Judge: Joel R Wohlfeil, Case: 37-2022-00001123-CU-PO-CTL, Date: 2023-08-24 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - August 21, 2023

08/24/2023  01:30:00 PM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  PI/PD/WD - Other Discovery Hearing 37-2022-00001123-CU-PO-CTL TAYLOR VS CAPOOCIA [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Protective Order, 07/17/2023

The Motion (ROA # 101) of Defendant / Cross-Complainant / Cross-Defendant ROBERT CAPOOCIA, Defendant CHERYL CAPOOCIA (sued as DOE 1), HKT CAL, INC., JENNIFER ARMITAGE, ARMITAGE PROPERTY, INC. and ANDREW ARROYO REAL ESTATE INC. (hereinafter 'Defendants') for a protective Order limiting the scope of the depositions of the Persons Most Knowledgeable of Defendants HKT CAL, INC., ARMITAGE PROPERTY, INC. and ANDREW ARROYO REAL ESTATE INC., is GRANTED.

This is a dog bite case, the alleged crux of which is set forth in paragraph 1 of the Complaint: 'On February 15, 2021, two large dogs viciously attacked five-year old Leona Taylor while she was visiting her mother at 995 Billings Street in El Cajon (the 'Property'). On information and belief, Defendant Robert Capoocia knew the dogs were staying at his Property and knew the dogs were dangerous. Yet he took no steps to remove them or their owner. The dogs were part of a rotating cast of animals, vagrants, and drug dealers that inhabited the Property while Capoocia turned a blind eye. The Property was a slum house owned by a slumlord, and it constituted a public nuisance. Leona Taylor's injuries were foreseeable and preventable - had Capoocia acted as a reasonable property owner. Tragically, he did not.' Plaintiff alleges claims for negligence and public nuisance.

Defendants generally deny the allegations and assert numerous affirmative defenses.

Defendant's Motion states, at page 4: 'Plaintiff took the deposition of Defendant ROBERT CAPOOCIA on May 17, 2023, and of Defendant JENNIFER ARMITAGE on May 30, 2023. On June 5, 2023, Plaintiff served Defendants with Notices of Deposition for the Persons Most Qualified for Defendants ARMITAGE PROPERTY, INC., HKT CAL, INC. and ANDREW ARROYO REAL ESTATE, INC., setting the depositions for July 18 and July 19, 2023. The scope of these depositions includes 'any and all properties owned by Defendant ROBERT CAPOOCIA,' and is not solely limited to the property at issue in this suit. Further, Plaintiff seeks copies of all payment ledgers for all properties, as well as all property management agreements or addendums for all properties, and all tenant leases for the properties at any time.' Plaintiff's opposition states, at pages 1 - 2: 'Defendants have vehemently claimed throughout this litigation that Jennifer Armitage and her various Calendar No.: Event ID:  TENTATIVE RULINGS

2997404 CASE NUMBER: CASE TITLE:  TAYLOR VS CAPOOCIA [IMAGED]  37-2022-00001123-CU-PO-CTL management companies had no notice of the dogs that attacked Leona Taylor or their dangerous propensity. Defendants have filed a motion for summary judgment on this issue and Plaintiff is currently obtaining discovery to oppose that motion.

But in making that argument, Defendants have opened the door to Armitage's management practices, not just with respect to 995 Billings, but with respect to all the properties she managed for the Capoocias.' Though pled as claims for negligence and public nuisance, the Court nonetheless takes into consideration the dog bite statute (Civ. Code 3342). See CACI 463; however, the applicable elements of this claim appears to be reflected in CACI 462: 'People who own, keep, or control animals with unusually dangerous natures or tendencies can be held responsible for the harm that their animals cause to others, no matter how carefully they guard or restrain their animals.

To establish her claim, Plaintiff must prove all of the following: 1. Defendant owned, kept, or controlled a dog; 2. The dog had an unusually dangerous nature or tendency; 3. Before Plaintiff was injured, Defendant knew or should have known that the dog had this nature or tendency; 4. Plaintiff was harmed; and 5. The dog's unusually dangerous nature or tendency was a substantial factor in causing Plaintiff's harm.' The elements of Plaintiff's negligence claim are set forth in CACI 400: '1. Defendant was negligent; 2. Plaintiff was harmed; and 3. Defendant's negligence was a substantial factor in causing Plaintiff's harm.' The elements of Plaintiff's public nuisance claims are set forth in CACI 2020: '1. Defendant, by acting or failing to act, created a condition or permitted a condition to exist that was harmful to health, was indecent or offensive to the senses, was an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, unlawfully obstructed the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, or was a fire hazard or other potentially dangerous condition to Plaintiff's property; 2. The condition affected a substantial number of people at the same time; 3. An ordinary person would be reasonably annoyed or disturbed by the condition; 4. The seriousness of the harm outweighs the social utility of Defendant's conduct; 5. Plaintiff suffered harm that was different from the type of harm suffered by the general public; and Calendar No.: Event ID:  TENTATIVE RULINGS

2997404 CASE NUMBER: CASE TITLE:  TAYLOR VS CAPOOCIA [IMAGED]  37-2022-00001123-CU-PO-CTL 6. Defendant's conduct was a substantial factor in causing Plaintiff's harm.' As the Court reflects on these claims, it appears that Plaintiff's predicate burden is still that Defendant owned, kept or controlled a dog, which Defendant knew or should have known had an unusually dangerous nature or tendency, at the subject property, causing harm to Plaintiff.

That Defendant owned, kept or controlled one or more dogs, which Defendant knew or should have known had an unusually dangerous nature or tendency, at other properties, is not relevant to Plaintiff's predicate burden.

On the other hand, if Plaintiff meets her predicate burden, the discovery sought herein by Plaintiff may be relevant to other elements of Plaintiff's claims not framed in this Motion.

This Motion is GRANTED without prejudice to Plaintiff's ability to re-propound this discovery upon an adequate showing.

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