Filed 3/23/15 Plumer v. Rigdon CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CAROL PLUMER,

Plaintiff and Appellant,

v.

REBECCA RIGDON et al.,

Defendants and Respondents.

 D066249

 (Super. Ct. No. 37-2012-00058926 

 CU-PO-NC)

APPEAL from a judgment of the Superior Court of San Diego County, 

Jacqueline M. Stern, Judge. Affirmed.

Michael G. Harris for Plaintiff and Appellant.

Wallace, Brown & Schwartz, George M. Wallace, Jr. and Lisa J. Brown for 

Defendants and Respondents.

Plaintiff Carol Plumer appeals after the trial court entered summary 

judgment in favor of Rebecca Rigdon and Rigdon Dressage (together Defendants) 

on her negligence claim against them. We affirm.
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FACTUAL AND PROCEDURAL BACKGROUND

Plumer boarded her horse at Arroyo Del Mar Stables (the Stables) where 

Rigdon was a horse trainer. While Plumer walked inside the barn at the Stables, 

Rigdon's dog ran into the barn from the outside, ran down the barn aisle, collided 

with Plumer's right leg and continued on to some unknown destination. Plumer 

suffered injuries as a result of the collision. Plumer had seen Rigdon's dog at the 

Stables on multiple occasions before the date of her injury and was unaware of any 

previous incidents in which the dog had collided with either persons or horses; 

however, the dog seemed "rather hyper and not trained."

Using an approved Judicial Council pleading form, Plumer sued 

Defendants alleging a single cause of action for negligence. She claimed that 

Rigdon, a principal of Rigdon Dressage, allowed her dog to run free without a 

leash in violation of posted rules at the Stables stating, "'NO DOGS.' " Rigdon 

brought her dog with her to the Stables in violation of the rules and failed to 

exercise reasonable control of the dog in such a manner as to prevent harm to 

others.

Defendants moved for summary judgment, arguing (1) no legal duty 

existed to prevent the inadvertent injury caused by Rigdon's dog; and (2) the 

presence of dogs was a condition known to Plumer and a risk she assumed both 

explicitly in a release agreement with the Stables and implicitly by her regular 

presence at the Stables. The trial court granted the motion, concluding Defendants 
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owed Plumer no duty of care. It stated that the issue of duty was a legal issue for 

the court to decide and turned in the question of foreseeability. The court 

concluded the question of foreseeability in a negligence case involving a 

nonvicious dog turned on whether the dog had a tendency to engage in potentially 

harmful conduct and whether Defendants knew of that conduct. It found the 

following:

"Here, there is no evidence creating a triable issue of fact 

whether Defendant's dog was potentially harmful and whether 

Defendant had knowledge of such 'particular propensities.' 

[Citation.] [¶] Plaintiff cites to her deposition testimony 

showing that Defendant's dog 'seemed rather hyper and 

untrained' and that Defendant would leave the dog in her 

office at the stables with the door closed for much of the day 

and that on one occasion, Defendant's door was open and she 

saw the dog in the entryway and that Defendant was 'trying to 

get it not to run out, trying to get it to stay there.' [Citation.] 

This evidence does not create an underlying triable issue of 

fact. The evidence neither directly nor indirectly shows that 

Defendant's dog had a tendency to engage in the behavior 

which caused the incident, i.e., to 'collide' with people and 

knock them down, as alleged in Plaintiff's first amended 

complaint. No reasonable jury could decide, based on the 

evidence relied on by Plaintiff, that Defendant's dog was 

potentially harmful. Thus, the Court concludes the incident 

was not foreseeable and for that reason, Defendant did not 

owe Plaintiff a duty of care."

The trial court entered a judgment in favor of Defendants. Thereafter, 

Plumer moved for "reconsideration" under Code of Civil Procedure section 473,

citing a number of San Diego County Code of Regulatory Ordinances (the 

Ordinances) and arguing that she had a prima facie claim that Rigdon's conduct in 

allowing the dog to run free violated the Ordinances. (Undesignated statutory 
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references are to the Code of Civil Procedure.) The court concluded it lacked 

jurisdiction to rule on the motion as a judgment had already been entered. Plumer 

timely appealed from the judgment.

DISCUSSION

I. General Legal Principles

Summary judgment is properly granted when there is no triable issue of 

material fact and the moving party is entitled to judgment as a matter of law. 

(§ 437c, subd. (c).) Where the defendant is the moving party, it must show that a 

cause of action has no merit by putting forth evidence that either one or more 

elements of the cause of action, even if separately pleaded, cannot be established 

or that a complete defense exists thereto. (§ 437c, subds. (o) & (p)(2); Saelzler v. 

Advanced Group 400 (2001) 25 Cal.4th 763, 768 (Saelzler).) If the defendant 

meets this burden, the burden shifts to the plaintiff to establish that a triable issue 

of material fact exists. (§ 437c, subd. (p)(2); Saelzler, supra, at p. 768.)

We review the trial court's decision to grant summary judgment de novo. 

(Saelzler, supra, 25 Cal.4th at p. 768.) We must view the evidence submitted in 

connection with a motion for summary judgment in a light most favorable to the 

party opposing the motion and resolve "any evidentiary doubts or ambiguities in 

plaintiff's favor." (Ibid.) We independently determine whether the record 

supports the trial court's conclusions that the asserted claims fail as a matter of 
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law, and we are not bound by the trial court's stated reasoning or rationales. 

(Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 951.)

II. Analysis

A. Negligence Per Se

Plumer asserts the trial court improperly granted summary judgment as 

Defendants owed her a common law duty of care. In her reply brief, she asserted 

Rigdon owed a duty of care based on a negligence per se theory under ordinances 

requiring that dogs be leashed. In reviewing the record, we noted that Plumer did 

not argue the issue of negligence per se as a theory of liability in opposition to the 

summary judgment motion and Rigdon raised the issue in her reply brief below. 

We requested that the parties submit further briefing on whether this theory of 

liability was properly before us. Assuming the issue was properly before, the 

parties were directed to address whether summary judgment should have been 

denied on this ground. Both parties submitted letter briefs, which we have 

considered.

We conclude the theory of negligence per se is not properly before us. 

Plumer did not argue negligence per se in opposition to the summary judgment 

motion. Defendants addressed the negligence per se theory in their reply brief 

below to distinguish a case cited by Plumer in her opposition. On appeal, Plumer 

asserted in her opening brief that Rigdon allowed her dog to run at large in 

violation of a county ordinance; however, Plumer never argued the theory of 
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negligence per se applied or that the summary judgment motion should have been 

denied on this ground. Rather, Plumer raised the issue for the first time in her 

reply brief on appeal, arguing we can consider county ordinances under section 

909, that the ordinances created a duty for Rigdon to maintain her dog on a leash 

and her failure to do so constituted negligence per se.

Section 909 is a seldom used statute that allows a reviewing court to "make 

factual determinations contrary to or in addition to those made by the trial court"

in "cases where trial by jury is not a matter of right or where trial by jury has been 

waived." This statute does not contemplate we should take original evidence to 

reverse a judgment. (DeYoung v. Del Mar Thoroughbred Club (1984) 159 

Cal.App.3d 858, 863, fn. 3.) Rather, it is well settled that arguments raised for the 

first time in an appellant's reply brief are forfeited unless good reason has been 

shown for failure to raise them earlier. (Garcia v. McCutchen (1997) 16 Cal.4th 

469, 482, fn. 10; Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc.

(2000) 78 Cal.App.4th 847, 894, fn. 10.) Plumer does not explain why she failed 

to address this theory in her opening brief and we conclude she forfeited this issue 

by raising it for the first time in her reply brief.

B. Negligence

Plumer asserts the trial court erred in granting summary judgment because 

Rigdon owed her an ordinary duty to exercise reasonable care to control her dog.
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"A determination that defendants owe plaintiff no duty of care would 

negate an essential element of plaintiff's cause of action for negligence and would 

constitute a complete defense. Whether a duty of care exists is a question of law 

for the court and is reviewable de novo. All persons are required to use ordinary 

care to prevent injury to others from their conduct." (Nichols v. Keller (1993) 15 

Cal.App.4th 1672, 1685.) "[A] court's task—in determining 'duty'—is not to 

decide whether a particular plaintiff's injury was reasonably foreseeable in light of 

a particular defendant's conduct, but rather to evaluate more generally whether the 

category of negligent conduct at issue is sufficiently likely to result in the kind of 

harm experienced that liability may appropriately be imposed on the negligent 

party." (Ballard v. Uribe (1986) 41 Cal.3d 564, 572-573, fn. 6.) "Foreseeability 

of harm, though not determinative, has become the chief factor in duty analysis." 

(Nichols v. Keller, supra, at p. 1686.) "'Foreseeability, when analyzed to 

determine the existence or scope of a duty, is a question of law to be decided by 

the court.'" (Butcher v. Gay (1994) 29 Cal.App.4th 388, 401.)

"To support a duty, foreseeability of harm must be reasonable. [Citations.] 

Put another way, the degree of foreseeability must be high enough to charge the 

defendant with a duty to act. [Citations.] . . . [T]he harm must be sufficiently 

likely to arise from a given act. [Citations.] More than a mere possibility of 

occurrence is required since, with hindsight, everything is foreseeable. [Citations.]

. . . '[T]he court evaluates . . . whether the category of negligent conduct at issue is 
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sufficiently likely to result in the kind of harm experienced that liability may 

appropriately be imposed on the negligent party. [Citation.] What is "sufficiently 

likely" means what is " 'likely enough in the setting of modern life that a 

reasonably thoughtful [person] would take account of it in guiding practical 

conduct.'" [Citation.]' [Citation.]" (Friedman v. Merck & Co. (2003) 107 

Cal.App.4th 454, 465-466.)

Based on the evidence, the duty question in this case may be summarized as 

follows: Could Rigdon have reasonably foreseen that injury would result from her

failure to control her dog where Rigdon knew the dog did not have a tendency to 

run into people or other objects?

In analyzing this issue, we start with the Restatement (Second) of Torts

which provides the following: "[O]ne who possesses or harbors a domestic animal 

that he does not know or have reason to know to be abnormally dangerous, is 

subject to liability for harm done by the animal if, but only if . . . (b) he is 

negligent in failing to prevent the harm." (Rest.2d Torts, § 518, p. 30.) Comment 

j to this section provides the following: "There are certain domestic animals so 

unlikely to do harm if left to themselves . . . that they have traditionally been 

permitted to run at large. This class includes dogs, . . . . Although it is not 

impossible to confine dogs to the premises of their keepers or to keep them under 

leash when taken into a public place, they have been traditionally regarded as 

unlikely to do substantial harm if allowed to run at large, so that their keepers are 
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not required to keep them under constant control. . . . However, although the 

possessor or harborer of a dog . . . is privileged to allow it to run at large and 

therefore is not required to exercise care to keep it under constant control, he is 

liable if he sees his dog . . . about to attack a human being or animal or do harm to 

crops or chattels and does not exercise reasonable care to prevent it from doing 

so." (Id. at p. 32.)

Here, while Rigdon's dog appeared "hyper and not trained," there is no 

evidence the dog had a propensity to run into objects or had otherwise injured a 

person. Thus, it was not reasonably foreseeable the dog was likely to run into 

people and Rigdon had no common law duty to confine the dog. (Compare, Drake 

v. Dean (1993) 15 Cal.App.4th 915, 931-932 [court erred in failing to instruct jury 

on negligence theory where evidence revealed defendant knew dog had a habit of 

jumping on people].) As the Drake court noted, "[I]t may reasonably be 

anticipated that a dog which has jumped on people before will do it again, whereas 

it is not reasonable to suppose that a dog that has, for whatever reason, run into an 

immovable object will not have been discouraged from repeating that conduct." 

(Id. at p. 931.) Finally, while Plumer notes the existence of a "no dogs" sign at the 

Stables, she did not sue the Stables' owner and the manager of the Stables 

presented a declaration stating the list of rules on the sign, including the no dogs 

rule, pertains to boarders and does not apply to horse trainers such as Rigdon. 
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Additionally, she failed to present any argument or authority explaining how this 

fact impacted the duty analysis.

DISPOSITION

The judgment is affirmed. Respondents are entitled to their costs on 

appeal.

MCINTYRE, J.

WE CONCUR:

MCCONNELL, P. J.

HUFFMAN, J.