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Barrios v. Kuder



California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

Juan Barrios appeals a judgment entered following the trial court's grant of respondent Ed Kuder's motion for summary judgment. Appellant sued respondent for personal injury damages caused by a dog belonging to respondent's lessee. Under the theory of premises liability, a landlord is responsible for damages caused by a lessee's dog if the landlord has knowledge of the dog's dangerous propensities and the landlord has the ability to prevent foreseeable harm. Appellant contends that the evidence set forth in opposition to the motion for summary judgment creates triable issues of fact as to respondent's knowledge of the danger and respondent's ability to take preventive measures. We agree that appellant's contentions have merit, and we reverse the judgment.


Respondent owns a single-family residence. During the time in question, Ruby Talbott was his lessee. Ms. Talbott owned three dogs which she kept at the residence. One of the dogs was named Angel, a German Shepherd-collie mix.

Appellant is a mail carrier. On January 5, 2002, while delivering mail to Ms. Talbott, appellant was attacked by Angel, who broke through the front screen door. Appellant was badly bitten about the face, requiring 50 stitches.

As a result of the incident, appellant sued Ms. Talbott for personal injury damages caused by the dog bites. She has defaulted, and is not a party to this appeal. Appellant also named respondent as a defendant, claiming that as the owner of the property, respondent was negligent in maintaining the premises.

After the parties engaged in discovery, respondent made a motion for summary judgment, which was granted.


1. Standard of Review

Summary judgment is appropriately granted if the moving papers show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

A defendant seeking summary judgment meets the burden of proving that a cause of action has no merit if that party shows that one or more elements of a cause of action cannot be established, or that an affirmative defense exists to a cause of action. (§ 437c, subd. (n).) Once the defendant's burden is met, the onus shifts to the plaintiff to demonstrate that a triable question of fact exists as to that cause of action. (Ibid.) The plaintiff cannot rely simply on the allegations in the complaint, but must instead provide facts that specifically negate the evidence provided by the defendant. (§ 437c, subd. (o)(2).)

On appellate review of the grant of summary judgment, we are required to examine the entire record de novo and determine whether the evidence provided by the parties gives rise to a triable issue of material fact. (ML Direct, Inc. v. TIG Specialty Ins. Co. (2000) 79 Cal.App.4th 137, 141.) In making that determination, the moving party's evidence is strictly construed while that of the opposing party is liberally construed. (Ibid.)

2. Premises liability for "dog-bite" cases

We next examine three significant California dog-bite cases involving the liability of a landowner for damages caused by the dog of a lessee. The cases are Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504 (Uccello) (review den.), Donchin v. Guerre

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