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Case History Document



Butcher v. Gay
Entered By: Marc C Gabriel/LymeNetDate Created: 10-18-94
Document Type: Deposition
Title: Deposition for: Butcher v. Gay
CAROL BUTCHER, Plaintiff and Appellant, v. DONALD GAY, Defendant and Respondent.

BUTCHER v. GAY

No. F020062

COURT OF APPEAL OF CALIFORNIA, FIFTH APPELLATE DISTRICT

29 Cal. App. 4th 388; 1994 Cal. App.; 34 Cal.
Rptr. 2d 771; 94 Cal. Daily Op. Service 7970; 94 Daily
Journal DAR 14711


October 18, 1994, Filed

NOTICE: [*1] THE PAGINATION OF THIS DOCUMENT IS SUBJECT TO
CHANGE PENDING RELEASE OF THE FINAL PUBLISHED VERSION. CERTIFIED
FOR PARTIAL PUBLICATION - Pursuant to California Rules of Court,
rules 976(b) and 976.1, this opinion is certified for publication
with the exception of Part II.

PRIOR HISTORY: Appeal from a judgment of the Superior Court of Kern
County. Super. Ct. No. 213675. Hon. James M. Stuart, Judge.

COUNSEL: Janis & Dacquisto and Jean Ballantine for Plaintiff and
Appellant.

Clifford, Jenkins & Brown, Michael L. O'Dell and Scott L. Harper for
Defendant and Respondent.

JUDGES: ARDAIZ, P.J.; STONE, J., and DIBIASO, J., concurring.

OPINIONBY: ARDAIZ

OPINION: ARDAIZ, P.J.:

Appellant Carol Butcher was an overnight guest at the home of
Donald and Peggy Gay in Pine Mountain on August 4, 1990. On
February 1, 1990, appellant filed this action against respondent
Donald Gay. She alleged that she had contracted Lyme disease "as
a result of exposure to infested ticks" on respondent's property,
and that respondent had "failed to spray the area, post signs or
prevented [sic] domestic dogs from coming into contact with the
plaintiff thereby exposing her to a vector of the disease without
her knowledge." Her third amended complaint presented two [*2]
causes of action, one entitled "premises liability" and one
entitled "general negligence." Both causes of action alleged in
essence that respondent had negligently permitted his dog to become
infested with a Lyme-disease-carrying "western black legged tick,"
had negligently failed to warn appellant to avoid exposure to the
dog, and had negligently allowed the dog to sit on appellant's
lap. Respondent's answer, filed in January 1992, denied the
allegations of appellant's third amended complaint.

Respondent moved for summary judgment. He contended that certain
undisputed facts demonstrated that he "owed no duty to protect or
defend plaintiff from the alleged harmful insect" and that he was
not the cause of any injury to appellant. The superior court
granted the motion and ruled that "defendant was under no duty to
prevent the injury plaintiff alleges occurred."

FACTS

Respondent presented the following evidence in support of his
motion.

Peggy Gay's declaration asserted that she had owned a pet dog
named Pansy since 1988. n1 Since 1989 Peggy, respondent and Pansy
had lived at 1701 Zermatt Drive in Pine Mountain Club. During this
time she had never seen a western black-legged tick, and [*3] had
never been told by any person that the western black-legged tick was
prevalent in or indigenous to the Pine Mountain area. She became
acquainted with appellant sometime in 1990, and appellant was
invited to stay as a guest in the Gay home during a local community
festival. Appellant arrived in Pine Mountain on the afternoon of
August 4, 1990, and left the Gay home in the late morning on August
5, 1990. At no time during appellant's visit to the Gay home did
appellant say that she had seen a western black-legged tick or any
other insect. Nor did appellant indicate that she had been bitten
by any tick or insect, or complain of any rash or "skin irritant."

At no time prior to appellant's visit had anyone ever told Peggy that
anyone had been bitten by a western black-legged tick in the Pine
Mountain area. Nor had any guests to her home complained of seeing
any fleas or western black-legged ticks on the Gay property, or of
having been bitten by any such tick. She had not seen or heard any
announcement about the presence of Lyme disease in California, and
had received no information that the western black-legged tick was a
carrier of the disease.

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n1 Respondent Donald Gay admitted, in a response to appellant's
request for admissions, that he too was an owner of the dog.

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[*4]

Peggy kept Pansy "well groomed and clean." She occasionally
inspected Pansy for fleas and ticks, and used flea and tick
shampoos "on a monthly basis to repel these insects" but had never
seen any evidence of a tick or flea actually having been present on
Pansy. Pansy's veterinarian was Dr. Diane Cosko. Dr. Cosko had never
told Peggy that Dr. Cosko had ever found fleas or ticks on Pansy.

Respondent's declaration was virtually identical to Peggy's. It
included the same denials of any knowledge that western black-legged
ticks carried Lyme disease or that these ticks were prevalent in the
Pine Mountain area. Respondent added that he had become acquainted
with appellant during a visit to his son's home earlier in 1990, and
that it was respondent who had invited appellant to stay as a guest
at the Gay home during a local community festival.

The declaration of Dr. Cosko (Pansy's veterinarian) stated that
she had "had occasion" to examine Pansy and that during her
examination she had never found Pansy to possess a tick or any
portion of a tick. Nor did she see any sign that Pansy had been
bitten by a tick. Nor did Pansy exhibit any symptoms of Lyme
disease. She had never found Pansy's fur [*5] to be dirty or
matted. Dr. Cosko also stated that in her capacity as a
veterinarian in the Frazier Park area, she was "responsible for
posting information in my office regarding pests that may cause
serious illness to pets or their owners." She was never informed
at any time prior to August 15, 1990, that any tick in Kern County
had tested positive for the Lyme disease bacteria. At no time prior
to August 4 had she received any warning notices from the
California State Department of Health or the local Mosquito
Abatement District regarding the presence of Lyme disease in the
Frazier Park or Pine Mountain area. Prior to August 15, 1990, she
had not posted in her office any pamphlets or reading paraphernalia
regarding Lyme disease. A vaccine for Lyme disease was made
available sometime after August 15, 1990. The vaccine was
distributed by the Fort Dodge Chemical Company and "was intended to
be used on the local canine population." The vaccine "was
accompanied by information regarding Lyme disease to be disseminated
to the general public." "After August 1990" Dr. Cosko was "called
upon to review literature regarding the spread of Lyme disease and
to present lectures to various community [*6] groups in the
Frazier Park area" regarding the spread of Lyme disease.

Joan Peet owned Joan's Canine Corner, a pet grooming business.
Prior to opening her business, she attended canine grooming classes
for a six-month period. Some of these classes related to the
detection and identification of certain pests that may be on a pet
when the pet is presented for grooming. She was trained in the
inspection for and detection of the presence of ticks or fleas, and
in the detection of evidence that would indicate such pests had
recently been present on a dog. Between June 1988 and August 1992,
Peggy brought Pansy to Joan's Canine Corner "for regularly
scheduled grooming." During the summer of 1990, Pansy's regularly
scheduled grooming took place on June 27, 1990, and on August 9,
1990. At each appointment Peet inspected Pansy to determine if any
fleas or ticks were present. Peet never saw any fleas or ticks
on Pansy and "never saw . . . any evidence that such pests had been
present." At no time during Pansy's visits did Peet find Pansy's
coat to be matted or in disrepair.

The declaration of Dan Bird, M.D., offered the opinion that
appellant was not suffering from Lyme disease. He reached this
[*7] opinion after reviewing the medical records of several
doctors who had treated appellant.

Respondent also presented portions of appellant's deposition
testimony. Appellant testified that she had no information the
Gays knew the dog had ticks on it. She also stated that she never
actually saw any insect or bug on her own body while she was at the
Gay home. All she saw was something that looked like an insect bite.

Appellant opposed the motion by attempting to demonstrate that
she had contracted Lyme disease from a tick carried by Pansy, and
that respondent should have taken steps to mitigate the
possibility of such an occurrence. She presented the declarations
of herself, Dr. Wilfred Ellis, and attorneys Jack M. Janis and
Michael P. Dacquisto. She also presented respondent's responses to
appellant's request for admissions.

Respondent admitted in requests for admissions that he had
"permitted the dog to jump onto the lap of plaintiff at her
request." He also admitted that the dog was not wearing a flea and
tick collar on August 4, 1990, or during the six months prior to that
date, that he permitted the dog to roam freely the wooded area
adjacent to the Gay property, and that the dog [*8] was
unlicensed. Respondent also admitted that "dog owners have a
reasonable responsibility to protect members of the public from
diseases, of the nature that are prevented through vaccinations and
regular shots of pets."

The declaration of Wilfred Ellis, M.D., stated that Dr. Ellis was
a medical doctor specializing in the area of infectious diseases,
that he had examined appellant and that he was of the opinion that
appellant was suffering from "Stage III Lyme disease."

The declaration of appellant's attorney, Jack M. Janis, stated
that in late 1990 he went to the City of Los Angeles Department of
Animal Regulation in Northridge, California to purchase a license
for his dog. While paying for the license, he noticed a document on
the wall which discussed Lyme disease in California and the location
of the tick that spreads it. He spoke with an animal control
officer about the document. He "learned that the document was an
official publication of the State of California, Department of
Health Services, Vector Surveillance and Control Branch." Janis
asked the officer for a copy of the document and the officer
complied. Janis attached a copy of the document to his declaration.
The document [*9] is entitled "Facts about LYME DISEASE in
California." The document describes Lyme disease as follows:

"Lyme disease is an infectious disease transmitted by the bite of
a tick. It is caused by a spirochate (a spiral-shaped bacterium)
that may persist in the human body for several years if not properly
treated with antibiotics. The natural history of this disease is
not completely understood and the illness it produces takes many
forms. Because of varied symptoms, diagnosis can be difficult. This
newly recognized disease was first noted in 1975 at Old Lyme,
Connecticut, and was first seen in California in 1978.

"Lyme disease is now recognized as an important tick-borne disease
throughout the northeastern USA from Massachusetts to Delaware; in
the midwest in Minnesota and Wisconsin; in some southeastern states;
and in the west in California, Oregon, and Nevada, as well as in many
European countries."

The document (also referred to by appellant as a "leaflet") describes
the manner of transmission of Lyme disease as follows:

"The Western Black-legged Tick (Ixodus pacificus) is the only
tick of the 49 species occurring in California that is known to
transmit Lyme disease. The [*10] spirochete causing Lyme disease
was first isolated from this tick in 1984.

"The tick has three active life stages: Immature stages (larvae and
nymphs) feed on small rodents, rabbits, lizards, birds, and
occasionally large mammals. Adults feed on large mammals, including
deer, dogs, and humans. All stages feed by imbedding their mouth-
parts into the skin of a host and taking a blood meal.

"Preliminary studies show that white-footed mice and deer may be the
primary reservoirs of Lyme disease in California. Larval and nymphal
ticks acquire spirochetes from the blood of infected mammals as they
feed; the infected nymphs and adults transmit the spirochetes to
other mammals (including humans). In California a low percentage of
the ticks tested are infected with the Lyme disease spirochete.

"Adult ticks are most commonly found from December through June,
during the period of the year when humidity is usually high. The
adult female is red-brown with black legs, about 1/8 of an inch
long; males are smaller and entirely brownish-black. Both are
teardrop shaped. While the Western Black-legged Tick has been
reported from 50 of the 58 California counties, it is most common
in the humid coastal [*11] areas and on the western slope of the
Sierra Nevada range.

"This tick can be found on grasses and brush in both urban and rural
settings. Ticks do not fly, jump, or drop from trees. Instead they
climb to the tips of vegetation, typically along animal trails or
paths, and wait for a host to brush against them. This behavioral
method of finding a host is called questing."

Under a heading entitled "Symptoms," the leaflet states in part
that "the first recognizable symptom usually is a characteristic
rash . . . that occurs 3 to 30 days after the bite of an infected
tick." The rash "is a red, blotchy, circular, expanding rash that
may grow to several inches in diameter and clears centrally,
producing a ring-like appearance." Under the heading "Tick
Avoidance" the leaflet gives eight recommendations for avoiding
contracting the disease. These are:

"Personal

"Tuck pants into boots or socks, and shirt into pants.

"Wear light-colored clothing so ticks can easily be seen.

"Apply insect repellent on pants, socks, and shoes. Use a repellent
registered for use against ticks.

"Avoid trail margins, brush, and grassy areas when in tick country.

"Check yourself and your children frequently.
[*12]
"Environmental

"Mow grass along trails, buildings, and camping areas.

"Remove brush along trails or other areas of high human activity.

"Area application of insecticides is not effective for tick control."

The leaflet includes a map of California showing the "Distribution of
the Western Black-legged Tick" in the state. The areas of the state
where the tick has been found are designated by a dark shading.
A fairly large, almost oval-shaped area of central California is not
shaded on the map, but it does not appear that the reader of the
pamphlet can tell with any degree of certainty whether the Pine
Mountain area is or is not an area where the tick has been found.
The lower left hand corner of a page of the leaflet bears the
notation "4/86."

Appellant's declaration attempted to dispute respondent's
contention that appellant did not suffer from Lyme disease. She
stated that Dr. Bird never examined her. Attached to her
declaration was a document which she said was prepared by a Dr.
Ling and which states, among other things, "You have clinical
Lyme disease." Her declaration also stated:

"7. After I learned I had Lyme disease, I did extensive reading on
it. As a result of [*13] that reading, I learned that ticks were
the insects that carried this disease, the ticks that carry it are
very small and not visible to the naked eye, and that these ticks
are generally found in wooded areas and often times on dogs.

"8. At no time while I was in Frazier Park, at Mr. Gay's house, did
I come in contact with any dogs or other animals that carry ticks,
other than Mr. Gay's dog, Pansy. I first noticed a red spot on my
leg, below my knee, that looked like a bite, and extensive itching
while I was at Mr. Gay's house.

"9. At no time did Mr. Gay ever tell me to wear long clothes, to use
insect spray, to stay away from his dog, or to be on the lookout for
ticks that might bite me. If he had done this, I would have taken
these precautions.

"10. While I was at Mr. Gay's house the dog appeared dirty and
unkept. It did not look like it had been recently groomed.

"11. Mr. Gay's house in Frazier Park is in an area that is somewhat
mountainous and wooded.

The declaration of appellant's other attorney, Michael P.
Dacquisto, described the procedural history of this case prior to
respondent's motion for summary judgment. These procedural facts
are pertinent only to appellant's [*14] contention that the court
should have continued the hearing on respondent's summary judgment
motion to allow appellant to conduct further discovery. We will set
forth the pertinent procedural facts in our discussion of that
particular issue.

CONTENTIONS ON APPEAL

Appellant contends (1) respondent did not establish the absence
of a legal duty to appellant, (2) respondent did not establish the
absence of a triable issue as to causation, and (3) the trial court
should have continued the hearing on the motion so appellant could
conduct further discovery.

DISCUSSION

In order for a plaintiff to succeed in a negligence action brought
against a defendant, the plaintiff must demonstrate (1) the existence
of a duty of due care owed by the defendant to the plaintiff, (2)
defendant's breach of that duty, and (3) injury or damage to the
plaintiff that is (4) legally caused by the defendant's breach.
(Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d
814, 820, 131 Cal. Rptr. 854; 6 Witkin Summary of Cal. Law (9th ed.
1988) "Torts," @ 732; 4 Witkin Cal.Procedure (3d ed. 1985)
"Pleading," @ 527.) In the present case, respondent attempted [*15]
to demonstrate that he owed no duty to appellant to take steps to
prevent her from being bitten by a Lyme-disease carrying tick.
A motion for summary judgment "shall be granted if all the papers
submitted show that there is no triable issue as to any material
fact and that the moving party is entitled to a judgment as a matter
of law." (Code Civ. Proc., @ 437c, subd. (c); see also Mann v.
Cracchiolo (1985) 38 Cal.3d 18, 35, 210 Cal. Rptr. 762, 694 P.2d
1134; Lipson v. Superior Court (1982) 31 Cal.3d 362, 374, 182 Cal.
Rptr. 629, 644 P.2d 822.) When respondent's motion for summary
judgment was heard and decided in 1993, subdivision (n) of Code of
Civil Procedure section 437(c) stated in relevant part:

"(n) For purposes of motions for summary judgment and summary
adjudication:

". . . . . . . . . . . . . . . . . . . . . .

"(2) A defendant or cross-defendant has met his or her burden of
showing that a cause of action has no merit if that party has shown
that one or more elements of the cause of action, even if not
separately pleaded, cannot be established, or that there [*16]
is a complete defense to that cause of action. Once the defendant
or cross-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 that cause of action. n2


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n2 The quoted language presently appears in subdivision (o) of the
statute, with the words "or a defense thereto" added to the end of
the second sentence.

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An appellate court reviewing a trial court's granting of summary
judgment will make a de novo determination of whether there is a
triable issue of fact and whether the moving party is entitled to
judgment as a matter of law. (Saldana v. Globe-Weis Systems Co.
(1991) 233 Cal.App.3d 1505, 1511-1515, 285 Cal. Rptr. 385.) n3
The moving party's papers are strictly construed, while those of the
party opposing the motion are liberally construed. If there is any
doubt as to whether summary judgment should be granted, that doubt
should be resolved in favor of the party opposing [*17] the
motion. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.
App.3d 1611, 1618, 264 Cal. Rptr. 756.)

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n3 As we shall discuss infra in part "I" of this opinion,
subdivision (e) of the summary judgment statute expressly confers
upon the judge hearing the motion the discretion to credit or not to
credit the declaration of an individual about the individual's own
state of mind when his state of mind "is sought to be established
solely by the individual's affirmation thereof." Because discretion
is expressly conferred on the judge, we would review the judge's
crediting of such a declaration under an abuse of discretion
standard, and would not make our own de novo determination as to
whether the individual's declaration should be credited.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - -

I.

DUTY

In a negligence case the existence and scope of a defendant's
duty is a legal question to be decided by the court. It is not a
factual question to be decided by the trier of fact. The California
Supreme Court made this clear in [*18] Ballard v. Uribe (1986) 41
Cal.3d 564, 224 Cal. Rptr. 664, 715 P.2d 624, where the court stated
in footnote 6 at pages 572-573:

"The question of 'duty' is decided by the court, not the jury.
[Citations.] As this court has explained, 'duty' is not an immutable
fact of nature '"but only an expression of the sum total of those
considerations of policy which lead the law to say that the
particular plaintiff is entitled to protection."' [Citations.] In
California, the general rule is that all persons have a duty
'"to use ordinary care to prevent others being injured as the result
of their conduct. . . .'" (Rowland v. Christian (1968) 69 Cal.2d
108, 112, 70 Cal. Rptr. 97, 443 P.2d 561 . . . .) Rowland enumerates
a number of considerations, however, that have been taken into
account by courts in various contexts to determine whether a
departure from the general rule is appropriate: 'the major
[considerations] are the forseeability of harm to the plaintiff, the
degree of certainty that the plaintiff suffered injury, the closeness
of the connection between the defendant's conduct [*19] 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 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.' (Italics added.) [Citation.]"

The court reaffirmed in Ann M. v. Pacific Plaza Shopping Center
(1993) 6 Cal.4th 666, 863 P.2d 207, that "the existence of a duty is
a question of law for the court" and an appellate court will
"determine de novo the existence and scope of the duty . . . ." (Id.
at p. 674.) Ann M. also clarified that although forseeability of harm
to the plaintiff is one of the seven considerations n4 listed in
Ballard and in Rowland as matters to be taken into account by a court
in determining the existence and scope of a duty, this does not mean
a plaintiff is necessarily entitled to have the trier of fact
determine whether the plaintiff's injury was a foreseeable result of
the defendant's conduct. "Forseeability, when analyzed to determine
the [*20] existence or scope of a duty, is a question of law to
be decided by the court." (Ann M. v. Pacific Plaza Shopping Center,
supra, 6 Cal.4th at p. 678.)

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n4 We will hereinafter refer to these seven considerations as the
"Rowland considerations" or the "Rowland factors."

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In Brunelle v. Signore (1989) 215 Cal.App.3d 122, 263 Cal. Rptr.
415, the plaintiff spent a weekend at the defendant's vacation home
in Cathedral City and was bitten by a "brown recluse spider." (Id.
at 125.) The spider's venom destroyed tissue in the plaintiff's right
foot. The foot became swollen and infected and developed ulcerated
lesions. The plaintiff's complaint alleged the defendant negligently
maintained his property and "failed to warn plaintiff regarding the
property's safe use . . . ." (Id. at p. 125.) The defendant moved
for summary judgment and contended although he had a duty [*21]
to use ordinary care to prevent others from being injured as a result
of his conduct, that duty did not, as a matter of law, require him to
take affirmative steps to protect against or to warn about the
possibility of being bitten by a spider. The Court of Appeal
affirmed and stated:

"Our consideration of the Rowland factors leads us to the
conclusion in this case that an owner or occupier of a private
residence does not have a duty to protect or prevent bites from
harmful insects where: (1) it is not generally known that the
specific insect is indigenous to the area; (2) the homeowner has
no knowledge that a specific harmful insect is prevalent in the
area where his residence is located; (3) the homeowner has on no
occasion seen the specific type of harmful insect either outside or
inside his home; and (4) neither the homeowner nor the injured guest
has seen the specific insect that bit the guest either before or
after the bite occurred. To impose a duty under these circumstances,
where the owner or occupier of the premises had no reason to
anticipate or guard against such an occurrence would be unfair
and against public policy. Imposition of a duty even in those cases
where the [*22] homeowner shared general knowledge with the public
at large that a specific harmful insect was prevalent in the area but
the homeowner had not seen the specific harmful insect either outside
or inside his home would impose a duty on the owner or occupier of
the premises that would also be unfair and against public policy.
In either of these instances, the burden on the landowner would
be enormous and would border on establishing an absolute liability.
Further, the task of defining the duty and the measures required of
the owner or occupier of private residences to meet that duty would
be difficult in the extreme." (Brunelle v. Signore, supra, 215 Cal.
App.3d at pp. 129-130, fns. omitted.)

Respondent's motion contended the evidence presented by respondent
(summarized above) demonstrated the existence of seven "undisputed
facts" (see Code Civ. Proc., @ 437, subd. (b)) which entitled
respondent to judgment in its favor as a matter of law. These "facts"
were: (1) It is not generally known that western black-legged ticks
are indigenous to the Pine Mountain Club area; (2) Defendant had no
knowledge that western black-legged ticks possessing the [*23] Lyme
disease bacteria were prevalent in the Pine Mountain Club area; (3)
Donald Gay had, on no occasion, "seen a Western Black-legged Tick
infested with the Lyme disease bacteria" either outside or inside his
home; (4) Neither Donald Gay nor appellant saw the specific insect
that bit her either before or after the bite occurred; (5) Donald
Gay's dog, Pansy, has not been a host to any flea or tick since
1988; (6) "Expert evidence exists that prove [sic], to a medical
certainty, that plaintiff does not have Lyme disease;" and (7)
"The actions of defendant Donald Gay are not the cause of plaintiff's
alleged injuries of [sic] a result of her alleged infection with the
Lyme disease bacteria." The last two of these seven purportedly
"undisputed" facts appear to pertain to respondent's lack of
causation argument, i.e., respondent's argument that respondent was
not the cause of appellant's alleged Lyme disease because appellant
does not actually have Lyme disease. n5 The superior court rejected
this contention and so do we. The declaration of respondent's
expert, Dr. Bird, was in conflict with that of appellant's expert,
Dr. Ellis, on the issue of whether appellant actually suffered from
[*24] Lyme disease. The remaining five "undisputed facts" appear
to be designed to attempt to demonstrate respondent cannot be held
liable to appellant under the test set forth in Brunelle, supra. n6

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n5 It would have been better practice for respondent's motion to
have contained some express indication of which of his seven
"undisputed material facts" pertained to his "no causation" argument
and which of those seven "undisputed material facts" pertained to
his "no duty" argument. Although the summary judgment statute does
not expressly require the making of such an indication when a motion
for summary judgment is brought on more than one ground, "summary
judgment is . . . not a trap for an unwary opponent" (Homestead
Savings v. Superior Court (1986) 179 Cal.App.3d 494, 498, 224 Cal.
Rptr. 554), or a game of blind man's bluff.

n6 Appellant's response to respondent's "statement of undisputed
facts" stated that appellant denied all seven "facts." None of the
evidence presented by appellant (summarized above), however, appears
to contradict respondent's evidentiary showing that he had no
knowledge of the presence of Lyme disease carrying ticks in the Pine
Mountain area, and that even Dr. Cosko, a veterinarian, had not been
aware prior to August 15, 1990, that any tick in Kern County had
tested positive for the Lyme disease bacteria. We do confess to be
somewhat baffled by respondent's "material fact" No. 3. Respondent's
own expert stated that only one to two percent of the western
black-legged ticks were infected with the Lyme disease bacteria.

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[*25]

Although we find Brunelle to be instructive, the four-part test
set forth in that opinion does not appear to us to be appropriate
for application to the present case. Brunelle deals with "bites
from harmful insects." (215 Cal.App.3d at p. 129.) n7 The creature
involved in Brunelle, a brown recluse spider, was described as a "tan
to brown" spider "approximately the size of a half dollar." (Id. at
p. 125, fn. 1.) It could be "easily identified by a violin- or
fiddle-shaped marking on its back." (Ibid.) Presumably all or most
brown recluse spiders possess the same kind of venom which caused the
injuries to the plaintiff in Brunelle. Presumably all or most people
would, upon seeing such a spider, either recognize it as a creature
which could cause harm or pain to a human being or at least suspect
it to be a potential cause of harm or pain. In the present case,
however, appellant's own evidence described the adult female
western black-legged tick as being about an eighth of an inch long
and the males as "smaller." Although there was no evidence that
appellant herself had actually ever seen such a tick or [*26]
was herself an expert, she stated in her declaration that such a tick
is "very small and not visible to the naked eye." If a person were
to see a western black-legged tick, one wonders how discernible it
would be from a tick belonging to one of the other 48 species of
ticks which, according to the leaflet presented by appellant, are
known to exist in the state of California. Dr. Bird's declaration
states in addition that "in California, only about one to two percent
of the adult Western Black-legged Ticks are infected with the
bacteria that causes Lyme disease." We therefore cannot say, based
upon the evidence presented to us, that someone who sees a small tick
is seeing a creature that necessarily can transmit Lyme disease and
is therefore "harmful" in that respect. Apparently only an extremely
small percentage of all California ticks carry Lyme disease.

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n7 The parties appear to assume that a tick is an "insect." We
express no view on whether that assumption is scientifically
accurate. One of the definitions of "insect" found in Webster's New
World Dictionary of the American Language, Second College Edition
(Simon and Schuster 1982), at page 728 is: "popularly, any of a group
of small animals, usually wingless, including spiders, centipedes,
wood lice, ticks, mites, etc."

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[*27]

Even if we were to conclude that a homeowner (or dog owner) could,
under some circumstances, be held liable in negligence for a guest's
illness due to the transmission of a disease-carrying tick from the
owner's dog (or from another source on the owner's property) to a
guest, our consideration of the Rowland factors would nevertheless
not lead us to impose liability without some degree of "moral blame
attached to the defendant's conduct." (Rowland v. Christian, supra,
69 Cal.2d at p. 113; Ballard v. Uribe, supra, 41 Cal.3d at p. 572.)
In other words, without evidence that a defendant knew or reasonably
should have known there was any danger or potential danger associated
with that defendant's act or failure to act, any imposition of
liability would in essence be the imposition of liability without
fault. n8

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n8 We note that in Brunelle, supra, the homeowner "was aware of
black widow spiders and scorpions being prevalent around his house,
in his garage and in his backyard constantly." (215 Cal.App.3d at
p. 132.) In Ann M., supra, 6 Cal.4th 666, the landowner was
presumably aware that crime sometimes occurs in San Diego. And yet
the Brunelle homeowner's duty did not require warning his guest about
spiders. The Ann M. shopping center owner's duty did not require the
providing of a security guard to guard against the possibility of a
shopping center employee being assaulted by a criminal. The evidence
in the present case appears to present an even less compelling
argument for the imposition of a duty than the evidence in Brunelle
and Ann M.

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[*28]

A duty does not generally arise in the context of negligence
unless there is some awareness of a danger and some responsibility
for it. Insects are a part of life's burdens and it is reasonable
to conclude a person cannot be held responsible for their existence.
Where one has not fostered an environment designed to cultivate such
predators they are simply part of the inherent risks of living.
However, where one was aware, or reasonably should have been aware,
that an animal he or she was responsible for created a risk of harm
as a result of infestation by a dangerous insect, then arguably,
failure to act might result in liability for harm. Realistically,
the Brunelle criteria require a significant degree of knowledge of
the existence and locus of the insect. It is the distinction
between general knowledge that black widow spiders are frequently
found in wood storage areas and specific knowledge that a black widow
is in a wood storage area.

In the present case, respondent presented his own declaration
stating that he was unaware, prior to the alleged incident involving
appellant, of the presence of Lyme disease or of ticks carrying the
disease in the Pine Mountain area. No one had [*29] ever told him
of anyone being bitten by such a tick in the Pine Mountain area.
He declared he had "not received through any medium any indication
that the Western black-legged tick was a carrier of Lyme disease in
California or that said ticks were prevalent in the Pine Mountain
area." Respondent's wife submitted a virtually identical
declaration. The local veterinarian, Dr. Diane Cosko, declared that
"prior to August 15, 1990, I was not informed that any tick in Kern
County had tested positive for the Lyme disease bacteria." This is
evidence showing that (1) respondent was personally unaware of any
Lyme disease risk and (2) it was not generally known that there
was any risk of Lyme disease in the Pine Mountain area. Faced with
this showing, appellant could not avoid a summary judgment against
her without presenting, at a minimum, some evidence tending to show
respondent knew or reasonably should have known he was subjecting
appellant to a risk of incurring Lyme disease when he permitted
appellant to enter his house and/or permitted Pansy to sit on
appellant's lap.

Appellant argues there is a triable issue of fact as to whether
respondent's asserted ignorance of any danger of Lyme [*30]
disease carrying ticks is truthful. She argues that the court should
not have accepted respondent's assertions about his own state of
mind. Although the court could have refused to accept respondent's
assertion about respondent's own state of mind, it was not required
to do so. Subdivision (e) of the summary judgment statute provides
that "summary judgment may be denied in the discretion of the court
. . . where a material fact is an individual's state of mind, or lack
thereof, and that fact is sought to be established solely by the
individual's affirmation thereof." The court therefore did not err
in refusing to deny the motion on this basis.

Appellant similarly contends the court should not have believed
Dr. Cosko's declaration that she was unaware of the presence of Lyme
disease carrying ticks in Kern County prior to August 15, 1990.
This contention fails for the same reason. Under subdivision (e) the
trial judge had no obligation to refuse to believe Dr. Cosko.

Appellant then contends there is a triable issue of fact as to
whether the presence of Lyme-disease carrying ticks in the Pine
Mountain area was generally known on August 4, 1990, because
appellant's attorney, Janis, saw [*31] the above-described "Facts
About LYME DISEASE in California" leaflet in "late 1990" in the "City
of Los Angeles Department of Animal Regulation in Northridge,
California." But knowledge of persons in the city and county of Los
Angeles in late 1990 is not in issue in this case. In issue is
whether there was any general knowledge of the presence of Lyme
disease carrying ticks in the Pine Mountain area of Kern County on
or before August 4, 1990, and, if not, whether respondent himself
nevertheless had any such knowledge. Even construing the Janis
declaration liberally, it does not tell us anything about information
available in the pertinent place at the pertinent time. Appellant
presented no evidence that this leaflet was distributed to anyone in
the Pine Mountain area, or indeed anywhere in Kern County, at any
time prior to August 4, 1990.

Appellant further argues that even if respondent, as a property
owner, had no duty to warn appellant about or protect appellant from
Lyme-disease carrying ticks, he nevertheless had this duty because he
was a dog owner. We are not persuaded. Appellant points out that a
dog owner has a duty to exercise reasonable care in the management of
the dog. [*32] (See Drake v. Dean (1993) 15 Cal.App.4th 915; and
Rest.2d Torts, @ 518.) We do not question this proposition. But the
issue here is whether that duty extends so far as to include warning
a house guest not to allow a dog on her lap, or to require the taking
of other steps to prevent the possible transmission of a Lyme disease-
carrying tick from the dog to the guest, if the owner does not have,
and could not reasonably be expected to have, any knowledge that his
dog posed any such danger to the guest. Appellant calls our
attention to cases involving dog attacks and "spooked" horses. We do
not find these to be apposite because it is generally known dogs
sometimes bite people and that horses, when frightened, will
sometimes behave in a manner that may injure people nearby. Every
dog who bites people has to have a first victim. Thus, the fact that
the first victim of a particular dog cannot demonstrate the dog had
previously bitten someone else does not necessarily mean the owner of
the dog was unaware of the possibility the dog might one day bite
someone. The Legislature undoubtedly had this in mind when it
enacted Civil Code section 3342, providing that "the [*33] owner of
any dog is liable for the damages suffered by any person who is bitten
by the dog while in a public place or lawfully in a private
place . . . regardless of the former viciousness of the dog or the
owner's knowledge of such viciousness." If there was some evidence
tending to show that a reasonably prudent dog owner in the Pine
Mountain area would have been aware, prior to August 4, 1990, of a
reasonable possibility that there were Lyme disease-carrying ticks in
the area, appellant should have presented that evidence.

II.

NOT CERTIFIED FOR PUBLICATION

III.

DISPOSITION

The judgment is affirmed. Costs to respondents.

STONE, J., and DIBIASO, J., concurring.

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