Sanchez v. Villasenor

Filed 3/22/07 Sanchez v. Villasenor CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Jane L. Johnson, Judge. Affirmed.

Albert F. Coombes for Defendants and Appellants.

Law Offices of Andrew L. Ellis, Andrew L. Ellis and David Brand for Plaintiff and Respondent.

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This is a dog bite case in which the jury rendered a verdict in favor of the plaintiff. The defendants appeal. We affirm.

FACTS

Carlos Sanchez, a gas meter reader for the Southern California Gas Company, went to a residence owned by Renato and Rosario Villasenor to read the gas meter. Sanchez knew the Villasenors had dogs (and saw two dogs in the yard) and planned to read the meter through a fence with a scope, but his line of sight was blocked by a parked van. Sanchez knocked on a gate and Imelda Martinez (Renato Villasenors sister-in-law) came outside. Sanchez asked Martinez to confine the dogs so he could read the meter. She complied, put the two dogs in the house, and then unlocked the gate so Sanchez could enter the property. Unfortunately, there was a third dog (a pit bull named Chencho) which attacked Sanchez when he entered the property.[1]

Sanchez sued the Villasenors for negligence and strict liability under the dog bite statute, Civil Code section 3342.[2] The Villasenors answered and the case was tried to a jury which rendered a general verdict in favor of Sanchez and fixed his damages at $125,225.17 (allocating 80 percent of the fault to the Villasenors, the other 20 percent to Sanchez). The Villasenors appeal from the judgment thereafter entered.

DISCUSSION

I.

We summarily reject Rosario Villasenors contention that the judgment against her cannot stand because there is no evidence proving that she owned Chencho. Although liability under section 3342 attaches only to the owner of a dog ( 3342, subd. (a)), we know of no authority imposing such a limitation on a negligence cause of action (and none is cited). For this reason, the general verdict is not subject to attack on this ground. (Tavaglione v. Billings (1993) 4 Cal.4th 1150, 1155 [where an appeal is taken from a judgment on a general verdict returned on several causes of action, it is presumed that the jury found in favor of the prevailing party on each cause of action, and the judgment must be affirmed if any one cause of action is supported by substantial evidence]; Bresnahan v. Chrysler Corp. (1998) 65 Cal.App.4th 1149, 1153 [when several causes of action are tried together, a general verdict will not be disturbed on appeal if any one cause of action is supported by substantial evidence and is unaffected by error].)

II.

We summarily reject the Villasenors' contention that the trial court should have applied the doctrine of primary assumption of the risk as a complete bar to Sanchezs recovery and dismissed the action on this ground. Their point seems to be that a dog attack is an integral part of meter reading within the meaning of Knight v. Jewett (1992) 3 Cal.4th 296, 315-321 (holding that the doctrine applies to an activity where conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the [activity] itself). That is certainly not the case here -- where the activity (meter reading) is not inherently dangerous by reason of dogs or any other hazard.

We know of no rule barring meter readers from suing for dog bites or, conversely, absolving dog owners of liability for dog bites simply because the victim happens to be a meter reader. (Compare Knight v. Jewett, supra, 3 Cal.4th 296 [touch football]; Balthazor v. Little League Baseball, Inc. (1998) 62 Cal.App.4th 47 [baseball]; Cheong v. Antablin (1997) 16 Cal.4th 1063 [skiing].) We reject the Villasenors effort to align Sanchez with a veterinarian or dog groomer, both of whom are compensated for their expertise with animals and thus cannot sue when bitten. (E.g., Cohen v. McIntyre (1993) 16 Cal.App.4th 650; Nelson v. Hall (1985) 165 Cal.App.3d 709; Prays v. Perryman (1989) 213 Cal.App.3d 1133.) A meter reader is paid to read meters and he does not have control of the animals he encounters on the job.

DISPOSITION

The judgment is affirmed. Sanchez is awarded his costs of appeal.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

MALLANO, Acting P.J.

JACKSON, J.*

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*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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[1] The Villasenors opening brief does not include a statement of facts or a summary of the evidence. For this reason alone, we could and should affirm the judgment (Cal. Rules of Court, former rule 14, now rule 8.204; Margott v. Gem Properties, Inc. (1973) 34 Cal.App.3d 849, 853) but nevertheless summarily respond to the issues raised on appeal, such as they are.

[2] All section references are to the Civil Code.