This case was last updated from Los Angeles County Superior Courts on 11/19/2020 at 06:42:24 (UTC).

LAMONT CUMBY VS BICYCLE HOTEL AND CASINO

Case Summary

On 01/31/2019 LAMONT CUMBY filed a Personal Injury - Other Personal Injury lawsuit against BICYCLE HOTEL AND CASINO. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******1225

  • Filing Date:

    01/31/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiff

CUMBY LAMONT

Defendant

BICYCLE HOTEL AND CASINO

Attorney/Law Firm Details

Plaintiff Attorney

GAUGH KENNETH RAY

Defendant Attorney

BORDIN-WOSK JOSHUA D

 

Court Documents

Minute Order - Minute Order (Hearing on Motion for Judgment on the Pleadings)

10/19/2020: Minute Order - Minute Order (Hearing on Motion for Judgment on the Pleadings)

Request for Judicial Notice - Request for Judicial Notice

9/25/2020: Request for Judicial Notice - Request for Judicial Notice

Opposition (name extension) - Opposition to Defendant's Motion for Judgment on the Pleadings

9/25/2020: Opposition (name extension) - Opposition to Defendant's Motion for Judgment on the Pleadings

Minute Order - Minute Order (Hearing on Motion for Judgment on the Pleadings)

8/6/2020: Minute Order - Minute Order (Hearing on Motion for Judgment on the Pleadings)

Answer - Answer

11/4/2019: Answer - Answer

Answer - Answer

11/5/2019: Answer - Answer

Motion for Judgment on the Pleadings - Motion for Judgment on the Pleadings

11/22/2019: Motion for Judgment on the Pleadings - Motion for Judgment on the Pleadings

Request for Judicial Notice - Request for Judicial Notice

11/22/2019: Request for Judicial Notice - Request for Judicial Notice

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

4/23/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

Opposition (name extension) - Opposition Declaration of Kenneth Gaugh submitted in opposition to Defendant's MJP

5/18/2020: Opposition (name extension) - Opposition Declaration of Kenneth Gaugh submitted in opposition to Defendant's MJP

Proof of Personal Service - Proof of Personal Service

5/18/2020: Proof of Personal Service - Proof of Personal Service

Notice (name extension) - Notice of Continued Hearing on Defendant's MJP

5/18/2020: Notice (name extension) - Notice of Continued Hearing on Defendant's MJP

Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

7/24/2020: Notice Re: Continuance of Hearing and Order - Notice Re: Continuance of Hearing and Order

Complaint - Complaint

1/31/2019: Complaint - Complaint

Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

1/31/2019: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

First Amended Standing Order - First Amended Standing Order

1/31/2019: First Amended Standing Order - First Amended Standing Order

Summons - Summons on Complaint

1/31/2019: Summons - Summons on Complaint

Civil Case Cover Sheet - Civil Case Cover Sheet

1/31/2019: Civil Case Cover Sheet - Civil Case Cover Sheet

6 More Documents Available

 

Docket Entries

  • 03/10/2021
  • Hearing03/10/2021 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 10/19/2020
  • DocketMinute Order (Hearing on Motion for Judgment on the Pleadings)

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  • 10/19/2020
  • DocketHearing on Motion for Judgment on the Pleadings scheduled for 10/19/2020 at 11:00 AM in Spring Street Courthouse at Department 25 updated: Result Date to 10/19/2020; Result Type to Held - Motion Denied

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  • 09/25/2020
  • DocketOpposition to Defendant's Motion for Judgment on the Pleadings; Filed by: LAMONT CUMBY (Plaintiff)

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  • 09/25/2020
  • DocketRequest for Judicial Notice; Filed by: LAMONT CUMBY (Plaintiff)

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  • 08/06/2020
  • DocketMinute Order (Hearing on Motion for Judgment on the Pleadings)

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  • 08/06/2020
  • DocketOn the Court's own motion, Hearing on Motion for Judgment on the Pleadings scheduled for 08/06/2020 at 10:30 AM in Spring Street Courthouse at Department 25 Not Held - Continued - Court's Motion was rescheduled to 10/19/2020 11:00 AM

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  • 07/24/2020
  • DocketNotice Re: Continuance of Hearing and Order; Filed by: Clerk

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  • 07/24/2020
  • DocketOn the Court's own motion, Non-Jury Trial scheduled for 07/30/2020 at 08:30 AM in Spring Street Courthouse at Department 25 Not Held - Advanced and Continued - by Court was rescheduled to 03/10/2021 08:30 AM

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  • 07/24/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 02/03/2022 at 10:30 AM in Spring Street Courthouse at Department 25 Not Held - Vacated by Court on 07/24/2020

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8 More Docket Entries
  • 11/05/2019
  • DocketAnswer; Filed by: BICYCLE HOTEL AND CASINO (Defendant); As to: LAMONT CUMBY (Plaintiff)

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  • 11/04/2019
  • DocketAnswer; Filed by: BICYCLE HOTEL AND CASINO (Defendant); As to: LAMONT CUMBY (Plaintiff)

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  • 02/05/2019
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 02/03/2022 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 02/05/2019
  • DocketNon-Jury Trial scheduled for 07/30/2020 at 08:30 AM in Stanley Mosk Courthouse at Department 94

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  • 02/05/2019
  • DocketCase assigned to Hon. James E. Blancarte in Department 94 Stanley Mosk Courthouse

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  • 01/31/2019
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 01/31/2019
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 01/31/2019
  • DocketSummons on Complaint; Issued and Filed by: LAMONT CUMBY (Plaintiff); As to: BICYCLE HOTEL AND CASINO (Defendant)

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  • 01/31/2019
  • DocketCivil Case Cover Sheet; Filed by: LAMONT CUMBY (Plaintiff); As to: BICYCLE HOTEL AND CASINO (Defendant)

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  • 01/31/2019
  • DocketComplaint; Filed by: LAMONT CUMBY (Plaintiff); As to: BICYCLE HOTEL AND CASINO (Defendant)

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Tentative Rulings

Case Number: 19STLC01225    Hearing Date: October 19, 2020    Dept: 25

HEARING DATE: Mon., October 19, 2020 JUDGE /DEPT: Blancarte/25

CASE NAME: Cumby v. Bicycle Hotel and Casino

CASE NUMBER: 19STLC01225 COMP. FILED: 01-31-19

NOTICE: OK DISC. C/O: 02-08-21

MOTION C/O: 02-23-21

TRIAL DATE: 03-10-21

PROCEEDINGS: MOTION FOR JUDGMENT ON THE PLEADINGS

MOVING PARTY: Defendant Bicycle Hotel and Casino

RESP. PARTY: Plaintiff Lamont Cumby

MOTION FOR JUDGMENT ON THE PLEADINGS

(CCP § 438, et seq.)

TENTATIVE RULING:

Defendant Bicycle Hotel & Casino’s Motion for Judgment on the Pleadings is DENIED.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on May 18, 2020 [ ] Late [ ] None

REPLY: None filed as of October 15, 2020 [ ] Late [X] None

ANALYSIS:

  1. Background

On January 31, 2019, Plaintiff Lamont Cumby (“Plaintiff”) filed an action for premises liability against Bicycle Hotel and Casino (“Defendant”). On November 4, 2019, Defendant filed an Answer.

On November 22, 2019, Defendant filed the instant Motion for Judgment on the Pleadings (the “Motion”). On May 18, 2020, Plaintiff filed an opposition.

At the initial August 6, 2020 hearing, the Court stated it could only consider the pleadings and judicially noticed matter in making its ruling and thus, could not consider the evidence submitted with Plaintiff’s opposition. (8/6/20 Minute Order.) However, the Court continued the matter to allow Plaintiff the opportunity to request judicial notice and allow Defendant to respond. (Id.)

On September 25, 2020, Plaintiff filed a supplemental opposition and request for judicial notice.

To date, no reply brief has been filed.

  1. Request for Judicial Notice

At the previous hearing, the Court granted Defendant’s request for judicial notice of Plaintiff’s Complaint. (8/6/20 Minute Order.)

On September 25, 2020, Plaintiff filed a Request for Judicial Notice of (1) the Notice of Court Rejection of Electronic Filing dated January 30, 2020; (2) the State Bar of California online attorney profile for Plaintiff’s counsel Kenneth Ray Gaugh; and (3) the first page of Plaintiff’s Complaint. (RJN, p. 2, Exhs. 1-3.)

Plaintiff’s request is GRANTED as to items (1) and (3). (Evid. Code, § 452, subd. (d). However, Plaintiff’s request as to item (2) is DENIED. “The contents of Web sites and blogs are ‘plainly subject to interpretation and for that reason not subject to judicial notice.’” (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 194.)

  1. Legal Standard

The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322, citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) Matters which are subject to mandatory judicial notice may be treated as part of the complaint and may be considered without notice to the parties. Matters which are subject to permissive judicial notice must be specified in the notice of motion, the supporting points and authorities, or as the court otherwise permits. (Id.) The motion may not be supported by extrinsic evidence. (Barker v. Hull (1987) 191 Cal.App.3d 221, 236.)

When the moving party is a defendant, he must demonstrate either of the following exist:

(i) The court has no jurisdiction of the subject of the cause of action alleged in the complaint.

(ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc., § 438, subd. (c)(a)(B)(i)-(ii).)

Additionally, a motion for judgment on the pleadings must be accompanied by a meet and confer declaration demonstrating an attempt to meet and confer in person or by telephone, at least five days before the date a motion for judgment on the pleadings is filed. (Code Civ. Proc., § 439.)

  1. Discussion

The Motion is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 439. (Mot., Swaim Decl., ¶¶ 4-6.)

Plaintiff alleges that, on January 28, 2017, he slipped and fell while on Defendant’s business premises. (Compl., p. 4, ¶ L-1.) The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) A cause of action for personal injury of an individual caused by the negligence of another must be commenced within two years. (Code Civ. Proc., § 335.1.)

Defendant argues that Plaintiff’s cause of action for premises liability, filed on January 31, 2019, was three days too late under the applicable two-year statute of limitations for personal injury actions. (Mot., p. 4:12-13.). (Id.) As this is a personal injury action, the statute of limitations expired on January 28, 2019. (Code Civ. Proc., § 335.1.) “A pleading which on its face is barred by the statute of limitations does not state a viable cause of action and is subject to judgment on the pleadings.” (Hunt v. County of Shasta (1990) 225 Cal.App.3d 432, 440 (as modified on denial of rehearing).)

As noted above, the Court has taken judicial notice of the Court’s Notice of Rejection of Electronic Filing (“Notice of Rejection”) dated January 30, 2020. The Notice of Rejection demonstrates that Plaintiff initially filed his Complaint on January 28, 2019 at 11:30 p.m., the last day before the statute of limitations expired. (9/25/20 RJN, Exh. 1.) The initial filing was rejected because the attorney’s address on the online data field did not match the address on the Complaint. (Id.) Notably, the Notice of Rejection was not generated until January 30, 2020. (Id.) Plaintiff re-filed his Complaint one day later, on January 31, 2020.

A court clerk has no discretion to refuse to file a pleading that substantially conforms to the California Rules of Court. (Rojas v. Cutsforth (1998) 67 Cal.App.4th 774, 777-78.) If there is a defect on the pleading, the court clerk must file the pleading and then notify the attorney of the error so that it may be corrected. (Id.) If the pleading is rejected due to an insignificant defect, the pleading is deemed filed on the date it was first presented for filing for statute of limitations purposes. (Id.)

Because Plaintiff’s Notice of Rejection demonstrates the Complaint was first filed within the statute of limitations period but rejected due to an insignificant defect, Defendant’s Motion is DENIED.

  1. Conclusion & Order

For the foregoing reasons, Defendant Bicycle Hotel & Casino’s Motion for Judgment on the Pleadings is DENIED.

Moving party is ordered to give notice.

Case Number: 19STLC01225    Hearing Date: August 06, 2020    Dept: 25

MOTION FOR JUDGMENT ON THE PLEADINGS

(CCP § 438, et seq.)

TENTATIVE RULING:

Defendant Bicycle Hotel & Casino’s Motion for Judgment on the Pleadings is CONTINUED TO OCTOBER 19, 2020 at 11:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. Plaintiff must file any supplemental papers in support of its opposition at least 16 court days before the next hearing date. If supplemental papers are filed, Defendant may file reply papers in accordance with Code of Civil Procedure section 1005, subdivision (b).   

SERVICE

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on May 18, 2020 [   ] Late [   ] None

REPLY: None filed as of August 4, 2020 [   ] Late [X] None

ANALYSIS:

  1. Background

On January 31, 2019, Plaintiff Lamont Cumby (“Plaintiff”) filed an action for premises liability against Bicycle Hotel and Casino (“Defendant”). On November 4, 2019, Defendant filed an Answer.

On November 22, 2019, Defendant filed the instant Motion for Judgment on the Pleadings (the “Motion”). On May 18, 2020, Plaintiff filed an Opposition. To date, no reply brief has been filed.

  1. Request for Judicial Notice

Defendant requests that the Court take judicial notice of Plaintiff’s Complaint. (RJN, p. 1, Exh. 1.) Defendant’s request is GRANTED. (Evid. Code § 452, subd. (d).)

  1. Legal Standard

The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law.  (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322, citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.)  Matters which are subject to mandatory judicial notice may be treated as part of the complaint and may be considered without notice to the parties. Matters which are subject to permissive judicial notice must be specified in the notice of motion, the supporting points and authorities, or as the court otherwise permits. (Id.)  The motion may not be supported by extrinsic evidence. (Barker v. Hull (1987) 191 Cal.App.3d 221, 236.)

When the moving party is a defendant, he must demonstrate either of the following exist:

(i)  The court has no jurisdiction of the subject of the cause of action alleged in the complaint.

(ii) The complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc., § 438, subd. (c)(a)(B)(i)-(ii).)

Additionally, a motion for judgment on the pleadings must be accompanied by a meet and confer declaration demonstrating an attempt to meet and confer in person or by telephone, at least five days before the date a motion for judgment on the pleadings is filed. (Code Civ. Proc., § 439.)

  1. Discussion

As an initial matter, the Court notes that the Motion is accompanied by a meet and confer declaration as required by Code of Civil Procedure section 439. (Mot., Swaim Decl., ¶¶ 4-6.)

Plaintiff alleges that, on January 28, 2017, he slipped and fell while on Defendant’s business premises. (Compl., p. 4, ¶ L-1.) The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) A cause of action for personal injury of an individual caused by the negligence of another must be commenced within two years. (Code Civ. Proc., § 335.1.)

Defendant argues that Plaintiff’s cause of action for premises liability, filed on January 31, 2019, was three days too late under the applicable two-year statute of limitations for personal injury actions. (Mot., p. 4:12-13.). (Id.) As this is a personal injury action, the statute of limitations expired on January 28, 2019. (Code Civ. Proc., § 335.1.) “A pleading which on its face is barred by the statute of limitations does not state a viable cause of action and is subject to judgment on the pleadings.” (Hunt v. County of Shasta (1990) 225 Cal.App.3d 432, 440 (as modified on denial of rehearing).)

In Opposition, Plaintiff argues the Complaint was timely filed. Plaintiff’s counsel submits a declaration arguing he e-filed the Complaint through One Legal on January 28, 2019, but that it was rejected because the attorney’s address on the online data field did not match the complaint. (Oppo., p. 2, ¶ 2, Exh A.) As evidence, Plaintiff submits a copy of the Notice of Court Rejection of Electronic Filing, demonstrating that a complaint in the action Lamont Cumby v. Bicycle Hotel and Casino was filed on January 28, 2019 at 11:30 p.m. and was rejected on January 30, 2019. (Id.)

However, evidence is not admissible either in support of or in opposition to a motion for judgment on the pleadings. (Silver v. Atlantic-Pacific Auto Leasing, Inc. (1967) 253 Cal.App.2d 1006, fn. 3.) As noted above, the Court may only consider the pleadings themselves as well as matters that are judicially noticeable in making a decision on a motion for judgment on the pleadings. Thus, the Court cannot consider Plaintiff’s counsel’s declaration or the attached exhibit as evidence in ruling on the instant Motion. Importantly, Plaintiff did not request judicial notice of the Court’s notice of rejection.

However, the Court notes that the rejection notice could fall under matters that are permissibly judicially noticeable under Evidence Code section 452. Thus, the Court will continue the hearing to allow Plaintiff an opportunity to request judicial notice and to allow Defendant an opportunity to respond to the request for judicial notice, if one is made. (Evid. Code, § 455, subd. (a).) 

  1. Conclusion & Order

For the foregoing reasons, Defendant Bicycle Hotel & Casino’s Motion for Judgment on the Pleadings is CONTINUED TO OCTOBER 19, 2020 at 11:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. Plaintiff must file any supplemental papers in support of its opposition at least 16 court days before the next hearing date. If supplemental papers are filed, Defendant may file reply papers in accordance with Code of Civil Procedure section 1005, subdivision (b).  

Moving party is ordered to give notice.