DEPOSITION OF EDWARD L. FRIEDLAND,M.D. August 25, 2016 (2024)

Case

HUMPHREY, EDITH KNAPP vs. HEULE, FRANK

Jul 09, 2024 |MILLER, JOHN |STALKING (per F.S. 784.0485) |STALKING (per F.S. 784.0485) |2024 DR 002373

Case

CARRINGTON MORTGAGE SERVICES LLC vs. RICHARD SNOWDEN SR

Jul 16, 2024 |Frydrychowicz, Jennifer |HOMESTEAD FORECLOSURE $50K OR LESS |HOMESTEAD FORECLOSURE $50K OR LESS |2024 CA 000945

Case

HOF GRANTOR TRUST 4 vs. WEISS, CHAIM

Jul 26, 2024 |Brodersen, Amy |NON-HOMESTEAD FORE $250K OR MORE |NON-HOMESTEAD FORE $250K OR MORE |2024 CA 000974

Case

JOHNSON, RACHEL LAFAYE vs. COHENS, TONY ODELL

Jul 09, 2024 |MILLER, JOHN |STALKING (per F.S. 784.0485) |STALKING (per F.S. 784.0485) |2024 DR 002374

Case

ROGERS, AMANDA vs. BOLAND, DAVID

Jun 13, 2024 |MILLER, JOHN |DOMESTIC VIOLENCE |DOMESTIC VIOLENCE |2024 DR 002081

Case

JOHNSTON, VAN THITHUY vs. NGUYEN, TUONG THANH

Jul 03, 2024 |BERGOSH, GARY |DOMESTIC VIOLENCE |DOMESTIC VIOLENCE |2024 DR 002341

Case

WHITE, SHANIYA TYSHEANNA vs. THOMPSON, DENARIUS ANTWAUN

Jul 19, 2024 |[ TIV ] HEARING OFFICER, JUVENILE |SUPPORT IV-D |SUPPORT IV-D |2024 DR 002586

Case

MURPHY, FRANK ROGERS vs. MURPHY, RENEE CHERIE

Jul 16, 2024 |[ YP ] MCIVER (YP), KEITH A |DISSOLUTION OF MARRIAGE |DISSOLUTION OF MARRIAGE |2024 DR 002537

Case

THE ESTATE OF: FARRELL, JAMES HENRY III

Jul 22, 2024 |[ CLKWILL ] DEPUTY CLERK |WILL ON DEPOSIT |WILL ON DEPOSIT |2024 CP 001064

Ruling

COSSUTO VS. ESTATE OF MICHAELGARRETT, ET

Jul 24, 2024 |CVPO21-0196776

COSSUTO VS. ESTATE OF MICHAEL GARRETT, ET ALCase Number: CVPO21-0196776This consolidated matter is on calendar for review regarding status of the case. The Court notes that a Requestfor Dismissal was filed as to Katie Garrett’s Cross-Complaint on May 7, 2024, however, the Cross-Complaintwas not dismissed because a condition was listed in Item 1.b.(6) that cannot be imposed by the clerk. If the Cross-Complaint is being dismissed, a new Request for Dismissal will need to be filed. If the Cross-Complaint is goingto proceed, the Nominal Wrongful Death Cross-Defendants will have to be defaulted or file responsive pleadings.There is not valid service on Trevor Garrett. Katie Garrett is ORDERED to either dismiss or get her Cross-Complaint at issue within 30 days today. Other than the issues above, the matter is at issue and the Court intendsto set the matter for trial before April 30, 2025. The Court notes that the matter was filed over three years agoand finds it to be exempt from plan designation. Plaintiff and Defendant/Cross-Complainant Katie Garrett haveposted jury fees. The balance of the parties have not. The parties are granted ten days leave to post jury fees.Failure to post jury fees within that time of today will be deemed a waiver of the right to a jury. The parties areordered to meet and confer prior to the hearing regarding proposed dates for trial. An appearance by all partiesis necessary on today’s calendar.

Ruling

Shonna L Rives vs. Brian Vikstrom

Jul 23, 2024 |CU24-00751

CU24-00751Motion to Recognize Executor Status and Right to Self-RepresentationTENTATIVE RULINGThis motion is denied, for multiple reasons.First, there is no proof of service yet filed, to show that the motion papers were servedon NORTHBAY MEDICAL CENTER (“NORTHBAY”), which has appeared in this actionand thus must be served with any motion papers.Second, Moving Party cannot represent the estate for which she purports to bring thisaction.In general, any person appearing in an action purporting to represent the interests ofanother person must be licensed to practice law in California. Business & ProfessionsCode §6125 [“No person shall practice law in California unless the person is an activelicensee of the State Bar”].For example, corporations cannot represent themselves in court, and must retaincounsel to represent them. Merco Construction Engineers v. Municipal Court (1978) 21Cal.3d 724; Paradise v. Nowlin (1948) 86 Cal.App.2d 897, 898.Likewise, a civil action filed against a third party on behalf of a trust could not be broughtin pro per by the trustee. Ziegler v. Nickel (1998) 64 Cal.App.4th 545.There are some very limited situations in which a trustee or executor of an estate canappear in pro per. Those appear restricted to probate court filings in which the trusteeor executor is attempting to fulfill a fiduciary duty, and does not extend to filing civilactions against a third party.In Finkbeiner v. Gavid (2006) 136 Cal.App.4th 1417, a successor trustee of an intervivos trust was found to have properly filed in pro per both an accounting and a petitionwith the probate court to modify and terminate the trust, and for trustee’s fees, after shesold the settlor’s home.However, when a trustee or executor brings a civil action against a third party on behalfof the trust or estate, they can only do so through a licensed California attorney, andcannot proceed in pro per. Hansen v. Hansen (2003) 114 Cal.App.4th 618; Downey v.Johnson (1968) 263 Cal.App.2d 775.Even some filings in probate cannot be made by a pro per trustee or executor.In Estate of Sanchez (2023) 95 Cal.App.5th 331, a pro per filing of a partition by sale ofreal property in probate court by the personal representative of an estate was found toconstitute the unauthorized practice of law. The court reasoned that because it soughta remedy against third party co-owners of that property, for the benefit of the estate’sbeneficiaries, it could not be pursued in pro per, even though the filing was made in aprobate case. The matter before this court can be distinguished from Downey and Hansen, in that it involves proceedings filed in the probate matter. Yet, unlike in Donkin and Finkbeiner, and more akin to the facts of Downey and Hansen, here Leslie filed claims against third parties for the benefit of the beneficiaries of Frank's estate. That Leslie brought the petition pursuant to section 850 does not alter the fact that she did so for the benefit of the estate's beneficiaries, including herself, rather than to fulfill her duties as executor and personal representative. Id. at 342.The medical malpractice “wrongful death” action at issue in the present civil case wasfiled on behalf of Decedent’s estate, against third parties. It can only be properly filedthrough a California licensed attorney. This motion for court approval of the executor ofDecedent’s estate’s pro per status thus must be denied.Furthermore, an executor of an estate appointed by another state who files an action inCalifornia on behalf of the estate must first file an ancillary probate action here inCalifornia, per Probate Code §§12510 et seq. It is only upon the ancillary appointmentthat the executor (and only through a California licensed attorney) would then havestanding to bring and/or maintain a California action on behalf of Decedent’s estate.Smith v. Cimmet (2011) 199 Cal.App.4th 1381.There is no indication at this time that any ancillary probate petition has been filed bythe moving party here.Thus, for many reasons, this motion must be denied. Moving party is directed to file therequired ancillary probate proceeding in California, and immediately retain a licensedCalifornia attorney to represent the estate, if she intends to proceed further on this civilaction on behalf of the estate.

Ruling

CABRERA vs CRANE DEVELOPMENT CORPORATION

Jul 24, 2024 |CVRI2301581

Motion for Summary Judgment onComplaint for Other PersonalCABRERA vs CRANEInjury/Property Damage/Wrongful DeathCVRI2301581 DEVELOPMENTTort (Over $25,000) of GUILLERMOCORPORATIONCABRERA by CRANE DEVELOPMENTCORPORATIONTentative Ruling:On March 29, 2023, Plaintiff Guillermo Cabrera (“Plaintiff”) filed a Complaint against DefendantCrane Development Corporation (“Defendant” or “Crane Development”) for negligence andpremises liability. In the Complaint, Plaintiff alleges that on April 8, 2021, he was working on theroof of the commercial building located at 3777 Mission Avenue, Riverside, California (the“Property”) and fell through what appeared to be an elevator shaft on the roof of the Propertybecause it was covered only with waterproof paper and there were no signs designating it ahazard. (Complaint at ¶¶ GN-1, Prem.L.-1.) Defendants negligently owned, maintained, andoperated the Property, and willfully and/or maliciously failed to warn of the dangerous condition,causing Plaintiff's injuries. (Complaint at ¶¶ GN-1, Prem.L.-1, Prem.L.-2, Prem.L.-3.)On November 1, 2023, Crane filed an Answer to the Complaint. Also on November 1, 2023,Plaintiff filed an Amendment to the Complaint adding Defendant Precision Framing Systems, Inc.(“Precision Framing”) as DOE # 1.***Defendant now moves for summary judgment on the ground that pursuant to the Privette Doctrine,set forth in Privette v. Superior Court (1993) 5 Cal.4th 689, and its progeny, as the hirer ofindependent contractor, Savin Enterprises, Inc. (“Savin”), it cannot be liable for any allegedinjuries to Plaintiff, who was Savin’s employee. Defendant argues that this is especially truebecause Plaintiff has already received worker's compensation benefits from Savin’s worker'scompensation carrier. In support of this motion, Defendant submits:• Notice of Motion and Motion;• Memorandum of Points and Authorities;• Separate Statement of Undisputed Material Facts;• Request for Judicial Notice;• Decl. of Philip Crane;• Decl. of Scott A. Davis; and• Notice of Lodgment and Lodged Exhibits, which attaches:o the Complaint filed by Plaintiff in this action on 3/29/23;o the Amendment to the Complaint adding Precision Framing, filed 11/1/23;o the Answer filed by Crane Development, filed 11/1/23;o Plaintiff's Responses to Defendants SPROGs, Set 1, dated 1/15/24;o Plaintiff's Responses to Defendants FROGs, Set 1, dated 1/15/24o Subcontract between Defendant and Savin, dated 7/29/19;o Complaint filed by Falls Lake Fire & Casualty Company in Riverside Superior Courtcase no. CVRI 2301624.In a late-filed opposition, Plaintiff acknowledges that Privette, supra, states there is generally noliability for injuries to employees of independent contractors, but there are exceptions to that rule,and if Plaintiff can prove Defendant knew of the dangerous condition and didn’t warn Savin, therule of non-liability does not apply. In support of his opposition, Plaintiff submits the following:• Memorandum of Points and Authorities; and• Decl. of Guillermo Cabrera.In a “reply” filed before receipt of Plaintiff's opposition, Defendant states that it received noopposition to the motion, and to the extent any is filed late, it should not be considered.AnalysisI. Request for Judicial NoticeCrane Development requests that the Court take judicial notice of the following documents: (1)the Complaint filed by Plaintiff in this action on March 29, 2023; (2) the Amendment to theComplaint adding Precision Framing, filed November 1, 2023; (3) the Answer filed by CraneDevelopment, filed November 1, 2023; and (4) the Complaint filed by Falls Lake Fire & CasualtyCompany in Riverside Superior Court case no. CVRI 2301624. Plaintiff does not object to therequest for judicial notice.The Court grants the request and takes judicial notice of the above documents pursuant to Evid.Code § 452(d).II. MSJ StandardSummary judgment is granted when a moving party establishes the right to entry of judgment asa matter of law. (C.C.P. § 437c(c).) A defendant moving for summary judgment bears the initialburden of proving that there is no merit to a cause of action by showing that one or more elementsof the cause of action cannot be established or that there is a complete defense to that cause ofaction. (C.C.P. § 437c(p)(2); Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037.)Importantly, a moving defendant establishes a right to summary judgment by showing that theplaintiff lacks the evidence to support at least one element of the cause(s) of action pleaded. (Colev. Town of Los Gatos (2012) 205 Cal.App.4th 749, 756. See also Aguilar v. Atlantic Richfield Co.(2001) 25 Cal.4th 826, 855.)Once the defendant has made such a showing, the burden shifts to the plaintiff to show that atriable issue of one or more material facts exists as to that cause of action or as to a defense tothe cause of action. (Aguilar, supra, 25 Cal.4th at 849.) The opposing party may not rely uponthe allegations or denials in its pleadings but must “set forth the specific facts showing that atriable issue of material fact exists.” (C.C.P. § 437c(p)(2).) Claims and theories not supported byadmissible evidence do not raise triable issues of fact. (Rochlis v. Walt Disney Co. (1993) 19Cal.App.4th 201, 219, disapproved on another ground in Turner v. Anheuser–Busch, Inc. (1994)7 Cal.4th 1238.) However, while summary judgment is no longer considered a “disfavored”procedure, the moving party’s evidence must be strictly construed, while the opposing party’sevidence must be liberally construed. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832,838.) If the plaintiff does not meet his burden of establishing a triable issue of material fact,summary judgment in favor of the defendant is appropriate.III. Plaintiff's Opposition Was Late and He Failed to File a Separate StatementPlaintiff filed his opposition to the present motion on July 17, 2024, 7 days prior to the hearing onthe motion. Pursuant to C.C.P. § 1005(b), any motion must be served 9 court days prior to thedate set for hearing. Thus, Plaintiff's opposition was untimely.In addition, Plaintiff failed to submit a separate statement with his opposition. Pursuant to CRCRule 3.1350, a party opposing a motion for summary judgment must submit a separate statementthat, among other things, identifies “[e]ach supporting material fact claimed to be without disputewith respect to the cause of action, claim for damages, issue of duty, or affirmative defense thatis the subject of the motion.” (CRC Rule 1.1350(d)(1)(B).) The separate statement requirement“serves two functions: to give the parties notice of the material facts at issue in the motion and topermit the trial court to focus on whether those facts are truly undisputed.” (Oldcastle Precast,Inc. v. Lumbermens Mut. Cas. Co. (2009) 170 Cal.App.4th 554, 569.)While the Court could disregard Plaintiff's opposition entirely based on the above, because this isa dispositive motion, and the outcome is the same either way, the Court exercises its discretionto consider Plaintiff's opposition. (See, CRC 3.1300(d); Slayton v. Superior Court (2006) 146Cal.App.4th 55, 58, n. 2; Kapitanski v. Von’s Grocery Co. (1983) 146 Cal.App.3d 29.)IV. Elements of Plaintiff's Negligence/Premises Liability ClaimsTo support a cause of action for negligence, a plaintiff must establish: “(a) a legal duty to use duecare; (b) a breach of such legal duty; [and] (c) the breach was a proximate or legal cause of theresulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) “The elements of acause of action for premises liability are the same as those for negligence: duty, breach,causation, and damages.” (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664,671, quoting Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) In an action forpersonal injuries sustained by a plaintiff in a fall, no inference of negligence arises simply fromthe plaintiff falling. (Harpke v. Hanker Shim Estates (1951) 103 Cal.App.2d 143.) Without a dutyof care owed by the alleged wrongdoer to the person injured, no negligence is established. (JeanHamilton v. Gage Bowl, Inc. (1992) 6 Cal.App.4th 1706, 1711.) Where a defendant demonstratesthat a plaintiff cannot reasonably present specific facts to establish an essential element of thiscause of action, summary judgment in favor of defendant is appropriate. (Saelzler v. AdvancedGroup 400 (2001) 25 Cal.4th 763.)V. Defendant Had No Duty to Plaintiff and Is Therefore Entitled to SummaryJudgmentA. General rule of nonliability“[A] person who hire[s] an independent contractor generally [is] not liable to third parties for injuriescaused by the contractor’s negligence in performing work.” (Seabright Ins. Co. v. US Airways,Inc. (2011) 52 Cal.4th 590, 598, citing Privette v. Superior Court (1993) 5 Cal.4th 689, 693.) Thereis an exception to this general rule, called the peculiar risk doctrine, wherein “a person who hiresan independent contractor to perform work that is inherently dangerous can be held liable for tortdamages when the contractor’s negligent performance of the work causes injuries to others.”(Privette, supra, 5 Cal.4th at 691-692.) However, the peculiar risk doctrine does not apply toemployees of the contractor because applying the doctrine to these employees would conflict withworker's compensation law. Instead, the Court in Privette held that where a contractor’semployee’s injury is already compensable under the Workers’ Compensation scheme, there is notort remedy for those same injuries against the person who hired the contractor. (Privette, supra,5 Cal.4th at p. 696; see also, Bell v. Greg Agee Construction, Inc. (2004) 125 Cal.App.4th 453,466-468 [applying the Privette rule even when no Workers’ Compensation is available].) Therationale underlying this decision is that allowing the contractor’s employee to bring an action fordamages against the hirer could lead to the hirer’s liability exceeding that of the negligentemployer, which would penalize the hirer who retains expert contractors rather than using its owninexperienced employees to perform specialized work. (Privette, supra, 5 Cal.4th at 700-702[roofing employee of the independent contractor precluded from suing the property owner forinjuries compensable under the workers’ compensation system].)While there are exceptions to the general rule of a hirer’s non-liability to a contractor’s employeewhen (1) there is a concealed hazard, or (2) the hirer retains control, as discussed below, theseexceptions do not apply here.B. Concealed HazardA landowner who hires an independent contractor to perform work on its property is not exemptedfrom liability to the contractor’s employee if: (1) the hirer knew or reasonably should have knownof a concealed, pre-existing hazardous condition on its premises, (2) the contractor did not knowand could not reasonably ascertain the condition, and (3) the hirer failed to warn the contractor.(Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 674.) But “the landowner who has delegatedjob safety to the independent contractor only has a duty to the employee if the condition isconcealed.” (Id. at 682.) Also, a hirer is not liable to a contractor’s employee injured by hazardwhere the employee could have reasonably discovered and avoided the hazard. (Johnson v.Raytheon Co., Inc. (2019) 33 Cal.App.5th 617, 631-632 [hirer could not be liable for hazardouscondition of a partial extension ladder with “caution” sticker which could have been reasonablydiscovered through inspection by the contractor’s employee].)In the present case, it is undisputed that Defendant was the general contractor on the Property; ithired Savin as a subcontractor; and Plaintiff was an employee of Savin when he was injured.(UMF ## 6-9.) Therefore, Defendant met its burden of establishing, under Privette, supra, it is notliable for Plaintiff's injuries. It is further undisputed that, pursuant to the Subcontract betweenDefendant and Savin, Savin was required to perform inspections of the Property to ensure thesafety of the Property and its employees. (UMF # 10.) Plaintiff argues his injuries were causedwhen he fell through an uncovered opening to the HVAC shaft. (Opposition, p. 3:27-4:1.)However, he presents no evidence that (1) Defendant knew or reasonably should have known ofthis condition, or that (2) Savin didn’t know, and could not have reasonably ascertained it.Accordingly, Plaintiff failed to establish the concealed hazard exception to nonliability applies.(See, Kinsman, supra, 37 Cal.4th at 674.) 2C. Retained ControlA hirer who retains control of any part of an independent contractor's work may be liable forphysical harm to others, including the employee of a subcontractor, caused by the failure toexercise that control with reasonable care. (Hooker v. Department of Transp. (2002) 27Cal.4th 198, 206.) However, for hirer to be liable for harm suffered by an employee of a hiredcontractor, the mere failure to exercise a retained control, without more, is not enough. (Ibid.) “Theimposition of tort liability on a hirer for injuries to an independent contractor’s employee depends2While Plaintiff argues in his opposition that if he could prove that Defendant knew about the dangerous conditionand didn’t warn Savin, the exception would apply, there is no evidence to show Defendant’s knowledge, and claimsand theories not supported by admissible evidence do not raise triable issues of fact. (Rochlis, supra, 19 Cal.App.4that 219.)on whether the hirer exercised the retained control in a manner that affirmatively contributed tothe injuries.” (Id. at 209, italics added.) The “affirmative contribution” requirement can be satisfiedonly if the hirer in some respect affirmatively induced—not just failed to prevent—the contractor'sinjury-causing conduct. (See, e.g., Kinney v. CSB Constr., Inc. (2001) 87 Cal.App.4th 28, 36[requiring that the hirer “induc[e] [the contractor's] injurious action or inaction through actualdirection, reliance on the hirer, or otherwise”]; Hooker, supra, 27 Cal.4th 198, 211, 215 [defendantdid not affirmatively contributed to the decedent’s death by permitting traffic to use the overpassbecause defendant did not direct the decedent to retract the outrigger that caused the tractor toflip]; Sandoval v. Qualcomm Incorporated (2021) 12 Cal.5th 256, 277 [to be liable at all, the hirermust affirmatively contribute to the injury, not merely by passive supervision or derivative of thecontractor’s negligence].)As set forth above, Defendant met its burden of establishing, under Privette, supra, it is not liablefor Plaintiff's injuries. Plaintiff has failed to present any evidence to show that Defendant retainedany control over his or Savin’s work. Accordingly, Plaintiff cannot establish that the retainedcontrol exception applies, and Defendant is entitled to judgment as a matter of law. (See, Hooker,supra, 27 Cal.4th 198, 211, 215; Kinney, supra, 87 Cal.App.4th at 36.)Ruling:Exercise the Court’s discretion and consider Plaintiff's opposition. Grant request for judicial notice.Grant the motion. Enter summary judgment in favor of Defendant Crane Development.

Ruling

Stephen Siefke vs Jimmy Dutra, Jr

Jul 26, 2024 |22CV02174

22CV02174SIEFKE v. DUTRA DEFENDANT DUTRA’S MOTION TO COMPEL PLAINTIFF’S FURTHER RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS, SET THREE; FORM INTERROGATORIES, SET ONE; AND SPECIAL INTERROGATORIES, SET FOUR This case involves allegations of child sexual abuse by defendant. According to thecomplaint, in the summer of 2005, plaintiff, then 12 years old, vacationed with defendant, then30 years old, and his parents, in Southern California. It was during this trip that plaintiff allegeshe was molested by defendant. Trial is set to begin on September 3, 2024. These motions were set on shortened time. The motion is granted in part and denied in part, as discussed in detail below. Defendant seeks to compel further responses to request for production of documents, setthree; special interrogatories, set four; and form interrogatories, set one. Request for production, set three

Ruling

Gjetley vs. Sandoval

Jul 25, 2024 |23CV-0203634

GJETLEY VS. SANDOVALCase Number: 23CV-0203634Tentative Ruling on Discovery Motions: Defendant Gary Sandoval moves for an order deeming Defendant’sRequests for Admissions, Set One admitted based on a lack of response from Plaintiff. In a separate motion,Defendant moves for an order compelling responses to Defendant’s Form Interrogatories, Set One, SpecialInterrogatories, Set One, and Request for Production, Set One. The motions were originally noticed for a hearingon June 10, 2024. On June 10, 2024, the Court continued the hearing to today’s date because Plaintiff LesterGjetley had filed a document titled “Plaintiff Lester Gjetley Response to Motion and Discovery” that included acopy of what appear to be verified responses to Requests for Admissions, Set One and Special Interrogatories,Set One. Plaintiff was ordered to serve Defendant with these responses. It is unclear if that has occurred. On July15, 2024, as directed by the Court, Defendant filed a Brief Statement Regarding Outstanding Discovery Issues.This Statement is not supported by evidence. There are procedural and evidentiary defects on both sides of thesemotions. The Court exercises its discretion to consider the merits of the motions despite these defects.A party has thirty days after service to respond to a Request for Production, Request for Admissions, FormInterrogatories, or Special Interrogatories. See CCP §§ 2031.260(a), 2033.250(a), and 2030.260(a). Notproviding a timely response to propounded discovery results in a waiver of objections. CCP §§ 2031.300(a).2033.280(a), and 2030.290(a). If a party to whom a discovery request is directed fails to serve a timely response,the party propounding discovery may move for an order compelling a response. CCP §§ 2031.300(b) and2030.290(c). For Request for Admissions specifically, the party can move for an Order that the Request forAdmissions be deemed admitted. CCP § 2033.280(b). “The court shall make this order, unless it finds that theparty to whom the requests for admission have been directed has served, before the hearing on the motion, aproposed response to the requests for admission that is in substantial compliance with Section 2033.220.” CCP§ 2033.280(c).Motion for Order Deeming Admitted Truth of Facts.Requests for Admissions. Plaintiff filed verified response to Requests for Admissions, Set One on May 28, 2024.Plaintiff was ordered to serve these on Defendant. It is unclear whether Plaintiff did so as there is no proof ofservice. However, the Court made it clear in its June 10, 2024, tentative ruling that a response to Requests forAdmissions, Set One had been filed. Even if these responses may have not been served prior to the June 10, 2024,hearing, they were filed and available in the court file. Defendant presented no argument regarding whether theRequests for Admissions responses were in substantial compliance. As Plaintiff filed verified responses prior tothe hearing, the Court DENIES Plaintiff’s request for the Defendant’s Requests for Admissions, Set One to beadmitted. It is mandatory that the Court impose a monetary sanction on the party whose failure to serve a timelyresponse to requests for admission necessitated this motion. CCP § 2033.280(c). The Court imposes monetarysanctions against Plaintiff in the amount of $585 which is comprised of a $60 filing fee and three hours of attorneytime at $175 per hour.Motion for Order Compelling Plaintiff to Answer Form Interrogatories, Special Interrogatories, and Respond toRequest for Production.Form Interrogatories. It appears from Defendant’s Statement filed on July 15, 2024 that verified responses wereprovided as Defendant wrote, “but his verified response to Form Interrogatory 11.0 omits any mention of thissuit.” A lack of service of verified responses is what the original motion alleged. If Plaintiff has served verifiedresponses and Defendant deems them to be insufficient, Defendant may file a motion compelling further responsesafter sufficient meet and confer efforts. In order for the Court to rule on such a motion, the Form Interrogatoriesand responses would need to be provided to the Court. As it appears that Plaintiff responded to FormInterrogatories, Set One, the Court DENIES this request as moot. If the Court is incorrect and Plaintiff did notserve responses to Form Interrogatories, Set One, Defendant may raise the issue at the hearing.Special Interrogatories. Verified responses to Special Interrogatories, Set One were filed by Plaintiff on May 28,2024. As discussed above regarding the Requests for Admissions, these were in the court file. If Defendantdeems the response to be insufficient, Defendant may file a motion compelling further responses after sufficientmeet and confer efforts. As Plaintiff responded to Special Interrogatories, Set One, the Court DENIES this requestas moot.Request for Production. It appears from Defendant’s Statement that Plaintiff has not formally responded toRequest for Production, Set One but did provide some documents. Despite a partial production, Defendantmaintains that many records in possession or available to Plaintiff have not been provided. The Court finds goodcause for each of the categories listed in Request for Production, Set One. Defendant’s motion is GRANTED asto the Request for Production. Plaintiff is ORDERED to provide a verified response to Request for Production,Set One and produce all responsive records within twenty days of the filing of the Notice of Entry of Order.Sanctions. CCP §§ 2031.300(c) and 2030.290(c) only provide for sanctions when an unsuccessful opposition ismade, however, the Court may award sanctions under the Discovery Act in favor of a party who files a motion tocompel discovery even when no opposition was filed. CRC 3.1348. As it appears that Plaintiff has still not serveda verified response to Request for Production, Set One, the Court finds that sanctions are appropriate. The Courtimposes monetary sanctions against Plaintiff in the amount of $410 which is comprised of a $60 filing fee andtwo hours of attorney time. The third hour requested is not awarded as time to attend the hearing has already beenaccounted for in Defendant’s Motion for Order Deeming Truth of Facts.In the Statement filed by Defendant on July 15, 2024, Defendant requested that Plaintiff be ordered to sit foranother deposition at Plaintiff’s expense. This request is not properly before the Court and will not be addressed.Defendant did not provide proposed Orders as required by Local Rule of Court 5.17(D). Defendant is to providea proposed Order for each motion that is consistent with the Court’s ruling.

Ruling

FCS057491 - MILBOURN, JAMES V. COMCAST CORP, et al (DMS)

Jul 22, 2024 |FCS057491

FCS057491Motion by Plaintiff to ConsolidateTENTATIVE RULINGAs acknowledged in both oppositions filed to this motion, both of which quoted thestatute, C.C.P. §403 authorizes a judge to order a case from another court to betransferred to that judge’s court for coordination and consolidation for trial.Once cases are in the same court, that court has discretion under C.C.P. §1048 toconsolidate them, for all purposes, or for limited purposes, either for pre-trial only, ortrial only. Among the factors the court should consider on a consolidation motion are timelinessof the motion, whether consolidation would cause juror confusion, and whetherconsolidation would cause any party prejudice. Edmon & Karnow (Weil & Brown), CivilProcedure Before Trial, §12:362, p. 12(I)-70.While this motion is far from timely, no trial has yet been set in either case, andtherefore no discovery completion deadlines have passed.Furthermore, if trial is not consolidated, there is a significant risk of inconsistent trier offact findings on the common issue of proportionate liability when the same plaintiff isalleging similar injuries from different motor vehicle accidents occurring three monthsapart.

Ruling

WANDA MOVING, INC., A CALIFORNIA CORPORATION, ET AL. VS XIAOJUN XU, ET AL.

Jul 24, 2024 |23PSCV01436

Case Number: 23PSCV01436 Hearing Date: July 24, 2024 Dept: K 1. Plaintiffs/Cross-Defendants Wanda Moving, Inc.s and 2Cube Global Inc.s Demurrer to Second Amended Cross-Complaint is SUSTAINED. 2. Plaintiffs/Cross-Defendants Wanda Moving, Inc.s and 2Cube Global Inc.s Motion to Strike Portions of the Second Amended Cross-Complaint is DENIED as MOOT in part (i.e., as to Page 17, Paragraph 80, line 2 and Page 27, Paragraph 122, line 11) and otherwise GRANTED. Background Plaintiffs Wanda Moving, Inc. (WMI) and 2Cube Global Inc. (2Cube) (together, Plaintiffs) allege as follows: Plaintiffs are in the business of providing logistics and warehousing services for imports of goods from China to the United States. 2Cube acts as a 3PL or third-party logistics provider for WMI by procuring transportation services for delivery orders received by WMI. Xiaojun Xu (Xu) was hired by 2Cube as a truck driver to deliver various goods to customers. From approximately January 2023 to present, Xu conspired with Pak Ho Lo (Lo), Swap Meet Depot (SWAP) and MMS Depot (MMS) by stealing a portion of goods belonging to Plaintiffs from each delivery and delivering same to a warehouse in El Monte where SWAP and MMS are located. On June 22, 2023, Lo and SWAP filed a cross-complaint, asserting causes of action against Chaoseng Zhao, Shengdong Zhao (S. Zhao), Liming Wang, 2Cube, Zexing Zhao (Z. Zhao), WMI and Does 1-200 for: 1. Conversion 2. Tortious Interference with Contractual Relationship 3. Intentional Interference with Prospective Economic Advantage 4. RestitutionUnjust Enrichment 5. Unfair Business Practices 6. Accounting 7. Fraud On June 28, 2023, MMS default was entered on the complaint. On August 22, 2023, Plaintiffs filed a First Amended Complaint, asserting causes of action against Xu, Lo, SWAP, MMS and Does 1-200 for: 1. Conversion 2. Tortious Interference with Contractual Relationship 3. Intentional Interference with Prospective Economic Advantage 4. RestitutionUnjust Enrichment 5. Unfair Business Practices 6. Accounting 7. Injunctive Relief On August 24, 2023, an Order Re: Defendants Contempt for Defendants Failure to Abide by this Courts May 24, 2023 and July 10, 2023 Orders was entered. On November 30, 2023, the court granted WMI, 2Cube, S. Zhao and Z. Zhaos Special Motion to Strike Lo and SWAPs cross-complaint. On April 30, 2024, Intelligent Express Inc. (Intelligent) and Xu filed a Second Amended Cross-Complaint (SACC), asserting causes of action against WMI, 2Cube, DerB Inc. (DerB) and Does 1-50 for: 1. Breach of Contract 2. Conversion 3. Unfair Business PracticesCalifornia Business & Profession[s] Code §§ 17200, et seq. 4. Breach of Covenant of Good Faith and Fair Dealing A Case Management Conference is set for July 24, 2024. 1. Demurrer to SACC Legal Standard A demurrer may be made on the grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action and/or are uncertain. (Code Civ. Proc., § 430.10, subds. (e) and (f).) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) [A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge. (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].) Discussion WMI and 2Cube demur, per Code of Civil Procedure § 430.10, subdivisions (e) and (f), to the first and fourth causes of action in Intelligents and Xus SACC, on the basis that they fail to state facts sufficient to constitute causes of action and are uncertain. At the outset, the court declines to consider the Declaration of Long Z. Liu filed concurrently with Intelligents and Xus opposition as improper on demurrer. First and Fourth Causes of Action (i.e., Breach of Oral and Written Contracts and Breach of Implied Covenant of Good Faith and Fair Dealing, Respectively) WMI and 2Cube assert that Intelligent and Xu have not adequately pled the existence of written and/or oral contracts. The court agrees. [T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendants breach, and (4) the resulting damages to the plaintiff. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) The prerequisite for any action for breach of the implied covenant of good faith and fair dealing is the existence of a contractual relationship between the parties, since the covenant is an implied term in the contract. (Smith v. City and County of San Francisco (1990) 225 Cal.App.3d 38, 49.) Intelligent and Xu first allege that Intelligent had an oral contract with WMI and 2Cube (SACC, ¶ 15), but then allege that [f]rom January and February of 2023, Cross-Defendants collectively entered into a series of oral and written agreements which were document[ed] orally and with bill of lading, invoices, e-mails, and WeChat messages.(Id., ¶¶ 61 and 63 [italics added]). Intelligent and Xu then allege that the parties agreement is based on a series of oral agreements as well [as] their course of performance and overall conduct. (Id., ¶ 64). Intelligent and Xu subsequently make reference to a Global Agreement. (Id., ¶ 81). It still remains unclear to the court, based on the above allegations, how many contracts are alleged to have existed, the parties to same and the terms of same. The bills of lading, moreover, do not contain the names of any of these parties and do not contain any other contractual terms from which the court can ascertain what is alleged to be breached. The WeChat communications likewise do not show what contractual terms were agreed to, if any. WMIs and 2Cubes demurrer to the first and fourth causes of action, then, is sustained. 2. Motion to Strike Portions of SACC Legal Standard Pursuant to Code of Civil Procedure section 436, 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. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. The grounds for a motion to strike must 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.) Discussion WMI and 2Cube move the court for an order striking out the following portions of the SACC: 1. Page 17, Paragraph 80, line 2 (i.e., attorneys fees); 2. Page 22, Paragraph 100, line 2-Page 23, line 2 (i.e., Cross-Complainants allege that in doing the things herein alleged, the acts and conduct of Cross-Defendants (Wanda Moving) constituted malice, oppression and/or fraud, in that these acts were intended by Cross-Defendants to cause injury to Cross-Complainant and/or constituted despicable conduct carried on by the Cross-Defendants willful and conscious disregard of the rights of Cross-Complainants, with the intention of Cross-Defendants being to deprive Cross-Complainants of property and legal rights, and were not authorized or approved by Cross-Complainants, justifying an award of exemplary and punitive damages pursuant to Civil Code 3294(a) in an amount according to proof at time of trial, in order to deter Cross-Defendants from similar conduct in the future. Cross-Complainant claims such amounts as damages in addition to pre-judgment interest thereon pursuant to Civil Code §§3287, 3288, and/or any other applicable provision of law providing for prejudgment interest); 3. Page 23, Paragraph 104, lines 18-25 (i.e., [t]he actions of Cross-Defendants, and each of them, were (1) fraudulent in nature (2) malicious; (3) and/or oppressive, constituting despicable conduct; and performed with intention of depriving Cross-Complainants of their substantial rights. The actions of Cross-Defendants, and each of them were all performed with the express knowledge, approval or ratification of Cross-Defendants, and each of them. (Exhibits A-K)); 4. Page 25, Paragraph 110, line 7 (i.e., attorneys fees); 5. Page 27, Paragraph 122, line 11 (i.e., and appropriate attorney fees); and 6. Prayer for Relief (i.e., attorneys fees and exemplary damages). At the outset, the motion is summarily denied as moot in part (i.e., as to Page 17, Paragraph 80, line 2 and Page 27, Paragraph 122, line 11), based upon the ruling made on the demurrer. The motion is otherwise granted. While [t]here is no question that punitive damages may be recovered in an action for conversion ,. . .[they] are recoverable. . . only upon a showing of malice, fraud or oppression. (Krusi v. Bear, Stearns & Co. (1983) 144 Cal.App.3d 664, 678.) Malice is defined as conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civ. Code § 3294, subd. (c)(1).) Oppression is defined as despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that persons rights. (Civ. Code § 3294, subd. (c)(2).) Fraud is defined as an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. (Civ. Code § 3294, subd. (c)(3).) A conclusory characterization of defendants conduct as intentional, willful and fraudulent is a patently insufficient statement of oppression, fraud, or malice. . . (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.) The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. Not only must there be circ*mstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [emphasis added].) Intelligent and Xu have not pled facts supporting oppressive, fraudulent, or malicious conduct. With respect to attorneys fees, Code of Civil Procedure § 1021.5 states, in relevant part, as follows: Upon motion, a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any. . . The instant lawsuit is a private dispute. Intelligent and Xu are not seeking the enforcement of an important right affecting the public interest.

Ruling

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