Filed 12/17/20 Woodard v. City of Los Angeles CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

BEVERLY WOODARD,

Plaintiff and Appellant,

v.

CITY OF LOS ANGELES,

Defendant and Respondent.

 B300208

 (Los Angeles County

 Super. Ct. No. BC684557)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Christopher K. Lui, Judge. Affirmed.

Sadara DeVonne for Plaintiff and Appellant. 

Michael N. Feuer, City Attorney, Kathleen A. Kenealy, 

Chief Asst. City Attorney, Scott Marcus, Senior Assistant City 

Attorney, Blithe S. Bock, Managing Assistant City Attorney and 

Sara Ugaz, Deputy City Attorney for Defendant and Respondent.

__________________
2

Beverly Woodard appeals the judgment entered after the 

trial court granted summary judgment in favor of the City of 

Los Angeles in her action for negligence. Woodard contends the 

court erred in ruling the City and its employees in the animal 

control division owed no duty to protect her from her neighbors’ 

dog. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

1. Woodard’s Complaint

In February 2017 Woodard noticed two dogs owned by her 

neighbors Gerardo Lopez and Lucia Reyes digging a hole 

underneath the fence separating their adjoining properties. 

Believing the dogs were going to enter her yard, Woodard 

grabbed a piece of wood and used it to try to close the hole. As 

Woodard attempted to do this, one of the dogs poked his head 

through, grabbed her hand and bit off part of her finger. 

Woodard sued the City, Lopez and Reyes in a form 

complaint asserting a single cause of action for negligence.1 As to 

the City, Woodard alleged she had contacted its animal control 

division on numerous occasions over the years to complain about 

the neighbors’ dogs and the City “failed or neglected to take 

appropriate measures to safeguard” her. 

2. The City’s Motion for Summary Judgment 

The City moved for summary judgment, arguing it was 

immune from liability for ordinary negligence under the 

Government Claims Act. As for its potential vicarious liability 

for the acts of its employees, the City contended the animal 

control officers owed no duty to protect Woodard from her 

1 Woodard settled her action with Lopez and Reyes prior to 

trial. 
3

neighbors’ dogs and, even if they did, they were immune from 

liability for their discretionary acts under the Government 

Claims Act. 

In support of its motion the City documented the 

four occasions on which Woodard had contacted animal control 

over the years. In October 2012 Woodard made a “dangerous 

animal” complaint. In July 2014 she reported one of Reyes and 

Lopez’s dogs had escaped and charged her front door, preventing 

her from leaving her home. In August 2014 she reported a stray 

dog. According to the City’s records, the first two claims were 

investigated and closed after speaking with the dogs’ owners. 

The August 2014 complaint was closed after neither the stray dog 

nor its owner could be located. The final call, in February 2017, 

was made after the dog bite that is the subject of this case. 

Chimeng Vang, an animal control officer employed by the 

City’s Department of Animal Services, stated in his supporting 

declaration that his job as an animal control officer required him 

to “pick up sick, injured and stray, vicious or unwanted animals” 

and investigate claims. According to Vang, in deciding whether 

to impound a dog, the animal control officer considers whether 

(1) the dog has injured a person or animal and, if so, the severity 

of the injury; (2) the dog is a danger to the public; and (3) the dog 

can be adequately confined on its owner’s property, a 

determination made after inspecting the property or obtaining 

the owner’s assurances the dog will be kept inside. “The decision 

to impound or not to impound a dog is left to the sole discretion of 

the investigating Animal Control Officer.”2 

2 Vang was the officer who responded to the dog attack on 

Woodard in February 2017. He was not involved in responding to 

her prior calls. 
4

In her opposition papers Woodard argued the City was 

vicariously liable for the negligence of its animal control 

employees. Those City employees, she asserted, had a duty of 

due care to Woodard because they “caused [Woodard] to believe 

that it was their jobs to protect and serve the public at large 

against injury and damage which could be caused by potential 

vicious dogs lurking in the neighborhood and particularly, in this 

case, next door to [Woodard] who has made several reports to 

them that she had been threatened by aggressive dogs right next 

door to her, that had made several attempts to attack her.” 

Woodard provided declarations from neighbors attesting they 

were fearful of the dogs because they had escaped their owners’

yard on prior occasions and seemed menacing. Despite the 

obvious danger presented, Woodard argued, the animal control 

officers did nothing to reduce the threat posed by these dogs. 

The court granted the City’s motion. Confirming Woodard’s 

negligence claim against the City was based solely on a theory of 

vicarious liability, as Woodard had pleaded, the court ruled the 

City’s employees owed no duty to Woodard. The court explained 

the City had presented evidence that no employee had 

represented or otherwise induced Woodard to believe that the 

officer, or the City, would or could protect her from her neighbors’ 

dogs, and Woodard’s opposition failed to provide any evidence 

establishing such a special relationship existed. Unless the 

animal control officers had created or increased the peril to 

Woodard or induced her reliance on them to ameliorate the 

danger, the court ruled, no special relationship existed giving rise 

to a duty to protect Woodard from her neighbors’ dogs. The court 

did not address the City’s defense of immunity for the 
5

discretionary acts of its employees, concluding the issue was moot 

in light of its ruling on the question of duty. 

DISCUSSION

1. Standard of Review

A motion for summary judgment is properly granted only 

when “all the papers submitted show that there is no triable 

issue as to any material fact and that the moving party is entitled 

to a judgment as a matter of law.” (Code Civ. Proc., § 437c, 

subd. (c); see Regents of University of California v. Superior Court

(2018) 4 Cal.5th 607, 618 (Regents).) A defendant may bring a 

motion on the ground the plaintiff cannot prove one of the 

required elements of the case or there is a complete defense to the 

action. (Code Civ. Proc., § 437c, subds. (o)(1), (2) & (p)(2); Aguilar 

v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.)

To carry its initial burden when the motion is directed to 

the plaintiff’s case rather than an affirmative defense, a 

defendant must present evidence that either “conclusively

negate[s] an element of the plaintiff’s cause of action” or “show[s]

that the plaintiff does not possess, and cannot reasonably obtain,”

evidence necessary to establish at least one element of the cause

of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at

pp. 853-854.) Only after the defendant carries that initial burden

does the burden shift to the plaintiff “to show that a triable issue

of one or more material facts exists as to the cause of action or a

defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

We review a grant of summary judgment de novo and, 

viewing the evidence in the light most favorable to the 

nonmoving party (Regents, supra, 4 Cal.5th at p. 618), decide 

independently whether the facts not subject to triable dispute 

warrant judgment for the moving party as a matter of law. 
6

(Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347; 

Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 618.) 

2. Governing Law 

Under the Government Claims Act a public entity may not 

be held directly liable for torts “[e]xcept as otherwise provided by 

statute.” (Gov. Code, § 815; see State ex rel. Dept. of California 

Highway Patrol v. Superior Court (2015) 60 Cal.4th 1002, 1009

[“[i]f the Legislature has not created a statutory basis for it, there 

is no government tort liability”].) A public entity may be held 

vicariously liable for injuries proximately caused by an act or 

omission of its employee within the scope of employment only 

when “the act or omission would, apart from this section, have 

given rise to a cause of action against that employee.” (Gov. 

Code, § 815.2, subd. (a).) 

Except as otherwise provided by statute, public employees

are liable for their torts “to the same extent” as private persons. 

(Gov. Code, § 820, subd. (a); State ex rel. Dept. of California 

Highway Patrol v. Superior Court, supra, 60 Cal.4th at p. 1009; 

see Yee v. Superior Court (2019) 31 Cal.App.5th 26, 39-40.) A 

public employee is statutorily immune from liability for 

discretionary acts within the course and scope of employment, 

even when that discretion has been abused. (Gov. Code, § 820.2.) 

3. The Trial Court Did Not Err in Granting the City’s 

Motion for Summary Judgment

Woodard contends the court erred in ruling as a matter of 

law the animal control officers did not owe her a duty of care. 

(See generally Regents, supra, 4 Cal.5th at p. 618 [to prevail on a 

cause of action for negligence, a plaintiff must demonstrate a 

legal duty to use due care, breach of that duty, causation and 
7

damages]; Vasilenko v. Grace Family Church (2017) 3 Cal.5th 

1077, 1083.) 

The rule on liability for nonfeasance is well established: “‘A 

person who has not created a peril is not liable in tort merely for 

failure to take affirmative action to assist or protect another 

unless there is some [special] relationship between them which 

gives rise to a duty to act.’” (Regents, supra, 4 Cal.5th at p. 619; 

accord, Williams v. State of California (1983) 34 Cal.3d 18, 23; 

Frausto v. Department of California Highway Patrol (2020) 

53 Cal.App.5th 973, 992; see Rest.3d Torts, Liability for Physical 

and Emotional Harm, § 40, subd. (a) [“[a]n actor in a special 

relationship with another owes the other a duty of reasonable 

care with regard to risks that arise within the scope of the 

relationship”].) “‘[A] typical setting for the recognition of a 

special relationship is where ‘the plaintiff is particularly 

vulnerable and dependent upon the defendant who, 

correspondingly, has some control over the plaintiff’s welfare.’” 

(Regents, at p. 621 [citing as examples of special relationships 

those between common carriers and their passengers, a jailer and 

its prisoners, innkeepers and patrons].) 

“[L]aw enforcement officers, like other members of the 

public, generally do not have a legal duty to come to the aid of 

[another] person” unless they engage in an affirmative act that 

increases the risk of harm or fail to act when they have promised 

otherwise and, by doing so, induced the plaintiff’s reliance on that 

promise or otherwise increased the peril to plaintiff. (Lugtu v. 

California Highway Patrol (2001) 26 Cal.4th 703, 717; accord, 

Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1129; 

Frausto v. Department of California Highway Patrol, supra, 

53 Cal.App.5th at p. 992.) Thus, for example, an animal control 
8

officer who requests one’s assistance in capturing a stray dog has 

increased the peril to that person and owes a duty of due care to 

the individual the officer recruited. (Walker v. County of Los 

Angeles (1987) 192 Cal.App.3d 1393, 1403.) On the other hand, 

public safety officers who have done nothing to increase the peril 

are not liable for failing to protect a citizen from a crime 

committed by third parties simply because the crime was 

foreseeable; there is no special relationship between a police 

department or its officers, on the one hand, and the citizenry, on 

the other hand, simply by virtue of the department’s mission to 

protect the public. (Zelig, at p. 1130; Davidson v. City of 

Westminster (1982) 32 Cal.3d 197, 207.) 

The City argued in its motion no special relationship 

existed between its animal control officers and Woodard, and 

thus they owed her no duty of care, citing Woodard’s testimony 

that the officers never told her they could or would protect her 

from the dogs. In her opposition papers Woodard did not cite any 

action or statement by an animal control officer that induced her 

reliance or any affirmative conduct by them that increased her 

risk of harm. She argued simply that the animal control officers 

had failed to act even though the dog that bit her was dangerous 

and the officers, whose job it was to protect the public from 

dangerous animals, had notice of the danger by virtue of her prior 

reports. As the trial court ruled, that evidence was insufficient to 

defeat the City’s summary judgment motion. Absent evidence 

that the animal control officers created the peril or took 

affirmative action that contributed to, increased or changed the 

risk that otherwise existed, or evidence that plaintiff 

detrimentally relied on the officers’ conduct or statements that 

had induced a false sense of security, which Woodard failed to 
9

provide, there was no special relationship between the officers 

and Woodard giving rise to a duty of due care on the part of the 

City employee. 

Insisting the City must have some obligation to protect the 

public from dangerous dogs, Woodard cites for the first time on 

appeal two Los Angeles Municipal Code sections. 

Section 53.34.2, subdivision (a), of the Los Angeles Municipal 

Code provides, “The Department [of Animal Services] shall have 

the power to summarily and immediately impound a dog or other 

animal where there is evidence it has attacked, bitten or injured 

any human being or other animal pending any court or dog 

license or animal permit revocation proceeding arising from the 

attack, bite or injury[.] . . . A duly authorized Department 

employee may enter and inspect private property to enforce 

provisions of this section.” Section 53.05 of the same code 

provides, “It shall be the duty of the General Manager or his 

authorized representatives to take up and impound in the City 

pound . . . those animals which are authorized and directed to be 

taken up and impounded by this article.” 

Woodard did not allege in her complaint, her opposition 

papers in the trial court or in her appellate brief that the City 

was directly liable for the violation of a mandatory duty. 

(See Gov. Code, §§ 815.6 [“[w]here a public entity is under a 

mandatory duty imposed by an enactment that is designed to 

protect against the risk of a particular kind of injury, the public 

entity is liable for an injury of that kind proximately caused by 

its failure to discharge the duty unless the public entity 

establishes that it exercised reasonable diligence to discharge the 

duty”], 810.6 [defining “enactment” to include statute, ordinance 

or regulation].) To the extent Woodard’s citation to the municipal 
10

code sections can be broadly interpreted to suggest such an 

argument, it is too late. (See Cerna v. City of Oakland (2008) 

161 Cal.App.4th 1340, 1349-1350 [“[t]o assert liability under 

Government Code section 815.6 for breach of a mandatory duty, a 

plaintiff must specifically allege liability in his or her complaint 

and identify the applicable statute or regulation that imposes the 

alleged mandatory duty”]; Washington v. County of Contra Costa 

(1995) 38 Cal.App.4th 890, 896.) “The pleadings limit the issues 

on a motion for summary judgment [citation], and theories that 

were not fully developed in the trial court cannot create a triable 

issue on appeal.” (Cerna, at pp. 1349-1350 [rejecting the 

appellant’s effort to create a claim under Government Code 

section 815.6 for first time on appeal].) 

Finally, even if Woodard had properly pleaded and argued 

the City was directly liable for violation of a mandatory duty 

based on Los Angeles Municipal Code section 53.34.2, it would 

not defeat summary judgment. Los Angeles Municipal Code 

section 53.34.2 vests the Department with certain discretionary 

powers. It does not mandate a particular action. (See Haggis v. 

City of Los Angeles (2000) 22 Cal.4th 490, 498 [Government Code 

section 815.6 “requires that the enactment at issue be obligatory, 

rather than merely discretionary or permissive, in its directions 

to the public entity; it must require, rather than merely authorize 

or permit, that a particular action be taken or not taken. 

[Citation.] It is not enough, moreover, that the public entity or 

officer have been under an obligation to perform a function if the

function itself involves the exercise of discretion”].) 
11

DISPOSITION

The judgment is affirmed. The City is to recover its costs 

on appeal. 

PERLUSS, P. J.

We concur:

SEGAL, J. 

DILLON, J.

*

*

Judge of the Los Angeles County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.