Christine Tsuchida v. Gary Hill, et al

Defendants Crystal Keller (“Keller”), Hamilton Zanze, and Mission Rock Residential California, Inc.’s (“Mission Rock”; these three together, “Movants”) motion for summary judgment or, alternatively, summary adjudication is DENIED.

Background

This is a dog bite case. Plaintiff Christine Tsuchida (“Plaintiff”) alleges that on October 24, 2024, she and Gary Hill (“Hill”) were both residents at the Mission Rock at North Bay Apartments complex in Novato. (FAC, ¶ 13-14.) Hill allegedly “allowed his dog[,]” Lancelot, “to break free from his apartment[.]” (Id. at ¶ 14.) Lancelot allegedly bit the back of Plaintiff’s right arm as she returned to her apartment following a grocery shopping trip. (Id. at ¶¶ 14, 16.)

In addition to claims against Hill and as-yet-unidentified Does, Plaintiff’s FAC asserts a cause of action for negligence against Movants. The pleading describes Hamilton Zanze, a corporate entity, as the owner of the apartment complex at issue; Mission Rock as the property manager; and Keller as an agent, employee, or contractor of Hamilton Zanze, Mission Rock, and/or a Doe defendant. (FAC, ¶¶ 7-9.) Plaintiff alleges that Movants “created the dangerous conditions” leading to her injuries in that they had actual knowledge of Lancelot’s “dangerous propensities” for some time but did not issue warnings about him and did not take adequate measures to protect the complex’s residents from the dangerous dog. (Id. at ¶¶ 25-26.)

Before the Court is Movants’ motion for summary judgment, or, alternatively, summary adjudication.

Legal Standard

Any party may move for summary judgment. (Code of Civ. Proc, § 437c, subd. (a); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) The motion “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c); Aguilar, supra, 25 Cal.4th 826, 843.) Similarly, a party may move for summary adjudication as to a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Code Civ.

Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication . . . shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).) The object of the summary judgment procedure is “to cut through the parties’ pleadings” to determine whether trial is necessary to resolve the dispute. (Aguilar, supra, 25 Cal.4th 826, 843.)

The “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact.” (Aguilar, supra, 25 Cal.4th 826, 850; see Evid. Code, § 110.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Aguilar, supra, 25 Cal.4th 826, 851.) When the moving party is the defendant, the initial burden entails showing “that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ.

Proc., § 437c, subd. (p)(2).) Once the moving party has met its initial burden, the burden shifts to the opposing party to “show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subds. (p)(1)-(2).) “There is a genuine issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, 25 Cal.4th 826, 845.)

Discussion

Procedural Matters

The Court does not rule on Movants’ evidentiary objections because they were not material to its disposition of the motion. (See Code Civ. Proc., § 437c, subd. (q).) No Movant met the initial burden associated with a motion for summary judgment or adjudication, so the Court did not have occasion to reach Plaintiff’s evidence in opposition to the motion. (See Y.K.A. Industries Inc. v. Redevelopment Agency of City of San Jose (2009) 174 Cal.App.4th 339, 353-354 [“The moving party must satisfy his or her initial burden before the opposing party must controvert anything. . . .

Where the evidence submitted by a moving defendant does not support judgment in his favor, the court must deny the motion without looking at the opposing evidence, if any, submitted by the plaintiff.”].) The Court has not considered Movants’ “Reply to Plaintiff’s Separate Statement of Undisputed Material Facts in Opposition[,]” as the summary judgment statute does not provide for a “reply separate statement.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 306 [abrogated in unrelated part as stated in Serri v.

Santa Clara University (2014) 226 Cal.App.4th 830, 853, fn. 12].)

Merits

Issue No. 1: “Landlord Defendants Are Not Subject to Strict Liability Under Civil Code Section 3342”

This issue relates to Plaintiff’s Third Cause of Action for strict liability under Civil Code, section 3342. Section 3342 provides that “[t]he owner of any dog is liable for the damages suffered by any person who is bitten by the dog while in a public place or lawfully in a private place, including the property of the owner of the dog, regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness.” (Civ. Code, § 3342, subd. (a).) Movants argue that they cannot be liable under this provision because they are not Lancelot’s owners.

Movants have not been sued under Civil Code, section 3342, or on a strict liability theory under any other statute. The Third Cause of Action is asserted exclusively against Hill. The sole1 claim asserted against any Movant is the Second Cause of Action, which is not a strict liability claim.

Issue No. 2: “Landlord Defendants Lacked Actual or Constructive Knowledge of Defendant Hill’s Dog’s Presence or Dangerous Propensities”

Whether Plaintiff’s Second Cause of Action is considered a claim for general negligence or a claim for premises liability, the elements “are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158; see also Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619 [premises liability is a form of negligence].)

In Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, the Fifth District held that a landlord has a duty to protect another person against injury by a tenant’s dog only if the landlord has both actual knowledge of the dog’s dangerous propensities and the right to have it removed from the premises. (44 Cal.App.3d 504, 514.) Actual knowledge may be shown with circumstantial evidence, but only “if, in light of the [circumstantial] evidence,” the inference that the landlord had actual knowledge of the dog’s dangerous propensities “is not based on speculation or conjecture. Only where the circumstances are such that the defendant ‘must have known’ and not ‘should have known’ will an inference of actual knowledge be permitted.” (Id. at p. 514, fn. 4.)

Movants argue that none of them had actual knowledge of Lancelot’s dangerous propensities. Many of the facts they offer in support of this argument relate exclusively to Plaintiff’s knowledge of Lancelot’s temperament. (See, e.g., UMF Nos. 7, 9-11.) These facts are immaterial. That Plaintiff had no knowledge of Lancelot’s dangerous propensities is not probative of whether Movants had such knowledge. Similar considerations apply to evidence that Plaintiff herself had not reported issues with Lancelot to Movants prior to the incident. (UMF No. 6.) That Plaintiff did not report menacing behavior by Lancelot before the incident does not itself rule out that someone else did.

As to Movants’ actual knowledge regarding Lancelot, Movants offer that “[p]rior to the incident, Defendant Landlords did not receive any complaints, reports, or communications from Plaintiff or from any other tenant or person regarding Defendant Hill’s dog, its behavior, its presence at

1 Movants’ brief suggests that they believe they have been sued on both the First Cause of Action (“General Negligence”) and the Second Cause of Action (“Negligence” sounding in premises liability). (See Memorandum, p. 5 [“Plaintiff’s remaining claims for general negligence and premises liability are also barred.”].) To be clear, the only claim alleged against any Movant is the Second Cause of Action, which is a premises liability claim denominated “Negligence.” The First Cause of Action, “General Negligence,” is asserted only against Hill and Does 1-3. The Third Cause of Action, “Strict Liability,” is asserted against Hill only.

the Premises, or any alleged dangerous propensities.” (UMF No. 15.) “Defendant Landlords” appears to refer to all three Movants. (See Memorandum, p. 1 [defining term “Landlord Defendants”].)

The sole evidence offered in support of UMF No. 15 does not establish that UMF No. 15 is true for all three Movants. Movants rely on the declaration of Anne Birdseye, Mission Rock’s regional manager. (UMF No. 15; Birdseye Dec., ¶ 1.) Ms. Birdseye attests that prior to the incident at issue in this case, “neither [she] nor any other employee or agent of Mission Rock at North Bay received any complaints, reports, or communications from Plaintiff Christine Tsuchida or any other tenant or person regarding Defendant Hill’s dog, its behavior, its presence at the Premises, or any alleged dangerous propensities.” (Birdseye Dec., ¶ 6.)

Nowhere in her declaration does she attest to the actual knowledge, or lack thereof, of anyone other than herself and other employees or agents of Mission Rock. This evidence is not sufficient to establish a lack of actual knowledge on the part of Hamilton Zanze or Keller, as Movants have not presented evidence that Keller is an employee or agent of Mission Rock (as opposed to Hamilton Zanze), or that Hamilton Zanze and Mission Rock are related such that the two entities possess the same knowledge or lack thereof.

The complaint alleges that Hamilton Zanze and Mission Rock are different entities and does not specify whether Keller was employed by Hamilton Zanze, Mission Rock, or a Doe defendant. (FAC, ¶¶ 7-10.)

The motion is DENIED as to Keller and Hamilton Zanze. The Court proceeds as to Mission Rock only.

A declaration in support of a motion for summary judgment “shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated[.]” (Code Civ. Proc., § 437c, subd. (d).) Ms. Birdseye attests that Mission Rock has no records of any prior incidents, notices, reports, or complaints relating to Lancelot and dating before October 24, 2024, the date of the incident. (Birdseye Dec., ¶¶ 6, 9.) Ms.

Birdseye sets forth a basis for her personal knowledge of this fact: It was Mission Rock’s practice to document “any complaint or report . . . regarding a dangerous dog at the Premises[,]” and she did not find any such documentation upon personally “review[ing] the tenant files and maintenance records for the Premises[.]” (Id. at ¶¶ 8-9; see also UMF No. 16.) This is competent testimony based on the declarant’s personal knowledge.

The same cannot be said for the other critical assertion in Ms. Birdseye’s declaration, which is that no employee of Mission Rock had actual knowledge of Lancelot’s dangerous propensities before he attacked Plaintiff. (Birdseye Dec., ¶ 7 [“At no time prior to [October 24, 2024] did I, or to my knowledge any other Mission Rock employee, have actual knowledge of . . . any vicious or dangerous characteristics of the dog.”].) To the extent this statement is an effort by Ms. Birdseye to affirmatively testify that no Mission Rock employee knew, her declaration does not explain how she is supposedly privy to every other Mission Rock employee’s observations of or knowledge regarding this dog. (See Forest Lawn Memorial-Park Assn. v.

Superior Court (2021) 70 Cal.App.5th 1, 8 [declaration offered at summary judgment was without a foundation in personal knowledge because it provided no “reason to establish how [the declarant] might know the information to which she was testifying”].) To the extent she is merely testifying that she does not know for a fact that any other employee knew (see Birdseye Dec., ¶ 7

[qualifying her statement about other Mission Rock employees’ knowledge with “to my knowledge”]), that simply does not establish that, in fact, no Mission Rock employee had actual knowledge of Lancelot’s temperament.

Ms. Birdseye’s declaration is not competent evidence of the fact that no Mission Rock employee had actual knowledge of Lancelot’s temperament before the incident, and Movants offer no other evidence capable of proving this point. Movants cannot lean on their competent evidence that Mission Rock has no record of a complaint about Lancelot to establish this, because such evidence does not rule out the possibility that an employee of Mission Rock other than Ms. Birdseye witnessed Lancelot behaving in a way that demonstrated a dangerous propensity and then did not report it within the company. (See Binder v.

Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838 [at summary judgment, the moving party’s evidence is strictly construed].) Under those circumstances, Mission Rock would be considered to possess actual knowledge of Lancelot’s dangerous propensities. (See Fromberg v. Department of Alcoholic Beverage Control of Cal. (1959) 169 Cal.App.2d 230, 233 [“As a matter of general law the knowledge of an employee acquired during the transaction of his employer’s business is imputed to the latter with the same effect as if he had actually participated in the transaction.”].)

The mere absence of any documented complaints about Lancelot in Mission Rock’s records does not prove that it did not have actual knowledge about this dog’s temperament given the legal reality that Mission Rock’s employees’ undisclosed observations are imputed to Mission Rock.2 To meet their initial burden by negating the actual knowledge element of Plaintiff’s claim, Mission Rock needs to prove that it in fact did not know, not merely that it did not document knowledge. Where a defendant has failed to foreclose an avenue to liability, the trial court is to conclude that the defendant failed to carry its burden and deny the motion for summary judgment. (See Hawkins v.

Wilton (2006) 144 Cal.App.4th 936, 945.)

A defendant may, under certain circumstances, meet its initial burden at summary judgment by showing that the plaintiff lacks evidence necessary to satisfy an element of her claims, as opposed to by negating an element of the plaintiff’s cause of action. (See Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1438.) However, a defendant cannot do this by “simply point[ing] out” an absence of necessary evidence. (Aguilar, supra, 25 Cal.4th 826, 854-55; see also Weber, supra, 143 Cal.App.4th 1433, 1438 [quoting Aguilar].)

Instead, the moving party must present evidence sufficient to establish that the plaintiff both does not have and cannot reasonably obtain evidence to support its claims. (Ibid.; see also Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 83.) Litigants often do this by presenting the nonmoving party’s responses to comprehensive interrogatories “designed to elicit all the evidence [the] plaintiff[] ha[s] to support” a critical element of its claim – e.g., “State all facts supporting your claim that Mission Rock had actual knowledge of Lancelot’s dangerous propensities before the incident.” (Weber, supra, 143 Cal.App.4th 1433, 1442.)

A defendant is not required to use this method, but “must in same way show that the [nonmoving party] does not have and cannot reasonably obtain evidence” of a required element of its claim. (Ibid.) Movants’ motion does not do this. Whether

2 It may be practically impossible for an entity defendant to obtain summary judgment by negating an element of actual knowledge unless the entity presents a declaration from every employee or relevant response from plaintiff to a request for admission.

Plaintiff’s opposition presented sufficient evidence of actual knowledge is beside the point, because the Court has no occasion to assess Plaintiff’s opposition given that Movants did not satisfy their initial burden. (See Y.K.A. Industries, supra, 174 Cal.App.4th 339, 353-354.)

Because no Movant has carried the initial burden associated with a motion for summary judgment or adjudication, the motion is DENIED in full.

All parties must comply with Marin County Superior Court Local Rules, Rule 2.10(B) to contest the tentative decision. Parties who request oral argument are required to appear in person or remotely by ZOOM. Regardless of whether a party requests oral argument in accordance with Rule 2.10(B), the prevailing party shall prepare an order consistent with the announced ruling as required by Marin County Superior Court Local Rules, Rule 2.11.

The Zoom appearance information for September, 2026 is as follows: https://marin-courts-ca-gov.zoomgov.com/j/1605267272?pwd=908CbP6TV2mhCAyai1nzo6lyz2dKaw.1

Meeting ID: 160 526 7272 Passcode: 026935

If you are unable to join by video, you may join by telephone by calling (669) 254-5252 and using the above-provided passcode. Zoom appearance information may also be found on the Court’s website: https://www.marin.courts.ca.gov

DATE: 09/01/26 TIME: 1:30 P.M. DEPT: A CASE NO: CV0005504

PRESIDING: HON. STEPHEN P. FRECCERO

REPORTER: CLERK:

PLAINTIFF: SUSAN DAVIA

vs.

DEFENDANT: MAJIC PRODUCTS INC., ET AL

NATURE OF PROCEEDINGS: MOTION – ENTRY OF JUDGMENT

RULING

Plaintiff’s unopposed motion to approve the Proposition 65 settlement and enter judgment as to Defendants Majic Products, Inc., Guzman Enterprises, Inc. and Concept Communications Company is GRANTED. (Code Civ. Proc., § 664.6.)

Discussion

The proposed settlement agreement and consent judgment contains a provision whereby the parties stipulate that this Court shall have jurisdiction to enforce the settlement pursuant to Code of Civil Procedure section 664.6. Under section 664.6, the court is authorized to approve or disapprove a settlement agreement, but not to modify its terms. (Leeman v. Adams Extract & Spice, LLC (2015) 236 Cal.App.4th 1367, 1375.)

California Health and Safety Code section 25249.7(f)(4) requires judicial approval of the settlement of a Proposition 65 action between private parties. The court may not grant approval unless it finds that all the statutory requirements have been met. (Consumer Defense Group v. Rental Housing Industry Members (2006) 137 Cal.App.4th 1185, 1207.) As set forth in the statute:

If there is a settlement of an action brought by a person in the public interest under subdivision (d), the plaintiff shall submit the settlement other than a voluntary dismissal in which no consideration is received from the defendant, to the court for approval upon noticed motion, and the court may approve the settlement only if the court makes all of the following findings:

(A) The warning that is required by the settlement complies with this chapter.