Filed 12/17/20 Woodard v. City of Los Angeles CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
BEVERLY WOODARD, B300208
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC684557)
v.
CITY OF LOS ANGELES,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Christopher K. Lui, Judge. Affirmed.
Sadara DeVonne for Plaintiff and Appellant.
Michael N. Feuer, City Attorney, Kathleen A. Kenealy,
Chief Asst. City Attorney, Scott Marcus, Senior Assistant City
Attorney, Blithe S. Bock, Managing Assistant City Attorney and
Sara Ugaz, Deputy City Attorney for Defendant and Respondent.
__________________
Beverly Woodard appeals the judgment entered after the
trial court granted summary judgment in favor of the City of
Los Angeles in her action for negligence. Woodard contends the
court erred in ruling the City and its employees in the animal
control division owed no duty to protect her from her neighbors’
dog. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Woodard’s Complaint
In February 2017 Woodard noticed two dogs owned by her
neighbors Gerardo Lopez and Lucia Reyes digging a hole
underneath the fence separating their adjoining properties.
Believing the dogs were going to enter her yard, Woodard
grabbed a piece of wood and used it to try to close the hole. As
Woodard attempted to do this, one of the dogs poked his head
through, grabbed her hand and bit off part of her finger.
Woodard sued the City, Lopez and Reyes in a form
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complaint asserting a single cause of action for negligence. As to
the City, Woodard alleged she had contacted its animal control
division on numerous occasions over the years to complain about
the neighbors’ dogs and the City “failed or neglected to take
appropriate measures to safeguard” her.
2. The City’s Motion for Summary Judgment
The City moved for summary judgment, arguing it was
immune from liability for ordinary negligence under the
Government Claims Act. As for its potential vicarious liability
for the acts of its employees, the City contended the animal
control officers owed no duty to protect Woodard from her
1
Woodard settled her action with Lopez and Reyes prior to
trial.
2
neighbors’ dogs and, even if they did, they were immune from
liability for their discretionary acts under the Government
Claims Act.
In support of its motion the City documented the
four occasions on which Woodard had contacted animal control
over the years. In October 2012 Woodard made a “dangerous
animal” complaint. In July 2014 she reported one of Reyes and
Lopez’s dogs had escaped and charged her front door, preventing
her from leaving her home. In August 2014 she reported a stray
dog. According to the City’s records, the first two claims were
investigated and closed after speaking with the dogs’ owners.
The August 2014 complaint was closed after neither the stray dog
nor its owner could be located. The final call, in February 2017,
was made after the dog bite that is the subject of this case.
Chimeng Vang, an animal control officer employed by the
City’s Department of Animal Services, stated in his supporting
declaration that his job as an animal control officer required him
to “pick up sick, injured and stray, vicious or unwanted animals”
and investigate claims. According to Vang, in deciding whether
to impound a dog, the animal control officer considers whether
(1) the dog has injured a person or animal and, if so, the severity
of the injury; (2) the dog is a danger to the public; and (3) the dog
can be adequately confined on its owner’s property, a
determination made after inspecting the property or obtaining
the owner’s assurances the dog will be kept inside. “The decision
to impound or not to impound a dog is left to the sole discretion of
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the investigating Animal Control Officer.”
2
Vang was the officer who responded to the dog attack on
Woodard in February 2017. He was not involved in responding to
her prior calls.
3
In her opposition papers Woodard argued the City was
vicariously liable for the negligence of its animal control
employees. Those City employees, she asserted, had a duty of
due care to Woodard because they “caused [Woodard] to believe
that it was their jobs to protect and serve the public at large
against injury and damage which could be caused by potential
vicious dogs lurking in the neighborhood and particularly, in this
case, next door to [Woodard] who has made several reports to
them that she had been threatened by aggressive dogs right next
door to her, that had made several attempts to attack her.”
Woodard provided declarations from neighbors attesting they
were fearful of the dogs because they had escaped their owners’
yard on prior occasions and seemed menacing. Despite the
obvious danger presented, Woodard argued, the animal control
officers did nothing to reduce the threat posed by these dogs.
The court granted the City’s motion. Confirming Woodard’s
negligence claim against the City was based solely on a theory of
vicarious liability, as Woodard had pleaded, the court ruled the
City’s employees owed no duty to Woodard. The court explained
the City had presented evidence that no employee had
represented or otherwise induced Woodard to believe that the
officer, or the City, would or could protect her from her neighbors’
dogs, and Woodard’s opposition failed to provide any evidence
establishing such a special relationship existed. Unless the
animal control officers had created or increased the peril to
Woodard or induced her reliance on them to ameliorate the
danger, the court ruled, no special relationship existed giving rise
to a duty to protect Woodard from her neighbors’ dogs. The court
did not address the City’s defense of immunity for the
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discretionary acts of its employees, concluding the issue was moot
in light of its ruling on the question of duty.
DISCUSSION
1. Standard of Review
A motion for summary judgment is properly granted only
when “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); see Regents of University of California v. Superior Court
(2018) 4 Cal.5th 607, 618 (Regents).) A defendant may bring a
motion on the ground the plaintiff cannot prove one of the
required elements of the case or there is a complete defense to the
action. (Code Civ. Proc., § 437c, subds. (o)(1), (2) & (p)(2); Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.)
To carry its initial burden when the motion is directed to
the plaintiff’s case rather than an affirmative defense, a
defendant must present evidence that either “conclusively
negate[s] an element of the plaintiff’s cause of action” or “show[s]
that the plaintiff does not possess, and cannot reasonably obtain,”
evidence necessary to establish at least one element of the cause
of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at
pp. 853-854.) Only after the defendant carries that initial burden
does the burden shift to the plaintiff “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, subd. (p)(2).)
We review a grant of summary judgment de novo and,
viewing the evidence in the light most favorable to the
nonmoving party (Regents, supra, 4 Cal.5th at p. 618), decide
independently whether the facts not subject to triable dispute
warrant judgment for the moving party as a matter of law.
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(Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347;
Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 618.)
2. Governing Law
Under the Government Claims Act a public entity may not
be held directly liable for torts “[e]xcept as otherwise provided by
statute.” (Gov. Code, § 815; see State ex rel. Dept. of California
Highway Patrol v. Superior Court (2015) 60 Cal.4th 1002, 1009
[“[i]f the Legislature has not created a statutory basis for it, there
is no government tort liability”].) A public entity may be held
vicariously liable for injuries proximately caused by an act or
omission of its employee within the scope of employment only
when “the act or omission would, apart from this section, have
given rise to a cause of action against that employee.” (Gov.
Code, § 815.2, subd. (a).)
Except as otherwise provided by statute, public employees
are liable for their torts “to the same extent” as private persons.
(Gov. Code, § 820, subd. (a); State ex rel. Dept. of California
Highway Patrol v. Superior Court, supra, 60 Cal.4th at p. 1009;
see Yee v. Superior Court (2019) 31 Cal.App.5th 26, 39-40.) A
public employee is statutorily immune from liability for
discretionary acts within the course and scope of employment,
even when that discretion has been abused. (Gov. Code, § 820.2.)
3. The Trial Court Did Not Err in Granting the City’s
Motion for Summary Judgment
Woodard contends the court erred in ruling as a matter of
law the animal control officers did not owe her a duty of care.
(See generally Regents, supra, 4 Cal.5th at p. 618 [to prevail on a
cause of action for negligence, a plaintiff must demonstrate a
legal duty to use due care, breach of that duty, causation and
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damages]; Vasilenko v. Grace Family Church (2017) 3 Cal.5th
1077, 1083.)
The rule on liability for nonfeasance is well established: “‘A
person who has not created a peril is not liable in tort merely for
failure to take affirmative action to assist or protect another
unless there is some [special] relationship between them which
gives rise to a duty to act.’” (Regents, supra, 4 Cal.5th at p. 619;
accord, Williams v. State of California (1983) 34 Cal.3d 18, 23;
Frausto v. Department of California Highway Patrol (2020)
53 Cal.App.5th 973, 992; see Rest.3d Torts, Liability for Physical
and Emotional Harm, § 40, subd. (a) [“[a]n actor in a special
relationship with another owes the other a duty of reasonable
care with regard to risks that arise within the scope of the
relationship”].) “‘[A] typical setting for the recognition of a
special relationship is where ‘the plaintiff is particularly
vulnerable and dependent upon the defendant who,
correspondingly, has some control over the plaintiff’s welfare.’”
(Regents, at p. 621 [citing as examples of special relationships
those between common carriers and their passengers, a jailer and
its prisoners, innkeepers and patrons].)
“[L]aw enforcement officers, like other members of the
public, generally do not have a legal duty to come to the aid of
[another] person” unless they engage in an affirmative act that
increases the risk of harm or fail to act when they have promised
otherwise and, by doing so, induced the plaintiff’s reliance on that
promise or otherwise increased the peril to plaintiff. (Lugtu v.
California Highway Patrol (2001) 26 Cal.4th 703, 717; accord,
Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1129;
Frausto v. Department of California Highway Patrol, supra,
53 Cal.App.5th at p. 992.) Thus, for example, an animal control
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officer who requests one’s assistance in capturing a stray dog has
increased the peril to that person and owes a duty of due care to
the individual the officer recruited. (Walker v. County of Los
Angeles (1987) 192 Cal.App.3d 1393, 1403.) On the other hand,
public safety officers who have done nothing to increase the peril
are not liable for failing to protect a citizen from a crime
committed by third parties simply because the crime was
foreseeable; there is no special relationship between a police
department or its officers, on the one hand, and the citizenry, on
the other hand, simply by virtue of the department’s mission to
protect the public. (Zelig, at p. 1130; Davidson v. City of
Westminster (1982) 32 Cal.3d 197, 207.)
The City argued in its motion no special relationship
existed between its animal control officers and Woodard, and
thus they owed her no duty of care, citing Woodard’s testimony
that the officers never told her they could or would protect her
from the dogs. In her opposition papers Woodard did not cite any
action or statement by an animal control officer that induced her
reliance or any affirmative conduct by them that increased her
risk of harm. She argued simply that the animal control officers
had failed to act even though the dog that bit her was dangerous
and the officers, whose job it was to protect the public from
dangerous animals, had notice of the danger by virtue of her prior
reports. As the trial court ruled, that evidence was insufficient to
defeat the City’s summary judgment motion. Absent evidence
that the animal control officers created the peril or took
affirmative action that contributed to, increased or changed the
risk that otherwise existed, or evidence that plaintiff
detrimentally relied on the officers’ conduct or statements that
had induced a false sense of security, which Woodard failed to
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provide, there was no special relationship between the officers
and Woodard giving rise to a duty of due care on the part of the
City employee.
Insisting the City must have some obligation to protect the
public from dangerous dogs, Woodard cites for the first time on
appeal two Los Angeles Municipal Code sections.
Section 53.34.2, subdivision (a), of the Los Angeles Municipal
Code provides, “The Department [of Animal Services] shall have
the power to summarily and immediately impound a dog or other
animal where there is evidence it has attacked, bitten or injured
any human being or other animal pending any court or dog
license or animal permit revocation proceeding arising from the
attack, bite or injury[.] . . . A duly authorized Department
employee may enter and inspect private property to enforce
provisions of this section.” Section 53.05 of the same code
provides, “It shall be the duty of the General Manager or his
authorized representatives to take up and impound in the City
pound . . . those animals which are authorized and directed to be
taken up and impounded by this article.”
Woodard did not allege in her complaint, her opposition
papers in the trial court or in her appellate brief that the City
was directly liable for the violation of a mandatory duty.
(See Gov. Code, §§ 815.6 [“[w]here a public entity is under a
mandatory duty imposed by an enactment that is designed to
protect against the risk of a particular kind of injury, the public
entity is liable for an injury of that kind proximately caused by
its failure to discharge the duty unless the public entity
establishes that it exercised reasonable diligence to discharge the
duty”], 810.6 [defining “enactment” to include statute, ordinance
or regulation].) To the extent Woodard’s citation to the municipal
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code sections can be broadly interpreted to suggest such an
argument, it is too late. (See Cerna v. City of Oakland (2008)
161 Cal.App.4th 1340, 1349-1350 [“[t]o assert liability under
Government Code section 815.6 for breach of a mandatory duty, a
plaintiff must specifically allege liability in his or her complaint
and identify the applicable statute or regulation that imposes the
alleged mandatory duty”]; Washington v. County of Contra Costa
(1995) 38 Cal.App.4th 890, 896.) “The pleadings limit the issues
on a motion for summary judgment [citation], and theories that
were not fully developed in the trial court cannot create a triable
issue on appeal.” (Cerna, at pp. 1349-1350 [rejecting the
appellant’s effort to create a claim under Government Code
section 815.6 for first time on appeal].)
Finally, even if Woodard had properly pleaded and argued
the City was directly liable for violation of a mandatory duty
based on Los Angeles Municipal Code section 53.34.2, it would
not defeat summary judgment. Los Angeles Municipal Code
section 53.34.2 vests the Department with certain discretionary
powers. It does not mandate a particular action. (See Haggis v.
City of Los Angeles (2000) 22 Cal.4th 490, 498 [Government Code
section 815.6 “requires that the enactment at issue be obligatory,
rather than merely discretionary or permissive, in its directions
to the public entity; it must require, rather than merely authorize
or permit, that a particular action be taken or not taken.
[Citation.] It is not enough, moreover, that the public entity or
officer have been under an obligation to perform a function if the
function itself involves the exercise of discretion”].)
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DISPOSITION
The judgment is affirmed. The City is to recover its costs
on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
*
DILLON, J.
*
Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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