RAYMOND VINCENT DIGIACOMO JR VS. RECOLOGY, INC. ET AL

HearingMatter(s): CASE MANAGEMENT CONFERENCE; Location: CIVIC CENTER COURTHOUSE ROOM 610; Judge Name: ANNE-CHRISTINE MASSULLO

DocketORDER OVERRULING DEFENDANT'S DEMURRER AND ORDER GRANTING MOTION TO STRIKE PORTIONS OF COMPLAINT AND ORDER STAYING THE ACTION.

DocketMINI MINUTES FOR MAR-28-2023 09:30 AM FOR DEPT 302

DocketMINI MINUTES FOR MAR-28-2023 09:30 AM FOR DEPT 302

HearingMatter(s): DEMURRER to COMPLAINT Off Calendar Mar-28-2023 Overruled MINI MINUTES: APPEARANCES (VIA ZOOM VIDEOCONFERENCE): Atty. RICHARD D. MCKIE, Esq. of Manning & Kass, Ellrod, Ramirez, Trester LLP (Tel: 415-217-6990) for defendants Recology, Inc., Golden Gate Disposal and Recycling Company, Recology San Francisco, Inc., and Marcus J. Mirt; No other appearances made in this matter. HEARING RE: DEFENDANTS RECOLOGY, INC., GOLDEN GATE DISPOSAL AND RECYCLING COMPANY, RECOLOGY SAN FRANCISCO, INC., AND MARCUS MIRT'S DEMURRER TO COMPLAINT. Matter not contested\/argued. The Court adopts its tentative ruling. Defendants' demurrer based on CCP 430.10(c) is overruled. The complaints fail to show that the "same cause of action" is pleaded in CGC-19-581651 and this action. A plea in abatement is disfavored. (See Lord v. Garland (1946) 27 Cal.2d 840, 848.) "Where, for all that appears in the complaint, the prior suit does not involve the entire cause of action presented by the complaint in the later litigation, the plea of abatement should be raised by answer rather than by demurrerAs a test for determining whether the causes of action are the same or different, it is the universal rule that a plea in abatement may be maintained only where the claim sued upon in the second action is such that a final judgment in the first one could be pleaded in bar as a former adjudication." (Id.; see also Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 787-788 [same].) Here, a ruling in defendants' favor in CGC-19-581651 would not have a preclusive effect on the claims in plaintiff's later actions. "A person harmed by a continuing nuisance 'may bring successive actions for damages until the nuisance is abated.'" (Lyles v. State of California (2007) 153 Cal.App.4th 281, 291.) Defendant Mirt's demurrer to the complaint is overruled. (See CCP 430.10(e).) Plaintiff alleges that defendant "Recology's" trash collection activities are causing a nuisance and Mirt, an employee of Recology, is responsible for the trash collection efforts. (Complaint, pars. 6-7.) It is unclear why plaintiff named Mirt since plaintiff alleges that Recology is causing the nuisance, Mirt's alleged liability arose as a consequence of the discharge of his duties, and Recology is obligated to indemnify Mirt for the alleged tort per Labor Code sec. 2802. In any event, plaintiff states a claim against Mirt. The complaint alleges that Mirt was the individual responsible for causing the nuisance. (Complaint, pars. 6-7.) An agent can be responsible for his\/her wrongful torts. (See Civil Code sec. 2343; Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 692 ["an agent is liable for his or her own torts, whether the principal is liable or not, and in spite of the fact that the agent acted in accordance with the principal's directions."].) Single order signed as to demurrer and motion to strike. Judge: Richard B. Ulmer Jr.; Clerk: Sean Kane; Not Reported. (302\/RBU); Location: CIVIC CENTER COURTHOUSE ROOM 302; Judge Name: RICHARD B. ULMER

HearingMatter(s): Notice Of Motion And Motion To Strike Portions Of Complaint Off Calendar Mar-28-2023 Granted Per Written Order MINI MINUTES: APPEARANCES (VIA ZOOM VIDEOCONFERENCE): Atty. RICHARD D. MCKIE, Esq. of Manning & Kass, Ellrod, Ramirez, Trester LLP (Tel: 415-217-6990) for defendants Recology, Inc., Golden Gate Disposal and Recycling Company, Recology San Francisco, Inc., and Marcus J. Mirt; No other appearances made in this matter. HEARING RE: DEFENDANTS RECOLOGY, INC., GOLDEN GATE DISPOSAL AND RECYCLING COMPANY, RECOLOGY SAN FRANCISCO, INC., AND MARCUS MIRT's Motion To Strike Portions Of Complaint. Matter not contested\/argued. The Court adopts its tentative ruling. Defendant's motion to strike is granted without leave to amend. Plaintiff's complaint describes at most, careless conduct in the collecting of trash. Such allegations are insufficient to impose punitive damages. (See Pacific Gas and Electric Company v. Superior Court (2018) 24 Cal.App.5th 1150, 1170 (Butte Fire Cases) ["Punitive damages are appropriate if the defendant's acts are reprehensible, fraudulent or in blatant violation of law or policy. The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages. ... Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff's rights, a level which decent citizens should not have to tolerate." (internal quotations omitted)].) Plaintiff's prayer for attorney's fees is improper since he is proceeding in pro per. (See Ellis Law Group, LLP v. Nevada City Sugar Loaf Properties, LLC (2014) 230 Cal.App.4th 244, 253 [self-represented attorney was not entitled to award of attorney's fees].) Lastly, pursuant to CCP 128(a)(8), the court sua sponte stays this action. The court believes that resolution of consolidated action CGC-19-581651 before this case is litigated may conserve party and judicial resources. Single order signed as to demurrer and motion to strike. Judge: Richard B. Ulmer Jr.; Clerk: Sean Kane; Not Reported. (302\/RBU); Location: CIVIC CENTER COURTHOUSE ROOM 302; Judge Name: RICHARD B. ULMER

DocketLAW & MOTION, DEPT. 302, AS TO THE MAR-28-2023 HEARING RE: DEFENDANTS RECOLOGY, INC., GOLDEN GATE DISPOSAL AND RECYCLING COMPANY, RECOLOGY SAN FRANCISCO, INC., AND MARCUS MIRT'S MOTION TO STRIKE PORTIONS OF COMPLAINT, THE COURT ADOPTS ITS TENTATIVE RULING. DEFENDANT'S MOTION TO STRIKE IS GRANTED WITHOUT LEAVE TO AMEND. PURSUANT TO CCP 128(A)(8), THE COURT SUA SPONTE STAYS THIS ACTION. (SEE MINI-MINUTES FOR DETAILS.) SINGLE ORDER SIGNED AS TO DEMURRER AND MOTION TO STRIKE. JUDGE: RICHARD B. ULMER JR.; CLERK: SEAN KANE; NOT REPORTED. (302/RBU)

DocketLAW & MOTION, DEPT. 302, AS TO THE MAR-28-2023 HEARING RE: DEFENDANTS RECOLOGY, INC., GOLDEN GATE DISPOSAL AND RECYCLING COMPANY, RECOLOGY SAN FRANCISCO, INC., AND MARCUS MIRT'S DEMURRER TO COMPLAINT, THE COURT ADOPTS ITS TENTATIVE RULING. DEFENDANTS' DEMURRER BASED ON CCP 430.10(C) IS OVERRULED. (SEE MINI-MINUTES FOR DETAILS.) SINGLE ORDER SIGNED AS TO DEMURRER AND MOTION TO STRIKE. JUDGE: RICHARD B. ULMER JR.; CLERK: SEAN KANE; NOT REPORTED. (302/RBU)

HearingMatter(s): CASE MANAGEMENT CONFERENCE Off Calendar Feb-27-2023 Continued To May-03-23 At 10:30 A.M. In Dept 610; Location: CIVIC CENTER COURTHOUSE ROOM 610; Judge Name: ANNE-CHRISTINE MASSULLO

DocketLAW AND MOTION 302, DEFENDANT RECOLOGY, INC., GOLDEN GATE DISPOSAL AND RECYCLING COMPANY, RECOLOGY SAN FRANCISCO, INC., MARCUS MIRT'S MOTION TO STRIKE PORTIONS OF COMPLAINT IS CONTINUED TO MARCH 28, 2023 AT 9:30AM IN DEPARTMENT 302 TO BE HEARD WITH THE MOTION TO CONSOLIDATE. JUDGE: CURTIS E.A. KARNOW; CLERK: GINA GONZALES; PROCEEDINGS NOT REPORTED. (302/CK)

DocketNOTICE TO COURT OF IMPROVED FINANCIAL SITUATION STARTING DEC-02-2022 (CONFIDENTIAL) FILED BY PLAINTIFF DIGIACOMO JR, RAYMOND VINCENT

FinancialPayment: REQ OR STIP AND ORDER W/O HEARING; Payment Type: IFP; Receipt Number: H2422C19C006

DocketFEE PD ON EX PARTE APPLICATION FOR EXTENSION OF TIME TO SERVE PLEADING AND ORDER EXTENDING TIME TO SERVE FILED BY PLAINTIFF DIGIACOMO JR, RAYMOND VINCENT; Fee: IFP

DocketSUMMONS ISSUED TO PLAINTIFF DIGIACOMO JR, RAYMOND VINCENT

DocketORDER GRANTING WAIVER OF COURT FEES AND COSTS PURSUANT TO G.C. 68634 (E), CRC 3.52 AS TO PLAINTIFF DIGIACOMO JR, RAYMOND VINCENT NOTICE TO COURT OF IMPROVED FINANCIAL SITUATION WAS FILED ON DEC-02-2022

FinancialPayment: CIVIL COMPLAINT/PETITION/OTHER FIRST PAPER; Payment Type: IFP; Receipt Number: R4122A28F010

DocketNOTICE TO PLAINTIFF

DocketREQUEST PENDING TO WAIVE COURT FEES AND COSTS PURSUANT TO G.C. 68633, CRC 3.51, 8.26, AND 8.818 (SEALED DOCUMENT) FILED BY PLAINTIFF DIGIACOMO JR, RAYMOND VINCENT

DocketCIVIL CASE COVERSHEET FILED (TRANSACTION ID # 68271587) FILED BY PLAINTIFF DIGIACOMO JR, RAYMOND VINCENT

DocketPERSONAL INJURY/PROPERTY DAMAGE - NON-VEHICLE RELATED, COMPLAINT (TRANSACTION ID # 68271587) FILED BY PLAINTIFF DIGIACOMO JR, RAYMOND VINCENT AS TO DEFENDANT RECOLOGY, INC. GOLDEN GATE DISPOSAL AND RECYCLING COMPANY RECOLOGY SAN FRANCISCO, INC. MIRT, MARCUS J. DOES 1 THROUGH 100, INCLUSIVE NO SUMMONS ISSUED, JUDICIAL COUNCIL CIVIL CASE COVER SHEET NOT FILED CASE MANAGEMENT CONFERENCE SCHEDULED FOR MAR-22-2023 PROOF OF SERVICE DUE ON DEC-19-2022 CASE MANAGEMENT STATEMENT DUE ON FEB-27-2023; Fee: IFP