Legal Question in Personal Injury in California

Shelley:

You asked the wrong question. You should have asked "How do I get this lawsuit dismissed?" I will answer THAT question. The main issue is whether she filed her small claim saction later than 2 years after the bite. If so, she blew her statute of limitations. If your copy of the complaint does not have a "FILED" stamp on the upper right of first page, then visit the court and find out the filing date. The FILED stamp will also contain the date of filing.

Assuming she filed just in time, bring your witnesses to court to testify, and if the judge believes them, she will probably get ZERO judgment against you. Your dog probably thought he was protecting you from her very angry and aggressive behavior.

Postscript: The problem is: this may happen again. If you are not strong enough to hold him back, a lot lesser cause than this incident can cause a dog to "defend", so I think you have a problem that you need to address. Sometimes dogs perceive "threats" from small children for no cause apparent to a human. What will you do if that happens and he rips a child's face off? Consider an electronic control collar or staking him to the ground firmly.

I agree generally with Mr Dinday's advice, but would caution that California has a statute that holds a dog owner strictly liable for dog-bite injuries inflicted by his/her pet, regardless of whether the animal was known to be vicious or had bitten anyone before. See Civil Code Section 3342.

If you find that the suit was filed less than two years from the event,(and is therefore NOT barred by the 2-year statute of limitations), I think that you may successfully defend against liability on the basis that the woman who was bitten physically provoked the attack, but just yelling at the dog would probably not be enough. I think you would have to prove with an independent witness that she lunged at the dog, as you have stated, even after being warned to leave you and your dog alone.

You also mention that you were on your neighbor's lawn at the time the incident occurred.

Is that where the bite also occurred? If the woman came onto your neighbor's property without permission, and was bitten there, it is arguable that she was not lawfully in a private place (was a trespasser), and therefore she cannot rely on Section 3342 to impose strict liability. Perhaps even if the bite occurred on the [public?] sidewalk, if the plaintiff came onto your neighbor's property to initiate the incident, that may possibly be enough to render Section 3342 not applicable in this case.

At the very least, in the scenario you describe, I think the judge would probably hold the plaintiff responsible for a high percentage of contributory negligence, which could reduce any damages substantially. (If you can prove she was under the influence of drugs or alcohol at the time, that would also help your case.)

I would not rely heavily on the lack of proper service. That can be corrected and will only delay resolution of the matter. It is not likely that the plaintiff will forget about the incident, if she has to look at a facial scar in her mirror every day. She needs to have judge tell her that it was her own fault.