Item 10 2017-00218442-CU-OR

Merle Axelrad vs. City of Sacramento

Nature of Proceeding: Motion to Set Aside or Vacate Judgment of Dismissal

Filed By: King, Daniel A.

Plaintiffs’ motion to set aside the judgment of dismissal recently entered in favor of defendant City of Sacramento (“City”) is ruled on as follows.

Factual Background

Plaintiffs allege that in October 2016, contractors hired by City trespassed onto plaintiffs’ property in Sacramento and wrongfully and unnecessarily denuded a number of plaintiffs’ trees without notice or consent. It is further asserted that the cutting of these trees violated recognized, proper pruning practices and policies found in Government Code §53067 and that the contractors involved lacked the licenses/certifications required by Business & Professions Code §6700 et seq. and 7056 et seq., the Sacramento Municipal Code Chapter 3.64 and City’s own regulations for contracting.

The Second Amended Complaint (“2AC”) filed on 6/11/2018 purported to allege causes of action for trespass, negligence, negligence per se and negligent misrepresentation but the only cause of action directed at City was for negligence, based on a claimed failure to use reasonable care in the timing, management and supervision of contracted work to ensure safety, acceptable quality of work and avoidance of property damage. (2AC, ¶76.)

City previously demurred to the negligence cause of action on the grounds that there is no cognizable claim against City for negligence, particularly since one who hires an independent contractor is generally not vicariously liable for the latter’s torts given the former’s lack of control over how the work is performed. Moreover, the 2AC’s allegation about City having a duty to “supervise” the work of the contractors is as a matter of law insufficient to state a valid cause of action against City.

Plaintiffs filed a “limited opposition” which represented that they intended to drop their negligence cause of action against City and instead pursue claims for inverse condemnation and trespass, as set forth in their motion to amend which was filed on 9/27/2018 and set for hearing on 10/29/2018.

City’s demurrer was sustained without leave to amend since plaintiffs intended to drop their negligence cause of action and since City is immune from all common law tort liability, subject to the court’s ruling on plaintiffs’ pending motion to amend. However, the latter motion was denied because it failed to comply with the requirements of CRC Rule 3.1324 albeit without prejudice.

Although plaintiffs eventually filed a new motion to amend complaint on 11/14/2018 with an original hearing date of 12/18/2018, City submitted to the court on 11/29/2018 a proposed judgment of dismissal in light of the fact plaintiffs had not filed an amended complaint within 10 days of the 10/29/2018 ruling which sustained City’s demurrer to the 2AC. The court signed this judgment on 11/30/2018, while plaintiffs’ motion to amend was still pending.

Moving Papers. Plaintiffs now seek to vacate this judgment of dismissal on the

grounds it was premature, improperly entered without a noticed motion by City and the result of attorney mistake, inadvertence or excusable neglect so as to warrant either mandatory or discretionary relief under Code of Civil Procedure §473.

Opposition. City opposes, arguing that the court previously determined the 2AC failed to state a valid claim against City, plaintiffs failed to timely amend the complaint and the moving papers fail to demonstrate that the judgment of entered as a result of excusable neglect or mistake.

Analysis

The court need not rule on the merits of the present motion because it will on its own motion vacate the judgment of dismissal which was entered in favor of City on 11/30/2018. But for the court’s failure to recognize plaintiffs had already filed another motion to amend the complaint which was set for hearing on 12/18/2018, the court would not have entered a judgment of dismissal given that its 10/29/2018 ruling sustaining City’s demurrer to the 2AC expressly contemplated plaintiffs seeking leave to add new causes of action against City pursuant to a motion to amend (which was denied for purely procedural reasons).

The judgment of dismissal entered in favor of City on 11/30/2018 is hereby vacated so as to permit the court to rule on the merits of yet another motion to amend by plaintiffs.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)

Item 11 2017-00218442-CU-OR

Merle Axelrad vs. City of Sacramento

Nature of Proceeding: Motion to Correct or Vacate Judgment for Kent Arborist Services

Filed By: King, Daniel A.

Plaintiffs’ motion to correct or vacate the judgment of dismissal recently entered in favor of “Kent Arborist Services” is ruled on as follows.

The court notes that the caption page for several of the papers filed by plaintiffs in connection with this motion is different from the caption of the original complaint filed on 9/1/2017. The caption on all filings should be identical to the original complaint regardless of the fact that some parties have been dismissed or added and/or that their true names have been subsequently discovered.

Factual Background

Plaintiffs allege that in October 2016 contractors hired by the City of Sacramento (“City”) trespassed onto plaintiffs’ property and wrongfully and unnecessarily denuded a number of trees without notice or consent. It is further asserted that the cutting of these trees violated recognized, proper pruning practices and policies found in Government Code §53067 and that the contractors involved lacked the licenses/certifications required by Business & Professions Code §6700 et seq. and 7056 et seq., the Sacramento Municipal Code Chapter 3.64 and City’s own regulations

for contracting.

Among the defendants named in this suit are “Kent Arborist Services, a California proprietorship;” “Kent Tree Removal, a California proprietorship;” and “John Kent, an individual.” It appears plaintiffs were unable to ascertain the “correct” name of the Kent defendant allegedly involved in the 2016 tree incident, so a variety of potential Kent defendants were named in the suit and as a result, this court has already expended an inordinate amount of its finite resources in addressing the parties’ frequent law & motion activity.

The Second Amended Complaint (“2AC”) filed on 6/11/2018 purported to allege

causes of action for trespass, negligence, negligence per se and negligent
misrepresentation. Defendants “Kent Arborist Services, a California

proprietorship” (“KAS”) and “John Kent, an individual” (“Kent”) demurred to the 2AC on
the grounds (1) it did not state any causes of action as against KAS but instead only
against Kent as an individual and “Kent Tree Removal,” an entity which is not identified

in the caption and which apparently does not exist; and (2) the negligence per se and
negligent misrepresentation causes of action both fail to state a valid claim against

Kent and “Kent Tree Removal” (whether or not the latter exists).

Although the plaintiffs’ opposition sought to have the demurrer to the 2AC overruled, the essence of the opposition was that the demurrer was “moot” in light of plaintiffs’ proposed amended complaint which sought to add newly discovered facts and new causes of action. (Their motion to amend was filed on 9/27/2018 and was set for hearing on 10/29/2018, the same date as the demurrer, but the motion to amend was denied due to plaintiffs’ failure to comply with CRC Rule 3.1324 albeit without prejudice.)

In the end, this court sustained the demurrer to the 2AC as against KAS and also as to the negligence per se and negligent misrepresentation causes of action directed at Kent and “Kent Tree Removal.” Notably, leave to amend was granted and plaintiffs were to file and serve their amended complaint no later than 11/9/2018.

For unknown reasons, plaintiffs did not file or apparently serve and amended complaint by the 11/9/2018 deadline but rather waited until 11/14/2018 to re-file a motion to amend the complaint. Thus, a judgment of dismissal of KAS was submitted to the court on 11/15/2018 and on 11/28/2018, the court signed the judgment of dismissal of KAS since no amended complaint had been filed by the 11/9/2018 deadline (or thereafter) even though plaintiffs’ motion to amend was already pending and set for hearing on 12/18/2018.

Moving Papers. Plaintiffs now seek to correct or vacate the judgment of dismissal as to KAS on the grounds the judgment is not consistent with the 10/29/2018 ruling on the demurrer, was entered in error, improperly entered without a noticed motion and the result of attorney mistake, inadvertence or excusable neglect so as to warrant either mandatory or discretionary relief under Code of Civil Procedure §473.

Opposition. KAS and Kent oppose, arguing that there is no legal or evidentiary support for plaintiffs’ motion and that it is based on “false and misleading statements [which] are contradicted by the very ‘evidence’ plaintiff relies on for the motion.”

Analysis

The court need not rule on the merits of the present motion because it will on its own motion vacate the judgment of dismissal which was entered in favor of KAS on 11/28/2018. But for the court’s failure to recognize plaintiffs had already filed another motion to amend the complaint which was set for hearing on 12/18/2018, the court would not have entered a judgment of dismissal given that its 10/29/2018 ruling sustaining KAS and Kent’s demurrer to the 2AC contemplated plaintiffs seeking leave to add clarify the allegations against KAS and Kent as well as to add new causes of action against them. However, as noted above, plaintiffs’ then-pending motion to amend was denied for purely procedural reasons and they had already filed a new motion to amend before the court signed the judgment of dismissal in favor of KAS.

The judgment of dismissal entered in favor of KAS on 11/28/2018 is hereby vacated so as to permit the court to rule on the merits of yet another motion to amend by plaintiffs.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)

Item 12 2017-00218442-CU-OR

Merle Axelrad vs. City of Sacramento

Nature of Proceeding: Motion to File Amended Complaint

Filed By: King, Daniel A.

Plaintiffs’ motion for leave to amend complaint is again DENIED without prejudice.

This motion is not accompanied by a memorandum of points & authorities or a declaration. For unknown reasons, the present motion purports to rely on points & authorities filed in support of an earlier motion to amend along with a declaration filed in opposition to earlier demurrers and motions to strike but the motion to amend, demurrers and motions to strike were heard on 10/29/2018 and plaintiff’s purported reliance on these earlier filings is therefore misplaced.

Plaintiffs’ request for judicial notice filed with the reply papers is granted but only with respect to the existence of the identified documents and does not extend to the contents of those documents except for court orders and/or judgments. (See, e.g., Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121; Bach v. McNelis (1989) 207 Cal.App.3d 852, 865 [“There exists a mistaken notion that this means taking judicial notice of the existence of facts asserted in every document of a court file, including pleadings and affidavits. … A court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments.” (Emphasis added).])

If an amended complaint is desired, plaintiffs should promptly file and serve noticed motion accompanied by an appropriate memorandum of points & authorities and declaration as required by CRC Rule 3.1324.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)