 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Guerrero v. City of Los Angeles11/18/2002
eached its respective and collective duties of care, and allowed a dangerous condition to exist and continue in the following respects: [ ] (a) The DOGS were known by said defendants to be dangerous and had a known propensity to attack and bit people; [ ] (b) To the extent the said DOGS known vicious tendencies were investigated by agents, employees and representatives of said defendants, if any investigation was made, the requesting and responding authorities, delegates and/or agents were incompetent or failed to possess the requisite skills and expertise to render a reasonable evaluation of the prior incident of January 3, 1999, and the risks and dangers that would result from not impounding the DOGS; [ ] (c) To the extent a decision was made by said defendants not to impound the DOGS on or about January 3, 1999, said decision was unreasonable and constituted a manifest abuse of discretion, or was otherwise negligent, reckless and in conscious disregard of public safely. Further, because of the previous similar incident of January 3, 1999, believed to have occurred in the vicinity of LOCATIONS, such circumstances should have alerted said defendants to take precautions and impound the DOGS to prevent further incidents of the type that occurred in this case."
The City answered the complaint, and asserted various affirmative defenses, including governmental immunity. There was no demurrer by the City.
3. Trial proceedings.
On May 3, 2001, the matter came on for trial. Prior to opening statement, the City moved to preclude Guerrero from presenting any evidence that the City had breached some nebulous duty to Guerrero. The City argued the duty of a governmental entity is purely statutory, the statute establishing the duty must be identified in the pleading, and because Guerrero's complaint "did not plead it, he cannot establish the duty." The trial court granted the City's motion.
Guerrero's counsel conceded the complaint failed to specify the statutory basis of the duty, but emphasized the matter was not at the demurrer stage and was before the court for trial. Guerrero's counsel indicated if he were precluded from presenting evidence relevant to a breach of duty by the City, such as evidence of the previous dog bite incident, it would be futile to proceed with the trial.
The City then moved to dismiss the action. The trial court granted the motion.
Guerrero filed a timely notice of appeal from the order of dismissal.
CONTENTIONS
Guerrero contends the trial court erred in denying him leave to amend his complaint after it granted the City's motion in limine.
DISCUSSION
1. The procedural posture of this case.
Here, the City's successful motion to preclude the introduction of any evidence establishing any duty on the City's part was in effect an objection to all evidence. "Contrasted with motions in limine which seek to keep particular items of evidence from the jury, an `objection to all evidence' lies where a party's pleading is fatally defective. A defendant may object to the introduction of any and all evidence by a plaintiff who has failed to state a cause of action. (6 Witkin, Cal. Procedure (3d ed. 1985) Proceedings Without Trial, ยง 272, p. 571.) In making such motion, the objecting party seeks to end the trial and obtain a favorable judgment, on the pleadings, without any evidence. [Citation.] `An objection to the introduction of any evidence on the ground that a complaint fails to state a cause of action is in the nature of a general demurrer to the complaint or a motion by a defendant for judgment on the pleadings.' [Citation.]" (Clemens v. American Warranty C
Page 1 2 3 4 5 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|