Sacramento Personal Injury Lawyer Blog

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this dog bite/personal injury case and its proceedings.)

Moreover, there are significant inconsistencies in the declarations of Diana Topp and Maria Cantor. Please note, Ms. Topp’s first declaration indicates under penalty of perjury that Ms. Cantor was visiting her on 4-13-06 . However, in Ms. Cantor's declaration she indicates that she was visiting Ms. Marta Jones on 4-13-06. Then, Ms. Topp submits a second declaration that indicates that Ms. Cantor was not visiting her on the date in question, but was visiting Marta Jones (see second declaration of Diana Topp) thereby changing her original story completely.

Admissions of material facts made in an opposing party's pleadings are binding on that party as judicial admissions. They are conclusive concessions of the truth of those matters, are effectively removed as issues from the litigation, and may not be contradicted by the party whose pleadings are used against him or her. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2002) 10:147, p. 10-49; Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 222, fn. 3; Brown v. City of Fremont (1977) 75 Cal.App.3d 141, 146.).

The dog was on the premises with the owners consent and/or the dog lived at the property. The dog had been spotted by neighbors at the residence of the defendant for years, as testified in deposition by both of the defendant's neighbors

SIGNIFICANT DISCOVERY HAS STILL TO BE OBTAINED IN THIS CASE

Code of Civil Procedure, Section 437c (h) a Court shall deny a motion for summary judgment if the opposition establishes that there is additional discovery to be had. In this case, defendant's misconduct in the discovery proceedings evidences willful abuse in this instance. (See responses to RFA'S.)

Continue reading "Jury To Determine Damages Caused By Sacramento Dog Attack, Part 4 of 4" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this dog bite/personal injury case and its proceedings.)

THE MOTION FOR SUMMARY JUDGMENT SHOULD BE DENIED BECAUSE THERE ARE ISSUES OF MATERIAL FACT IN THIS CASE

Summary judgment is proper only where there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 473c, subd. (c). A defendant moving for summary judgment based on an affirmative defense has the overall burden of showing there is a complete defense to the plaintiff's action. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 849. In this regard, the defendant must first produce evidence to support a prima facie showing of the nonexistence of any triable issue of material fact as to the defense. (Id. at p. 850.)

Under strict liability theory, a person is liable for any injuries caused by the subject. Here the testimony of the defendant and Ms. Cantor is the complete polar opposite of the testimony of the defendant's neighbors (Rose & Brown) and clearly raises a triable issue of fact as to ownership of the dog, residence of the dog, and whose is responsible for the plaintiffs injuries. Only a jury can decide these ultimate questions of fact.

In addition to the declaration and deposition testimony of both of the neighbors, the law states that once the owner has knowledge of the dog on her premises, she is liable for any and all injuries that are caused by the attacking dog.

Continue reading "Dog Owners In Sacramento Strictly Liable For Injuries Caused By Their Dog, Part 3 of 4" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this dog bite/personal injury case and its proceedings.)

THE DEFENDANT OWED A DUTY TO PLAINTIFF BECAUSE THE DOG IN QUESTION LIVED AT THE DEFENDANT'S RESIDENCE

The law in this area is governed by Civil Code Section 3242, which imposes strict liability against dog owners whose dog causes injury to another.

Although the defendant and most recently, Ms. Cantor, are attempting to claim that the dog had never been to the residence at Maddox before (See deposition of Diana Topp, and the declaration of Maria Cantor), the defendant’s neighbor, Jack Rose, testified in deposition and declaration that the large brown Pit Bull with spots who attacked and injured plaintiff had been living at defendant Diana Topp's residence for a significant amount of time before the incident occurred. In deposition, the words he used indicated the dog had been living at defendant's residence and that he had personally seen the dog “on a daily basis, for a period of years." Further, he is certain that the dog lived at defendant’s residence because he would see the dog on a daily basis because the defendant and Mr. Rose share a common chain-link fence in their backyard. (See Declaration of Jack Rose.) Therefore, a question of fact is raised when the defendant declares that the dog had never once been to her residence when the next door neighbor indicates that the dog had been living there for years.

Second, another neighbor, Mr. Tory Brown, who also lives next to the defendant, said that he has he heard the bark of a large dog on a weekly basis coming from the defendant's residence over the course of years while he was walking his own dog (See Brown deposition.) Further, on one occasion (approximately three weeks before the incident involving plaintiff) the subject dog aggressively charged Mr. Brown, who had to chase the dog away with a stick. In deposition, Mr. Brown testified that the dog returned to the residence of Ms. Topp after it charged him. (See Brown deposition.)

Continue reading "Sacramento Dog Owner Responsible For Her Dog's Attack, Part 2 of 4" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this dog bite/personal injury case and its proceedings.)

Plaintiff, Sandy White, by and through her attorney of record hereby submits this opposition to Motion for Summary Judgment of Defendant. This opposition will be based upon this motion, the attached declarations, the court file, and evidence and oral argument to be presented at the hearing.

MEMORANDUM OF POINTS AND AUTHORITIES

FACTS OF THE CASE

On or about April 13, 2006, plaintiff, Sandy White was walking past the defendant's residence, located on Maddox Avenue in Sacramento, CA, when a vicious Pit Bull charged from the defendant's residence and attacked and maimed Ms. White. The plaintiff sustained significant and permanent injuries both physically and emotionally.

The defendant's are claiming that the dog who caused the injury to plaintiff wasn't their dog and had never been to defendant’s property before the date of the incident and therefore, they are not responsible for the injuries sustained by the plaintiff. Further, the defendants have submitted the declaration of Maria Cantor in support of their motion for summary judgment. Ms. Cantor (the alleged owner of the dog) has suddenly reappeared solely in support of defendant's motion for summary judgment. Ms. Cantor’s whereabouts were perpetually unknown to defendant even in the deposition of Diana Topp, she testified she had no idea of the whereabouts of Ms. Cantor. Then miraculously Cantor reappears and submits a vague declaration in support of defendant’s MSJ.

Notwithstanding, there remains a triable issue of fact regarding ownership of the dog because two of the defendant's neighbor's (including a neighbor who shares an adjoining chain link fence with the defendant) have come forward in declaration and deposition and unequivocally testified that the dog in question was seen at, and lived at, the defendant’s residence (See depositions of Jack Rose and Tory Brown.

Continue reading "Sacramento Woman Attacked By Pit Bull, Part 1 of 4" »