Related Contentin Los Angeles County
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JERRY KOHN VS ALEX CANTABELLA
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Ruling
LOOMIS ARMORED US, LLC VS RAFAEL CASTILLO
Aug 15, 2024 |23STCV00413
Case Number: 23STCV00413 Hearing Date: August 15, 2024 Dept: 20 Tentative Ruling Judge Kevin C. Brazile Department 20 Hearing Date: August 15, 2024 Case Name: Loomis Armored US, LLC v. Castillo Case No.: 23STCV00413 Matter: Motions to Compel Further Responses (4x) Moving Party: Defendant Rafael Castillo Responding Party: Plaintiff Loomis Armored US, LLC Notice: OK Ruling: The Motion as to Form Interrogatories is denied. The Motion as to Special Interrogatories is granted in part. The Motion as to RFAs is granted. The Motion as to RFPs will be assigned to a discovery referee. Moving party to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. On June 20, 2024, Plaintiff Loomis Armored US, LLC (Loomis) filed the operative First Amended Complaint (FAC) against Defendant Rafael Castillo for (1) violation of Pen. Code § 496, (2) breach of fiduciary duty, and (3) conversion. Plaintiff alleges that it has a cash delivery service and that its employee, Castillo, stole $36,000 while making a delivery. On June 13, 2024, the Court consolidated this matter with Rafael Castillo v. Loomis Armored US, LLC, et al., Case No. 23STCV04436. Therein, Castillo brings claims for discrimination, harassment, failure to prevent misconduct, wrongful discharge, and defamation against Loomis and also five of its employees, Jessie Hernandez, Nolan Tate, Ryan Shake, Urias Jimenez, and John Toliano. Castillo alleges that he had been an excellent employee for years, but when Shake was hired, he orchestrated a scheme in which he hired two younger employees, had Castillo completely train them, and then fired Castillo through a false assertion that he stole $36,000. Castillo alleges that the LAPD and District Attorney found no probable cause for an arrest and that he has not been charged for any crime. Form Interrogatories Castillo now seeks to compel further responses to his form interrogatories, set one, from Loomis. Loomis indicates that supplemental responses have been served. Therefore, the Motion is denied as moot. If the responses are insufficient, Castillo should meet and confer. The Court declines to award sanctions at this time. Special Interrogatories Castillo seeks to compel further responses to his special interrogatories (SI), set one, from Loomis. Loomis indicates that supplemental responses were served as to SI nos. 29, 36-38, 40-41, 44-47, 49-51, 54, 57-58, 60-61, 64-67, and 70. Thus, the Motion is denied as moot with respect to these interrogatories. The Motion is granted as to SI no. 34, but Loomis need only indicate the surveillance at the general time and area of the alleged conversion. The Motion is granted as to SI no. 6 because the identity of other guards could lead to admissible evidence and the objections lack merit. The Motion is granted as to SI no. 7 for the same reasons stated above. This interrogatory is merely broader than SI no. 6. The Motion is granted as to SI no. 8 because guard schedules could also be relevant and the objections lack merit. The Motion is denied as to SI no. 9, which states: Please IDENTIFY and describe in detail any and all investigations conducted on any employee of PLAINTIFF working out of the facility from January 1, 2022, to January 1, 2023. This is overbroad in light of privacy rights. The Motion is denied as to SI nos. 10 and 11, which are also overbroad and overburdensome. Castillo has already requested information about relevant schedules. The Motion is granted as to SI no. 12, which seeks relevant route schedules. The Motion is denied as to SI no. 13, which seeks how much currency was delivered to each of PLAINTIFFs customers between January 1, 2022 to January 1, 2023. This is also overbroad. The Motion is granted as to SI no. 14, but only for the locations that Castillo worked. The Motion is denied as to SI no. 15, which is overbroad and overburdensome. The Motion is granted as to SI no. 16 because the identity of other employees with access to Castillos vehicle is plainly relevant and the objections lack merit. The Motion is denied as to SI no. 18 because the identity of all individuals who communicated with NCR Payment Solutions, LLC [ ] between January 1, 2020, and July 31, 2022 is overbroad and Castillos separate statement on this issue is somewhat incoherent. The Motion is granted as to SI nos. 20 (identity of employees that had access to the $36,000); 21(how long such employees had been working for Loomis); 23 (how these employees were investigated); 24 (findings and conclusions); 35 (identification of cameras where the conversion took place); 42 (contact information of employees working on May 26, 2022); 59 (all applicable insurance policies); 62 (procedures for preventing theft); and 63 (actions taken to prevent theft). These SIs seek relevant information, and Loomis objections lack merit. The Motion is denied as to SI nos. 25 (all currency delivery routes on May 26, 2022) and 26 (people that had access to delivery trucks that day). The Motion is granted as to SI no. 72, but only as to the general time and location of the alleged conversion. The Motion is denied as to SI nos. 22 (background check for employees involved); 27 (every person that was to receive cash on May 26, 2022); 32 (every client from May 1, 2022, to July 31, 2022); 39 (all entities related to Loomis); 43 (all contracts for cash deliveries); 48 (more employee information); 52 (yet more employee information); 53 (follow-up to 52); 55 (more employee information); 56 (all clients that had contact with Castillo for nearly three years); 68 (all transactions with Cardtronics for over 4 years); 69 (all employees that delivered or received currency for Cardtronics for more than four years); 71 (more Cardtronics matters); 73 (all delivery contracts for over four years); and 74 (follow-up to 73). These SIs are overbroad, overburdensome, and not reasonably calculated to lead to the discovery of admissible evidence. In sum, the Motion is granted in part as set forth herein. Further responses are to be provided within 30 days. Given the mixed results, the Court declines to award sanctions. Admissions Castillo next seeks to compel further responses to his RFA nos. 3 and 11 from Loomis. RFA no. 3 states, Admit that YOUR client has no evidence that DEFENDANT stole, defrauded, or converted any of THEIR U.S. currency. This will be deemed to refer to Loomis and any of its clients. A further response is required. RFA no. 11 states, Admit that the District Attorney found no probable cause to arrest DEFENDANT for fraud, conversion, or theft. This is deemed to mean that the DA did not find a basis to press charges. A further response will be required. It makes little sense that the parties could not come to an agreement for these RFAs. The Motion is granted. Further responses are to be provided within 30 days. The Court declines to award sanctions. Documents Castillo next seeks to compel further responses as to nearly 99 RFPs. The parties are engaging in unreasonable discovery practices, and the Court does not have the resources to address such behavior. The Court sets an OSC re: discovery referee. This Motion only will be assigned to a discovery referee. The Court will not review the referees ruling, and the fees will be apportioned equally. Moving party to give notice. If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.
Ruling
SANDRA MARTIN, ET AL. VS BAJ MANAGEMENT, INC.
Aug 16, 2024 |21STCV40177
Case Number: 21STCV40177 Hearing Date: August 16, 2024 Dept: NCB Superior Court of California County of Los Angeles North Central District Department B sandra martin, et al., Plaintiffs, v. baj management, inc. dba Prospect manor, Defendant. Case No.: 21STCV40177 Trial Date: August 16, 2024 [TENTATIVE] ORDER RE: demurrer; motion to strike BACKGROUND A. Allegations Plaintiffs Sandra Martin, Stanley Brown, Elizabeth Brown, and Charlotte Bland, as individuals and as successors and heirs (Plaintiffs) of Olive Brown (Decedent) allege that Decedent was a resident of Defendant Baj Management, Inc. dba Prospect Manor (Defendant). Plaintiffs allege that in the midst of the coronavirus pandemic, Defendant intentionally concealed that several working staff members and residents had been exposed to the COVID-19 and failed to take steps to ensure that its staff members followed CDC guidelines to safeguard elderly and vulnerable residents. Plaintiffs allege that Decedent was a resident of Defendants nursing home and was generally in good health during the last year of her life with certain monitored medical conditions that were being well-managed and under control. (Compl., ¶¶25-26.) Plaintiffs allege that her pre-existing medical conditions required attention and care and any changes to her condition were to be reported to the attending physician. (Id., ¶27.) They allege that Defendant accepted responsibility to provide caretaking and custodian services. (Id., ¶28.) Plaintiffs allege that throughout 2020, Defendant failed to provide staff, employees, and residents with adequate personal protective equipment (PPE) for the COVID-19 outbreak; failed to properly instruct staff regarding proper protocol to protect residents; failed to adopt and implement effective procedures to instruct and warn visitors regarding the dangers of COVID-19; failed to post conspicuous signs to warn of the dangers and mandate PPE and other safety precautions; failed to provide/require visitors or staff the use of sanitizers or take temperatures; were understaffed such that Defendant was unable to effectively screen or prevent visitors on the premises; knowingly permitted staff to work at the facility despite contracting or exhibiting signs of COVID-19; and concealed or failed to warn residents about staff with COVID-19. (Id., ¶¶32-39.) Plaintiffs allege that due to Defendants failures as listed above, its failure to test staff and residents, and delay in implementing an effective policy for isolating carriers, Decedent was exposed to, contracted, and passed away due to COVID-19. (Id., ¶¶40-43.) They allege that on December 10, 2020, nurse Gloria informed Plaintiff Charlotte Bland that Decedent had tested positive for COVID-19 but was asymptomatic and was doing fine, and Bland contacted Dr. Marilynn Moore. (Id., ¶¶46-47.) Under Dr. Moores instructions, Decedent was transported to Huntington Hospital Emergency Room that same day, where her condition worsened and Decedent passed away on December 27, 2020 due to COVID-19. (Id., ¶49.) The complaint, filed November 1, 2021, alleges causes of action for: (1) elder abuse; (2) willful misconduct; (3) negligence; and (4) wrongful death. B. Motions on Calendar On May 9, 2024, Defendant filed a demurrer and motion to strike portions of the complaint. On May 29, 2024, Plaintiffs filed opposition briefs. On June 4, 2024, Defendant filed reply briefs. REQUEST FOR JUDICIAL NOTICE Defendant requests judicial notice of Exhibits: (A) the complaint; (B) the CDCs July 31, 2020 Public Health Guidance for Community-Related Exposure; (C) a CDC study published on January 7, 2021 entitled, SARS-CoV-2 Transmission from People without COVID-19 Symptoms; (D) an October 6, 2020 California Department of Social Services PIN 20-37-ASC, notifying Residential Care Facilities for the Elderly of the latest staffing waivers in effect; and (E) a November 20, 2020 California Department of Social Services PIN 20-42-ASC, notifying Residential Care Facilities for the Elderly of the latest directives relating to the mitigation of COVID-19. The request is granted. (Evid. Code, § 452(c)-(d).) DISCUSSION RE DEMURRER Defendant demurs to each cause of action alleged in the complaint. A. 1st cause of action for elder abuse A plaintiff must prove more than simple or even gross negligence in the providers care or custody of the elder or dependent adult. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405.) The plaintiff must prove by clear and convincing evidence that defendant was guilty of recklessness, oppression, fraud or malice in the commission of the neglect, which applies essentially the equivalent standard to support punitive damages. (Id.; Welf. & Inst. Code, § 15657.) The enhanced remedies are available only for acts of egregious abuse against elder or dependent adult. (Carter, supra, 198 Cal.App.4th at 405.) Recklessness refers to a subjective state of culpability greater than simple negligence, which has been described as deliberate disregard of the high degree of probability that an injury will occur and rises to the level of a conscious choice of a course of action with knowledge of the serious danger to others involved in it. (Delaney v. Baker (1999) 20 Cal.4th 23, 31-32.) Unlike negligence, recklessness involves more than inadvertence, incompetence, unskillfulness, or a failure to take precautions. (Id. at 31.) There are several factors that must be pled with particularity, including: (1) defendants had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care; (2) defendants knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs; (3) defendants denied or withheld goods or services necessary to meet the elder or dependent adults basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness); and (4) the neglect caused the elder or dependent adult to suffer physical harm, pain or mental suffering. (Carter, supra, 198 Cal.App.4th at 406-407.) In the 1st cause of action, Plaintiffs allege that Decedent was an elderly person and Defendant had the care and custody of her during the relevant times. (Compl., ¶¶56-57.) Plaintiffs allege that Defendant failed to protect Decedent from health and safety hazards, thereby committing neglect. (Id., ¶58.) Plaintiffs allege that Decedent was intentionally or recklessly exposed to COVID-19 and not provided with PPE equipment needed to guard against the dangers faced from the transmission of COVID-19. (Id., ¶59.) Upon review of the general factual allegations of the complaint and the allegations of the 1st cause of action, the Court finds that the 1st cause of action for elder abuse and neglect has not been adequately pled with the requisite specificity. While Plaintiffs allege that Defendant failed to implement certain CDC standards, failed to post warning signs in the facility, and allowed staff and residents with COVID-19 to remain at the facility, the allegations at most rise to the level of negligence. The allegations, taken together, do not rise to a showing of willful, intentional conduct, or reckless behavior on the part of Defendant; rather, at most, the allegations rise to a level of negligent conduct, which is not sufficient for a statutory elder abuse claim. The demurrer to the 1st cause of action is sustained with leave to amend. B. 2nd cause of action for willful misconduct A claim for willful misconduct is intentional wrongful conduct, done either with a knowledge that serious injury to another will probably result, or with a wanton and reckless disregard of the possible results. (New v. Consolidated Rock Products Co. (1985) 171 Cal. App. 3d 681, 689-90.) Willful misconduct is an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care. (Id.) The usual meaning assigned to willful or reckless conduct is that the actor has intentionally done an act of an unreasonable character in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. (Id.) Accordingly, three essential elements must be present to raise a negligent act to the level of willful misconduct: (1) actual or constructive knowledge of the peril to be apprehended; (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger; and (3) conscious failure to act to avoid the peril. (Id.) Further, the torts pleading requirements are similar to negligence but stricter. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526.) In the 2nd cause of action, Plaintiffs allege that Defendant knew or should have known of their failure to comply with the standard of care by lacking appropriate safety equipment and not employing reasonable custodial policies for isolating COVID-positive residents. (Compl., ¶65.) Plaintiffs allege that Defendant knew or should have known that the peril posed by its failure to comply with the standard of care exposed Decedent to a high probability of her death. (Id., ¶66.) Plaintiffs allege that Defendant failed to comply with certain duties. (Id., ¶67, see ¶¶32-39.) Plaintiffs allege that Defendant made certain financial and budgetary decisions to limit purchase of PPE, which resulted in exposure of COVID-19 to its residents including Decedent. (Id., ¶68.) For the same reasons discussed above, the willful misconduct cause of action also fails to allege sufficient facts. The allegations are conclusory recitations of the elements and fail to rise to a showing that Defendant acted with intentionality, as such facts must be pleaded with a higher pleading standard than ordinary negligence. Again, the Court finds that, at most, the facts alleged in this cause of action are indicative of negligence, but not necessarily willful conduct. The demurrer to the 2nd cause of action is sustained with leave to amend. C. 3rd cause of action for negligence The elements of a negligence cause of action are duty, breach of duty, proximate cause, and damages. (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 892.) In the 3rd cause of action, Plaintiffs allege that Decedent was admitted as a resident of Defendant for approximately the last 20 years of her life. (Compl., ¶73.) They allege that Defendant owed her a duty of ordinary care to use the degree of care and skill that a reasonably prudent person and nursing home would owe. (Id., ¶74.) Plaintiffs allege that Defendant breached their duties by failing to implement policies, procedures, and safety measures necessary to prevent Decedents exposure to COVID-19 and by failing to provide appropriate treatment once she was infected by the virus. (Id., ¶75.) Defendant argues that it is a residential care facility and not a skilled nursing facility, such that the duty and standard of care it would owe is that of a reasonably prudent residential care facility for the elderly, which is a different standard. However, at the pleading stage, the Court takes the allegations of the complaint as true and Plaintiffs have alleged that Defendant is a nursing home, as opposed toa residential care facility. Defendant may, at the summary judgment or trial stage, prove that it is not a nursing home and that it is instead a residential care facility and held to a different standard, but at the demurrer stage, the Court cannot accept Defendants extrinsic facts. The demurrer to the 3rd cause of action is overruled. D. 4th cause of action for wrongful death The elements of a wrongful death cause of action are: (1) a wrongful act or neglect on the part of one or more persons that (2) causes (3) the death of another person. (Nogart v. Upjohn Co. (1999) 21 Cal.4th 383, 390.) In the 4th cause of action, Plaintiffs incorporate all prior allegations and allege that as a direct and proximate result, Decedent died and Plaintiffs are deprived of her care, comfort, and society. (Compl., ¶¶77-78.) As Plaintiffs have alleged a viable cause of action for negligence, there are sufficient facts to allege a cause of action for wrongful death premised upon negligence. As such, the demurrer to the 4th cause of action is overruled. DISCUSSION RE MOTION TO STRIKE Defendant moves to strike allegations for enhanced remedies under the Elder Abuse Act, including attorneys fees and punitive damages. In light of the ruling on the demurrer to the 1st cause of action for elder abuse, the Court grants the motion to strike the allegations for enhanced remedies and the request attorneys fees pursuant to the Elder Abuse Act. Similarly, the allegations for punitive damages are generalized and conclusory, such that they do not rise to the level of particularity required for a request for punitive damages. Plaintiffs should allege further facts supporting a showing of oppression, malice, and/or fraud to warrant a request for punitive damages. The motion to strike is granted with leave to amend. CONCLUSION AND ORDER Defendant Baj Management, Inc. dba Prospect Manors demurrer to the 1st and 2nd causes of action in the complaint is sustained with 20 days leave to amend. The demurrer to the 3rd and 4th causes of action is overruled. Defendant Baj Management, Inc. dba Prospect Manors motion to strike is granted with 20 days leave to amend. Defendant shall provide notice of this order. DATED: August 16, 2024 ___________________________ John Kralik Judge of the Superior Court
Ruling
GUITY YAGHOOBI-KALIMI VS BRUMER CITYWIDE PROPERTY L.P.
Aug 15, 2024 |Renee C. Reyna |22STCV19336
Case Number: 22STCV19336 Hearing Date: August 15, 2024 Dept: 29 The hearing is continued for approximately 21 days pending potential case reassignment.Moving party to give notice.
Ruling
SHARON SMITH VS CALIFORNIA HIGHWAY PATROL (CHP), ET AL.
Aug 14, 2024 |20STCV39865
Case Number: 20STCV39865 Hearing Date: August 14, 2024 Dept: B SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT SHARON SMITH Plaintiff, vs. CALIFORNIA HIGHWAY PATROL, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO: 20STCV39865 [TENTATIVE] ORDER RE: DEMURRER Dept. B 8:30 a.m. August 14, 2024 I. BACKGROUND October 16, 2020, Plaintiff, Sharon Smith (Plaintiff) filed this action against Defendants California Highway Patrol (CHP) and Pearl Rodney (Rodney) (collectively, Defendants) for damages arising from a motor vehicle accident. On April 28, 2023, the Court sustained Defendant State of Californias, acting by and through the California High Patrol, demurrer to Plaintiffs complaint with leave to amend. On May 18, 2023, Plaintiff filed a First Amended Complaint (FAC) for (1) negligence; (2) vicarious liability; (3) violation of vehicle code 17001; and (4) negligence (Govt. Code 820(a)). II. LEGAL STANDARD A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (CCP §§ 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Donabedian, 116 Cal.App.4th at 994.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Firemans Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].) Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice. (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 556.) In ruling upon demurrers, judges consider matters shown in exhibits attached to the complaint and incorporated by reference. (Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal. App. 4th 659, 665.) [A] pleading valid on its face may nevertheless be subject to demurrer when matters judicially noticed by the court render the complaint meritless. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 593, 604.) Courts will not consider affidavits filed in opposition to a demurrer, but only the pleading and judicially noticeable matters. (Knickerbocker v. City of Stockton (1988) 199 Cal. App. 3d 235, 239.) III. DISCUSSION Defendant State of California demurs on the ground that Plaintiff has failed to allege she has complied with the Government Claims Act and the claims presentation requirements. Defendant argues, in fact, the FAC affirmatively alleges that Plaintiffs late claim petition was denied and is the subject of a pending motion for reconsideration. Government Code § 945.5 provides, No suit for damages may be maintained against a public entity unless the claim has been presented to it. Further, California Government Code § 911.2(a) states, [a] claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action. The Tort Claims Act requires that any civil complaint for money or damages first be presented to and rejected by the pertinent public entity [Citation]. The act creates a bond between the administrative claim and the judicial complaint. Each theory of recovery against the public entity must have been reflected in a timely claim. In addition, the factual circ*mstances set forth in the claim must correspond with the facts alleged in the complaint. (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776.) A public entity cannot be sued for tort unless (1) a timely written claim has previously been presented to the governmental entity, (2) any late claim has been presented to the public entity and been excused by it or the court, or (3) conditions described by Government Code section 946.4 ... have been met. (Greyhound Lines, Inc. v. County of Santa Clara (1986) 187 Cal.App.3d 480, 483.) The failure to timely present a proper claim ... bars a plaintiff from filing a lawsuit against that entity. [Citation.] (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 374.) The filing of a claim is a condition precedent to the maintenance of any cause of action against the public entity and is therefore an element that a plaintiff is required to prove in order to prevail. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 767.) On August 15, 2023, the court continued this demurrer and noted that the legal effect of the motion for reconsideration currently pending in Department 16 in Stanley Mosk in the related Case No. 21STCP03992 would have a determinative effect upon the instant motion in terms of satisfying the condition precedent claim presentation requirement. Plaintiffs related motion for reconsideration was set to be heard on July 9, 2024 in Department 16. On April 7, 2023, this case was related with 21STCP03992, and assigned to Department 31 in Spring Street. On June 11, 2024, the court in Department 16 in Stanley Mosk vacated the motion for reconsideration as the case was reassigned. Now, there is no motion for reconsideration pending. As such, the parties are ORDERED to appear at the hearing on this demurrer as the court inquires as to whether Plaintiff intends to pursue the motion for reconsideration. Defendants failure to appear may result in the motion being taken off calendar. Plaintiffs failure to appear may result in the demurrer being sustained without leave to amend based on the failure to comply with the claim presentation requirements. IV. CONCLUSION Therefore, the hearing on the demurrer is CONTINUED. The parties are ORDERED to appear at the hearing on this demurrer as the court inquires as to whether Plaintiff intends to pursue the motion for reconsideration. Defendants failure to appear may result in the motion being taken off calendar. Plaintiffs failure to appear may result in the demurrer being sustained without leave to amend based on the failure to comply with the claim presentation requirements. Defendant is ORDERED to give notice. DATED: August 14, 2024
Ruling
MIGUEL GARCIA VS REBECCA ROSE HESS
Aug 14, 2024 |Renee C. Reyna |22STCV15516
Case Number: 22STCV15516 Hearing Date: August 14, 2024 Dept: 29 Garcia v. Hess 22STCV15516 Defendant City Years Motion for Summary Judgment Tentative Defendant City Year, Inc.s motion for summary judgment is GRANTED. Background On May 10, 2022, Miguel Garcia (Plaintiff) filed a complaint against Rebecca Rose Hess and Does 1 through 20 for motor vehicle negligence and general negligence arising out of an automobile accident occurring on December 3, 2021 at the intersection of 40th Street and South Central Avenue in Los Angeles. On August 26, 2022, Plaintiff filed the First Amended Complaint (FAC) against Rebecca Rose Hess, Richard Hess, and Does 1 through 20 for the same causes of action. On September 2, 2022, Rebecca Rose Hess and Richard Hess filed an answer to Plaintiffs FAC. On April 3, 2023, Plaintiff amended the FAC to name City Year Los Angeles as Doe 1. On May 31, 2023, City Year, Inc. (Defendant) filed an answer. On December 5, 2023, Defendant filed a motion for summary judgment. On July 31 and August 1, 2024, Plaintiff filed an opposition and supporting papers for the opposition. On August 7, 2024, City filed its reply, along with objections to some of Plaintiffs evidence. Legal Standard The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) As to each cause of action as framed by the complaint, a defendant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851; Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851.) A plaintiff or cross-complainant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. (Code Civ. Proc., § 437c, subd. (p)(1).) Once the plaintiff or cross-complainant has met that burden, the burden shift to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Ibid.) The party opposing a motion for summary judgment or summary adjudication may not simply rely upon the allegations or denials of its pleadings but must instead set forth the specific facts showing that a triable issue of material fact exists. (Code Civ. Proc., § 437c, subds. (p)(1) & (p)(2). To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) Objections to Evidence Defendant asserts five objections to Plaintiffs Exhibit 1, the transcript of the deposition of Rebecca Hess. Evidence presented in support of, or in opposition to, a motion for summary judgment must be admissible. (Code Civ. Proc., § 437c, subd. (d); Perry v. Bakewell Hawthorne LLC (2017) 2 Cal.5th 536, 541-43.) The court must consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained. (Code Civ. Proc., § 437c, subd. (c).) The Court has considered each of these five objections. The objections are OVERRULED. Discussion This case arises out of a motor vehicle accident on December 3, 2021, at the intersection of South Central Avenue and 40th Place in Los Angeles. (Defendants Statement of Undisputed Material Facts [DSUMF], No. 1.) Plaintiff alleges that Rebecca Hess (Hess) drove negligently and causes the accident. (DSUMF, No. 2.) At the time of the accident, Hess was employed as a program manager with Defendant. (DSUMF, No. 3.) The central issue in this summary judgment is whether Defendant can be liable to Plaintiff for the alleged tort (negligence) of Hess under a theory of respondeat superior. The law regarding respondeat superior liability is well established in California. A principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as part of the transaction of such business. (Civ. Code, § 2338.) [A]n employer is vicariously liable for the torts of its employees committed within the scope of employment. (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.) The respondeat superior doctrine makes an employer liable, irrespective of fault, for an employees tortious conduct in the scope of employment. (Diaz v. Carcamo (2011) 51 Cal.4th 1148, 1154.) For more than 50 years, courts in California have based respondeat superior liability not on a theory of control by the employer but rather on the allocation of risk: a business is responsible for the costs associated with the business operations, including the tortious conduct of its employees that is typical or or broadly incidental to the enterprise [the employer] has undertaken, the more or less inevitable toll of a lawful enterprise. (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 960.) The risks inherent in or created by the enterprise are properly born by the employer, particularly when the employee who committed the tort was on company time and was engaged in the very conduct contemplated by the employer. (Ibid.; see also, e.g., Carr v. Wm C. Crowell Co. (1946) 28 Cal.2d 652, 655-656 [referring to the risks of the enterprise].) In determining the scope of employment, the California Supreme Court has adopted and repeatedly relied on a standard set forth by the Court of Appeal in Rodgers v. Kemper Construction Co. (1975) 50 Cal.App.3d 608, 618-619: One way to determine whether a risk is inherent in, or created by, an enterprise is to ask whether the actual occurrence was a generally foreseeable consequence of the activity. However, foreseeability in this context must be distinguished from foreseeability as a test for negligence. In the latter sense, foreseeable means a level of probability which would lead a prudent person to take effective precautions whereas foreseeability as a test for respondeat superior merely means that in the context of the particular enterprise an employees conduct is not so unusual or startling that it would seem unfair to include the less resulting from it among other costs of the employers business. & In other words, where the question is one of vicarious liability, the inquiry should be whether the risk was one that may fairly be regarded as typical of or broadly incidental to the enterprise undertaken by the employer. (See, e.g., Lisa M., supra, 12 Cal.4th at p. 299 [quoting Rodgers]; Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004 [same]; Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 209 [same]; see also CACI No. 3720 (stating that conduct is within the scope of employment if it is reasonably related to the kinds of tasks that the [employee] was employed to perform or reasonably foreseeable in light of the employers business or the [employees] responsibilities.) To hold an employer vicariously liable the employee must be engaged in the duties which he was employed to perform or those acts which incidentally or indirectly contribute to the employers service. Conversely, the employer is not liable when the employee is pursuing his own ends. (Tryer v. Ojai Valley School (1992) 9 Cal.App.4th 1476, 1481 [citations and quotation marks omitted]; accord Jeewarat v. Warner Brothers Entertainment (2009) 177 Cal.App.4th 427, 435.) Plaintiffs have the burden of proving that the employees tortious conduct was committed within the scope of employment. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 209; accord Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 721; Moreno v. Visser Ranch, Inc. (2018) 30 Cal.App.5th 568, 576.) Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when the facts are undisputed and no conflicting inferences are possible. Lisa M., supra, 12 Cal.4th at p. 299; accord Jeewarat, supra, 177 Cal.App.4th at p. 434.) As a general rule, an employer is not liable under respondeat superior for accidents or other torts committed by an employee while the employee is commuting or otherwise traveling to or from the workplace. Under the so-called going and coming rule, an employee is not regarded as acting within the scope of his employment while going to or coming from his place of work. (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 722; accord Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 961; Moradi v. Marsh USA (2013) 219 Cal.App.4th 886, 894; CACI No. 3725. This rule has particular application to vehicle accidents of employees whose jobs do not embrace driving. Accordingly, courts apply the rule when the employee performs the employment services at or in a particular plant or upon particular premises. (Tryer v. Ojai Valley School (1992) 9 Cal.App.4th 1476, 1481 [citations omitted].) There are exceptions, however, to the going and coming rule. For example, under the required vehicle exception, an employer may be liable under a theory of respondeat superior for torts committed during an employees commute when the employer requires an employee to furnish a vehicle of transportation on the job. (Ducey, supra, 25 Cal.3d at p. 723; see also Jorge v. Culinary Institute of America (2016) 3 Cal.App.5th 382, 401; Halliburton Energy Services, Inc. v. Department of Transp. (2013) 220 Cal.App.4th 87, 96; Tryer, supra, 9 Cal.App.4th at pp. 1481-1482; CACI No. 3725.) Respondeat superior may also apply when the employer the employer derives some incidental benefit from the employees trip. (Anderson v. Pacific Gas & Elec. Co. (1993) 14 Cal.App.4th 254, 258; see also Hinman, supra, 2 Cal.3d at p. 962; Jorge, supra, 3 Cal.App.5th at p. 398; CACI No. 3725.) Or when the employee is engaged in a special errand for the employer or when the the employer compensates his employee for travel time. (Ducey, supra, 25 Cal.3d at p. 722.) Here, the facts material to this motion are undisputed. The accident at issue occurred at approximately 9:00 a.m. on December 3, 2021. (DSUMF, No. 1; Plaintiffs Exhibit No. 1 [Hess Depo.], at 10:24-11:2.) At the time of the accident, Hess was driving to work. (DSUMF, No. 5; Hess Depo., at 37:3-5, 80:2-20.) Defendant is Hesss employer. Defendant is an AmeriCorps affiliated organization that hires mostly young adults to provide mentoring and tutoring services in under resourced schools. (Plaintiffs Statement of Additional Material Facts [PSAMF], No. 1; Hess Depo., at 14:8-15.) For the 2021-22 academic year, Defendant assigned Hess to work as a program manager at Nava College Preparatory Academy on East 41st Street in Los Angeles. (DSUMF, No. 4.) As program manager, Hess provided support and coaching to the other team members assigned to the Nava school site. (PSAMF, No. 2.) During the 2021-22 academic year, Hess worked at the Nava school site four days per week. (Hess Depo., at 37:13-22, 38:17-39:3.) There were some days that Hess worked out of Defendants headquarters on South Olive Street in downtown Los Angeles, but, Hess testified, on a particular day she would work out of either the Nava school site or the headquarters; she did not recall every having to go from headquarters to the school, or from the school to headquarters. (Id., at 81:12-82:14.) Defendant does not reimburse Hess for gasoline, mileage, vehicle lease payments. (DSUMF, Nos. 14-15; Hess Depo., at 21:15-22:1.) No one else employed by Defendant has access to or uses Hesss vehicle. (DSUMF, No. 10; Hess Depo., at 35:7-18.) Hess does not use the vehicle to transport co-workers or students. (DSUMF, No. 11; Hess Depo., at 35:16-22.) Defendant did not require Hess to have a vehicle for her work. (DSUMF, Nos. 7-9; Hess Depo., at 77:16-78:4.) At the Nava school site, some of Defendants employees drove to work and some used public transportation. (Id., at 89:14-92:4.) At the time of the accident, Hess was not executing any job duties or responsibilities for her employer. (DSUMF, No. 6; Hess Depo., at 113:19-22.) Subsequent to the accident, beginning in June 2022, Hess became associate director of individual giving on Defendants development team. (Hess Depo., at 11:22-12:1, 18:2-11.) In that new position, Hess sometimes works out of Defendants headquarters, sometimes works remotely, and sometimes conducts visits at one of the 17 schools across Los Angeles in which Defendant operates. (Hess Depo., at 13:15-14:7, 15:8-17:3.) On these undisputed facts, Defendant has met its initial burden of showing that one or more elements of the cause of action against it cannot be established. (Code Civ. Proc., § 437c, subd. (p)(2).) Defendant has shown, on this record, that there is no merit in any attempt to hold it liable under a theory of respondeat superior, as Hess was commuting at the time of the accident, and none of the exceptions to the coming and going rule applies: at the time of the accident, Hess was not performing a special errand for Defendant, Defendant was not paid for her commuting time, Defendant was not obtaining some incidental benefit, and Defendant neither furnished the vehicle to Plaintiff nor required Plaintiff to have a vehicle for work-related transportation. To the contrary, Plaintiff was engaged in an ordinary commute. Once a defendant has met its initial burden on a motion for summary judgment, the burden then shifts to plaintiff to show that there is a triable issue of one or more material facts. (Code Civ. Proc., § 437c, subd. (p)(2).) Plaintiff has not done so. At most, Plaintiff cites evidence about Hesss current work assignment, and her potential need for transportation to fulfill her current job responsibilities as an associate director of individual giving. But Hess did not begin to work in that assignment until June 2022, approximately six months after the accident. At the time of accident, in contrast, the record is clear, and the facts are undisputed, that Hess did not need to have a vehicle to perform her work for Defendant. Accordingly, the summary judgment motion of Defendant is granted. Conclusion The Court GRANTS the motion for summary judgment filed by Defendant City Year, Inc. Moving Party to give notice.
Ruling
ANGEL CONTRERAS VS MARIO LUA, ET AL.
Aug 15, 2024 |Renee C. Reyna |22STCV31603
Case Number: 22STCV31603 Hearing Date: August 15, 2024 Dept: 29 Contreras v. Lua 22STCV31603 Motion to Compel Further Responses to Form Interrogatories (Set Two) Motion to Compel Further Responses to Requests for Production (Set Three) Motion to Compel Further Responses to Requests for Admission (Set One) Tentative The Court DENIES as moot the motions to compel further responses. The Court DENIES the requests for sanctions. Background On September 27, 2022, Angel Contreras (Plaintiff) filed the complaint in this action against Mario Lua (Lua), Numark Transportation, Inc. (Numark), and Does 1 through 25, asserting causes of action for motor vehicle negligence and general negligence arising out of an accident occurring on February 17, 2022, on the 710 Freeway near Washington Boulevard in Commerce. Lua and Numark filed their answers on July 21, 2023, and January 16, 2024. On February 17, 2024, Numark served Plaintiff with discovery, including Form Interrogatories (Set Two), Requests for Production (Set Three), and Requests for Admission (Set One). Plaintiff served response on March 27. Numark contended that the responses were not code compliant and met and conferred. The parties were not able to resolve their disagreements. On June 11 and 13, 2024, Numark filed these three motions, seeking further responses to the discovery and sanctions. Plaintiff filed a combined opposition on August 2, and Numark filed a combined reply on August 8. The parties participated in an Informal Discovery Conference (IDC) on August 1, 2024. At the IDC, counsel reported that all issues other than sanctions have been resolved. Legal Standard On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. (2) An exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate. (3) An objection to an interrogatory is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).) Notice of a motion to compel further responses must be given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing. (Id., subd. (c).) A motion to compel further responses must be accompanied by a meet-and-confer declaration and a separate statement or, in the discretion of the Court, a concise outline of the discovery request and each response in dispute. (Id., subd. (b)(1) & (b)(2); Cal. Rules of Court, rule 3.1345.) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2030.300, subd. (d).) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete. (2) A representation of inability to comply is inadequate, incomplete, or evasive. (3) An objection in the response is without merit or too general. (Code Civ. Proc., § 2031.310, subd. (a).) Notice of a motion to compel further responses must be given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing. (Id., subd. (c).) A motion to compel further responses must set forth specific facts showing good cause for the discovery and must be accompanied by a meet-and-confer declaration and a separate statement or, in the discretion of the Court, a concise outline of the discovery request and each response in dispute. (Id., subd. (b)(1)-(3); Cal. Rules of Court, rule 3.1345.) [T]he court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2031.310, subd. (h).) On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply: (1) An answer to a particular request is evasive or incomplete. (2) An objection to a particular request is without merit or too general. (Code Civ. Proc., § 2033.290, subd. (a).) Notice of a motion to compel further responses must be given within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing. (Id., subd. (c).) A motion to compel further responses must be accompanied by a meet-and-confer declaration and a separate statement or, in the discretion of the Court, a concise outline of the discovery request and each response in dispute. (Id., subd. (b)(1) & (b)(2); Cal. Rules of Court, rule 3.1345.) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response, unless it finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2033.290, subd. (d).) In Chapter 7 of the Civil Discovery Act, Code of Civil Procedure section 2023.030, subdivision (a) provides, in pertinent part, that the court may impose a monetary sanction ordering that any person engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorneys fees, incurred by anyone as a result of that conduct. A misuse of the discovery process includes (among other things) failing to respond or to submit to an authorized method of discovery; making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to a discovery request; disobeying a court order to provide discovery; and making or opposing, unsuccessfully, a motion to compel without substantial justification. (Code Civ. Proc., § 2023.010, subds. (d)-(h).) Discussion The parties reported at the IDC that all issues other than sanctions have been resolved. Accordingly, the motions to compel further responses are denied as moot. The Court denies Numarks requests for sanctions. According to Numarks notices of motions and motions, Numark seeks sanctions under Code of Civil Procedure sections 2023.010; 2023.020; 2023.030; 2023.040; 2023.050; 2030.290, subdivision (c); 2031.010; 2031.310; and 2033.290, subdivision (d). Section 2023.010 defines the term Misuses of the discovery process but does not itself authorize sanctions. Section 2023.020 authorizes sanctions against a party or attorney who fails to confer as required. The Court has reviewed the factual record submitted by the parties and finds that although the parties were not able to resolve the dispute, there was no failure by Plaintiff to meet and confer. Section 2023.030 provides for sanctions [T]o the extent authorized by the chapter governing any particular discovery method or any other provision of this title [the Civil Discovery Act]. It does not itself authorize sanctions. Section 2023.040 sets forth the procedural requirements for a request for sanctions. It does not itself authorize sanctions. Section 2023.050 authorizes a sanction of $1,000 against a party, person, or attorney who (1) does not respond in good faith to a request for production of documents or an inspection demand; or (2) produces requested documents within seven days of a scheduled hearing on a motion to compel; or (3) fails to meet and confer in good faith with a party requesting documents, unless the court finds in writing that the one subject to the sanction acted with substantial justification or other circ*mstances make the imposition of the sanction unjust. The Court has reviewed the factual record submitted by the parties and finds that although the parties were not able to resolve the dispute, there was no failure by Plaintiff to respond in good faith or to meet and confer. Numark does not present any evidence that Plaintiff produced requested documents within seven days of a scheduled hearing. Section 2031.010 does not authorize sanctions. Sections 2030.290, subdivision (c), relates to failure to provide an initial response to interrogatories. To the extent that this is a typographical error, and Numark intended to reference section 2030.300, subdivision (d) sanctions are authorized only against a party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response. Here, the parties resolved their dispute, and as a result the Court is denying the motion as moot. Plaintiff did not unsuccessfully make or oppose a motion to compel. Similarly, section 2031.310, subdivision (h), and section 2033.290, subdivision (d), authorize sanctions only against a party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response. Here, Plaintiff did not unsuccessfully make or oppose a motion to compel. Finally, the Court recognizes that other provisions of the Civil Discovery Act authorize sanctions even when a party has not unsuccessfully made or opposed a motion to compel. (E.g., Code Civ. Proc., §§ 2033.280, subd. (c) & 2025.450, subd. (g)(1).) Where, as here, a party seeks sanctions under sections 2030.300, 2031.310, and 2033.290, however, the Court must apply the statutes as the Legislature has drafted them. Conclusion The Court DENIES as moot the motions to compel further responses. The Court DENIES the requests for sanctions. Moving party to give notice.
Ruling
SARAH EDELMAN VS CITY OF DUARTE, ET AL.
Aug 12, 2024 |23AHCV00258
Case Number: 23AHCV00258 Hearing Date: August 12, 2024 Dept: X Tentative Ruling Judge Joel L. Lofton, Department X HEARING DATE: August 12, 2024 TRIAL DATE: January 21, 2025 CASE: SARAH EDELMAN V. CITY OF DUARTE, ET AL. CASE NO.: 23AHCV00258 MOTION FOR SUMMARY JUDGMENT MOVING PARTIES: Defendant City of Duarte (the City) RESPONDING PARTY: Defendant Charter Communications, Inc. (CCI and also known as Spectrum) (Opposition) Plaintiff Sarah Edelman (Joinder to Opposition) SERVICE: Filed May 6, 2024 OPPOSITION: Filed July 24, 2024 (Spectrum) Filed July 24, 2024 (Edelman) REPLY: Filed August 2, 2024 RELIEF REQUESTED City moves for summary judgment. TENTATIVE RULING The Citys motion for summary judgment is DENIED. BACKGROUND This complaint arises out of Plaintiffs premises liability claim against the City and CCI. The complaint alleges on approximately August 20, 2022, Plaintiff was walking on a sidewalk when she fell through a damaged portion of the sidewalk and suffered severe injury. The damaged portion was part of a communications box. The causes of action include negligence and dangerous condition of public property. The complaint alleges Plaintiff has suffered wage loss, medical expenses, general damage, loss of earning capacity, and interest thereon. LEGAL STANDARD A. Motion for Summary Judgment The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) A party may move for summary judgement in an action or proceeding if it is contented that the action has no merit or that there is no defense to the action or proceeding. (Code of Civil Procedure section 473c subd. (a)(1).) The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code of Civil Procedures section 473c subd. (c).) A three-step analysis is employed in ruling on motions for summary judgment. First, the court identifies the issues framed by the pleadings. Next, the court determines, when the moving party is the defendant, whether it has produced evidence showing one or more of the elements of the cause of action cannot be established or there is a complete defense to that cause of action. If the defendant does so, the burden shifts to the plaintiff to show the existence of a triable issue of material fact as to that cause of action or defense. (Kline v. Turner (2001) 87 Cal.App.4th 1369, 1373.) The court must view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom. (Ibid.; see also Dore v. Arnold Worldwide, Inc. (2006) 39 Cal. 4th 384, 389 [Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.].) A defendant moving for summary judgment must show that one or more elements of the plaintiff's cause of action cannot be established or that there is a complete defense. The defendant can satisfy its burden by presenting evidence that negates an element of the cause of action or evidence that the plaintiff does not possess and cannot reasonably expect to obtain evidence needed to establish an essential element. (Veera v. Banana Republic, LLC, (2016) 6 Cal.App.5th 907, 914.) DISCUSSION The City moves for summary judgment against Plaintiff, asserting there is no triable issue of material fact on Plaintiffs claim against the City. Spectrum opposes. Plaintiff joins Spectrums opposition, and her joinder incorporates Spectrums arguments by reference and contains no substantive arguments of its own. Evidentiary Objections Spectrums Evidentiary Objections to Overstreet Declaration: OVERRULED: 1-5 SUSTAINED: None Spectrums Evidentiary Objections to Sandoval Declaration: OVERRULED: 6-8 SUSTAINED: None Factual Background Plaintiff alleges that she was injured on August 20, 2022, when she fell through a utility vault cover while walking westbound on the north side of the sidewalk on Huntington Drive in Duarte, California. (The Citys Separate Statement of Undisputed Facts (SUF) 1.) Plaintiff concedes that she has no specific timeline for how long the utility vault cover may have been damaged prior to her fall. (SUF 3.) Plaintiff called the City to inform it of her fall, and a City employee contacted the responsible utility provider, Spectrum. (SUF 8-10.) Spectrum confirmed it owned the vault cover and Spectrum had someone repair the vault cover the same day. (SUF 10.) Spectrum admits it owns and controls the utility vault cover. (Spectrums Separate Statement of Disputed Facts (SSDF) 11.) Spectrum disputes that it exclusively controls the subject cover. (SSDF 11.) Analysis Negligence Government Code § 815(a) states that [e]xcept as otherwise provided by statute: [¶] & [a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person. (See also Miklosy v. Regents of Univ. of Cal. (2008) 44 Cal.4th 876, 899.) In other words, Government Code section 815 & abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state Constitution. (Harshbarger v. City of Colton (1988) 197 Cal.App.3d 1335, 1339 [internal grammatical marks and citation omitted].) Thus, [i]n California, all government tort liability must be based on statute. (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457.) Premises Liability An exception to the general rule of section 815(a) is created by Government Code § 835, which provides that a public entity can be liable for injury caused by a dangerous condition of its property. To prove a dangerous condition, Plaintiff is required by Government Code § 835, the relevant jury instruction, and prevailing authority to prove each of the following: 1. That the City owned or controlled the property; 2. That the property was in a dangerous condition at the time of the incident; 3. That the dangerous condition created a reasonably foreseeable risk of the kind of injury that occurred; 4. That negligent or wrongful conduct of the Citys employee acting within the scope of his or her employment created the dangerous condition or that the City had notice of the dangerous condition for a long enough time to have protected against it; 5. That Plaintiff was harmed; and 6. That the dangerous condition was a substantial factor in causing Plaintiffs harm. (Gov. Code § 835; CACI 1100; Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105 (emphasis added).) The Plaintiff need not prove both a negligent act and notice; only one ground is required. (Curtis v. State (1982) 128 Cal.App.3d 668, 693; see Flournoy v. State (1969) 275 Cal.App.2d 806 (court held that both theories of liability may be asserted simultaneously as alternate grounds of liability).) What distinguishes the two grounds in practice is who created the dangerous condition. When the public entity itself created it, the action is usually brought under § 835(a). When the dangerous condition is a result of the acts of third parties, § 835(b) supports the action. (Brown v. Poway Unified Sch. Dist. (1993) 4 Cal.4th 820, 836.) Existence of a Dangerous Condition Government Code § 835 makes a public entity liable for the dangerous condition of its property. Government Code § 830(a) defines dangerous condition as a condition of property that creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used. To establish liability, the plaintiff must prove either that an employee of the public entity negligently created the dangerous condition or that the public entity had notice of it. (Government Code §§ 835(a)-(b).) Negligent or Wrongful Conduct of City Employees The City does not dispute Spectrums evidence that the City maintains certain procedures for the inspection, maintenance, and repair of damaged sidewalks and vault covers in Duarte. (The Citys Response to Spectrums Separate Statement of Undisputed Facts (RSSUF) 7.) The City does not dispute, and therefore admits, that the Citys custom and practice is to conduct inspections of its sidewalks when performing construction work or when notified, and the City will also conduct random inspections of sidewalks within city limits. (RSSUF 8-9.) The City also does not dispute that its protocols require it to report problems with utility vault covers on sidewalks to a service provider like Spectrum for repair. (RSSUF 10.) The City admits it must first approve any project that would cut into the sidewalk or require repairs to the sidewalk before third party work may commence. (RSSUF 12.) Considering that the damaged portion of the sidewalk is where City employees and/or contractors are to conduct inspections when performing construction work, when notified, or at random, Spectrums opposition has successfully shown a triable issue of material fact. Notice of a Dangerous Condition Under Government Code § 835(a), plaintiff is not required to prove that the public entity received either actual or constructive notice of the dangerous condition. The alleged basis of liability against the public entity for a dangerous property condition is the negligent or wrongful creation of the condition. The creation by the public entity of a "dangerous" condition dispenses with the necessity of notice because the entity presumably knows already that it has affirmatively created the condition and thus has notice that it is dangerous. (See Brown v. Poway Unified Sch. Dist. (1993) 4 Cal.4th 820, 833.) As explained in Brown, an entity is liable for a dangerous condition created by a public employee under circ*mstances in which the employee's involvement makes it fair to presume that the entity had notice of the condition. (See id. at 834.) Actual Notice To prove that a public entity received actual notice of a dangerous condition within the meaning of Government Code § 835(b), the plaintiff must show evidence of the following two facts under Government Code § 835.2(a). First, that the public entity "had actual knowledge of the existence of the condition" and second, that the public entity "knew or should have known of its dangerous character." (See Hilts v. County of Solano (1968) 265 Cal.App.2d 161.) Neither Plaintiff nor Spectrum has met either of the two elements because Spectrums opposition does not argue that the City had actual notice. Constructive Notice Government Code § 835.2(b) provides that [a] public entity had constructive notice of a dangerous condition . . . only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. (See Carson v. Facilities Dev. Co. (1984) 36 Cal.3d 830 (constructive notice may be imputed to defendant if it can be shown that obvious danger existed for adequate period of time prior to accident and defendant, by reasonable inspection, should have discovered and remedied the situation); See also Nishihama v. City & County of San Francisco (2001) 93 Cal.App.4th 298.) The Code also declares that when the burden of proof is on the plaintiff, evidence may be adduced about whether (1) the condition and its dangerous character "would have been discovered by an inspection system that was reasonably adequate . . . to inform the public entity" about whether the property was safe for its intended and foreseeable uses (Gov. Code § 835.2(b)(1)), and (2) the entity "maintained and operated such an inspection system with due care and did not discover the condition" (Gov. Code § 835.2(b)(2)). The City nests its argument in its contention that Spectrum cannot prove constructive notice. Spectrum has provided evidence, namely deposition testimony, that the City has an annual concrete repair project, and when the City is notified of a vault cover having an issue, the City will report the issue. (Sandoval Depo. 27:23-29:2; 31:6-17.) It is arguable that the damaged sidewalk condition had existed for such a period of time and was of such an obvious nature that the City should have discovered the condition and its dangerous character in the exercise of due care. Looking at Spectrums evidence in the light most favorable to Spectrum and the Plaintiff, a triable issue of material fact exists whether the City had constructive notice of a dangerous condition. A triable issue of material fact exists of whether the City should have learned of the subject defect if they had been appropriately inspecting the sidewalks in the City for hazards. VII. CONCLUSION The City of Duartes motion for summary judgment is DENIED. Moving Party to give notice. Dated: August 12, 2024 ___________________________________ Joel L. Lofton Judge of the Superior Court
Ruling
FRANCISCO PEREZ SANCHEZ VS KULDEEP SHUKLA, ET AL.
Aug 15, 2024 |20STCV48398
Case Number: 20STCV48398 Hearing Date: August 15, 2024 Dept: 28 Having considered the moving and opposition papers, the Court rules as follows. BACKGROUND On December 18, 2020, Plaintiff Francisco Perez Sanchez (Plaintiff) filed this action against Defendants Kuldeep Shukla (Shukla), Lyft, Inc. (Lyft), and Does 1-50 for negligence, negligent hiring, training, and supervision, and strict products liability. On March 29, 2021, Lyft filed an answer. On May 7, 2021, Shukla filed an answer. On January 25, 2024, the Court granted Lyfts motion for judgment on the pleadings on Plaintiffs third cause of action for strict products liability with 30 days leave to amend. On February 13, 2024, Plaintiff filed a first amended complaint against Shukla, Lyft, and Does 1-50 for negligence, negligent hiring, training, and supervision, and strict products liability pursuant to CPUC 5354. On March 19, 2024, Shukla filed an answer to the first amended complaint. On March 27, 2024, Lyft filed an admission of vicarious liability for Shuklas negligence, if any. On May 30, 2024, the Court sustained Lyfts demurrer to the third cause of action under Public Utilities Code section 5354 in Plaintiffs first amended complaint because the Court did not authorize Plaintiff to add an entirely new cause of action when the Court granted leave to amend the third cause of action in the original complaint. The Court stated that Plaintiff may file a motion to amend the first amended complaint to add a new cause of action. On June 7, 2024, Lyft filed an answer to the first amended complaint. On June 20, 2024, Plaintiff filed a motion for leave to file a second amended complaint including a claim under Public Utilities Code section 5354. The motion was set for hearing on August 1, 2024. On July 23, 2024, Lyft filed an opposition. The Court continued the hearing to August 15, 2024. On August 8, 2024, Plaintiff filed a reply brief, which the Court has not considered. On August 12, 2024, Lyft filed an objection to Plaintiffs reply brief. Trial is currently set for September 16, 2024. PARTIES REQUESTS Plaintiff asks the Court to grant leave to file a second amended complaint which includes a claim against Lyft under Public Utilities Code section 5354. Lyft asks the Court to deny the motion. LEGAL STANDARD The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. (Code Civ. Proc., § 473, subd. (a)(1).) Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order. (Code Civ. Proc., § 576; see Cal. Rules of Court, rule 3.1324.) While a motion to permit an amendment to a pleading to be filed is one addressed to the discretion of the court, the exercise of this discretion must be sound and reasonable and not arbitrary or capricious. [Citations.] And it is a rare case in which a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case. [Citations.] If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion. [Citations.] (Redevelopment Agency v. Herrold (1978) 86 Cal.App.3d 1024, 1031, quoting Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.) [I]t is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 (Kittredge).) Prejudice exists where the amendment would result in a delay of trial, along with loss of critical evidence, added costs of preparation, increased burden of discovery, etc. (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 6:656, p. 6-193 (Cal. Practice Guide).) Ordinarily, the judge will not consider the validity of the proposed amended pleading in deciding whether to grant leave to amend. . . . After leave to amend is granted, the opposing party will have the opportunity to attack the validity of the amended pleading. (Cal. Practice Guide, supra, ¶ 6:644, pp. 6-189 to 6-190.) DISCUSSION A. Plaintiffs factual allegations Plaintiff alleges the following: On December 24, 2018, Plaintiff was a passenger in Shuklas vehicle at or near I-10 westbound (Santa Monica Freeway) to I-110 northbound (Harbor Freeway) in the city of Los Angeles. Defendants negligently, carelessly and unlawfully entrusted, managed, maintained, drove, and operated their vehicle, causing it to collide with yellow attenuator barrels on the left side of the freeway and injuring Plaintiff. B. The original complaints strict products liability claim In Plaintiffs initial complaint filed on December 18, 2020, Plaintiffs third cause of action against Lyft and Doe defendants for Strict Products Liability alleged: · Lyft and Doe defendants designed, manufactured, sold, leased, and/or distributed the LYFT APP and/or user interface, mounting bracket that [Shukla] was required to use as a LYFT driver and which he was using at the time of the collision (Complaint ¶ 29); · The Lyft app was defectively designed because it requires the driver to engage in distracted driving and limits drivers visibility (Complaint ¶¶ 33-34); · The Lyft app failed to perform as safely as the ordinary consumer would expect, or have a right to expect, when using the product in an intended or reasonably foreseeable manner (Complaint ¶ 35); · The risk of injury, damage, harm, and death inherent in the Lyft apps design outweighs the benefit of the design (Complaint ¶ 36); · Lyft and Doe defendants knew, or should have known that the use of the application would require use in such a manner as to violate one and/or more provisions of the California Vehicle Code and create a significant risk of harm of the type suffered by the Plaintiff in this action (Complaint ¶ 32), and · The defective product was a substantial factor in causing Plaintiffs injury (Complaint ¶ 37). C. The first amended complaints claim for strict products liability under Public Utilities Code section 5354 Before the Court sustained Lyfts demurrer, the third cause of action for Strict Products Liability Pursuant to CPUC 5354 in Plaintiffs first amended complaint filed on February 13, 2024 alleged: · Lyft is a Transportation Network Company, charter party passenger carrier, common carrier and holder of California Public Utilities Commission Permit No. TCP0032513 P N and governed by the California Public Utilities Commissions rules and regulation, including CPUC Section 5354 (First Amended Complaint ¶ 29); · Pursuant to the express terms of CPUC Section 5354, the acts and omissions of [Shukla] are the acts and omissions of the Transportation Network Company and Permit Holder, [Lyft], such that the [Lyft] is strictly liable for the acts and omissions of [Shukla] (First Amended Complaint ¶ 30); · Shuklas acts and omissions in causing the subject collision and plaintiffs injuries are legally deemed to be [Lyfts] acts and omissions (First Amended Complaint ¶ 31). D. Plaintiffs motion to file a second amended complaint Plaintiff now seeks leave to file a second amended complaint whose third cause of action, titled Statutory Liability Pursuant To CPUC 5354, essentially incorporates the first amended complaints former third cause of action. According to Plaintiff, the new claim is based on the facts alleged in the previous complaints and presents only a new legal theory. Lyft argues that the proposed new cause of action is moot and unnecessary because Lyft has admitted liability for Shukas conduct. As a result, according to Lyft, allowing the amendment would not further the interests of justice. Lyft also argues that Plaintiffs motion is untimely because Plaintiff filed the original complaint in December 2020 and trial is currently scheduled for September 16, 2024. The Court grants the motion. Lyft has not shown that the amendment has misled it or will prejudice it. 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