C.S. v. Gentry

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C.S., a Minor, etc. Plaintiff and Appellant, v. KAREN GENTRY, Defendant and Respondent.

D079741

California Court of Appeals, Fourth District, First Division

May 16, 2023

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No. 37-2019-00005115-CU-PO-CTL Kenneth J. Medel, Judge. Affirmed.

Kirby &Kirby, Michael L. Kirby, Jason M. Kirby, and Heather W Schallhorn for Plaintiff and Appellant.

Bonnie R. Moss &Associates; Karen D. Wood &Associates, and Elizabeth MacKinnon for Defendant and Respondent.

McCONNELL, P. J.

I INTRODUCTION

This negligence lawsuit arises out of an incident in which a seven-year-old minor, appellant C.S., was bitten and seriously injured by a pet dog on a public beach. C.S., acting by and through his guardian ad litem, sued the owner of the dog as well as respondent Karen Gentry, who accompanied the dog owner and her pet dog to the beach where the incident occurred. The trial court granted Gentry's motion for summary judgment, finding she owed no legal duty of care to C.S. We agree with the trial court. Therefore, we affirm the judgment in favor of Gentry.

II BACKGROUND

A. Factual Background

In May 2018, Nada Hamouda, an adult, adopted a two- or three-year-old dog named Gunnie from an animal shelter in Michigan where she lived. Gunnie was a type of a pit bull called American Bully. About two or three months after the adoption, Hamouda travelled with Gunnie to San Diego so she could enroll in a medical treatment program in the area.

At the time, Gentry was dating Hamouda's father and the two of them lived together in Gentry's home in Poway. After Hamouda came to San Diego, she and Gunnie stayed with her father and Gentry in Gentry's home. During their stay, Hamouda walked, fed, and cared for Gunnie. Gentry never walked Gunnie, fed him, or took him to the veterinarian.

The dog bite forming the basis of this action occurred five weeks after Hamouda and Gunnie came to San Diego. That day, Hamouda, Hamouda's father, Gentry, and a friend drove with Gunnie to a public beach in Hamouda's father's car. While they were at the beach, Gunnie was kept on a leash, though he was not muzzled. Gunnie sat on or near the group's beach blanket and laid underneath a beach umbrella. Hamouda also walked Gunnie and played with him near the water.

Another group of beachgoers sat 20 or 30 feet away from them. The group included seven-year-old C.S., C.S.'s father, C.S.'s sibling, and two other adults. C.S. played with toys and went back and forth between the water and the group's beach blanket. According to Hamouda and Gentry, C.S. also approached Gunnie several times over the course of the afternoon, which scared Gunnie and caused him to shake and hide from the child. Hamouda and Gentry claimed they repeatedly warned C.S. to stay away to avoid scaring Gunnie, but C.S. kept coming close to them.

At some point in the afternoon, Gentry and Hamouda's father went on a walk while Hamouda stayed behind with Gunnie. About one or two hours later, while Gentry and Hamouda's father were still on their beach walk, Gunnie bit C.S. on his arm. C.S. received prompt medical attention, but the bite wound on his arm was serious and required more than a dozen stitches.

Hamouda's father drove his companions and Gunnie back to Gentry's home where Gunnie was placed on bite quarantine for 10 days. Soon after, the San Diego Humane Society issued a letter of intent to declare Gunnie a dangerous dog within the meaning of San Diego County Code section 62.602. A dangerous dog declaration requires the owner to euthanize the dog or comply with various mandates including microchipping the dog, displaying warning signs at the owner's residence, muzzling the dog while in public, and carrying tens of thousands of dollars in home liability insurance. Hamouda elected to have Gunnie euthanized. Gunnie was put down and Hamouda left Gentry's home a few days later.

B. Procedural Background

C.S., by and through his guardian ad litem, filed a complaint against Hamouda and Gentry for ordinary negligence and strict liability (under the common law and Civil Code section 3342). The complaint requested compensatory damages according to proof. Gentry filed an answer generally denying the allegations of the complaint.

After a year of discovery and other pretrial proceedings, Gentry moved for summary judgment or, in the alternative, summary adjudication. She argued she was entitled to dismissal of the ordinary negligence cause of action because she owed no legal duty of care to C.S. In particular, she asserted she did not owe C.S. a duty because she did not own or care for Gunnie, the dog bite occurred at a public beach away from her residence, she was not physically present when the dog bite occurred, and she had no prior knowledge that Gunnie had aggressive or violent tendencies. Similarly, she argued she was not strictly liable for the dog bite because she was not Gunnie's owner, keeper, or custodian.

C.S. filed an opposition arguing Gentry owed him a legal duty of care because every person, in the exercise of his or her activities, has a duty to use reasonable care for the safety of others. He asserted the legal duty of care was not subject to an exception because the kind of harm he suffered was foreseeable and Gentry could have prevented the injury by removing Gunnie from the beach or warning C.S.'s adult companions about the threat Gunnie posed. Finally, C.S. argued Gentry was strictly liable because she possessed and/or controlled Gunnie by permitting Hamouda and Gunnie to stay in her home.

After a hearing, the trial court granted Gentry's motion for summary judgment. With respect to the negligence cause of action, the court reasoned Gentry owed no legal duty of care to C.S. because the undisputed material facts showed Gentry did not own Gunnie, she was unaware Gunnie had violent or dangerous propensities, the dog bite happened on a public beach away from her residence, and she was not physically present when the dog bite occurred. Similarly, the court found C.S. could not prevail on his strict liability cause of action because Gentry did not own or care for Gunnie and she had no knowledge he had violent or dangerous tendencies.

C.S. appeals the ensuing judgment in favor of Gentry and challenges the summary judgment ruling as to the negligence cause of action, but not the strict liability cause of action.^[1]

III DISCUSSION

The question presented in this case is whether a person who accompanies an adult owner of a pet dog and his or her pet dog to a public space (Gentry) owes a legal duty of care to members of the public (C.S.) to take reasonable measures to ensure the dog does not bite or otherwise harm them. The trial court found no such duty exists, and we agree.

A. Summary Judgment Standards

"[G]enerally, from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. ... There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof."

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) A defendant who moves for summary judgment "bears the burden of persuasion that 'one or more elements of' the 'cause of action' in question 'cannot be established,' or that 'there is a complete defense' thereto." (Ibid.)

"[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact ...." (Aguilar, supra, 25 Cal.4th at p. 850.) Where the plaintiff would bear the burden of proof by a preponderance of the evidence at trial, a defendant moving for summary judgment "must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not-otherwise, he [the defendant] would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact." (Id. at p. 851.) If the moving party satisfies the initial burden of production, "he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Id. at p. 850.)

" 'Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion. [Citation.]" 'We review the trial court's decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.'" [Citation.] We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.'" (Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1249-1250.)

B. Gentry Owed No Legal Duty of Care to C.S.

"To establish a cause of action for negligence, the plaintiff must show that the 'defendant had a duty to use due care that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury.' [Citation.] Recovery for negligence depends as a threshold matter on the existence of a legal duty of care. [Citation.] [¶] Duty is not universal; not every defendant owes every plaintiff a duty of care. A duty exists only if' "the plaintiff's interests are entitled to legal protection against the defendant's conduct." '" (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213 (Brown); see...