The trial court granted respondent's motion for summary judgment upon a finding that respondent owed no duty of care to prevent an attack of appellant by a pit bull present on respondent's property with his express consent. We conclude that respondent owed a duty of care to appellant and reverse the judgment.
STATEMENT OF FACTS
Respondent was the owner of a residence located on McLaughlin Street in Richmond. In 2005, he embarked upon a remodeling project at the residence that included construction of a new foundation. Respondent hired Burle Southard to act as general contractor for the project. Southard, in turn, hired appellant as an employee to work on the construction project under his supervision for a period of three to four months. With respondent's approval, appellant and Southard stored equipment and materials in the backyard and garage of the residence. Appellant was given permission by respondent to enter the yard "at any time" to retrieve equipment or materials he stored there.
Respondent also hired two men, Armand and Greg Sanchez, to perform "weeding and gardening" work on the premises. The Sanchezes had two dogs, a pit bull terrier and a smaller pit bull-Labrador mix. Respondent
Southard expressed a different view of the dogs. He declared that he "saw a ferocious looking pit bull dog" in the Sanchezes' "very dilapidated looking van" in June or July of 2005. Southard confronted respondent about the dog. Respondent explained that the "van had been broken into in the past, and the dog was there to guard the van." Southard communicated his fear and view to respondent that "he should certainly not have this pit bull" which had been trained as a "`guard dog' around this job site." He told respondent, "`that's a pit bull,' meaning that the dog was dangerous." Southard thought respondent understood the concern he conveyed that "the dog would attack someone."
On August 1, 2005, appellant called Southard to report that he needed to retrieve "wood planks for scaffolding" that were stored in respondent's yard. In accordance with the consent previously given by respondent, Southard advised appellant to "go ahead and pick up what he needed." The same day, respondent had specifically given Armand Sanchez permission to let the dogs "roam in the backyard." Respondent left the house before appellant arrived and was gone for four or five hours. He was not advised that appellant "intended to visit" the residence that day. If respondent had known appellant planned to enter the yard, he would have "warned him about the pit bull."
Appellant had never seen the dogs at the residence before, so he entered the backyard through a 12-inch gap in a cyclone fence around the house. Once appellant was about 10 to 12 feet into the yard at the corner of the foundation, the smaller mixed breed dog growled at him, then the pit bull attacked him. Appellant escaped through the gap in the fence, but the pit bull followed into the driveway and continued to repeatedly bite him until he managed to jump onto respondent's car.
The trial court determined that respondent had "no duty of care" to appellant to prevent the dog attack. The court found that property owners "must have actual knowledge of the vicious nature or dangerous propensities of another's dog" to incur liability for injuries incurred on their property, and appellant "has not raised a triable issue of material fact as to the lack of [respondent's] knowledge about the dangerous tendencies of the dog." The summary judgment motion of respondent was granted, and judgment was entered in his favor. This appeal followed.
Appellant argues that the trial court erred by granting defendant's motion for summary judgment and dismissing his negligence action. He asserts that the trial court committed several errors in resolving the summary judgment motion. First, he complains that the court applied "the wrong standard" of duty analysis that requires a "residential landlord" to "have actual knowledge of the vicious nature or dangerous propensities of another's dog" to incur liability, whereas "this is not a landlord/tenant case." Appellant also claims that the evidence adduced by defendant failed to meet his burden of proving he "did not actually know the dogs were dangerous," even if we follow the erroneous "residential landlord/tenant's pet" standard. Appellant adds that his evidence in opposition to the motion, particularly Southard's declaration, established a "triable issue of fact" as to respondent's knowledge of the danger posed by the pit bull guard dog.
I. The Summary Judgment Standards.
We adhere to established rules in reviewing the trial court's ruling on respondent's summary judgment motion. "A defendant's motion for summary judgment should be granted if no triable issue exists as to any material fact and the defendant is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) The burden of persuasion remains with the party moving for summary judgment. [Citation.] When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true [citation], or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff `does not possess and cannot reasonably obtain, needed evidence.' [Citation.]" (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003 [4 Cal.Rptr.3d 103, 75 P.3d 30].) "`A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.' (Code Civ. Proc., § 437c, subd. (p)(2).)" (Lewis v. Chevron U.S.A., Inc. (2004) 119 Cal.App.4th 690, 693 [14 Cal.Rptr.3d 636].)
"On appeal from a summary judgment, `[w]e review the trial court's decision de novo, considering all of the evidence the parties offered in connection with the motion . . . and the uncontradicted inferences the evidence reasonably supports.' [Citation.] The evidence must be viewed in favor of the plaintiff as the losing party, construing the submissions of the plaintiff liberally and those of the defendant strictly." (Bell v. Greg Agee Construction, Inc. (2004) 125 Cal.App.4th 453, 459 [23 Cal.Rptr.3d 33].)
II. Respondent's Duty of Care as a Landowner.
This is not a case, however, in which the plaintiff has asserted passive neglect on the part of a landlord for failure to inspect or take security measures to protect third parties from a dangerous condition on a tenant's property. The present action is distinguishable on many decisive levels. First and foremost, respondent was not an absentee landlord with limited access to the property. He did not surrender his possessory interest in the property in any way; he continued to control the premises at least intermittently while the construction project proceeded. The dog owners were not respondent's tenants who had sole possessory rights associated with the property, but rather temporary invitees who performed landscaping services. And unlike tenants, they were neither vested with exclusive possession of the property nor were entitled to keep their dogs there without express permission granted by respondent. Thus, the essential foundation that underlies the carefully circumscribed duty imposed upon landlords—the restraint upon the landlord's right to engage in intrusive oversight or control of the tenant's use of the property—is absent here.
"`The crucial element is control.' [Citation.]" (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1158 [60 Cal.Rptr.2d 448, 929 P.2d 1239].) "[W]e have placed major importance on the existence of possession and control as a basis for tortious liability for conditions on the land." (Preston v. Goldman (1986) 42 Cal.3d 108, 119 [227 Cal.Rptr. 817, 720 P.2d 476], citing Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 368 [178 Cal.Rptr. 783, 636 P.2d 1121].) "In general, courts have imposed a duty to prevent the harm caused by a third party's animal when a defendant possesses the means to control the animal or the relevant property and can take steps to prevent the harm." (Cody F. v. Falletti (2001) 92 Cal.App.4th 1232, 1236 [112 Cal.Rptr.2d 593].)
Given respondent's continued presence on the property, he not only had much greater awareness of events that occurred there, but he also did not relinquish the right or compromise his ability to prevent foreseeable harm on the premises. Further, appellant does not rely merely on respondent's failure to conduct a reasonable inspection of the property. Nor does this case present the situation of a landlord with no knowledge of the dog aside from a rental agreement which provided that a pet could be kept on the premises. (Cf. Portillo v. Aiassa, supra, 27 Cal.App.4th 1128, 1137; Lundy v. California Realty (1985) 170 Cal.App.3d 813, 821 [216 Cal.Rptr. 575].) Appellant relies on an affirmative act of negligence by respondent that caused his harm: that when asked, respondent gave explicit verbal authority for the Sanchezes' "guard dog[s]" to run loose on the property.
Therefore, the cases that decline to impose a duty of care unless a landlord has actual knowledge of the animal, coupled with the right to have it removed from the premises, are not dispositive. Under the facts presented in the case before us, we do not merely examine the evidence for proof of respondent's
Second, respondent had the unfettered ability to prevent the dangerous condition on the property. He retained complete possession and control of the property, so he not only had the opportunity to inspect the premises regularly without restriction, but the dog owners had no right to keep the dogs there without his express consent. Failure to eliminate the dangerous condition was not due to respondent's inability to restrain or remove dogs from the premises. He essentially participated in creation of the dangerous condition of the property by authorizing or permitting the dogs to run loose in the yard. (Cf. Kalis v. Shattuck (1886) 69 Cal. 593, 597 [11 P. 346]; Chee v. Amanda Goldt Property Management, supra, 143 Cal.App.4th 1360, 1374.) Hence, a measure of "moral blame" must be attributed to respondent for failure to avert the harm that ensued; "he cannot be permitted to knowingly stand aside where it is shown that he has the power to remove the animal from the premises without incurring a liability for his failure to act." (Uccello, supra, 44 Cal.App.3d 504, 514.)
Further, the extent of the burden imposed on respondent to exercise due care was minimal. As we have emphasized, unlike a residential landlord respondent was not required to encroach upon his tenant's possession and enjoyment of the property to inspect the premises and undertake efforts to remove the dangerous condition. He needed to do nothing more than direct the dog owners to keep the dogs in the van or effectively contain them when they were in the yard. Failing that, he could have at least advised appellant, to whom he granted free access to the property, to be aware of the existence of the dogs whenever he visited. Instead, respondent consented to the unrestrained presence of the dogs on the property without informing those known to visit the premises of the potential danger. None of the precautions respondent could have taken to effectively reduce or eliminate the risk of harm were at all burdensome to him. Although we realize that the responsibility of the dog owners for the attack upon appellant may be primary, respondent's conduct is still closely connected to appellant's ensuing injury. And, considering the final Rowland factor, we observe that normally insurance is available for homeowners to cover the risk that eventuated here.
We conclude that as a matter of law respondent owed a duty of care to appellant.
Costs on appeal are awarded to appellant.
Marchiano, P. J., and Margulies, J., concurred.