COSME v. GAMBLE, et al.
Case No. FCS046091
Motion by Defendants JASON GAMBLE and FATHERSON LLC for Summary
Judgment
TENTATIVE RULING
A residential landlord can only be liable for the dog bite by a tenant?s dog if he had ?actual knowledge? of the dog?s violent propensities and the ability to prevent the foreseeable harm.? Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504.
Actual knowledge can be based on direct evidence that the landlord saw or was told of prior incidents where the dog displayed violent propensities.? However, it can also be based on circumstantial evidence, sufficient to establish that the landlord ?must have known?, and not merely that he ?should have known?.? Id. at 514, n.4.
Evidence that the landlord knew of the dog?s breed is not, by itself, evidence sufficient to give the landlord ?actual knowledge? of the dog?s propensity violent propensities.? Chee v. Amanda Goldt Property Management (2006) 143 Cal.App.4th 1360, 1371-1372 [?evidence that the breed of dog has certain characteristics, by itself, is insufficient to support an inference that (the landlord) had actual knowledge that his tenant?s dog had any dangerous propensities?]; Lundy v. California Realty (1985) 170 Cal.App.3d 813, 822 [despite lease excepting from the ?no animals? ban a ?Shepard Dog Named Thunder?, landlord who never saw the German Shepard for over 2 years from entry of lease until that dog attacked a cable field engineer was entitled to summary judgment, as he had no information about the size or age of the dog, and thus as a matter of law did not have actual knowledge of its dangerous propensities].
When it is determined that a landlord lied in denying knowing of the existence of a tenant?s dog, summary judgment cannot be granted based upon his claim that he did not know of the dangerousness of that dog.? Donchin v. Guerrero (1995) 34 Cal.App.4th 1832.
The Donchin court explained that such a lie calls into question the veracity of all other claims made by that landlord and his or her state of mind, as to the actual knowledge of the existence of a dog with dangerous propensities:
In our view, the key evidence bearing on the credibility of Swift’s denial of knowledge about the rottweilers’ dangerous nature is his earlier “false exculpatory statement” denying he even knew the dogs existed and denying he had given permission for them to be housed on his property. Just as a criminal defendant’s false exculpatory statement is evidence of his consciousness of guilt, a civil defendant’s false exculpatory statement can be evidence of his consciousness of liability and casts doubt on his denial of knowledge affecting his liability.
As will be recalled, Swift made this exculpatory statement to Renae McCarthy, a legal secretary to Donchin’s counsel. Swift told her he didn’t even know his tenant was keeping dogs of any kind on the property and hadn’t given permission to do so. Only later, in the face of a lease mentioning the dogs and the tenant’s declaration Swift saw the rottweilers regularly, did Swift submit a response to interrogatories conceding he indeed knew of the dogs and claiming he played with them on several occasions. Assuming the truth of McCarthy’s declaration, Swift’s initial conversation with her represented a false exculpatory statement attempting to show he had no liability for what the rottweilers did to Donchin.
The law of California and other jurisdictions has long recognized a false exculpatory statement is evidence of a guilty conscience in the context of criminal cases. The underlying principle is that a false statement is evidence of a declarant’s state of mind and demonstrates his knowledge he has committed a wrong. Furthermore, from this consciousness of guilt the jury is entitled to infer other facts bearing on a defendant’s guilt. The logic of this principle applies as much in civil cases as it does in criminal prosecutions. Id. at 1841.
In our case, JASON GAMBLE, managing member of FATHERSON LLC (?LANDLORD?), has admitted knowledge as of February 2015 that tenants
DANNETTE BISHOP (?BISHOP?) and ROSSI MITCHELL (?MITCHELL?) had 2 dogs on the premises.? [GAMBLE Deposition, 35:3-16].? While GAMBLE claimed not to know the breed of either dog [GAMBLE Deposition, p. 39:12-40:2], and that he would not have allowed a pit bull because he knew that pit bulls can be dangerous [GAMBLE Deposition 60:16-61:8], the tenants testified that he had been told 4 months earlier that they had a pit bull dog [BISHOP Deposition, 19:20-20:9; 33:17-21; 37:8-39:9; MITCHELL Deposition, 18:13-20:5].
While more innocent inconsistencies between the testimony of a landlord and tenants might not be sufficient to create a triable issue of material fact, for the trier of fact to resolve, this one does.? And, under Donchin, it goes to the heart of LANDLORD?s credibility as to other claims, such as that LANDLORD never witnessed the pit bull at the property, nor was LANDLORD aware through other sources of any propensity for viciousness by that animal.? Thus, it falls to the trier of fact to determine whether GAMBLE?s claim that he did not know of the breed of the dog was truthful, or not, and if the latter, to take that into account in determining the credibility of his other assertions.
Once a landlord has knowledge of a tenant?s keeping of dogs with dangerous propensities, the landlord must take reasonable action to ?insist the tenant remove the dogs from the leased premises or to insure the property is so secure the dogs cannot escape to harm persons on or off the property.?? Id. at 1839.
The evidence from LANDLORD and these tenants is consistent that in February 2015, after the HOA notified GAMBLE that they had seen 2 dogs at that property in violation of a 1 dog restriction in the CC&Rs, the tenants were asked to remove ?the larger dog?, and that the tenants told GAMBLE that the larger dog had been sent away.? [GAMBLE Deposition 56:25-57:12; BISHOP Deposition 64:9-66:18; 76:24-77:12; 79:10-22; MITCHELL Deposition 16:12-24; 19:21-20:5].? However, the evidence from tenants is inconsistent as to whom the pit bull had been given.? [BISHOP Deposition 77:4-20, 92:4-93:18 (given to BISHOP?s cousin Andre Braggs who lives in Sacramento); MITCHELL Deposition 43:7-20 (given to a friend named Sedrick, in Richmond)].? It also contradicts evidence presented by Plaintiff that he regularly heard 2 different dog barks coming from that neighboring property, for the 5-6 months before the subject incident [Plaintiff?s Deposition, 114:10-115:12].? This inconsistency calls into question whether the pit bull was in fact sent away prior to the June 2015 subject incident, as claimed by these tenants.
Furthermore, the evidence suggests that GAMBLE made no effort in the months between February and June 2015 to confirm that the pit bull dog had been sent away, as claimed by the tenants.? [GAMBLE Deposition 62:6-12; 66:9-15].? There is also evidence that the tenants kept the pit bull at the property in the back yard, that it had been trained to provide protection [MITCHELL Deposition 15:2-9; 17:8-18:23; 20:20-21:7], and that GAMBLE heard it barking after GAMBLE had knocked on the door to give notice that 2 dogs were not permitted [MITCHELL Deposition 19:10-24].? There was also evidence that the smaller dog, a Jack
Russell terrier, typically kept inside of the unit [BISHOP Deposition 40:7-14; MITCHELL Deposition 27:17-24; 32:8-33:1] had been let out to the subject property?s backyard minutes before the attack, and was in Plaintiff?s backyard accompanying the pit bull that attacked Plaintiff [BISHOP Deposition 59:11- 61:5; MITCHELL Deposition 32:3-10].? Finally, there was evidence that LANDLORD owned 5 other units in that same complex [GAMBLE Deposition 14:11-15], and that GAMBLE, either personally or through agents he may have hired, made an unspecified number of visits to the subject property (and maybe to other properties in that same complex) to serve 3 day notices [GAMBLE Deposition 20:2-21:7] or possibly to respond to requests for maintenance [GAMBLE Deposition 22:11-22].
The court on summary judgment is required to strictly construe the moving party?s evidence, and liberally construe the evidence offered in opposition, to resolve evidentiary doubts or ambiguities in favor of the opposing party.? Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.
The burden on a defendant moving for summary judgment instead of summary adjudication is to disprove a necessary element of, and/or establish an affirmative defense to, each and every cause of action alleged against it.? C.C.P. ?437c(f)(1), (p)(2).
Based upon the evidence cited above, and the Donchin case, the court must deny this motion for summary judgment.