Breeden v. Superior Court CA1/2 ( 2014 )

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
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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
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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.
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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.
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