Is a California Landlord Liable for Tenant's Dogs with Dangerous Propensities?
In the recent California decision in Fraser v. Farvid, the appellate court affirmed the trial court's decision in the case where Plaintiff Joni Fraser was attacked by two pit bulls who escaped from a single-family residence their owner, Hebe Crocker (Crocker or tenant), leased from Ali Farvid and Lilyana Amezcua (defendants or landlords).
Plaintiff sued Crocker and defendants. Plaintiff settled with Crocker.
The case against the landlords proceeded to trial, and a jury found plaintiff proved that defendants had actual knowledge of the dangerous propensity of Crocker’s dogs and could have prevented foreseeable harm to plaintiff. The jury found plaintiff suffered damages of more than $600,000.
The trial court granted defendants’ motion for judgment notwithstanding the verdict (JNOV), finding no substantial evidence was produced at trial demonstrating defendants’ knowledge of the dogs’ dangerous propensities.
Under California law, a landlord who does not have actual knowledge of a tenant’s dog’s vicious nature cannot be held liable when the dog attacks a third person.
Without knowledge of a dog’s propensities a landlord will not be able to foresee the animal poses a danger and thus will not have a duty to take measures to prevent the attack.
This “actual knowledge rule” can be satisfied by circumstantial evidence the landlord must have known about the dog’s dangerousness as well as direct evidence he actually knew.
The appellate court agreed with plaintiff that there was evidence from which the jury could have disbelieved defendants’ testimony that they did not know there were any dogs on the property.
But the only other evidence plaintiff relies on to establish defendants actually knew the dogs were dangerous—other than challenges to defendants’ credibility—was an e-mail from a next-door neighbor about the state of the property.
This e-mail was neither direct nor circumstantial evidence that defendants knew or must have known the tenant’s dogs were vicious.
The e-mail in question, sent on May 29, 2017, about 15 months before plaintiff was attacked read: “Hi Lilyana and Ali – I hope that you are getting a nice mini break with the holiday. Lorne and I wanted to let you know of your house. We aren’t sure how much you know. There is a new person living there. It is the same woman but it seems she may be either subletting or have an extended guest. . . . On the good end, they are no longer burning left over marijuana plants and they are so quiet. Even the 2 guard dogs in the back are quiet. Hopefully, it’s just the outside and inside is in good repair. We are not sure if you have a property manager who can check things out. We do miss having neighbors that we can talk to. Leigh.”
Plaintiff contended this e-mail “itself constitutes ‘substantial evidence’ of defendants’ knowledge that the dogs were dangerous.”
Plaintiff argued the e-mail’s reference to two “guard dogs,” plus defendants’ “false exculpatory statements” that they did not know the tenant kept any dogs on the property, constitutes affirmative evidence of actual knowledge that the dogs were vicious.
Defendants, on the other hand, contended none of this constituted evidence from which a reasonable juror could infer they knew or must have known of the dogs’ vicious nature.
In 2018, while she was walking her dog in the neighborhood, plaintiff was attacked by Crocker’s two pit bulls. The dogs had escaped from Crocker’s back patio after someone left the gate unlatched.
The facts about the attack and the severity of plaintiff’s injuries were not disputed.
Defendants, a married couple, have owned the subject property since 2005.
In December 2015, defendants leased the property to Crocker for a one-year term, and after that Crocker continued to rent the premises on a month-to-month basis.
The lease prohibited subletting without permission and prohibited dogs without permission.
About a year after she moved in, Crocker acquired the dogs, and after rehabilitating them on a friend’s ranch for six months, she brought the dogs to the property.
She testified they were her emotional support dogs. She did not ask the defendants’ permission; and she never explicitly told them about the dogs.
Defendants did not produce the May 2017 e-mail in discovery.
At her deposition in April 2019, defendant Amezcua testified she had no communications from anyone about dogs on the premises.
In May 2019, Ramos-Platt forwarded the May 2017 e- mail to counsel for plaintiff, in response to a subpoena, saying it was the only e-mail she had regarding communication with the landlords.
Amezcua authenticated the e-mail at trial.
Defendant Farvid testified that prior to the attack, he had no idea the dogs were there, and no one ever told him there were guard dogs on the property. He testified that if he had seen any dogs being kept on the property, he would have brought that up with Crocker, especially if they were these dogs, because that would have been a breach of the lease.
When he was shown the May 2017 e-mail at trial, he said he did not recall seeing the e-mail before.
Defendant Amezcua also answered, “Not that I recall,” to the question whether, prior to the attack, she knew there were any dogs on the premises.
There was testimony from Susan Murray that in June 2017, the dogs attacked her 20-pound dog while she and her husband were walking their dogs. Murray had a puncture wound on her index and middle fingers inflicted by one of the pit bulls while she was trying to separate the dogs.
However, Murray did not report the attack to animal control authorities. She did not want the dogs to be put down, and she believed Crocker would always leash her dogs in the future and that it wouldn’t happen again. She also testified she never had any communication with either of defendants.
At trial, the jury found (9 to 3) both defendants had actual knowledge of the dangerous propensity of the dogs and had the ability to prevent foreseeable harm to plaintiff.
The jury found Crocker 60 percent responsible, and each of defendants 20 percent responsible. Plaintiff’s damages amounted to $604,977.10.
In its ruling on defendants’ JNOV motion, the trial court found there was an absence of any evidence that Defendants Farvid and Amezcua had actual knowledge that Crocker’s dogs were dangerous and vicious prior to the incident involving Plaintiff.
Regarding the May 2017 e-mail from Ramos-Platt mentioning “the 2 guard dogs,” the court stated: “In fact, the ‘guard dog’ comment says nothing to warn anyone about these dogs’ dangerous propensities but has been used by Plaintiff’s counsel to suggest that this comment, not remembered by Amezcua, is compelling proof that both Farvid and Amezcua had knowledge of the dangerous and vicious propensities of the two dogs.”
The court found the comment lacked “sufficient substantiality” to support a finding that defendants knew the dogs had dangerous propensities.
A motion for judgment notwithstanding the verdict may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support.
The standard of review on appeal is the same: whether any substantial evidence—contradicted or uncontradicted—supports the jury’s conclusion.
As already mentioned, to establish a landlord’s liability, the plaintiff must present either direct evidence the landlord actually knew about the dog’s dangerousness or circumstantial evidence that the landlord must have known.
Actual knowledge can be inferred from the circumstances only if, in the light of the evidence, such inference 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.
The appellate court agreed with the trial court that there is neither direct nor circumstantial evidence that defendants knew or must have known Crocker’s dogs were dangerous.
Plaintiff contended the May 2017 e-mail alone constitutes substantial evidence defendants were told the dogs were dangerous, because calling the pit bulls ‘guard dogs’ was the same thing as calling them ‘vicious’ or ‘dangerous. Plaintiff argued guard dogs are presumed vicious.
The appellate court disagreed, finding there is no reasonable basis for drawing an inference from the May 2017 e-mail that defendants knew or must have known the dogs were dangerous.
Plaintiff contended that defendants’ "false exculpatory statements” that they were unaware of any dogs being kept on the property “constitutes evidence that they knew the dogs were dangerous.
In this case, there is no evidence at all of defendants’ knowledge of the dogs’ vicious propensities. No one other than Crocker and Murray (the person who was bitten in the June 2017 incident) had any knowledge the dogs were dangerous before the August 2018 attack, and they told no one.
Under the circumstances, the inconsistencies in defendants’ testimony about their knowledge of any dogs on the property could not, standing alone, justify an inference they knew or must have known the dogs were vicious.
Nor was there any merit to plaintiff’s claim that defendants ratified Crocker’s conduct by allowing her to keep her dogs after the attack.
The trial court correctly concluded there was no evidence of ratification, and the jury was not instructed on and made no finding on ratification.
LESSONS:
1. A landlord should remain aware of the presence of dogs and their character in rental units, and should determine if any have a vicious nature.
2. The “actual knowledge rule” can be satisfied by circumstantial evidence the landlord must have known about the dog’s dangerousness as well as direct evidence he actually knew.
3. Under California law, a landlord who does not have actual knowledge of a tenant’s dog’s vicious nature cannot be held liable when the dog attacks a third person.
4. A landlord should have a written lease that limits the number and nature of dogs by tenants, and such lease provisions should be enforced.