(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.)
An abuse of discovery procedures is one instance can imply a continuing intent to abuse in other instances. Obregon v. Sup. Ct. (Cimm’s. Inc.) (1998) 67 Cal. App. 4th 424, 430. As such, it is more than likely that further discovery will become available establishing further liability of defendants as the depositions of Ms. Maria Cantor has yet to be taken for the incident involved in this case, especially in light of Ms. Cantor’ sudden reappearance.
On these grounds alone, this motion should be denied.
For the foregoing reasons, it is respectfully requested that this Court deny the Motion for Summary Judgment filed by Defendant and allow this matter to proceed to trial by jury.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.