4DCA Division 3 Oral Argument - 2026/04/22 - Apr 22, 2026

argument

4DCA Division 3 Oral Argument - 2026/04/22

California Fourth District Court of Appeal, Division Three 3h 14m 1 speaker 3 chapters transcribed 9 days ago official recording ↗

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What administrative instructions are given to counsel at the start of the oral argument?

Unknown 0:00

coming to council table there is a drinking fountain next to the restroom which would be to the right of where you entered in from podium here is adjustable you have a switch right here moves it up and down feel free to adjust it to your desired height do your best to speak into the microphone as the proceedings are being recorded and it makes it easier for the justices to hear you Lastly, there is a clock there for your reference in case you needed to keep track of how long you're talking.

Unknown 23:20

Good morning, everyone. Welcome. We have one panel this morning. I am Justice Motowike. To my right is Justice Delaney, and to my left is Justice Scott. First matter we'll call today is Wilson versus Don Franklin.

Ben Cimino 24:10

Good morning, Your Honors. Ben Cimino on behalf of the plaintiff. I would like to reserve five minutes for rebuttal, if I might.

Unknown 24:18

Certainly.

Ben Cimino 24:20

So, Your Honors, there's two, I think, broad issues in this case. And I'd like to highlight a couple of points on each of those with my time today, if I might. So I think maybe the first biggest issue, sort of the threshold issue, is the dangerousness of the dogs and whether or not there's a tribal issue, material fact on that. because that is, at the end of the day, a question of fact. And here there certainly is a tribal issue regarding whether or not the dangerous propensities of these dogs were

Unknown 24:49

known

Ben Cimino 24:49

or knowable. And here I'd point out that it's not sufficient just to show that the dogs never bit anybody before. I mean, certainly if they had, that would be game over for them in terms of dangerous propensity. But the fact that they hadn't bitten anybody before is not the end of the story. And we cite a number of cases from other jurisdictions, in particular on page 28 of our opening brief that sort of illustrates kind of other things that might support a finding of dangerous propensity. And the ones I think that stand out on this record are twofold. So number one, you've got evidence that the dogs were very protective of Ross, the owner. That was testimony from his own family. You also have the testimony by a declaration from Ms.

Ben Cimino 25:39

Wilson herself that when she went to the house on the first visit, they were barking at her like they wanted to attack her. It wasn't just that she could hear them barking in some other room. It was barking at her. In particular, I think we underscored how scary this was for her and how dangerous they were because she called ahead of time before the second visit and said, please keep those dogs away from me when I come, based on how vicious they were acting on the time before. We would submit, and I know in the briefs we sort of talked about, well, they didn't carry their burden because all they did was establish that the dogs had never bitten anybody. They didn't do anything else beyond that. Or even if they had, we created a tribal issue.

Ben Cimino 26:22

I'm not sure that really matters, but one way or another, there's a tribal issue here that Ross knew of the dangerous propensities of these dogs or certainly had ample reason to know about them. Um, so then I think that really just kind of gets to the next issue, which is this, uh, what I'll call the agency issue, connecting Ross's knowledge to, um, the defendants. Um, and again, once again, question of fact for a jury. And once again, we have, um, ample reason to find a tribal issue on that. So, um, first and foremost, you know, in their own papers, defendants characterize Ross as their quote onsite property manager. They, they didn't dispute that he was an employee. and they characterized him as all the duties associated with an on-site property manager.

Ben Cimino 27:08

And under the Anderson and Meigs case that we cite on page 21 and 22 of our opening brief, that's sufficient, I think, right there to say that his knowledge, he is an agent of the defendants as their on-site property manager, and therefore that his knowledge is imputed to them as their agent, them meaning defendants, of course. To the extent that's not sufficient, we certainly presented evidence. And I know there's a fight between the parties about the scope of his duties.