Case Number: BC710720 Hearing Date: April 24, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANTS’ MOTIONS TO COMPEL PLAINTIFFS’ RESPONSES TO DISCOVERY AND MONETARY SANCTIONS

On June 18, 2018, Plaintiffs Bianca Bautista, Alexis Sandoval, and Sindi Cardenas (collectively, “Plaintiffs”) filed this action against Defendants Tyler Stuart Albers (“Albers”), AJG, and Arthur J. Gallagher (“Gallagher”) for injuries sustained in a June 20, 2016 automobile accident. Albers and Gallagher (collectively, “Defendants”) move to compel Plaintiffs’ responses to discovery and monetary sanctions. Five motions to compel are set for hearing on April 24, 2019 and four motions to compel are set for hearing on April 25. The Court rules on all nine motions in this order and the April 25 hearing is taken off-calendar.

On September 11, 2018, Albers and Gallagher (collectively, “Defendants”) served Form Interrogatories, Special Interrogatories, and Request for Production of Documents on each Plaintiff. (Declaration of Monique R. Donavan, ¶ 3.) On November 30, 2018, defense counsel sent a meet and confer letter to Plaintiff’s counsel requesting responses to all outstanding discovery by December 14, 2018. (Donavan Decl., ¶ 5.) On December 19, 2018, defense counsel sent another meet and confer letter granting an extension until December 26, 2018. (Donovan Decl., ¶ 6.) On February 6, 2019, defense counsel contacted Plaintiffs’ counsel regarding outstanding discovery. Plaintiffs’ counsel did not take the telephone call and defense counsel left a voicemail message. As of the filing of the motions Plaintiffs’ counsel had not responded to any meet and confer efforts or served responses to discovery. (Donavan Decl., ¶ 7.)

On April 18, 2019, Plaintiffs filed very late opposition to these Motions, stating the discovery responses had been served the previous day. Plaintiffs’ counsel contends they never received the original discovery responses, meet and confer letters, or phone call. Plaintiffs’ counsel says the firm name was spelled incorrectly on the proof of service for the motions.

Because discovery responses have now been served, the Motions to compel Plaintiffs’ responses to form interrogatories, special interrogatories, and requests for production of documents are MOOT.

However, the Court can still grant sanctions. Plaintiffs contend they did not receive the discovery requests or meet and confer letters because their firm name was misspelled. The proofs of service show the same spelling (LAW OFFICES OF D. HESS NPANAH & ASSOCIATES) and address as on Plaintiffs’ complaint. The meet and confer two letters show the same spelling (LAW OFFICES OF D. HESS PANAH & ASSOCIATES) and address as on Plaintiffs’ current pleadings. Given that the address is the same on all of these pleadings and proofs of service, and the misspelling (which copied the spelling on Plaintiff’s complaint) was merely the addition of one letter, it is not credible that none of the discovery requests or letters were delivered to Plaintiffs’ counsel’s office.

The request for monetary sanctions is GRANTED and imposed against Plaintiffs and Plaintiffs’ counsel in the reduced amount of $720.00 (per Plaintiff) for three hours at defense counsel’s hourly rate of $180.00 and $180.00 in filing fees, to be paid within twenty (20) days of the date of this Order.

Moving party to give notice.

18CV335735
SABSE TECHNOLOGIES et al v. YOGESH PATEL et al

Defendants have filed a motion to dismiss based on the forum non conveniens doctrine, claiming the right forum for this lawsuit is India. Plaintiffs disagree.

“In determining whether to grant a motion based on forum non conveniens, a court must first determine whether the alternate forum is a ‘suitable’ place for trial. If it is, the next step is to consider the private interests of the litigants and the interests of the public in retaining the action for trial in California.” (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751 (Stangvik).) The ultimate question is whether the balancing of the Stangvik factors shows that California is a seriously inconvenient forum. (Ford Motor Co. v. Insurance Co. of North America (1995) 35 Cal.App.4th 604, 611.) Defendants, as the moving parties, bear the burden of proof. (Stangvik, supra, 54 Cal.3d at p. 751.)

Is India a Suitable Place for Trial? “ ‘A forum is suitable if there is jurisdiction and no statute of limitations bar to hearing the case on the merits. [Citation.] “[A] forum is suitable where an action ‘can be brought,’ although not necessarily won.” [Citation.]’ [Citations.]” (Roulier v. Cannondale (2002) 101 Cal.App.4th 1180, 1186.)

Defendants are expressly conceding jurisdiction in India and expressly waiving any statute of limitations issues. And as many courts have recognized, India has a robust, fair legal system (despite some delays) and can be a “suitable forum.” Thus, the Court finds that India is a suitable place for trial.

Private Interests of Litigants: “The private interest factors are those that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses.” (Stangvik, supra, 54 Cal.3d at p. 751.)

Here, most of the witnesses are in India. Much of the proof is in India. And just because India may not have discovery rules as liberal as California doesn’t mean plaintiffs can’t obtain most of the evidence they seek. The related lawsuit in India also weighs in favor of India as a forum. Litigating these issues in California would be burdensome for defendants, most of whom reside in India.

Public Interests: “The public interest factors include avoidance of overburdening local courts with congested calendars, protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern, and weighing the competing interests of California and the alternate jurisdiction in the litigation. [Citations.]” (Stangvik, supra, 54 Cal.3d at p. 751.)

In this case, India has more compelling interests than California for this case. India has an incentive to protect its citizens and companies. Since the events at issue primarily occurred in India, a Santa Clara County jury would have little concern for such events. It also is unnecessary to burden a Santa Clara County court with this India-focused dispute.

Conclusion: The Court understands that typically, deference is given to a plaintiff’s choice of forum. But that deference is not absolute, and must yield “if the balance is strongly in favor of the defendant.” (Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1465.) Defendants have carried their burden to show that California is a seriously inconvenient forum. The Court therefore GRANTS the motion to dismiss based on forum non conveniens considerations.

Case Name: Gail Ann Erwin v. City of Milpitas, et al.
Case No.: 17CV311865

I. Background

Plaintiff Gail Ann Erwin (“Plaintiff”) was walking when she tripped and fell on the sidewalk in front of 2391 Cresthaven Street in Milpitas, California. She filed a complaint asserting a single cause of action for premises liability against homeowners Vamsi Tatapudi and Suryakanthi Suravarapu (collectively, “Homeowners”), property manager Realmanage, LLC (“Manager”), and the City of Milpitas (the “City”). Homeowners then filed a cross-complaint against the City and Manager for indemnity and contribution. Currently before the Court is the City’s motion for summary judgment of Plaintiff’s premises-liability action and Homeowners’ cross-action, which is accompanied by a request for judicial notice.

II. Legal Standard

A defendant or cross-defendant may move for summary judgment on the ground an action has no merit. (Code Civ. Proc., § 437c, subd. (a)(1).) The moving party bears the initial burden of proving “a cause of action has no merit [by] show[ing] that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) To carry this burden, the moving party must present supporting evidence, such as “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).)

“Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant 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).) “The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

Ultimately, “[t]he 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 Civ. Proc., § 437c, subd. (c).)

III. Request for Judicial Notice

The City requests judicial notice of “the fact that” Plaintiff filed a complaint containing a single cause of action for premises liability and Homeowners filed a cross-complaint for indemnity and contribution. (Req. for Jud. Not. at p. 2:12–17.) A court may take judicial notice of court records pursuant to Evidence Code section 452, subdivision (d). With that said, the Court necessarily must consider the pleadings because they frame the issues for the purpose of the motion for summary judgment. (Van v. Target Corp. (2007) 155 Cal.App.4th 1375, 1382.) Because the Court necessarily must consider the pleadings and the fact of the claims asserted therein, judicial notice of those matters is unnecessary. (See Paul v. Patton (2015) 235 Cal.App.4th 1088, 1091, fn. 1.) Consequently, the City’s request for judicial notice is DENIED.

IV. Merits of Motion

A. Plaintiff’s Premises-Liability Action

Premises liability is simply a species of negligence. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529–30.) Government Code section 835 establishes the circumstances when a public entity may be held liable for injuries resulting from a dangerous condition on its premises. (Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105.) Under that statute, the public entity may be held liable “if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, [and] that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred….” (Gov. Code, § 835.) Additionally, a plaintiff must establish “either: (a) [a] negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) [t]he public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Gov. Code, § 835, subds. (a)–(b).)

The City argues Plaintiff cannot establish the prerequisites for liability under Government Code section 835 because it did not create the dangerous condition on the public sidewalk and did not have notice of the condition. In opposition, Plaintiff does not address this first argument and states the sole issue raised by the City is whether it had notice of the sidewalk variance.

Turning to the City’s first supporting argument—which appears to be based on Government Code section 835, subdivision (a)—it states (without more) it “neither constructed the sidewalk nor created the variance.” (Mem. of Pts. & Auth. at p. 9:1.) In support, it seems to rely on the undisputed testimony of Tony Ndah, Director of Public Works, who states “the City did not build or construct the sidewalk at issue….” (Ndah Decl., ¶ 3.) Although Plaintiff does not dispute this fact or address this argument, the Court observes the testimony presented solely establishes the City did not construct the sidewalk and does not necessarily establish the variance, which might have arisen after the sidewalk was first constructed, is not attributable to the City. And so, the evidence does not substantiate the entirety of the City’s argument.

As for whether the City had notice, it is undisputed that the City did not have actual notice. (See Gov. Code, § 835.2, subd. (a).) The undisputed evidence shows it does not regularly inspect its sidewalks and never received any complaint about a defect in the sidewalk at issue. (Sep. Stat., ¶¶ 4, 7–8, 13–16, citing Ndah Decl., ¶¶ 6–8, Murray Decl., Ex. 5, Ndah Dep. at p. 28:12–24.) Nevertheless, the parties dispute whether the City had constructive notice of the sidewalk variance.

Under Government Code section 835.2, subdivision (b), a public entity has 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.” Admissible evidence pertinent to the issue of due care may include:

(1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property.
(2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.

(Gov. Code, § 835.2, subds. (b)(1)–(2); see also Nishihama v. City & County of San Francisco (2001) 93 Cal.App.4th 298, 303–04.)

The City’s showing relative to the issue of constructive notice is inadequate. It does not analyze the criteria in Government Code section 835.2 or provide a clear explanation of its position. It reiterates that it did not receive complaints about the variance and states “[t]here is no evidence whatsoever that the City had ‘constructive notice’….” (Mem. of Pts. & Auth. at p. 10:5–11.) But as the moving party, the City must do more than simply point out the absence of evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854–55.) Additionally, the absence of complaints does not clearly and directly negate the criteria for constructive notice set forth above, particularly in the absence of analysis and authority. The City does not otherwise present evidence showing or even argue that the variance arose too recently or could not have been discovered through the exercise of due care. Thus, the City does not carry its initial burden of showing Plaintiff cannot establish it had constructive notice of the sidewalk variance.

In reaching this conclusion, the Court does not consider the points the City unfairly raises for the first time in its reply. (See Tellez v. Rich Voss Trucking Inc. (2015) 240 Cal.App.4th 1052, 1066.) The City asserts Plaintiff fails to address the obviousness of the defect for the purpose of raising a triable issue of material fact on the subject of constructive notice. But the City’s initial showing is insufficient in the first instance and does not put in issue the obviousness of the defect. And so, this argument is not well-taken. The City also asserts it exercised due care and had no duty to inspect sidewalks. As discussed above, the City entirely neglected to discuss these concepts from Government Code section 835.2 in its memorandum of points and authorities. Thus, Plaintiff has not had an opportunity to respond to these arguments. And, in any event, the City’s discussion of its duty to inspect is underdeveloped and lacks evidentiary support. Accordingly, the Court does not reach a contrary conclusion based on the points in the City’s reply.

B. Homeowners’ Cross-Action for Indemnity and Contribution

The City also moves for summary judgment of Homeowners’ cross-action. Its supporting analysis consists of an assertion that the claims in the cross-complaint are derivative of Plaintiff’s claim and the conclusion that “[i]mmunity is immunity.” (Mem. of Pts. & Auth. at p. 10:14–18.) It is insufficient to merely assert a point without providing authority and analysis in support. (People v. Dougherty (1982) 138 Cal.App.3d 278, 282; see also Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–85.) Thus, this conclusory presentation is wholly inadequate to establish the City is not required to indemnify or contribute sums to Homeowners. Moreover, the Court has not concluded the City is immune from liability. Accordingly, the City fails to carry its initial burden of demonstrating Homeowners’ cross-action lacks merit.

C. Conclusion

For the reasons set forth above, the City does not carry its initial burden of demonstrating Plaintiff’s action and Homeowners’ cross-action lack merit. Consequently, the motion for summary judgment is DENIED.

The Court will prepare the order.

Case Name: Kenneth King v. Palo Alto Networks, Inc., et al.

Case No.: 17CV311008

(1) Palo Alto Networks, Inc.’s Motion for Summary Adjudication [against cross-defendant Lifeworks Restaurant Group, LLC]
(2)
(3) Palo Alto Networks, Inc.’s Motion for Summary Adjudication [against cross-defendant Brilliant General Maintenance, Inc.]
(4)

Factual and Procedural Background

On June 15, 2015, plaintiff Kenneth King (“King”) was in the course and scope of his employment with Fresh Point and was delivering produce to defendant Palo Alto Networks, Inc. (“PAN”) located at 4401 Great America Parkway in Santa Clara; and was walking toward the walk-in cooler in the kitchen when he slipped and fell on grease. (Complaint, ¶¶Prem.L-1 and GN-1.) Defendant PAN owned and controlled the property where plaintiff King fell. (Id.) Defendant PAN was aware or should have been aware of the condition of the floor and that it created a risk of harm. (Id.)

Plaintiff King is informed and believes defendants Aramark Services, Inc. (erroneously sued as Lifework Restaurant Group, LLC; hereafter, “Aramark”) and Brilliant General Maintenance, Inc. (“BGM”) provide routine and deep cleaning services at PAN. (Complaint, ¶GN-1.) Defendants had actual notice of grease on the floor. (Id.) Defendants created the dangerous condition and failed to use reasonable care to warn plaintiff King and others of the dangerous condition. (Id.) Defendants failed to provide a safe work environment for plaintiff King and others. (Id.)

On May 26, 2017, plaintiff King filed a Judicial Council form complaint against defendants PAN, Aramark, and BGM asserting causes of action for (1) Premises Liability; and (2) General Negligence.

On August 15, 2017, defendant PAN filed an answer to plaintiff King’s complaint and also filed a cross-complaint against BGM and Aramark asserting cross-claims for (1) comparative negligence; (2) equitable indemnity; (3) implied contractual indemnity; (4) express contractual indemnity; (5) apportionment of fault; and (6) declaratory relief.

On January 18, 2019, PAN filed the first of two motions now before the court, a motion for summary adjudication of the fourth cause of action of its’s cross-complaint against cross-defendant BGM.

On February 11, 2019, PAN filed the second of two motions now before the court, a motion for summary adjudication of the fourth cause of action of its’s cross-complaint against cross-defendant Aramark.

I. Cross-complainant PAN’s motion for summary judgment of the fourth cause of action of its cross-complaint [express contractual indemnity] against cross-defendant Aramark is DENIED.
II.

“The elements of a cause of action for indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is contractually or equitably responsible.” (Expressions at Rancho Niguel Ass’n v. Ahmanson Developments, Inc. (2001) 86 Cal.App.4th 1135, 1139.) “Indemnity may rest on a contract, express or implied, on a law, or on equitable principles of shifting the burden of the liability.” (5 Witkin, California Procedure (4th ed. 1997) Pleading, §879, p. 337.) “An indemnitee seeking to recover on an agreement for indemnification must allege the parties’ contractual relationship, the indemnitee’s performance of that portion of the contract which gives rise to the indemnification claim, the facts showing a loss within the meaning of the parties’ indemnification agreement, and the amount of damages sustained.” (Four Star Electric, Inc. v. F & H Construction (1992) 7 Cal.App.4th 1375, 1380 (Four Star).)

“For purposes of motions for summary judgment and summary adjudication: (1) A plaintiff or cross-complainant has met his or her burden of showing 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).) Since PAN seeks summary adjudication of its cross-complaint, PAN bears the initial burden of proving each element of its cause of action for express contractual indemnity. As PAN itself argues, PAN’s cross-complaint as to LifeWorks is based upon the clear terms of the Food Services Management Agreement between PAN and Aramark Corporation, through its LifeWorks division.

PAN proffers evidence of its contractual relationship with Aramark: On January 31, 2014, PAN and LifeWorks executed between themselves the Agreement relation to PAN’s premises at 4401 Great America Parkway, Santa Clara, California 95054 (“PAN’s Premises”). Under the Agreement, PAN granted to LifeWorks “the exclusive right to provide cafeteria, and coffee bar services on [PAN’s] ground-floor cafeteria located at [PAN’s Premises]” from January 6, 2014, through January 5, 2019. The Agreement included provisions for cleaning responsibilities in the kitchen of PAN’s Premises for both LifeWorks and PAN.

For cleaning responsibilities for LifeWorks, the Agreement provides:

A. LifeWorks’ Responsibilities: LifeWorks shall maintain high standards of sanitation (at a minimum, in compliance with applicable health and safety regulations) and shall be responsible for routine cleaning and housekeeping in the food preparation and service areas (including food service equipment, kitchen floors, hoods and grease filters) and for the routine cleaning of cafeteria tables and chairs.
B.

For cleaning responsibilities for PAN, the Agreement provides:

C. [PAN’s] Responsibilities: [PAN], at its cost, shall provide regular cleaning service for cafeteria walls, windows, floors, light fixtures, draperies and blinds, and periodic waxing and buffing of floors. In addition, [PAN] shall be responsible for routine cleaning of all grease traps, duct work, plenum chambers and roof fans. [PAN] shall be responsible for trash and garbage removal and extermination service.
D.

In order to perform its cleaning duties under the Agreement, PAN contracted with BGM to perform the duties assigned to PAN under the Agreement with LifeWorks. Under the Professional Services Agreement executed between PAN and BGM on May 28, 2014, (“BGM Agreement”), BGM undertook to provide janitorial services for the PAN Premises. Included with the janitorial services to be provided by BGM was monthly deep cleaning of the cafeteria kitchen floor.

Section 12 of the Agreement between PAN and LifeWorks includes an indemnity provision:

Each party will indemnify and hold the other party and its affiliates, and their respective directors, officers and employees, harmless from any third party claim, action, suit, or other proceeding, and any damages, cost, expense or other liability (including reasonable attorneys’ fees and court costs) for bodily injury, death or property damage caused by the negligent acts or omissions of the indemnifying party arising out of the performance of the Agreement, provided, however, that this Section will not apply to the extent that the occurrence for which the party seeking indemnification hereunder was caused by such party’s sole negligence or other tortious conduct.

Under Four Star, supra, PAN (indemnitee) must establish its own performance. It is not clear that PAN has done so here in moving for summary adjudication. Regardless, the next element of a claim for indemnity under Four Star is “facts showing a loss within the meaning of the parties’ indemnification agreement.” Here, the indemnifying language states each party will indemnify the other “for bodily injury, death or property damage caused by the negligent acts or omissions of the indemnifying party….” Thus, in order to come within the meaning of the agreement, PAN must demonstrate plaintiff King’s injury was caused by the negligent acts or omissions of Aramark. Here, PAN contends liability for plaintiff King’s injury lies with either Aramark or BGM who were under contractual obligations to maintain the kitchen/ cafeteria floor where the incident occurred, but PAN has not provided any evidence that plaintiff King’s injuries were caused by either Aramark or BGM. PAN has not met its initial burden. [Four Star also requires evidence of the damages sustained by PAN, but PAN has not provided any admissible evidence of damages.]

Within its memorandum of points and authorities, PAN apparently argues Aramark has a duty to defend PAN against plaintiff King’s claims. Initially, PAN’s notice of motion for summary adjudication seeks to adjudicate the fourth cause of action of its cross-complaint. While Code of Civil Procedure section 437c, subdivision (f) allows a party to move for summary adjudication of an issue of duty, PAN has not sought this specific form of relief. Moreover, PAN relies on Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541 (Crawford) in support of this contention. Crawford is distinguishable. In Crawford, a group of homeowners commenced a construction defect action against the home developer, JM Peters Co. (“JMP”), and the window subcontractor, Weather Shield Mfg., Inc. (“Weather Shield”). JMP cross-complained against Weather Shield for fees and costs incurred in defending the homeowners’ claims. The trial court ruled Weather Shield had to reimburse JMP’s expenses for defending. The appellate court affirmed and so did the California Supreme Court.

We focus on the particular language of the subcontract. Its relevant terms imposed two distinct obligations on Weather Shield. First, Weather Shield agreed “to indemnify and save [JMP] harmless against all claims for damages to persons or to property and claims for loss, damage and/or theft … growing out of the execution of [Weather Shield’s] work.” Second, Weather Shield made a separate and specific promise “at [its] own expense to defend any suit or action brought against [JMP] founded upon the claim of such damage … loss … or theft.”

(Crawford, supra, 44 Cal.4th at p. 553; emphasis added.)

“A contractual promise to ‘defend’ another against specified claims clearly connotes an obligation of active responsibility, from the outset, for the promisee’s defense against such claims. The duty promised is to render, or fund, the service of providing a defense on the promisee’s behalf—a duty that necessarily arises as soon as such claims are made against the promisee, and may continue until they have been resolved.” (Id. at pp. 553 – 554.) “A duty to defend another, stated in that way, is thus different from a duty expressed simply as an obligation to pay another, after the fact, for defense costs the other has incurred in defending itself.” (Id. at p. 554.) Here, the Agreement between PAN and Aramark does not include a separate and specific promise to defend.

For the above stated reasons, cross-complainant PAN’s motion for summary adjudication of the fourth cause of action of its cross-complaint against cross-defendant Aramark is DENIED.

III. Cross-complainant PAN’s motion for summary judgment of the fourth cause of action of its cross-complaint [express contractual indemnity] against cross-defendant BGM is DENIED.
IV.

In moving for summary adjudication of its express contractual indemnity claim against cross-defendant BGM, PAN begins by proffering evidence of its contractual relationship with BGM: On January 31, 2014, PAN and LifeWorks executed between themselves the Agreement relation to PAN’s premises at 4401 Great America Parkway, Santa Clara, California 95054 (“PAN’s Premises”). Under the Agreement, PAN granted to LifeWorks “the exclusive right to provide cafeteria, and coffee bar services on [PAN’s] ground-floor cafeteria located at [PAN’s Premises]” from January 6, 2014, through January 5, 2019. LifeWorks was to perform routine daily cleaning of the kitchen floor at PAN’s Premises under the LifeWorks Agreement. Under the LifeWorks Agreement, PAN retained certain cleaning duties in the kitchen of PAN’s Premises. Under the LifeWorks Agreement, PAN was to provide regular cleaning service for cafeteria walls, floors, light fixtures, draperies and blinds, and periodic waxing and buffing of floors.

In order to perform its cleaning duties under the LifeWorks Agreement, PAN contracted with BGM to perform the duties assigned to PAN. On May 28, 2014, PAN and BGM executed between themselves the BGM Agreement relating to PAN’s Premises. The BGM Agreement includes cleaning responsibilities in the kitchen of PAN’s Premises and included monthly deep cleaning of the kitchen floor. Deep cleaning was intended to include cleaning the grout work, drainage, and everything on the flooring of the kitchen. De-greasing the floors was also intended to be a party of BGM’s monthly deep cleaning. BGM performed its deep cleaning of the kitchen floor on the first Saturday of the month.

The BGM Agreement includes a provision relating to indemnification:

Supplier (BGM) agrees to indemnify, defend and hold harmless Palo Alto Networks, its subsidiaries, officers, directors, agents, successors and assigns, at its expense, from any and all claims, actions, damages, liabilities, costs and expenses, including reasonable attorneys’ fees and expenses, arising from or related to: … (e) any injury to any person (including contractor or its employees), damage to or loss of property, or any other claim arising out of or resulting from any act or omission of Supplier, its employees, agents or subcontractors in connection with or arising out of the performance of this Agreement… .

Under Four Star, supra, PAN (indemnitee) must establish its own performance. Again, it is not clear that PAN has done so here in moving for summary adjudication. Regardless, the next element of a claim for indemnity under Four Star is “facts showing a loss within the meaning of the parties’ indemnification agreement.” Here, the indemnifying language states BGM will indemnify PAN “for any and all claims … arising from or related to any injury to any person … arising out of or resulting from any act or omission of [BGM] … in connection with or arising out of the performance of this Agreement.” Thus, in order to come within the meaning of the agreement, PAN must demonstrate plaintiff King’s injury arose out of or resulted from any act or omission of BGM. Here, PAN contends liability for plaintiff King’s injury lies with either Aramark or BGM who were under contractual obligations to maintain the kitchen/ cafeteria floor where the incident occurred, but PAN has not provided any evidence that plaintiff King’s injuries were caused by either Aramark or BGM. PAN has not met its initial burden. [Four Star also requires evidence of the damages sustained by PAN, but PAN has not provided any admissible evidence of damages.]

PAN also argues BGM has a duty to defend PAN against plaintiff King’s claims. However, just as with PAN’s motion for summary adjudication against Aramark, PAN’s notice of motion for summary adjudication against BGM seeks to adjudicate the fourth cause of action of its cross-complaint in its entirety and does not specifically seek adjudication of an issue of duty. Thus, the court need not decide whether BGM had a duty to defend.

For the above stated reasons, cross-complainant PAN’s motion for summary adjudication of the fourth cause of action of its cross-complaint against cross-defendant BGM is DENIED.

Case Number: BC701775 Hearing Date: April 26, 2019 Dept: 4A

Motion for Terminating Sanctions

The court considered the moving papers. No opposition was filed.

BACKGROUND

On April 12, 2018, in BC701775, plaintiff Doris Tse (“Plaintiff”) filed a complaint against defendant USC Norris Cancer Hospital (“Defendant”) for medical malpractice based on a failure to diagnose.

On April 12, 2018, in BC701776, Plaintiff filed a complaint against Dr. Heather MacDonald.

On June 14, 2018, the cases were deemed related. No consolidation of these cases was ever ordered, as discussed in the ruling issued concurrently herewith in BC701776.

Trial is set for October 15, 2019.

PARTY’S REQUEST

Defendant requests the court for an order imposing a terminating sanction against Plaintiff for willfully disobeying a November 20, 2018 court order compelling Plaintiff to serve verified responses, without objections, to: (1) Defendant’s Form Interrogatories (Set One), (2) Special Interrogatories (Set One), and (3) Request for Production of Documents (Set One).

LEGAL STANDARD

The court may impose monetary, issue, evidence, or terminating sanctions if a party fails to comply with a court order compelling a response to interrogatories or a demand for inspection, copying, testing, or sampling. (Code Civ. Proc. §§ 2030.290, subd. (c), 2031.300, subd. (c).) California Code of Civil Procedure section 2023.030 provides that, “[t]o the extent authorized by the chapter governing any particular discovery method . . . , the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . . .” California Code of Civil Procedure section 2023.010 provides that “[m]isuses of the discovery process include, but are not limited to, the following: . . . (g) Disobeying a court order to provide discovery. . . .”

“The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390 (quoting Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246).) “Generally, ‘[a] decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.’” (Los Defensores, supra, 223 Cal.App.4th at p. 390 (citation omitted).)

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” (Los Defensores, supra, 223 Cal.App.4th at p. 390 (citing Lang, supra, 77 Cal. App. 4th at 1244-1246 (discussing cases)); see e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617-1622 (terminating sanctions imposed after defendants failed to comply with one court order to produce discovery); Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 491, disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, n. 4 (terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes).

ANALYSIS

On November 20, 2018, the court granted Defendant’s motion to compel Plaintiff’s responses to Form Interrogatories, Special Interrogatories, and Request for Production of Documents (All Set One) within twenty days of the order. (Yarvis Decl., ¶ 3, Exh. A.) Defendant extended Plaintiff’s deadline to provide the outstanding discovery responses until January 31, 2019. (Yarvis Decl., ¶ 4.) Defendant had not received the outstanding discovery responses as of the signing of Matthew A. Yarvis’ declaration on February 19, 2019. (Yarvis Decl., ¶ 6.)

Whether Plaintiff complied with the court’s order to pay monetary sanctions is not relevant to the court’s determination as to whether terminating sanctions¿should be imposed, and the court has not considered that factor in making its determination. A court may not issue a terminating sanction for failure to pay a monetary discovery sanction. ¿(Newland v. Superior Court (1995) 40 Cal.App.4th 608, 610, 615.)¿ A monetary sanction order is enforceable as a money judgment under the Enforcement of Judgments Law, California Code of Civil Procedure sections 680.010, et seq. (Id. at p. 615.)

The court finds that Plaintiff has engaged in conduct that is a misuse of the discovery process by disobeying the court’s November 20, 2018 order to serve verified discovery responses without objections. (Code of Civ. Proc. §§ 2023.010, subd. (g); 2023.030.) Thus, the court finds that it is appropriate, and exercises its discretion, to impose a terminating sanction against Plaintiff pursuant to California Code of Civil Procedure section 2023.030, subd. (d).)

The motion is GRANTED.

The court orders that Plaintiff’s complaint is dismissed as to Defendant USC Norris Cancer Hospital.

Defendant USC Norris Cancer Hospital is ordered to give notice of this ruling.

Case Number: BC705251 Hearing Date: April 26, 2019 Dept: 4A

Motions to Compel Responses to Special Interrogatories (Set One) and Request or Production of Documents (Set One)

The court considered the moving papers. No opposition was filed.

BACKGROUND

On May 7, 2018, plaintiff Karen Yeates (“Plaintiff”) filed a complaint against defendants South Lake Avenue Investors LLC and South Lake Avenue, LLC alleging negligence and premises liability for a trip-and-fall that occurred on March 17, 2018.

Trial is set for November 7, 2019.

PARTY’S REQUESTS

Defendant South Lake Avenue Investors, LLC (“Moving Defendant”) requests this court for an order compelling Plaintiff to respond to Moving Defendant’s Special Interrogatories (Set One) and Request for Production of Documents (Set One).

Moving Defendant also requests this court for an order compelling Plaintiff to pay Moving Defendant’s counsel a total of $3,720.00 in monetary sanctions for bringing both of these motions, consisting of $1,860.00 for bringing each motion.

LEGAL STANDARD

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. (Code Civ. Proc. §§ 2030.290, subd. (b), 2031. 300, subd. (b).) The statute contains no time limit for a motion to compel where no responses have been served. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.)

Under California Code of Civil Procedure section 2023.030, subd. (a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process. (Code of Civ. Proc. § 2023.010.)

Sanctions are mandatory in connection with motions to compel responses to interrogatories against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. § 2030.290, subd. (c).)

California Rules of Court, rule 3.1348, subdivision (a) states: “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

California Code of Civil Procedure section 1005, subdivision (b), requires that motions and supporting documents be filed at least sixteen court days before the hearing.¿ California Code of Civil Procedure section 1005, subdivision (b), requires that a motion be served five additional days before the hearing if service is made by mail within California and the recipient’s address is within California.¿

DISCUSSION

Notices of Errata

The court finds that the two notices of errata regarding Meena C. Nachiappan’s declarations pertaining to both the motion to compel Plaintiff’s responses to Special Interrogatories and Request for Production of Documents (Both Set One) are untimely. Both of these notices were filed and served by U.S. mail on April 11, 2019. This left only eleven court days between the filing and service of these notices and the hearings on the motions that the notices support. As such, these notices are untimely and the court does not consider them.

Motions to Compel

On August 8, 2018, Moving Defendant propounded Special Interrogatories and Request for Production of Documents (Both Set One) to Plaintiff. (Both of Meena C. Nachiappan’s Declarations (“Nachiappan Decl.”), ¶ 2, Exh. A.) Moving Defendant agreed to extend Plaintiff’s deadline to provide responses to Form Interrogatories (Set One) on five separate occasions. (Nachiappan Decl., ¶¶ 4-6, 9, 13, Exh. B-D, E.) Plaintiff’s ultimate deadline to provide responses to Special Interrogatories and Request for Production of Documents (Both Set One) was January 28, 2019. (Nachiappan Decl., ¶ 14, Exh. F.) Moving Defendant did not receive Plaintiff’s responses as of time Meena C. Nachiappan signed the operative declarations on February 20, 2019. (Nachiappan Decl., ¶ 16.)

Moving Defendant’s motions are GRANTED.

Moving Defendant request sanctions against Plaintiff in the total amount of $3,720.00, consisting of $1,860.00 for bringing each motion. (Motions, pp. 3-4.) Moving Defendant failed to declare how this total is calculated in the declarations attached to the motions. As indicated above, the court does not consider the notices of errata that: (1) stated that Moving Defendant omitted this calculation and (2) provided this calculation. Nevertheless, the court finds monetary sanctions in the amount of $120.00 as reasonable to be imposed against Plaintiff and Plaintiff’s counsel of record for the two filing fees Moving Defendant incurred in bringing these motions.

The court orders Plaintiff to serve a verified response, without objections, to Moving Defendants Special Interrogatories and Request for Production of Documents (Both Set One) within 30 days of this order.

The court also orders Plaintiff and Plaintiff’s counsel of record to pay Moving Defendant $120.00 within 30 days of this order.

Moving Defendant is ordered to give notice of this ruling.

Case Number: BC628844 Hearing Date: April 26, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANT’S MOTIONS FOR TERMINATING SANCTIONS

On August 1, 2016, Plaintiff Titus Stubblefield (“Plaintiff”) filed this action against Defendant Priscilla Phipps (“Defendant’) for personal injuries sustained in a July 31, 2014 automobile accident. On December 3, 2018, the Court granted Defendant’s Motion to Compel Plaintiff’s responses to form interrogatories, demand for inspection, and special interrogatories. Plaintiff was ordered to respond and to pay monetary sanctions within twenty (20) days. That same day, Defendant served a Notice of Ruling. To date, Plaintiff has failed to comply with the Court’s Order.

Where a party fails to obey an order compelling answers to discovery, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.” (Code Civ. Proc., §§ 2030.290, subd. (c), 2023.010, subd. (c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495.) The Court may impose a terminating sanction against anyone engaging in conduct that is a misuse of the discovery process. (Code Civ. Proc., § 2023.030, subd. (d).) Misuse of the discovery process includes failure to respond to an authorized method of discovery or disobeying a court order to provide discovery. (Code Civ. Proc., § 2023.010, subds. (d), (g).) A terminating sanction may be imposed by an order dismissing part or all of the action. (Code Civ. Proc., § 2023.030, subd. (d)(3).)

The court should consider the totality of the circumstances, including conduct of the party to determine if the actions were willful, the determent to the propounding party, and the number of formal and informal attempts to obtain discovery. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.) If a lesser sanction fails to curb abuse, a greater sanction is warranted. (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.) However, “the unsuccessful imposition of a lesser sanction is not an absolute prerequisite to the utilization of the ultimate sanction.” (Deyo v. Killbourne (1978) 84 Cal.App.3d 771, 787.) Terminating sanctions should not be ordered lightly, but are justified where a violation is willful, preceded by a history of abuse, and there is evidence that less severe sanctions would not produce compliance with the discovery rules. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)

Before any sanctions may be imposed the court must make an express finding that there has been a willful failure of the party to serve the required answers. (Fairfield v. Superior Court for Los Angeles County (1966) 246 Cal.App.2d 113, 118.) Lack of diligence may be deemed willful where the party understood its obligation, had the ability to comply, and failed to comply. (Deyo, supra, 84 Cal.App.3d at p. 787; Fred Howland Co. v. Superior Court of Los Angeles County (1966) 244 Cal.App.2d 605, 610-611.) The party who failed to comply with discovery obligations has the burden of showing that the failure was not willful. (Deyo, supra, 84 Cal.App.3d at p. 788; Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250; Evid. Code, §§ 500, 605.)

Plaintiff filed no opposition to this Motion and it is undisputed he failed to served responses to discovery, failed to pay monetary sanctions, and disobeyed a Court Order to do so. Defendant served a Notice of Ruling on Plaintiff. Therefore, the Court concludes Plaintiff knew of his discovery obligations, knew of the Court Order compelling his compliance, and failed to show his noncompliance was not willful. Given Plaintiff’s prior failures to comply with discovery obligations, failures to meet and confer with defense counsel, and apparent disinterest in prosecuting this action, the Court finds lesser sanctions would not curb the abuse.

Accordingly, Defendant’s Motion for terminating sanctions is GRANTED and Plaintiff’s action is hereby dismissed.

Moving party to give notice.

Rodrigo Isidro De jesus, et al. v. California Highway Patrol, et al.
Case No: 19CV00049
Hearing Date: Mon Apr 29, 2019 9:30

Nature of Proceedings: Demurrer

Rodrigo Isidro De Jesus, et al., v. California Highway Patrol, et al., #19CV00049, Judge Sterne

Hearing Date: April 29, 2019

Matter: Demurrer

Attorneys:

For Plaintiff: Garrett May (The May Firm – San Luis Obispo)

For Defendants: Paul F. Arentz, Deputy AG

Tentative Ruling: The court overrules defendant Felipe Amalio Hernandez’s demurrer to the complaint in this case.

Complaint: On January 4, 2019, plaintiffs Rodrigo Isidro De Jesus and Gregoria Julita Garcia-Osorio filed their complaint against defendants California Highway Patrol (CHP), State of California (State), and Felipe Amalio Hernandez. As relevant here, plaintiffs allege:

Defendant Hernandez operated a vehicle owned by CHP and State in the course and scope of his employment. [¶¶19, 20] On May 1, 2018, Hernandez operated the vehicle in a negligent manner, causing a series of collisions involving five vehicles, including plaintiffs’ vehicle. [¶27]

CHP’s Coastal Division Multidisciplinary Accident Investigation Team (“MAIT”) investigated the incident. MAIT concluded that “[Hernandez] caused this collision by driving at an unsafe speed. Although operating under the exemptions of [Veh. Code] §21055, he had the responsibility to drive with due regard for the safety of those around him. The fact the collision occurred as a result of traffic stopped from a freeway closure on the other side of a blind curve is not insignificant; however, [Veh. Code] § 21056 requires emergency vehicles to operate with due regard—certainly with the possibility of a traffic obstruction on the other side of a blind curve—which [Hernandez] failed to accomplish.” [¶28]

The causes of action are negligence and negligence per se. On March 27, State, by and through CHP, answered the complaint.

Demurrer: Defendant Hernandez demurs to the complaint on the ground that plaintiffs fail to state facts sufficient to constitute negligence because that action against him is barred by Veh. Code § 17004. Plaintiffs oppose the demurrer.

The court treats “the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law”; considers “matters which may be judicially noticed”; and gives “the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” Evans v. City of Berkeley, 38 Cal.4th 1, 6 (2006) [internal quotation marks and citations omitted]. The court also considers the reasonable inferences that may be drawn from the properly pleaded material facts. Reynolds v. Bement, 36 Cal.4th 1075, 1083 (2005).

“A demurrer tests only the sufficiency of the pleading and lies only where the defect appears on the face of the pleading or from matters judicially noticed by the court.” Fiorito v. Superior Court, 226 Cal.App.3d 433, 437 (1990). Questions of fact requiring the consideration and weighing of evidence are unsuitable for resolution on demurrer. M.F. v. Pacific Pearl Hotel Mgmt LLC, 16 Cal.App.5th 693, 703 (2017).

Veh. Code § 17004 provides: “A public employee is not liable for civil damages on account of personal injury to or death of any person or damage to property resulting from the operation, in the line of duty, of an authorized emergency vehicle while responding to an emergency call or when in the immediate pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire alarm or other emergency call.”

MAIT stated that Hernandez caused the collision by driving at an unsafe speed and that he was operating under the exemptions of Veh. Code §21055. Veh. Code § 21055 provides that the driver of an authorized emergency vehicle is exempt from various Vehicle Code provisions “[i]f the vehicle is being driven in response to an emergency call or while engaged in rescue operations or is being used in the immediate pursuit of an actual or suspected violator of the law” and “[i]f the driver of the vehicle sounds a siren as may be reasonably necessary and the vehicle displays a lighted red lamp visible from the front as a warning to other drivers and pedestrians.”

Plaintiffs do not allege that Hernandez was operating under the exemptions of Veh. Code § 21055. They allege that MAIT came to that conclusion. Plaintiffs have not alleged that fact as their own. The only fact in the allegation in ¶28 of the complaint is that MAIT stated that Veh. Code § 20155 exemptions applied, not that the exemptions did, in fact, apply. There is a qualitative difference between affirmatively alleging “X” and alleging that somebody else said “X.”

Both parties argue facts that are not in the complaint, such as whether Hernandez was actually in pursuit of a suspect or whether he had activated the vehicle’s lights and sirens. The court is not considering these extraneous facts.

The allegations of fact in the complaint do not establish that Veh. Code § 17004 applies. Therefore, the court overrules defendant Felipe Amalio Hernandez’s demurrer to the complaint in this case.

Case Number: BC720601 Hearing Date: April 29, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

ALVIN BUI,

Plaintiff(s),

vs.

MOHAMMED LAKHANI, ET AL.,

Defendant(s).

CASE NO: BC720601

[TENTATIVE] ORDER GRANTING DEFENDANT’S UNOPPOSED MOTIONS TO COMPEL

Dept. 3

1:30 p.m.

April 29, 2019

Defendant propounded form interrogatories and RPDs on Plaintiff on 10/30/18. To date, despite an extension of time to respond and an additional attempt to meet and confer, Plaintiff has not served responses. Defendant therefore seeks an order compelling Plaintiff to respond, without objections, to the outstanding discovery and to pay sanctions.

Defendant’s motions are granted. Plaintiff is ordered to serve verified responses to form interrogatories and RPDs, without objections, within ten days. CCP §§2030.290(a),(b), 2031.300(a),(b).

Sanctions are mandatory. §§2030.290(c), 2031.300(c). Defendant seeks sanctions in the amounts of $441.50 (interrogatories) and $347.50 (RPDs). Defense Counsel bills at the rate of $143.75/hour. The Court awards the requested one hour to prepare each form motion to compel. The Court awards the requested one hour of appearance time, but only awards the time once. The Court awards a total of three hours of attorney time at the rate of $143.75/hour, for a total of $431.25 in attorneys’ fees. The Court also awards two filing fees of $60 each and one Court Call fee of $94, for a total of $214 in costs.

Sanctions are sought and imposed against Plaintiff and his attorney of record, jointly and severally; they are ordered to pay sanctions to Defendant, by and through counsel of record, in the total amount of $645.25, within twenty days.

Defendant is ordered to give notice.

Case Number: BC719023 Hearing Date: April 29, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION TO COMPEL PLAINTIFF’S RESPONSES TO DISCOVERY AND FOR AN ORDER DEEMING ADMITTED REQUESTS FOR ADMISSIONS

On August 23, 2018, Plaintiff Silvia Pelayo (“Plaintiff”) filed this action against Defendant Los Angeles County Metropolitan Authority dba Metro (“Defendant”) for motor vehicle negligence relating to an October 24, 2017 accident. On October 23, 2018, Defendant served Form Interrogatories, Set Two, Requests for Production of Documents, Set Two, and Requests for Admissions, Set Two on Plaintiff. (Declaration of Maria Hovsepian, ¶ 4; Exh. A.) On January 9, 2019, Defense counsel sent a letter to Plaintiff’s counsel requesting responses within 10 days. (Hovsepian Decl., ¶ 5; Exh. B.) To date, Plaintiff has failed to serve responses. (Hovsepian Decl., ¶ 7.)

Where a party fails to serve timely responses to discovery requests, the court may make an order compelling responses. (Code Civ. Proc., §§ 2030.290, 2031.300; Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.) A party that fails to serve timely responses waives any objections to the request, including ones based on privilege or the protection of attorney work product. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).) Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45-day time limit and the propounding party has no meet and confer obligations. (Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at p. 404.)

Where a party fails to timely respond to a request for admission, the propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted. (Code Civ. Proc., § 2033.280, subd. (b).) The party who failed to respond waives any objections to the demand, unless the court grants them relief from the waiver, upon a showing that the party (1) has subsequently served a substantially compliant response, and (2) that the party’s failure to respond was the result of mistake, inadvertence, or excusable neglect. (Code Civ. Proc., § 2033.280, subds. (a)(1)-(2).)

The court shall grant a motion to deem admitted requests for admissions, “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” (Code Civ. Proc., § 2033.280, subd. (c).)

Plaintiff filed no opposition to these Motions and it is undisputed she failed to serve timely responses to Defendant’s discovery requests. Accordingly, the Motions to compel Plaintiff’s responses to Defendant’s discovery requests are GRANTED and Plaintiff is ordered to serve verified responses, without objection, to Defendant’s Form Interrogatories, Set Two and Requests for Production of Documents, Set Two within twenty (20) days of the date of this Order.

It does not appear Plaintiff served substantially compliant responses to Requests for Admissions prior to this hearing. Therefore, the Motion for an order deeming admitted requests for admissions is GRANTED.

Where the court grants a motion to compel responses, sanctions shall be imposed against the party who unsuccessfully makes or opposes a motion to compel, unless the party acted with substantial justification or the sanction would otherwise be unjust. (Code Civ. Proc., § 2030.290, subd. (c), 2031.300, subd. (c).) Where a party fails to provide a timely response to requests for admission, “[i]t is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” (Code Civ. Proc., § 2033.280, subd. (c).)

The request for monetary sanctions is GRANTED and imposed against Plaintiff and Plaintiff’s counsel, jointly and severally, in the reduced amount of $675.00 for three hours at defense counsel’s hourly rate of $165.00 and $180.00 in filing fees, to be paid within twenty (20) days of the date of this Order.

Moving party to give notice.

Filed 3/28/19 Harig v. Asbestos Corp. Limited CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

RICHARD HARIG,

Plaintiff and Appellant,

v.

ASBESTOS CORP. LIMITED et al.,

Defendants;

FIREMAN’S FUND INSURANCE COMPANY,

Intervener and Respondent.

[And nine other cases.*]

A149972

(San Francisco City & County

Super. Ct. No. CGC-13-276181)

In these 10 cases (consolidated on appeal), plaintiffs challenge orders granting motions by Fireman’s Fund Insurance Company (Fireman’s Fund) to vacate defaults and default judgments against its former insured, defendant Associated Insulation of California (Associated). Given the unusual circumstances, we conclude there was no “clear showing of abuse of discretion” by the trial court in granting the motions. (Weitz v. Yankosky (1966) 63 Cal.2d 849, 854 (Weitz.) We therefore affirm the challenged orders.

BACKGROUND

In their combined opening brief, plaintiffs assert “all facts and evidence in these cases are identical—other than the dates of the defaults and default judgments and the dates the motions to set aside were filed.” Thus, their brief references and cites to only the record in the lead case, Harig. We therefore do the same.

Plaintiffs filed their complaint in Harig on August 23, 2013. They named numerous defendants, including Associated Insulation, and alleged exposure to asbestos-containing products and subsequent manifestation of asbestos-related injuries. Four months later, on December 20, plaintiffs obtained entry of Associated’s default.

Over the course of the next several years, numerous defendants appeared and answered, and the parties subsequently litigated trial preference, evidentiary issues and bifurcation of limitations defenses.

It was not until after trial was set and continued several times, and plaintiffs reached settlements with and/or dismissed the other named defendants, that plaintiffs, on September 10, 2015, moved for entry of a default judgment against Associated. Three months later, following a prove-up hearing, the court entered judgment against Associated on December 29.

Within less than two months, in February 2016, Fireman’s Fund retained counsel to defend Associated. As of March 6, Associated Insulation’s corporate status was suspended. The record does not indicate when Associated’s corporate status was first suspended.

Within six months of the default judgment in Harig (and in five of the other cases before us ) Fireman’s Fund, in June 2016, intervened and moved to set aside the default(s) and default judgment(s), pursuant to both Code of Civil Procedure section 473, subdivision (b) and the court’s inherent equitable power. (See Western Heritage Ins. Co. v. Superior Court (2011) 199 Cal.App.4th 1196, 2015 (Western Heritage Ins. Co.) [insurers are permitted to intervene when a third party has obtained a default against its insured].) In July, Fireman’s Fund filed motions to set aside the defaults and default judgments in the four other cases before us, relying solely on the court’s inherent equitable power. We discuss the points made in the moving and opposing papers in more detail in the next section of this opinion.

Indicating it had heard a wave of motions by Fireman’s to vacate defaults and default judgments against Associated in asbestos cases, the trial court granted the motions, stating it believed Fireman’s was proceeding as it was legally entitled to do, and as it should do.

DISCUSSION

Plaintiffs’ principle contention on appeal is that Fireman’s Fund did not make a sufficient evidentiary showing in support of its motion(s) to vacate and thus failed to meet “the stringent three-prong test” the Supreme Court endorsed in Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982 (Rappleyea).

We therefore start with a discussion of Rappleyea, in which the high court reversed an order denying a motion to vacate a default entered against two Arizona residents.

After being served with the complaint, the defendants in Rappleyea did not retain counsel, but informally sought help from an Arizona attorney who was an “old friend.” (Rappleyea, supra, 8 Cal.4th at p. 978.) The attorney called the superior court’s clerk’s office to find out the filing fee for an answer and was incorrectly told the amount for one defendant ($89), rather than for two defendants ($159). Accordingly, despite being timely received by the clerk’s office, the defendants’ answer was returned for an insufficient fee, a problem the defendants promptly corrected. (Ibid.) In the meantime, the plaintiff procured their default. The “record” was “murky” as to the subsequent “course of events.” (Id. at p. 979; ibid. [“The scanty record shrouds much of the case in mist.”].)

Within several months, however, the plaintiff’s attorney sent the defendants a letter that seemingly stated they had no recourse with respect to the entry of default. (Rappleyea, supra, 8 Cal.4th at pp. 979–980.)

A number of months later, the defendants learned the plaintiff intended to procure a default judgment, and at that point, they moved to set aside the entry of default. (Rappleyea, supra, 8 Cal.4th at p. 980.) The trial court denied the motion. (Ibid.)

In the meantime, the plaintiff had been lumbering along in his effort to obtain a default judgment and finally succeeded in obtaining a $200,000-plus judgment a month after the court denied the defendants’ motion to vacate. (Rappleyea, supra, 8 Cal.4th at pp. 978, 980.)

A divided Court of Appeal affirmed, allowing the default judgment to stand. (Rappleyea, supra, 8 Cal.4th at p. 980.)

The Supreme Court granted review. The court first confirmed that, even after the period for seeking statutory relief from a default has passed, a trial court may vacate a default on equitable grounds, one such ground being “extrinsic mistake—a term broadly applied when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits.” (Rappleyea, supra, 8 Cal.4th at p. 981.)

The high court next observed that there is a distinction between seeking relief from a clerk’s entry of default and seeking relief from a default judgment. “When a default judgment has been obtained, equitable relief may be given only in exceptional circumstances. ‘[W]hen relief under [Code of Civil Procedure] section 473 is available, there is a strong public policy in favor of granting relief and allowing the requesting party his or her day in court. Beyond this period there is a strong public policy in favor of the finality of judgments and only in exceptional circumstances should relief be granted.’ ” (Rappleyea, supra, 8 Cal.4th at pp. 981–982, quoting In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1071 (Stevenot).)

“Apparently to further the foregoing policy [pertaining to vacating default judgments after the statutory time period has expired], one appellate court,” explained the Supreme Court, had “created a stringent test to qualify for equitable relief from default on the basis of extrinsic mistake.” (Rappleyea, supra, 8 Cal.4th at p. 982.) Under that test, “ ‘[t]o set aside a judgment based upon extrinsic mistake one must satisfy three elements. First, the defaulted party must demonstrate that it has a meritorious case. Second[ ], the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Last[ ], the moving party must demonstrate diligence in seeking to set aside the default once . . . discovered.’ ” (Id. at p. 982, italics omitted, quoting Stiles v. Wallis (1983) 147 Cal.App.3d 1143, 1147–1148 (Stiles).)

Because the court had before it only the defendants’ appeal from the clerk’s entry of default, this “stringent test” was technically not applicable. Nor did the court need to decide, and it did not decide, whether the three-part “stringent test” articulated in Stiles was tantamont to the approach taken by the Court of Appeal in Stevenot. (Rappleyea, supra, 8 Cal.4th at p. 982.) Even under this “stringent three-prong test,” said the high court, the “odd facts” of the case before it entitled the defendants to relief. (Ibid.)

The court then examined “whether defendants [had] a satisfactory excuse for failing to timely answer.” (Rappleyea, supra, 8 Cal.4th at p. 982.) Pointing to the fact the defendants’ answer had not been timely filed because the court clerk had miscommunicated the filing fee, the court had no difficulty concluding the defendants had a satisfactory excuse for not having timely filed their answer. (Id. at pp. 982–983.)

The court next considered whether “the defense has merit.” The court observed that “[o]rdinarily a verified answer” suffices in this regard. (Rappleyea, supra, 8 Cal.4th at p. 983.) However, the plaintiff’s complaint had not been verified. Nor, as would be expected, was the defendants’ proffered answer verified. The defendants had, however, responded to each allegation, and the attorney friend who had informally assisted them declared he “believed” the defendants had a “very good (and certainly a justiciable) defense.” (Id. at p. 983.) This, said the court, “sufficiently” showed merit. (Ibid.)

Turning to the third consideration—whether the defendants had acted diligently “to set aside the default once discovered”—the court observed that the degree to which the plaintiff is prejudiced is a significant consideration, and the greater the prejudice, the less generous the court can be in granting relief. (Rappleyea, supra, 8 Cal.4th at pp. 983–984.) The court acknowledged that in the case before it, more than a year passed between the entry of the defendants’ default and their motion to vacate, and in the meantime, the plaintiff had procured a default judgment. (Id. at p. 984.) Nevertheless, given the “unusual facts” of the case, including the plaintiff’s own delay in procuring a default judgment, the defendants were subject to a “reduced standard” as to diligence. The defendants had not, said the court, been “callously derelict in seeking to set aside the default.” (Ibid.)

Plaintiffs maintain Rappleyea compels the conclusion the trial court manifestly abused its discretion here in granting Fireman’s motion(s) to vacate because the Supreme Court therein endorsed a “stringent” test and Fireman’s assertedly did not come close to making the showing required under that test.

We first observe that Rappleyea did not require a Herculean evidentiary showing. The only pertinent evidence the court considered was that the court clerk told defendants (through their lawyer friend) the wrong filing fee, defendants tried to file an unverified answer that “respond[ed]” to the allegations of the unverified complaint and their lawyer friend “believed” defendants had a “very good (and certainly a justiciable) defense” (Rappleyea, supra, 8 Cal.4th at p. 983), the plaintiff’s attorney sent a letter to defendants that could reasonably be read to state they had no ability to challenge the default, defendants moved to vacate their default when plaintiff indicated he intended to obtain a default judgment, and the plaintiff, himself, delayed in procuring a default judgment. Thus, the showing that precipitated the Supreme Court’s reversal of the denial of the motion to vacate in Rappleyea can scarcely be called overly weighty and, in part, the pertinent facts appeared in the trial court’s own record of actions.

We next observe that what seemed of considerable significance to the high court was the unusual nature of the circumstances that occurred, leading the court to state at the conclusion of its opinion: “We draw our conclusion narrowly. The clerk’s error and plaintiff’s incorrect statement of the law together persuade us that the court abused its discretion when it denied defendants’ motion. These rare events should not combine to make defendants suffer a $200,240.39 judgment without a hearing on the merits.” (Rappleyea, supra, 8 Cal.4th at p. 984.)

While the consolidated cases before us do not involve harmonic convergence of the same “rare events” that occurred in Rappleyea, the cases at hand are nevertheless not close to being the typical default case.

First, Associated is one of many defendants from whom numerous plaintiffs have sought damages for asbestos injuries from exposures that occurred decades ago. It is common knowledge that some asbestos defendants are no longer in business. Accordingly, as the procedural history of Harig illustrates (and as the court’s register of actions chronicles), these cases generally proceed against the extant defendants, the parties litigate significant pretrial issues, and as the case gets closer to trial, the parties become serious about settlement and, eventually, most of the defendants are dismissed pursuant to settlements. Thus, in Harig, two years passed before plaintiffs sought a default judgment against Associated. In the meantime, many other defendants answered, the parties litigated a variety of issues, a trial date was set and then continued a number of times, and finally settlements were reached and these defendants were dismissed. Plaintiffs then proceeded with a prove up hearing and procured a default judgment against Associated.

Second, the moving party in these cases was not the defaulted defendant. Rather, the moving party was a former insurer of Associated. As we have indicated, an insurer, to protect its own interests, is legally entitled to intervene and move to vacate a default suffered by its insured. (See Western Heritage Ins. Co., supra, 199 Cal.App.4th at pp. 1206–1207.) Thus, while in the usual default case the focus is on the defendant’s own derelictions, there are other considerations where an insurer exercises its legal right to intervene and moves to vacate a default judgment against its insured. (Id. at p. 1206–1208, 1210.)

With these comments, we turn to the three-part test the Supreme Court applied in Rappleyea—(1) whether the defendant has a “satisfactory excuse for failing to timely answer” (Rappleyea, supra, 8 Cal.4th at p. 982), (2) whether “the defense has merit” (id. at p. 983), and (3) whether the defendant acted diligently “to set aside the default once discovered” (ibid). While these are relatively straightforward inquiries when a defendant moves to vacate a default judgment, they are not so readily applied when an intervening insurer of a defaulted defendant moves to vacate the judgment. (See Mechling, supra, 29 Cal.App.5th at p. 1246, fn. 3.) Rather, as the plaintiffs appeared to acknowledge at oral argument, the inquiries that are pertinent to an insurer moving to vacate a default judgment against its insured are (1) whether the insurer acted with reasonable diligence on learning there is a basis for it to take action in the case, (2) whether a defense “has merit,” and (3) the degree to which the plaintiff will suffer prejudice. We therefore turn our attention to these three questions.

Insurer’s reasonable diligence. Fireman’s submitted a single declaration by its lawyer, dated June 28, 2016, in support of its motion to vacate the default judgment against Associated in Harig. Counsel declared in pertinent part: “I am informed and believe that Fireman’s Fund issued a liability insurance policy(ies) to Associated Insulation. That policy appears to provide Associated Insulation with insurance for the asbestos claims filed against Associated Insulation in this case. [¶] . . . It was in February of 2016 that Fireman’s Fund first retained counsel to defend any asbestos claims made against Associated Insulation, and thereafter Fireman’s Fund made its first appearance in this case. [¶] . . . [¶] . . . Based upon information and belief, Associated Insulation’s corporate status has been suspended by the California Secretary of State and the California Franchise Tax Board.” Attached to the declaration was a printout, dated March 6, 2016, of the Secretary of State’s web site. (Capitalization omitted.)

Plaintiffs argued in the trial court, and continue to maintain on appeal, that this declaration did not come close to satisfying the “stringent test” for equitably vacating a default judgment. In fact, in the trial court, plaintiff’s counsel asserted this declaration was tantamount to “no” showing in support of an equitable motion to vacate.

While it is certainly fair to characterize Fireman’s Fund’s declaration as highly truncated, plaintiffs overlook an important point in assessing the sufficiency of the showing before the trial court.

In addition to what is actually stated in a declaration, all reasonable inferences to be drawn therefrom are equally important. (See Phillips v. Campbell (2016) 2 Cal.App.5th 844, 851 (Phillips) [a finding based on a reasonable inference will not be set aside “ ‘unless it appears that the inference was wholly irreconcilable with the evidence’ ”]; Jonkey v. Carignan Construction Co. (2006) 139 Cal.App.4th 20, 24 [in reviewing the sufficiency of the evidence to support a judgment, the court must consider all of the evidence and draw every reasonable inference and resolve every conflict to support the judgment].) “ ‘Even in cases where the evidence is undisputed or uncontradicted, if two or more inferences can reasonably be drawn from the evidence,’ ” an appellate court cannot substitute its own inferences, but must “ ‘accept as true all evidence and reasonable inferences from the evidence tending to establish the correctness of the trial court’s findings and decision.’ ” (Jonkey, at p. 24.)

Accordingly, as we see it, the pivotal question is what can reasonably be inferred from Fireman’s Fund’s declaration. Specifically, is it reasonable to infer that Fireman’s Fund acted with reasonable diligence upon learning there was a basis for it to take some action in the case?

We conclude that such an inference can reasonably be drawn—because of the well-established, and long-established law governing an insurer’s duty to defend its insured. “The defense duty is a continuing one, arising on tender of defense and lasting until the underlying lawsuit is concluded [citation], or until it has been shown that there is no potential for coverage.” (Montrose Chemical Corp. v. Superior Court (1993) 6 Cal.4th 287, 295.) This duty arises immediately upon the insurer being apprised that the lawsuit against its insured potentially seeks damages within the coverage of the policy. (Id. at p. 295 [“Imposition of an immediate duty to defend is necessary to afford the insured what it is entitled to: full protection of a defense on its behalf.”].) “Hence, once the insured establishes the potential of coverage, the insurer must defend the suit unless it conclusively refutes such potential.” (County of San Bernardino v. Pacific Indemnity Co. (1997) 56 Cal.App.4th 666, 680, italics added.)

Given the absolute clarity of the law as to when an insurer must act—immediately upon learning that a lawsuit against its insured potentially involves covered claims—it is not unreasonable to infer that Fireman’s Fund learned that it owed a duty to defend Associated only shortly before it hired defense counsel in February 2016. Were the law not crystal clear in this regard, we would agree with plaintiffs that such an inference would be based on nothing more than “ ‘ “suspicion, imagination, speculation, surmise, conjecture or guesswork.” ’ ” (Shandralina G. v. Homonchuk (2007) 147 Cal.App.4th 395, 411, quoting Western Digital Corp. v. Superior Court (1998) 60 Cal.App.4th 1471, 1487.) However, the law is crystal clear and has been so for more than three decades. Accordingly, in the absence of even the faintest suggestion that Fireman’s Fund failed to heed its legal duty, it is not unreasonable to infer that Fireman’s Fund retained defense counsel in accordance with its legal obligations to do so, i.e., immediately on being apprised that its former insured was being sued for damages as to which there was potential coverage under a policy once issued to the insured.

Whether defense has merit. Fireman’s Fund did not file a proposed answer with its motion to vacate the default judgment. Plaintiffs maintain it was an absolute prerequisite for Fireman’s Fund to have done so, citing to Rappleyea and several other cases in which defendants proffered proposed answers.

The Supreme Court did not, however, state that a proffered pleading was a mandatory prerequisite to equitable relief. (Rappleyea, supra, 8 Cal.4th at p. 983.) Rather, the court concluded the defendants’ proffered unverified answer and the generic assertion of the defendants’ lawyer friend who had informally assisted them, was a “sufficient[]” showing of merit. (Ibid.)

Given the unusual circumstances of the cases before us, we would be turning a blind eye to reality in saying the record here does not “sufficiently” show that Associated has at least some basis to defend against the plaintiffs’ asbestos claims. The register of actions in Harig, for example, demonstrates that no less than eight answers were filed in the case by named defendants and that the parties spent nearly two years litigating a variety of issues, including evidentiary issues and bifurcation of statute of limitations defenses. As we have observed, asbestos cases are procedurally unique in many ways, and there are now well-established defenses that are routinely asserted in these cases. Furthermore, we are dealing here with motions to vacate made by a defaulted defendant’s insurer. While a defendant is likely to know the relevant facts necessary to preparing an answer, the same cannot be said of a defendant’s insurer, and particularly a defaulted defendant’s insurer, which is obligated to take action immediately on becoming aware that potentially covered claims are being made against its insured. We therefore conclude the record here “sufficiently” reflects Associated, like the other named defendants, could mount a colorable defense. (See Mechling, supra, 29 Cal.App.5th at pp. 1247–1248.)

Prejudice to the plaintiffs. On this point, plaintiffs emphasize the importance of “finality” and that vacating a default judgment divests them “of a property right.” (Rappleyea, supra, 8 Cal.4th at p. 984.)

However, the Supreme Court’s discussion in Rappleyea was more nuanced than plaintiffs suggest. To begin with, the court made clear that when a motion to vacate is brought within the six-month statutory time period set forth in Code of Civil Procedure section 473, the law “favors disposing of cases on their merits.” (Rappleyea, supra, 8 Cal.4th at p. 980.) In Harig, and in five of the other cases before us, Fireman’s Fund moved to vacate the default judgments against Associated within this time frame. In the other four cases, Fireman’s Fund moved to set aside the default judgments within less than 30 days thereafter. Under these circumstances, there is considerable weight to the policy of deciding cases on their merits.

In addition, the high court pointed out that the plaintiff in Rappleyea had, himself, not proceeded with dispatch in procuring a default judgment. (Rappleyea, supra, 8 Cal.4th at p. 984.) This “indifference” in moving against the defendants “beli[ed] any claim plaintiff might make of eagerness to obtain an early judgment.” (Ibid.) The plaintiff also had incorrectly indicated to the defendants that they had no recourse as to the entry of default. “These unusual facts greatly weaken[ed] any possible assertion of prejudice, and correspondingly lower[ed] the burden on defendants of showing diligence.” (Ibid.) And under this “reduced standard,” the “defendants were not callously derelict in seeking to set aside the default.” (Ibid.)

A record of similar “indifference” to procuring default judgments against Associated exists here. In Harig, for example, plaintiffs waited for two years before seeking a default judgment against Associated. In the meantime, they litigated their claims against the answering defendants and ultimately settled with and/or dismissed these defendants. Certainly, plaintiffs, themselves, did not, unlike the plaintiff in Rappleyea, contribute to the lapse of time before Fireman’s Fund intervened in these cases and moved to vacate the default judgments against Associated. However, the fact plaintiffs took no action to procure a default judgment against Associated until they fully prosecuted their claims against the many defendants who answered, does indicate they were not eager “to obtain an early judgment” against Associated. (Rappleyea, supra, 8 Cal.4th at p. 984.) Accordingly, as in Rappleyea, the “unusual facts” of Harig and the other asbestos cases before us, “weaken” plaintiffs’ assertion of prejudice.

In sum, given that Fireman’s Fund’s moved to vacate the default judgments against Associated within the six-month statutory period, or shortly thereafter, and that plaintiffs, themselves, waited several years before obtaining default judgments against Associated, plaintiffs have not demonstrated sufficient prejudice to counterbalance the policy favoring disposition of the cases on their merits. (See Weitz, supra, 63 Cal.2d at pp. 857–858 [where plaintiff made no showing of prejudice and where, considering all the circumstances, the defendant did not act unreasonably in moving to vacate default judgment beyond the statutory time period, “it was not unreasonable for the trial court to have resolved any doubt it may have had in favor of permitting an adjudication on the merits”]; Mechling, supra, 29 Cal.App.5th at pp. 1248–1249 [trial court did not abuse its discretion in weighing the reasonableness of the insurer’s conduct in moving to vacate default judgments].)

We thus share the view our colleagues expressed in Mechling—that, in toto, these asbestos cases involve “exceptional circumstances” justifying the trial court’s grant of Fireman’s Fund’s motions to vacate the default judgments against its insured, Associated Insulation.

DISPOSITION

The orders setting aside the defaults and default judgments are affirmed. Fireman’s Fund is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)

_________________________

Banke, J.

We concur:

_________________________

Margulies, Acting P.J.

_________________________

Sanchez, J.

A149972, Harig v. Fireman’s Fund Insurance et al.

Filed 3/28/19 Stolarczyk v. Cheung CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

CRAIG STOLARCZYK et al.,

Plaintiffs and Respondents,

v.

HOGAN CHEUNG,

Defendant and Appellant.

A152870

(San Mateo County

Super. Ct. No. 17-CIV-03578)

This appeal is from a Code of Civil Procedure section 527.6 civil harassment restraining order Craig and Shana Stolarczyk obtained against their neighbor Hogan Cheung. Cheung contends the trial court erred in granting the order because the Stolarczyks failed to establish several elements of section 527.6 by clear and convincing evidence. We affirm.

BACKGROUND

The Stolarczyks and their two small children live on Ark Street in San Mateo. Cheung, his wife, two small children, and mother-in-law live on Clipper Street in San Mateo. The Stolarczyks and Cheung are neighbors whose houses are separated by a fence that runs between the Stolarczyks’ backyard and Cheung’s side yard.

The Stolarczyks filed a petition for a civil harassment restraining order against Cheung on August 7, 2017. The petition was not included in the appellate record.

On September 7, 2017, the superior court held a hearing on the petition. The court took evidence from the Stolarczyks, who appeared in propia persona, and Cheung.

The Stolarczyks stated that everything set forth in their restraining order petition was true and correct. Additionally, they presented video evidence of an August 2, 2017 verbal altercation between Craig and Cheung. The video was taken from a camera set up by the Stolarczyks’ landlord adjacent to but not on Cheung’s property. Based on a transcript of the video included in the record, the video shows that Craig and Cheung quarreled over the camera installation. After he was called a “fuckface,” Cheung asked Craig and his companion if they wanted to take the camera down. When he was told it would be left up, Cheung covered the camera lens. Craig then told Cheung he was under arrest followed by the same vile epithet first used to address him. Cheung responded by asking Craig if he was threatening him. Craig again told Cheung that he was under arrest, and Cheung responded, “That’s fine, thank you. And I will always come back for you.” Craig asked Cheung if he ‘want[ed] to do something?” Cheung said, “I already did something.” Craig accused Cheung of pouring gasoline on his yard, to which Cheung replied, “No one put gas, you put your gas and you[‘re] blaming it on people.” Craig asked Cheung if he “want[ed] to settle it,” to which Cheung responded, “You don’t need to settle it, you’re dead.” Laughing, Craig told Cheung he was going to call the police because he was just threatened.

Cheung testified about a series of conflicts between the neighbors that led up to the restraining order petition. He acknowledged he cut down overgrown trees planted in the Stolarczyks’ backyard in March 2016. Prior to cutting the trees, Cheung twice requested the Stolarczyks’ landlord manage the trees to no avail. According to Cheung, the trees grew fast, crossed the fence by three feet to four feet, and left limbs over his house and satellite dish. In addition, noise from the trees swaying in the wind and scraping and rubbing against the walls of his house made it difficult to sleep. Cheung stated he did not cut down the trees completely, only the portions rubbing against his house that were overgrown.

Cheung was also asked about his statement in the video that he “already did something.” He said his comment did not refer to pouring gasoline in the Stolarczyks’ yard.

With respect to the August 2, 2017 incident captured on video, Cheung testified the camera was “really close . . . on the fence line right between my master bedroom and my master bathroom.” He explained he placed tape over the camera lens because his wife was worried, afraid, and frightened and saw the camera as “a really bad invasion looking into my house in the bathroom[], whatever [his wife] was doing.” He acknowledged he called the police about the camera before he taped over it and that an officer told him not to touch it. Prior to covering it, he also asked the Stolarczyks to take it down but they threatened and cursed him. Addressing the “you’re dead” statement he made to Craig, Cheung explained that Craig and his companion were cursing and provoking him, that his English was not “too good,” and he did not know what to say. He said his comment was not a threat but his way to end the conversation and signal he no longer wanted to talk. Cheung denied ever threatening to kill Craig.

After Cheung testified, the Stolarczyks were questioned by the court. Shana stated that Cheung cut the trees below the fence line and left the debris lying in their backyard. Shana further noted that after the March 2016 cut, their gardeners redirected the branches and the trees have since continued to grow upward at least twice the height of the fence. Craig described an incident in May or June 2016 not included in their petition in which he suspected herbicide was dumped over the fence into their yard, but on cross-examination he acknowledged he never saw anyone pour any herbicides or liquids over his fence. Craig also discussed an incident in July 2017 in which he was overwhelmed by the smell of gasoline in his backyard. Craig said he smelled gas in the soil all along the fence line and observed discolored and foul-smelling mulch. He added that the fire department confirmed the presence of a gasoline odor and doused the area with water. Several days later, soil samples were taken which returned “anecdotal” detections of formaldehyde. Craig stated that police had reviewed the August 2017 video and agreed with the Stolarczyks that there was no intrusion by them into the Cheung property. Craig also said his laughter and response to Cheung’s “you’re dead” comment was “a nervous response because [he] could not believe what [he] just heard.”

After observing that “[n]eighbor disputes are ugly,” the court acknowledged Cheung’s right to reasonably trim a neighbor’s trees that cross into his property but stated he was not entitled to simply cut off the foliage to a point below the fence line. The court also noted the ongoing and escalating nature of the dispute between the neighbors given the trees were initially cut in 2016. But the court found Cheung “not the most believable witness” ever to appear in court. The court found his explanation that he did not understand what he was saying on the video to be “ludicrous” and did not see him as a victim in any way. Based on the video, the court found Cheung was self-confident and assertive when he taped over the camera, which the court said the property owner had every right to place on his property. Observing that the camera was trained on the yards of both properties, the court found nothing to suggest the camera was positioned to film the interior of Cheung’s home. With respect to the chemicals on their property, the court found it unreasonable to think the Stolarczyks would place chemicals in their own yard and said it was “a reasonable inference to draw that someone else is responsible for that and I think that [the Stolarczyks’] concerns are legitimate that [Cheung was] responsible for that.” In conclusion, the court stated, “I think without question, it has been sufficiently proven that Mr. Cheung damaged their property. He vandalized their property. There is a reasonable inference to be drawn, and it’s for that issue I am still going to issue a restraining order.”

The order requires Cheung to stay five yards away from the Stolarczyks and to refrain from harassing or contacting them, or destroying their personal property. The order expires on September 7, 2020. Cheung appeals.

DISCUSSION

Section 527.6 was enacted “ ‘to protect the individual’s right to pursue safety, happiness and privacy as guaranteed by the California Constitution.’ [Citations.] It does so by providing expedited injunctive relief to victims of harassment. [Citation.]” (Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1412.) “A person who has suffered harassment . . . may seek a temporary restraining order and an order after hearing prohibiting harassment as provided in” section 527.6. (§ 527.6, subd. (a)(1).) “ ‘Harassment’ ” is defined as “a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the petitioner.” (§ 527.6, subds. (b)(3).) The trial court may issue an injunction under section 527.6 on “clear and convincing evidence that unlawful harassment exists[.]” (§ 527.6, subd. (i).)

On appeal of the grant of a section 527.6 restraining order, “[w]e review issuance of [the] protective order for abuse of discretion, and the factual findings necessary to support the protective order . . . for substantial evidence.” (Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1226 (Parisi).) The substantial evidence rule applies without regard to the standard of proof required before the trial court. In other words, we review the record for substantial evidence even if the standard in the trial court was clear and convincing evidence. (See Crail v. Blakely (1973) 8 Cal.3d 744, 750; In re Marriage of Ruelas (2007) 154 Cal.App.4th 339, 345.)

Cheung argues the court erred in granting the restraining order because the Stolarczyks failed to establish several of the required elements of section 527.6 by clear and convincing evidence. In particular, Cheung contends they failed to prove his conduct served no legitimate purposes, caused them substantial emotional distress, or posed any risk of future harm. We do not agree.

The trial court judgment is presumed correct, and Cheung has the burden of overcoming this presumption by affirmatively demonstrating prejudicial error. (Denham v. Superior Court (2005) 2 Cal.3d 557, 564-566.) As the appellant, Cheung also has the burden to present an adequate record for appellate review. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 (Maria P.).) Here, the appellate record does not include the Stolarczyks’ request for a civil harassment restraining order. The Judicial Council form for this request requires that all factual allegations be made under penalty of perjury. Furthermore, on appeal, “[d]eclarations favoring the prevailing party’s contentions are deemed to establish the facts stated in the declarations . . . .” (Parisi, supra, 5 Cal.App.5th at p. 1226.) Cheung attacks the restraining order as lacking evidence supporting harassment, but his failure to include the request leaves us with an incomplete, inadequate record of the evidence that was before the trial court. We cannot determine the evidence was insufficient if we do not know all the evidence presented to the trial court. We must therefore presume that substantial evidence supported the court’s implied finding that harassment occurred and affirm the judgment. (See Estate of Fain (1999) 75 Cal.App.4th 973, 992 [appellant may not contest the sufficiency of the evidence with respect to a factual issue where appellant fails to provide an adequate record]; Maria P., supra, 43 Cal.3d at pp. 1295-1296 [failure to provide an adequate record on appeal requires that the issue be resolved against appellant].)

Even if we did not affirm the judgment because Cheung failed to provide an adequate record, we would reject his claims based on the limited record provided. We find no merit to Cheung’s broad contention that his version of what happened was “equally likely” as the Stolarczyks’ and did not amount to harassment. (See Parisi, supra, 5 Cal.App.5th at p. 1226 [“ ‘We resolve all conflicts in the evidence in favor of respondent, the prevailing party, and indulge all legitimate and reasonable inferences in favor of upholding the trial court’s findings.’ ”].) Neither do Cheung’s more particularized arguments that the evidence does not qualify as “harassment” within the meaning of section 527.6 compel reversal.

Cheung claims the Stolarczyks failed to prove his acts served no legitimate purpose. Cheung argues that trimming trees encroaching on his property and covering a surveillance camera directed towards his house were lawful acts with legitimate purposes. But Shana explained that Cheung cut the trees below the fence line, and not just those portions extending into his property. Also, the court viewed the video taken from the camera and found it was neither located on property belonging to Cheung nor trained on the inner sanctum of Cheung’s house. Cheung also testified that he was told by police not to touch the camera, and Craig stated that police reviewed video from the camera and saw no intrusion into the Cheung property. All of this evidence supports an implied finding that Cheung’s acts served no legitimate purpose.

Cheung also claims the Stolarczyks failed to establish that his conduct caused them substantial emotional distress. He argues, “[I]t is clear from the video footage depicting the interaction that respondent did not suffer any emotional distress as a result of the statement. Indeed, quite the opposite—in the video, [Craig] can be heard laughing, taunting and insulting [him].” Even the trial court rebuked Craig for behaving badly, describing his behavior in the video as “antagonistic and sarcastic and profane.” Nonetheless, the petition for a restraining order was not filed solely based upon the camera incident nor was Craig the sole petitioner. Nothwistanding the laughter and taunting Craig displayed that evening, the trial court could reasonably infer that both Craig and Shana suffered substantial emotional distress from having their trees chopped down and the debris left in their yard, and from having chemicals poured into their backyard where their small children play.

Cheung also contends the trial court failed to find a likelihood of future harm. Not so. The record supports the conclusion that a restraining order was necessary to prevent bad acts from continuing into the future. Cheung initially chopped down the Stolarczyks’ trees in March 2016; the Stolarczyks smelled gasoline along their fence line in July 2017; the altercation over the camera occurred in August 2017; and by the time of the hearing in September 2017, the trees had regrown to twice the height of the fence. Before issuing its ruling, the court commented, “[W]e’re talking about a dispute that has not resolved itself in over a year. Because we’re talking about trees that were cut in 2016, and Mr. Cheung still, it would appear, has issues with the fact that these trees are on his neighbor’s property and continue to grow and grow tall.” The record supports a finding of threat of future harm.

DISPOSITION

The civil harassment restraining order is affirmed.

_________________________

Siggins, P.J.

WE CONCUR:

_________________________

Petrou, J.

_________________________

Wiseman, J.*

Stolarczyk v. Cheung, A152870

Filed 3/28/19 Alvarado v. Freedman CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

RONALD J. ALVARADO,

Plaintiff and Appellant,

v.

ROBERT F. FREEDMAN et al.,

Defendants and Respondents.

G055918

(Super. Ct. No. 30-2014-00736047)

O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County, Walter P. Schwarm, Judge. Affirmed.

Law Office of Foroozandeh and Majid Foroozandeh for Plaintiff and Appellant.

Parcells Law Firm and Dayton B. Parcells III for Defendants and Respondents.

Ronald J. Alvarado (Alvarado) loaned money to ContentX Technologies, LLC (ContentX), a company created to help businesses in the adult entertainment industry collect money from parties who illegally download content from the Internet. When ContentX failed to repay Alvarado’s loan, he sued ContentX, Robert F. Freedman (Freedman), and RFF Family Partnership, LP (RFFFP). He alleged Freedman and RFFFP (collectively referred in the singular as Freedman) were the alter egos of ContentX. Following a 12-day bench trial, the trial court entered judgment for Freedman. Alvarado appealed the decision, and we affirmed the judgment after rejecting his arguments challenging the sufficiency of the evidence. (Alvarado v. Freedman (Dec. 5, 2018, G055307) [nonpub. opn.].)

While the appeal was pending, the trial court ordered Alvarado to pay Freedman $203,940 in attorney fees pursuant to Civil Code section 1717. (All further statutory references are to the Civil Code.) Alvarado challenges this order, raising the following issues on appeal: (1) Freedman was not entitled to recover contractual attorney fees because he was a nonsignatory to the applicable contract; (2) the court should have apportioned fees between the contract and tort causes of action; and (3) Freedman’s counsel charged an unreasonable hourly rate. We conclude all of these contentions lack merit, and we affirm the order.

FACTS

We incorporate by reference our detailed summary of the underlying facts from our prior opinion. (Alvarado, supra, G055307.) We need only repeat the facts relevant to the three issues raised in this appeal, which are included in our discussion below.

DISCUSSION

I. Entitlement to Attorney Fees

Freedman’s motion for attorney fees was based on section 1717. He alleged the breach of contract claim in Alvarado’s fourth amended complaint sought compensatory damages plus attorney fees. He explained it was Alvarado’s theory that attorney fees were recoverable because Alvarado and ContentX’s promissory note contained the following provision: “That should a dispute arise the prevailing party shall be entitled to recover its reasonable attorney[] fees and costs.” Additionally, Freedman’s attorney declared that during the trial’s closing argument, Alvarado requested an attorney fee award against Freedman in accordance with this provision in the promissory note.

In his motion, Freedman argued there was no dispute he was the prevailing party and submitted a copy of the trial court’s statement of decision ruling in his favor on all causes of action. He cited case authority holding that when a plaintiff sues for breach of a contract, which provides for the recovery of attorney fees, and the plaintiff alleges the defendant is the alter ego of a contracting party, the plaintiff must pay that defendant’s attorney fees if he loses the case. (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 128-129 (Reynolds).) He asserted the purpose of section 1717 required that it be interpreted to provide “a reciprocal remedy for a nonsignatory defendant, sued on a contract as if he were a party to it, when a plaintiff would clearly be entitled to attorney’s fees should he prevail in enforcing the contractual obligation against the defendant.” (Id. at p. 128.) The court agreed and awarded Freedman $203,940 for attorney fees.

On appeal, Alvarado “recognizes the holding” in Reynolds, but argues the case is “[n]ot [e]xactly on [p]oint” because it contains some factual differences from his case. Alvarado asserts this case is different because in Reynolds, the prevailing defendants were shareholders and directors of a company that became insolvent and owed money to the plaintiff and they prevailed on three causes of action. Alvarado maintains his lawsuit claimed Freedman was the alter ego of ContentX under “the breach of contract action, not the promissory fraud cause of action.” Alvarado does not explain what factual distinction he views is important or why it is relevant to the holding of the Reynolds case.

Instead, Alvarado offers the following argument: “[S]ee Reynolds . . . where the court held that a nonsignatory prevailing party is not entitled to attorney fees. [¶] ‘We consider the better view to be that the statutory fees contemplated by . . . section 1717 may only be awarded to a [p]revailing party who is a [c]ontracting party, whether he is the party specified in the contract (as one who should receive the benefit) or not.’” (Italics added.) Alvarado’s failure to properly include page references to support this argument is telling because the above quote is not from the Reynolds case. Moreover, Alvarado misstated the holding of Reynolds. Our Supreme Court determined a nonsignatoy can claim reciprocal attorney fees under section 1717, when he had been sued on the contract as if he were a party to it, i.e., under the alter ego theory. (Reynolds, supra, 25 Cal.3d at p. 128.)

Alvarado’s reply brief cites to cases that do not further assist his argument. His case authority predates, and was disapproved of by the Reynolds case. (See Jones v. Drain (1983) 149 Cal.App.3d 484, 488 (Jones) [discussing development of law regarding nonsignatories recovering attorney fees under section 1717].) Accordingly, Alvarado’s reliance on Canal-Randolph Anaheim, Inc. v. Wilkoski (1978) 78 Cal.App.3d 477, 485, Boliver v. Surety Co. (1977) 72 Cal.App.3d Supp. 22, 28-29, and Arnold v. Browne (1972) 27 Cal.App.3d 386, 398, to support his argument is misplaced. (See Jones, supra, 149 Cal.App.3d at pp. 488-489.)

Similarly, Alvarado’s reliance on Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858 (Blickman Turkus), in the reply brief, is misdirected. He asserts this case holds there are only two situations that entitle a nonsignatory party to attorney fees, and because Freedman did not “stand in the shoes of a party to the contract and was not a third-party beneficiary thereto,” he was not entitled to fees. He has misread the case.

The court in Blickman Turkus held a nonsignatory was not entitled to fees under section 1717 because under the terms of the agreement, the plaintiff “would not have been entitled to fees even if it had prevailed on its own complaint.” (Blickman Turkus, supra, 162 Cal.App.4th at p. 896.) It discussed Sessions Payroll Management, Inc. v. Noble Construction Co. (2000) 84 Cal.App.4th 671, 677 [concerning third party beneficiaries]; and Reynolds, supra, 25 Cal.3d 124 at page 129 [concerning alter ego allegations] as representing two situations where nonsignatory defendants could recover attorney fees. (Blickman Turkus, supra, 162 Cal.App.4th at pp. 896-897.) Relevant to this case, the court in Blickman Turkus characterized the nonsignatory defendant in Reynolds as recovering fees because he was “sued on the ground that he stands in the shoes of a party to the contract, and where he would be liable for fees if that claim succeeded[.]” (Blickman Turkus, supra, 162 Cal.App.4th at p. 897, italics added.) The Blickman Turkus court explained the nonsignatory defendant “stands in the shoes” of the entity signing the contract because plaintiff alleged the two entities should be treated as one under the alter ego doctrine. (Ibid.)

This is exactly what Alvarado alleged in his complaint. Freedman was sued on the theory he stood in the shoes of ContentX, a party to the contract, and he would have been liable for attorney fees if Alvarado prevailed. In light of all the above, we find no reason to disturb the court’s application of section 1717 to a nonsignatory defendant in this case.

II. Apportionment Issue

Alvarado’s operative complaint alleged two causes of action, i.e., breach of contract and promissory fraud. He opposed the motion for attorney fees on several grounds, including the argument the fees must be apportioned because section 1717 does not apply to tort claims such as promissory fraud. Alvarado maintained Freedman’s attorney “failed to breakdown which fees were related to the breach of contract action versus the promissory fraud cause of action.” He suggested a “50/50” breakdown was reasonable and the amount of requested fees should be reduced by one half.

The trial court rejected this argument. In its minute order (tentative ruling), the court reviewed the applicable case law as follows: “‘“Apportionment of a fee award between fees incurred on a contract cause of action and those incurred on other causes of action is within the trial court’s discretion . . . .” [Citations.] . . . “However, ‘[a]ttorney[] fees need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed.’” [Citation.]’ [Citation.] ‘Apportionment is not required when the claims for relief are so intertwined that it would be impracticable, if not impossible, to separate the attorney’s time into compensable and noncompensable units.’ [Citation.]”

Applying this case authority, the trial court ruled as follows: “The [c]ourt finds apportionment unnecessary because the first and second causes of action were inextricably intertwined. The first cause of action sought damages for breach of contract. [Citations.] . . . The second cause of action required [Alvarado] to demonstrate (and [Freedman] to defend against) damages arising from the breach of contract. Thus, there was a common issue[s] between the first and second causes of action. Additionally, the principal controverted issue between the parties was whether [Freedman was] the alter ego of ContentX. The issue of alter ego applied equally to both causes of action.”

In his briefing on appeal, Alvarado asserts, “Here, the alter ego doctrine was solely relevant only to the breach of contract cause of action, and the promissory fraud stood on its own, alleging that [Freedman] fraudulently misled [Alvarado] into making the $75,000 loan.” He maintains the court erred by finding the alter ego doctrine applied to the fraud cause of action. He boldly states, “It did not, and the pleadings bear this out as does the record. The issue of alter ego applied only to the breach of contract action.” Alvarado adds the alter ego doctrine was not necessary to establish Freedman’s liability for promissory fraud.

Noticeably missing from this argument are any citations to the record. The reason for this becomes clear after reading Freedman’s respondent’s brief. Freedman’s briefing includes record citations to Alvarado’s pleadings and trial proceedings where Alvarado applied alter ego allegations to both causes of action. For example, the operative pleading incorporated the alter ego allegations into both causes of action. Similarly, Alvarado’s closing argument, which discussed promissory fraud separately from the breach of contract claim, included alter ego allegations for both causes of action. Indeed, the last paragraph of Alvarado’s promissory fraud argument states the following: “[ContentX] extended many carrots (all lies) before [Alvarado] finally agreed to make the loan. . . . The incentives were a far cry from the truth, but worked and Freedman got his AVN sponsorship without paying the price. [A]lvarado like attorney Weinberg’s victims—left holding the bag. Judgment in favor of the plaintiff will eliminate the inequity and injustice the alter ego doctrine is designed to prevent.” (Italics added.) The record shows Alvarado relied on the same evidence to prove both alter ego liability and to establish promissory fraud.

Thus, although alter ego liability was not a necessary element of promissory fraud, in this case, it was the primary basis for Alvarado’s promissory fraud action. As noted in our prior opinion, and in Freedman’s motion for attorney fees, Alvarado did not present any other evidence at trial suggesting Freedman directly made promises or misrepresentations to fraudulently persuade Alvarado to loan money to ContentX. They only spoke once before Alvarado loaned the money, and their conversation did not relate to business matters. Liability was premised on Freedman’s purported dealings “behind the scenes,” acting as ContentX’s alter ego. This theory was included in Alvarado’s closing argument, when he used the analogy that Freedman was hiding like an “[o]strich, claiming he knew nothing” about the loan or Alvarado, but taking the loan money “knowing he would never entertain paying him back.”

Alvarado concedes in his opening brief, “The gravamen of the complaint was that Freedman personally hid behind” ContentX, and the company “lur[ed]” Alvarado into loaning money. The evidence needed to prove Freedman was hiding behind the company, but was actually the one in control, was the same evidence used to prove the alleged alter ego liability. It cannot be said the court abused its discretion in concluding the issue of alter ego liability consumed most of the case, and therefore, apportionment was unnecessary because the two causes of action were inextricably intertwined. (Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 687.)

III. Reasonable Amount of Attorney Fees

As part of the motion for attorney fees, Freedman’s counsel, Dayton B. Parcells III, attached an exhibit containing a “history bill of invoices sent to and paid by Defendants for the attorney[] fees incurred in defending this lawsuit.” Parcells explained the entries were made and recorded when the services were provided, broken down by date, type of service, time, and rates charged by himself, and his associates, Allan B. Claybon and Edward Cosgrove. In his supporting declaration, Parcells stated he had over 25 years of litigation experience, in addition to teaching at universities and working as an arbitrator/mediator. He explained he initially charged new clients $650 per hour, which was reflected in the billing statements. Parcells stated his current customary rate was $750 per hour. In addition, Parcells explained his two associates, Claybon and Cosgrove, respectively, had 10 years and 8 years of extensive civil litigation experience and their customary hourly rate was $350 per hour. Finally, Parcells stated that approximately one year ago a Los Angeles superior court trial judge determined all these billing rates were customary and reasonable.

In his opposition, Alvarado asserted a reasonable hourly rate in Orange County was $350 per hour. He supported this assertion by simply citing the portion of Parcells’s declaration discussing Claybon’s and Cosgrove’s hourly rates. He then inexplicably raised on objection to this same portion of Parcells’s declaration as lacking foundation. He also objected to Parcells’s statement about what a different trial judge determined was a reasonable rate, arguing the evidence was inadmissible hearsay evidence. Finally, he complained the billing statement showed charges for services provided by someone with the initials B.M., and there was no evidence B.M. had “any right to bill $350” per hour.

Although Alvarado did not include a copy of Freedman’s reply brief in the record, Freedman submitted a copy of the document in his respondent’s appendix. In response to Alvarado’s argument Parcells was charging an unreasonable rate, Freedman asserted Alvarado failed to provide any testimony to refute Parcells’s declaration $650 and $750 was the prevailing rate for similar work by attorneys with comparable experience.

The court determined it would reduce the requested attorney fee award by $875 because Parcells’s declaration did not identify the source of invoice entries made by someone with the initials B.M. It noted, “The court does not find that the hourly rates used to calculate the total amount of attorney[] fees are unreasonable.”

“We review attorney fee awards on an abuse of discretion standard. ‘The “experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.”’ [Citation.] ‘Fees approved by the trial court are presumed to be reasonable, and the objectors must show error in the award.’ [Citation.]” (Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 488.) In his briefing, Alvarado simply states a reasonable hourly rate is $350 not $650. He does not refer to any evidence or legal authority to support this theory. This self-serving statement simply does not satisfy his burden of proving the court abused its discretion.

Generally, a trial court deciding whether counsel’s hourly rates are reasonable will look to the “‘“hourly amount to which attorneys of like skill in the area would typically be entitled.”’ [Citations.]” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133.) “The fee applicant has the burden of producing satisfactory evidence, in addition to the affidavits of its counsel, that the requested rates are in line with those prevailing in the community for similar services of lawyers of reasonably comparable skill and reputation.” (Jordan v. Multnomah County (9th Cir. 1987) 815 F.2d 1258, 1263.) Expert testimony is not required. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1096.)

Parcells’s declaration provided sufficient evidence that the claimed rates were in line with those prevailing in the community. He submitted detailed records to permit the trial court to evaluate the time spent, the need for services, the skill employed, and the reasonableness of the rate in light of the complexity of the case. Parcells differentiated himself from his associates, explaining his expertise as a litigator for 25 years justified a higher billing rate than attorneys who had less experience (10 years practicing law). In light of this record, and Alvarado’s failure to present contrary evidence, we find no reason to hold the court abused its discretion.

DISPOSITION

The postjudgment order is affirmed. Respondents shall recover their costs on appeal.

O’LEARY, P. J.

WE CONCUR:

MOORE, J.

FYBEL, J.

Case Name: Holliandrea Toler v. Dolce International – San Jose, Inc., et al.
Case No.: 17-CV-321136

This is a putative wage and hour class action on behalf of employees of defendants Dolce International – San Jose, Inc. and Wyndham Worldwide Operations, Inc. Before the Court is plaintiff’s motion for preliminary approval of a settlement, which is unopposed.

I. Factual and Procedural Background

On October 8, 2017, plaintiff was hired to work as a non-exempt server at defendant’s hotel in San Jose. (First Amended Class Action Complaint (“FAC”), ¶ 8.) Her employment ended on December 3, 2017. (Ibid.) She alleges that defendants failed to pay employees minimum wages for all hours worked, failed to pay minimum wages for missed meal and rest periods, and failed to provide accurate itemized wage statements. (Id. at ¶ 20.) Plaintiff, for example, was paid $9.10 per hour although the minimum wage became $10.50 per hour on January 1, 2017. (Id. at ¶ 24.)

Based on these allegations, the FAC sets forth claims for (1) violation of Labor Code sections 1194, 1197, and 1197.1 by failing to pay minimum wages; (2) violation of Labor Code section 226.7 by failing to pay rest period premiums at the correct hourly rate; (3) violation of Labor Code sections 226.7 and 512 by failing to pay meal period premiums at the correct hourly rate; (4) violation of Labor Code section 226 by failing to provide accurate wage statements; (5) violations of the Unfair Competition Law; and (6) violation of the Private Attorneys General Act (“PAGA”).

The parties have reached a settlement. Plaintiff now moves for an order preliminarily approving the settlement, provisionally certifying the settlement class, approving the form and method for providing notice to the class, and scheduling a final fairness hearing.

II. Legal Standards for Approving a Class Action/PAGA Settlement

Generally, “questions whether a settlement was fair and reasonable, whether notice to the class was adequate, whether certification of the class was proper, and whether the attorney fee award was proper are matters addressed to the trial court’s broad discretion.” (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 234-235, citing Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, disapproved of on other grounds by Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260.)

In determining whether a class settlement is fair, adequate and reasonable, the trial court should consider relevant factors, such as the strength of plaintiffs’ case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction of the class members to the proposed settlement.

(Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at pp. 244-245, internal citations and quotations omitted.)

In general, the most important factor is the strength of plaintiffs’ case on the merits, balanced against the amount offered in settlement. (See Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 130.) Still, the list of factors is not exclusive and the court is free to engage in a balancing and weighing of factors depending on the circumstances of each case. (Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 245.) The court must examine the “proposed settlement agreement to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.” (Ibid., quoting Dunk v. Ford Motor Co., supra, 48 Cal.App.4th at p. 1801, internal quotation marks omitted.)

The burden is on the proponent of the settlement to show that it is fair and reasonable. However “a presumption of fairness exists where: (1) the settlement is reached through arm’s-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.”

(Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 245, citing Dunk v. Ford Motor Co., supra, 48 Cal.App.4th at p. 1802.) The presumption does not permit the Court to “give rubber-stamp approval” to a settlement; in all cases, it must “independently and objectively analyze the evidence and circumstances before it in order to determine whether the settlement is in the best interests of those whose claims will be extinguished,” based on a sufficiently developed factual record. (Kullar v. Foot Locker Retail, Inc., supra, 168 Cal.App.4th at p. 130.)

Finally, Labor Code section 2699, subdivision (l) provides that “[t]he superior court shall review and approve any penalties sought as part of a proposed settlement agreement pursuant to” PAGA. Seventy-five percent of any penalties recovered under PAGA go to the Labor and Workforce Development Agency (“LWDA”), leaving the remaining twenty-five percent for the aggrieved employees. (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 380.) “[T]here is no requirement that the Court certify a PAGA claim for representative treatment” as in a class action. (Villalobos v. Calandri Sonrise Farm LP (C.D. Cal., July 22, 2015, No. CV122615PSGJEMX) 2015 WL 12732709, at *5.) “[W]hen a PAGA claim is settled, the relief provided … [should] be genuine and meaningful, consistent with the underlying purpose of the statute to benefit the public ….” (Id. at *13.) The settlement must be reasonable in light of the potential verdict value (see O’Connor v. Uber Technologies, Inc. (N.D. Cal. 2016) 201 F.Supp.3d 1110, 1135 [rejecting settlement of less than one percent of the potential verdict]); however, it may be substantially discounted given that courts often exercise their discretion to award PAGA penalties below the statutory maximum even where a claim succeeds at trial (see Viceral v. Mistras Group, Inc. (N.D. Cal., Oct. 11, 2016, No. 15-CV-02198-EMC) 2016 WL 5907869, at *8-9).

III. Settlement Process

According to a declaration by plaintiff’s counsel, the parties agreed to attempt mediation shortly after this action was filed. Defendant produced class data that allowed plaintiff to conduct a full damage analysis, including each class member’s regular hours and wages, dates of employment, rates of pay, and meal and rest period premiums paid. The parties participated in a mediation before experienced class action mediator Steven Pearl on January 15, 2019 and achieved a settlement.

IV. Provisions of the Settlement

The non-reversionary gross settlement amount is $600,000. Attorney fees of up to $200,000 (one-third of the gross settlement), litigation costs not to exceed $20,000, and administration costs not to exceed $6,750 will be paid from the gross settlement. $40,000 will be allocated to PAGA penalties, 75 percent of which will be paid to the LWDA. The named plaintiff will also seek an enhancement award of $10,000.

The settlement provides that the net settlement fund will be divided among participating class members pro rata based on their weeks worked during the settlement class period. Class members will not be required to submit a claim to receive their payments. Settlement awards will be allocated 1/2 to wages and 1/2 to interest and penalties, and defendant will separately pay the employer’s share of payroll taxes for the wage portion of the settlement payments. Funds associated with checks uncashed after 120 days will distributed to the Law Foundation of Silicon Valley. Based on the estimated 310 individuals in the putative class, the average payment to each class member will be $1,075.

Class members who do not opt out of the settlement will release all claims “that could have been brought under the facts and allegations made in the operative Complaint,” including specified wage and hour violations, claims under Business and Professions Code section 17200, and PAGA claims.

V. Fairness of the Settlement

Plaintiff estimated the total liability in this action at $1,859,100. The unpaid minimum wage and premium claims were estimated at $234,000, the wage statement claims were valued at $275,000, $917,000 was allocated to waiting time penalties, and PAGA penalties were estimated at $433,100.

Plaintiff submits that the settlement is fair and reasonable to the class based on the general risks of litigation and the merits of this action, including defendants’ argument that service charges were paid to class members to supplement the minimum wage. The Court agrees with this assessment. While the valuation of the unpaid minimum wage and premium claims appears low in light of the allegations of the FAC, the class period, and the class size, the Court assumes that a lower valuation resulted from accounting for service charges paid to class members. The Court also finds that the PAGA allocation provided by the settlement is genuine, meaningful, and reasonable.

The Court retains an independent right and responsibility to review the requested attorney fees and award only so much as it determines to be reasonable. (See Garabedian v. Los Angeles Cellular Telephone Co. (2004) 118 Cal.App.4th 123, 127-128.) While 1/3 of the common fund for attorney fees is generally considered reasonable, counsel shall submit lodestar information prior to the final approval hearing in this matter so the Court can compare the lodestar information with the requested fees. (See Laffitte v. Robert Half Intern. Inc. (2016) 1 Cal.5th 480, 504 [trial courts have discretion to double-check the reasonableness of a percentage fee through a lodestar calculation].)

VI. Proposed Settlement Class

Plaintiff requests that the following settlement class be provisionally certified:

All non-exempt employees who were employed by Dolce International – San Jose, Inc. in the State of California at any time between December 28, 2013 to January 31, 2019.

A. Legal Standard for Certifying a Class for Settlement Purposes

Rule 3.769(d) of the California Rules of Court states that “[t]he court may make an order approving or denying certification of a provisional settlement class after [a] preliminary settlement hearing.” California Code of Civil Procedure Section 382 authorizes certification of a class “when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court ….” As interpreted by the California Supreme Court, Section 382 requires the plaintiff to demonstrate by a preponderance of the evidence (1) an ascertainable class and (2) a well-defined community of interest among the class members. (Sav-On Drug Stores, Inc. v. Superior Court (Rocher) (2004) 34 Cal.4th 319, 326, 332.)

The “community-of-interest” requirement encompasses three factors: (1) predominant questions of law or fact, (2) class representatives with claims or defenses typical of the class, and (3) class representatives who can adequately represent the class. (Ibid.) “Other relevant considerations include the probability that each class member will come forward ultimately to prove his or her separate claim to a portion of the total recovery and whether the class approach would actually serve to deter and redress alleged wrongdoing.” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.) The plaintiff has the burden of establishing that class treatment will yield “substantial benefits” to both “the litigants and to the court.” (Blue Chip Stamps v. Superior Court (Botney) (1976) 18 Cal.3d 381, 385.)

In the settlement context, “the court’s evaluation of the certification issues is somewhat different from its consideration of certification issues when the class action has not yet settled.” (Luckey v. Superior Court (Cotton On USA, Inc.) (2014) 228 Cal.App.4th 81, 93.) As no trial is anticipated in the settlement-only context, the case management issues inherent in the ascertainable class determination need not be confronted, and the court’s review is more lenient in this respect. (Id. at pp. 93-94.) However, considerations designed to protect absentees by blocking unwarranted or overbroad class definitions require heightened scrutiny in the settlement-only class context, since the court will lack the usual opportunity to adjust the class as proceedings unfold. (Id. at p. 94.)

B. Ascertainable Class

“The trial court must determine whether the class is ascertainable by examining (1) the class definition, (2) the size of the class and (3) the means of identifying class members.” (Miller v. Woods (1983) 148 Cal.App.3d 862, 873.) “Class members are ‘ascertainable’ where they may be readily identified without unreasonable expense or time by reference to official records.” (Rose v. City of Hayward (1981) 126 Cal.App.3d 926, 932.)

Here, the estimated 310 class members have already been identified based on defendants’ records, and the class is clearly defined. The Court finds that the class is numerous, ascertainable, and appropriately defined.

C. Community of Interest

With respect to the first community of interest factor, “[i]n order to determine whether common questions of fact predominate the trial court must examine the issues framed by the pleadings and the law applicable to the causes of action alleged.” (Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 908, 916.) The court must also give due weight to any evidence of a conflict of interest among the proposed class members. (See J.P. Morgan & Co., Inc. v. Superior Court (Heliotrope General, Inc.) (2003) 113 Cal.App.4th 195, 215.) The ultimate question is whether the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants. (Lockheed Martin Corp. v. Superior Court, supra, 29 Cal.4th at pp. 1104-1105.) “As a general rule if the defendant’s liability can be determined by facts common to all members of the class, a class will be certified even if the members must individually prove their damages.” (Hicks v. Kaufman & Broad Home Corp., supra, 89 Cal.App.4th at p. 916.)

Here, common legal and factual issues predominate. Plaintiff’s claims all arise from defendants’ wage and hour practices applied to the similarly-situated class members.

As to the second factor,

The typicality requirement is meant to ensure that the class representative is able to adequately represent the class and focus on common issues. It is only when a defense unique to the class representative will be a major focus of the litigation, or when the class representative’s interests are antagonistic to or in conflict with the objectives of those she purports to represent that denial of class certification is appropriate. But even then, the court should determine if it would be feasible to divide the class into subclasses to eliminate the conflict and allow the class action to be maintained.

(Medrazo v. Honda of North Hollywood (2008) 166 Cal. App. 4th 89, 99, internal citations, brackets, and quotation marks omitted.)

Like other members of the class, plaintiff was employed by defendant and alleges that she was paid below the minimum wage. The anticipated defenses are not unique to plaintiff, and there is no indication that plaintiff’s interests are otherwise in conflict with those of the class.

Finally, adequacy of representation “depends on whether the plaintiff’s attorney is qualified to conduct the proposed litigation and the plaintiff’s interests are not antagonistic to the interests of the class.” (McGhee v. Bank of America (1976) 60 Cal.App.3d 442, 450.) The class representative does not necessarily have to incur all of the damages suffered by each different class member in order to provide adequate representation to the class. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 238.) “Differences in individual class members’ proof of damages [are] not fatal to class certification. Only a conflict that goes to the very subject matter of the litigation will defeat a party’s claim of representative status.” (Ibid., internal citations and quotation marks omitted.)

Plaintiff has the same interest in maintaining this action as any class member would have. Further, she has hired experienced counsel. Plaintiff has sufficiently demonstrated adequacy of representation.

D. Substantial Benefits of Class Certification

“[A] class action should not be certified unless substantial benefits accrue both to litigants and the courts. . . .” (Basurco v. 21st Century Ins. (2003) 108 Cal.App.4th 110, 120, internal quotation marks omitted.) The question is whether a class action would be superior to individual lawsuits. (Ibid.) “Thus, even if questions of law or fact predominate, the lack of superiority provides an alternative ground to deny class certification.” (Ibid.) Generally, “a class action is proper where it provides small claimants with a method of obtaining redress and when numerous parties suffer injury of insufficient size to warrant individual action.” (Id. at pp. 120-121, internal quotation marks omitted.)

Here, there are an estimated 310 members of the proposed class. It would be inefficient for the Court to hear and decide the same issues separately and repeatedly for each class member. Further, it would be cost prohibitive for each class member to file suit individually, as each member would have the potential for little to no monetary recovery. It is clear that a class action provides substantial benefits to both the litigants and the Court in this case.

VII. Notice

The content of a class notice is subject to court approval. (Cal. Rules of Court, rule 3.769(f).) “The notice must contain an explanation of the proposed settlement and procedures for class members to follow in filing written objections to it and in arranging to appear at the settlement hearing and state any objections to the proposed settlement.” (Ibid.)

Here, the notice describes the lawsuit, explains the settlement, and instructs class members that they may opt out of the settlement or object. Class members are instructed that they may appear at the final fairness hearing to make an oral objection even if they do not submit a written objection. The gross settlement amount and estimated deductions are provided, along with each class member’s estimated payment. Class members are informed of their qualifying work weeks as reflected in defendant’s records and instructed how to dispute this information. Class members are given 45 days to request exclusion from the class or submit a written objection. The notice is adequate and is approved.

Turning to the notice procedure, the court must consider: “(1) The interests of the class; (2) The type of relief requested; (3) The stake of the individual class members; (4) The cost of notifying class members; (5) The resources of the parties; (6) The possible prejudice to class members who do not receive notice; and (7) The res judicata effect on class members.” (Cal. Rules of Court, rule 3.766(e).) “If personal notification is unreasonably expensive or the stake of individual class members is insubstantial, or if it appears that all members of the class cannot be notified personally, the court may order a means of notice reasonably calculated to apprise the class members of the pendency of the action—for example, publication in a newspaper or magazine; broadcasting on television, radio, or the Internet; or posting or distribution through a trade or professional association, union, or public interest group.” (Cal. Rules of Court, rule 3.766(f).)

The parties have selected Simpluris, Inc. as the settlement administrator. The administrator will mail the notice packet within 15 business days of receiving the class data, after updating class members’ addresses using the National Change of Address database. Any notice packets returned as undeliverable will be re-mailed to any forwarding address provided or located through reasonable efforts including calling the class member and performing a standard skip trace. These notice procedures are appropriate and are approved.

VIII. Conclusion and Order

Plaintiff’s motion for preliminary approval is GRANTED. The final approval hearing shall take place on August 23, 2019 at 9:00 a.m. in Dept. 1.

The following class is provisionally certified for settlement purposes:

All non-exempt employees who were employed by Dolce International – San Jose, Inc. in the State of California at any time between December 28, 2013 to January 31, 2019.

The Court will prepare the order.

Case Name: Darren Pederson v. Apple, Inc., et al.
Case No.: 2012-1-CV-235530

This is an inactive putative class action for fraudulent business practices related to the Apple TV. Before the Court is defendant Apple, Inc.’s motion to seal documents filed in support of plaintiff’s motion for class certification, which is unopposed.

I. Legal Standard

California Rules of Court, rules 2.550 and 2.551 set forth specific criteria for permanently sealing court records. (See Cal. Rules of Court, rule 2.550(d) [stating that the court must make the following express factual findings before granting leave to file records under seal: (1) an overriding interest overcomes the public’s presumptive right of access to court records, (2) that interest supports sealing the records, (3) a substantial probability exists that the overriding interest will be prejudiced if the records are not sealed, (4) the proposed sealing is narrowly tailored, and (5) no less restrictive means exist to achieve the overriding interest].)

These criteria do not directly apply to “discovery motions and records filed or lodged in connection with discovery motions or proceedings.” (See Cal. Rules of Court, rule 2.550(a)(3).) Nonetheless, even in discovery proceedings, a party moving for leave to file records under seal must identify the specific information claimed to be entitled to confidentially and the nature of the harm threatened by disclosure. (See H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 894.)

Where rule 2.550 applies, “[c]ourts have found that, under appropriate circumstances, various statutory privileges, trade secrets, and privacy interests, when properly asserted and not waived, may constitute overriding interests.” (In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 298, fn. 3.) In addition, confidential matters relating to the business operations of a party may be sealed where public revelation of the information would interfere with the party’s ability to effectively compete in the marketplace. (See Universal City Studios, Inc. v. Superior Court (Unity Pictures Corp.) (2003) 110 Cal.App.4th 1273, 1285-1286.)

Where some material within a document warrants sealing, but other material does not, the document should be edited or redacted if possible, to accommodate both the moving party’s overriding interest and the strong presumption in favor of public access. (Cal. Rules of Court, rule 2.550(d)(4), (5).) In such a case, the moving party should take a line-by-line approach to the information in the document, rather than framing the issue to the court on an all-or-nothing basis. (In re Providian, supra, 96 Cal.App.4th at p. 309.)

II. Analysis

Apple moves to file under seal certain exhibits to the Declaration of Patrick N. Keegan filed in support of plaintiff’s motion for class certification. In support of its motions, Apple provides a declaration by its attorney stating that the exhibits contain valuable commercial and competitive information, namely, confidential business and technical information regarding Apple TV 2.0 and 3.0. Public disclosure of this information would give competitors an unfair advantage over Apple.

As described in the parties’ stipulation filed on March 19, 2019 and plaintiff’s response to Apple’s motion to seal filed on April 22, 2019, Apple inadvertently failed to file a motion to seal these materials by the July 6, 2018 deadline previously ordered by the Court. However, the documents remain under seal on the Court’s docket, with the exception of Exhibit 8, which does not appear to have been lodged on the Court’s docket at all.

The information at issue remains confidential and is appropriately filed under seal. Apple’s request is also limited to appropriate exhibits. The factors set forth in rule 2.550(d) are satisfied under the circumstances.

III. Conclusion and Order

Apple’s motion to seal is GRANTED. Within 30 calendar days of the filing of this order, the parties shall file under seal a copy of Exhibit 8 to the Declaration of Patrick N. Keegan filed in support of plaintiff’s motion for class certification.

The Court will prepare the order.

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA

ROBERT SHAFFER, derivatively and on behalf of EXTREME NETWORKS, INC.,

Plaintiff,

vs.

JOHN H. KISPERT, EDWARD B. MEYERCORD, III, CHARLES CARINALLI, EDWARD H. KENNEDY, JOHN C. SHOEMAKER, RAJ KHANNA, RANDI PAIKOFF FEIGIN, MAURY AUSTIN, CHARLES W. BERGER, JOHN T. KURZWEIL, and KEN AROLA,

Defendants,

and

EXTREME NETWORKS, INC.,

Nominal Defendant.
Case No. 2016-1-CV-291726

TENTATIVE RULING RE: MOTION FOR FINAL APPROVAL OF DERIVATIVE SETTLEMENT

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on May 3, 2019, at 9:00 a.m. in Department 5. The Court now issues its tentative ruling as follows:

I. INTRODUCTION

This is a shareholder derivative action. According to the allegations of the Verified Shareholder Derivative Complaint (“Complaint”), filed on February 18, 2016, on October 31, 2013, Extreme Networks completed the acquisition of Enterasys Networks, Inc. (Complaint, ¶ 3.) Extreme Networks also entered into strategic partnerships, one of which was with Lenovo Group Ltd. (Complaint, ¶ 4.) Plaintiff alleges a number of statements made with regard to the acquisition and strategic partnerships were materially false and/or misleading and/or failed to disclose certain information. (Complaint, ¶ 7.) When the market learned of Extreme Networks’ undisclosed operational and financial difficulties, on April 20, 2015, the stock price dropped 25%. (Complaint, ¶ 8.)
The Complaint sets forth the following causes of action: (1) Breach of Fiduciary Duty; (2) Abuse of Control; (3) Gross Mismanagement; and (4) Unjust Enrichment.

The parties have reached a settlement. On January 11, 2019, the Court granted preliminary approval of the settlement. Plaintiff Robert Shaffer (“Plaintiff”) now moves for final approval of the settlement.

II. LEGAL STANDARD

A court reviews the settlement of a derivative suit as a means of protecting the interests of those who are not directly represented in the settlement negotiations. (Robbins v. Alibrandi (2005) 127 Cal.App.4th 438, 449.) A court must therefore scrutinize the proposed settlement agreement to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned. (Ibid.) “The duty of a court reviewing a settlement of a class action provides a useful analogy because the court in such cases seeks to protect the members of the class who, like the corporation and non-named shareholders in a derivative suit, may have no independent representation and little control over the action.” (Id. at p. 449, fn. 2.)

III. DISCUSSION

As discussed in connection with the motion for preliminary approval, the settlement provides for several corporate governance reforms. These include the employment of a deputy general counsel whose most significant area of responsibility includes overseeing and coordinating SEC reporting and review of public disclosures; the implementation of a process for public disclosures related to the integration of an acquired business; the formalization of a process for financial modeling related to acquired business; and education and training regarding the reforms. The settlement also provides for a payment of attorneys’ fees and expenses in the amount of $200,000, to be paid by Extreme Networks’ insurer, and a $1,500 service award to Plaintiff, paid out of the fee and expense award.

Notice of the settlement was provided by posting on the investor relations portion of Extreme Networks’ corporate website. (Declaration of David Priebe regarding Shareholder Notice, ¶ 3.) The notice was also issued as a press release on January 25, 2019 and filed with the SEC on Form 8-K. (Id. at ¶¶ 4-5.) As of April 12, 2019, no objections to the settlement were received by Plaintiff’s counsel. (Declaration of Laurence M. Rosen in Support of Plaintiff’s Motion for Final Approval of Derivative Settlement and for an Award of Attorneys’ Fees and Reimbursement of Expenses, ¶ 29.) Plaintiff has filed a Notice of Non-Objection in Further Support of Motion for Final Approval of Derivative Settlement dated April 26, 2019, stating the deadline to object has passed and no objections have been filed.

The Court previously found the settlement is fair because it eliminates the risk and expense of further litigation and provides corporate governance changes that can protect shareholders in the future. The Court continues to make that finding for purposes of final approval.

Plaintiff requests a service award of $1,500 for class representative Robert Shaffer.

The rationale for making enhancement or incentive awards to named plaintiffs is that they should be compensated for the expense or risk they have incurred in conferring a benefit on other members of the class. An incentive award is appropriate if it is necessary to induce an individual to participate in the suit. Criteria courts may consider in determining whether to make an incentive award include: 1) the risk to the class representative in commencing suit, both financial and otherwise; 2) the notoriety and personal difficulties encountered by the class representative; 3) the amount of time and effort spent by the class representative; 4) the duration of the litigation and; 5) the personal benefit (or lack thereof) enjoyed by the class representative as a result of the litigation. These “incentive awards” to class representatives must not be disproportionate to the amount of time and energy expended in pursuit of the lawsuit.

(Cellphone Termination Fee Cases (2010) 186 Cal.App.4th 1380, 1394-1395, quotation marks, brackets, ellipses, and citations omitted.)

The class representative has submitted a declaration in which he states he regularly communicated with class counsel and evaluated and approved the proposed settlement of this case. (Declaration of Plaintiff Robert Shaffer in Support of his Motion for Final Approval of Derivative Settlement and Reimbursement of Expenses and for a Service Award, ¶ 7.) He estimates he spent about 20 hours on the case. (Id. at ¶ 9.) The Court finds the service award is warranted.

The Court also has an independent right and responsibility to review the requested attorneys’ fees and only award so much as it determines reasonable. (See Garabedian v. Los Angeles Cellular Telephone Co. (2004) 118 Cal.App.4th 123, 127-128.) Plaintiff’s counsel requests attorneys’ fees and costs in the amount of $200,000. This is comprised of a lodestar figure for attorneys’ fees of $248,959.50 and costs of $11,226.99. (Declaration of Timothy Brown in Support of Plaintiff’s Motion for Final Approval of Derivative Settlement and for an Award of Attorneys’ Fees and Reimbursement of Expenses, ¶ 7; Declaration of Laurence M. Rosen in Support of Plaintiff’s Motion for Final Approval of Derivative Settlement and for an Award of Attorneys’ Fees and Reimbursement of Expenses, ¶ 61) This results in a negative multiplier for the requested fees when compared to the lodestar. The Court finds the requested fees and costs to be reasonable and they are approved.

The Court will sign the proposed final order and judgment submitted by Plaintiff if this tentative ruling is not contested.

The Court will set a compliance hearing for September 20, 2019 at 10:00 a.m. in Department 5. At least ten court days before the hearing, class counsel and the settlement administrator shall submit a summary accounting of the net settlement fund identifying distributions made as ordered herein, the number and value of any uncashed checks, amounts remitted to Defendant, the status of any unresolved issues, and any other matters appropriate to bring to the court’s attention. Counsel shall also submit an amended judgment as described in Code of Civil Procedure section 384, subdivision (b). Counsel may appear at the compliance hearing telephonically.

NOTICE: The Court does not provide court reporters for proceedings in the complex civil litigation departments. Parties may arrange for a private court reporter to provide services, but those arrangements must be consistent with the local rules and policies posted on the Court’s website.

Case Number: BC694681 Hearing Date: May 07, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

TERESA PEREZ, ET AL.,

Plaintiff(s),

vs.

EMIGEL CALERO RESYSTA., ET AL.,

Defendant(s).

CASE NO: BC694681

[TENTATIVE] ORDER GRANTING DEFENDANT’S UNOPPOSED MOTIONS TO COMPEL AND MOTION TO DEEM RFAS ADMITTED

Dept. 3

1:30 p.m.

May 7, 2019

Defendant propounded special interrogatories, form interrogatories, RFAs, and RPDs on Plaintiff, Teresa Perez on 11/18/18. To date, despite a meet and confer effort, Plaintiff has not served responses. Defendant therefore seeks an order compelling Plaintiff to respond, without objections, to the outstanding interrogatories and RPDs, deeming the RFAs admitted, and imposing sanctions.

Defendant’s motions to compel are granted. Plaintiff is ordered to serve verified responses to form interrogatories, special interrogatories, and RPDs, without objections, within ten days. CCP §§2030.290(a),(b), 2031.300(a),(b).

Defendant’s motion to deem RFAs admitted is also granted. CCP §2033.280(b).

Sanctions are mandatory. §§2030.290(c), 2031.300(c), 2033.280(c). Defendant seeks sanctions in the amount of $2362.95. The Court awards the requested 1.5 hours to prepare the motion. No opposition was filed and therefore no reply was necessary. The Court awards three hours of time to appear; the Court does not find it reasonable to require Plaintiff to pay for Defendant’s choice to retain an attorney outside of Los Angeles County. The Court awards a total of 4.5 hours of attorney time at the requested rate of $295/hour, or $1327.50 in attorneys’ fees. The Court also awards the requested $150.45 in costs.

Sanctions are sought and imposed against Plaintiff and her attorney of record, jointly and severally; they are ordered to pay sanctions to Defendant, by and through his attorney of record, in the total amount of $1477.95, within twenty days. Defendant is ordered to give notice.

Case Number: BC673274 Hearing Date: May 07, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEEFENDANT MICHAEL H. ROBBINS, D.D.S.’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

On August 22, 2017, Plaintiff Jonathan Chapin (“Plaintiff”) filed this action against Defendant Michael H. Robbins, D.D.S. (“Defendant”) for dental negligence relating to treatment rendered between 1986 and 2016. Defendant moves for summary judgment on grounds this action is barred by the statute of limitations.

II. FACTUAL BACKGROUND

Plaintiff first presented to Defendant on October 30, 1986. (Undisputed Material Fact “UMF” No. 2.) In 1986, Defendant’s patient notes indicate Plaintiff’s periodontal condition was healthy and stable with periodontal measurements generally 2-3 mm. He also noted Plaintiff gave a history of smoking one pack of cigarettes per day. (UMF No. 3.) In July 1990, Defendant performed deep scaling and root planning and noted Plaintiff had “bony defects” on the upper right and left second molars. Defendant advised Plaintiff he may need periodontal surgery and the notes indicate Plaintiff “wanted to wait . . . not ready.” In March 1992, Defendant performed periodontal surgery on the upper left back teeth (teeth #12-15). (UMF No. 7.) In October 1994, Defendant recommended periodontal surgery on tooth #8, which had developed a 6mm pocket. Plaintiff “wanted to wait,” which Defendant documented in the chart. (UMF No. 8.) On July 31, 1995, Defendant noted extensive bone loss on three upper right front teeth (teeth #6, 7, 8), which had caused the teeth to begin to rotate. An appliance was made to straighten the teeth. (UMF No. 9.)

In 1997, Plaintiff’s periodontal condition worsened. However, Defendant’s notes indicate Plaintiff did not want to have periodontal surgery and wanted to wait to see if the condition improved. A June 9, 1998 x-ray demonstrated extensive breakdown of bone on the upper right front teeth. Defendant performed an emergency laser treatment in the area of teeth #6 and 8 and a root canal on tooth #8. (UMF No. 10.) On June 14, 1999, Defendant performed periodontal surgery on the upper right quadrant (teeth #2-7) and grafted the area with synthetic bone. Nothing in the chart reflects Plaintiff complained of severe gum recession. (UMF No. 11.)

In 2001, the notes indicate Plaintiff was still smoking heavily and had poor oral hygiene. Defendant’s notes indicate Plaintiff wanted to continue maintenance of his periodontal condition without surgery. (UMF No. 12.) In 2005, Defendant recommended periodontal surgery for the upper right teeth (teeth #2-6) and indicated in his notes that Plaintiff’s periodontal condition was worsening. Defendant also recommended surgery for the molars to the left side (teeth #14-15 and #18-19). Defendant again documented Plaintiff’s response was that Plaintiff wanted to wait. Oral hygiene was noted to be poor and the smoking continued. (UMF No. 13.) In November 2006, Defendant referred Plaintiff to Sam Markzar, a periodontist, for evaluation and treatment. (UMF No. 14.)

On May 29, 2007, Defendant received a letter from Dr. Markzar stating Plaintiff was diagnosed with generalized severe chronic periodontitis with localized acute periodontal abscess on teeth #6, 7, and 8. The treatment plan included deep cleanings (scaling and root planning), possible surgery, and potentially replacing certain teeth with implants. The letter stated Plaintiff was well educated about his condition. (UMF No. 15.)

Dr. Markzar’s custom and practice is to discuss the effects of smoking on the periodontal status. (UMF No. 22.) Dr. Markzar’s plan was to treat Plaintiff’s deep pockets and per his custom and practice, would have discussed his treatment plan with Plaintiff. (UMF No. 28.) Dr. Markzar’s notes reflect that Plaintiff had pus around several upper right anterior teeth (teeth #6, 7, and 8). (UMF No. 29.) The patient chart also reflects certain teeth were loose. (UMF No. 30.) The notes indicate a “plan for replacement of poor prognosis teeth via implants.” (UMF No. 32.) Dr. Markzar’s written sequential treatment plan confirms that Dr. Markzar explained to Plaintiff that he had severe periodontal disease. (UMF No. 35.) Dr. Markzar performed periodontal surgery on Plaintiff on June 7, 2007. (UMF No. 36.) Post-surgery notes indicate Plaintiff was informed he would have “higher shrinkage” and “apical displacement” of his gums due to the severity of his periodontal problems. (UMF No. 38.)

After surgery, Plaintiff was shocked and almost burst into tears upon seeing how his gums and teeth looked. (UMF Nos. 54, 55.) Plaintiff was shocked at how much gum tissue had been removed in surgery. (UMF No. 57.) On July 20, 2007, Plaintiff returned to Defendant and was very unhappy that the periodontal surgery had resulted in large triangular spaces between his upper right teeth. (UMF No. 59.) Defendant recommended that Plaintiff return to Dr. Markzar, but Plaintiff refused. (UMF No. 60.) In 2008, Defendant again recommended that Plaintiff return to Dr. Markzar, but Plaintiff did not want to. (UMF No. 61.) Thereafter, Plaintiff continued to have periodontal dental cleanings at Defendant’s office. During these visits, Defendant and the dental hygienist repeatedly informed Plaintiff that his periodontal condition was poor and the condition of his teeth was “guarded” due to poor oral hygiene and continued smoking. (UMF No. 62.) In 2012, Defendant informed Plaintiff of his increased pocket depth/inflammation and his worsening oral condition. Defendant prescribed low dose antibiotics. Plaintiff insisted he wanted to maintain his condition without surgery or extractions. (UMF No. 63.) The 2014 and 2015 patient notes show Defendant repeatedly informed Plaintiff of his serious condition. In July 2015, Plaintiff stated he could not financially handle any replacement of teeth or complicated treatment. (UMF No. 64.) In 2016, the notes indicate that Defendant again informed Plaintiff that his periodontal condition was worsening. (UMF No. 65.) July 21, 2016 was Plaintiff’s final visit to Defendant’s office. (UMF No. 66.)

III. LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown 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).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“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).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV. DISCUSSION

As framed by the Complaint, Plaintiff alleges Plaintiff consulted with Defendant from about 1985 through July 2016 for the purpose of obtaining dental care and treatment. According to the Complaint, “[f]rom and after said times” Defendant negligently treated and care for Plaintiff, and “during the course of the Plaintiff’s dental treatment, Defendant . . . failed to properly monitor Plaintiff’s dental condition all to his damage.” (Complaint, ¶¶ 8, 11.) Thus, Plaintiff is complaining about negligence during the entire course of his time as a patient of Defendant. Specifically, Plaintiff alleges Defendant failed to properly monitor Plaintiff’s dental condition, failed to diagnose and treat and refer Plaintiff to a periodontal specialist for existing dental pathologies, and that as a result of these failures, Plaintiff experienced significant generalized attachment loss, severe gingival recession, tooth mobility, areas of root caries and resorption due to bone and tissue loss, root exposure and advanced bone loss due to generalized advanced periodontitis. (Complaint, ¶ 11.)

At issue is whether this action is barred by the statute of limitations. In an action for injury against a health care provider based upon alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person. (Code Civ. Proc., § 340.5.)

A plaintiff in a medical malpractice action must satisfy the requirements of both the one-year and three-year limitations periods. (Brown v. Bleiberg (1982) 32 Cal.3d 426, 436-437.) The injury commences both the three-year and one-year limitations periods (Larcher v. Wanless (1976) 18 Cal.3d 646, 658), but the one-year limitations period does not begin to run until the plaintiff discovers both his or her injury and its negligent cause (Drexler v. Petersen (2016) 4 Cal.App.5th 1181, 1189). The three-year limitations period is “designed to put an outside cap on the commencements of actions for medical malpractice, to be measured from the date of the injury, regardless of whether or when the plaintiff discovered its negligent cause.” (Marriage & Family Center v. Superior Court (1991) 228 Cal.App.3d 1647, 1652.)

The “injury” is not necessarily the ultimate harm suffered, but instead occurs at “the point at which ‘appreciable harm’ is first manifested.” (Brown, supra, 32 Cal.3d at p. 437, fn. 8; Drexler, supra, 4 Cal.App.5th at p. 1190 [“The word ‘injury’ in section 340.5 ‘refers to the damaging effect of the alleged wrongful act and not the act itself’”]; Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 762 [“Once the damaging effect of the alleged wrongful act is apparent, the statute is activated”].) “The word ‘manifest’ as used by our courts indeed suggests not only actual damage but that the damage has made itself known in some outward fashion.” (Marriage & Family Center, supra, 228 Cal.App.3d at p. 1652.) “‘Each case necessarily will turn on its own particular circumstance. It could well be that an injury or pathology will not manifest itself for some period after the last treatment by a physician. On the other hand, that injury or pathology may manifest itself and the patient will suffer known appreciable harm at a time prior to the ‘ultimate’ result. In the latter case, the . . . period will start to run at the point at which the ‘appreciable harm’ is first manifested.” (Mason v. Marriage & Family Center (1991) 228 Cal.App.3d 537, 543.)

“‘The question of when there has been a belated discovery of the cause of action, especially in malpractice cases, is essentially a question of fact,’ and ‘it is only where reasonable minds can draw but one conclusion from the evidence that the question becomes a matter of matter of law.’ [Citation.]” (Drexler, supra, 4 Cal.App.5th at p. 1189.)

Defendant argues that the undisputed facts show appreciable harm manifested no later than June 2007, based on Plaintiff’s consultation and seven-month treatment with Dr. Markzar, which resulted in exposed roots and big gaps between Plaintiff’s teeth—providing Plaintiff with actual knowledge of his periodontal injuries. It is undisputed that in May 29, 2007, Dr. Markzar provided a diagnosis of “generalized severe chronic periodontitis with localized acute periodontal abscess on teeth numbers 6, 7, and 8.” On June 7, 2007, Plaintiff underwent periodontal surgery by Dr. Markzar and Dr. Markzar’s notes indicate he informed Plaintiff he would experience gum shrinking and recession due to the severity of the bone loss. After the surgery, it is undisputed that Plaintiff was fully aware of the “appreciable harm,” when he was in shock at the amount of gum tissue that had been removed and was unhappy with the cosmetic appearance of the gaps in his teeth and gums. Defendant contends that based on Plaintiff’s own deposition testimony, there is no question that appreciable harm had manifested itself and Plaintiff was fully aware of the harm, as he returned to Defendant’s office complaining of the outcome of the surgery with Dr. Markzar.

Defendant further argues that under the “reasonable person” standard and the “discovery rule” applicable to the one-year statute of limitations, Plaintiff had actual knowledge which bars this action. “A plaintiff is held to her actual knowledge as well as knowledge that could reasonably be discovered through investigation of sources open to her.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110.) “Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.” (Ibid.) Defendant argues that Plaintiff had actual knowledge of injury in June 2007 when he was diagnosed with chronic severe periodontal disease, when he underwent periodontal surgery, and when he became distraught upon seeing how much gum tissue was removed and the gaps in his teeth. At the very least, Plaintiff had or should have had suspicions of injury such that he should have conducted a reasonable investigation and filed this action within one year of that date.

The Court finds Defendant has met his initial burden of showing that based on the undisputed facts, this action is barred by the statute of limitations. The burden shifts to Plaintiff to show a triable issue of fact exists. Defendant’s objections to the Declaration of Robert McCulloch and Jonathan Chapin are overruled.

Plaintiff argues that he first suspected dental negligence on November 23, 2016, when he was seen by Dr. Stella Kahn and Dr. Kevin Sands, who advised Plaintiff that he would require 8-10 extractions due to bone loss. Plaintiff states this is the first date he was advised about the extent and severity of his ongoing periodontal disease and that he would potentially lose multiple teeth due to bone loss. On November 29, 2016, Plaintiff consulted with periodontist Dr. Soleymani, who advised Plaintiff had aggressive generalized advanced periodontitis. On March 24, 2017, Plaintiff consulted with prosthodontist Dr. Davodi, who advised Defendant was aware of the extent and severity of Plaintiff’s chronic periodontal disease and failed to undertake a comprehensive plan to manage and treat the condition.

Plaintiff contends there is a triable issue of fact as to when Plaintiff actually had notice or should have had notice of the subject injury and cause thereof. Plaintiff relies on Kitzig v. Nordquist (2008) 81 Cal.App.4th 1384, where the plaintiff was treated by defendant dentist from January 1992 to August 1995, during which time the plaintiff suffered a series of infections and failed implants. The plaintiff filed her action in April 1996 and the jury found that the one-year limitations period did not begin to run when plaintiff consulted with a second dentist in May 1994, which the defendant had argued showed her suspicion or knowledge of negligent treatment. (Id. at p. 1390.)

Plaintiff’s reliance on Kitzig is misplaced. Plaintiff argues exclusively about the discovery rule, which applies only when the one-year statute of limitations is at issue. Plaintiff neglects the three-year statute of limitations and that a plaintiff in a medical malpractice action must satisfy both the one-year and three-year limitations period. (Brown, supra, 32 Cal.3d at pp. 436-437.) Kitzig focused solely on the one-year statute of limitations and therefore, analysis of the plaintiff’s suspicions of wrongdoing and her ongoing patient relationship with the defendant were crucial to determining when the plaintiff discovered the injury, thereby triggering the one-year statute of limitations. (Kitzig, supra, 81 Cal.App.4th at pp. 1392-1393.) Here, even if Plaintiff did not discover the injury and the cause of the injury until November 23, 2016, his action is still barred if he failed to file it within three years of the manifestation of appreciable harm.

Plaintiff contends he was not informed of the full extent and severity of his periodontal condition until November 23, 2016, when he was advised he would need 8-10 extractions. The need for 8-10 extractions can be characterized as the “ultimate harm” resulting from Defendant’s alleged negligence. The court in Marriage & Family Center expressly rejected the “correlation between manifestation of damage and the plaintiff’s ‘discovery’ of the damage” (Marriage & Family Center, supra, 228 Cal.App.3d at p. 1654), and it is well settled that a plaintiff need not suffer his or her “ultimate harm” for either of section 340.5’s limitations periods to start running (Hills, supra, 152 Cal.App.3d at p. 762). Therefore, the crucial inquiry is when the appreciable harm first manifested, thereby triggering the three-year statute of limitations.

“[D]amage is ‘manifested’ for purposes of commencing the three-year period when it has become evidenced in some significant fashion, whether or not the patient/plaintiff acutally becomes aware of the injury . . . [S]evere damage which does not show itself (hidden cancer, for instance) is not ‘injury’ until it is found by diagnosis. It does not follow, however, that damage which has clearly surfaced and is noticeable is not ‘injury’ until either the plaintiff or her physican recognize it.” (Marriage & Family Center, supra, 228 Cal.App.3d at p. 1654.) In Drexler, the Court of Appeal addressed when appreciable harm is manifest in the context of an alleged failure to diagnose or treat a preexisting condition. (Drexler, supra, 4 Cal.App.5th at p. 1194.) The court concluded, “With the worsening of the plaintiff’s condition, or an increase in or appearance of significant new symptoms, the plaintiff with a preexisting condition either actually (subjectively) discovers, or reasonably (objectively) should be aware of, the physical manifestation of his or her injury.” (Ibid.)

This not a case of hidden damage where the harm of negligent diagnosis is manifested only by correct diagnosis. Plaintiff alleges Defendant negligently monitored and treated his periodontal status, including failing to refer him to a periodontist. The undisputed facts show the worsening condition of his periodontal status manifested throughout his treatment with Defendant. Plaintiff testified that when he started treating with Defendant in 1986, he saw Defendant on 6-month intervals. In 1991, he started seeing Defendant at 3-month intervals. It was explained to Plaintiff that he needed to come in more frequently because he was showing signs of gum disease. (UMF No. 42; Pltff’s Depo., 86:14-87:1.) The harm—i.e., the worsening of Plaintiff’s periodontal condition as a result of Defendant’s alleged negligent treatment—was manifest at that time. Between 1990 and 1997, Plaintiff underwent periodontal surgery to some teeth, emergency laser treatment and root canal, and was repeatedly recommended to undergo periodontal surgery. Plaintiff insisted he wanted to wait and see if the condition improved. In 2001 and 2005, Defendant made additional recommendations that Plaintiff undergo periodntial surgery, but Plaintiff wanted to wait. Throughout this time, the harm was again manifest—that Plaintiff’s condition was worsening.

Defendant referred Plaintiff to Dr. Markzar in 2006, where Plaintiff was diagnosed with generalized severe chronic periodontitis with localized acute periodntal abscess on teeth #6, 7 and 8. From November 2006 through June 2007, Plaintiff treated with Dr. Markzar. Dr. Markzar’s notes reflect Plaintiff had pus around several teeth, that certain teeth were loose, and a treatment plan to replace poor prognosis teeth via implants. Dr. Markzar performed periodontal surgery on Plaintiff on June 7, 2007, after which, Plaintiff was shocked by and unhappy with the amount of gum tissue that had been removed.

Plaintiff argues that he was never advised of the “ultimate harm” of tooth loss, or the severity of his condition, and that because Defendant had performed prior periodontal surgeries on some teeth, there was no reason for him to believe the periodontal surgery with Dr. Markzar signified a worsened condition. Plaintiff argues Defendant assured Plaintiff that his periodontal condition was being managed. Again, these arguments focus on discovery of the injury rather than manifestation of appreciable harm.

The decision in Marriage & Family Center is instructive. There, the plaintiff was sexually abused by her father, her first therapist, and her second therapist, Dr. Hansen. The plaintiff subsequently sought treatment by another therapist, Dr. Morris. (Mariage & Family Center, supra, 228 Cal.App.3d at p. 1650.) When Dr. Morris began treating the plaintiff in 1985, he reported the abuse by plaintiff’s father, first therapist, and Dr. Hansen. (Ibid.) Dr. Morris also identified the abuse by Dr. Hansen as a cause of plaintiff’s emotional damage, anxiety, and inability to effectively funciton and work. (Ibid.) The plaintiff filed a malpractice action against Dr. Hansen in 1989, and Dr. Hansen filed a summary judgment motion on grounds the action was barred by the statute of limitations. (Ibid.) The plaintiff argued that only through her four years of treatment with Dr. Morris did she begin to see the events more objectively, and she did not “discover” her cause of action against Dr. Hansen until late in her treatment with Dr. Morris. (Id. at p. 1654.)

The trial court denied the defendant’s motion for summary judgment. On appeal, the appellate court stated, “Dr. Morris’s reports can be read as suggesting that while he understood as early as 1985 the damage which had been done to plaintiff, he did not effectively advise her of it until a much later date. Assuming these facts, we have the unique situation of plaintiff’s damage being most manifest—indeed being recognized by her physician—but not being recognized or understood by the plaintiff.” (Id. at p. 1655.) The appellate court then explained, “[t]he one-year period commences when the ‘plaintiff discovers . . . the injury.’ The three-year period, however, commences simply upon the ‘date of injury.’ That nothing beyond the mere existence of the ‘injury’ is to be required is emphasized by the statement that the three-year period may be extended only by three specific exceptions, none of which relates to the plaintiff’s discovery of her condition (absent fraud or concealment by the defendant).” (Id. at p. 1654.) Given this, the Court of Appeal concluded “there can be no dispute, under the admitted facts of the case, that the three-year statute has run; the superior court therefore should have granted summary judgment in favor of petitioner.” (Id. at p. 1655.)

Similarly, here, the harm of Defendant’s alleged failure to adequately monitor and treat Plaintiff’s periodontal condition manifested throughout his treatment with Defendant and especially when Plaintiff treated with Dr. Markzar in 2007. Defendant and Dr. Markzar recognized the injury (the worsening of Plaintiff’s condition) even if Plaintiff did not accept it or understand the consequences (the loss of teeth, i.e., the ultimate harm) until 2016. Significantly, Plaintiff argues he was never advised as to the “extent” and “severity” of his condition, not that he was never advised as to the worsening condition. Plaintiff’s worsening periodontial prognosis was manifest when he was required to see Defendant every three months, rather than six; when he was advised to undergo periodontal surgery, but he insisted he wanted to wait; when he was referred to and treated by Dr. Markzar, who diagnosed Plaintiff with generalized severe chronic periodontitis; and when he saw how much gum tissue was removed after surgery. Plaintiff was aware of the condition and that it was manifest, even if he did not know the “extent” or “severity” of the ultimate harm.

While there is evidence of manifestation of appreciable harm much earlier, the injury—actual and apparent manifestation of harm as a result of Defendant’s alleged failure to monitor and treat Plaintiff’s periodontal condition—occurred by at least 2007. Therefore, the statute of limiations has expired and this action is barred.

V. CONCLUSION

In light of the foregoing, the Motion for summary judgment is GRANTED.

Moving party to give notice.

Case Number: BC718428 Hearing Date: May 07, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

WILLEAN WEBB,

Plaintiff,

v.

JAKE MEEKS, et al.,

Defendants.

Case No.: BC718428

Hearing Date: May 7, 2019

[Tentative] order RE:

MOTION TO COMPEL DEPOSITION OF DEFENDANT JAKE MEEKS AND REQUEST FOR PRODUCTION OF DOCUMENTS

On August 20, 2018, Plaintiff Willean Webb (“Plaintiff”) filed a complaint against Defendants Jake Meeks (“Defendant Meeks”) and Outsource Utility Contractor Corp. (“Defendant Outsource”) following an automobile collision. Plaintiff now moves to compel Defendant Meeks’ deposition, which Defendants oppose. Code of Civil Procedure section 2025.450(a) provides: “If, after service of a deposition notice, a party to the action . . . , without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document . . . described in the deposition notice.”

Plaintiff noticed the depositions of “the following Employee(s) and/or Person(s) Most Qualified” for Defendant Outsource, naming Defendant Meeks and Defendant Meeks’s supervisor, for November 2, 2018, at 9:00 a.m. and 10:00 a.m., respectively. (Berkley Decl., ¶ 5 & Exh. #1.) On October 30, 2018, Plaintiff’s counsel’s office sent an email to confirm the depositions. (Id., ¶ 6 & Exh. #2.) The next day, defense counsel stated that he is not available due to a “calendar conflict.” (Id., ¶ 6 & Exh. #2.) Plaintiff’s counsel faxed a meet-and-confer letter requesting a response within one week proposing alternate dates. (Id., ¶ 9 & Exh. #4.) When defense counsel did not respond, Plaintiff’s counsel noticed the depositions for December 11, 2018. (Id., ¶ 10 & Exh. #5.) On December 4, 2018, Defendants served an objection because Defendant Meeks, the PMQ, and defense counsel were not available that date. (Id., ¶ 11 & Exh. #6.) Plaintiff’s counsel again faxed a meet-and-confer letter requesting a response within one week proposing alternate dates. (Id., ¶ 12 & Exh. #7.) When defense counsel did not respond, Plaintiff’s counsel noticed the depositions for January 9, 2019. (Id., ¶ 13 & Exh. #8.) In January 3, 2019, defense counsel stated Defendant Meeks is “out of town” and will not “be back until Mid-June 2019.” (Id., ¶ 14 & Exh. #2.) Plaintiff’s counsel was willing to re-notice the deposition for February 7, 2019. (Id., Exh. #2.) At that point, defense counsel said that Defendant Meeks would not be available until April 22, 24, or 26, 2019. (Ibid.) Plaintiff then filed this motion.

Based upon the foregoing, the Court grants the motion. The Court orders the deposition of Defendant Meeks to occur within thirty (30) days of notice of this order unless Plaintiff stipulates to a different date.

Plaintiff has requested sanctions in the amount of $5,586.65 against Defendant Meeks and counsel-of-record. Based upon this record, the Court finds that Defendant Meeks and his counsel have abused the discovery process. Defendant Meeks argues that the discussions and correspondence referenced only the PMQ, and not Defendant Meeks. This argument is not supported by the deposition notices—which clearly name Defendant Meeks and give a time for the deposition—and the correspondence in which the parties discuss Defendant Meeks’s schedule. However, the Court finds that $5,586.65 is excessive, and the Court is concerned because the time estimates are in thirty minute increments, rather than six minute increments as is common. Therefore, the Court orders sanctions in the amount of $1,060, based upon five hours of attorney time at a reasonable billing rate of $200 per hour, plus the $60 filing fee.

CONCLUSION AND ORDER

The motion to compel the deposition of Defendant Meeks is granted. The deposition of Defendant Meeks, and all related productions of documents, shall occur within thirty (30) days of notice of this order unless Plaintiff’s counsel stipulates to a different date.

Defendant Meeks and his counsel-of-record are ordered to pay $1,060 in sanctions, jointly and severally, to Plaintiff within thirty (30) days of notice of this order.

Plaintiff shall give notice and file proof of such with the Court.

DATED: May 7, 2019 ___________________________

Hon. Stephen I. Goorvitch

Judge of the Superior Court

Isabel Siefe vs Sina Faravashi et al
Case No: 18CV05879
Hearing Date: Wed May 08, 2019 9:30

Nature of Proceedings: Case Management Conference; Motion to Strike

TENTATIVE RULING:

For the reasons set forth herein, the motion of defendant County of Santa Barbara to strike portions of plaintiff Isabel Seife’s complaint is denied. Defendant County shall file and serve its answer to the complaint on or before May 23, 2019.

Background:

As alleged in the complaint: Plaintiff Isabel Seife was riding her bicycle east on Sueno Road approaching the intersection of Camino Pescadero on November 15, 2017. (Complaint, ¶ 8.) Seife stopped at the stop sign and looked to the left and right. (Ibid.) Defendant Sina Faravashi was driving south on Camino Pescadero at an unsafe speed. (Complaint, ¶ 12.) At the time Seife had reached roughly the middle of Camino Pescadero, Seife was hit by the vehicle driven by Faravashi, causing serious bodily injuries to Seife. (Complaint, ¶ 13.)

On May 4, 2018, Seife filed with defendant County of Santa Barbara (County) a claim form describing the incident and Seife’s claim for liability against County. The claim form states in part:

“On November 15, 2017, the above-described public property was in a dangerous condition that created a substantial risk of the type of injury alleged when the property was used with due care in a manner that was reasonably foreseeable that it would be used in. The placement of the stop sign on Sueno Road at the intersection with Camino Pescadero is set far back from the intersection which obscures and prevents visibility to persons entering the roadway onto Camino Pescadero or approaching Sueno Road from Camino Pescadero. The placement of the stop sign and the failure to paint curbs red at or near the comers of the intersection obscured the view of drivers approaching the intersection so that drivers/bicyclists crossing from all directions could reasonably believe they had the right of way and could not see automobiles, bicycles, joggers and/or pedestrians coming from different directions.” (Request for Judicial Notice [RJN], exhibit A, p. 5.) “As a proximate result of the dangerous condition of the intersection, when Isabel Seife entered the intersection, she was struck by an automobile driven by Sina Faravashi, who did not stop because he could not see Isabel Seife because the visibility of automobiles and/or bicyclists traveling on Camino Pescadero towards Sueno Road was obstructed by cars parked near the comers of the intersection thereby causing injuries to the claimant.” (Ibid.) (Note: County has failed to provide continuous pagination for its exhibits as required by Rules of Court, rule 3.1110(c). Page numbers provided here are to the page of the electronic document filed in the court.)

On June 7, 2018, County denied plaintiff’s claim. (RJN, exhibit B.)

On December 3, 2018, Seife filed her original complaint in this action against Faravashi, as driver, against Sohrab Faravashi as the owner of the vehicle (Complaint, ¶ 4), and against County. The second cause of action, asserted against County, is for liability based on a dangerous condition of public property. Seife alleges:

“The intersection of Sueno Road and Camino Pescadero was unsafe, dangerous and defective for reasons including, but not limited to, the following:

“a. The placement of the stop sign on Sueno Road at the intersection with Camino Pescadero is set far back from the intersection which obscures and prevents visibility to persons entering Camino Pescadero.

“b. The County failed to paint curbs red at the corners of the intersection of Sueno Road and Camino Pescadero which allowed vehicles to park at the corners of the intersection and obscure the view of persons entering Camino Pescadero.

“c. The County failed to cut trees located at the corner of the intersection of Sueno Road and Camino Pescadero, thus obscuring the view of persons entering Camino Pescadero.” (Complaint, ¶ 25.)

On March 28, 2019, defendants Sina Faravashi and Sohrab Faravashi filed their answer to the complaint, generally denying the allegations thereof and asserting four affirmative defenses.

On April 2, 2019, County filed its motion to strike paragraph 25(c) from the complaint on the grounds that Seife’s claim filed with County did not expressly identify the failure to cut trees as a basis for negligence liability.

Seife opposes the motion.

Analysis:

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436.) “Irrelevant matter” includes an “allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense.” (Code Civ. Proc., § 431.10, subds. (b)(2), (c).) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).)

In support of the motion, County requests that the court take judicial notice of: (RJN, exhibit A) plaintiff’s notice of claim filed with County; and, (exhibit B) County’s written rejection of the claim. The court grants the unopposed request for judicial notice. (See Evid. Code, § 452, subds. (c), (h).) Judicial notice does not extend to the truth of factual matters set forth in such documents.

“[N]o suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented … until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board ….” (Gov. Code, § 945.4.)

County argues that the claim of negligence asserted in paragraph 25(c) of the complaint is a different claim than the claim presented in plaintiff’s claim form and therefore is an improper allegation subject to a motion to strike. Seife argues that the assertion of liability relating to the failure to cut trees is not a new or different claim from Seife’s claim that County is liable based upon the placement of the stop sign and the attendant lack of visibility.

“As noted above, section 945.4 requires each cause of action to be presented by a claim complying with section 910, while section 910, subdivision (c) requires the claimant to state the ‘date, place, and other circumstances of the occurrence or transaction which gave rise to the claim asserted.’ If the claim is rejected and the plaintiff ultimately files a complaint against the public entity, the facts underlying each cause of action in the complaint must have been fairly reflected in a timely claim. [Citation.] ‘[E]ven if the claim were timely, the complaint is vulnerable to a demurrer if it alleges a factual basis for recovery which is not fairly reflected in the written claim.’ [Citation.]” (Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 447 (Stockett).)

“The claim, however, need not specify each particular act or omission later proven to have caused the injury. [Citation.] A complaint’s fuller exposition of the factual basis beyond that given in the claim is not fatal, so long as the complaint is not based on an ‘entirely different set of facts.’ [Citation.] Only where there has been a ‘complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim,’ have courts generally found the complaint barred. [Citation.] Where the complaint merely elaborates or adds further detail to a claim, but is predicated on the same fundamental actions or failures to act by the defendants, courts have generally found the claim fairly reflects the facts pled in the complaint.” (Stockett, supra, 34 Cal.4th at p. 447.)

Not surprisingly, the parties rely respectively upon cases that find a claim form statement sufficient or insufficient. County principally relies upon Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242 (Laabs), Turner v. State of California (1991) 232 Cal.App.3d 883 (Turner), and Donohue v. State of California (1986) 178 Cal.App.3d 795 (Donahue). Seife principally relies on Stockett, supra, 34 Cal.4th 441, Stevenson v. San Francisco Housing Authority (1994) 24 Cal.App.4th 269 (Stevenson), Blair v. Superior Court (1990) 218 Cal.App.3d 221 (Blair), White v. Superior Court (1990) 225 Cal.App.3d 1505 (White), and Smith v. County of Los Angeles (1989) 214 Cal.App.3d 266 (Smith). Insofar as the parties’ arguments seek to establish that one line of cases is factually more pertinent to the disposition of this motion than the other, it is useful first to look at the factual bases underlying these cases.

In Laabs, an automobile accident occurred at the intersection of a four-lane highway and a two-lane roadway, with a stop sign and limit line on the two-lane roadway. (Laabs, supra, 163 Cal.App.4th at pp. 1247-1248.) The accident occurred where one vehicle was turning from the two-lane roadway onto the four-lane roadway and was struck by a speeding vehicle in the four-lane roadway. (Id. at pp. 1248-1249.) The plaintiff, a passenger in the speeding vehicle, asserted in her complaint a cause of action against the defendant city based upon a dangerous condition of public property. (Id. at pp. 1248, 1249.) The complaint alleged that there was inadequate sight distance so that the driver of the turning vehicle did not perceive the approaching speeding vehicle as a result of the negligent design, construction, maintenance, and control of the road conditions. (Id. at pp. 1249-1250.) The city moved for summary judgment, which was opposed by the plaintiff arguing, among other things, that the placement of a light pole constituted a dangerous condition that contributed to the severity of the plaintiff’s injuries. (Id. at p. 1250.) The trial court granted summary judgment. (Ibid.)

On appeal in Laabs, the court addressed the issue of whether the plaintiff could oppose the motion for summary judgment by raising the unpleaded claim of the dangerousness of the light pole’s location. (Laabs, supra, 163 Cal.App.4th at pp. 1252-1253.) Noting that the pleadings delimit the issues to be considered on summary judgment, the court considered instructive prior decisions addressing the issue of whether the complaint adds factual allegations that are not encompassed by the plaintiffs government tort claim. (Id. at pp. 1253-1255.) In reaching its decision, the Laabs court summarized Donohue, Blair, and Turner as follows:

“In [Donohue], the plaintiff alleged in his claim that the State of California was negligent in allowing an uninsured motorist to take the driving test. In his complaint, he contended that the state was negligent by failing to instruct, direct, and control the driver in operating the vehicle. In affirming the trial court’s grant of the motion for judgment on the pleadings, the court stated, ‘[t]he act of permitting an uninsured motorist to take a driving test is not the factual equivalent of the failure to control or direct the motorist in the course of his examination.’ [Citation.]” (Laabs, supra, 163 Cal.App.4th at p. 1255.)

“In [Blair], the plaintiff was a passenger in a vehicle that struck a tree after leaving the roadway. In his claim, the plaintiff contended that the car went out of control because of ice on the roadway and that the state negligently maintained and constructed the highway. The plaintiff’s claim further indicated that the state failed to sand and care for the highway. In his complaint, the plaintiff added to the allegations by pleading, ‘ “5. … in addition, at that point, the roadway crosses a stream over a culvert or bridge requiring guard rails where there was no guard rail; in addition, the slope of the road is such that a vehicle striking ice is carried off the road causing it to strike adjacent roadside barriers including large trees that have been left close to the road also without a guard rail. [¶] 6. No warning signs were in place nor any other device designed to either advise the traveling public of danger or ameliorate that danger.” ’ [Citation.] The trial court granted the defendant’s motion to strike the added allegations. The appellate court reversed, indicating that it did not read the claim as narrowly as the defendant and that the law does not require the degree of specificity argued by defendant. In distinguishing Donohue [and] other cases, the court stated, ‘[i]t is apparent that in each of the decisions the plaintiff did not merely elaborate or add further detail to a claim which was predicated on the same fundamental facts set forth in the complaint. Rather, there was a complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim. In contrast, the claim and the complaint in this action are premised on essentially the same foundation, that because of its negligent construction or maintenance, the highway at the scene of the accident constituted a dangerous condition of public property.’ [Citation.] The court went on to add, ‘[a] charge of negligent construction may reasonably be read to encompass defects in the placement of highway guard rails, slope of the road, presence of hazards adjacent to the roadway or inadequate warning signs.’ [Citation.]” (Laabs, supra, 163 Cal.App.4th at pp. 1255-1256.)

“In Turner, the alleged discrepancy was not between the claim and the complaint, but rather between the claim and the facts submitted in opposition to the motion for summary judgment. There, the plaintiff was shot in the parking lot of Cal Expo in Sacramento. He alleged in his claim that the defendants knew or should have known that gang-related violence and shootings had occurred on the premises, and that the defendants ‘failed to provide adequate warnings and/or security to members of the general public….’ [Citation.] In its motion for summary judgment, the defendants argued that it was not liable on a theory of negligence or dangerous condition of public property based on its failure to provide adequate security. In response, the plaintiff submitted evidence of inadequate lighting in the area where the shooting occurred. The trial court granted summary judgment, concluding that the claim of inadequate lighting was barred because no such allegation was included in the claim. In affirming, the appellate court indicated, ‘Nowhere [in the claim] is there any mention of inadequate lighting as a basis for the dangerous condition of property….’ [Citation.] The Turner court distinguished Blair, stating, ‘In … Blair the allegations in the claim were broad enough to encompass those in the complaint. The allegations of the complaint merely clarified the allegations of the claim. Here, the allegations plaintiff seeks to introduce are completely different from those contained in the claim. Read in its entirety, the dangerous condition alleged in the claim is known criminal activity, not inadequate lighting. The new allegations constitute a complete shift in theory from what the defendants are alleged to have done to cause plaintiff’s injuries.’ [Citation.]” (Laabs, supra, 163 Cal.App.4th at pp. 1256-1257.)

The Laabs court found that the light pole condition raised in opposition was outside of the pleadings. (Laabs, supra, 163 Cal.App.4th at pp. 1257-1258.) The complaint in Laabs addressed only the problem with the intersection, that is, that the drivers of the two vehicles could not see each other. (Id. at p. 1258.) The dangerous condition alleged was the inadequate sight distance and lack of warning signs, devices and signals. (Ibid.) “The additional fact shifts the alleged dangerous condition to a portion of public property not remotely referenced in the amended complaint. It attempts to predicate liability on a totally different condition, not the least bit involved with the intersection or inadequate sight distance.” (Ibid.) As a result, the court concluded that the light pole condition could not be raised in opposition to summary judgment. (Ibid.)

In Stockett, the plaintiff, a former general manager of the defendant agency, presented a notice of tort claim stating that he had been terminated for supporting a female employee’s sexual harassment claim against the agency’s insurance broker, that members of the agency’s executive committee had refused to select an insurance provider through a competitive bidding process, and that the members and broker, after learning that the plaintiff was considering soliciting other bids, conspired to terminate him. (Stockett, supra, 34 Cal.4th at p. 444.) The notice of claim stated that the plaintiff was wrongfully terminated after the committee held a closed session. (Ibid.) After the claim was denied, the plaintiff filed a lawsuit against the agency. (Ibid.) The plaintiff later amended his complaint, over the opposition of the agency based upon the scope of the plaintiff’s notice of claim, to allege that he had been terminated in violation of public policy on three grounds: (1) opposing sexual harassment; (2) objecting to a conflict of interest in the agency’s insurance broker; and, (3) exercising his First Amendment right of free speech by objecting to the agency’s practice of not having its insurance purchased through an open bid process. (Id. at pp. 444-445.) The agency again raised the issue of the variance between the plaintiff’s claim and the theories of liability in a motion for nonsuit, which was denied by the trial court. (Id. at p. 445.) The jury returned a verdict in favor of the plaintiff. (Ibid.) On appeal, the Court of Appeal reversed, holding that “ ‘[b]y allowing the conflict of interest and free speech theories to be presented to the jury, the trial court allowed the [plaintiff] to present a very different case than one based solely on retaliation for objection to sexual harassment.’ ” (Ibid.)

The California Supreme Court reversed the Court of Appeal. (Stockett, supra, 34 Cal.4th at p. 443.) After stating the standards quoted above, the court identified that while the plaintiff’s “claim did not specifically assert his termination violated the public policies favoring free speech and opposition to public employee conflicts of interest, these theories do not represent additional causes of action and hence need not be separately presented under section 945.4.” (Id. at p. 447.) The court also distinguished cases finding a fatal variance between a plaintiff’s claim and complaint by noting that “the additional theories pled in [plaintiff’s] amended complaint did not shift liability to other parties or premise liability on acts committed at different times or places.” (Id. at p. 448.) Like Blair, the court concluded the plaintiff’s “claim and complaint, similarly, are based on the same factual foundation, viz., that certain named [agency] agents wrongfully terminated him.” (Id. at pp. 448-449.) “In summary, [the plaintiff] adequately presented to [the agency] his wrongful termination cause of action. His notice of claim satisfied the purposes of the claims statutes by providing sufficient information for the public entity to conduct an investigation into the merits of the wrongful termination claim, and the complaint’s free speech and conflict of interest theories of termination in violation of public policy were fairly reflected in the claim because the complaint did not change the fundamental facts of the claim. [The plaintiff] was therefore not precluded from amending his complaint to include these theories or from presenting them to the jury.” (Id. at p. 450.)

In Stevenson, the case arose out of the death of the decedent in an earthquake. (Stevenson, supra, 24 Cal.App.4th at p. 273.) The decedent was a tenant in subsidized housing that was contracted with the San Francisco Housing Authority. (Ibid.) Structural defects existed in the building, so that at the time of the earthquake the building shook so violently as to cause the walls, ceiling, and attached objects to become loose and shatter. (Ibid.) One of the flying objects struck the decedent, who suffered serious injuries and several months later died from those injuries. (Id. at pp. 273-274.) The decedent’s daughter filed a notice of claim and then a wrongful death lawsuit. (Id. at p. 274.) The daughter then filed a series of amended complaints. (Ibid.) The Authority filed a demurrer arguing that the daughter was barred from raising theories not described in her written claim. (Ibid.) The trial court sustained the demurrer without leave to amend. (Ibid.)

On appeal in Stevenson, the court noted that the daughter’s claim stated that the decedent fell in his apartment during the earthquake and died of resulting injuries, asserting theories of negligence. (Stevenson, supra, 24 Cal.App.4th at p. 276.) The Authority argued that the claim focused on events that took place after the earthquake, while the complaint focused on a failure to inspect and warn prior to the earthquake. (Ibid.) The Stevenson court compared this case to Donohue, Turner, Blair and other cases, and concluded: “Although the legal theories in [the daughter’s] complaint were more detailed, the written claim referenced [decedent’s] fall in his apartment during the earthquake and negligent maintenance of the premises. The addition of details regarding the precise condition of the building and the failure to inspect and/or disclose the defective condition of the premises are elaborations on the facts stated in the claim. These additional allegations were not based on a different set of facts from those set out in the claim and are fairly included within the facts first noticed in the claim.” (Id. at p. 278.) The court, however, affirmed the sustaining of the demurrer on other grounds. (Id. at p. 273.)

The court in Stevenson summarizes the decision of White as follows:

“In [White], Division Three of this court surveyed several decisions which analyzed the need for a complaint’s allegations to be fairly reflected in the claim filed with a public entity. The court reasoned that the addition of new allegations in the complaint was not fatal unless they were based on an entirely different set of facts. [Citation.] The claim in White stated that a bus driver was falsely arrested and beaten by a police officer. The subsequent complaint alleged causes of action for false imprisonment and negligent hiring, training, and retention of the police officer. The court stated that although the claim did not specify a legal theory of failure to train, it identified the police officer’s acts as the principal cause of the injury.” (Stevenson, supra, 24 Cal.App.4th at p. 278.)

The court in White summarized the decision in Smith as follows:

“In [Smith], the claim said that the county had cut into a hill to create a road and that this cut had removed support for residences and created a landslide danger. Defendants asked the trial court to bar plaintiffs from contending at trial that clearing debris from an earlier slide from the roadway and water runoff over the roadway contributed to the recent landslide. The trial court refused and the appellate court agreed. After discussing the earlier cases, Smith concluded that although the claims did not expressly encompass the additional facts about removing slide debris and about water runoff over the roadway, these new allegations were not ‘ “based upon a set of facts entirely different from those first noticed.” ’ [Citation.] [¶] Smith noted that ‘ “[s]o long as the policies of the claims statute are effectuated, they should be given a liberal construction to permit full adjudication on the merits….” ’ [Citation.] It applied this principle: ‘We agree with the trial court that Homeowners’ assertions at trial regarding the clearing of slide debris from the roadway and the presence of water runoff over the roadway are fairly reflected in these claims. Necessary maintenance of the roadway, such as the clearing of slide debris, and conditions resulting from the presence of the road, such as the channeling of water runoff, are matters closely connected with construction of the road.’ [Citation.]” (White, supra, 225 Cal.App.3d at p. 1510.)

In reviewing the law as set forth in these cases, it is significant to note that all of the Court of Appeal cases cited, other than Laabs, precedes the Supreme Court’s decision in Stockett. As discussed above, Laabs analyzed a different procedural issue and looked to pre-Stockett law for an analogy. As the only Supreme Court precedent following these cases, the Court of Appeal cases must be considered in light of the standard identified and harmonized in Stockett: The standard identified in Stockett focuses in part upon the purpose of the claim notice statutes “ ‘to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.’ [Citation.]” (Stockett, supra, 34 Cal.4th at p. 446.) The Stockett standard also focuses on whether “there has been a ‘complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim’ ” (Id. at p. 447.)

County characterizes the allegation that County failed to cut trees located at the corner of the intersection of Sueno Road and Camino Pescadero as a complete shift in allegations, representing a different basis of liability from the negligent placement of a stop sign and failure to paint curbs red. Seife characterizes this allegation as additional detail within the same cause of action and theory of liability against County.

The essence of Seife’s claim for dangerous condition of public property is set forth in the first pleaded item of negligence, namely, the allegation that the placement of the stop sign on Sueno Road is set far enough back from the intersection so as to create a condition that obscures and prevents visibility to persons entering Camino Pescadero. (Complaint, ¶ 25(a).) It is self-evident that visibility as it relates to the placement of a stop sign depends entirely upon the other conditions affecting visibility at the intersection—that is, visibility is not an issue if there are no cars, trees, foliage or anything else obstructing lines of sight. Thus, whether or not a stop sign is placed so far back as to obscure and prevent visibility at the intersection depends upon such things as the parking of cars immediately near the intersection and the state of growth of foliage at and about the intersection. Because the dangerous condition complained of by Seife is the inability of drivers to see one another, that dangerous condition could be addressed by moving the stop sign closer, so as to improve the lines of sight given the existence of other conditions obscuring visibility, by removing or mitigating the conditions obscuring visibility, or by some combination of these. The inclusion of detail regarding cutting back trees obscuring visibility does not represent a complete shift in allegations, but merely represents additional detail underlying the claim that the placement of the stop sign in the context of the intersection’s conditions creates a visibility problem for drivers and hence a dangerous condition. Moreover, the investigative purpose of the notice is fulfilled here. When the County investigates the conditions of the intersection with respect to the placement of the stop sign, the County would necessarily determine whether the placement creates a dangerous condition given the visibility conditions created by the parked cars and trees. An appropriate response could be that the dangerous visibility condition could be resolved by keeping the trees as they are but moving the stop sign or by cutting the trees and keeping the stop sign where it is. The fact that the two elements cannot be logically separated in the context of determining whether the stop sign placement creates a dangerous condition of public property demonstrates that the two elements are not based upon a shift in allegations intending to assert liability upon a different basis than as stated in the notice of claim.

On the face of the allegations of the complaint and matter judicially noticed, the court concludes under the standards set forth in Stockett and as exemplified in the Court of Appeal cases discussed above that the pleading of the County’s failure to cut trees at the intersection where the accident occurred is not a material variance from the notice of claim presented to County. County’s motion to strike these allegations will therefore be denied.