TENTATIVE RULINGS

 

DEPT C-13

 

Judge John C. Gastelum

The court will hear oral argument on all matters at the time noticed for the hearing, unless the Court has stated that the matter is off calendar. Do not call the department to verify if you should appear or not.  Please read below for the information.  If you would prefer to submit to the Court’s tentative without oral argument, advise all counsel first and then moving party is to telephone the clerk at (657)622-5213. If the moving party has submitted the matter and there are no appearances by any party at the hearing, the tentative ruling will be the final ruling. Rulings are normally posted on the Internet by 4:30 p.m. on the day before the hearing.  Generally, motions will not be continued or taken off calendar after the tentative has been posted. The moving party shall give notice of the ruling.

 

February 9, 2016

2:00 P.M.

 

 

#

Case Name

Tentative

 

 

 

1

Aronovici vs City of Anaheim

Motion for Summary Judgment and/or SAI

 

Ruling:   Off Calendar – no hearing will be held.  Moving Party dismissed from action.

 

2

Barragan vs Robert’s Waste & Recycling

(1) Demurrer to First Amended Complaint (FAC) (2) Motion to Strike (3) CMC

 

Tentative Ruling:  

 

(1) As to Defendant Robert’s Waste & Recycling’s demurrer to various COAs in Plaintiff’s FAC, the Court rules as follows:

 

The Court notes Plaintiff submitted a “Declaration of Douglas J. Pettibone in Support of Opposition to Demurrer” which contains deposition testimony. As RP did not request judicial notice of this deposition testimony, the declaration and exhibit attached thereto are not considered.

 

As to the 1st COA (specific performance), 2nd COA (breach of contract) and 11th COA (Breach of Loan Agreement), the SOL issue should go to the merits for determination.

 

Where the contract does not fix the time for performance by one or both parties, the law implies a promise to perform within a reasonable time. (Civ. Code, § 1657.)  The statute of limitations, therefore, does not begin to run until expiration of a “reasonable time,” which may be “coincidental with the statute of limitations.”  (Pitzer v. Wedel (1946) 73 Cal.App.2d 86, 91.)  “Reasonable diligence and good faith must be required in such instances and it is the duty of the court to hear evidence and therefrom fix a time which would be fair.” (Pitzer v. Wedel, supra, 73 Cal.App.2d at 91.)

 

Here, there may have been more than just one breach, the latest of which occurred in September 2014 when defendants failed to pay Plaintiff his portion of the assets sold to CR&R and for the first time represented that they did not intend to acknowledge Plaintiff’s ownership in RWR.  (FAC¶33-36.)

 

Further, to the extent Defendants are claiming Plaintiff knew or should have known about the breach of contract claims, either equitable tolling or equitable estoppel may apply.

 

Defendants' fraud in concealing a COA against them may toll the applicable statute of limitations. The purpose is “to disarm a defendant who, by his own deception, has caused a claim to become stale and a plaintiff dilatory.” [Regents of Univ. of Calif. v. Sup.Ct. (Molloy) (1999) 20 Cal.4th 509, 533.)  The statute of limitations may not be used as “a sword rather than a shield, wielded by a party that has intentionally cloaked its identity … to perpetrate a fraud upon otherwise diligent suitors.” (Bernson v. Browning-Ferris Indus. of Calif., Inc. (1994) 7 Cal.4th 926, 935.) 

 

Equitable estoppel is invoked where plaintiff was aware of his or her claim during the statutory period but is lulled into inaction by defendant's misrepresentations. In such cases, defendant will be estopped from pleading a statute of limitations defense.  (See Sagehorn v. Engle (2006) 141 Cal.App.4th 452, 460.) 

 

Here, the FAC makes clear that Plaintiff trusted Defendants because of years of friendship.  (FAC¶24.) When he asked them about his ownership interest, they always led him to believe he was a 33 1/3 percent owner, and therefore, had no reason to believe they had breached the oral agreement until September 2014.  (FAC¶22, 23. 26, 27.)  Accordingly, it appears through defendants reassurances of ownership they concealed their true intent to not perform on the oral agreement.

 

Demurrer to the 1st and 2nd COAs are overruled. 

 

As to the 11th COA (Breach of Loan Agreement), this COA is contradictory to the 1st and 2nd COAs. In this COA, Plaintiff is suggesting the $260,000 tendered to Defendants was a loan “BARRAGAN agreed to loan $260,000 to Defendants and RWR.” (FAC¶98.) Either the $260,000 was a loan, or it was to buy his 33 1/3 percent interest in RWR— it cannot be both. More clarification is needed as to this COA. Demurrer to the 11th COA is sustained with leave to amend.

 

As to the 3rd COA (Dissolution of Corporation), the demurrer is sustained without leave to amend pursuant to Corporations Code sections 1800(a), and 185. Plaintiff has admitted he is not the holder of record of shares. In ¶40 he pleads, “RWR and Defendants have never issued stock to BARRAGAN and the Defendants have refused to issue such stock representing the financial interest that BARRAGAN has obtained in RWR.” Although it may ultimately be determined that he is the owner, and they should have issued him stock, Plaintiff has offered no authority that under the factual scenario herein he has standing to assert this COA.

 

As to the 4th COA (Breach of Fiduciary Duty), Plaintiff concedes this COA needs to be amended and therefore demurrer is sustained with leave to amend.

As to the 6th COA (inspection of corporate records), again, this COA fails because Plaintiff does not appear to be a shareholder at this time. Sustain without leave to amend.

As to the 7th COA (Conversion), Plaintiff pleads, “Over the course of RWR’s corporate governance and life, RWR has issued dividends, distributions and profits to the Defendants. As a 33.5% owner of RWR, BARRAGAN possessed and/or was entitled to a proportional share of corporate dividends, distributions and/or profits of RWR.”

Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages.......Money may be the subject of conversion if the claim involves a specific, identifiable sum; it is not necessary that each coin or bill be earmarked.  (Welco Electronics, Inc. v. Mora (2014) 223 Cal.App.4th 202, 208-09.) 

Here, Plaintiff has pled he was entitled to a proportional share of corporate dividends, distributions and/or profits of RWR, and defendants have converted same. However, dividends, distributions and/or profits are all “money” and without a specific, identifiable sum being pled. If, through discovery, Plaintiff can ascertain exactly how much he is entitled, he can seek leave to amend to add a claim for conversion. Demurrer is sustained without leave to amend.

As to the 9th COA (Unjust Enrichment), demurrer is overruled for the same reasons as established above.

20 days leave to amend. MP is to give notice.

(2) As to Defendant Robert’s Waste & Recycling’s Motion to Strike, the Court rules as follows:

 

Motion to Strike as to ¶6 and Prayer for Relief for the 4th COA is moot by virtue of the Court’s ruling on the demurrer. 

 

Motion to Strike as to ¶69 and Prayer for Relief as to the 5th COA is denied as this language is found in connection to the Fraud COA, which is only alleged against Sylvestre Roberto and Jesus Roberto. Defendant Robert’s Waste & Recycling is not named in that COA, and therefore cannot bring a motion to strike as to it.

 

As to the punitive damages sought in the prayer for relief in the 7th (Conversion), 9th (Breach of Implied in Fact Contract not to Terminate Employment without Good cause), and 10th (Breach of Express Contract not to terminate employment without good cause) COAs, to the extent the motion is not rendered moot by virtue of the ruling on the demurrer (i.e., conversion COA), the motion is granted without leave to amend as punitive damages should not be allowed in connection to the contract COAs.

 

Finally, as to emotional distress damages sought in the prayer to the 9th and 10th COAs, the motion is granted without leave to amend because Plaintiff fails to provide any opposition to the motion as to these damages, in an apparent concession to the merit of the motion.

 

MP is to give notice.

 

3

Fox vs Frausto

(1) Motion to Strike or Tax Costs (2) Motion to Tax Costs

 

Off calendar by the moving party for each motion.

4

Garcia vs Pettis

CMC

 

Tentative Ruling:   None – CMC only.

 

5

Kenyon vs Ocwen Loan Servicing

Motion for Preliminary Injunction

 

Ruling:   Off Calendar – no hearing will be held.   The Court received a Notice of Removal to Federal Court filed on 2-2-16.  Any further proceedings in this court are stayed.

 

6

Kerr vs Santa Ana Unified School

Motion to Compel Answers to Special Irogs

 

Ruling:   Off Calendar – no hearing will be held.    Plaintiff Miko Kerr’s Motion to Compel Defendant Santa Ana Unified School District Public Facilities Corporation to Provide Further Responses to Plaintiff’s First Set of Special Interrogatories is CONTINUED to 4-19-16, Dept. C13, at 2 pm.   The Clerk will give notice.

 

7

Liu vs FCA US LLC

(1) Motion to Be Relieved as Counsel of Record (2) CMC

 

Ruling:   (1-2) Off Calendar – no hearing will be held.  (1) Martin Anderson, Esq. of the Anderson Law Firm’s unopposed Motion to Be Relieved as Counsel of Record for Plaintiff Jen Liu is GRANTED.

 

The motion is unopposed, service is proper, and moving attorney has sufficiently established a basis for permissive withdrawal. 

 

The Proposed Order, however, fails to include the client’s last known telephone number.  Moving attorney is ordered to file and serve a revised Proposed Order that includes the client’s last known telephone number by 2-11-16.  The order will take effect on filing of proof of service on the client. 

 

(2) CMC is continued to 3-8-16, Dept. C13, at 8:45 am.   

 

Moving attorney is to give notice.

 

8

Oliver vs Meguiar’s

Motion to Compel Deposition (Oral or Written)

 

Ruling:   Off Calendar – no hearing will be held.   Case settled at MSC.

 

9

Pickard vs California TD

Motion -- Other

 

Tentative Ruling:  Plaintiff Daniel Lee Pickard’s Motion for Relief from Deemed Admissions is GRANTED.

The evidence reflects that Plaintiff (in pro per) did not receive notice of the motion to deem the requests for admissions as admitted, or notice of the court’s 8-8-15 Minute Order, until he was served with the Motion for Judgment on the Pleadings on 11-10-15.  The above sufficiently establishes reasonable mistake with respect to Plaintiff’s duty to respond (i.e., Plaintiff believed his prior counsel of record responded to the discovery requests).  Any doubts must be resolved in favor of the application for relief from default. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1419-20.) 

 

In addition, there is no substantial prejudice to Defendant in granting Plaintiff’s motion for relief. 

 

Plaintiff attaches his proposed responses to the request for admissions as Exhibit A to the moving papers.

 

Prevailing Party is to give notice.

 

10

Ramirez vs El Tapatio Restaurant

Motion for Leave to Amend

 

Tentative Ruling:   Plaintiff Ruben Ramirez’s Motion to Amend Judgment is DENIED.

 

Plaintiff seeks to amend the judgment against Defendant El Tapatio Grill, Inc. to be amended to impose liability on El Tapatio Grill and Mariscos, Anais Enterprises, Inc., Victor Ibarra, Tiffany E. Jakstis, Candy Jakstis, and Charles Jakstis on the grounds: (1) each of them “participated in the operation of the business in one way or another,” “have formed a de facto partnership,” and are thus “are jointly and severally liable for the Judgment previously obtained by the Plaintiff” and (2) all of the individuals were doing business as El Tapatio, had notice of the existence of the litigation, chose to ignore the service of the summons and complaint, and thus should be bound by the Judgment. Plaintiff cites no authority for same. Legal arguments must be supported by legal authority. (Schubert v. Reynolds (2002) 95 Cal.App.4th 100, 109.)

 

Code of Civil Procedure section 187 has been invoked to grant a court authority to impose liability under a judgment upon the alter ego who had control of the litigation and to amend the judgment to name the successor corporation as a judgment debtor. (See Alexander v. Abbey of the Chimes (1980) 104 Cal. App. 3d 39, 45-46; McClellan v. Northridge Park Townhome Owners Assn. (2001) 89 Cal.App.4th 746, 755.) Here, unlike in Alexander v. Abbey of the Chimes, supra, and McClellan v. Northridge Park Townhome Owners Assn., supra, the two cases relied upon by Plaintiff, none of the third-parties are alleged to be the alter ego of or successor entity to Defendant El Tapatio Grill, Inc.

 

Victor Ibarra, Tiffany Jakstis, Charles Jakstis, and Candy Jakstis are not aware of a company called “El Tapatio Grill, Inc” and have never held an ownership interest in Defendant/Judgment Debtor El Tapatio Grill, Inc. (See V. Ibarra Decl., ¶ 6; T. Jakstis Decl., ¶ 2, C. Jakstis Decl., ¶ 2, and C. Jakstis Decl., ¶ 2.) Tiffany E. Jakstis, Candy Jakstis, and Charles Jakstis were not even served with the Motion. (See T. Jakstis Decl., ¶ 5, C. Jakstis Decl., ¶ 4, and C. Jakstis Decl., ¶ 4.)

 

As pointed out in the Opposition, new individual defendants have been added to a judgment where it was shown that in their capacity as alter egos of the corporation they in fact had control of the previous litigation and were thus virtually represented in the lawsuit. (See NEC Elecs. Inc. v. Hunt (1989) 208 Cal.App.3d 772, 778.) Here, there is absolutely no evidence any of the third-parties Plaintiff seeks to add to the judgment are alter egos of Defendant/Judgment Debtor El Tapatio Grill, Inc. and/or controlled the prior litigation. 

 

The Court takes judicial notice only of Exhibits 1, 2, 5, 7, 9, and 10. The Court takes judicial notice of Exhibits 1 and 2 pursuant to Evidence Code section 452(d) and 452(h). The Court takes judicial notice of Exhibits 5, 7, 9 and 10 pursuant to Evidence Code section 452(c). Official acts include records, reports and orders of administrative agencies. (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 518.)

The Court SUSTAINS Objection Nos. 1-5 to the Declaration of Maurice Mandel II by Interested Parties Victor Ibarra, Tiffany Jakstis, Candy Jakstis, Charles Jakstis, and Anais Enterprises, Inc.

Moving Party is to give notice.

 

11

Ross vs Linda Stone

(1) Demurrer to Amended Complaint (2) CMC

 

Ruling:   (1-2) Off Calendar – no hearing will be held.  CONTINUED to 3-8-16, Dept. C13, at 2 pm.

 

12

Ruiz vs Bodega Latina

Motion to Be Relieved as Counsel of Record

 

Ruling:   Off Calendar – no hearing will be held.  David Smith, Esq. of Law Offices of David L. Smith’s unopposed Motion to Be Relieved as Counsel of Record for Plaintiff Guadalupe Flores Ruiz is GRANTED.

 

The motion is unopposed, service on the client is proper, and moving attorney has sufficiently established a basis for permissive withdrawal. 

 

The proposed order, however, fails to include the client’s last known address and telephone number.  In addition, the proposed order fails to include information regarding the Mandatory Settlement Conference set for 3-3-16.  Further, the proposed order fails to indicate that the attorney has served the client by mail and submitted a declaration establishing that the servicing requirements have been satisfied.  Moving attorney is ordered to file and serve a revised Proposed Order that includes this information by 2-11-16.  This order will be effective upon filing of proof of service on the client. 

 

Moving attorney is to give notice.

 

13

Villanueva Rostro vs Pettis

(1) Motion to Lift Stay of Civil Action (2) CMC

 

Tentative Ruling:   Assuming the criminal case did not commence on February 8, 2016, the Motion to Lift Stay is granted.   Discovery herein should proceed.   MP is to give notice.

 

Assuming the criminal trial did not go forward, the motion to lift the stay is granted. The stay has been in place as to all parties for 15 months, with no real end in sight.  Clearly a Judge has the discretion to stay a civil action pending resolution of a related criminal proceeding against defendant, but defendant is not entitled to an indefinite stay—holding up all parties in this civil matter. If discovery proceeds here and Defendant asserts his 5th Amendment Right against self-incrimination there are tools the Court can employ to fashion a fair resolution for the competing interests involved. See Thomas, California Civil Courtroom Handbook and Desktop Reference, Ch.32 Witness privilege against self-incrimination (2015),

 

When a party invokes the privilege against self-incrimination there may be civil consequences to exercising the privilege. (Alvarez v. Sanchez (1984) 158 Cal.App.3d 709, 712, 204 Cal.Rptr. 864; People ex rel. City of Dana Point v. Holistic Health (2013) 213 Cal.App.4th 1016, 1025, 153 Cal.Rptr.3d 810) A plaintiff commencing a lawsuit waives the privilege as to factual issues tendered by the complaint—a plaintiff who persists in refusal to answer risks dismissal of the lawsuit. (Fremont Indemnity Co. v. Superior Court (1982) 137 Cal.App.3d 554, 557, 187 Cal.Rptr. 137) Alternatively, lesser sanctions may be imposed such as being barred from introducing evidence at trial on issues relating to discovery questions plaintiff refused to answer. (Dwyer v. Crocker Nat'l Bank (1987) 194 Cal.App.3d 1418, 1432–1433, 240 Cal.Rptr. 297) A defendant claiming the privilege against self-incrimination during discovery risks the court excluding the defendants testimony as to such matters at time of trial. (See Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1169, 208 Cal.Rptr. 345.) Alternatively, the plaintiff may seek a protective order prior to trial to bar the defendant from testifying to such matters when the case comes to trial. (Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 688–689, 208 Cal.Rptr. 743) The above notwithstanding, preclusion of testimony is only one tool available to the trial court in fashioning a fair resolution for the competing interests involved. (Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 307–308, 104 Cal.Rptr.2d 525)

 

Practice Note

To avoid a party testifying at trial on matters as to which it had previously asserted the privilege, the court may impose a pretrial deadline for any waiver of the privilege, allowing sufficient time for the opposing party to conduct depositions and other necessary discovery. (See Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 310, 104 Cal.Rptr.2d 525.) In any event, the court cannot impose evidentiary restrictions on the party's testimony when that party previously claimed the privilege and seeks to waive it at trial without a prior motion to compel discovery or motion in limine by the opposing party. (See People ex rel. City of Dana Point v. Holistic Health (2013) 213 Cal.App.4th 1016, 1030–1032, 153 Cal.Rptr.3d 810.) Cal. Civ. Ctrm. Hbook. & Desktop Ref. § 32:37 (2015 ed.)

 

14

Will vs Hampshire Square

Motion for Summary Judgment and/or SAI

 

Tentative Ruling: Motion for Summary Judgment brought by Defendants Hampshire Square and Western National Securities dba Western National Property Management is DENIED, on the basis the undisputed evidence is insufficient to establish either a lack of duty or causation.

 

Initially, Defendants assert, primarily, two reasons for finding a duty did not exist.   First, Defendants assert they did not have control over the minor Defendant Alicia’s conduct.  Second, Defendants assert the minor Defendant Alicia’s conduct was unforeseeable.

 

As to the issue of control, Defendants’ position is unpersuasive.   While it is true Defendants had no control over the minor Alicia, Defendants do not dispute that they “had control over the general premises of the apartment complex.” (See Motion: 4:10-12.)   Further, the evidence indicates Defendants previously exerted control over this area, by banning bicycle riding on the pedestrian paths. (See Plaintiff’s Evidence: Negrete Deposition: 53:14-54:6; See also Plaintiff’s Evidence: Will Deposition: 96:25-97:7, 98:14-99:15 and 100:8-9.)  Based on the above, evidence exists which indicates Defendants had control over the area and the activity at issue in this action.   Notably, Defendants cite to no persuasive authority which supports limiting the question of control, to control over Alicia.

 

Next, as to foreseeability, Defendants assert Plaintiff “can offer no evidence of Defendants’ actual or constructive knowledge of Alicia’s particular propensity to ride bicycles improperly on the walkway of the apartment complex common area.” (See Motion: 5:13-15).  Thereafter, Defendants assert no complaints were made, regarding Alicia’s bicycle riding. (See SSUF No. 11).

 

Importantly, however, Defendants mischaracterize the relevant foreseeability analysis.  

 

As explained by the Court in Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611: “[A] court’s task – in determining ‘duty’ – is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may be appropriately imposed on the negligent party.” (Id. at 1620, citing Ballard v. Uribe (1986) 41 Cal.3d 564, 573, fn. 6; See also Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 722.) 

 

Thus, the question is not whether Defendants were aware that Alicia posed a risk, in riding her bicycle, but whether Defendants were aware of a risk of bicyclists injuring pedestrians on the pedestrian path.

 

Defendants offer no argument or evidence on this question; however, Plaintiff submits the Deposition testimony of Mr. Negrete, Assistant Manager at Western National, wherein he affirmatively states that he was aware of at least three or four instances of bicyclists failing to yield to pedestrians, prior to the instant accident. (See Plaintiff’s Evidence: Negrete Deposition: 73:8-17.)  Additionally, Plaintiff testified she made complaints to Defendants, concerning bicyclists on the pedestrian path.  (See Defendants’ Exhibit “1,” Will’s Deposition: 48:2-52:25.)

 

Based on the same, evidence exists which suggests Plaintiff’s injury was foreseeable.

 

Given all of the above, evidence exists which supports the existence of a duty.  Whether or not Defendants acted reasonably, in response to the same, is a question soundly left to the jury. (See Terry v. Atlantic Richfield Co. (1977) 72 Cal.App.3d 962, 966; See also Constance B. v. State of California (1986) 178 Cal.App.3d 200, 207.)

 

Next, Defendants assert they cannot be held liable, as Defendant John Fehrs (through Requests for Admissions which have been deemed admitted) has admitted to sole responsibility for the accident.

 

Defendants’ fail to offer any persuasive explanation or authority which supports this position.  Defendants cite no authority, for example, which indicates the Requests for Admissions limit Plaintiff’s recovery against other Defendants.   Rather, as cited by Plaintiff, pursuant to Code of Civil Procedure section 2033.410, a request for admission is binding only on the party making the admission.

 

Last, as to causation, Defendants merely assert Plaintiff will be unable to identify any action Defendants should have taken, which may have prevented Plaintiff’s injury.  Notably, Defendants offer little evidence, to demonstrate a lack of causation. 

 

At best, Defendants assert that “Ms. Ramirez was informed of the apartment complex rules and regulations” which “contained a specific section regarding use of the common areas.” (See Motion: 7:14-16.)  This fact fails to demonstrate a lack of causation.

 

Moreover, “[p]ointing out the absence of evidence to support a plaintiff’s claim is insufficient to meet the moving defendant’s initial burden of production.”  (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)  “The defendant must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Id., citing (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855, fn. 23.)

 

Further, while Defendants cite Davis v. Gomez (1989) 207 Cal.App.3d 1401, for the proposition that Plaintiff must establish “what action the landlord could have taken” and must “define that ‘something’ in fairly precise terms.” (Id. at 1404 and 1406), the Court in Davis was referencing the definition of a duty.

 

Moreover, regardless, the evidence indicates that Defendants could have banned bicycle riding on pedestrian paths and, at the time of the incident, had decided to permit them. 

 

The Court has no means of concluding that this decision did not play a substantial role in Plaintiff’s injury.

 

“The first component of causation in fact generally is a question of fact for the jury.  Causation in fact is shown if the defendant’s act or omission is ‘a substantial factor’ in bringing about the plaintiff’s injury…This issue ordinarily may not be resolved on summary judgment.”  (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 288; See also Constance B. v. State of California (1986) 178 Cal.App.3d 200, 207.)

 

Plaintiff’s Objection No. 1 is SUSTAINED, as hearsay.   Initially, Defendants respond to Plaintiff’s objection, by asserting the quote from Ms. Will is a declaration against interest; however, Defendants ignore that Ms. Will is repeating an alleged statement by Ms. Ramirez, which constitutes hearsay.  Accordingly, the Court SUSTAINs Plaintiff’s Objection No. 1.

 

Next, Defendants submit their own objections; however, the Court need not rule on the same, as the objections are improper:  Defendants submit objections to Plaintiff’s Separate Statement, only.  Additionally, the “objections” primarily offer argument.  Defendants have submitted no objections which are directed towards evidence.

 

Last, the Reply offers no persuasive argument. Defendants continue to assert, without authority, that control over Alicia is the defining factor in establishing a duty (rather than control over bicycle riding in the complex).   Thereafter, Defendants assert it was not foreseeable that Plaintiff would be injured, “after being startled by a child riding a bicycle in the common areas.”  Defendants then suggest that Plaintiff was negligent. (An argument not put forth in the Motion).

 

Similarly, Defendants reassert that they cannot be liable if Mr. Fehrs is 100 percent liable, arguing this is “simply mathematics.”  Defendants still cite no authority which supports the assertion that Mr. Fehrs admissions (deemed admitted) are binding to limit Plaintiff’s recovery against Defendants.

 

Further, Defendants assert “the overwhelming evidence demonstrates that changing the rules relating to bicycle use was not the substantial cause of Plaintiff’s injuries.” (See Reply: 5:7-8).  No such “overwhelming evidence” is cited.