Jose Ordonez Miranda vs Arlene Montesano et al

Case Number

23CV05229

Case Type

Hearing Date / Time

Fri, 02/27/2026 - 10:00

Nature of Proceedings

Motion for Summary Judgment

Tentative Ruling

For all reasons discussed herein, defendant Arlene Montesano’s motion for summary judgment or, in the alternative, summary adjudication is denied.

Background:

This action commenced on November 27, 2023, by the filing of the original complaint by plaintiff Jose Ordonez Miranda (plaintiff) against defendant Arlene Montesano (Arlene) for general negligence and premises liability. (Note: Due to common surnames, defendants will be referred to by their given names for clarity. No disrespect is intended.) The original complaint alleged that Arlene’s dogs attacked and bit plaintiff.

On January 30, 2024, plaintiff filed the operative first amended complaint (FAC) against Arlene and Siena Montesano (Siena), for strict liability, negligence, and premises liability. As alleged in the FAC, on January 10, 2022, at 937 Cima Linda Lane, Santa Barbara, plaintiff was lawfully working on the premises when he was attacked by two dogs that were owned by Siena. The FAC alleges that Arlene owned the property and allowed Siena and her dogs to regularly inhabit the premises and use common areas despite knowing that employees were working on the property. The FAC further alleges that Arlene and Siena both knew of the dogs’ dangerous propensities.

On May 7, 2024, by way of stipulation and order, the first cause of action for strict liability, as well as punitive damages allegations, were stricken as to Arlene.

On June 3, 2024, Siena answered the FAC with a general denial and 10 affirmative defenses.

On November 20, 2024, Arlene answered the FAC with a general denial and 35 affirmative defenses.

On September 19, 2025, Arlene filed the present motion for summary judgment or, in the alternative, summary adjudication, arguing that she did not own the dogs, was not present at the time of the incident, and did not have prior knowledge of either dog’s allegedly dangerous or vicious propensity and could not have foreseen that the dogs would pose a danger to plaintiff.

Plaintiff opposes the motion.

Analysis:
 

          Standard on Summary Judgment

A defendant’s motion for summary judgment asks the court to determine that the entire action has no merit, and to terminate the action without the necessity of a trial. (Code Civ. Proc., § 437c, subd. (a).) The procedure enables the court to look behind the pleadings to determine whether the party against whom the motion is directed has evidence to back up the claims. The court must determine from the evidence presented 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).)

“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) There is no obligation on the opposing party to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element necessary to sustain an adjudication in his favor. (Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 468.) “[W]e liberally construe plaintiff’s evidentiary submissions and strictly scrutinize defendant’s own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff’s favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.)

“A defendant … has met his or her burden of showing that a cause of action has no merit if the 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 the cause of action. Once the 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 the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

In resolving the motion, the court may not weigh the evidence. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) Rather, the role of the trial court in resolving a summary judgment motion is to determine whether issues of fact exist, not to decide the merits of the issues. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) A triable issue of material fact exists 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 v. Atlantic Richfield, supra, 25 Cal.4th at p. 850.) Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Molko v. Holy Spirit Assn., supra at p. 1107.)

            Role of Pleadings and Application of Law

“The pleadings play a key role in a summary judgment motion.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493 (Hutton).) “The materiality of a disputed fact is measured by the pleadings [citations], which ‘set the boundaries of the issues to be resolved at summary judgment.’ [Citations.]” (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250.) “Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff’s theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings. [Citations.]” (Hutton, supra, 213 Cal.App.4th at p. 493.)

As noted above, following the stipulation to strike portions of the FAC, as they pertain to Arlene, the FAC alleges that Arlene’s negligence caused or contributed to the dog attack and that she is also responsible for plaintiff’s injuries based on premises liability.

Arlene argues that both causes of action alleged against her fail because she did not own the dogs involved, was not present on the premises at the time of the incident, and did not have knowledge of either dog’s allegedly dangerous or vicious propensity, and thus did not owe or breach a duty owed to plaintiff.

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. [Citations.] Premises liability “ ‘ “is grounded in the possession of the premises and the attendant right to control and manage the premises” ’ ”; accordingly, “ ‘ “mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.” ’ ” [Citations.] But the duty arising from possession and control of property is adherence to the same standard of care that applies in negligence cases. [Citation.]” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.)

“Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” (Civ. Code, § 1714, subd. (a).)

Arlene cites several cases in support of her argument that she would have to have actual knowledge of the dogs’ dangerous propensities to be held liable. However, those cases involve landlord and tenant relationships where the tenant has possession and control of the land. That is not the case here.

As plaintiff points out, this case much more closely resembles Salinas v. Martin (2008) 166 Cal.App.4th 404 (Salinas) than any of the cases cited by Arlene.

In Salinas, respondent/defendant was the owner of a residence where he embarked upon a remodeling project at the residence that included construction of a new foundation. Respondent hired a general contractor for the project who, in turn, hired appellant/plaintiff as an employee to work on the construction project for a period of three to four months. With respondent’s approval, appellant and the general contractor stored equipment and materials in the back yard and garage of the residence, and appellant was given permission by respondent to enter the yard at any time to retrieve equipment or materials he stored there.

In Salinas, two other men that were hired by respondent to perform weeding and gardening work on the premises, had two dogs that respondent agreed could be kept loose in the fenced back yard and in a van they kept on the property. According to respondent, he did not see or hear the dogs attack, bite, or appear aggressive with anyone, and that the dogs appeared “tame and friendly.” Appellant was attacked and bit by one of the dogs repeatedly until appellant managed to jump onto respondent’s car. The trial court determined that respondent had no duty of care to appellant to prevent the attack, stating 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. Based on this, the trial court granted summary judgment in favor of the property owner respondent. The Salinas court reversed the ruling of the trial court.

A landowner “ ‘ “ ‘has an affirmative duty to exercise ordinary care to keep the premises in a reasonably safe condition, and therefore must inspect them or take other proper means to ascertain their condition. And if, by the exercise of reasonable care, he would have discovered the dangerous condition, he is liable.’ ” ’ [Citation.]’ ” [Citation.]” (Salinas, supra, 166 Cal.App.4th at p. 412.)

“ ‘An exception to the statutory rule of liability for failure to use ordinary care in the management of one’s property requires clear support in public policy.’ ” [Citation.] “ ‘ “In the case of a landowner’s liability for injuries to persons on the property, the determination of whether a duty exists, “ ‘involves the balancing of a number of considerations; the major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’ ” [Citations.]’ [Citation.]’ ” [Citations.]” (Salinas, supra, 166 Cal.App.4th at p. 412.)

“[W]here a landlord has relinquished control of property to a tenant, a “ ‘bright line’ ” rule has developed to moderate the landlord’s duty of care owed to a third party injured on the property as compared with the tenant who enjoys possession and control. “ ‘ “Because a landlord has relinquished possessory interest in the land, his or her duty of care to third parties injured on the land is attenuated as compared with the tenant who enjoys possession and control. Thus, before liability may be thrust on a landlord for a third party’s injury due to a dangerous condition on the land, the plaintiff must show that the landlord had actual knowledge of the dangerous condition in question, plus the right and ability to cure the condition.” ’ [¶] Limiting a landlord’s obligations releases it from needing to engage in potentially intrusive oversight of the property, thus permitting the tenant to enjoy its tenancy unmolested.’ ” [Citations.]” (Salinas, supra, 166 Cal.App.4th at p. 412.)

“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.” (Salinas, supra, 166 Cal.App.4th at p. 413.)

“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 actual knowledge of the vicious nature of the dogs and his ability to prevent the attack, as we would if he was a residential landlord. [Citation.] Instead, we must examine the totality of the factors “ ‘set forth in Rowland v. Christian (1968) 69 Cal.2d 108,’ ” that are pertinent to determination of the scope of respondent’s duty. [Citations.]” (Salinas, supra, 166 Cal.App.4th at pp. 414 – 415.)

The Salinas court then went on to consider Rowland factors, including foreseeability of the risk, where the court demined that even though “respondent had no knowledge of prior specific incidents of violence or aggressiveness by the dogs, the evidence demonstrates that he must be charged with awareness of the risk.” (Salinas, supra, 166 Cal.App.4th at p. 415.) The court also found persuasive that respondent retained complete possession and control of the property and that the dog owners had no right to keep dogs there without his express consent. Those facts are the same as those present here.

The undisputed facts in the present case reveal that there are triable issues that preclude the granting of summary judgment. It is undisputed, or not reasonably disputed, that:

Arlene was not an absentee landlord. She had complete possession and control over her property. Siena was not a tenant but, rather, was there as an invitee with her dogs on a regular basis. Siena was not vested with any entitlement to keep the dogs on the premises without Arlene’s permission. Further, there are conflicting inferences regarding foreseeability of harm from the dogs. It is undisputed that Arlene had several years of experience with the dogs, including helping Siena purchase them, feeding them, walking them, playing with them, and otherwise taking care of them. It is also undisputed that the dogs have displayed some behaviors consistent with territorial aggression such as fighting each other and barking at people.

Plaintiff has submitted an expert declaration of Patrick Melese, D.V.M., M.A., DACVB. Melese. On paper, Melese appears to be well qualified in animal behavior, including canine aggression towards humans. While some of Melese’s “expert opinions” are merely legal conclusions, he does provide admissible testimony showing that there are triable issues regarding foreseeability and dangerous propensities of the dogs that bit plaintiff.

Arlene’s reply to plaintiff’s opposition does nothing to support the motion for summary judgment. Rather, it assists plaintiff in showing that there are triable issues by arguing the merits of the case. “The trial court may not weigh the evidence in the manner of a fact finder to determine whose version is more likely true.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.)

The court finds that Arlene owed a duty to plaintiff. The question is therefore with the trier of fact as to whether that duty was breached.

“ ‘Breach of duty is usually a fact issue for the jury; if the circumstances permit a reasonable doubt whether the defendant’s conduct violates the standard of due care, the doubt must be resolved by the jury as an issue of fact rather than of law by the court. [Citation.]’ ” [Citations.]” (Constance B. v. State of California (1986) 178 Cal.App.3d 200, 207.)

The motion for summary judgment or, in the alternative, summary adjudication, will be denied.

Arlene’s objections to plaintiff’s evidence in opposition are all overruled. Likewise, Plaintiff’s objections to Arlene’s evidence in support are all overruled.