17-CIV-00458 ELVINA PEREIRA vs. AZEVEDO FEED, INC., et al.

ELVINA PEREIRA Karen M. Platt

AZEVEDO FEED, INC. JULIAN PARDINI

THOMAS AZEVEDO, TRUSTEE JEFFREY VUCINICH

THOMAS AZEVEDO’S MOTION FOR SUMMARY JUDGMENT

TENTATIVE RULING:

Defendant Thomas J. Azevedo, Trustee of the Wilbur and Cecilia Azevedo Trust’s (“Trustee”) Motion for Summary Judgment, or alternatively, Motion for Summary Adjudication, is DENIED.

The Complaint asserts claims against the Trustee for general negligence and premises liability. Trustee Thomas J. Azevedo argues that in his capacity as Trustee, he was merely a “passive” owner of both the property (the premises) and the Company, Defendant Azevedo Feed, Inc., which operated a business on the site. The evidence here precludes summary judgment and summary adjudication of Plaintiff’s claims against the Trustee.

First, the Court notes that despite statements to the contrary in the briefing both supporting and opposing this motion, the Trust itself is not the moving party on this motion, and in fact is not a party to the case. In general, a Trust is not a separate entity in and of itself, cannot hold legal title to real property, and cannot sue or be sued. Portico Management Group, LLC v. Harrison (2011) 202 Cal.App.4th 464. Thus, the repeated statements in the briefing that “the Trust” owns the property and is the moving party on this motion mischaracterize both the pleadings in this case and the law. The evidence here indicates that Thomas J. Azevedo holds legal title to the property in his capacity as Trustee of the Trust.

In general, property owners owe a duty of care to invitees to protect them against known dangers/risks of harm on the premises. See CACI 1000. Here, there is no evidence of any Lease, or any indication that the property owner (the Trustee) gave up or surrendered control over the property. The deposition testimony indicates that the Trustee (the property owner), Mr. Azevedo, was also an employee of Azevedo Feed, Inc., and was physically present on the property every day. By all indications, he appears to have been very involved in and knowledgeable regarding the operation of the business, including the situation with Holly and her newborn calves. Mr. Azevedo, the Trustee, testified that in his opinion, customers/invitees should never have been permitted to enter the cow’s corral, because a cow nursing calves can be protective of her calves, and therefore could present a danger to persons in the corral. (Thomas J. Azevedo Tr. 52). Other deposition testimony indicates that employees were never told not to invite or permit customers into the cow’s corral, that the corral had no lock, and that there were no signs/warnings telling customers not to enter the corral. (Id. at 54-56). And although this fact is disputed, Plaintiff testified that a company employee expressly invited her into the corral to see Holly’s calves up close, which allegedly led to Plaintiff being attacked and injured. (Pereira Tr. 56).

Construing, as the Court must, the evidence in a light favorable to Plaintiff, and drawing all reasonable inferences in her favor, the claims against the Trustee cannot be resolved on summary judgment/adjudication. The Trustee’s argument pertaining to CACI 462 (Strict Liability for Injury Caused by Domestic Animal with Dangerous Propensities) does not change the result. The Trustee argues it had no actual or constructive notice that the cow presented a danger to anyone. The Trustee’s own testimony, however, undercuts that argument, given his explanation of why customers, in his opinion, should not be permitted near a nursing cow and her calves. And as Plaintiff notes, even normally docile animals can present a danger to persons on the property depending on the circumstances. The fact that the injury here involved an animal does not preclude application of general principles of negligence and premises liability.

The Trustee’s Objections to Plaintiff’s Evidence are OVERRULED in their entirety.