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Filed 2/15/23 Dutcher v. Wallace CA 1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

JANDA DUTCHER , Plaintiff and Appellant ,
v. JAMES WALLACE et al. , Defendant s and Respondents

. A 16 3135 ( Contra Costa County Super. Ct. No. CIV MSC1802179 )

Plaintiff Janda Dutcher sued , among others, defendants Tami and Steven Weber after being bitten by a dog present at the ir property ; she appeals an order granting them summary judgment of he r general negligence and premises liability claims. We conclude the re is no evidence the Webers

— landlords who neither lived at the property nor own ed the dog

— had actual knowledge a dog with dangerous propensities was on the premises

. They consequently had no duty to prevent the harm alleged, and Dutcher cannot establish the elements necessary for a general negligence or premises liability cause of action. We affirm. BACKGROUND
The Weber s own a home in Contra Costa County

. They rent it to their

son, d efendant Timothy Adams, who lives there with his wife, Desiree2

Adams, their three young children , and a dog

. 1 The Webers occasionally visit
to see their grandchildren

. The Adams es pa y the Webers a reduced monthly
rent in exchange for maintaining and landscaping the property , and t he Adamses reimburse the Webers for pay ing water and garbage bill s

. Although Steven did not produce a written rental agreement or more than one cop y of

a rent check , he testified the Adamses never missed a monthly payment. Defendant James Wallace temporarily lived with the Adams es in 2017. During a three

- month period , Wallace stayed approximately four to five nights in total . Wallace owned the dog at issue here

— Rambo

— who also occasionally stayed a t the house

. Whenever Wallace left, he either took Rambo with him or left the dog at home in a cage

. Desiree and Timothy both stated Rambo did not act aggressively with th em, their dog, or children

. But a neighbor recounted a conversation with Desiree in which she acknowled ged
Rambo had once escaped the house and fought with another dog. The Webers declared they did not know Wallace and Rambo were staying at the house ; St even only knew that a person familiar with Timothy was going to stay for a few weeks. On March 16, 2017, Dutcher was walking her two dogs across the street from the Adams es ’ home. Suddenly, the Adams es ’ dog and Rambo ran from the front yard towards Dutch er , and Rambo tried to attack one of Dutcher’s dogs. While Dutcher was trying to protect her dog, Rambo bit her several times on her left arm, resulting in injuries that required medical
treatment. Wallace surrendered Rambo to be euthanized and thereafter did
not return to the house.

1 For clarity, we use first names when referring to the Webers and Adamses individually. We intend no disrespect.3

It is unclear how the dogs escaped from the premises

. A neighbor observed the Adamses’ dog loose in front of the house on several occasions.
An d Dutcher at some point noticed the Adamses had a broken fence, but it is unclear whether it was broken before or during the incident. T he Webers stated they were not aware of any property defects at the time of the incident , such as problems with backyard fencing, gates, or la t ches. Sometime before March 16, Timothy notified Steven the fence had suffered windstorm damage. Timothy , a carpenter, screwed down loose fence boards and reinforced the fence to keep it from falling down. According to Timothy, Steven did not see the da mage; he only saw the completed repairs and found
them acceptable

. Dutcher sued the Adams es; the Webers, as individuals and as trustees of a f amily t rust ; and Wallace

. As r elevant here, Dutcher alleg ed all defendants were negligent for allowing a dog to escape the premises and bite her

. In addition, in the premises liability cause of action, she alleged defendants knew or should have known the dangerous propensities of the dog and negligently allowed it to escape

. The Webers moved for summary judgment , c ontending they had no actual knowledge there was a dog with dangerous propensities on the premises

. They also argued they did not have a duty to inspect the property and there was no showing there was a property defect that could have
contributed to the incident. The trial court granted the motion and entered judgment in the Webers’ favor. DISCUSSION Summary judgment is appropriate if the moving party demonstrates
there is no triable issue of material fact and the moving party is entit led to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c) ; Aguilar v.4

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 .) A defendant seeking summary judgment must demonstrate the cause of action lacks merit
because the plaintiff cannot est ablish one or more necessary elements or there is a complete defense. ( Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 67.) Upon making that showing, t he burden shifts to the plaintiff to demonstrate there is a triable issue of fa ct for that cause of action. ( Ibid .) A genuine issue of material fact exists only if “ the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion .” ( Aguilar , at p. 845 .) Courts must draw all reasonable inferences from the evidence in the light most favorable to the nonmoving party. ( Id . at p. 843.) We review de novo the decision to grant summary judgment. ( Morgan , at p. 67.) Prevailing on a cause of action for general negligence an d premises liability requires demonstrating the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury. ( Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998; Chee v. Amanda Goldt Prop erty M anagement (2006) 14 3 Cal.App.4th 1360, 1369 ( Chee ).) A landlord owes an attenuated duty of care “when the premises are let because the landlord is not in possession, and usually lacks the right to control the tenant and the
tenant ’ s use of the property.” ( Ibid. ) Subject t o various exceptions, landlords generally are not liable for injuries to their tenants or tenants’ invitees from dangerous conditions on the property that arise after the tenant takes possession. ( Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 510.) A landlord does have a duty, however, to protect third parties from harm caused by a tenant ’ s vicious dog if “ the landlord has ‘ actual knowledge ’ of the dog’s vicious nature” and its presence on the premises

— “ ‘ not mere5

constructive knowledge ’ ”

— and the landlord can control or prevent the
harm. ( Yuzon v. Collins (2004) 116 Cal.App.4th 149, 152 , 16 3 ( Yuzon ).)
Dutcher contends the Webers breached their nondelegable duty to maintain the property in a reasonably safe condition in order to prevent a d og from escaping onto a public street and causing harm. This argument ignores

a threshold issue

. W hether the Webers, as landlords, 2 owed a duty to third parties to prevent a dog attack first requires determining whether they
had actual knowledge of the presence of a dog with dangerous propensities

. ( Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 1838 [analyzing

a landlord ’s duty to third parties regarding dangerous dogs is a two

- step

process ]

. ) Only a fter answering that question in the affirm ative does the
court consider a “landlord’s ability to prevent foreseeable harm”

— that is, whether a landlord had the opportunity to remedy an existing problem with the property, such as a broken fence, but failed to do so

. ( Id

. at pp. 1838

– 1839

. ) Here, t here is no triable issue of fact regarding the Webers ’ ignorance of Rambo’s presence on the premises or the dog’s vicious tendencies ( ibid. ) ;

r esolving whether the Webers failed to adequately maintain their property is thus unnecessary. N othing in the record indicates the Webers met Wallace or Rambo or were informed about the dog

. The Webers declared they did not know either were staying at the property. W hile “ ‘denial of such kno wledge will not, per se, prevent liability,’ ” there is no circumstantial evidence the Webers “must have known” about Rambo’s presence at the property. ( Yuzon , supra ,

2 On appeal, Dutcher does not seriously dispute the Webers and Adams es had a landlord

- tenant relationship

— uncontested evidence established that the Adams es verbally agreed to rent the house, they performed home maintenance in exchange for a reduced rent, and they never missed a monthly rent payment.6

116 Cal.App.4th at p. 163.) T he frequency of the Webers ’ visits to the
home

— somewhere between once every few months to as much as five times
each month

— was not such t hat they must have known about Rambo , especially since Wallace and his dog only stayed at the house four or five nights in the span of three months.
Moreover , even if the Webers crossed paths with Wallace and Rambo at the property, there is no evidence the Weber s learned of the dog’s dangerousness. And t he Webers had no duty to inspect the premises to learn of the existence of a dangerous dog. ( Yuzon , supra , 116 Cal.App.4th at

p. 1 63 .) Timothy testified he had never seen Rambo act aggressively ; Desiree similarly testified Rambo exhibited no aggressiveness toward her children or her dog. (Cf. Yuzon , at p. 164 [landlord could not have known of dog’s vicious

p ropensities since there were no prior incidents involving the dog].) Dutcher cites a neighbor’s declaration that Desiree told her Rambo had previously escaped through the property’s fence and fought with another dog

. Even viewing this evidence in the light most favorable to Dutcher, the re was no evidence this incident was observed by or reported to the Webers . ( Yuzon , at

p. 164 .) Indeed, no thing in the record indicates the Webers received any reports or complaints ab out Rambo’s aggressiveness. ( Chee , supra , 143 Cal.App.4th at p. 1370 [landlord had no knowledge of dangerous dog where he had never seen the dog or received any complaints] .) Speculation or conjecture about the Webers ’ knowledge of Rambo’s vicious nature is insufficient to defeat summary judgment

. ( Yuzon , at p. 16 6 [“ ‘ An issue of fact can only be created by a conflict of evidence. It is not created by

“ speculation, conjecture, imagination or guess work. ” ’ ”]. ) Disputing this co nclusion, Dutcher contends (a) the Adams es were the Webers’ agents because they maintained the property ; (b) the Adamses knew7

of Rambo’s dangerous disposition ; and (c) therefore, th e Adamses’ knowledge
must be imputed to the Webers

. ( RSB Vineyards, LLC v. Orsi (2017)
15 Cal.App.5th 1089, 1099 [“ principal is charged only with the knowledge of an agent acquired while the agent was acting in that role and within the scope of his or her authority as an agent ”].) We reject this creative argume nt. An agency relationship arises when a principal manifests assent to an agent acting on the principal’s behalf, the principal controls the agent, and the agent assents or otherwise consents to this arrangement. ( Huong Que,
Inc. v. Luu (2007) 150 Cal.A pp.4th 400, 410

– 411 .) But “ ‘ [n]ot all relationships in which one person provides services to another satisfy the definition of agency. ’ ” ( RSB Vineyards, LLC v. Orsi , supra , 15 Cal.App.5th at p. 1 100 .) T hat t he Adamses’ m aint ained and landscap ed the property in exchange for reduced rent does not give rise to an inference the Webers had the requisite control over how the Adamses did the work let alone that the Adamses represented the Webers in dealings with third persons

. ( Sonora
D iamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 541[“Control is the key characteristic of the agent/principal relationship ” ].) The Webers did
not , for example, specify the type of work that was necessary nor the areas that needed repair. Rather , the record shows Timothy made decisions regarding fence repairs using his own judgment and notified Steven after repairs were completed

. Th us, the Adamses were not the Webers’ agents, they were mere tenants. ( Chee , supra , 143 Cal.App.4th at pp. 1374

– 13 75; Friedman et al., Cal. Prac tice Guide: Landlord

- Tenant (The Rutter Group 20 22 ) ¶ 6:79:8 [“a tenancy does not itself make tenants their landlords’

. . . agents”].) Dutcher’s suggestion the Webers are vicariously
liable here is “contrary to established law” that alleged negligence of a tenant

“ ‘ cannot be imputed to the landlord.’ ” ( Chee , at p. 1375.)8

Finally, Dutcher contends the Webers were negligent per se for
vio lating Contra Costa County’s leash ordinance. ( Contra Costa County Code , § 416

- 4.402 [“ [ n ] o person owning, possessing, harboring, or controlling an animal may allow the animal to be at large”] .) Not so. The ordinance does not apply to the Webers as the undisputed facts demonstrate they did not own, possess, harbor, or control Rambo. DISPOSITION The judgment is affirmed. Costs are awarded to respondents.9 _________________________ Rodríguez, J.

WE CONCUR:

_________________________ Tucher, P. J.

_________________________ Petrou, J.

A163135