Opinion
2d Civil No. B224933 Super. Ct. No. 56-2008-00319867-CU-PO-VTA
08-23-2011
JOE HERNANDEZ, Plaintiff and Appellant, v. MARISELA CERVANTES, Defendant and Respondent.
Law Offices of Ball & Yorke, Esther R. Sorkin, for Plaintiff and Appellant. Pollak, Vida & Fisher, Daniel P. Barber, Hamed Amiri Ghaemmaghami and Law Offices of Marsha Munemura, Robert Edgerton, for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Ventura County)
Joe Hernandez appeals from judgment of nonsuit in this negligence action against the keeper of a dog that bit him. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant was bitten by a pit bull while walking his own dog on the fourth of July. Appellant was walking his Scottish terrier in front of respondent's house when the pit bull suddenly appeared and attacked the smaller terrier. Appellant tried to pull the dogs apart. He punched the pit bull in the ribs several times but it did not let go. When he grabbed its snout, it bit him on the hand.
Appellant's wound did not require sutures. He was treated the next day with topical ointment, antibiotics and a tetanus shot. He fell during the incident, and had surgery six months later to repair a torn meniscus. His dog was treated with topical antibiotics.
The pit bull had never attacked a dog or person before. Respondent did not own the dog. She was taking care of it at her house for a week while the owner was out of town. The owner was initially sued, but was not a party at trial.
It appears from the register of actions that appellant had difficulty serving the owner and difficulty obtaining a default judgment.
Respondent's yard included a swimming pool and it was fully fenced with a gate that latched. When she was not home, the dog was tied up. She testified she did this because her house was for sale and her realtor had told her to tie the dog up when she was not home. When the owner first brought the dog to her house he tied it to a tree. Respondent testified that she untied the dog each evening when she was home so it could run loose in the fenced yard. She said it seemed cruel to keep it tied up. When the dog was loose in the evening, the gate was closed.
Respondent rented her master bedroom to a couple. The couple and their guests had access to the yard and the master bedroom through a side gate. On the evening that appellant was bitten, the couple had a visitor, Carlos Diaz. Diaz passed through the gate several times while helping to load a car. He testified that he latched the gate each time he passed through. He was aware that the dog was there. He saw respondent untie the dog for the evening and he saw it playing with her nephew. Diaz testified that the last time he passed through the gate he thought he had latched it, but about 30 seconds later he saw the dog attacking appellant's dog on the sidewalk. Diaz had no previous problems with operation of the latch. He had not been told not to use the gate.
Respondent testified that she knew her tenants used the gate and she knew her tenants would have guests. The gate was self-latching when pulled closed, and there were no problems with it. Before the dog came to stay with her, there had been occasions when she came home and found the gate had not been closed. When the dog came, she told her tenants and her children not to let the dog out of the yard. She told everybody in the house to make sure that the gate was closed. Respondent did not buy a lock for the gate because it was the only exit to the street other than the front door. It would have been inconvenient if she had to look for a key each time the gate was used, and it would have been a "fire hazard." On the evening of the attack, she thought Diaz had "clicked" the gate.
The dog had never escaped from the yard before, and there was no evidence it had escaped from any other yard. Appellant testified that he had seen the gate left open in the past, but he did not place this within the timeframe during which respondent was keeping the dog.
Respondent and Diaz testified that the pit bull was a friendly family pet. There was no evidence to the contrary. Diaz testified that he had seen the dog in the yard before. It jumped up on him but it did so in a friendly manner. Diaz was generally afraid of dogs but had not seen this dog be unfriendly. There was no evidence that anyone had complained about the dog or warned respondent about the dog.
Respondent testified that she had heard that pit bulls could be "aggressive" and "mean, depending on how you treat them." But she knew this dog, her kids had been with it many times, it had been to her home, and she had no reason to think it was dangerous.
Before trial, the court granted respondent's motion for summary adjudication of appellant's causes of action for strict liability and for nuisance because appellant presented no evidence that the dog had any dangerous propensities of which respondent could have been aware. That ruling is not challenged on appeal.
The only remaining cause of action for trial was negligence, which appellant pled on two theories: ordinary negligence and negligence per se based on violation of a Ventura County leash law. (Ventura County Ord. No. 4461.)Appellant did not pursue the negligence per se theory at trial. The parties agree that the Ventura ordinance does not apply because the incident did not occur in unincorporated Ventura County; it occurred in the City of Camarillo. Appellant never sought leave from the trial court to amend his pleading to allege violation of an applicable ordinance.
Appellant's complaint alleged (1) strict liability based on Civil Code section 3342; (2) negligence; (3) negligence per se based on Ventura County Ordinance No. 4461 (a leash law); and (4) public nuisance based on Civil Code section 3479 and Ventura County Ordinance No. 4467.
At the close of appellant's evidence at trial, respondent moved for nonsuit, arguing that she could not be held liable for negligence without evidence that she knew or should have known that the dog had dangerous propensities. The trial court granted the motion. It rejected the contention that evidence of dangerous propensities was essential, but determined that without any other evidence which might have made the escape and attack foreseeable, respondent had no legal duty to take any precautions beyond maintaining the fenced perimeter. The court observed that legal responsibility probably rested upon the dog's owner. Appellant did not move to reopen to cure the defect. Judgment was entered and this appeal followed.
DISCUSSION
A defendant may move for nonsuit after presentation of the plaintiff's evidence. (Code Civ. Proc., § 581c.) A motion for nonsuit must specify the grounds upon which it is made in order to afford the opposing party an opportunity to remedy the defect. (Lawless v. Calaway (1944) 24 Cal.2d 81, 94.) The plaintiff may respond by moving to reopen his case to cure the defect. (R&B Auto Center, Inc. v. Farmers Group, Inc. (2006) 140 Cal.App.4th 327, 340.) If the plaintiff does not move to reopen, he waives the right to do so. (Ibid.)The defendant is entitled to nonsuit if there is not sufficient evidence to support a verdict in favor of the plaintiff, viewing the evidence in the light most favorable to the plaintiff and resolving all presumptions, inferences and doubts in his favor. (Nally v. Grace Community Church of the Valley (1988) 47 Cal.3d 278, 291.) In ruling on the motion, the trial court may not weigh the evidence or consider credibility of witnesses. (Ibid.)
We review an order granting nonsuit de novo. (Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC (2010) 185 Cal.App.4th 1050, 1060.) We affirm only if judgment for the respondent is required as a matter of law, viewing the evidence in the light most favorable to appellant. (Nally v. Grace Community Church of the Valley, supra, 47 Cal.3d at p. 291.) We can affirm a judgment of nonsuit based only on grounds specified in the underlying motion or based on a defect that is incurable. (Loral Corp. v. Moyes (1985) 174 Cal.App.3d 268, 273.) The motion for nonsuit was granted on a ground other than the ground upon which it was made, but the defect is incurable.
Respondent moved orally for nonsuit on the ground that a keeper of a dog cannot be held liable for negligence without proof of knowledge of a dangerous propensity. This is not accurate. A person who keeps, but does not own, a dog may be held liable for ordinary negligence upon proof that the dog posed a reasonably foreseeable risk of harm to others and the keeper failed to exercise ordinary care to avert that risk. (Salinas v. Martin (2008) 166 Cal.App.4th 404, 411, 416; see also Drake v. Dean (1993) 15 Cal.App.4th 915, 931.) The trial court granted nonsuit on the ground that respondent could not be held liable for negligence because the escape and attack were unforeseeable. We agree with this analysis, as discussed below.
A person who keeps (but does not own) a dog may he held (1) strictly liable for injuries inflicted by the dog upon proof of knowledge of dangerous propensities, or (2) liable for ordinary negligence upon proof that the dog posed a reasonably foreseeable risk of harm to others and the keeper failed to exercise ordinary care to avert that risk. (Salinas v. Martin, supra, 166 Cal.App.4th at p. 411; see also Drake v Dean, supra, 15 Cal.App.4th at p. 931.) The existence and scope of a legal duty is an expression of policy considerations providing legal protection and is therefore a question of law for the court's resolution. (Shin v. Ahn (2007) 42 Cal.4th 482, 488.) Whether a dog's keeper has a duty to take preventive measures is determined by the court under the totality of the circumstances, balancing considerations that include foreseeability of harm to the plaintiff; the degree of certainty of injury; the connection between the keeper's conduct and the injury suffered; the moral blame attributable to the defendant's conduct; the policy of preventing future harm; the extent of the burden on the defendant and consequences to the community or imposing a duty with resulting liability; and the availability, cost and prevalence of insurance for the risk involved. (Rowland v. Christianson (1968) 69 Cal.2d 108; Salinas v. Martin, supra, 166 Cal.App.4th at p. 412.) The most critical factors are foreseeability and burden. (Ibid.)
Statutory strict bite liability applies only to owners of dogs. (Civ. Code, § 3342.) It applies regardless of prior viciousness. (Ibid.)
Appellant did not present sufficient evidence of a foreseeable risk of harm to prevail on his ordinary negligence theory. The dog had never escaped before, the yard was fenced, and the dog had only been friendly in the past. Respondent had warned her tenants and her children to keep the dog in the yard and to close the gate. Although she had not warned Diaz directly, Diaz testified that he knew the dog was there and that he intended to latch the gate. He thought that he had latched it. Similarly, respondent testified that she thought Diaz had "clicked" the gate. There was no evidence of any prior aggression. The dog had previously jumped on Diaz, but nothing contradicted his testimony that it did so in a friendly manner. The dog did not jump on appellant during the attack; it attacked his dog and then bit him when he tried to separate the dogs. The dog was a pit bull, but appellant adduced no evidence concerning the characteristics of that breed and, even if he had, evidence of the characteristics of a particular breed is not sufficient, alone, to support an inference that a particular dog is dangerous. (Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1371-1372.)
We recognize that it is possible for a dog's keeper to incur liability for negligence where the dog has never attacked before, if the risk of harm is foreseeable and outweighs the burden of preventive measures. (Salinas v. Martin, supra, 166 Cal.App.4th at p. 411.) In Salinas, defendant allowed guests to keep an unleashed pit bull on her property to guard their van. Her residence was under construction, and she knew that workers would be coming and going unannounced. Her contractor complained to her that the dog looked ferocious and would attack someone if allowed to run loose on the jobsite. She continued to allow the dog to run loose and it attacked a worker. The trial court granted summary judgment on the worker's negligence cause of action because the dog had never attacked anyone before. The court of appeal reversed, because the risk of harm to the worker was foreseeable in the circumstances and the burden of tying up the dog or requiring it to be kept in the van would have been slight.
Similarly, in Drake v Dean, supra, 15 Cal.App.4th at pp. 931-932, it was prejudicial error not to instruct the jury on negligence in a case against the owner of a pit bull even though the dog did not have a particular vicious or dangerous propensity. (Id. at p. 931.) In Drake, the dog did not bite the plaintiff but it jumped up on her, knocking her down, and she broke her hip. The incident occurred in the owner's driveway, where the dog was kept on a long leash. The dog had a habit of jumping up on people, and had previously displayed aggression by barking at a visitor, preventing him from walking up the driveway. In the circumstances, a reasonable jury could have drawn an inference that the risk of harm to the plaintiff was foreseeable. (Ibid.)
Here, the risk of harm to appellant was not foreseeable. He was not on respondent's property, her property was fenced, and there was no evidence the dog had ever escaped or been aggressive before. No one had complained about the dog and it was not used as a guard dog. In the circumstances, we agree with the trial court that it would be unreasonable as a matter of law to impose upon respondent the burden of taking preventive measures beyond maintaining a fenced perimeter.
Appellant contends, for the first time on appeal, that respondent had a duty imposed by a Camarillo City ordinance not to allow the dog "to be at large without reasonable control." (Camarillo Ord. No. 7.20.020.) This theory was neither pled nor proved in the trial court. Appellant did not move to reopen his case in response to the motion for nonsuit. He must adhere on appeal to the theory upon which he tried his case. (Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 874.) "A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant." (Ibid.)
DISPOSITION
The judgment is affirmed. Respondent is awarded her costs on appeal. NOT TO BE PUBLISHED.
COFFEE, J. We concur:
YEGAN, Acting P.J.
PERREN, J.
Thomas Hutchins, Judge
Superior Court County of Ventura
Law Offices of Ball & Yorke, Esther R. Sorkin, for Plaintiff and Appellant.
Pollak, Vida & Fisher, Daniel P. Barber, Hamed Amiri Ghaemmaghami and Law Offices of Marsha Munemura, Robert Edgerton, for Defendant and Respondent.