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civil tentative rulings


The court does not issue tentative rulings on Writs of Attachment, Writs of Possession, Claims of Exemption, Claims of Right to Possession, Motions to Tax Costs After Trial, Motions for New Trial, or Motions to Continue Trial.


Under California Rules of Court, rule 3.1308 and Local Rule 701, any party opposed to the tentative ruling must notify the court, and other parties, by 4:00 p.m. on the court day before the hearing of their intention to appear for oral argument. The court's notice must be made by facsimile to 559-733-6774.


Timestamp: 05/23/2018 at 7:55am



Tentative Rulings for Wednesday, May 23, 2018 are:

Re:    Cortez v. Porterville Citrus, Inc.

Case No.:   PCU270149

Date:    May 23, 2018

Time:  8:30 A.M. 

Dept.   23– The Honorable Glade Roper

Motion: Defendant’s Motion to Compel Plaintiff’s Verified Responses to Supplemental Interrogatory, Set One; to Request for Supplemental Production of Documents, Set One; and Request for Monetary Sanctions against Plaintiff

Tentative Ruling:  To Deny, without prejudice, Defendant’s Motion to Compel Plaintiff’s Verified Responses to Supplemental Interrogatory, Set One and the Request for Supplemental Production of Documents, Set One.  To Deny, without prejudice, Defendant’s Request for Monetary Sanctions against Plaintiff.

Proof of service in the file indicates notice of the motion was adequate.  No response to the motion has been filed.  Defendant’s moving papers are sufficient to establish Defendant propounded written discovery: Supplemental Interrogatory, Set One and Request for Supplemental Production of Documents, Set One.  Defendant has shown that Plaintiff has failed to provide responses to the propounded discovery as required under the Discovery Act.

The only pre-motion meet and confer effort by Defendant was the mailing of a letter on March 29, 2018.

As set forth in Clement v. Alegre, 177 Cal. App. 4th 1277, 1294-1295 (Cal. App. 1st Dist. 2009),

 “The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain ‘an informal resolution of each issue.’  This rule is designed ‘to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order. …’  This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes.”

 “An evaluation of whether, from the perspective of a reasonable person in the position of the discovering party, additional effort appeared likely to bear fruit, should also be considered. Although some effort is required in all instances [there is no exception based on speculation that prospects for informal resolution may be bleak], the level of effort that is reasonable is different in different circumstances, and may vary with the prospects for success. These are considerations entrusted to the trial court's discretion and judgment, with due regard for all relevant circumstances.”

 “Nevertheless, we feel compelled to observe that resort to the courts easily could have been avoided here had both parties actually taken to heart Justice Stone's admonitions in Townsend that ‘the statute requires that there be a serious effort at negotiation and informal resolution.’ Perhaps after 11 years it is necessary to remind trial counsel and the bar once again that ‘[a]rgument is not the same as informal negotiation’; that attempting informal resolution means more than the mere attempt by the discovery proponent ‘to persuade the objector of the error of his ways’; and that ‘[a] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel … . Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.’”

The court finds Defendant’s meet and confer efforts insufficient to comply with statutory requirements.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

 

 

Re:  Lopez v. Castro

Case No.:   PCU 269991

Date:          May 23, 2018

Time:          8:30 A.M. 

Dept.          23– The Honorable Glade Roper

Motion:     Defendant Jose Castro’s Demurrer to Second and Third Causes of Action in Plaintiffs’ First Amended Complaint

Tentative Ruling:  To Overrule Defendant Jose Castro’s Demurrer to the Second and Third Causes of Action in the First Amended Complaint.  Defendant shall file his answer to the First Amended Complaint within ten (10) days of this order.

Plaintiffs’ Second Cause of Action is for Premises Liability.  Plaintiffs assert they have stated a valid claim for premises liability against Defendant Jose Castro because he “controlled” the real property.  Plaintiffs allege the real property belongs to Defendant Ambrosio Castro (FAC paragraph 8) and that Defendant Jose Castro was the ranch manager (FAC paragraph 13).  Plaintiffs assert one does not have to own property be in control for purposes of a premises liability action.  Plaintiffs rely on Alcaraz v. Vece (1997) 14 Cal.4th 1149 to support their argument.  While the legal conclusion may be correct the facts of the case are distinguishable. 

In Alcaraz the owners of a rental property were held liable to a tenant for injuries sustained when stepping into a meter box imbedded into the lawn next to the building.  The property owners asserted they did not own or control the meter box as it was property of the city.  The court found “if the condition of the meter box created a dangerous condition on land that was in defendants' possession or control, defendants owed a duty to take reasonable measures to protect persons on the land from that danger, whether or not defendants owned, or exercised control over, the meter box itself.

In other words, if the presence of the broken meter box made it dangerous to walk across land in defendants' possession or control, defendants had a duty to place a warning or barrier near the box to protect persons on the land from that danger.” (Alcaraz v. Vece, supra, 14 Cal.4th at 1156.)

Here Plaintiffs assert Defendant Jose Castro was the manager for Ambrosio Castro, the owner of the real property.  In Beaucham v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, the owners and the operators of a golf course were considered “possessors” of real property for purposes of premises liability.  

Plaintiffs’ allegations here that Defendant Jose Castro was a manager and controlled the property are sufficient allegations to support the possession element for purposes of pleading.

Premises liability is a form of negligence.  The possessor of property has a duty to exercise ordinary care in managing the property to avoid exposing persons to unreasonable risk of harm.  (Brooks v. Rugene Burger Management Corp. (1989) 215 Cal.App.3d 1161, 1619.  Plaintiff asserts Defendant knew Bonito was dangerous and unsafe to ride and failed to warn Plaintiff.  Plaintiff additionally alleges Bonito was dangerous and unsafe because the horse was not a properly trained saddle horse and had not received proper veterinary care.  Plaintiff alleged Defendant knew these facts.  The allegations of the First Amended Complaint are sufficient for pleading purposes to state a claim for premises liability.

Plaintiffs’ Third Cause of Action is for Strict Liability – for failure to control the horse Bonito.  Plaintiffs assert Defendant Jose Castro owned and/or controlled Bonito (FAC paragraph 11).  Plaintiffs also assert Defendant Jose Castro knew or should have known that Bonito was an animal with dangerous propensities.  The facts asserted to support this statement are Defendants knew Bonito was dangerous and unsafe because the horse never received saddle training for people to ride safely; b) knew Bonito never received proper health care; and c) Defendants permitted Bonita to roam freely on the property despite the number of guests visiting.  (See FAC paragraph 12.)  It is unclear how lack of veterinary care and lack of confinement contributed to Plaintiff’s injuries.  However, taken together, the allegations are sufficient for pleading purposes to state a claim for strict liability.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

 


This concludes the civil tentative rulings



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