Breeden v. Superior Court CA1/2

• Court: California Court of Appeal
• Decided: October 10, 2014
• Docket: E061553
• Status: Unpublished

Opinion

Filed 10/10/14 Breeden v. Superior Court CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

PERCY ALLEN BREEDEN, as Trustee, etc., E061553 Petitioners, (Super.Ct.No. CIVDS1301562) v. OPINION THE SUPERIOR COURT OF SAN BERNARDINO COUNTY,

Respondent;

DALE G. DAVIS,

Real Party in Interest.

ORIGINAL PROCEEDINGS; petition for writ of mandate. Donna G. Garza,

Judge. Petition granted.

Greines, Martin, Stein & Richland, Robert A. Olson, Alana H. Rotter; Law Offices

of Vivian L. Schwartz, Kevin B. Bevins; Early, Maslach & Hartsuyker, James Grafton

Randall for Petitioners.

1 No appearance for Respondent.

Mansell & Mansell, Paul D. Fitzgerald for Real Party in Interest.

In this matter we have reviewed the petition and the opposition filed by real party

in interest. We have determined that resolution of the matter involves the application of

settled principles of law, and that issuance of a peremptory writ in the first instance is

therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171,

178.)

DISCUSSION

Real party in interest is employed as an animal control officer. While performing

the duty of taking allegedly dangerous dogs into custody, he was bitten. Although we

agree that he is not a “peace officer” within the meaning of Civil Code section 1714.9

(see Pen. Code, § 830.9), the so-called “firefighter’s rule” of common law extends

beyond the category of “peace officer” and is simply a variant of the doctrine of

“assumption of the risk.” Real party in interest’s situation falls squarely within the

general category of “occupational assumption of the risk.” (See Priebe v. Nelson (2006)

39 Cal.4th 1112, 1119 [involving a dog kennel worker].) It has been explained that in

terms of duty, “it may be said there is none owed the fireman to exercise care so as not to

require the special services for which he is trained and paid.” (Walters v. Sloan (1977) 20

Cal.3d 199, 205, cited in Calatayud v. State of California (1998) 18 Cal.4th 1057, 1061.)

It is common knowledge that an animal control officer must regularly deal with

animals that are vicious by nature, or become so due to illness, injury, or fear. He or she

2 is, or should be, trained and compensated to encounter those risks, although enhanced

compensation is not required for the rule to apply. (City of Oceanside v. Superior Court

(2000) 81 Cal.App.4th 269, 284.) Hence, the doctrine of primary assumption of the risk

applies here.

We recognize that the firefighter’s rule even as applicable to non-peace officers

outside the express scope of Civil Code section 1714.9 is subject to an exception where

the defendant commits separate and independent acts of misconduct after the plaintiff

arrives. (City of Oceanside v. Superior Court, supra, 81 Cal.App.4th at pp. 275-276.)

But while this exception might apply to negligent acts of the dogs’ owner after real party

in interest arrived to collect the dogs, it has no application to petitioners, the landlord of

the premises.

DISPOSITION

Accordingly, the petition for writ of mandate is granted. Let a peremptory writ of

mandate issue, directing the Superior Court of San Bernardino County to vacate its order

denying petitioners’ motion for summary judgment and to enter a new order granting said

motion.

3 Petitioners are directed to prepare and have the peremptory writ of mandate

issued, copies served, and the original filed with the clerk of this court, together with

proof of service on all parties. Petitioners to recover their costs.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON J. We concur:

RAMIREZ P. J.

MILLER J.