This case was last updated from Los Angeles County Superior Courts on 07/01/2020 at 06:06:45 (UTC).

JENNIFER LIBERTO ET AL VS APRO LL ET AL

Case Summary

On 10/06/2017 JENNIFER LIBERTO filed a Personal Injury - Other Personal Injury lawsuit against APRO LL. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are CHRISTOPHER K. LUI, STEPHEN M. MOLONEY and DANIEL M. CROWLEY. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8713

  • Filing Date:

    10/06/2017

  • Case Status:

    Other

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

CHRISTOPHER K. LUI

STEPHEN M. MOLONEY

DANIEL M. CROWLEY

 

Party Details

Plaintiffs and Petitioners

LIBERATO JENNIFER

LIBERATO NICHOLAS

Defendants and Respondents

APRO LLC

UNITED OIL

CF UNITED LLC

DOES 1 TO 100

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

BARONE RICHARD G.

BARONE RICHARD GUY

Defendant and Respondent Attorneys

COLMAN LAW GROUP

COLMAN JONATHAN HILLEL

 

Court Documents

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/14/2020

4/14/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/14/2020

Minute Order - MINUTE ORDER (COURT ORDER)

4/14/2020: Minute Order - MINUTE ORDER (COURT ORDER)

Minute Order - MINUTE ORDER (DEFENDANTS' MOTION FOR ORDER FOR PLAINTIFF TO POST UNDERTAKIN...)

3/10/2020: Minute Order - MINUTE ORDER (DEFENDANTS' MOTION FOR ORDER FOR PLAINTIFF TO POST UNDERTAKIN...)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (RULING ON SUBMITTED MATTER) OF 03/11/2020

3/11/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (RULING ON SUBMITTED MATTER) OF 03/11/2020

Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER)

3/11/2020: Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER)

Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES PURSUANT TO STIPULATION

2/27/2020: Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES PURSUANT TO STIPULATION

Minute Order - MINUTE ORDER (DEFENDANTS APRO LLC DBA UNITED OIL AND CF UNITED LLC'S EX PAR...)

2/28/2020: Minute Order - MINUTE ORDER (DEFENDANTS APRO LLC DBA UNITED OIL AND CF UNITED LLC'S EX PAR...)

Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR UNDERTAKING

2/26/2020: Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR UNDERTAKING

Declaration - DECLARATION DECLARATION OF AMELIA A. STEELHEAD IN SUPPORT OF PLAINTIFF'S OPPOSITION

2/26/2020: Declaration - DECLARATION DECLARATION OF AMELIA A. STEELHEAD IN SUPPORT OF PLAINTIFF'S OPPOSITION

Minute Order - MINUTE ORDER (PLAINTIFF JENNIFER LIBERATO'S EX PARTE APPLICATION TO CONTINU...)

8/29/2019: Minute Order - MINUTE ORDER (PLAINTIFF JENNIFER LIBERATO'S EX PARTE APPLICATION TO CONTINU...)

Stipulation - No Order - STIPULATION - NO ORDER STIPULATION OF ALL PARTIES TO CONTINUE TRIAL

8/29/2019: Stipulation - No Order - STIPULATION - NO ORDER STIPULATION OF ALL PARTIES TO CONTINUE TRIAL

Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES

8/29/2019: Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES

[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Person - [PROPOSED ORDER] AND STIPULATION TO CONTINUE TRIAL, FSC (AND RELATED MOTION/DISCOVERY DATES) PERSO

5/23/2019: [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Person - [PROPOSED ORDER] AND STIPULATION TO CONTINUE TRIAL, FSC (AND RELATED MOTION/DISCOVERY DATES) PERSO

Request for Dismissal - Request for Dismissal With prejudice; Only as to Nicholas Liberato's Loss of Consortium Claim

11/20/2018: Request for Dismissal - Request for Dismissal With prejudice; Only as to Nicholas Liberato's Loss of Consortium Claim

NOTICE OF POSTING JURY FEES

8/28/2018: NOTICE OF POSTING JURY FEES

Proof of Service of Summons and Complaint -

12/15/2017: Proof of Service of Summons and Complaint -

CIVIL DEPOSIT

1/8/2018: CIVIL DEPOSIT

DEMAND FOR JURY TRIAL

1/8/2018: DEMAND FOR JURY TRIAL

20 More Documents Available

 

Docket Entries

  • 06/29/2020
  • Docketat 10:30 AM in Department 28, Daniel M. Crowley, Presiding; Trial Setting Conference - Not Held - Vacated by Court

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  • 06/24/2020
  • DocketRequest for Dismissal; Filed by APRO, LLC (Defendant)

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  • 06/02/2020
  • Docketat 08:30 AM in Department 28, Daniel M. Crowley, Presiding; Jury Trial - Not Held - Advanced and Vacated

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  • 05/19/2020
  • Docketat 10:00 AM in Department 28, Daniel M. Crowley, Presiding; Final Status Conference - Not Held - Advanced and Vacated

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  • 04/14/2020
  • Docketat 08:30 AM in Department 28, Daniel M. Crowley, Presiding; Jury Trial - Not Held - Advanced and Continued - by Court

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  • 04/14/2020
  • Docketat 2:12 PM in Department 28, Daniel M. Crowley, Presiding; Court Order

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  • 04/14/2020
  • DocketMinute Order ( (Court Order)); Filed by Clerk

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  • 04/14/2020
  • DocketCertificate of Mailing for ((Court Order) of 04/14/2020); Filed by Clerk

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  • 04/02/2020
  • Docketat 10:00 AM in Department 28, Daniel M. Crowley, Presiding; Final Status Conference - Not Held - Advanced and Continued - by Court

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  • 03/11/2020
  • Docketat 08:14 AM in Department 28, Daniel M. Crowley, Presiding; Ruling on Submitted Matter

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40 More Docket Entries
  • 01/08/2018
  • DocketNotice; Filed by APRO, LLC (Defendant); CF UNITED, LLC (Defendant)

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  • 01/08/2018
  • DocketMiscellaneous-Other; Filed by APRO, LLC (Defendant); CF UNITED, LLC (Defendant)

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  • 01/08/2018
  • DocketNOTICE OF POSTING JURY FEES

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  • 12/15/2017
  • DocketProof of Service of Summons and Complaint

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  • 12/15/2017
  • DocketProof-Service/Summons; Filed by Jennifer Liberato (Plaintiff); NICHOLAS LIBERATO (Plaintiff)

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  • 12/15/2017
  • DocketProof of Service of Summons and Complaint

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  • 12/15/2017
  • DocketProof-Service/Summons; Filed by Jennifer Liberato (Plaintiff); NICHOLAS LIBERATO (Plaintiff)

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  • 10/06/2017
  • DocketSUMMONS

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  • 10/06/2017
  • DocketComplaint; Filed by Jennifer Liberato (Plaintiff); NICHOLAS LIBERATO (Plaintiff)

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  • 10/06/2017
  • DocketCOMPLAINT FOR DAMA(ES FOK PERSONAL INJURY 1. NEGLIGENCE - PREMISES LIABILITY ;ETC

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Tentative Rulings

Case Number: BC678713    Hearing Date: March 10, 2020    Dept: 28

Motion to be Require an Undertaking from Plaintiff Jennifer Liberato

Having considered the moving papers, opposing papers, and reply, the Court rules as follows.

BACKGROUND

On October 6, 2017, Plaintiffs Jennifer Liberato and Nicholas Liberato filed a complaint against Defendants Apro, LLC dba United Oil, CF United, LLC and Does 1 through 100 asserting two causes of action for: (1) negligence – premises liability by and (2) loss of consortium. On November 20, 2018, Plaintiffs dismissed the second cause of action.

Plaintiff Jennifer Liberato (“Plaintiff”) alleges that on October 8, 2015 she slipped and fell on a puddle on the ground near a gasoline fuel pump on the premises owned by Defendants Apro, LLC dba United Oil and CF United, LLC (collectively “Defendants”).

On February 5, 2020, Defendants filed this motion seeking to require Plaintiff to post an undertaking of $52,525 to support an award of costs.

On February 26, 2020, Plaintiff opposed. Plaintiff argues that: (1) Defendants are not reasonably likely to prevail in the underlying action; (2) Defendants have failed to meet the burden to demonstrate the amount and nature of Defendants’ costs and fees; and (3) a bond in excess of $50,000 is unreasonable.

On March 2, 2020, Defendants filed a reply.

Trial is set for June 6, 2020.

PARTY’S REQUEST

Defendants request the Court to order Plaintiff to post an undertaking of $52,525.

EVIDENTIARY OBJECTIONS

Defendants object to portions of the Declaration of Amelia A. Steelhead (Plaintiff’s attorney) and evidence annexed to that declaration, including the declaration of Mark Burns (a proffered safety expert)

The Court is inclined to not rule on these objections because the portions objected to did not factor into the Court’s ruling. Nevertheless, for possibly appellate purposes, the Court rules as follows: (1) sustained as irrelevant; (3)1 overruled; (4) sustained as to foundation and the Court further notes that the deposition testimony was there was a daily inspection once at “minimum” and not only once; and (5) sustained as to presence of oil and overruled as to balance because it goes to weight of opinion not admissibility.

LEGAL STANDARD

Where a plaintiff in an action resides out of the state, the defendant may, at any time, apply to the court for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney’s fees which may be awarded in the action. (Code Civ. Proc., § 1030, subd. (a).) The motion shall be made on grounds that the plaintiff resides out of the state and there is a reasonable possibility that the moving defendant will obtain judgment in their favor. (Id., subd. (b).) The motion shall be accompanied by an affidavit in support of the grounds for the motion and setting forth the nature and amount of costs and attorney’s fees the defendant has incurred and expects to incur. (Id., subd. (b).) “The purpose of [Code of Civil Procedure section 1030] is to enable a California resident sued by an out-of-state resident to secure costs in light of the difficulty of enforcing a judgment for costs against a person who is not within the court’s jurisdiction.” (Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 428.)

The moving party is not required to show there is no possibility that an out-of-state plaintiff could win at trial. Rather, the moving party is required to show only that it was reasonably possible that they would win. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432.) 

If the motion is granted, the plaintiff shall file the undertaking no later than 30 days after service of the court’s order requiring it, and if plaintiff fails to file the undertaking within the time allowed, the plaintiff’s action shall be dismissed as to the moving defendant. (Code Civ. Proc., § 1030, subd. (d).)

DISCUSSION

Whether Plaintiff resides in California

Defendants argue that the Plaintiff does not reside in California. Plaintiff concedes this issue, claiming she resides in Pennsylvania. 

Therefore, the Court concludes Plaintiff is an out-of-state resident for purposes of Code of Civil Procedure section 1030.

Whether Defendants have shown they have a reasonable possibility of prevailing

Defendants argue that they have a reasonable possibility of prevailing. 

Plaintiff pleads a sole claim for premises liability.

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.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) The existence and scope of duty are legal questions for the court. (Id. at p. 36.)

“Because a landowner is not the insurer of a visitor’s safety [citation], the owner’s actual or constructive knowledge of the dangerous condition is key to establishing liability.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206 (Ortega).) 

In order to impose liability for injuries suffered due to a defective condition of the premises, “the owner or occupier ‘must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises.’” (Ibid.) A landowner “has an affirmative duty to exercise ordinary care to keep the premises in a reasonably safe condition, and therefore must inspect them or take other proper means to ascertain their condition. And if, by the exercise of reasonable care, he would have discovered the dangerous condition, he is liable.” (Swanberg v. O’Mectin (1984) 157 Cal.App.3d 325, 330.)

Defendants argue that Plaintiff cannot produce any actual or constructive knowledge of the gas spill on the date of the evidence. Notably, Plaintiff testified that she did not notice the gasoline on the ground until after the incident and the district manager Marvin Gee (“Gee”) testified that a manager and cashier would perform visual inspections.

In opposition, Plaintiff argues that Defendants had actual or constructive knowledge of the gasoline on the ground. Specifically, Plaintiff argues that according to Gee’s testimony, there were generally four visual inspections a day, but there was no set time for these inspections and only cashiers were present on Sundays (the same day of the incident). This could lead to multiple hours going by without any inspections. Additionally, Plaintiff argues that Gee testified that the gas stations he was responsible for would experience spills “several times a day.” Finally, Plaintiff argues that according to her expert Mark Burns, Defendants breached the standard of care because employees responsible for other tasks performed the inspections and Defendants did not follow a periodic schedule to check for spills at regular intervals.

Here, this case comes down to a contested issue regarding constructive notice. Simply put, is it reasonable for Defendants to have only a cashier, who is responsible for other tasks, to make visual inspections at some point in their work shift at non-regularly scheduled times? Or does this method of visual inspections fail to be an exercise of ordinary care, especially given the likelihood of multiple spills a day and the dangers of a spill? facts. Additionally, the Court notes that a jury is likely to make that determination even without Burns testifying as an expert, so the Court’s consideration of that declaration is unnecessary.

Therefore, the Court denies Defendants’ motion on these grounds.

CONCLUSION

The motion is DENIED.

Defendants are ordered to give notice of this ruling.