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Ruling

AURELIA ROBLES VS CITY OF EL MONTE

Aug 06, 2024 |24PSCV00611

Case Number: 24PSCV00611 Hearing Date: August 6, 2024 Dept: G Defendant City of El Montes Demurrer to Plaintiff Aurelia Robless First Amended Complaint Respondent: Plaintiff Aurelia Robles TENTATIVE RULING Defendant City of El Montes Demurrer to Plaintiff Aurelia Robless First Amended Complaint is CONTINUED to a date to be determined at the hearing in Department G (Pomona). Defendants counsel is also ordered to meet and confer with Plaintiffs counsel regarding the Demurrer and to file a supplemental declaration describing such meet and confer efforts at least nine (9) court days before the next scheduled hearing on the Demurrer. BACKGROUND This is a personal injury action. In March 2022, Plaintiff Aurelia Robles was attempting to board a bus allegedly operated by Defendant City of El Monte (the City) with a walker when Robles fell. Robles alleges the buss operator had refused to lower the buss access ramp which forced Robles to use the stairs despite Robless use of a walker. On February 29, 2024, Robles filed a complaint against the City and Does 1-100, alleging causes of action for (1) negligent operation of a motor vehicle for which public entity is responsible, (2) failure to discharge mandatory duty, and (3) respondeat superior. On June 3, 2024, Robles filed a First Amended Complaint (FAC) against the same defendants alleging the same causes of action. On July 2, 2024, the City filed the present demurrer. A hearing on the present demurrer is set for August 6, 2024, along with a case management conference. ANALYSIS The City demurs to Robless third cause of action for respondeat superior. For the following reasons, the court finds parties did not adequately meet and confer. Legal Standard Pursuant to Code of Civil Procedure section 430.41, subdivision (a), prior to filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. This section further provides that the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. (Code Civ. Proc., § 430.41, subd. (a)(1).) While Code of Civil Procedure section 430.41, subdivision (a)(4) makes clear failing to meet and confer is not grounds to overrule a demurrer, courts are not required to ignore defects in the meet and confer process and if the court determines no meet and confer has taken place, or concludes further conferences between counsel would likely be productive, it retains discretion to order counsel to meaningfully discuss the pleadings with an eye toward reducing the number of issues or eliminating the need for a demurrer, and to continue the hearing date to facilitate that effort. (Dumas v. Los Angeles County Bd. of Supervisors (2020) 45 Cal.App.5th 348, 355 & fn. 3.) Discussion In this case, the Citys counsel attempted to meet and confer by sending an email to Robless counsel on June 21, 2024. (Steinberg Decl., ¶ 2, Ex. A.) Because email communications are not code-compliant means of meeting and conferring and counsels declaration does not state if counsel held telephonic discussions, the court finds parties have failed to adequately meet and confer. Thus, a continuance of the hearing on their demurrer is appropriate. CONCLUSION Based on the foregoing, the Citys demurrer is CONTINUED to a date to be determined at the hearing in Department G (Pomona). The Citys counsel is also ordered to meet and confer with Robless counsel regarding the demurrer and to file a supplemental declaration describing such meet and confer efforts at least nine (9) court days before the next scheduled hearing on the demurrer.

Ruling

SALTSMAN, Sr., et al. vs. HEADRICK LOGGING INC., et al.

Aug 08, 2024 |CVPO21-0198364

SALTSMAN, SR., ET AL. VS. HEADRICK LOGGING INC., ET AL.Case Number: CVPO21-0198364Tentative Ruling on Motion for Mental Examination and for Protective Order: Defendant HeadrickLogging, Inc. (hereinafter “Defendant”) moves for an order requiring Plaintiff to submit to a medical examinationpursuant to CCP § 2032. Defendant also seeks a protective order as to the scope of tests, to permit a broad lineof questioning, and to limit the production of the audio record and raw data.Scope of Tests: The Joint Statement filed by the parties provides they have reached a resolution on this issue.The tests listed in the Notice of Motion will be authorized by the Court.Interview Topics: Defendant has requested fifteen specific interview topics to be conducted by their expert. Afterfurther meet and confer, the parties have agreed to remove the topic of “Among other information.” The partieshave also agreed to the inclusion of the following topics: “use of alcohol, drugs and other intoxicants,” “educationattainment and academic history,” “occupation history,” “psychiatric history,” and “complaint/symptoms.” Theremaining topics remain at issue.The Court has reviewed the proposed topics and finds that all remaining topics except “legal history” areappropriate for the interview. The Court will authorize those topics with that exception.Raw Data and Recording: The primary dispute between the parties is the scope of the production of the defenseexpert’s raw data and recording of the IME. Defendant requests an order authorizing the dissemination of theraw data and the recording to Plaintiff’s expert only, and objects to the information being provided to Plaintiff’scounsel. The limitation on disclosure requested by Defendant is based on the defense expert’s concerns relatedto her ethical obligations, the risk of compromising future tests, the misuse and misinterpretation of the tests, thesocietal impact if the tests are disseminated, and the harm of such a disclosure. Plaintiff’s position is that hiscounsel is entitled to the recording and raw data pursuant CCP § 2032.610 as interpreted by Randy’s Trucking,Inc. v. Superior Court (2023) 91 Cal.App.5th 818.In Randy’s Trucking, the Fifth District Court of Appeal upheld the trial court’s order requiring an expert to turnover the raw data and the recording of the examination to opposing counsel. Id. at 846-47. This ruling was madeover the objection of the defense expert arguing that she had an ethical obligation not to disclose these materials.Id. at 838. The Court has reviewed the Randy’s Trucking case in detail and finds it to be factually analogous andbinding on this Court. Randy’s Trucking is the controlling authority on this issue. Prohibiting the material frombeing provided to Plaintiff’s counsel would deprive Plaintiff of his fundamental rights to effectively cross-examine the defense expert. Merely giving the material to an expert, who then presumably provides advice anddirection to counsel is not an adequate substitute.Accordingly, the Court will require the defense expert to turn over the raw data and recording to Plaintiff’scounsel. The Court is not unsympathetic to the concerns raised by the defense expert, but they are insufficient tochange the status of the law. The required production will be subject to a protective order which prohibitsPlaintiff’s counsel from disseminating the raw data and recording to anyone other than employees, consultants orstaff. Plaintiff shall also be ordered to destroy the raw data and recording at the conclusion of the case.The motion is partially GRANTED and partially DENIED as outlined above. Defendant shall prepare an orderafter hearing consistent with the Court’s final ruling.

Ruling

MARK HARROD VS COUNTRY OAKS PARTNERS, LLC, ET AL.

Aug 07, 2024 |23PSCV03569

Case Number: 23PSCV03569 Hearing Date: August 7, 2024 Dept: G Defendants Country Oaks Partners, LLC and Sun-Mar Management Services, Inc.s Petition to Compel Binding Arbitration and Request for Stay of Discovery Respondent: Plaintiff Mark Harrod TENTATIVE RULING Defendants Country Oaks Partners, LLC and Sun-Mar Management Services, Inc.s Petition to Compel Binding Arbitration and Request for Stay of Discovery is DENIED. BACKGROUND This is a wrongful death action. From November 10, 2019, to December 13, 2019, Defendants Country Oaks Partners, LLC (Country Oaks) and Sun-Mar Management Services, Inc. (Sun-Mar) provided in-patient rehabilitation care and services to Charles Logan at the Country Oaks Care Center in Pomona. During this time, Country Oaks and Sun-Mar allegedly failed to provide proper care and supervision for Logan which resulted in Logan suffering from falls and pressure injuries. After Logans health continued to decline, Logan passed away in November 2022. On November 15, 2023, Mark Harrod filed a complaint against Country Oaks, Sun-Mar, Alessandra Hovey, Denise Harrod-Barrow (as a nominal defendant), and Does 1-100, alleging a single cause of action for wrongful death. On February 2, 2024, Country Oaks and Sun-Mar filed the present motion. A hearing on the present motion is set for August 7, 2024, along with a case management conference and OSC RE: Failure to File Proof of Service/Dismissal as to Hovey. ANALYSIS Country Oaks and Sun-Mar petition to compel Harrod to binding arbitration pursuant to an arbitration agreement. For the following reasons, the court DENIES their petition. Legal Standard A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract. (Code Civ. Proc., § 1281.) The court must grant a petition to compel arbitration unless it finds no written agreement to arbitrate exists, the right to compel arbitration has been waived, grounds exist for revocation of the agreement, or litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. (Code Civ. Proc., § 1281.2.) A petition to compel arbitration functions as a motion. (Code Civ. Proc., § 1290.2.) In a motion or petition to compel arbitration, the moving party bears the burden of producing prima facie evidence of a written agreement to arbitrate the controversy. (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165 (Gamboa).) Once the court finds an arbitration agreement exists, the party opposing arbitration bears the burden of establishing a defense to enforcement by preponderance of the evidence. (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.) In interpreting an arbitration agreement, courts apply the same principles used to interpret contractual provisions with the fundamental goal of giving effect to the parties mutual intentions and applying contractual language if clear and explicit. (Valencia v. Smyth (2010) 185 Cal.App.4th 153, 177.) Because public policy strongly favors arbitration, any doubts regarding the arbitrability of a dispute are resolved in favor of arbitration. (Coast Plaza Doctors Hosp. v. Blue Cross of California (2000) 83 Cal.App.4th 677, 686.) The Federal Arbitration Act (FAA) applies to contracts that involve interstate commerce (9 U.S.C. §§ 1, 2), but since arbitration is a matter of contract, the FAA also applies if stated in the agreement. (See Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, 355.) Pursuant to the FAA, the courts role is limited to determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) whether the agreement encompasses the dispute at issue. (Philadelphia Indemnity Ins. Co. v. SMG Holdings, Inc. (2019) 44 Cal.App.5th 834, 840, quoting U.S. ex rel. Welch v. My Left Foot Childrens Therapy, LLC (9th Cir. 2017) 871 F.3d 791, 796.) Discussion In this case, Country Oaks and Sun-Mar argue the present action is subject to an arbitration agreement that was signed by Harrod on November 29, 2019. (Blaylock Decl., Ex. B.) The arbitration agreement states it is between the Country Oaks Care Center and Logan with Harrod signing as Logans legal representative or agent. (Blaylock Decl., Ex. B, § 2.1.) In the arbitration agreement, Logan agreed to submit to arbitration any dispute as to medical malpractice, that is as to whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently or incompetently tendered or not rendered. (Blaylock Decl., Ex. B, § 1.1.) The arbitration agreement also states it applies to any and all other disputes, controversies, demands or claims that relate or arise out of the provision of services or health care or any failure to provide services or health care by Country Oaks Care Center. (Blaylock Decl., Ex. B, § 1.2.) And as to Harrod, the arbitration agreement states it applies to any claims asserted in Harrods personal capacity that arise out of or relate to any the provision of or failure to provide services (medical or otherwise) or goods by the Facility [Country Oaks Care Center] to the Resident [Logan] . . . . (Blaylock Decl., Ex. B, p. 3.) Last, the arbitration agreement states it evidences a transaction in interstate commerce governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-16. (Blaylock Decl., Ex. B, p. 1.) Based on the above, Country Oaks and Sun-Mar have adequately established the existence of an applicable arbitration agreement that is governed by the FAA. Accordingly, the burden now shifts onto Harrod to establish any defenses to the enforcement of this agreement. In opposition, Harrod argues the arbitration agreement is unenforceable because (1) Country Oaks and Sun-Mar failed to establish the existence of a valid agreement, (2) the agreement does not identify Harrod as a party and Harrod did not sign the agreement in an individual capacity, (3) the agreement is unconscionable, and (4) there is a significant risk of conflicting rulings. The court addresses these arguments below. Existence of Valid Arbitration Agreement Harrod first argues Country Oaks and Sun-Mar failed to properly authenticate the arbitration agreement at issue. (Opp., p. 9:3-20.) To establish prima facie evidence of an arbitration agreement, the party moving for arbitration need only provide a copy of the arbitration provision that purports to be signed by the parties or set forth the agreements terms in the motion. (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165 (Gamboa).) The moving party is not required to follow the normal procedures of document authentication. (Ibid, quoting Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218.) The opposing party bears the burden of producing evidence to challenge the authenticity of the agreement and can do so with statements under oath. (Ibid.) If the opposing party meets their burden, the moving party must then establish a valid arbitration with admissible evidence by preponderance of the evidence. (Ibid.) Here, the court finds Harrod failed to present evidence that challenges the authenticity of the arbitration agreement provided by Country Oaks and Sun-Mar. Because Harrod failed to do, Country Oaks and Sun-Mar do not have the burden of authenticating the arbitration agreement and Harrods signatures. Thus, the court finds this argument lacks merit. Application of the Arbitration Agreement to Harrod Harrod next contends the arbitration agreement cannot be enforced against Harrod because Harrod was not clearly identified as a party to the arbitration agreement and did not sign the arbitration agreement in Harrods individual capacity. (Opp., p. 11:19-12:4.) Harrod contends the present case is substantially similar to the facts in Goldman v. Sunbridge Healthcare, LLC (2013) 220 Cal.App.4th 1160 (Goldman). The court in Goldman held a nursing facility could not compel the arbitration of wrongful death claims by a deceased residents wife because the wife did not have authority to sign the arbitration agreements on the residents behalf and did not sign the agreements in an individual capacity. (Id., at p. 1164-1165.) While the wifes signature was labelled as the Signature of Resident's Legal Representative in his/her Individual and Representative Capacity, the court held the signature and label had no legal effect because the wife was not the residents legal representative. (Id., at p. 1176-1177.) The court also noted there was ambiguity as to whether the wife was signing in an individual capacity in addition to the wifes capacity as legal representative and that such ambiguity would be construed against the nursing home as the drafter. (Ibid.) In this case, the signature lines for Harrod in the arbitration agreement list Harrod as Legal Representative/Agent. (Blaylock Decl., Ex. B, p. 3.) Harrod contends these signatures were ineffective as Harrod was neither. (Opp., p. 11:19-22.) While Harrods opposition does not explicitly state so, it appears this contention is based on our supreme courts recent decision in Harrod v. Country Oaks Partners, LLC (2024) 15 Cal.5th 939 (Harrod), petn. for writ of cert. pending, petn. filed June 26, 2024, No. 23-1357. (Opp., p. 7:18-8:1.) The Harrod case involves the same parties and arises from the same of substantial identical transactions, incidents and/or events. Despite this, the parties did not alert this court to the related case already being litigated between the parties, case 20STCV26536, Dept. 71, Mosk Courthouse, as mandated in California Rules of Court, Rule 3.300 (b) & (d). In Harrod, our supreme court addressed whether the same arbitration agreement at issue here could compel the arbitration of Logans separate claims against Country Oaks and Sun-Mar for negligence and elder abuse. (Id., at p. 949.) Our supreme court held Country Oaks and Sun-Mar could not rely on Harrods execution of the arbitration agreement to compel Logan to arbitration because agreeing to arbitration was not within Harrods authority as Logans health care agent. (Id., at p. 946-947.) In their moving papers and reply brief, Country Oaks and Sun-Mar fail to address Harrod and instead raise the same argument Harrod rejected by claiming Logans health care directives gave Harrod authority to sign the arbitration agreement. (Id., at p. 966; Motion, p. 3:11-16, 4:8-9.) Because Harrod is binding authority and because Defendants fail to address or distinguish it, the court rejects this argument. In addition, Defendants suggest Harrod was Logans agent by virtue of language in the arbitration provision which certified that Harrod has authority to sign on Logans behalf. (Motion, p. 4:8-16.) Defendants also claim a declaration by Country Oaks Care Centers admission coordinator, Sandra Alvarado, establishes Logan gave consent to Harrod to sign on Logans behalf. (Motion, p. 3:15-19.) The court disagrees. To the extent Country Oaks and Sun-Mar contend Harrod has ostensible agency, the court notes this contention has not been foreclosed in Harrod. (Id., at p. 948, fn. 3 [noting the court did not address the possibility that Harrod had authority to act pursuant to the theory of ostensible agency].) When a defendant contends an agreement to arbitrate is binding because it was signed by an agent of the plaintiff, the defendant bears the burden of proving the signatory was the plaintiffs actual or ostensible agent. (Kinder v. Capistrano Beach Care Center, LLC (2023) 91 Cal.App.5th 804, 812 (Kinder).) Actual agency occurs when the agent is really employed by the principal (Civ. Code, § 2299) while ostensible agency occurs when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him. (Civ. Code, § 2300.) In other words, ostensible agency requires the following: (1) conduct by the [principal] that would cause a reasonable person to believe that the [alleged agent] was an agent of the [principal], and (2) reliance on that apparent agency relationship by the plaintiff. (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1453.) Here, Country Oaks and Sun-Mar contend the following clause establishes Harrod had authority to sign on Logans behalf: By virtue of Residents consent, instruction and/or durable power of attorney, I hereby certify that I am authorized to act as Residents agent in executing and delivering of this arbitration agreement. I acknowledge that the Facility is relying on this representation. . . . (Motion, p. 4:10-14, quoting Blaylock Decl., Ex. B, p. 3.) But [a] person cannot become the agent of another merely by representing [themselves] as such. (Pagarigan v. Libby Care Center, Inc. (2002) 99 Cal.App.4th 298, 301 (Pagarigan).) In similar circ*mstances, multiple courts have rejected the argument that the inclusion of such a provision in the arbitration agreement signed by the purported agent is sufficient to create actual or ostensible agency. (Kinder, supra, 91 Cal.App.5th at p. 813 [collecting cases]; see also Goldman, supra, 220 Cal.App.4th at p. 1176.) Thus, Country Oaks and Sun-Mar can only establish Harrod had authority to sign as Logans agent by pointing to Logans actions or conduct. While they attempt to do so by pointing to Alvarados declaration, the court finds this incomplete form declaration to be wholly insufficient. First, while the instructions on the form declaration state to circle the one following statement that applies, Alvarado failed to circle any of the four statements that followed which address whether the resident consented to the arbitration agreement. (Alvarado Decl., ¶ 3-7.) Thus, the court finds this declaration is incomplete. Second, while Alvarado failed to circle one of the four statements, Alvarado did fill in the blanks for the third statement which reads as follows (with Alvarados additions underlined): The Resident was unable to sign himself or herself. The Resident authorized Mark Harrod (name) his or her nephew (relationship to Resident) to sign the Agreement on his or her behalf. (Alvarado Decl., ¶ 6.) Even if the court disregarded Alvarados failure to follow the instructions in the form and circle this statement, the court would still find this statement insufficient as it does not state how Logan authorized Harrod to sign the arbitration agreement. Additionally, the court finds the statement sufficiently vague since the court is unable to determine whether the authorization to which Alvarado refers is the healthcare directives Logan executed, directives which are insufficient as noted above. Furthermore, Alvarados declaration suggests Logan was not present at the time the arbitration agreement was signed since Alvarado only describes explaining the agreement to Harrod. (Alvarado Decl., ¶ 1.) As such, the court finds Country Oaks and Sun-Mar failed to provide sufficient evidence that demonstrates Harrod was Logans agent pursuant to a theory of ostensible agency. Because Harrod was neither Logans legal representative nor agent, the court finds Harrods two signatures to the contrary in the present arbitration are ineffective. (See Goldman, supra, 220 Cal.App.4th at p. 1177.) Country Oaks and Sun-Mar attempt to distinguish Goldman by contending the present arbitration agreement also includes the following clause: I also acknowledge that pursuant to the terms of this agreement, any claims that I may assert in my personal capacity that arise out of or relate to the provision of or failure to provide any services (medical or otherwise) or goods by the Facility to the Resident or the admission agreement are governed by this Arbitration Agreement. (Reply, p. 3:16-4:2, quoting Blaylock Decl., Ex. B, p. 3.) While this clause purports to establish Logans legal representative or agent is also signing the agreement in an individual capacity, the court finds this clause does not apply to Harrod because Harrods signature was ineffective since Harrod did not have authority to sign the agreement in the first place. (Id., at p. 1176 [noting that because there was no person who qualified as residents legal representative, there was also no legal representative to sign in his or her individual capacity]. Thus, the court finds Harrod was not effectively a party to the arbitration agreement and cannot be compelled to arbitration. Accordingly, Country Oaks and Sun-Mars petition is DENIED. CONCLUSION Based on the foregoing, the court DENIES Country Oaks and Sun-Mars petition to compel arbitration.

Ruling

EDGARDO PANO, JR. VS SERRANO DEVELOPMENT GROUP, INC., ET AL.

Aug 08, 2024 |20STCV15419

Case Number: 20STCV15419 Hearing Date: August 8, 2024 Dept: O Tentative Ruling (1) MOTION FOR SUMMARY JUDGMENT OF TED SAKAIDA & SONS TRUCKING INC. (v. FAC of Plaintiff Edgardo Pano, Jr. and the FACC of Serrano Development Group, Inc, Pacific Empire Builders, and Azusa Block 36) is DENIED without prejudice as to Plaintiffs complaint because no separate MSJ was filed. (2) MOTION FOR SUMMARY JUDGMENT OF SUN AGGREGATES, LLC (v. First Amended Cross-Complaint of Serrano Development Group, Inc., Pacific Empire Builders, and Azusa Block 36) is GRANTED. Background[1] This is a wrongful death case. On April 22, 2020, Plaintiff Edgardo Pano, Jr.[2] filed suit against SERRANO DEVELOPMENT GROUP, INC. (Serrano); PACIFIC EMPIRE BUILDERS, INC. (Pacific Empire); AZUSA BLOCK 36, LLC (Azusa Block); CITY OF AZUSA (the City); JONELLE SOLLER (Soller)[3] (collectively, Defendants) for the death of his father who was struck by a truck while riding his bicycle. More specifically, Plaintiff alleges that the width of the roadway where decedent was struck had been reduced by the placement of concrete barriers to accommodate construction, but that said barriers were placed without any adequate warnings. On July 23, 2020, Plaintiff filed his first amended complaint (FAC) asserting the following causes of action (COAs): 1. NegligenceMotor Vehicle 2. Negligence Per Se 3. Negligent Entrustment 4. Negligent Hiring, Retention and Supervision 5. NegligencePremises Liability 6. Dangerous Condition of Public Property On October 8, 2020, Plaintiff named Luis Morales (Luis) as Doe 1 and Rios Trucking as Does 2. On November 4, 2020, Plaintiff named Right Truck, Inc. as Doe 3. On December 11, 2020, Luis Eduardo Rios Morales Dba Rios Trucking (Rios Trucking) filed a cross-complaint (CC) against named Defendants for indemnity. On January 15, 2021, Serrano, Pacific Empire, and Azusa Block filed a CC against B.L. PRICE CO., INC (BL Price); TED SAKAIDA & SONS, INC. (Ted Trucking); MANUAL D. TEJEDA TRUCKING INC. (Tejeda Trucking); Rios Trucking; and Right Truck Inc. (Right Trucking) for: 1. Breach of Contract 2. Express Indemnity 3. Equitable Indemnity 4. Contribution 5. Declaratory Relief On January 19, 2021, Soller, as a successor in interest to decedent and in her personal capacity, filed a complaint for wrongful death (21STCV02124) against Serrano, Pacific Empire, Azusa Block, the City, Rios Trucking, Right Truck, and Luis. On March 1, 2021, Ted Trucking filed a CC against Serrano, Pacific Empire, Azusa Block, the City, and Soller for: 1. Equitable Indemnity 2. Contribution 3. Express Indemnity and 4. Declaratory Relief On March 15, 2021, Right Trucking filed a CC against Serrano, Pacific Empire, Azusa Block, the City, and BL Price for indemnity. On March 17, 2021, BL Price filed a CC against Manual D. Tejeda Trucking, Inc. (Tejeda Trucking) and Rios Trucking (and later on 4/14/21 naming Right Truck for indemnity. On April 13, 2021, Plaintiff named various doe defendants. On July 22, 2022, Tejeda Trucking filed a CC against Zoes for indemnity. On March 8, 2022, Serrano, Azusa Block, and Pacific Empire filed their first amended CC v. BL Price, Ted Trucking, Tejeda Trucking, Rios Trucking, and Right Truck (which is the subject of Sun Aggregates MSJ). On June 10, 2022, Serrano, Azusa Block, and Pacific Empire named Hi-Way Safety Rentals, Inc. as Roe 1 and on September 22, 2022, they named Sun Aggregates LLC as Doe 2. On October 19, 2022, Sun Aggregates LLC (Sun Aggregates) filed a Cross Complaint for indemnity against Serrano, Pacific Empire, Azusa Block, Tejeda Trucking, Rios Trucking, and Right Truck. On December 29, 2022, Serrano, Pacific Empire, and Azusa Block (collectively Cross-Defendants) a demurrer to Sun Aggregates cause of action for express indemnity, which on 2/15/23 was sustained with leave to amend as the pleading failed to provide the express language allowing for express indemnity. On November 8, 2023, the court entered the order granting Hi-Ways Motion to quash Plaintiffs improper/incomplete service of process. As the Plaintiffs were not truly ignorant of Hi-Ways identity, their claims against Hi-Way are barred by the applicable statute of limitations and were dismissed with prejudice. On May 10, 2024, the two instant MSJs were filed.[4] On July 25, 2024, Serrano + filed its respective oppositions. On July 29, 2024, Plaintiff filed his opposition to Ted Truckings MSJ, indicating that he hereby joins [Serrano +] in their opposition to the Motion for Summary Judgement filed by [Ted Trucking]. On August 2, 2024, both Ted Trucking and Sun Aggregates filed their respective replies in support of their respective motions. For simplicity, the court will refer to Serrano Development Group, Inc., Pacific Empire Builders, and Azusa Block 36 as Serrano + and Sun Aggregates as Sun. Legal Standard The law of summary judgment provides courts a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) In reviewing a motion for summary judgment, courts employ a three-step analysis: (1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponents 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.) The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) For emphasis, only material facts govern summary judgment.4 To be material, a fact must be essential to the action and, if proven, change the outcome of the case. (Los Angeles Natl Bank v. Bank of Canton (1991) 229 Cal.App.3d 1267, 1274.)5 As A moving defendant bears the initial burden of production to show that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action, at which point the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue. (Code Civ. Proc., § 437c, subd. (p)(2).) The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the courts discretion constitute a sufficient ground for denying the motion. (Code Civ. Proc., § 437c, subd. (b)(1). Once the moving party meets its evidentiary burden, the burden shifts to the opposing party to show triable issues of material. Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389; see also Hinesley, supra, 135 Cal.App.4th at p. 294 [The court must view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.].) In determining whether the papers show that there is a triable issue as to any material fact, the court shall consider all of the evidence set forth in the moving papers, except that as to which objections have been made and sustained, and all inferences reasonable deducible from such evidence. (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.) Discussion At the outset, Ted Trucking seeks summary judgment as to two pleadings, but that is improper because the pleadings are predicated upon different legal issues. The cross-complaint is one for indemnity whereas the complaint is predicated upon negligence. (See Rutter Group, California Practice Guide: Civil Procedure Before Trial ¶9:24.3 (2024) [practice for combining motions].) With that, the Ted Truckings MSJ is denied without prejudice so it can be properly filed. The court now turns to the merits of Suns motion, but before doing so, the court outlines the role of the relevant parties, which is not otherwise disputed by the parties. - Serrano + were the owners/developers on the Orchard project (mix used project) (Opp. p. 2)[5] - Serrano + entered into a written agreement with grading subcontractor BL Price whose scope of work including demolition, shoring, grading, and exporting soil and other materials from the project site (Opp. p. 2; see also Motion p. 10; see also Serrano + FACC ¶17) - BL Price subcontracted the exporting scope of the work to Ted Trucking and/or Sun that was memorialized by a Trucking Agreement (Opp. p. 3, 4) - Sun is a brokerage company (Motion p. 10)[6] - Sun subcontracted with Tejeda Trucking (Motion p. 10). There was no written contract between Tejeda Trucking and Sun because Sun has brokered to Tejeda Trucking for years. The Trucking Agreement between BL Price and Sun did not preclude the use of a subhauler (Opp. p. 4:21-23). - Tejeda Trucking subcontracted with Right Truck (Motion p. 10). There was no written contract between Sun and Right Truck. (Motion p. 5, ¶4.) - Right Truck subcontracted with Rios Trucking (Motion p. 10). There was no written contract between Sun and Rios Trucking. (Motion p. 5, ¶4.) - Luis Rios Morales of Rios Trucking was the truck driver involved in the accident (Motion p. 10) As the pleadings frame the issues on summary judgment, the court turns to the relevant FACC which provides that BL Price [] and Roes 1 through 25, and each of them, have an EXPRESS DUTY and are obligated to indemnify and hold [Serrano +] harmless &costs&incurred arising from their work in connection with the Project pursuant to the WRITTEN CONTRACTS. (FACC ¶ ¶22, 23, emphasis and capitalization added.) With that, the burden of Sun only requires that they negate the theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings. (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493. [P]apers filed in response to a defendant's motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings& [s]imilarly, [d]eclarations in opposition to a motion for summary judgment are no substitute for amended pleadings. ... If the motion for summary judgment presents evidence sufficient to disprove the plaintiff's claims, ... the plaintiff forfeits an opportunity to amend to state new claims by failing to request it. (Ibid, internal citations omitted.) But, as noted by moving Defendants and not otherwise disputed, the only contract into by Sun relating to the Project was with BL Price; they did NOT have a written contract with Serrano +. (See e.g., Sun Reply p. 3:10-16.) Therefore, the indisputable material fact is that there is no express duty that Sun indemnifies Serrano + because there was no written contract between Sun and Serrano +. Conclusion Based on the foregoingin that Sun had no contract with, and did not hire, Rios MoralesSuns motion is granted. [1] There is a consolidated case (Case No. 21STCV02124). Additionally, much of the procedural history has been omitted due to the numerous filings in this case. [2] Plaintiff is the sole child of decedent. (FAC ¶2.) [3] Soller is the widow of decedent. (FAC ¶14.) [4] Moving defendants are represented by the same firm and attorney (Roy D. Goldstein of Buechler, Orlov & Starinieri). On June 25, 2024, Moving defendants filed a Notice of Association of Counsel indicating that Michael Gallagher, Esq. of Edlin Gallagher Huie & Blum has been retained as counsel of records. [5] Though not explicitly stated, the court presumes that the City of Azusa hired Serrano + as the contractor. [6] Serrano + argues that Sun may qualify as more than a mere broker. (Opp. p. 9.) In its reply, however, Sun contends that it does not own any trucks. (Donnie Sakaida Decl., ¶4.) Ted Trucking does own trucks and is in the hauling business. (Ibid.)

Ruling

GUSTAVO SANCHEZ ALEJANDREZ VS CARLOS FUENTES, ET AL.

Aug 06, 2024 |23NWCV00151

Case Number: 23NWCV00151 Hearing Date: August 6, 2024 Dept: C The Ted Herz, LLC vs Javier Quezada Sanchez Case No.: 24NWCV00151 Hearing Date: August 6, 2024 @ 10:30 a.m. #9 Tentative Ruling Plaintiff The Ted Herz, LLCs unopposed Motions to Compel Discovery as to Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production of Documents, Set One is GRANTED. Sanctions are imposed upon Defendant and Counsel, jointly and severally, in the reasonable amount of $910.00, inclusive of costs, payable within 60 days. Plaintiff to give notice. Background On January 16, 2024, Plaintiff The Ted Herz, LLC (Plaintiff) filed a Complaint for Breach of Contract against Defendant Javier Quezada Sanchez (Defendant). On March 19, 2024, Plaintiff served Defendant with Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production of Documents, Set One, by email. (Burton Decl., ¶ 2.) On June 3, 2024, Plaintiff filed the instant Motions. On June 20, 2024, the Court granted Plaintiffs ex parte application to advance the hearing from January 14, 2025 to todays date. To date, verified responses have not been severed upon Plaintiff. (Burton Decl., ¶ 3.) As of August 2, 2024, the motions are unopposed. As a preliminary matter, Plaintiff has filed three motions to compel responses to discovery in a single document. Counsel is advised that each motion should be filed separately and filing fees should be paid for each motion. In the interests of judicial efficiency, the Court will consider each motion on the merits. Legal Standard If a party fails to timely respond to a request for production or interrogatories, the party to whom the request is directed waives any right to exercise the option to produce writings under Code Civ. Proc., § 2030.230, and waives any objection, including one based on privilege or on the protection for work product. (Code Civ. Proc., § 2031.300, subd. (a); Code Civ. Proc., § 2030.290, subd. (a).) The party who propounded the discovery request may bring a motion to compel and the court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for production of documents or interrogatories, unless the court finds that the one subject to the sanction acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2031.300, subd. (c); Code Civ. Proc., § 2030.290, subd. (c).) Discussion Plaintiff served all discovery requests on March 19, 2024. (Burton ¶ 2.) Plaintiffs attorney of record declares that as of June 3, 2024, Defendants have not responded to any of the discovery requests or conferred with Plaintiff about the status of the responses. (Id., ¶ 6.) Because Defendant has failed to respond to the discovery requests, Defendant is compelled to respond to the Request for Production of Documents, Set One, Form Interrogatories, Set One, and Special Interrogatories, Set One, without objection, including objections based on privilege or on the protection for work product. (Code Civ. Proc., § 2031.300 subd. (a); Code Civ. Proc., § 2030.290, subd. (a).) For interrogatories, the failure to respond also waives any right to exercise the option to produce writings under Code of Civil Procedure section 2030.230. Thus, Plaintiffs Motions are GRANTED. A. Sanctions Failure to respond to discovery requests is misuse of the discovery process subject to sanctions. (Code Civ. Proc., § 2023.010.) The court is required to award monetary sanctions against Defendant unless Defendant can show they acted with substantial justification or that other circ*mstances make the imposition of the sanction unjust. (Code Civ. Proc., § 2031.300, subd. (c); Code Civ. Proc., § 2030.290, subd. (c).) The monetary sanction shall be in the amount of the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. (Code Civ. Proc., § 2023.030.) Counsel for Defendant requests two separate awards of sanctions. Given the simplicity of the motions and the lack of opposition, the Court imposes sanctions in the reasonable amount of $910.00, inclusive of costs, upon Defendant and Counsel, jointly and severally, payable within 60 days.

Ruling

Dvorak vs Hope Publications LLC

Aug 09, 2024 |24CV47332

24CV47332 DEFENDANT’S SPECIAL MOTION TO STRIKEOn April 22, 2024, Michael Dvorak (“Plaintiff”) filed a complaint against HopePublications LLC, dba Calaveras Enterprise (“Defendant”) alleging causes of action for:1) defamation, 2) libel, 3) false light, 4) defamation “per se”, 5) defamation “per quod”, 6)intentional infliction of emotional distress, 7) negligent infliction of emotional distress,and 8) damages.Now before the Court is Defendant’s special motion to strike pursuant to Code Civ.Procedure section 425.16.Defendant’s Request for Judicial Notice is GRANTED in full.I. BackgroundPlaintiff is a member of the Board of Directors of the Calaveras County ResourceConservation District (“Calaveras RCD”). (RJN ¶ 12, Ex. 3.) He was appointed to theseven-member board in January 2022 by the County Board of Supervisors. (Id., Ex. 4.)Defendant is a publishing company that operates a locally owned newspaper called theCalaveras Enterprise (“Newspaper”). (Complaint ¶¶ 12-13.) The Newspaper is printedonce a week but is also available daily online. (Id. ¶ 14.) Plaintiff alleges that in theOctober 11, 2023 edition, the Newspaper published an “erroneous felony booking log”,as follows: Michael Dvorak, 46, at 11:42 a.m. on the 10200 block of Pool Station Road in San Andreas and booked on Vandalism deface property a felony charge. (Complaint ¶¶ 17, 18, Ex. A.)Plaintiff alleges that after a friend notified him of this report in the newspaper, hebecame mortified and suffered emotional distress. Plaintiff further alleges that on orabout November 3, 2023, Plaintiff emailed the Defendant to take down the erroneousbooking log post from their online website (Complaint, Ex B.) but Defendant failed torespond.Plaintiff alleges that the Defendant uses the local sheriff / county office “Media Bulletin”to publish local arrest / booking logs and that in this instance, Defendant filed to verifythe County’s information. After some apparent back and forth, on or about January 31,2024, Plaintiff received a response from Sheriff DiBasilio and Deputy County CounselKara Frank, stating: “The Sheriff’s Office cannot send a booking sheet because, as you also stated, you were not booked so there is no booking sheet.” (Complaint ¶ 29, Ex. C.)On or about February 5, 2024, Defendant took down the published news aboutPlaintiff’s felony booking log.II. Legal Standard“The anti-SLAPP procedures are designed to shield a defendant’s constitutionallyprotected conduct from the undue burden of frivolous litigation.” (Baral v. Schnitt (2016)1 Cal.5th 376, 393.) “The anti-SLAPP statute does not insulate defendants from anyliability for claims arising from the protected rights of petition or speech. It only providesa procedure for weeding out, at an early stage, meritless claims arising from protectedactivity.” (Id. at 384.)Anti‐SLAPP motions are evaluated through a two‐step process. Initially, the movingdefendant bears the burden of establishing that the challenged allegations or claimsarise from protected activity in which the defendant has engaged. If the defendantcarries its burden, the plaintiff must then demonstrate its claims have at least minimalmerit. (Code Civ. Proc., § 425.16; Park v. Bd. of Trustees of California State Univ.(2017) 2 Cal. 5th 1057, 1061.) “Only a cause of action that satisfies both prongs of theanti‐SLAPP statute—i.e., that arises from protected speech or petitioning and lackseven minimal merit—is a SLAPP, subject to being stricken under the statute.” (Navellierv. Sletten (2002) 29 Cal.4th 82, 89.)The party opposing the special motion to strike must proffer a prima facie showing offacts supporting a judgment in his favor. (Navellier v. Sletten, (2002) 29 Cal.4th 82, 89.)In making its determination, “the court does not weigh the credibility or comparativeprobative strength of competing evidence, it should grant the motion if, as a matter oflaw, the defendant's evidence supporting the motion defeats the plaintiff's attempt toestablish evidentiary support for the claim. [Citation.] In making this assessment it is thecourt's responsibility to accept as true the evidence favorable to the plaintiff. [Citation.]”(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)The plaintiff must also overcome substantive defenses to demonstrate a probability ofprevailing. (RGC Gaslamp, LLC v. Ehmcke Sheet Metal Co., Inc. (2020) 56 Cal.App.5th413, 434; Flatley v. Mauro (2006) 39 Cal.4th 299, 323 [no probability of prevailing whereclaims are barred by the litigation privilege under Civil Code section 47.])III. Discussion A. Defendant has met its initial burden.Defendant first bears the burden of establishing that the challenged allegations orclaims arise from protected activity in which the defendant has engaged. Here, it hasmet that burden because the publication of the booking log was a statement made “in apublic forum in connection with an issue of public interest.” (Code Civ. Proc. §425.16(e)(3); Sonoma Media Invs. v. Super. Ct., (2019), 34 Cal. App. 5th 24, 33-34(newspapers and their websites are “public forums” under the statute). Moreover, thenewspaper’s reporting in the Booking Log about alleged criminal activity clearly relatesto “an issue of public interest.” (See, e.g., Kapellas v. Kofman, (1969), 1 Cal. 3d 20, 38:“Newspapers have traditionally reported arrests or other incidents involving suspectedcriminal activity, and courts have universally concluded that such events arenewsworthy matters of which the public has the right to be informed.”). B. Prima Facie CaseBecause Newspaper has met its initial burden, the burden now moves to the Plaintiff todemonstrate that the allegations of the Complaint are both legally sufficient andsupported by a sufficient prima facie showing of facts supporting a judgment in theirfavor. (Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087.) The party opposing thespecial motion to strike must proffer a prima facie showing of facts supporting ajudgment in his favor. (Navellier v. Sletten, (2002) 29 Cal.4th 82, 89.) 1. Defamation/Libel/False Light3/Defamation Per Se/Defamation Per QuodTo carry his burden on the various defamation and libel claims, Plaintiff mustdemonstrate that he has pleaded, and has admissible evidence demonstrating, that theBooking Log is materially false, defamatory, and unprivileged and that its publicationentitles him to damages. (See Med. Marijuana v. ProjectCBD.com, (2020) 46 Cal. App.5th 869, 884 (2020). Because Plaintiff is a public figure, he must also demonstrate thatthe Defendant acted with “actual malice – that is, with knowledge that it was false orwith reckless disregard of whether it was false or not.” (Reader's Digest Assn. v.Superior Court, (1984) 37 Cal.3d 244, 250, citing New York Times v. Sullivan (1964),376 U.S. 254, 279-80.)Defendant preemptively argues that Plaintiff cannot carry his burden because theallegations are based on information obtained from the police Booking Log and aretherefore absolutely privileged. Civil Code section 47(d)(1) makes privileged a “fair andtrue report in, or a communication to, a public journal, of [a] public official proceeding,3 False light and defamation are “essentially equivalent” causes of action. (Fellows v. NationalEnquirer, Inc., (1986), 42 Cal.3d 234, 248 fn. 12.)or…anything said in the course thereof.” The crime reports of a police department arequalifiedly privileged under the Civil Code. (Hayward v. Watsonville Register-PajaronianSun (1968) 265 Cal.App.2d 255, 260.)The act of accurately reporting what was contained in a police investigation record orBooking Log is privileged. Here, Defendant accurately reported what was in the policerecords, specifically, information that Calaveras County Sheriff’s Office (“CCSO”) postedto Citizen RIMS.4 (Declaration of Corissa Davidson ¶¶ 9-12, 15.) Davidson used noother source of information for the Booking Log. (Id. ¶ 12, 15.) She prepared it byconsulting the CCSO-published entries on the Arrests page of Citizen Rims as ofOctober 11, 2023, and reporting it in the Booking Log. (Id. ¶¶ 9-15. ) The Booking Logconstitutes a fair and true report of the CCSO’s communications concerning a judicialand/or “public official proceeding.” (Cal. Civ. Code § 47(d)(1).)5 Notably, Plaintiff doesnot dispute that CCSO, on October 5, 2024, reported that it had arrested him on afelony vandalism charge.California “ ‘permits no cause of action based upon the defamatory nature of acommunication which is itself privileged under the defamation laws.’ ” (Brody v.Montalbano (1987) 87 Cal.App.3d 725, 738-39 [citation omitted].) Accordingly, as theinformation Defendant published in the Newspaper was privileged as an accurate reportof CCSO’s communications concerning a public official proceeding, Plaintiff may notmaintain any causes of action based in defamation law.2. Remaining Causes of ActionPlaintiff also maintains causes of action for negligent and intentional infliction ofemotional distress. Plaintiff may not maintain these causes of action either. The U.S.Supreme Court has defined a “zone of constitutional protection within which one couldpublic concerning a public figure without fear of liability.” (Reader's Digest Assn. v.Superior Court, (1984), 37 Cal.3d 244, 265, citing New York Times Co. v. Sullivan, 376U.S. 254, 269.) Further, that “constitutional protection does not depend on the labelgiven the stated cause of action.” (Ibid.) Accordingly, Plaintiff’s remaining causes ofaction also fail because “liability cannot be imposed on any theory for what has beendetermined to be a constitutionally protected publication.” (Id. at 265-266.)4Citizen RIMS provides visitors access to several categories of information, including information aboutarrests (under the site’s “Arrests” tab) and a “media bulletin” in which the CCSO disclosed informationabout recent calls for service (“Bulletin” tab). (Davidson Decl. ¶ 9.)5 Plaintiff argues that the website the Defendant used was an unofficial source but provides no evidencein support of this assertion.III. ConclusionFor the foregoing reasons, Defendant’s motion to strike is GRANTED. Plaintiff’sComplaint is therefore stricken in its entirety and Judgment entered on behalf ofDefendant. As the prevailing party, any claim by Defendant for costs and/or attorney’sfees would be determined by subsequent motion(s). The Clerk shall provide notice ofthese Rulings to the parties forthwith. Defendant to submit a formal Order andJudgment pursuant to Rule of Court 3.1312 in conformity with this Ruling.

Ruling

FARMERS INSURANCE EXCHANGE, A CALIFORNIA INTERINSURANCE EXCHANGE VS GALINA NECHAEVA, ET AL.

Aug 07, 2024 |23SMCV04827

Case Number: 23SMCV04827 Hearing Date: August 7, 2024 Dept: M CASE NAME: Farmers Ins. Exchange v. Nechaeva, et al. CASE NO.: 23SMCV04827 MOTION: Motion to Vacate and Set Aside Default HEARING DATE: 8/7/2024 Legal Standard Relief under Code of Civil Procedure (CCP) section 473(b) is either discretionary or mandatory. A motion for mandatory relief must be made no more than six months after entry of judgment and be accompanied by an attorneys sworn affidavit attesting to the attorneys mistake, inadvertence, surprise or neglect. (CCP § 473(b).) The attorney affidavit of fault must contain a straight forward admission of fault. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) But it need not contain an explanation of the reasons for the attorneys mistake, inadvertence surprise or neglect. (Martin Potts & Assocs., Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438-441.) Relief must be granted unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. (Ibid.) If mandatory relief is granted, the court must direct the attorney to pay reasonable compensatory legal fees and costs to the opposing counsel or parties. (CCP § 473(b).) Where a party cannot obtain an attorney affidavit of fault, the party may seek discretionary relief under section 473(b) due to mistake, inadvertence, surprise, or excusable neglect. (CCP § 473(b).) A motion for discretionary relief must be made within a reasonable time but in no instance exceeding six months after the judgment, dismissal, order, or proceeding was taken. (Id.) If discretionary relief is granted, the court may in its discretion order the moving party to pay the costs, including attorney fees, incurred in obtaining the default. (Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816, 823; Vanderkous v. Conley (2010) 188 Cal.App.4th 111, 118-119.) If the motion for discretionary relief is granted, the court may order the offending attorney to pay monetary sanctions up to $1,000 to opposing parties, or up to $1,000 to the State Bar Client Security Fund, or [g]rant other relief as is appropriate. (CCP § 473(c)(1)(A), (B), (C).) A motion for relief under section 473(b) shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted. . . (CCP § 473(b).) However, this requirement is not jurisdictional; substantial compliance may suffice. (Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 403 [finding substantial compliance where counsel offered proposed answer at motion hearing rather than serving it with moving papers].) Analysis Defendants Galina Nechaeva and Natalia Livston move to set aside their defaults entered on December 14, 2023, and February 29, 2024. Plaintiff Farmers Insurance Exchange opposes the motion. Defendants timely moved on March 31, 2024, three and a half months after the first default and only a month and a half after the second default was entered. Defendants demonstrate that the default was entered because of excusable mistake, inadvertence, surprise or excusable neglect. As to the first default, Defendants demonstrate that they forwarded the complaint to their insurer for defense in a timely manner, but the litigation file was not received by defense counsel until after the first default had been entered. (Wright Decl., ¶ 6.) The first default therefore resulted from either the insurer or counsels negligence. Thus, Nechaeva is entitled to mandatory and/or discretionary relief. As to the second default, Defendants show this was entered due to counsels excusable mistake, inadvertence, negligence, etc. The second default was requested after counsel had received the file and was actively representing Defendants in discussions with Plaintiff. (Wright Decl., ¶¶9-11.) Thus, the clients are apparently blameless in failing to timely respond. The court observes no substantive prejudice to Plaintiff in vacating the defaults. Accordingly, the motions are GRANTED. As relief was mandatory, Plaintiff is granted sanctions in the amount of $800.00 against Defendants counsel of record, Adam Wright Esq. of Collinson, Daehnke, Inlow & Greco. Sanctions are to be paid within 30 days.

Ruling

CHINA LIVE VENTURES LIMITED, L.P. VS. 644 BROADWAY LLC ET AL

Aug 07, 2024 |CGC21590574

Real Property/Housing Court Law and Motion Calendar for Wednesday, August 7, 2024, line 2. Plaintiff's Amended Motion to Strike is GRANTED. No opposition filed. =(501/CFH) Parties may appear in-person, telephonically or via Zoom (Video - Webinar ID: 160 560 5023; Password: 172849; or Phone Dial in: (669) 254-5252; Webinar ID: 160 560 5023; Password: 172849). Parties who intend to appear at the hearing must give notice to opposing parties and the court promptly, but no later than 4:00 p.m. the court day before the hearing unless the tentative ruling has specified that a hearing is required. Notice of contesting a tentative ruling shall be provided by sending an email to the court to Department501ContestTR@sftc.org with a copy to all other parties stating, without argument, the portion(s) of the tentative ruling that the party contests. A party may not argue at the hearing if the opposing party is not so notified, and the opposing party does not appear.

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