Preview
Jason A. Helsel, #214992
Mark A. Vogt, #240949
FOWLER |
HELSEL |
VOGT
1705 L Street
Fresno, California 93721 RECEIVED
Tel: (559) 283-8091
11/19/2019 3:52 PM
Fax: (559) 283-841 5
FRESNO COUNTY SUPERIOR COURT
By: K. Daves, Deputy
Attorneys
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for Plaintiff, CLAUDIO CASSIO, as guardian ad litem for MICHELLE MORALES, a
mlnor
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF FRESNO
CLAUDIO CASSIO, as guardian ad litem Case No. 19CECG03501
for MICHELLE MORALES, a minor,
STIPULATION AND ORDER
Plaintiffs, PERMITTING PLAINTIFF LEAVE T0
FILE FIRST AMENDED COMPLAINT
V- FOR DAMAGES FOR NEGLIGENCE,
NEGLIGENCE PER SE, AND
ALVIN J. POPLIN and DONNA GAYLE PREMISES LIABILITY
POPLIN, Co-Trustees of the ALVIN J.
POPLIN AND DONNA GAYLE POPLIN
RECOVABLE LIVING TRUST; RAUL
MANSANALEZ; and DOES 1—10,
inclusive,
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Defendants.
COMES NOW Plaintiffs CLAUDIA CASSIO, as guardian ad litem for MICHELLE
MORALES (hereinafier “P1aintiff”), by and through her attorneys of record, Fowler |
Helsel |
Vogt, and Defendants ALVIN J. POPLIN and DONNA GAYLE POPLIN, by and through their
attorneys ofrecord, Law Office of John A. Biard, and stipulate to the following:
RECITALS
1. WHEREAS, Plaintiff originally filed the Complaint for Damages (the
“Complaint”) on September 15, 2019, naming ALVIN J. POPLIN and DONNA GAYLE
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Stipulation& Order for Leave to File First Amended Complaint for Damages
for Negligence, Negligence Per Se, and Premises Liability
POPLIN, Co—Trustees of the ALVIN J. POPLIN AND DONNA GAYLE POPLIN
RECOVABLE LIVING TRUST as Defendants;
2. WHEREAS, Defendants ALVIN J. POPLIN and DONNA GAYLE POPLIN, as
Co-Trustees of the ALVIN J. POPLIN AND DONNA GAYLE POPLIN RECOVABLE LIVING
TRUST filed an answer to the Complaint on November 04, 201 9 (the “Answer”);
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3. WHEREAS, at the time Plaintiff filed the Complaint, on infomation and belief,
Plaintiff alleged that Defendants Co—Trustees of the ALVIN J. POPLIN AND DONNA GAYLE
POPLIN RECOVABLE LIVING TRUST were the owners of that certain real property located at
3320 E. Illinois Avenue, Fresno, California 93702 (hereinafier, the “Premises”);
4. WHEREAS, Plaintiff subsequently determined that the Premises was owned at
all relevant times by ALVIN J. POPLIN and DONNA GAYLE POPLIN, as individuals and not
as Co-Trustees of the ALVIN J. POPLIN AND DONNA GAYLE POPLIN RECOVABLE
LIVING TRUST;
5. WHEREAS, a Case Management Conference in this matter is currently set for
January 28, 2020 at 3:30 p.111.in Department 402 ofthis Court;
6. WHEREAS, the trial in this matter has not yet been set;
7. WHEREAS, Plaintiff seeks to amend the Complaint to remove ALVIN J.
POPLIN and DONNA
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GAYLE POPLIN in their capacity as Co-Trustees of the ALVIN J.
POPLIN AND DONNA
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GAYLE POPLIN RECOVABLE LIVING TRUST, as Defendants in
this action;
8. WHEREAS, Plaintiffs further seek to amend the Complaint to allege that ALVIN
J. POPLIN and DONNA GAYLE POPLIN, in their individual capacity, owned the Premises at
all relevant times;
9. WHEREAS, Defendant RAUL MANSANALEZ has not yet responded to the
original complaint or otherwise made an appearance in this matter;
10. WHEREAS, this stipulation is and will be in furtherance ofjustice;
11. WHEREAS, no party or witness will suffer prejudice as a result from the
Amendment;
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& Order for Leave to File First Amended Complaint for Damages
Stipulation
and Premises Liability
for Negligence, Negligence Per Se,
12. WHEREAS, Defendants ALVIN J. POPLIN and DONNA GAYLE POPLIN
consent to Plaintiff’s filing 0f the First Amended Complaint for Damages for Negligence,
Negligence Per Se, and Premises Liability withoyt the need for a motion seeking leave of the
Court; and
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13. WHEREAS, the First Amended Complaint for Damages for Negligence,
Negligence Per Se, and Premises Liability does not set fofih any new allegations or causes 0f
action against Defendant ALVIN J. POPLIN and DONNA GAYLE POPLIN, or Defendant
RAUL MANSANALEZ.
IT IS HEREBY STIPULATED AND AGREED BY AND BETWEEN THE
PARTIES HERETO THAT:
1. The parties hereto permit Plaintiff to file a First Amended Complaint For Damages
for Negligence, Negligence Per Se, and Premises Liability removing Defendants ALVIN J.
POPLIN and DONNA GAYLE POPLIN as Co—Trustees of the ALVIN J. POPLIN AND
DONNA GAYLE POPLlN RECOVABLE LIVING TRUST, as Defendants and adding ALVIN
J.POPLIN and DONNA GAYLE POPLIN as individuals, without opposition or need for noticed
motion;
2. Plaintiffs’ proposed First Amended Complaint for Damages for Negligence,
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Negligence Per Se, and Premises Liability, attached hereto as Exhibit “A,” shall be deemed the
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operative complaint in this Action upon the Court’s signing 0f the proposed Order herein.
3. Execution and return 0f this Stipulation may be by facsimile transmission in lieu
0f an OIiginal.
4. Defendants ALVIN J. POPLIN and DONNA GAYLE POPLIN’S operative
Answer currently 0n file in response t0 the Complaint will be deemed filed as against the First
Amended Complaint for Damages for Negligence, Negligence Per Se, and Premises Liability and
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Stipulation& Order for Leave to File First Amended Complaint for Damages
for Negligence, Negligence Per Se, and Premises Liability
all denials and affirmative defenses asserted in the operative Answer shall be deemed applicable
to and asserted in response to the First Amended Complaint.
Dated: November 12
_, 2019 FOWLER |
HELSEL l
VOGT
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Jason A. Edsel, Esq.
Attorneys for Plaintiff,
CLAUDIO CASSIO, as guardian ad litem for MICHELLE
MORALES, a minor
Dated: Novemberli, 2019 LAW OFFICE OF JOHN A. BIARD
'Wfl/é/fl’"
Alexander Aronov, Esq.
Attorneys for Defendants
ALVIN J. POPLIN and DONNA GAYLE POPLIN
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OONaMALHNHOKDWQONLh-hUJNHO
-4.
& Order for Leave to File First Amended Complaint for Damages
Stipulation
and Premises Liability
for Negligence, Negligence Per Se,
ORDER
[\3
GOOD CAUSE APPEARING, IT IS HEREBY ORDERED that:
1. Plaintiff be granted leave t0 file her First Amended Complaint for Damages for
Negligence, Negligence Per Se, and Premises Liability;
2. Plaintiff’s proposed First Amended Complaint for Damages for Negligence,
Negligence
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Per Se, and Premises Liability, attached hereto as Exhibit “A,” shall be deemed the
operative complaint in this Action; and
3. Defendants ALVIN J. POPLIN and DONNA GAYLE POPLIN’S Answer
previously filed 0n or about November 04, 2019, shall be deemed the Answer to the First
10 Amended Complaint for Damages for Negligence, Negligence Per Se, and Premises Liability and
11 any new allegations contained in the First Amended Complaint for Damages for Negligence,
12 Negligence Per Se, and Premises Liability shall hereby be denied by Defendants ALVIN J.
13 POPLIN and DONNA GAYLE POPLIN.
14
15 IT IS SO ORDERD.
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Dated: ,
2019 By:
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Judge of the Superior Court
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&
Stipulation Order for Leave Amended Complaint
t0 File First forDamages
Negligence Per Se, and Premises Liability
for Negligence,
EXHIBIT “A”
[Proposed First Amended Complaint For Damages
for Negligence, Negligence Per Se, and Premises Liability]
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Stipulation& Order fer Leave to File First Amended Complaint for Damages
Negligence Per Se, and Premises Liability
for Negligence,
1 Jason A. Helsel, #214992
Mark A. Vogt, #240949
2 FOWLER | HELSEL | VOGT
1705 L Street
3 Fresno, California 93721
Tel: (559) 283-8091
4 Fax: (559) 283-8415
5 Attorneys for Plaintiff, CLAUDIA CASSIO, as guardian ad litem for MICHELLE MORALES
6
SUPERIOR COURT OF CALIFORNIA
7
COUNTY OF FRESNO
8
9 CLAUDIA CASSIO, as guardian ad litem for Case No. 19CECG03501
MICHELLE MORALES, a minor,
10
Plaintiff, FIRST AMENDED COMPLAINT FOR
11
DAMAGES FOR:
12 v.
1. NEGLIGENCE;
13 ALVIN J. POPLIN and DONNA GAYLE 2. NEGLIGENCE PER SE; AND
POPLIN, RAUL MANSANALEZ; and 3. PREMISES LIABILITY
14
DOES 1-10, inclusive,
15
Defendants.
16
17 Plaintiff CLAUDIA CASSIO, as guardian ad litem for MICHELLE MORALES, a minor,
18 alleges as follows:
19 THE PARTIES
20 1. At all times relevant to this action, Plaintiff CLAUDIA CASSIO, as guardian ad litem
21 for MICHELLE MORALES, a minor (hereinafter “Plaintiff”) is and was an individual residing
22 in Fresno County, California. A petition appointing CLAUDIA CASSIO as guardian ad litem
23 for MICHELL MORALES was submitted concurrently with the original complaint.
24 2. At all times relevant to this action, Plaintiff MICHELLE MORALES is and was the
25 minor child of CLAUDIA CASSIO and is a resident of Fresno County, California.
26 3. The true names and capacities, whether individual, corporate, associate, or otherwise,
27 of defendants sued herein as DOES 1 through 10, inclusive, are unknown to Plaintiff who
28 therefore sues said defendants by such fictitious names and will ask leave of Court to amend this
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First Amended Complaint for Damages
1 Complaint when the true names and capacities have been ascertained. Plaintiff is informed and
2 believes, and thereon alleges that each of the fictitiously named defendants is responsible in some
3 manner for the occurrences herein alleged, and said defendants negligently acted or failed to act,
4 which negligence proximately caused Plaintiff’s injuries as alleged herein. Plaintiff is uncertain
5 as to the manner or function of said defendants, and pray leave to amend this Complaint to insert
6 therein the true names, capacities, functions, occupations and businesses of said defendants when
7 the same are ascertained.
8 4. Plaintiff is informed and believes and thereon alleges that at all times mentioned
9 herein, defendants ALVIN J. POPLIN and DONNA GAYLE POPLIN, (hereinafter
10 collectively referred to as, the “Homeowner Defendants”), and DOES 1 through 5, inclusive,
11 and each of them, were individuals residing in Fresno County, California. Plaintiff is further
12 informed and believes that, at all relevant times to this action, the Homeowner Defendants and
13 DOES 1 though 5 were the owners of that certain real property located at 3320 E. Illinois Avenue,
14 Fresno, California 93702 (hereinafter, the “Premises”).
15 5. Plaintiff is informed and believes and thereon allege that at all times mentioned
16 herein, defendant RAUL MANSANALEZ (hereinafter collectively referred to as “Defendant
17 Mansanalez”), and DOES 6 through 10, inclusive, and each of them, were individuals residing
18 in Fresno County, California. Plaintiff is further informed and believes that, at all relevant times
19 to this action, Defendant Mansanalez, and DOES 6 through 10, are and were the owners of that
20 certain pit bull dog (hereinafter, the “Pit Bull”) involved in the incident giving rise to this action.
21 Plaintiff is further informed and believes that, at all relevant times to this action, Defendant
22 Mansanalez was an occupant of the Premises and had the Pit Bull on the Premises for a
23 substantial period of time prior to the incident.
24 6. Plaintiff is informed and believes and thereon alleges that, at all relevant times, each
25 of the defendants, whether named or fictitious, was the agent or employee of each of the other
26 defendants, and in doing the things alleged to have been done in this complaint, acted within the
27 course, scope, or under the authority of his or her agency, employment, or representative capacity
28 of, or with consent or ratification by, the other co-defendants, and each of them.
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First Amended Complaint for Damages
1 BACKGROUND FACTS
2 7. On March 6, 2019, at approximately 5:19 p.m., Plaintiff was walking to pick up her
3 siblings from school near the Premises. With no provocation or warning, the Pit Bull, which had
4 already broken through the fence surrounding the Premises, viciously attacked Plaintiff. The Pit
5 Bull knocked Plaintiff to the ground where it proceeded to bite Plaintiff’s right leg, causing
6 several severe injuries to Plaintiff’s right leg, and cause a deep puncture wound and laceration
7 requiring seven stitches. Plaintiff suffered other serious injuries as a result.
8 FIRST CAUSE OF ACTION
9 Negligence
10 (Against Defendant Mansanalez and DOES 6-10)
11 8. Plaintiff re-alleges and incorporates by reference the allegations contained in
12 paragraphs 1 to 7 herein as though fully set forth.
13 9. Defendant Mansanalez and Does 6 through 10, as owners of the Pit Bull, knew or
14 should have known of the dangerous propensities of the Pit Bull and its inclination to charge
15 and/or attack people.
16 10. Because of the dangerous propensities of the Pit Bull and its inclination to charge
17 and/or attack people, it is reasonably foreseeable that the Pit Bull, if not properly restrained or
18 confined, would charge people and cause the injuries suffered by Plaintiff.
19 11. Plaintiff alleges that at all times mentioned herein, Defendant Mansanalez and Does
20 6 through 10, as owners of the Pit Bull, had a duty of care to act in a diligent, attentive, and
21 careful manner so as to not to allow the Pit Bull to cause injury or damage to others.
22 12. Plaintiff alleges that on March 06, 2019, Defendant Mansanalez and Does 6 through
23 10 breached their duty of care when they failed to act in a diligent, attentive, and careful manner
24 so as not to allow the Pit Bull to break through the fence, charge Plaintiff, jump on Plaintiff, and
25 viciously attack Plaintiff, resulting in serious injuries.
26 13. Plaintiff alleges that as a direct and proximate result of Defendant Mansanalez and
27 Does 6 through 10 breach of their duty of care, Plaintiff suffered severe injuries, including severe
28 puncture wounds and lacerations to Plaintiff’s right leg.
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First Amended Complaint for Damages
1 14. Plaintiff further alleges that as a direct and proximate result of Defendant Mansanalez
2 and Does 1 through 10 breach of their duty of care, Plaintiff has incurred special damages for
3 past and future medical and incidental expenses and general damages for pain and suffering and
4 emotional distress in sums according to proof at trial.
5 WHEREFORE, Plaintiff prays for judgment as hereinafter set forth.
6 SECOND CAUSE OF ACTION
7 Negligence Per Se [Fresno City Municipal Code, Chapter 10-308]
8 (Against Defendant Mansanalez and DOES 6-10)
9 15. Plaintiff re-alleges and incorporates by reference the allegations contained in
10 paragraphs 1 to 14 herein as though fully set forth.
11 16. Pursuant to provisions of the Municipal Code of the City of Fresno, Chapter 10-308
12 (hereinafter, the “Fresno Leash Law”), Defendant Mansanalez and DOES 6-10, having
13 possession, charge, custody, or control of the Pit Bull, had a duty to keep such Pit Bull
14 exclusively on the Premises, or if the Pit Bull were off such Premises, to keep the Pit Bull
15 restrained by a leash or lead.
16 17. Defendant Mansanalez and DOES 6-10 breached the duty imposed by the Fresno
17 Leash Law by failing to keep the Pit Bull confined within the Premises or restrained by a leash
18 or lead, and thereby allowing the Pit Bull to escape the Premises, charge Plaintiff, jump on
19 Plaintiff, and viciously attack Plaintiff, resulting in serious injuries.
20 18. Plaintiff’s injuries resulted from an occurrence of the nature from which the Fresno
21 Leash Law was designed to prevent. Additionally, Plaintiff was one of the class of persons
22 whose protection the Fresno Leash Laws was adopted.
23 19. Defendant Mansanalez and DOES 6-10 had the ability and duty to comply with the
24 Fresno Leash Law, but failed to do so, thereby placing members of the public in danger,
25 including Plaintiff.
26 20. Plaintiff alleges that as a direct and proximate result of Defendant Mansanalez and
27 DOES 6-10 breach of their duty imposed by the Fresno Leash Law, Plaintiff suffered severe
28 injuries.
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First Amended Complaint for Damages
1 21. Plaintiff further alleges that as a direct and proximate result of Defendant Mansanalez
2 and DOES 6-10 breach of their duty their duty imposed by the Fresno Leash Law, Plaintiff has
3 incurred special damages for past and future medical and incidental expenses and general
4 damages for pain and suffering and emotional distress in sums according to proof at trial.
5 WHEREFORE, Plaintiff prays for judgment as hereinafter set forth.
6 THIRD CAUSE OF ACTION
7 Premises Liability
8 (Against the Homeowner Defendants and DOES 1-5)
9 22. Plaintiff re-alleges and incorporates by reference the allegations contained in
10 paragraphs 1 to 21 herein as though fully set forth.
11 23. The Homeowner Defendants and Does 1 through 5 were and are in control and
12 possession of the Premises, and at all times mentioned herein were in fact the owners of said
13 Premises at all relevant times mentioned herein.
14 24. The Homeowner Defendants and Does 1 through 5, prior to March 06, 2019, knew
15 or had reason to know of the existence of the Pit Pull on the Premises, the dangerous propensities
16 of the Pit Bull and its inclination to charge and/or attack people if not properly confined or
17 restrained within the Premises.
18 25. The Homeowner Defendants and Does 1 through 5, prior to March 06, 2019, further
19 knew or had reason to know that the public, including Plaintiff, walked near the Premises in the
20 general vicinity of the Pit Bull with its inclination to charge and/or attack people if not properly
21 confined or restrained within the Premises.
22 26. The Homeowner Defendants and Does 1 through 5, prior to March 06, 2019,
23 further knew or had reason to know that if the Pit Bull was not properly confined or restrained
24 within the Premises, escaped the Premises, and charged and/or attacked a person(s), such
25 charging or attacking would likely result in severe injury.
26 27. The Homeowner Defendants and Does 1 through 5, prior to March 06, 2019, failed
27 to remove the Pit Bull from the Premises and further failed to properly secure, confine, or restrain
28 the Pit Bull within the Premises. The Homeowner Defendants and Does 1 through 5 failure to
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First Amended Complaint for Damages
1 remove the Pit Bull or properly secure, confine, or restrain the Pit Bull within the Premises,
2 created a dangerous condition on the Premises which was known to or could have been easily
3 known to The Homeowner Defendants and Does 1 through 5 had the Homeowner Defendants
4 and Does 1 through 5 been diligent and concerned about the safety of persons lawfully near their
5 Premises.
6 28. Plaintiff alleges that as a direct and proximate result of the Homeowner Defendants
7 and Does 1 through 5 breach of their duty of care to take preventative action to remove or contain
8 the danger before its occurrence, Plaintiff suffered severe injuries.
9 29. Plaintiff further alleges that as a direct and proximate result of the Homeowner
10 Defendants and Does 1 through 5 breach of their duty of care to take preventative action to
11 remove or contain the danger before its occurrence, Plaintiff has incurred special damages for
12 past and future medical and incidental expenses and general damages for pain and suffering and
13 emotional distress in sums according to proof at trial.
14 WHEREFORE, Plaintiff prays for judgment as hereinafter set forth.
15
16 PRAYER FOR RELIEF AND DEMAND FOR JURY TRIAL
17 WHEREFORE, Plaintiff prays for judgment against Defendant Mansanalez and the
18 Homeowner Defendants and Does 1 through 10, and each of them, on all causes of action as
19 follows:
20 1. For special damages to be proven at trial;
21 2. For general damages to be proven at trial; and
22 3. For such further and other relief the Court may deem just and proper.
23
24 Dated: November ____, 12 2019 FOWLER | HELSEL | VOGT
25
26 _________________________________________
Jason A. Helsel, Esq.
27
Attorneys for Plaintiff,
28 CLAUDIA CASSIO as guardian ad litem for
MICHELLE MORALES, a minor
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First Amended Complaint for Damages