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in San Bernardino County
Ruling
HENRY MARTINEZ VS JILL RENNER
Jul 10, 2024 |
20STCV17676
Case Number:
20STCV17676
Hearing Date:
July 10, 2024
Dept:
28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On May 8, 2020, Plaintiff Henry Martinez (Plaintiff) filed this action against Defendants Jill Renner (Defendant) and Does 1-50 for motor vehicle tort and general negligence.
On January 4, 2023, Defendant filed an answer.
On January 10, 2024, Defendant filed a motion to compel Plaintiffs further responses to form interrogatories, set one, and for sanctions, to be heard on February 22, 2024.
On January 11, 2024, Defendant filed (1) a motion to compel Plaintiffs further responses to demand for production of documents, set one, and for sanctions, to be heard on February 23, 2024 and (2) a motion to compel Plaintiffs further responses to special interrogatories, set one, and for sanctions, to be heard on February 22, 2024.
On February 22, 2024, the Court placed the motions off calendar because the parties had not participated in an informal discovery conference.
On February 28, 2024, Defendant scheduled an informal discovery conference for March 22, 2024 and filed an informal discovery conference form.
On March 8, 2024, the Court ordered Plaintiff to appear in person or remotely via LACourtConnect, or appear through counsel other than Randall Awad (who is not eligible to practice law), on March 13, 2024, and inform the Court whether Plaintiff intends to seek another attorney to represent him or whether Plaintiff will proceed without counsel.
On March 13, 2024, Plaintiff appeared and asked for additional time to find new counsel.
The Court continued certain hearing dates.
On March 22, 2024, the Court continued the informal discovery conference to April 17, 2024.
On April 17, 2024, Plaintiff appeared and stated that he intended to find new counsel. The Court continued the informal discovery conference to May 17, 2024.
On May 17, 2024, the Court conducted an informal discovery conference with Plaintiff and Defendants counsel.
Defendants counsel agreed to re-send the discovery requests and motions to compel further responses and to give Plaintiff 20 days to respond without objections if Plaintiff would allow Defendant to file the motions after the 20 days.
The Court suggested the parties discuss filing deadlines to see if the parties could stipulate to deadlines.
On June 14, 2024, Defendant filed a motion to compel further responses to demand for production of documents, set one, and for sanctions, to be heard on July 10, 2024.
Plaintiff has not filed an opposition.
Trial is currently scheduled for August 16, 2024.
PARTYS REQUESTS
Defendant asks the Court to compel Plaintiff to provide further responses to demand for production of documents, set one, and to impose sanctions on Plaintiff.
LEGAL STANDARD
Code of Civil Procedure section 2031.310 provides in part:
(a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:
(1) A statement of compliance with the demand is incomplete.
(2) A representation of inability to comply is inadequate, incomplete, or evasive.
(3) An objection in the response is without merit or too general.
(b) A motion under subdivision (a) shall comply with each of the following:
(1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.
(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.
(3) In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.
(c)
Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.
* * *
(h) Except as provided in subdivision (j), the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. . . .
(Code Civ. Proc., § 2031.310, subds. (a), (b), (c), (h).)
DISCUSSION
On August 1, 2023, the Court granted Defendants motion to compel Plaintiffs responses to demand for production of documents, set one, and ordered Plaintiff to provide verified responses and to produce the documents, electronically stored information, and/or other things requested without objections by August 31, 2023.
On September 25, 2023, Plaintiff served verified responses to the demand for production of documents.
Considering the responses inadequate, Defendant filed a motion to compel further responses on January 11, 2024.
The Court took the motion off calendar because Defendant had not scheduled or participated in an informal discovery conference.
(In addition, the motion appears to have been untimely under Code of Civil Procedure section 2031.310, subdivision (c).)
After participating in an informal discovery conference on May 17, 2024, Defendant filed another motion to compel further responses on June 14, 2024.
The motion is untimely under Code of Civil Procedure section 2031.310, subdivision (c), which provides: Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.
(Code Civ. Proc., § 2031.310, subd. (c).)
Plaintiff served verified responses on September 25, 2023.
Defendant has not shown that Plaintiff served supplemental responses or that the parties agreed in writing to allow Defendant to file a motion to compel further responses more than 45 days after service of the verified responses.
Therefore, Defendant was required to file a motion to compel further responses within 45 days of September 25, 2023 that is, by November 9, 2023.
On May 20, 2024, Defendant filed a notice stating that, at the May 17, 2024 informal discovery conference, the parties agreed that, if Plaintiff did not provide full and complete objection-free answers and documents within 20 days, Defendant will file Motions to Compel against Plaintiff . . . .
Defendants notice does not constitute an agreement in writing for purposes of Code of Civil Procedure section 2031.310, subdivision (c).
At most, it memorializes Defendants understanding of Plaintiffs purported oral agreement.
Defendant has waived her right to compel further responses.
The Court denies the motion.
CONCLUSION
The Court DENIES Defendant Jill Renners motion to compel Plaintiff
Henry Martinezs further responses to demand for production of documents, set one, and for sanctions.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling within five days.
Ruling
OCHOA vs 3M COMPANY, et al.
Jul 10, 2024 |
Civil Unlimited (Asbestos) |
23CV047447
23CV047447: OCHOA vs 3M COMPANY, et al.
07/10/2024 Hearing on Motion to Continue Trial and Relief from Code of Civil Procedure
section 437c(a)(3) for Good Cause; filed by Jeffrey Ochoa (Plaintiff) in Department 18
Tentative Ruling - 07/09/2024 Patrick McKinney
The Motion re: Plaintiffs Notice Of Motion And Motion for Trial Continuance and Request for
Relief from Code of Civil Procedure section 437c(a)(3) for Good Cause filed by Jeffrey Ochoa
on 06/14/2024 is Granted.
Plaintiffs’ Motion to Continue Trial Date is GRANTED as follows. The Court ORDERS that
trial in this action is CONTINUED fifteen (15) days to Tuesday, 8/20/2024 at 10:00 a.m. The
Court further ORDERS that the hearings on plaintiff Jeffrey Ochoa’s (“Plaintiff”) Motions for
Summary Adjudication (“MSAs”) of certain affirmative defenses of each of defendants Kaiser
Gypsum Company, Inc. (“Kaiser Gypsum”), Volkswagen Group of America, Inc. (“VGA”), and
Ford Motor Company (“Ford”) are set for Monday, 8/26/2024 at 3:00 p.m. in Dept. 18.
The Court continued the initial hearing date of 6/21/2024 to 7/10/2024 to allow the parties to
submit supplemental briefing not to exceed seven pages each solely regarding the legal question
whether this Court may properly continue the trial date to 8/20/2024 pursuant to CCP § 36(f) and
continue hearings on the MSAs to 8/26/2024, a date after the continued 8/20/2024 trial date.
Plaintiff and Defendants Kaiser Gypsum, VGA, and Ford filed supplemental briefing. Plaintiff
also filed a 38-page declaration, which the Court has not considered, as the Court’s 6/21/2024
Order did not authorize submission of further evidence by any party. Ford’s supplemental
briefing primarily states Ford’s willingness to stipulate to a 30-day trial continuance. However,
the Court cannot force other defendants to so stipulate, even though Plaintiff would apparently
be willing to do so.
VGA and Kaiser Gypsum argue that the purpose of the summary judgment/adjudication statute
would be defeated if the Court were to order an 8/26/2024 hearing on the MSAs, citing to CCP §
437c(a)(3). § 437c(a)(3) provides:
“The motion shall be heard no later than 30 days before the date of trial, unless the court for
good cause orders otherwise. The filing of the motion shall not extend the time within which a
party must otherwise file a responsive pleading.”
VGA and Kaiser Gypsum also cite to CCP § 581(a)(6), which provides:
“’Trial.’ A trial shall be deemed to actually commence at the beginning of the opening statement
or argument of any party or his or her counsel, or if there is no opening statement, then at the
time of the administering of the oath or affirmation to the first witness, or the introduction of any
evidence.”
§437c(a)(3) sets no limit on the date of hearing in advance of “trial” when the Court in its
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
23CV047447: OCHOA vs 3M COMPANY, et al.
07/10/2024 Hearing on Motion to Continue Trial and Relief from Code of Civil Procedure
section 437c(a)(3) for Good Cause; filed by Jeffrey Ochoa (Plaintiff) in Department 18
discretion finds that good cause exists to move a dispositive motion hearing date closer to trial.
Thus, this Court may properly set a hearing date on the MSAs at any time up to the date and time
trial “actually commences” pursuant to § 581(a)(6), i.e., when opening statements or the
swearing in of the first witness occurs, whichever comes first. VGA and Kaiser Gypsum have
cited to no case law or other authority suggesting that the Court’s interpretation of the two
referenced statutes is incorrect.
Although certain “pre-trial” proceedings within the meaning of § 581(a)(6) will commence on
8/20/2024 including addressing motions in limine and jury selection, it is unlikely that opening
statements or the swearing in of witnesses will occur by 8/26/2024.
The Court finds good cause for the above Order. As stated in the Court’s 6/21/2024 Order, the
Court inadvertently provided in the Trial Preference Order in this action that Defendants could
have dispositive motions heard on fifty (50) days’ notice, to which Plaintiff implicitly stipulated,
but did not clearly provide that shortened notice for defendants’ dispositive motions was
contingent on defendants’ stipulation that Plaintiff would also have the same shortened notice
period for Plaintiffs’ dispositive motions. The Court finds that basic fairness militates for
allowing Plaintiff to have his dispositive motions heard, even if trial cannot properly be
continued beyond 8/20/2024, pursuant to CCP § 36(f).
The Court is also unaware of any prior instance where an asbestos defendant has refused to
stipulate to shortening of Plaintiff’s notice period for dispositive motions when the Court has
tentatively ordered a shortened notice period applicable to both plaintiffs and defendants. (See
e.g., the Court’s 1/31/2023 Order Granting Trial Preference in Martin v. Avon Products, Inc.,
Alameda Sup.Ct. Case No. 22CV016973 (the “Martin Action”), a case in which Kaiser Gypsum
did not contest a shortened notice period for dispositive motions that applied equally to all
parties.) The Court incorporates by reference the 1/31/2023 Trial Preference Order in the Martin
Action herein.
Wherefore, the Court GRANTS Plaintiff’s Motion as set forth above.
CONTESTING TENTATIVE ORDERS
Notify the Court and all other parties no later than 4:00 pm the day before the scheduled hearing
and identify the issues you wish to argue through the following steps:
1. Log into eCourt Public Portal - https://eportal.alameda.courts.ca.gov
2. Case Search
3. Enter the Case Number and select Search
4. Select the Case Name
5. Select the Tentative Rulings Tab
6. Select Click to Contest this Ruling
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
23CV047447: OCHOA vs 3M COMPANY, et al.
07/10/2024 Hearing on Motion to Continue Trial and Relief from Code of Civil Procedure
section 437c(a)(3) for Good Cause; filed by Jeffrey Ochoa (Plaintiff) in Department 18
7. Enter your Name and Reason for Contesting
8. Select Proceed.
Ruling
SETOGUCHI vs SALLER
Jul 10, 2024 |
CVRI2401065
Motion to be Relieved as Counsel for
CVRI2401065 SETOGUCHI vs SALLER
MAMICHI SETOGUCHI
Tentative Ruling: Grant Motion to be Relieved as Counsel.
Ruling
KEENAN CONROY, ET AL. VS SHANNON EILEEN DUFFICY
Jul 10, 2024 |
23STCV09001
Case Number:
23STCV09001
Hearing Date:
July 10, 2024
Dept:
32
PLEASE NOTE
:
Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.
If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at
sscdept32@lacourt.org
indicating that partys intention to submit.
The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling.
If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.
If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.
Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court
.
TENTATIVE RULING
DEPT
:
32
HEARING DATE
:
July 10, 2024
CASE NUMBER
:
23STCV09001
MOTIONS
:
Motion for Leave to Intervene
MOVING PARTY:
Falls Lake Fire and Casualty Company
OPPOSING PARTY:
Unopposed
BACKGROUND
On April 24, 2023, Plaintiffs Keenan Conroy, Juan Delgado, Melissa Cossio, and Juan Antonio Gutierrez (Plaintiffs) filed a complaint against Defendants Shannon Eileen Dufficy and Does 1 to 20 for negligence surrounding a motor vehicle accident.
Prospective Intervenor Falls Lake Fire and Casualty Company (Intervenor)
seeks a Court order granting leave to file a complaint-in-intervention in this action. No opposition has been filed.
LEGAL STANDARD
Code of Civil Procedure section 387(d) states, [t]he court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if either of the following conditions is satisfied: (A) A provision of law confers an unconditional right to intervene. (B) The person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by one or more of the existing parties. (Code. Civ. Proc. § 387(d)(1).)
Pursuant to section 387 the trial court has discretion to permit a nonparty to intervene where the following factors are met: (1) the proper procedures have been followed; (2) the nonparty has a direct and immediate interest in the action; (3) the intervention will not enlarge the issues in the litigation; and (4) the reasons for the intervention outweigh any opposition by the parties presently in the action. (
Reliance Ins. Co. v. Superior Court
(2000) 84 Cal.App.4th 383, 386.)
Labor Code sections 3852 and 3853 provide that an employer against whom a claim for workers compensation damages was made may join in an action against a third party arising out of the incident for which the workers compensation payment was made.
(Lab. Code, §§ 3852, 3853.)
[Labor Code] [s]ection 3853 states that when an action is brought against a third party by either the employer or the employee, the other may, at any time before trial on the facts, join as party plaintiff.
(
Jordan v. Superior Court
(1981) 116 Cal.App.3d 202, 206 (quoting Labor Code section 3853).) An employer includes the employers insurer.
(Lab. Code, § 3850(b).)
DISCUSSION
Here, Intervenor asserts it insured Plaintiffs employer, Brea Glass and Mirror, Inc., and the underlying incident took place within the scope of Plaintiffs employment. As a result, Intervenor has paid workers compensation benefits to Plaintiffs Juan Delgado, Keenan Conroy, and Juan Gutierrez for the subject accident.
[1]
(Zaiderman Decl. ¶ 24.) Intervenor has attached a proposed complaint-in-intervention. (Exh. A.) No opposition has been filed.
Accordingly, the Court grants the motion.
CONCLUSION AND ORDER
Accordingly, Falls Lake Fire and Casualty Companys motion for leave to intervene is GRANTED.
Falls Lake Fire and Casualty Company
is ordered to file and serve its Complaint-in-Intervention within 10 days.
Falls Lake Fire and Casualty Company
to provide notice and file a proof of service of such.
[1]
Plaintiff Melissa Cossio brings a loss of consortium action only.
Ruling
E.P. HANDY VS WANQING XIONG, ET AL.
Jul 11, 2024 |
23VECV04520
Case Number:
23VECV04520
Hearing Date:
July 11, 2024
Dept:
W
E.P. HANDY vs WANQING XIONG, et al.
APPLICATION FOR pro hac vice
Date of Hearing:
July 11, 2024
Trial Date:
N/A
Department:
W
Case No.:
23VECV04520
Moving Party:
Plaintiff E.P.
Handy
Responding Party:
None.
BACKGROUND
On December 15, 2023, Plaintiff E.P. Handy filed a complaint against Defendants Brothers Take Out Corporation, Brother Logistics Group Inc., and Wanqing Xiong for Negligence, Negligence Per Se, and Negligence Hiring, Training, Entrustment, Supervision and Retention.
Plaintiff alleges on November 15, 2021, Defendant Xiong, an employee of Defendant Brothers, was negligently driving a 2017 Freightliner Cascadia, semi-truck with trailer, when Defendant Xiong negligently changed lanes into the right lane, struck Plaintiffs vehicle on the drivers side rear quarter panel causing it to rotate counterclockwise and collide with the front of the Defendants Freightliner. Plaintiff alleges Defendant Xiong pushed Plaintiffs vehicle approximately 45 feet before Plaintiffs vehicle rotated off of the front of the semi-truck to the North and slammed into the inside concrete retaining wall.
[Tentative] Ruling: GRANT
Michael E. Carr, Esq. and Blake D. Beeler submit an application for admission
pro hac vice
as counsel for Plaintiff Handy alongside Carrie Rognlien, Esq.
Mr. Carr is a member of the Oklahoma and Arkansas State Bar as well as the United States of Eastern District of Oklahoma, United States of Western District of Oklahoma, United States of Northern District of Oklahoma, and United States of Eastern District of Arkansas. Mr. Beeler is a member of the Oklahoma State Bar as well as U.S. District Court Western District of Oklahoma, U.S. District Court Northern District of Oklahoma, U.S. District Court Eastern District of Oklahoma, U.S. 10th Circuit Court of Appeals, Date of Admission is April 2004, and U.S. Court of Federal Claims.
Pursuant to California Rules of Court 9.40, an application for appearance
pro hac vice
must be served on all parties who have appeared in the case and on the State Bar of California at its San Francisco Office. Additionally, the application must state:
(1)
The applicant's residence and office address;
(2)
The courts to which the applicant has been admitted to practice and the dates of admission;
(3)
That the applicant is a member in good standing in those courts;
(4)
That the applicant is not currently suspended or disbarred in any court;
(5)
The title of court and cause in which the applicant has filed an application to appear as counsel pro hac vice in this state in the preceding two years, the date of each application, and whether or not it was granted; and
(6)
The name, address, and telephone number of the active member of the State Bar of California who is attorney of record.
Mr. Hall has fulfilled these requirements. The declaration of Nathan Shaffer in support of the motion states he has sent a copy of the motion to the California State Bar with the fee of $50.00. (Shaffer Decl. ¶3, Exh. A.) The motion is GRANTED, contingent on proof the State Bar has received the $50.00 fee.
Ruling
JONATHAN ALVAREZ VS DANIEL J. MCGUIRE
Jul 11, 2024 |
23VECV01049
Case Number:
23VECV01049
Hearing Date:
July 11, 2024
Dept:
T
Alvarez v McGuire 23VECV01049
Tentative ruling: Motion for Summary Judgment and Request for Adjudication of Issues The plaintiffs motion for summary judgment is denied. If a plaintiff moves for summary judgment, he must establish by admissible facts that there are no triable issues to be tried to the jury. Here, plaintiff would have to show that there is no triable issue of fact on the First Amended Complaint which includes causes of action for Conversion, Assault, Violation of Civil Code section 51.7, Violation of Civil Code section 52.1, Intentional Infliction of Emotional Distress, and Negligence. The motion is denied because plaintiffs have failed to establish that there is no triable issue as to the amount of damages suffered by the plaintiffs. A plaintiff can win a case on summary judgment. Section 437c makes summary judgment available when it is shown that an action has no merit or that there is no defense to the action. So, a plaintiff who could show that the defendant had no defense to the claim would be entitled to summary judgment. But this would mean proving every element of the plaintiffs case including the amount of damages and defeating all the defendants affirmative defenses as a matter of law. Plaintiffs have failed to meet this standard for summary judgment. The motion for summary adjudication is also denied. Summary adjudication motions allow a court to adjudicate a limited set of issues specified in Californias summary judgment statute, section 437c, subdivision of the Code of Civil Procedure. Summary adjudication is authorized to adjudicate one or more causes of action within the action; one or more affirmative defenses within the action; that there is no valid claim for punitive damages; or that the defendant did, or did not, owe the plaintiff a duty. (Code Civ. Proc., § 437c, subd.(f)(1).) Thats it. Moreover, A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for [punitive] damages, or an issue of duty. (Code Civ. Proc. § 437c, subd. (f)(1), emphasis added.) What this means is that a plaintiff cannot generally obtain summary adjudication on the issue of the defendants liability, while having the amount of damages determined by a jury. (See Paramount Petroleum Corporation v. Superior Court (2014) 227 Cal.App.4th 226, 238.) California Rules of Court, Rule 3.1350(b) requires that if summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts. The Separate Statement of Undisputed Material Facts in support of a motion must separately identify: (A) Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion; and (B) Each supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion. Plaintiffs separate statement fails to comply with CRC 3.1350(b) for summary adjudication. There is no specific "cause of action, or claim of damages, or issue of duty, of affirmative defense which is the subject of the motion stated verbatim in the separate statement. Because the motion for summary judgment fails to show, as a matter of law, that there are no triable issues of fact, and because the separate statement fails to meet the requirements of CRC 3.1350(b) for motions for summary adjudication, the motion is denied in its entirety. Clerk to give notice.
Ruling
GRAVES vs BRIDGE PARTNERS ASSET MANAGEMENT, INC.
Jul 11, 2024 |
CVRI2306964
Demurrer on Complaint for Other
GRAVES vs BRIDGE
Personal Injury/Property
CVRI2306964 PARTNERS ASSET
Damage/Wrongful Death Tort (Over
MANAGEMENT, INC.
$25,000) of CHARLES GRAVES
Tentative Ruling:
This is a dog bite case. On December 28, 2023, Plaintiff Charles Graves, by and through Guardian
Ad Litem, Shawn Graves (“Plaintiff”) filed a Complaint against Defendants Bridge Partners Asset
Management, Inc.; GF Nuellton Group, LLC; Trinity Property Consultants, LLC; and FPA/WC
Rancho Belago, LP, alleging (1) strict liability and (2) negligence. Plaintiff alleges that, on
December 2, 2023, while he was legally on Defendants’ property, Defendants’ loose dog ran to
him and attacked him without provocation, causing injuries and damages. (Compl. ¶¶ 8, 13.)
***
Defendants GF Nuellton Group, LLC; Trinity Property Consultants, LLC; and FPA/WC Rancho
Belago, LP (collectively, “Defendants”) now demur to the second cause of action for negligence
on the grounds that it fails to state facts sufficient to state a cause of action and is uncertain.
Defendants concurrently move to strike allegations of punitive damages in the Complaint.
In opposition, Plaintiff argues that his Complaint sufficiently states a cause of action for negligence
and premises liability. With respect to motion to strike, Plaintiff argues that Defendants’ conscious
disregard for the lives and safety of others is sufficient to support a finding of punitive damages.
Plaintiff alternatively asks the Court for leave to amend.
In reply, Defendants argue that their demurrer should be sustained because the Complaint does
not allege their actual knowledge of the dog’s dangerous propensities or their ability to control the
dog. With respect to motion to strike, Defendants argue that the Complaint pleads insufficient
information to elevate their conduct to equate malice, fraud, or conscious disregard. Defendants
thus ask the Court to sustain/grant their demurrer and motion to strike without leave to amend.
Meet and Confer
Defendants satisfied their obligation to meet and confer via telephone in accordance with CCP §§
430.41 and 435.5, and filed appropriate declarations in accordance with CCP §§ 430.41(a)(3) and
435.5(a)(3). (See Pennell Decl. ¶ 3.)
Analysis
1. Demurrer
A general demurrer lies where the pleading does not state facts sufficient to constitute a cause of
action. (CCP § 430.10(e).) A special demurrer lies where the pleading is uncertain (i.e., does not
apprise defendant of the nature of the claims in order for them to mount a defense). (CCP §
430.10(f).) In evaluating a demurrer, the court gives the pleading a reasonable interpretation by
reading it as a whole and all of its parts in their context. (Moore v. Regents of Univ. of Cal. (1990)
51 Cal.3d 120, 125.) The court assumes the truth of all material facts which have been properly
pleaded and of facts which may be inferred from those expressly pleaded. (Crowley v. Katleman
(1994) 8 Cal.4th 666, 672.) A demurrer, however, does not admit contentions, deductions, or
conclusions of fact or law. (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) If the complaint
fails to state a cause of action, the court must grant the plaintiff leave to amend if there is a
reasonable possibility that the defects can be cured by amendment. (Blank v. Kirwan (1985) 39
Cal.3d 311, 318.)
Defendants demur to the second cause of action for negligence/premise liability on the grounds
that it fails to state sufficient facts to constitute a cause of action and is uncertain. Specifically,
Defendants argue that the Complaint fails to plead facts showing that they had actual knowledge
of the dog’s dangerous propensities and that they had the ability to control and prevent the harm.
The elements of a negligence cause of action are the existence of a legal duty of care, breach of
that duty, and proximate cause resulting in injury. (Castellon v. U.S. Bancorp (2013) 220
Cal.App.4th 994, 998.) The elements of a cause of action for premises liability are the same as
those for negligence: duty, breach, causation, and damages. (Id.)
“Ordinarily, negligence may be alleged in general terms, without specific facts showing how the
injury occurred, but there are ‘limits to the generality with which a plaintiff is permitted to state his
cause of action, and . . . the plaintiff must indicate the acts or omissions which are said to have
been negligently performed. He may not recover upon the bare statement that the defendant’s
negligence has caused him injury.’ [Citation].” (Berkley v. Dowds (2007) 152 Cal.App.4th 518,
527.) However, there is no requirement that plaintiff identify and allege the precise moment of the
injury or the exact nature of the wrongful act. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Under California law, a landlord owes no duty of care to protect others from a dangerous dog
unless the landlord had actual knowledge of the dog’s dangerous propensities and the right to
remove the dog. (Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 507; Chee v. Amanda Goldt
Property Mgmt. (2006) 143 Cal.App.4th 1360, 1369 [“It is well established that a landlord does
not owe a duty of care to protect a third party from his or her tenant’s dog unless the landlord has
actual knowledge of the dog’s dangerous propensities, and the ability to control or prevent the
harm.”].) Thus, whether a landlord has a duty to prevent or control dangerous conditions on a
property related to injuries suffered from an animal, depends on the landlord’s knowledge of an
animal’s vicious nature. (Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 1838–39.)
Here, the Complaint alleges, in pertinent part, that “Defendants are the owners, managers, and/or
leaseholders of the property located 16340 Lasselle St., Moreno Valley, CA 92555” and that when
“Plaintiff was legally on Defendants’ property [], Defendants’ loose dog ran to Plaintiff and without
provocation attacked Plaintiff, causing Plaintiff injuries, damages, and harms.” (Compl. ¶¶ 3, 13.)
As Defendants argue, however, although the Complaint alleges that “Defendants knew, or
through the exercise of reasonable care, should have known, of their dog’[s] dangerous
propensity to be aggressive and violent” (Compl. ¶ 17), it does not allege that Defendants had
actual knowledge of the dog’s dangerous propensity. There are no facts in the Complaint showing
how Defendants knew of the dog’s dangerous propensities (i.e., a known prior attack, specialized
dog training, or other physical characteristics suggestive of a violent animal). The Complaint also
fails to allege any facts regarding Defendants’ ability to control or prevent the harm. Plaintiff’s
conclusory allegation that “he was injured due to the negligent acts and/or omissions of
Defendants” is not sufficient. (Id. at ¶ 14.)
Based on the foregoing, the Court sustains Defendants’ demurrer to the second cause of action
for negligence with 20 days leave to amend.
2. Motion to Strike
Civ. Code § 3294 authorizes the recovery of punitive damages in non-contract cases “where the
defendant has been guilty of oppression, fraud, or malice, express or implied[.]” “Malice” means
conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct
which is carried on by the defendant with a willful and conscious disregard of the rights or safety
of others. “Oppression” means despicable conduct that subjects a person to cruel and unjust
hardship in conscious disregard of that person’s rights. Finally, “fraud” means an intentional
misrepresentation, deceit, or concealment of a material fact known to the defendant with the
intention on the party of the defendant of thereby depriving a person of property or legal rights or
otherwise causing injury. (Civ. Code § 3294.)
It has been held that the “malice” required by Civ. Code § 3294 implies an act conceived in a spirit
of mischief or with criminal indifference towards the obligations owed to others. Where the
defendant’s wrongdoing has been intentional and deliberate and has the character of outrage
frequently associated with crime, all but a few courts have permitted the jury to award in the tort
action “punitive” or “exemplary” damages. Something more than the mere commission of a tort is
always required for punitive damages. There must be circumstances of aggravation or outrage,
such as spite or “malice,” or a fraudulent or evil motive on the part of the defendant, or such a
conscious and deliberate disregard of the interests of others that his conduct may be called willful
or wanton. (Taylor v. Sup. Ct. (1979) 24 Cal. 3d 890, 894; Grieves v. Sup. Ct. (1984) 157
Cal.App.3d 159, 166.)
“‘Despicable’ is a powerful term that refers to circumstances that are ‘base,’ ‘vile,’ or
‘contemptible.’” (Coll. Hos. Inc. v. Sup. Ct. (1994) 8 Cal.4th 704, 725.) Punitive damages are
“typically awarded for intentional torts” while “cases involving unintentional torts are far fewer.”
(Lackner v. North (2006) 135 Cal.App.4th 1188, 1212.) “The mere allegation an intentional
tort was committed is not sufficient to warrant an award of punitive damages. Not only must there
be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to
support such a claim.” (Grieves v. Sup. Ct. (1984) 157 Cal.App.3d 159, 166.) “To support an
award of punitive damages on the basis of conscious disregard of the safety of others, a plaintiff
‘must establish that the defendant was aware of the probable dangerous consequences of his
conduct, and that he willfully and deliberately failed to avoid those consequences.’” (Penner v.
Falk (1984) 153 Cal.App.3d 858, 867 [quoting Taylor v. Sup. Ct. (1979) 24 Cal.3d 890, 895–96].)
“The 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, including the property of the owner of the dog,
regardless of the former viciousness of the dog or the owner’s knowledge of such viciousness.”
(Civ. Code, § 3342(a).) This statute imposes strict liability on the dog’s owner. (Johnson v.
McMahan (1998) 68 Cal.App.4th 173, 175–76.)
Here, Defendants argue that Plaintiff’s claim for punitive damages fails because there are no facts
alleged to support that Defendants’ conduct was malicious, oppressive, or fraudulent and the
allegations fall short of the heightened pleading standard. They further argue that the allegations
in the Complaint are conclusory and provide no factual support for Plaintiff’s claim that Defendants
authorized or ratified the conduct alleged therein.
In the Complaint, Plaintiff alleges that while he was on Defendants’ property, Defendants’ dog bit
him and caused him serious injury. (Compl. ¶¶ 8, 13.) He alleges that “Defendants knew, or
through the exercise of reasonable care, should have known, of their dog’s dangerous propensity
to be aggressive and violent, and that unless th[e] dog w[as] safely restrained and/or controlled,
persons, such as Plaintiff, could be injured by their dog.” (Id. at ¶ 17.) He further alleges that he
“was attacked by Defendants’ dog by reason of Defendants’ negligent, careless, reckless, and
wrongful conduct in exposing Plaintiff to an unreasonable risk of harm in not controlling and/or
restraining their dog, not preventing the attack, and allowing the attack to occur.” (Id. at ¶ 16.) He
thus alleges that he is entitled to recover punitive damages. (Id. at ¶¶ 11, 21.)
Here, the Complaint alleges in a conclusory manner that they knew or should have known of the
dog’s dangerous propensity, and that it would cause injury to Plaintiff. There are no factual
allegations showing Defendants willfully and deliberately failed to avoid the consequences of the
dog’s alleged dangerous nature. (See Penner, supra, 153 Cal.App.3d at 867.) There are no
factual allegations showing circumstances that are base, vile or contemptible, or aggravating
factors showing conduct with the character of outrage or crime. (See College Hospital Inc., supra,
8 Cal.4th at 725; see also Tomaselli, supra, 25 Cal.App.4th at 1287.) As such, the Court finds that
Plaintiff’s allegations do not rise to the level of malice, fraud, or oppression, as defined by Civ.
Code § 3294.
Therefore, the Court grants Defendants’ motion to strike the prayer for punitive damages and
related allegations: Compl. ¶¶ 11, line 23 (the word “punitive”); ¶ 16, line 15 (the word
“recklessness”); ¶ 21, line 9 (the word “punitive”); prayer for relief, ¶ 1, line 8 (the word “punitive”);
and prayer for relief, ¶ 2, line 10 (the word “fees”).
Ruling: SUSTAIN Defendants’ Demurrer to the second cause of action for negligence is
sustained with 20 days leave to amend. GRANT Defendants’ Motion to Strike portions of the
Complaint alleging punitive damages, also with 20 days leave to amend.
Ruling
Eric Amadei vs Timothy Morgan, ESQ, et al
Jul 11, 2024 |
23CV00719
23CV00719
AMADEI v. MORGAN
(UNOPPOSED) MOTION TO DEEM THE TRUTH OF MATTERS SPECIFIED
IN PLAINTIFF’S REQUESTS FOR ADMISSIONS, SET ONE AND FOR
MONETARY SANCTIONS
The unopposed motion is granted.
Plaintiff seeks an order deeming the truth of all matters specified in his requests for
admissions, set one, propounded on defendant Morgan. Plaintiff also seeks monetary sanctions in
the amount of $2,145.00.
I. Legal Authority
Pursuant to Code of Civil Procedure section 2033.280, subdivision (b), if a party fails to
serve a timely response to requests for admission, the requesting party may move for an order
that the genuineness of any documents and the truth of any matter specified in the request be
deemed admitted, as well as for monetary sanctions.
Code of Civil Procedure section 2033.280, subdivision (c) requires the court to make this
order “unless it finds that the party to whom the requests for admission have been directed has
served, before the hearing on the motion, a proposed response to the requests for admission that
is in substantial compliance with Section 2033.220. It is mandatory that the court impose a
monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or
attorney, or both, whose failure to serve a timely response to requests for admission necessitated
this motion.”
II. Discussion
Page 2 of 3
Pursuant to the Discovery Act, the court shall order the requests for admission as
admitted unless code-compliant responses are served before the hearing. (Code of Civ. Proc. §
2033.280, subd. (c).)
Plaintiff served requests for admissions, set one on April 5, 2024, via electronic service,
on defendant. (Ex. 2 to Dec. of U. Singh.) Defendant failed to respond to the requests and has not
communicated with plaintiff’s counsel regarding the requests. (Dec. of U. Singh at ¶ 8.)
The court deems admitted all matters specified in requests for admissions, set one,
attached to the Declaration of Mr. Singh as Ex. 2. (Code Civ. Proc. § 2033.280, subd. (b).) This
will be the order of the court unless defendant serves, before the hearing on the motion, a
proposed response to the requests for admissions that is in substantial compliance with Code of
Civil Procedure section 2033.220.
The court imposes monetary sanctions against defendant Morgan in the amount of
$1,195.00, payable no later than July 31, 2024.
Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order
incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the
tentative by reference - or an order consistent with the announced ruling of the Court, in
accordance with California Rule of Court 3.1312. Such proposed order is required even if the
prevailing party submitted a proposed order prior to the hearing (unless the tentative is
simply to “grant”). Failure to comply with Local Rule 2.10.01 may result in the imposition of
sanctions following an order to show cause hearing, if a proposed order is not timely filed.
Preview
\a CRIGINAL BY FAX sum oo SUMMONS F I Baa usea Ly (CITACION JUDICIAL) 3%“?5 oméuasxxfigfifigw SA4C BERNAHDINGDISTRICT NOTICE T0 DEFENDANT: (A wso AL DEMANDADO): _ fl MAY L V 2021 Vanessa Zapien, an Individualand DOES 1 to100 You ARE BEING SUED BY PLAINTIFF: ma”‘“'”“’ :7 5w (Lo ESTA DEMANDANDO EL DEMANDANTE): Féux aAnzA, DEPUTY Tribe Express, a Corporation |nc., NOTICE! You have been sued. The courtmay decideagainst you without your being heard unless you respond within 30 daysv Readthe information below. You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy sewed on the plaintiff, A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your case There may be a coun form that you can use for your response. You can find these court forms and more information at the California Courts Omine SeIf-Help Center (www.comfinfo.ca.gov/selfhelp), your county law library. or the courthouse nearest you. you cannot pay the filing fee. ask the If court clerk for a fee waiver form. If you do not file your response on time. you may iose the case by default, and your wages. money. and property may be taken without further warning from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney. you may want to call an attorney referral service. If you cannot afford an attorney. you may be eligible for free legal services from a nonprofit legal services program. You can locate these nonprofit groups at the California Legal Services Web site (www.lawhelpca/ifomia.org). the California Courts Online Self~Help Center (www.courtinfo.cagov/selmelp). or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court will dismiss the case‘ ,‘A VISO! Lo han demandadov Si no responde dentro de 30 dias, la corte puede decidir en su contra sin escuchar su versién. Lea la informacién a continuacidn. Tiene 30 D/AS DE CALENDAR/O despue‘s de que Ie entreguen esla citacio’n y pape/es Iegales para presenter una respuesta por escn‘to en esta code y hacer que se entregue una cop/‘a al demandante. Una carta o una llamada telefénl‘ca no Io pmtegen. Su respuesta par escrito tiene que ester en fonnato legal correcto si desea que procesen su caso en Ia corte, Es posib/e que haya un formulan'o que usted pueda usarpara su respuesta. Puede encontrar estos formularios de la corte y més informacidn en e/ Centre de Ayuda de las Cortes de California (wwwlsucortecagov), en Ia biblioteca de [eyes de su condado o en Ia code que le quede ma’s cerca. Si no puede pagar Ia cuota de presentacién, pida al secretan'o de Ia cone que Ie de' un fonnulario de exencio‘n de pago de cuotas. Si no presenta su respuesra a tiempo, puede perder el case porincumplimiento quitar su sue/do, dinero y bienes sin mas advenencia. y Ia corte Ie podré Hay otros requisites lega/es. Es recomendable que llame a un abogado inmediatamente. Si no conoce a un abogado, puede llamar a un servicio de remisio‘n a abogados. Si no puede pager a un abogado, es posible que cumpla con los requisites para obtener servicios Iega/es gratuitos de un programa de servicios lega/es sin fines de Iucro. Puede encontrar estos grupos sin fines de Iucro en el sitio web de California Legal Services. (www.lawhe/pca/ifornia,org), en el Centre de Ayuda de Ias Cortes de California, (www.sucorte.ca.gov) o poniéndose en cantacto con la corte o el colegio de abogados locales. AVISO: Parley, Ia cone tiene derecho a reclamar/as cuotas y Ios castes exentos porimponer un gravamen sabre cualquie! recuperacio’n de $10,000 é més de valor recibida mediante un acuerdo o una concesién de arbitraje en un caso de derecho civil. Tiene que pagaf e}! gravamen de Ia corte antes de que Ia corte pueda desechar e/ caso. TheAname and address ofthe court is: (El fiombre y direccién de la corte es): Superior Court of California, County of San Bernardino efiflglgR: {y} ”f r0 f 610 fi o)‘ 2 0 247 West Third Street. San Bernardino, CA 92415 The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney! nombre, namero fl is:(El ladirecciényel de te/éfono del abogado de/ demandante, o de/ demandante que no tiene abogado, es): Kevin P. McNamara, Traub Lieberman Straus & Shrewsberry LLP,626 CA Wilshire Blvd. Ste 800, Los Angeles, 90017; (213) 624-4500 DATE: Clerk.by Deputy /202 / . (FeCha) {/fj (Secretario) (Adjumo) (Forproof ofseM/‘ce of Wis summons, use Proof of Service of Summons (falm POS-010).) (Para prueba de entrega de esta citatidn use e/ formulario /04 Proof of Service of Summons, (POS- )). [SEAL] NOTICE TO THE PERSON SERVED: You are served 1A 2. E [3:] as an individual defendant. as the person sued underthe name fictitious of (specify): 3. [j on behalf of(specify): under:D E] CCP 416,10 (corporation) CCP 416.20 (defunct corporation) D D CCP 416.60 (minor) D D CCP 416.40 (association or partnership)E] CCP 416.70 (conservatee) CCP 416.90 (authorized person) Form Adopied for Mandatory Use 4. E other (specify): by personal delivery on (date): S UMMON s Code Page1of 1 Procedure §§ 412 20. 465 of Civil Judicial Councu of Camomia summo [Rev July 1,2009} www.courfs ca gov