This case was last updated from Los Angeles County Superior Courts on 10/05/2020 at 04:33:00 (UTC).

SEAN LUMPKIN VS JAMES BARROS

Case Summary

On 06/08/2018 SEAN LUMPKIN filed a Personal Injury - Other Personal Injury lawsuit against JAMES BARROS. 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 and DANIEL M. CROWLEY. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9310

  • Filing Date:

    06/08/2018

  • Case Status:

    Pending - Other Pending

  • 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

DANIEL M. CROWLEY

 

Party Details

Plaintiff and Petitioner

LUMPKIN SEAN

Defendants and Respondents

BARROS JAMES

DOES 1 TO 10

THE ESTATE OF ERNESTINE BARROS DOE 2

VICKAID ARMS HOMEOWNERS' ASSOCIATION DOE 1 FKA

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

ELLIS LAW CORPORATION

HABASHY JOHN REFAAT

Defendant Attorney

BYSZEWSKI BRAD

 

Court Documents

Notice of Ruling

7/8/2020: Notice of Ruling

Notice of Continuance - NOTICE OF CONTINUANCE OF MOTION FOR SUMMARY JUDGMENT, FINAL STATUS CONFERENCE AND TRIAL DATES

6/25/2020: Notice of Continuance - NOTICE OF CONTINUANCE OF MOTION FOR SUMMARY JUDGMENT, FINAL STATUS CONFERENCE AND TRIAL DATES

Request for Entry of Default / Judgment

4/28/2020: Request for Entry of Default / Judgment

Notice - NOTICE OF CONTINUANCE OF HEARING ON MOTION TO COMPEL

4/30/2020: Notice - NOTICE OF CONTINUANCE OF HEARING ON MOTION TO COMPEL

Statement of Damages (Personal Injury or Wrongful Death)

4/8/2020: Statement of Damages (Personal Injury or Wrongful Death)

Separate Statement

4/10/2020: Separate Statement

Memorandum of Points & Authorities

4/10/2020: Memorandum of Points & Authorities

Ex Parte Application - EX PARTE APPLICATION TO CONTINUE THE TRIAL DATE, OR IN THE ALTERNATIVE, SHORTEN TIME TO HEAR DEFENDANT'S MOTION TO CONTINUE TRIAL DATE

1/20/2020: Ex Parte Application - EX PARTE APPLICATION TO CONTINUE THE TRIAL DATE, OR IN THE ALTERNATIVE, SHORTEN TIME TO HEAR DEFENDANT'S MOTION TO CONTINUE TRIAL DATE

Amendment to Complaint (Fictitious/Incorrect Name)

9/26/2019: Amendment to Complaint (Fictitious/Incorrect Name)

NOTICE OF LIEN AND DEMAND FOR FUTURE NOTICE OF JUDGMENT SETTLEMENT

9/4/2018: NOTICE OF LIEN AND DEMAND FOR FUTURE NOTICE OF JUDGMENT SETTLEMENT

Amendment to Complaint (Fictitious/Incorrect Name)

11/29/2018: Amendment to Complaint (Fictitious/Incorrect Name)

Substitution of Attorney

11/29/2018: Substitution of Attorney

Proof of Service by Mail

12/18/2018: Proof of Service by Mail

Proof of Service by Substituted Service

12/18/2018: Proof of Service by Substituted Service

ANSWER - PERSONAL INJURY, PROPERTY DAMAGE, WRONGFUL DEATH

8/6/2018: ANSWER - PERSONAL INJURY, PROPERTY DAMAGE, WRONGFUL DEATH

COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES) -

6/8/2018: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES) -

STATEMENT OF DAMAGES

6/8/2018: STATEMENT OF DAMAGES

SUMMONS -

6/8/2018: SUMMONS -

39 More Documents Available

 

Docket Entries

  • 06/08/2021
  • Hearing06/08/2021 at 08:30 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Dismissal

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  • 02/22/2021
  • Hearing02/22/2021 at 08:30 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial

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  • 02/08/2021
  • Hearing02/08/2021 at 10:00 AM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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  • 11/24/2020
  • Hearing11/24/2020 at 13:30 PM in Department 28 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 08/11/2020
  • Docketat 08:30 AM in Department 28, Daniel M. Crowley, Presiding; Jury Trial - Not Held - Continued - Stipulation

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  • 07/28/2020
  • Docketat 10:00 AM in Department 28, Daniel M. Crowley, Presiding; Final Status Conference - Not Held - Continued - Stipulation

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  • 07/08/2020
  • DocketNotice of Ruling; Filed by Sean Lumpkin (Plaintiff)

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  • 06/26/2020
  • Docketat 1:30 PM in Department 28, Daniel M. Crowley, Presiding; Hearing on Motion to Compel Discovery (not "Further Discovery") - Held - Motion Granted

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  • 06/26/2020
  • Docketat 1:30 PM in Department 28, Daniel M. Crowley, Presiding; Hearing on Motion for Summary Judgment - Not Held - Continued - Stipulation

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  • 06/26/2020
  • Docketat 1:30 PM in Department 4A; Hearing on Motion for Summary Judgment - Not Held - Rescheduled by Court

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66 More Docket Entries
  • 09/04/2018
  • DocketNOTICE OF LIEN AND DEMAND FOR FUTURE NOTICE OF JUDGMENT SETTLEMENT

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  • 08/31/2018
  • DocketNOTICE OF LIEN AND DEMAND FOR FUTURE NOTICE OF JUDGMENT; SETTLEMENT

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  • 08/31/2018
  • DocketNotice of Lien; Filed by Sean Lumpkin (Plaintiff)

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  • 08/06/2018
  • DocketAnswer; Filed by James Barros (Defendant)

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  • 08/06/2018
  • DocketANSWER - PERSONAL INJURY, PROPERTY DAMAGE, WRONGFUL DEATH

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  • 07/09/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 06/08/2018
  • DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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  • 06/08/2018
  • DocketSUMMONS

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  • 06/08/2018
  • DocketSTATEMENT OF DAMAGES

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  • 06/08/2018
  • DocketComplaint; Filed by Sean Lumpkin (Plaintiff)

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Tentative Rulings

Case Number: BC709310    Hearing Date: July 06, 2020    Dept: 28

Motion to Compel Responses to Request for Production (Set Two); Motion for Summary Judgement

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On June 8, 2018, Plaintiff Sean Lumpkin (“Plaintiff”) filed a complaint against Defendant James Barros.  The complaint alleges premises liability, negligence, and strict liability for a dog bite that occurred on July 10, 2017.

On November 29, 2018, Plaintiff amended his complaint to rename Doe 1 as Defendant Vickaid Arms Homeowners’ Association and Doe 2 as Defendant The Estate of Ernestine Barros.

On September 26, 2019, Plaintiff amended his complaint to rename Doe 1 as Defendant James Barros, Sr.

On March 2, 2020, Plaintiff filed a motion to compel Defendant James Barros’ responses to Request for Production (Set Two) pursuant to California Code of Civil Procedure section 2031.300, subdivision (b).

On April 10, 2020, Defendant Vickaid Arms Homeowners’ Association filed a motion for summary judgment pursuant to California Code of Civil Procedure section 437c.

Trial is set for August 11, 2020.

PARTYS REQUEST

Plaintiff asks the Court to compel Defendant James Barros’ responses to Request for Production (Set Two) because he failed to serve timely verified responses.

Plaintiff also asks the Court to impose $2,510 against Defendant James Barros’ for his abuse of the discovery process.

Defendant Vickaid Arms Homeowners’ Association (“Defendant HOA”) asks the Court to grant summary judgment in its favor and against Plaintiff because it did not have actual knowledge of the subject dog’s dangerous propensities.

LEGAL STANDARD

Motion to Compel Responses to Request for Production (Set Two)

Where there has been no timely response to a demand for the production of documents, the demanding party may seek an order compelling a response.  (Code Civ. Proc., § 2031.300, subd. (b).)  Failure to timely respond waives all objections, including privilege and work product.  (Code Civ. Proc., § 2031.300, subd. (a).)  Thus, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded.  There is no deadline for a motion to compel responses.  Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion.

Under California Code of Civil Procedure section 2023.030, subd. (a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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.”  Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process.  (Code of Civ. Proc., § 2023.010.)

Sanctions are mandatory in connection with a motion to compel responses to a request for production of documents against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “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., § 2031.300, subd. (c).)

California Rules of Court, rule 3.1348, subdivision (a) states: “[t]he court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

Motion for Summary Judgment

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Ibid.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

The Court initially notes that papers opposing the motion to compel had be filed and personally served on June 15, 2020, at the latest, to conform with the mandates of California Code of Civil Procedure section 1005.  No opposing papers were timely filed and served.  The Court exercises its discretion in refusing to consider any late opposition pursuant to California Rules of Court, rule 3.1300, subdivision (d).

Additionally, papers opposing the motion for summary judgment had to be filed and personally served on June 12, 2020, at the latest, to conform with the mandates of California Code of Civil Procedure section 437c, subdivision (b)(2).  No opposing papers were timely filed and served.  The Court exercises its discretion in refusing to consider any late opposition pursuant to California Rules of Court, rule 3.1300, subdivision (d).

Motion to Compel Responses to Request for Production (Set Two)

On September 10, 2019, Plaintiff served Request for Production (Set Two) on Defendant James Barros by U.S. mail.  (Buda Decl., ¶¶ 6, 8, Exh. 1.)  Plaintiff granted four extensions for Defendant James Barros to serve his responses, providing an ultimate deadline of January 15, 2020.  (Buda Decl., ¶¶ 9-13, Exh. 2-5.)  Plaintiff has not received the outstanding responses as of the time Tiffany Buda signed her declaration on February 20, 2020.  (Buda Decl., ¶ 14.)

The Court finds the motion to compel Defendant James Barros’ responses to Plaintiff’s Request for Production (Set Two) is properly granted.  Defendant James Barros was properly served with the discovery and he failed to provide timely responses.  There is no evidence showing he acted with a substantial justification or that circumstances exist such that an imposition of sanctions would be unjust.  Accordingly, the motion is granted.

The Court finds Plaintiff’s request for $2,510 in monetary sanctions for this straight-forward and unopposed motion to be unreasonable.  Rather, the Court finds $350 to be a reasonable amount of sanctions to be imposed against Defendant James Barros for his abuse of the discovery process.

Motion for Summary Judgment

“Under California law, a landlord who does not have actual knowledge of a tenant’s dog’s vicious nature cannot be held liable when the dog attacks a third person. In other words, where a third person is bitten or attacked by a tenant’s dog, the landlord’s duty of reasonable care to the injured third person depends on whether the dog’s vicious behavior was reasonably foreseeable. Without knowledge of a dog’s propensities a landlord will not be able to foresee the animal poses a danger and thus will not have a duty to take measures to prevent the attack.” Donchin v. Guerrero (1995) 34 Cal.App.4th 1832, 1838; see also Martinez v. Bank of America National Trust & Savings Assoc. (2000) 82 Cal.App.4th 883, 891 (finding proof that defendant bank did not have actual knowledge that the dogs were dangerous and had vicious propensities is a proper basis for granting summary judgment); Lundy v. California Realty (1985) 170 Cal.App.3d 813, 821 (“It should be emphasized [, however,] that a duty of care may not be imposed on a landlord without proof that he knew of the dog and its dangerous propensities. Because the harboring of pets is such an important part of our way of life and because the exclusive possession of rented premises normally is vested in the tenant, we believe that actual knowledge and not mere constructive knowledge is required.”))

“[T]his inquiry into the landlord’s duty involves a two-step approach. The first step is to determine the landlord’s knowledge of the dog’s vicious nature. . . . [T]he court established a landlord can only be liable if he or she had actual knowledge of the dog’s vicious propensity. . . . However, it can be satisfied by circumstantial evidence the landlord must have known about the dog’s dangerousness as well as direct evidence he actually knew. . . . The second step involves a landlord’s ability to prevent the foreseeable harm. Donchin, supra, 34 Cal.App.4th at p. 1838 (citations omitted) (emphasis in original).

Civil Code section 3342, subdivision (a) confers liability for a dog bite only on the owner of the attacking dog.

Defendant HOA’s undisputed material facts establish the following. Plaintiff alleges Defendant James Barros’ dog bit Plaintiff on July 10, 2017 at property Defendant HOA manages.  (UMF Nos. 1-4.)  The County of Los Angeles Department of Animal Care and Control completed an investigation and issued a report regarding the dog bite.  (UMF Nos. 6-8.)  The County of Los Angeles Department of Animal Care and Control reported the subject dog as having no history of similar incidents.  (UMF No. 9.)

Defendant HOA’s undisputed material facts also establish the following.  There were no similar incidents or complaints of any kind made to Defendant HOA’s property management company, LBPM, regarding the subject dog.  (UMF No. 11.)  Defendant HOA’s president, who has resided at the property since 2010 and has been the president since 2015, has not observed nor been notified of any similar incidents or complaints of the subject dog.  (UMF No. 12.)  LBPM’s Community Property Manager assigned to the subject property, who has held this position since 2015, has not observed nor been notified or similar incidents or complaints of the subject dog.  (UMF No. 13.)

The Court finds Defendant HOA has met its burden of proof.  The submitted evidence shows that Defendant HOA did not have actual knowledge of the dangerous propensities of the dog that bit PlaintiffThis is because its president and the Community Property Manager had not been put on notice of such propensities for the duration of their positions and residence held in relation to the property.  The report generated by The County of Los Angeles Department of Animal Care and Control further substantiates the absence of evidence showing Defendant HOA had the requisite knowledge of the dogs dangerous propensities.  This is because there is no evidence showing such propensities existed for Defendant HOA to know of them.  All evidence shows the dog exhibited dangerous propensities for the first time when it bit Plaintiff on July 10, 2017.  Accordingly, summary judgment is properly granted in favor of Defendant HOA and against Plaintiff.

CONCLUSION

Motion to Compel Responses to Request for Production (Set Two)

Plaintiff’s motion to compel Defendant James Barros’ responses to Request for Production (Set Two) is GRANTED.

Defendant James Barros is ordered to serve verified responses without objections to Plaintiff’s Request for Production (Set Two) within 20 days of this ruling.

Defendant James Barrio is also ordered to pay Plaintiff $350 within 30 days of this ruling.

Plaintiff is ordered to give notice of this ruling.

Motion for Summary Judgment

Defendant HOA’s motion for summary judgment is GRANTED.

Defendant HOA is ordered to give notice of this ruling.

The parties are directed to the header of this tentative ruling for further directions.