
          On June 24, 2014, Moorcroft submitted a brief addressing implied invitations
and consent under Civil Code section 3342. Moorcroft argued he fell within the
statute’s scope because he had previously been invited onto Diaz’s property for social
gatherings and, on several occasions prior to the attack, he had used Diaz’s trashcans
when they were stored in Diaz’s driveway. He also argued that because homeowners

2
       Code of Civil Procedure section 2033.410, subdivision (b) provides:
“Notwithstanding subdivision (a), any admission made by a party under this section is
binding only on that party and is made for the purpose of the pending action only. It is
not an admission by that party for any other purpose, and it shall not be used in any
manner against that party in any other proceeding.”


                                               4
have a reduced privacy interest under the Fourth Amendment to the United States
Constitution in garbage containers placed near public streets, a homeowner who places
his trashcans on the front of his property necessarily extends an implied invitation to the
public to enter his property to use those trashcans.
       Before the court issued its ruling, the parties stipulated to the following facts: On
the day of the incident, Moorcroft was walking his dog on a six- to eight-foot leash on
the street fronting Diaz’s home. After his dog defecated on the street, Moorcroft walked
up Diaz’s driveway to dispose of his dog’s waste in Diaz’s trashcans, which were
located next to the driveway, directly across from the gate to Diaz’s backyard. While
Moorcroft was using Diaz’s trashcans, his dog strayed to the backyard gate. Diaz’s dog,
who at all times remained on the backyard-side of Diaz’s gate, grabbed Moorcroft’s dog
through the bottom of the gate. When Moorcroft went to the gate to help his dog,
Diaz’s dog bit him. At no time during the incident was Diaz aware that Moorcroft and
his dog were on his property.
       After the parties stipulated to these facts, the court found that Moorcroft
trespassed on Diaz’s property because Diaz was not aware Moorcroft had entered his
property to use the trashcans. Because Moorcroft trespassed on Diaz’s property, he was
not lawfully on the property under Civil Code section 3342 and could not prevail on
a claim for strict liability. The court denied Moorcroft’s request for a stay of trial.
              C.     The Trial on Moorcroft’s Remaining Claims
       The case proceeded to a jury trial on Moorcroft’s claims for negligence and
liability for a dangerous animal.3 After Moorcroft presented his case-in-chief, Diaz
moved for nonsuit as to Moorcroft’s remaining claims. The court granted the motion as
to Moorcroft’s claim for liability for a dangerous animal, and it denied the motion as to
his claim for negligence. The jury found Diaz was not negligent and awarded
Moorcroft no damages.


3
       The transcript from the trial is not included in the record on appeal.


                                              5
                                       DISCUSSION
       Moorcroft contends the trial court erred when, on its own motion, it effectively
dismissed4 his claim for strict liability. He challenges the court’s ruling on procedural
and substantive grounds. With respect to his procedural challenge, Moorcroft argues
the court lacked authority to dispose of his strict liability claim on its own motion on
one day’s notice. He also contends that, even if the court could dismiss his claim on its
own motion, the court erred in doing so because a factual dispute exists as to whether he
was lawfully on Diaz’s property, which should have been decided by the jury. In his
substantive challenge, Moorcroft argues the court erred in dismissing his claim because
the stipulated facts establish he was lawfully on Diaz’s property.
       1.     Moorcroft Forfeited His Procedural Challenge
       To preserve an issue for appeal, a party ordinarily must raise an objection before
the trial court. (K.C. Multimedia, Inc. v. Bank of America Technology & Operations,
Inc. (2009) 171 Cal.App.4th 939, 948 (K.C. Multimedia).) The party challenging the
court’s ruling must provide the reviewing court with citations to the record
demonstrating that an objection was raised. (Ibid.) If the party fails to demonstrate it
raised on objection before the trial court, the reviewing court generally will not consider
the issue on appeal. (Ibid.) “The purpose of this rule is to encourage parties to bring
errors to the attention of the trial court, so that they may be corrected.” (Ibid., citing
In re S.B. (2004) 32 Cal.4th 1287, 1293.)
       Moorcroft forfeited his procedural challenge to the court’s alleged dismissal of
his strict liability claim because his attorneys never objected to the court’s ruling on any
procedural grounds. Rather, they devoted their entire argument to the substantive issue
raised by the court.




4
      The court never actually dismissed this claim. The unsigned minute order from
June 24, 2014 only states that the court “finds that there is no implied or expressed
consent and rules that Civil Code Section 3342 does not apply.”


                                              6
       For example, when the court informed the parties it intended to resolve
Moorcroft’s strict liability claim against him before it reached the jury, one of
Moorcroft’s attorneys immediately launched into an argument about why Moorcroft
was a proper plaintiff under the strict liability statute. Moorcroft’s attorneys also never
raised a procedural objection during the first day of the hearing. When they requested
time to submit a brief addressing the court’s concerns, Moorcroft’s attorneys told the
court they intended to address only the issue of whether Moorcroft had been invited
onto Diaz’s property, and the brief they submitted the next day did not raise any
procedural objections. During the second day of the hearing, Moorcroft’s attorneys
continued to address only the merits of Moorcroft’s claims. Even after the court ruled
that Moorcroft could not present his strict liability claim to the jury, Moorcroft’s
counsel never raised a procedural objection and only sought clarification of the
substantive grounds for the court’s ruling.
       In sum, because Moorcroft failed to object to the court’s procedure, he forfeited
his procedural challenge on appeal. (K.C. Multimedia, supra, 171 Cal.App.4th at
pp. 948-951 [plaintiff forfeited its procedural challenges to the court’s sua sponte
dismissal of its claims before trial by failing to object to the court’s procedure].) In any
event, as we discuss below, any procedural error was harmless.
       2.     Any Procedural Error in Resolving the Strict Liability
              Claim Was Harmless

              A.      The Court’s Procedure Was Similar to a Motion in Limine Testing
                      the Sufficiency of Moorcroft’s Evidence or a Motion for Nonsuit

       Although the court did not state under what authority it disposed of or barred
Moorcroft’s strict liability claim, the court’s procedure was akin to a motion in limine to
test the sufficiency of Moorcroft’s evidence or a motion for nonsuit. (See K.C.
Multimedia, supra, 171 Cal.App.4th at pp. 945, 951-953 [analogizing the trial court’s
pretrial procedure of dismissing the plaintiff’s claims on grounds raised in the
defendant’s trial brief as a motion in limine testing the sufficiency of the plaintiff’s
evidence]; Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 748 (Atkinson)


                                              7
[characterizing the trial court’s sua sponte dismissal of the plaintiff’s claim before trial
as a motion for nonsuit]; Stein-Brief Group, Inc. v. Home Indemnity Co. (1998)
65 Cal.App.4th 364, 369 [same].) While the court’s procedure was irregular and not
supported by express statutory authority, as the cases cited above show, it was not
unprecedented.
       “ ’A court has inherent equity, supervisory and administrative powers, as well as
inherent power to control litigation and conserve judicial resources.’ [Citations.] Use
of a motion in limine to test whether a complaint states a cause of action ‘falls within
these powers . . . . ’ [Citation.]” (K.C. Multimedia, supra, 171 Cal.App.4th at p. 951.)
By using a motion in limine in this way, the court can dismiss a claim on the pleadings
or after reviewing the evidence. (Amtower v. Photon Dynamics, Inc. (2008)
158 Cal.App.4th 1582, 1594.) Where such an order is granted “ ’at the outset of trial
with reference to evidence already produced in discovery, [it] may be viewed as the
functional equivalent of an order sustaining a demurrer to the evidence, or [a motion
for] nonsuit.’ [Citation.]” (K.C. Multimedia, supra, 171 Cal.App.4th at p. 952.)
       “ ’A motion for nonsuit is a procedural device which allows a defendant to
challenge the sufficiency of plaintiff’s evidence to submit the case to the jury.
[Citation.]’ ” (Atkinson, supra, 109 Cal.App.4th at p. 747.) Typically, a motion for
nonsuit cannot be brought until the plaintiff has presented an opening statement. (Code
Civ. Proc., § 581c, subd. (a).) However, a premature motion for nonsuit will not be
reversed if it is clear the plaintiff could not have prevailed on his dismissed claim even
if he had made an opening statement or presented evidence to the jury. (Ritschel v.
City of Fountain Valley (2006) 137 Cal.App.4th 107, 114.)
       “ ’[A] trial court may not grant a defendant’s motion for nonsuit if plaintiff’s
evidence would support a jury verdict in plaintiff’s favor.’ [Citation.] ‘In determining
whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or
consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff
must be accepted as true and conflicting evidence must be disregarded.’ [Citation.]”
(Atkinson, supra, 109 Cal.App.4th at p. 747.)


                                              8
       We will not reverse the court’s judgment unless Moorcroft was prejudiced by the
court’s premature resolution of his strict liability claim. (Cal. Const., art. VI, § 13
[“ ’No judgment shall be set aside . . . [in any cause] for any error as to any matter of
procedure, unless, after an examination of the entire cause, including the evidence, the
court shall be of the opinion that the error complained of has resulted in a miscarriage of
justice’ ”]; Atkinson, supra, 109 Cal.App.4th at p. 749.) Accordingly, we must
determine whether the court was correct in concluding that, as a matter of law,
Moorcroft could not succeed on his claim under Civil Code section 3342.5
              B.      Based on the Stipulated Facts, the Court’s Ruling Was Correct
       Before reaching the merits of Moorcroft’s strict liability claim, we reject
Moorcroft’s argument that a triable issue of fact exists as to his status on Diaz’s
property. As Moorcroft acknowledges in his opening brief, he stipulated to the set of
facts upon which the court based its ruling. Because he did not object to the court’s
procedure, he is bound by that stipulation for the same reasons set forth above in our
forfeiture discussion. Further, Moorcroft did not argue before the trial court, and he
does not argue on appeal, that he could have introduced additional evidence
demonstrating he was lawfully on Diaz’s property. Moorcroft also has not supplied the
reporter’s transcript from the trial on his remaining claims, precluding us from
determining whether he introduced additional evidence concerning his status on Diaz’s



5
        Moorcroft relies on Certain Underwriters at Lloyd’s of London v. Superior Court
(1997) 56 Cal.App.4th 952 (Lloyd’s of London) to argue the court committed reversible
error by dismissing his strict liability claim on its own motion. That decision does not
support his argument. Lloyd’s of London addressed the type of evidence necessary to
meet a defendant’s burden of proof on summary judgment after the trial court denied the
defendant’s motion for summary judgment. (Id. at pp. 955-962.) The trial court did not
dismiss any of the plaintiff’s claims on its own motion. (Id. at pp. 954-955.) Although
the Court of Appeal in that case acknowledged that a state trial court does not share
a federal district court’s authority to summarily adjudicate a plaintiff’s claim on its own
motion, it did so only to explain the differences between summary judgment motions in
the state and federal courts. (See Id. at pp. 958-960.)


                                              9
property at the time of the attack. Thus, we presume there was no dispute as to the facts
upon which Moorcroft’s strict liability claim was based.
       “[T]he application of a statutory standard to undisputed facts is reviewed
de novo.” (Harustak v. Wilkins (2000) 84 Cal.App.4th 208, 212.) Accordingly, we
independently review whether Moorcroft was lawfully on Diaz’s property at the time he
was bitten by Diaz’s dog.
       Civil Code section 3342, subdivision (a) provides in part: “The owner of any
dog is liable for the damages suffered by any person who is bitten by the dog
while . . . lawfully in a private place, including the property of the owner of the dog,
regardless of the former viciousness of the dog or the owner’s knowledge of such
viciousness. A person is lawfully upon the private property of such owner within the
meaning of this section . . . when he is on such property upon the invitation, express or
implied, of the owner.” Thus, to establish he was lawfully on Diaz’s property,
Moorcroft must prove Diaz expressly or impliedly invited Moorcroft to enter his
property. (Civ. Code, § 3342, subd. (a).)
       Moorcroft does not dispute Diaz never expressly invited him to enter his property
to use his trashcans or to enter the area by the gate to Diaz’s backyard. Rather, he
argues Diaz extended an implied invitation to enter his property by placing his trashcans
next to his driveway. According to Moorcroft, once he entered Diaz’s property to use
the trashcans, he lawfully remained on the property by reason of necessity when he
went to the backyard gate to help his dog. We disagree.
       California courts have strictly construed Civil Code section 3342’s requirement
that a plaintiff must be invited onto the dog owner’s property to prevail on a claim for
strict liability. (See Fullerton v. Conan (1948) 87 Cal.App.2d 354, 358; see also
6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1409, p. 833.) Cases
addressing implied invitations under Civil Code section 3342 look to the dog owner’s
conduct and knowledge with respect to the plaintiff’s presence on the owner’s property.
(See e.g., Fullerton, supra, 87 Cal.App.2d at pp. 356-358 [no implied invitation existed
to enter backyard where the child plaintiff was bitten by the owner’s dog when the


                                             10
owner told the plaintiff’s mother to not let her daughter go into the backyard]; Bauman
v. Beaujean (1966) 244 Cal.App.2d 384, 387-388 [no implied invitation existed for the
child plaintiff to enter the backyard where the dog was kept because the dog owner had
never allowed the child to play in the backyard]; Smythe v. Schacht (1949)
93 Cal.App.2d 315, 319-320 [implied invitation existed where the dog owner was aware
that the child plaintiff frequently played on the owner’s property with the owner’s
child].)
       In stipulating to the factual basis for the court’s ruling, Moorcroft conceded that
Diaz was not aware Moorcroft had entered his property to use his trashcans at the time
of the attack. Moorcroft also does not claim Diaz was aware he had entered Diaz’s
property to use the trashcans on prior occasions. Moorcroft has cited no cases, and we
have found none, in which an implied invitation to enter a dog owner’s property exists
where the owner was not aware of the plaintiff’s presence on his property at the time the
owner’s dog attacked the plaintiff, and where the owner was not aware that the plaintiff
had entered his property for the same purpose on prior occasions. It is for good reason
that an implied invitation does not exist in such situations because such a rule would
unreasonably expand a property owner’s liability to, and responsibility for, unknown
and unwanted entrants.
       We decline to apply, as Moorcroft requests, case law holding that a homeowner
has a reduced expectation of privacy under the Fourth Amendment in garbage
containers placed for collection outside the curtilage of the home (see e.g., California v.
Greenwood (1988) 486 U.S. 35, 37, 108 S.Ct. 1625, 100 L.Ed.2d 30) to find an implied
invitation to enter a homeowner’s property exists where the owner has placed his
trashcans on the front of his property. Moorcroft fails to offer any convincing argument
for why such an expansive rule should be created. As such, the trial court properly
found Moorcroft did not lawfully enter Diaz’s property to use Diaz’s trashcans. Again,
Moorcroft had never received Diaz’s permission to enter Diaz’s property for such
a purpose, and the undisputed facts show Diaz was not aware Moorcroft was on his
property at the time of the attack.


                                            11
       We also reject Moorcroft’s argument that he was lawfully on Diaz’s property at
the time of the attack by reason of necessity. Moorcroft cites no authority supporting
his argument that the privilege of necessity renders his initially unlawful entry on Diaz’s
property lawful under Civil Code section 3342. The only cases cited by Moorcroft
apply the privilege of necessity to find warrantless searches reasonable under the Fourth
Amendment or to find a person is not liable for destroying another person’s property
when it is necessary to prevent a public emergency. (See e.g., People v. Parra (1973)
30 Cal.App.3d 729, 731-732 [privilege of necessity made police officer’s search of
defendant’s property lawful under the Fourth Amendment because officer entered
property in response to reported burglary]; People v. Roberts (1956) 47 Cal.2d 374, 377
[police officers’ warrantless entry into apartment was justified because they reasonably
believed someone inside the apartment was in distress and in need of assistance];
Surocco v. Geary (1853) 3 Cal. 69, 72-75 [a defendant is not liable for destroying
another person’s property when it is necessary to prevent the spread of a fire that
threatens nearby structures].) Quite simply, Moorcroft may not rely on the privilege of
necessity because he was trespassing on Diaz’s property before his dog strayed to
Diaz’s backyard gate and was attacked. (See Parra, supra, 30 Cal.App.3d at p. 733 [to
rely on the privilege of necessity, the initial trespass must be “prompted by the motive
of preserving life or property”].) Put another way, it was Moorcroft’s trespass, and not
any lawful activity, that created the need for Moorcroft to enter the area of Diaz’s
property where he was attacked by Diaz’s dog. Accordingly, the trial court did not err
in finding Moorcroft could not prevail on a claim for strict liability under Civil Code
section 3342.




                                            12
                                      DISPOSITION
       The judgment is affirmed. Diaz’s cross-appeal is dismissed as moot. Each party
shall bear his own costs on appeal.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                                    LAVIN, J.

WE CONCUR:




       ALDRICH, Acting P. J.




                 *
       JONES, J.




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.



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