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Filed 2/15/23 Dutcher v. Wallace CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 

ordered 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.,

Defendants and Respondents.

 A163135

 (Contra Costa County 

 Super. Ct. No. CIVMSC1802179)

Plaintiff Janda Dutcher sued, among others, defendants Tami and 

Steven Weber after being bitten by a dog present at their property; she 

appeals an order granting them summary judgment of her general negligence 

and premises liability claims. We conclude there is no evidence the

Webers — landlords who neither lived at the property nor owned 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 Webers own a home in Contra Costa County. They rent it to their 

son, defendant Timothy Adams, who lives there with his wife, Desiree 
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Adams, their three young children, and a dog.

1 The Webers occasionally visit 

to see their grandchildren. The Adamses pay the Webers a reduced monthly 

rent in exchange for maintaining and landscaping the property, and the 

Adamses reimburse the Webers for paying water and garbage bills. Although 

Steven did not produce a written rental agreement or more than one copy of 

a rent check, he testified the Adamses never missed a monthly payment.

Defendant James Wallace temporarily lived with the Adamses 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 at 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 them, their dog, or children. But

a neighbor recounted a conversation with Desiree in which she acknowledged

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; 

Steven 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 Adamses’ home. Suddenly, the Adamses’ dog and Rambo ran 

from the front yard towards Dutcher, 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.
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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. 

And Dutcher at some point noticed the Adamses had a broken fence, but it is 

unclear whether it was broken before or during the incident. The Webers

stated they were not aware of any property defects at the time of the incident, 

such as problems with backyard fencing, gates, or latches. 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 damage; he only saw the completed repairs and found 

them acceptable.

Dutcher sued the Adamses; the Webers, as individuals and as trustees 

of a family trust; and Wallace. As relevant here, Dutcher alleged 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, contending 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 entitled to 

judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. 
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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 establish 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, the burden shifts 

to the plaintiff to demonstrate there is a triable issue of fact 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 and 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 Property

Management (2006) 143 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 to 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 mere 
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constructive knowledge’ ” — and the landlord can control or prevent the 

harm. (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 152, 163 (Yuzon).)

Dutcher contends the Webers breached their nondelegable duty to 

maintain the property in a reasonably safe condition in order to prevent a dog 

from escaping onto a public street and causing harm. This argument ignores 

a threshold issue. Whether 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 after answering that question in the affirmative 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, there is no triable issue of fact regarding the Webers’ ignorance 

of Rambo’s presence on the premises or the dog’s vicious tendencies (ibid.);

resolving whether the Webers failed to adequately maintain their property is 

thus unnecessary.

Nothing 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. While “ ‘denial of such knowledge 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 

Adamses had a landlord-tenant relationship — uncontested evidence 

established that the Adamses verbally agreed to rent the house, they 

performed home maintenance in exchange for a reduced rent, and they 

never missed a monthly rent payment.
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116 Cal.App.4th at p. 163.) The 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 that 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 Webers learned of the dog’s 

dangerousness. And the 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. 163.) 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 

propensities 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, there was no 

evidence this incident was observed by or reported to the Webers. (Yuzon, at 

p. 164.) Indeed, nothing in the record indicates the Webers received any 

reports or complaints about 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. 166 [“ ‘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 conclusion, Dutcher contends (a) the Adamses were the 

Webers’ agents because they maintained the property; (b) the Adamses knew 
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of Rambo’s dangerous disposition; and (c) therefore, the 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 argument. 

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.App.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. 1100.) That the Adamses’ maintained and landscaped 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 

Diamond 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. Thus, the Adamses were not the Webers’ agents, 

they were mere tenants. (Chee, supra, 143 Cal.App.4th at pp. 1374–1375; 

Friedman et al., Cal. Practice Guide: Landlord-Tenant (The Rutter 

Group 2022) ¶ 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.)
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Finally, Dutcher contends the Webers were negligent per se for 

violating 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.
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_________________________

Rodríguez, J.

WE CONCUR:

_________________________

Tucher, P. J.

_________________________

Petrou, J.

A163135