Opinion
23-cv-02269-SVK
03-22-2024
MELISSA LIN SILVA, Plaintiff, v. CITY OF SANTA CLARA, et al., Defendants.
ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT RE: DKT. NO. 34
SUSAN VAN KEULEN United States Magistrate Judge.
While on public property, a K-9 officer owned by Defendant City of Santa Clara (the “City”) bit Plaintiff Melissa Lin Silva, injuring her in the process. The Parties do not dispute these facts, and on these facts, Plaintiff requests that the Court grant her partial summary judgment and hold the City strictly liable for her injuries. See Dkt. 34 (the “Motion”). The City opposes the Motion. See Dkt. 36 (the “Opposition”). Plaintiff filed a reply. See Dkt. 38. The Parties appeared before the Court for a hearing on the Motion on March 12, 2024. See Dkt. 43 (“Hr'g Tr.”). All necessary Parties-Plaintiff and named Defendants-have consented to the jurisdiction of a magistrate judge. See Dkts. 6, 9, 40. After considering the Parties' briefing and relevant law, after hearing oral argument and for the reasons set forth below, the Court GRANTS the Motion.
In addition to named Defendants, Plaintiff also sued 50 Doe defendants. See Dkt. 19 ¶ 8. These Doe defendants are not “parties” for purposes of assessing whether there is complete consent to magistrate-judge jurisdiction. See Williams v. King, 875 F.3d 500, 502-505 (9th Cir. 2017) (magistrate-judge jurisdiction vests only after all named parties, whether served or unserved, consent); RingCentral, Inc. v. Nextiva, Inc., No. 19-cv-02626-NC, 2020 WL 978667, at *1 n.1 (N.D. Cal. Feb. 28, 2020) (Williams does not require consent of unnamed Doe defendants).
I. BACKGROUND
The Parties do not dispute the following facts. On July 9, 2022, at around 4:00 p.m., Defendant Kevin McColloch, a police officer employed by the City, was engaged in training exercises with Tank, a K-9 officer owned by the City, in the Santa Clara Youth Soccer Park. See Motion at 1-2, 9; Dkts. 34-6 at 3, 36-2 ¶¶ 3-4, 8. At around that time, Plaintiff, while walking her dog, entered the park. See Dkts. 34-1 ¶¶ 2-4, 36-2 ¶ 8. Upon Plaintiff's entering the park, Defendant McColloch yelled at her to leave. See Motion at 2; Dkt. 36-2 ¶ 8. Almost immediately thereafter, the K-9 officer and Plaintiff's dog reached a close proximity and began fighting. See Dkts. 34-1 ¶ 5, 36-2 ¶¶ 8-9. During the scuffle, Plaintiff, her dog, Defendant McColloch and the K-9 officer ended up outside the park and on the street or sidewalk near Defendant McColloch's truck. See Dkts. 34-1 ¶ 6, 36-2 ¶ 9; see also Dkt. 34-3 (image depicting approximate location of truck outside soccer park at time of incident). The K-9 officer then bit Plaintiff in the arm, causing her physical injuries. See Motion at 3; Opposition at 4. Plaintiff subsequently commenced this action against the City and Defendant McColloch to recover for her injuries. See Dkts. 1, 19.
II. LEGAL STANDARD
A party may move for summary judgment on any claim or defense or for partial summary judgment on part of any claim or defense. See Fed.R.Civ.P. 56(a). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Id. Material facts are those “that might affect the outcome of the suit under the governing law.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” See Id. Thus, the “purpose of summary judgment is to ‘pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial,'” and where “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted)).
The moving party
always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Further, where the moving party would bear the burden of persuasion at trial (e.g., where the moving party seeks summary judgment on its own claim or defense), the moving party must establish “beyond controversy every essential element of its” claim or defense. See S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003) (citation omitted). If the moving party meets its burden, the burden then shifts to the non-moving party to “demonstrat[e that] the evidence, taken as a whole, could lead a rational trier of fact to find in its favor.” See Id. (citation omitted).
Where the moving party would not bear the burden of persuasion at trial (e.g., where the moving party seeks summary judgment on the non-moving party's claim or defense), the moving party
has both the initial burden of production and the ultimate burden of persuasion . . . . In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. In order to carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact.Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000) (citations omitted). If the moving party meets its burden, “the nonmoving party must produce evidence to support its claim or defense [sufficient] . . . to create a genuine issue of material fact.” See Id. at 1103 (citations omitted).
In evaluating a motion for summary judgment, “[t]he court must view the evidence in the light most favorable to the nonmovant and draw all reasonable inferences in the nonmovant's favor.” City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 2014) (citation omitted). But even under this favorable standard, “the non-moving party must come forward with more than ‘the mere existence of a scintilla of evidence.'” Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006) (citation omitted).
III. DISCUSSION
Plaintiff moves for partial summary judgment on one narrow issue: Whether Section 3342 of the California Civil Code imposes strict liability on the City. See Motion at 1, 9. The Court holds that it does.
A. The Court Denies The City's Evidentiary Objections As Moot
As an initial matter, the Court addresses the City's evidentiary objections. The City objects to Plaintiff's submission of two pieces of evidence in connection with the Motion: (1) an aerial photograph purporting to show the location of Defendant McColloch's truck at the time of the incident and (2) legislative history for the 1988 amendment to Section 3342. See Dkts. 34-4, 34-8, 36-4. With respect to the aerial photograph, the Court does not rely on that submission in this Order. With respect to the legislative history of the 1988 amendment, the Court has independently obtained its own copy of that legislative history, which the Court sua sponte judicially notices and appends to this Order as Appendix A. The Court therefore DENIES the City's objections as moot.
B. The City Is Strictly Liable For Plaintiff's Injuries
Under Section 3342 of the California Civil Code, “[t]he owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place . . . .” Cal. Civ. Code § 3342(a). Subsection (a) of the statute imposes strict liability on a defendant (see Priebe v. Nelson, 39 Cal.4th 1112, 1116 (2006)) where a plaintiff satisfies its four elements: (1) the defendant owned a dog; (2) that dog bit the plaintiff; (3) at the time of the bite, the plaintiff was on public property or lawfully on private property; and (4) the plaintiff suffered an injury as a result of the bite. Here, Plaintiff carries its burden of satisfying these elements, and the City fails to show the existence of a genuine dispute of material fact that defeats Plaintiff's showing.
Element (1): The City Owned The K-9 Officer. The City's discovery responses establish that it purchased the K-9 officer in 2018, and the City does not dispute that it owned the K-9 officer at the time of the incident. See Dkt. 34-6 at 3; Hr'g Tr. at 1:19-2:10.
Element (2): The K-9 Officer Bit Plaintiff. Plaintiff and the City agree that the K-9 officer bit Plaintiff. See Motion at 3; Opposition at 4; Hr'g Tr. at 1:19-2:10.
Element (3): Plaintiff Was On Public Property When The K-9 Officer Bit Her. Plaintiff and the City agree that the K-9 officer bit Plaintiff outside the soccer park near Defendant McColloch's truck. See Dkts. 34-1 ¶¶ 6-7, 36-2 ¶ 9. Plaintiff also appends to the Motion a photograph showing the approximate location of the truck on the day of the incident as outside the park. See Dkt 34-3. The City does not object to Plaintiff's inclusion of this photograph in the Motion or dispute that the photograph provides an accurate approximation of the location of the truck on the day of the incident. The City also does not dispute that the bite occurred on public property. See Hr'g Tr. at 1:19-2:10.
As discussed above, the City does object to Plaintiff's submission of an aerial photograph purporting to show the location of Defendant McColloch's truck at the time of the incident, but it does not object to Plaintiff's submission of this other photograph, which Plaintiff's counsel represents the City produced in discovery. See Dkts. 34-3, 34-9 ¶ 4.
Element (4): Plaintiff Suffered An Injury As A Result Of The Bite. Plaintiff and the City agree that the K-9 officer injured Plaintiff when it bit her. See Motion at 3; Opposition at 4; Hr'g Tr. at 1:19-2:10.
Thus, the four elements of subsection(a) are met, and the statute imposes strict liability on the City.
C. The City Is Not Immune From Liability
In addition to imposing strict liability on the conditions discussed above under subsection (a), the statute, under subsection (b), immunizes government entities like the City from liability where the government entity “us[ed] a dog in military or police work” under certain circumstances. See Cal. Civ. Code § 3342(b). The City argues that a genuine dispute of fact exists regarding whether those circumstances were met, and thus, granting summary judgment on the question of liability is inappropriate. Specifically, the City points to questions of fact as to whether (1) the K-9 officer “was on duty at the time of the incident,” (2) “the bite occurred when the [K-9 officer] was attacked by plaintiff,” (3) the K-9 officer was defending Defendant McColloch, (4) the K-9 officer or Plaintiff's dog “initiated the fight” and (5) “Plaintiff was a participant in the acts that followed [her entering the soccer park] whereby the [K-9 officer] was provoked by her trespass and the dog fight.” See Opposition at 6-8.
However, under subsection (c), the statute further provides that the immunity provision of subsection (b) does not apply “where the victim of the bite or bites was not a party to, nor a participant in, nor suspected to be a party to or a participant in, the act or acts that prompted the use of the dog in the military or police work” contemplated under subsection (b). See Cal. Civ. Code § 3342(c) (emphasis added). In other words, if the victim of the dog bite did not in any way cause the government entity to bring the dog “out in the field” in the first place, the statute's immunity provision does not apply. See also Appendix A at Letter from Assemblyman O'Connell to Governor Deukmejian (July 5, 1988) (“The immunity from liability does not apply, however, if the victim was not a part of the conduct for which the dog was being used.”); Farnam v. State of California, 84 Cal.App.4th 1448, 1460 (4th Dist. Div. 3 2000) (Bedsworth, J., dissenting) (“[T]he Legislature has made clear it intends police agencies to escape liability for their dogs' bites only when the person bitten is the suspected wrongdoer.”).
Here, the City explains (and Plaintiff does not dispute) that Defendant McColloch brought the K-9 officer to the soccer park to engage in training exercises. See Opposition at 2-3; Hr'g Tr. at 2:11-17. Thus, for purposes of subsections (b) and (c), Defendant McColloch engaged the K-9 officer in the “police work” of training, and the undisputed facts demonstrate that Plaintiff in no way “prompted” this police work. See also Hr'g Tr. at 7:17-8:15. As a result, and as required by subsection (c), the immunity afforded under subsection (b) does not apply.
The existence of a written policy obligating the City's police officers to continuously train K-9 officers bolsters the conclusion that such training constitutes “police work” under the statute. See Opposition at 2 (describing written policy); Cal. Civ. Code § 3342(d) (immunity applies only where written policy exists regarding “police work” in question); Castenada v. City of Napa, Cal., No. 95-cv-04094-MHP, 1996 WL 241818, at *11 (N.D. Cal. May 3, 1996) (“It is clear from the language of the statute that section 3342(b) applies to use of dogs in police work when the government agency has adopted a written policy on their use.”).
D. As A Matter Of Law, Plaintiff's Purported Assumption Of Risk And Comparative Negligence Do Not Absolve The City Of Liability
The City argues that Plaintiff assumed the risk of the K-9 officer biting her and that she was comparatively negligent in causing her injuries. See Opposition at 9. As a threshold matter, it is not clear why the City raises this argument. As far as the Court can discern from the Opposition, the City believes that Plaintiff's role in causing her injuries creates a genuine dispute of fact regarding whether she prompted the K-9 officer to attack her. See Id. (“As such, a question of fact exists as to whether Plaintiff's trespass and conduct was a substantial factor in provoking the [K-9 officer] and causing the unintended bite.”). But as discussed above, Plaintiff indisputably did not prompt Defendant McColloch to engage the K-9 officer in training, which constitutes the relevant “police work” for purposes of evaluating the City's defense of statutory immunity.
To the extent the City argues (and it does not do so expressly in the Opposition) that Plaintiff's assumption of risk and comparative fault serve as per se bars to liability, the Court rejects that conclusion-nearly 50 years ago, the California Supreme Court abrogated the complete bar to recovery imposed by a plaintiff's share in the blame for an injury stemming from a defendant's negligence (known as contributory negligence). See Li v. Yellow Cab Co., 13 Cal.3d 804, 828-29 (1975). Notably, the only authority the City cites that could support this argument, Gomes v. Byrne, 51 Cal. 2d 418 (1959), predates Li.
The City also argued during the hearing on the Motion that a dispute of fact exists concerning whether Plaintiff's actions were “part of the cause of the event or the cause of the sequence of events where” Plaintiff, Defendant McColloch and the two dogs “ended up outside” the park, which “goes to finding . . . some sort of a substantial factor . . . causing this incident.” See Hr'g Tr. at 8:17-11:8. To the extent this discussion constitutes an argument that a question of fact exists regarding whether Plaintiff's conduct served as a superseding cause sufficient to defeat a finding of liability at the summary-judgment stage, the Court declines to consider that argument; neither during the hearing nor in the Opposition did the City expressly discuss a superseding-causation argument. See Cobarrubia v. Edwards, No. 19-cv-07899-KAW, 2021 WL 4846948, at *2 (N.D. Cal. June 4, 2021) (“[T]he court need not consider arguments made for the first time at hearing.” (citations omitted)); Obeso v. Nat'l R.R. Passenger Corp., No. 23-cv-02793-SVK, 2023 WL 6278880, at *7 n.6 (N.D. Cal. Sept. 25, 2023) (“The Court trusts litigants to marshal forth their strongest arguments and evidence and will consider only those arguments and evidence presented.”).
Regardless of the City's intention in broaching an argument about Plaintiff's apparent assumption of risk or comparative negligence, a brief evaluation of the two doctrines confirms that neither defeats the Court's grant of partial summary judgment on the issue of the City's strict liability. Under California law, assumption of risk comes in two flavors: primary and secondary. See Gregory v. Cott, 59 Cal.4th 996, 1001 (2014). Primary assumption of risk applies where the defendant owed no duty to the plaintiff and serves as a total bar to recovery; however, the doctrine generally does not apply to claims brought under Section 3342. See Davis v. Gaschler, 11 Cal.App.4th 1392, 1397-99 (3d Dist. 1992); see also Priebe, 39 Cal.4th at 1128 (“We have shown that subdivision (a) of section 3342 has been held to impose a duty of care on every dog owner to prevent his or her dog from biting persons in a public place or lawfully in a private place . . . .” (citation omitted)). Thus, only secondary assumption of risk could apply to Plaintiff's Section 3342 claim. Under secondary assumption of risk, “the doctrine is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.” See Gaschler, 11 Cal App. 4th at 1398 (emphasis added) (citation omitted). Therefore, the degree to which a plaintiff assumed the risk or is comparatively negligent serves only to limit their recovery and does not present a per se bar to recovery. See Shin v. Ahn, 42 Cal.4th 482, 498-99 (2007); Aeros Aeronautical Sys. Corp. v. United States, No. 15-cv-01712-PSG, 2016 WL 10516020, at *9 (C.D. Cal. June 20, 2016) (“[C]omparative fault relates to damages, not liability.” (citation omitted)).
The Court is aware of only one exception-primary assumption of risk bars recovery under Section 3342 where “the defendant is impliedly relieved of any duty of care by the plaintiff's acceptance of employment involving a known risk or danger” (e.g., where the plaintiff is a veterinary assistant). See Nelson v. Hall, 165 Cal.App.3d 709, 714 (3d Dist. 1985) (citations omitted).
Accordingly, the City's invocation of assumption of risk and comparative negligence bears no fruit on this Motion; the Court need not determine whether Plaintiff engaged in a secondary assumption of risk or was comparatively at fault for her injury because such analysis would not implicate the City's strict liability for Plaintiff's injuries.
E. Whether Plaintiff Trespassed Onto The Soccer Park Is Irrelevant At This Stage Of The Proceedings
The City also argues that the Court cannot resolve the issue of its potential strict liability under Section 3342 at the summary-judgment stage because a genuine dispute of material fact exists regarding whether Plaintiff trespassed onto the soccer park before the K-9 officer bit her. See Opposition at 5-6. But whether Plaintiff trespassed onto the park before the K-9 officer bit her is irrelevant-the K-9 officer bit her while she was on public property (a fact the Parties do not dispute), and Section 3342 asks for the location of a plaintiff at only the time of the bite. See Cal. Civ. Code § 3342(a) (“The owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place . . . .” (emphasis added)); see also California Civil Jury Instructions (BAJI) § 6.67 (instructing jury that “essential elements” of Section 3342 claim include whether “[t]he plaintiff, at the time of the bite was in a public place or lawfully in or on a private place” (emphasis added)); Judicial Council of California Civil Jury Instruction (CACI) 463 (instructing jury that “Essential Factual Elements” of Section 3342 claim include whether “the dog bit [the plaintiff] while [the plaintiff] was in a public place or lawfully on private property” (emphasis added)).
The City opposes this conclusion, arguing that “[w]here the bite occurred is irrelevant because it was precipitated by Plaintiff's trespass and negligence” and that “the totality of the incident occurred because Plaintiff trespassed onto City property that was not open to the public.” Opposition at 5. But the City cites no authority indicating that the Court should consider a plaintiff's potential trespass before a bite occurred where the bite subsequently occurred on public property. For better or worse, Section 3342 does not contemplate an analysis of the location of a dog's initial “provocation.” Instead, the statute unambiguously concerns itself with the location of a plaintiff at only the time of the bite. See also Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 (1999) (“As in any case of statutory construction, our analysis begins with ‘the language of the statute.' And where the statutory language provides a clear answer, it ends there as well.” (emphasis added) (citations omitted)); People v. Harrison, 57 Cal.4th 1211, 1221 (2013) (“When the language of a statute is clear, we need go no further.” (citations omitted)). The Court has also not found any authority supporting the City's position or any authority addressing a situation where a plaintiff “provoked” a dog while trespassing but ultimately escaped to public property before being bitten.
The Court recognizes that such strict adherence to the language of Section 3342 could foster unintended or even seemingly inequitable consequences. For example, under the Court's interpretation, if a plaintiff broke into a defendant's home as part of a burglary, happened upon the defendant's guard dog and then escaped onto a public street before the dog bit them, the defendant would be strictly liable. However, the seeming unfairness of this result would be tempered by the plaintiffs comparative fault in causing their own injury, which would significantly reduce (if not completely eliminate) any damages owed by the defendant. Thus, to the extent the City urges the Court to factor Plaintiffs purported trespass into its analysis, the Court's rejection of that argument today is without prejudice to the City raising it in a later stage of the litigation concerning damages.
The Court expresses no opinion in this Order regarding whether Plaintiff (1) trespassed or assumed the risk of injury when she entered the soccer park or (2) is comparatively at fault for her injuries.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS the Motion and holds the City strictly liable for Plaintiffs injuries under Section 3342 of the California Civil Code.
SO ORDERED.