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CAUSE NO. 2023-09059Mireya Hernandez, Individually, and § IN THE DISTRICT COURT OFas Personal Representative of the §Estate of Juan Hernandez Sandoval, and §Jonathan Hernandez § Plaintiffsvs. § OF HARRIS COUNTY, TEXASTGS Cedar Port Partners, L.P.;TGS Cedar Port GP, LLC;TGS Cedar Port Railroad LLC; §GH Mechanical and Services LLC; §EE Reed Management, LLC; and §E.E. Reed Construction East Coast, LLC § Defendants § 334TH JUDICIAL DISTRICT PLAINTIFFS’ COMBINED RESPONSE TO DEFENDANTS’ MOTIONS TO TRANSFER VENUE The Court should deny (i) Defendants EE Reed Management, LLC and E.E. ReedConstruction East Coast, LLC’s (collectively, EE Reed Defendants”) Motion to TransferVenue; (ii) Defendant TGS Cedar Port Partners, LP’s otion to Transfer Venue; and (iii)Defendant TGS Cedar Port GP, LLC’s (collectively, “TGS Defendants”) Motion to TransferVenue because: In Texas, the plaintiff has the right to choose venue, and if the plaintiff has chosen a proper venue, “the trial court must maintain venue in the plaintiff’s chosen county[.]” See Moveforfree.com, Inc. v. David Hetrick, Inc. 288 S.W.3d 539, 541 (Tex. App.—Houston [14th Dist.] 2009, no pet.); Defendant GH Mechanical and Services LLC maintains its “principal office” in Texas in Harris County thus: (i) venue is independently fixed by each defendant under Section 15.002(a)(3); and (ii) venue is proper as to all defendants in all claims arising out of this accident. See Union Pac. R. Co. v. Stouffer, 420 S.W.3d 233, 245 (Tex. App. allas 2013, pet. dism’d); and efendants have failed to prove each (let alone any) of the three required conditions for a convenience transfer to Chambers County under Section 15.002(b) when (i) efendants face no economic or personal hardship from defending in the county where they primarily already operate; (ii) efendants offer no details about any witnesses who would be inconvenienced; (iii) any witnesses outside Chambers county would have o through Harris county anyway vi) each witness can be deposed and testify without travel; and ( ) the transfer would work an injustice to Plaintiff , Plaintiffs witnesses, Plaintiff’s counsel, efendants’ counsel, various defense witnesses, and any other traveling non hambers County based parties. ACKGROUND This is a tragic wrongful death case. On January 20, 2022, Juan Hernandez Sandovalsuffered severe injuries, extensive pain, and eventually died from a fall at Defendants TGS CedarPort Partners, L.P.; TGS Cedar Point GP, LLC; and TGS Cedar Point Railroad LLC’s(collectively, “TGS Defendants”) facility at 4123 Oscar Nelson Jr Dr, Baytown, TX 77523Baytown Texas. Mr. Sandoval was working on the roof of the facility for Defendant GHMechanical and Services LLC (“GH Mechanical”) at the time, which was contracted to provideHVAC services as part of a larger project managed by EE Reed Management, LLC, E.E. ReedConstruction East Coast, LLC, and/or E. E. Reed Construction, L.P. (collectively, “EE ReedDefendants”). Plaintiffs filed this lawsuit on February 10 , 2023. In their First Amended Petition,Plaintiffs alleged negligence, negligence per se, and/or gross negligence claims against the TGSDefendants, GH Mechanical, and the EE Reed Defendants. Ex. 1 (First Amended Petition).Plaintiffs filed suit here in Harris County per RAC ODE § 15.002(a)(3)because at least one defendant maintained its principal office in Texas in Harris County. TheTGS Defendants and the EE Reed Defendants both claim that they do not maintain theirprincipal office in Texas in Harris County. But both Defendants conveniently ignore that theprincipal office in Texas of GH Mechanical, is in Harris County. The publicly availableinformation confirms this. GH Mechanical lists Harris County as their location with the TexasDepartment of Licensing and Regulation:Ex. 3 (Texas Department of Licensing & Regulation). It lists 6321 Theall Road, Houston, TX Harris County mailing address with the Texas Secretary of state. Ex. 4 (Franchise Tax AccountStatus) Ex. 5 (Google Maps). County tax records show GM Mechanical owns that 6321 TheallRoad address. Ex. (Harris County Tax Office). And Robert Leiskau, advertises himself on This case remains in the beginning stage of discovery. Written discovery is not completed, no depositions have beenconducted, and no experts have been disclosed. The discovery deadline is March 7, 2024, and the case is set for trial May 6, 2024. Ex. 2 (Scheduling Order). Found at https://www.tdlr.texas.gov/LicenseSearch/ Found at https://mycpa.cpa.state.tx.us/coa/ Found at https://www.hctax.net/Property/PropertyTaxsocial media as the president of GH Mechanical and based in Houston Texas. Ex. 7 (LinkedInPage). Undeterred, the TGS Defendants and the EE Reed Defendants have moved to transfervenue from plaintiff’s chosen venue and defendant GH Mechanical’s headquarters, HarrisCounty, its preferred venue Chambers County. See Def. EE Reed Mot. at 3; Def. TGS Mot¶8. With no real argument Harris County is an improper venue, Defendants attempt to rely onTexas Civil and Remedies Code Section 15.002(b) claiming a transfer “would be in the interestof justice and for the convenience of the parties and witnesses.” See Def. EE Reed Mot. at 3. Butthe defendants have not shown this is so. In fact, Defendants have attached zero evidence tosupport their claim. nd the Court should only transfer a case if a defendant has met its heavyburden to prove each of the three required condition under Section 15.002(b). Here, as shown indetail below the defendants fall well short. In fact, it is significantly more convenient for all theparties, witnesses, and their counsel, to keep this case in Harris County, and the Court shoulddeny the defendants’ motionsaccordingly. EGAL TANDARD “In Texas, the plaintiff has the right to choose venue.” Moveforfree.com, Inc. v. DavidHetrick, Inc., 288 S.W.3d 539, 541 (Tex. App. Houston [14th Dist.] 2009, no pet.). There arethree classes of appropriate venue: general, mandatory, and permissive. Unauthorized Prac. of LawComm. v. Nationwide Mut. Ins. Co., 155 S.W.3d 590, 596 (Tex. App. San Antonio 2004, pet.denied). Section 15.002(a) of the Texas Civil Practice & Remedies Code allows for venue: “(3)in the county of the defendant’s principal office in this state, if the defendant is not a naturalperson.” And, “[w]hen at least two defendants, such as here, are properly joined in a singlelawsuit and the trial court has venue of an action or claim against any one defendant, the courtalso has venue of all claims or actions against all defendants.” Moriarty v. Williams, 752 S.W.2d610, 612 (Tex. App. El Paso 1988, writ denied); RAC ODE § 15.005. A defendant seeking to transfer venue bears a heavy burden. “If there is any probativeevidence that supports venue in the county of suit, the trial court must deny the transfer. Thisis true even if the evidence preponderates to the contrary.” Velasco, 144 S.W.3d at 634 (emphasisadded) (citing Bonham State Bank, 907 S.W.2d at 471). Questions going to the court’s jurisdictionor questions going to the merits of the action are not in issue unless raised by the requirementsof the venue provision. Sumitomo Corp. of Am. v. James K. Anderson, Inc., 599 S.W.2d 117, 119(Tex. Civ. App. Dallas 1980, no writ); RAC ODE § 15.064 (“In allvenue hearings, no factual proof concerning the merits of the case shall be required to establishvenue.”). [if] the plaintiff has chosen a proper venue, the trial court must maintain venue in theplaintiff’s chosen county unless a mandatory venue provision applies or the defendant bringsforth ‘conclusive evidence” that “destroy[s]” the plaintiff's prima facie proof.’” Moveforfree.com,Inc., 288 S.W.3d 541 (citing . 87(3)(c))(emphasis added). “Absent suchcirc*mstances, venue in any county other than the plaintiff's choice is improper as a matter oflaw.” Id. Against this standard, the Court should deny Defendants’ Motion. HE OURT HOULD ENY EFENDANT OTION Venue is Proper in Harris County Generally, “the plaintiff’s choice of venue cannot be disturbed as long as the suit isinitially filed in a county of proper venue.” In re Henry, 274 S.W.3d 185, 190 (Tex.AppHouston [1st Dist.} 2008, orig. proceeding). Under Section 15.002 venue is proper “in thecounty of the defendant’s principal office in this state[.]” RAC ODE§ 15.002(a)(3). Here, Plaintiffs have chosen to file this case in Harris County. Harris County is a propervenue because GH Mechanical’s principal office in Texas is in Harris County. See RAC ODE § 15.002(a)(3) allowing plaintiffs to bring lawsuits “in the county of thedefendant’s principal office in this state.” The legislature defined “Principal office” to mean “aprincipal office of the corporation, unincorporated association, or partnership in this state inwhich the decision makers for the organization within this state conduct the daily affairs of theorganization.” RAC ODE § 15.001. ublicly available information confirms that GH Mechanical maintains only one officein Texas and that it is in Harris County. GH Mechanical provides a Harris County mailingaddress and Harris County based registered agent to the Texas Secretary of State:Ex. Franchise Tax Account Status GM Mechanical owns the property at 6321 Theall Road in Houston, as confirmed byavailable property tax statements.Ex. (Property Tax Statements). 6321 Theal Road is the only Texas address that results from asearch of GH Mechanical on Google.Ex. (Google Results). And should the Court need more, GH Mechanical is registered with theTexas Department of Licensing & Regulations and reports their location as Harris County.Ex. (Texas Department of Licensing and Regulation). Accordingly the only evidence any party has submitted is that GH Mechanical maintaina Harris County office as its principal office in this state. Because Plaintiffs provide unrebuttedprima facie evidence that GH Mechanical’s principal office in Texas is in Harris County theCourt should deny the defendantsmotion See RAC ODE § 15.002(a)(3);Moveforfree.com, Inc., 288 S.W.3d at 541 see also Honeywell Int'l, Inc. v. Davis, No. 0100013 Robert Leiskau’s social media profile likewise shows the company is in Harris County. Ex. _ (Linked in profile).CV, 2020 WL 4873562, at *11 (Tex. App. Houston [1st Dist.] Aug. 20, 2020, no pet.) (citingUnion Pac. R. Co. v. Stouffer, 420 S.W.3d 233, 245 (Tex. App. Dallas 2013, pet. dism’d) (if venueproper as for at least one defendant, then venue proper as to all defendants in all claims arisingout of same transaction). The Defendants Produced Zero Evidence Thus They Have Not Carried their Burden to Show That Each Condition Supports a Convenience Transfer Unable to show Harris County is an improper venue, the defendants seek a transfer “forthe convenience of the parties and witnesses and in the interest of justice” under Section15.002(b). But a defendant’s motion seeking transfer from a county of proper venue to any othercounty of proper venue should not be granted under Section 15.002(b) unless the defendantproves eachof these conditions: (1) maintenance of the action in the county of suit would work aninjustice the movantconsidering movant’seconomic and personalhardship (2) the balance of interests of all the parties predominatesin favor of the action being brought in the other county; and (3) The transfer would not work an injustice to any other party. RAC ODE15.002(b) (emphasis added). This transfer provision is modelled after the federal statute governing changes of venueand federal law provides guidance. See A. Erin Dwyer et al., Texas Civil Procedure, 49 SMU L.Rev. 1371, 1376 (1996). Thus, federal law on the subject is instructive. See Bruton v. State, 428S.W.3d 865 (Tex. Crim. App. 2014) (“[W]hen a state rule of evidence is patterned on a federalcounterpart, it is appropriate to look to federal cases and commentary for guidance.”). This isespecially useful here, because the Court’s decision is not reviewable thus Texas courts offer littleguidance. The defendants submit zero evidence to prove any of the necessary conditions aresatisfied to warrant transfer under Texas law. The Court should deny the motion for this reason one. But also, the publicly available information further suggests that the Court should denythe defendants’ motion on each factoras well Maintaining the ction in Harris County is not an “ njustice” to the efendants True to theme, the defendants make no attempt to argue that maintaining this action inHarris County would work an injustice to it considering their economic and personal hardship.They attach no evidence to their motion. They simply make bald allegations. The omissionalone, doo their motion . Perhaps, the defendants make no effort because there is no case to be made. The TGSDefendants operate “the largest masterplanned rail and barge served industrial park in theUSA.” Ex. 8 (TGS Website) The facility where this accident occurred is next to the CedarBayou, the border between Harris County and Chambers County. https://www.tgscedarport.com/ The accident occurred 27.9 iles from the court in Chambers County urely thedefendantscan travel 33.7miles from its Baytown facility this Court without inconvenience .Ex. 8 (Google Maps). After all, the TGS Defendants already work from “offices located in []Houston, Texas[.]” Ex. And the TGS Defendants’ counsel for this litigation like Plaintiffs’counsel and GM Chemical’s counsel is based in Houston. And the E.E. Reed defendants are in the same boat. E.E. Reed boasts that 2022 markedits 45 anniversary of providing services “in the greater Houston area.” Ex. 11 (E.E. ReedWebsite). They list their “Houston Headquarters on their website as 333 Commerce GreenBoulevard, SugarLand, Texas. Found by using Google Maps. https://www.tgscedarport.com/ The Court may consider the location of counsel in deciding whether to transfer a case for convenienand justice. See Mohamed v. Mazda Motor Corp., 90 F. Supp. 2d 757, 777 (E.D. Tex. 2000). Found at https://eereed.com/about us/history/Ex. 9 (E.E. Reed Website). This address is three miles from Harris County. Ex. 10 (E.E. ReedWebsite). And from there E.E. Reed would have to drive across the entirety of Harris Countypassing by this Court, to get to its preferred Chambers County venue anyway. Thus, the defendants can claim zero hardship or injustice in holding it accountable inHarris County where they already operate, where access to the evidence is so easy, and wherecounsel is located. And because the defendants failed to meet their burden on this firstcomponent the Court should deny their motions in their entirety. Defendants offer no details about the inconvenience of witnesses or evidence, let alone that such inconvenience redominate” in avor of ransfer The defendants likewise fail to satisfy the second condition: showing the interests of allthe parties predominates in favor of transfer. On this condition, the defendants purport aninjustice because unnamed witnesses and unidentified documents may be located in ChambersCounty. Def. Mot. at 4. But the efendants give no evidence of any specific witnesses ordocuments that will be prejudiced by holding trial in Harris County, which sits adjacent toChambers Countyanyway . Found at https://eereed.com/ The defendants’ otion fail because they have not identified the location or thesubstance of the testimony, of any particular witness or document let alone that any “keywitnesses who will be prejudiced by bringing the case in Harris County. See PuraPharm Int'l(H.K.) Ltd. v. PurePharma, No. H3181, 2015 WL 1808582, at *3 (S.D. Tex. Apr. 20, 2015)Court should concentrate on “key” witnesses); ee also, Goodman Co., L.P., 396 F. Supp. 2d at776 (S.D. Tex. 2005) (rejecting transfer where movant failed to “describe the nature or relevanceof any testimony its witnesses . . . would offer, or identify any third parties”); U.S. EthernetInnovations, LLC v. Samsung Elecs. Co. Ltd., No. 6:12CV 398 MHS JDL, 2013 WL 1363613,*3 (E.D. Tex. 2013) court should “afford[] less weight to vague assertions that witnesses are likelylocated in a particular forum.”); Mt. Hawley Ins. Co. v. TFP Properties III, LLC, 3:18CV K,2018 WL 10419785, at *3 (N.D. Tex. Aug. 29, 2018). Merely mentioning broad categories ofpossible witnesses located in Calhoun County (maybe) does not support transfer. See, e.g., J2Glob. Communications, Inc. v. Protus IP Solutions, Inc., Nos. 6:08CV 211, 6:08CV 262, 6:CV263, 6:08 275, 2008 WL 5378010, at *3 (E.D. Tex. Dec. 23, 2008). he defendantsconcerns about witness convenience are unfounded. Furthermore, the defendants ignore that most key witnesses are base in Houston. Mr.Sandoval was taken to a Harris County hospital before he died, and the Harris County Instituteof Forensic Sciences conducted his autopsy. Ex. Autopsy). And many of the defendants ownemployees likely live in Harris County. Furthermore, the efendants can depose any of theunidentified and unnamed witnesses wherever is convenient for them, and the witnesses mayeven testify by videoconference, negating any inconvenience anyway. See, e.g., Antares Mar. PteLtd. v. Bd. of Commissioners of Port of New Orleans, No. CV 1845, 2020 WL 7022752, at *1(E.D. La. Nov. 30, 2020) (“Generally, leave to take depositions by remote electronic meansshould be granted liberally.”) (citation omitted); Gatte v. Lowes Home Centers LLC, No. 6:20CV00472, 2020 WL 8674185, at *1 (W.D. La. Nov. 30, 2020) (allowing deposition byvideoconference where “modern technology enables the parties to have meaningful virtualinteractions”); United States v. Gordon, No. EP CR DCG, 2021 WL 1820690, at *3(W.D. Tex. May 6, 2021) (allowing trial testimony “via Zoom video conference”). What’s more, any inconvenience is outweighed by other considerations. For instance, atrial in Harris County is far more convenient for Plaintiff and Plaintiff’s counsel, the TGSDefendants Counsel, GH Mechanical’s counsel, and even the EE Reed Defendants’ counsel(based in Sugar Land, TX), and traveling nonparty witnesses like experts. With two large airport,Harris County is far more accessible than Chambers County, which has no notable airport. Andany travel to Chambers County for these witnesses goes through Harris County. Thus, at most,transfer to Chambers County would merely shift the burden from travelling to Houston totravelling to Houston then to hambers County which weighs against transfer. See Hester v.Phillips 66 Co., No. CV H1078, 2019 WL 1930271, at *4 (S.D. Tex. Apr. 30, 2019); Wells v.Abe's Boat Rentals Inc., CIV.A. H1112, 2014 WL 29590, at *3 (S.D. Tex. Jan. 3, 2014) (“Thecost for witnesses to attend trial will be incurred in either Texas or Louisiana. Shifting theinconvenience and cost from one party to another is not a sufficient basis for transfer.”). And as for documents, the parties’ relative ease of access to documentary evidence is“rarely a significant factor in a personal injury case because such actions are ‘unlikely to requireextensive paper discovery or additional difficulties in accessing sources of proof.’” Bennett, 181F. Supp. 3d at 399; Stuart, 2013 WL 5852234, at *5; see also Souza v. Health Care Serv. Corp.4:21CV 2733, 2022 WL 2124455, at *4 (S.D. Tex. Jan. 12, 2022) (“given the ubiquity ofelectronic data, the Court [should] give[ ] less weight to these facts.”) (citation omitted); FrontRow Techs., LLC v. MLB Advanced Media, L.P., No. 3:12 K, 2012 WL 12044383, at *3(N.D. Tex. Dec. 17, 2012) (“[T]echnological convenience of ediscovery significantly diminishesconcerns associated with the location of evidence.”). Contrary to the efendants’ contention, the balance of interests of all the parties doesnot favor transfer, let alone predominate in favor of transfer. Thus, efendants have failed toestablish the second condition and the Court should retain venue in Harris County. The Transfer Will Work an Injustice to Plaintiff Lastly, the efendants have failed to show that a transfer would not work an injustice toany other party. For many reasons already stated, Plaintiff has chosen Harris County the place here the decedent died, where the defendants maintain a large presence in Texas, and whereat least one defendant is headquartered, as the more convenient forum for him, for his counsel,for his witnesses, and for this case. Accordingly, the Court should deny transfer on this last condition as well. Or the Court Should Defer Consideration to Allow Plaintiffs Time to Conduct Venue Discovery Should the Court disagree, Plaintiffs request more time to complete venue discovery.Discovery in this case has not begun in earnest. The defendants remain in control most of thevenue facts. Thus, in the interest of justice, the Court should defer consideration until Plaintiffcan conduct venue discovery and the Court can consider the motion on a complete record. ONCLUSION For these reasons, the Court should deny the defendants’ Motions to Transfer Venue Respectfully submitted, RNOLD TKIN /s/ Noah M. Wexler Jason A. Itkin State Bar No. 24032461 Noah M. Wexler State Bar No. 24060816 Trevor M. Courtney State Bar No. 24125599 6009 Memorial Drive Houston, Texas 77007 Telephone: (713) 2223800 Facsimile: (713) 2223850 jitkin@arnolditkin.com nwexler@arnolditkin.com tcourtney@arnolditkin.com service@arnolditkin.com Plaintiffs’ Attorneys CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been sent to all counselof record on this day of J une2023 in accordance with the Texas Rules of Civil Procedure. /s/ Noah M. Wexler
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On January 5, 2023, Plaintiff S.T. filed the operative First Amended Complaint against Defendants Santa Monica Malibu Unified School District, Laura Simone, Laura Paule Sheahan, Shaun Simone, Jeffrey Keller, Xaiver Jauregui, Stacy Low, and Does 1 through 50, alleging causes of action for: (1) Negligence; and (2) Negligent Hiring, Retention, Supervision, and Training. Also, on January 5, 2023, in LASC Case No. 22SMCV01521, Plaintiff C.R. filed a First Amended Complaint alleging causes of action for: (1) Negligence; and (2) Negligent Hiring, Retention, Supervision, and Training. On January 31, 2023, pursuant to a request for dismissal filed by Plaintiff S.T., Defendants Xavier Jauregui, Stacy Low, Laura Simone, Laura Paule Sheahan, and Jeffrey Keller were dismissed without prejudice. On February 1, 2023, Defendant Santa Monica Malibu Unified School District (Defendant) filed an Answer to the respective complaints filed by Plaintiff S.T. and Plaintiff C.R. On July 20, 2023, a Stipulation for Protective Order and Order was entered into in the instant action between Plaintiff S.T. and Defendant. On September 29, 2023, after hearing oral argument, the Court granted the motion to consolidate filed by Plaintiff S.T. and Plaintiff C.R. (collectively, Plaintiffs). (09/29/23 Minute Order.) As such, the instant action and LASC Case No. 22SMCV01521 were consolidated with the instant action being deemed the lead case. (09/29/23 Minute Order.) On June 7, 2024, Plaintiffs filed a Motion to Compel Further Production of Documents from Defendant to Plaintiffs Request for Production of Documents Pursuant to the Notice of Deposition of the Person Most Qualified for Defendant, arguing that: · Defendant failed to produce all responsive documents. · Plaintiffs have properly and timely brought their motion pursuant to the Code of Civil Procedure. · Plaintiffs counsel complied with their meet and confer obligation. · The Court has authority to compel further production of documents in response to Plaintiffs request for production. · Federal law allows disclosure of the records sought pursuant to a judicial order. · The documents sought are directly relevant to the subject matter of this litigation and do not constitute a serious invasion of privacy. · The protective order in place protects the privacy concerns. In opposition, Defendant argues that: · There is no legal or factual basis to compel the production of documents nos. 1 and 2. · There is no legal or factual basis to compel the production of documents nos. 5, 6, 9, and 10. · Non-party student records requested in nos. 3, 4, 7, and 8 require consent or court order prior to production. On reply, Plaintiffs argue that: · There is a stipulated protective order between the parties. · There is no obligation that Plaintiff provide notice to non-parties of the motion. II. ANALYSIS A. Legal Standard for Motion to Provide Further Responses to a Request for Production of Documents Under Code Civ. Proc. § 2017.010, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action..., if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. (Code Civ. Proc., § 2017.010.) If, after service, of a deposition notice, a party to the action . . . without having served a valid objection . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . or tangible thing described in the deposition notice, the party giving notice may move for an order compelling the deponents attendance and testimony, and the production for inspection of any document . . . or tangible thing described in the deposition notice. (Code Civ. Proc., § 2025.450, subd. (a).) To justify the production of documents at deposition, a party must set forth specific facts showing good cause. (Code Civ. Proc., § 2025.450, subd. (b).) If a deponent fails to answer any question or to produce any document . . . under the deponents control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production. (Code Civ. Proc., § 2025.480, subd. (a).) A motion brought pursuant to Code Civ. Proc. § 2025.480 shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2025.480, subd. (b).) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection to the response is without merit or too general. (Code Civ. Proc., § 2031.310, subd. (a)(1)-(3).) A motion brought pursuant to CCP § 2031.310 shall set forth specific facts showing good cause justifying the discovery sought by the demand. (Code Civ. Proc., § 2031.310, subd. (b)(1).) B. Meet and Confer Requirement The Court finds that the meet and confer requirement has not been met. (Katz Decl., ¶¶ 7-9; Exs. D, E, and F.) While Plaintiffs counsel does provide evidence of meet and confer discussions concerning student disciplinary records, Plaintiffs counsels meet and confer correspondence does not reference discussions as to employee disciplinary records or disciplinary action taken against employees. (Id.) Moreover, the meet and confer correspondence does not evidence any communications as to policies, procedures, notices, and/or directives concerning student discipline or employee discipline at Santa Monica High in effect from 2021 to the present. (Id.) The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain an informal resolution of each issue. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016.) Here, although requesting further responses to RFP Nos. 1-10, Plaintiffs have failed to provide evidence of meet and confer discussions as to RFP Nos. 1, 2, 5, 6, 9, and 10. Given that Plaintiffs are seeking to compel further responses to a request for production of documents, Plaintiffs were required to provide a sufficient meet and confer declaration under Section 2016.040. (Code Civ. Proc., § 2031.310, subd. (b)(2).) C. Evidence in Support of the Motion According to the declaration of Schyler S. Katz (Katz) submitted in support of Plaintiffs motion, on March 7, 2024, Plaintiffs served a deposition notice for Defendants Person Most Qualified (PMQ) Re: Discipline inclusive of the subject Request for Production of Documents to which Defendant objected. (Katz Decl., ¶ 4; Exs. A and B.) The deposition was set for March 25, 2024. (Katz Decl., ¶ 4.) Due to meet and confer efforts, Defendant agreed to produce two persons as its PMQ, Marae Cruce and Antonio Shelton. (Katz Decl., ¶ 5.) Ms. Cruces final portion of her deposition took place on April 11, 2024. (Katz Decl., ¶ 5.) Plaintiffs counsel and defense counsel already stipulated to a protective order, which was filed and entered by the Court on July 30, 2023. (Katz Decl., ¶ 6; Ex. C.) Plaintiffs are seeking disciplinary records of Santa Monica High students. (Katz Decl., ¶ 7.) Pursuant to the deposition notice served on Defendant, Plaintiffs seek the following categories of documents: 1. Any and all documents related to Defendants policies and procedures, notices, and/or directives concerning student discipline at Santa Monica High in effect between 2021 and the present; 2. Any and all documents related to Defendants policies and procedures, notices, and/or directives concerning employee discipline at Santa Monica High in effect between 2021 and the present; 3. Any and all documents related to discipline and/or disciplinary measures undertaken for students at Santa Monica High which in any way relates to the allegations that form the basis of Plaintiff C.R.s operative complaint; 4. Any and all documents related to discipline and/or disciplinary measures undertaken for students at Santa Monica High which in any way relates to the allegations that form the basis of Plaintiff S.T.s operative complaint; 5. Any and all documents related to discipline and/or disciplinary measures undertaken for employees at Santa Monica High, which in any way relates to the allegations that form the basis of Plaintiff C.R.s operative complaint; 6. Any and all documents related to discipline and/or disciplinary measures undertaken for employees at Santa Monica High, which in any way relates to the allegations that form the basis of Plaintiff S.T.s operative complaint; 7. Any and all correspondence related to discipline and/or disciplinary measures undertaken for students at Santa Monica High, which in any way relates to the allegations that form the basis of Plaintiff C.R.s operative complaint; 8. Any and all correspondence related to discipline and/or disciplinary measures undertaken for students at Santa Monica High, which in any way relates to the allegations that form the basis of Plaintiff S.T.s operative complaint; 9. Any and all correspondence related to discipline and/or disciplinary measures undertaken for employees at Santa Monica High, which in any way relates to the allegations that form the basis of Plaintiff C.R.s operative complaint; and 10. Any and all correspondence related to discipline and/or disciplinary measures undertaken for employees at Santa Monica High, which in any way relates to the allegations that form the basis of Plaintiff S.T.s operative complaint. D. Evidence in Opposition to the Motion In opposition to the motion, Defendants counsel, Dana H. Furman (Furman), provides a declaration. Counsel declares the following: she had multiple conversations with Plaintiffs counsel at the onset of this case advising her that Plaintiffs would need to obtain a consent from the parents or a court order before Defendant could release private and confidential student records for non-party students. (Furman Decl., ¶ 3; Ex. 1.) Plaintiffs served a PMQ deposition notice requesting 10 categories of records and Defendant objected. (Furman Decl., ¶ 4.) In response to RFP No. 1., Defendant agreed to produce policies and procedures related to student discipline and did, in fact, produce Bate-stamped documents in response to such request. (Furman Decl., ¶ 4.) In response to RFP No. 2, Defendant also agreed and did, in fact, product policies and procedures regarding employee discipline. (Furman Decl., ¶ 4.) Ms. Furman states that there were no meet and confer communications concerning RFP Nos. 5, 6, 9, and 10 regarding employee records, and there were no meet and confer communications regarding RFP Nos. 1 and 2, which concern policies and procedures regarding employee discipline and student discipline. (Furman Decl., ¶¶ 4, 7.) Defendant served an Amended Objection to the Deposition Notice. (Furman Decl., ¶ 9; Ex. 3.) In response to RFP No. 5, 6, 9, and 10, Defendant articulated numerous objections and indicated that it was unaware of any documents responsive to such requests. (Furman Decl., ¶ 9; Ex. 3.) E. Appropriateness of Compelling Further Responses to RFP Nos. 1-10 As to RFP Nos. 1, 2, 5, 6, 9, and 10, the Court finds that Plaintiffs motion is deficient as to such requests. Although the respective complaints do allege wrongdoing by students and employees at Santa Monica High, Plaintiffs were required to sufficiently meet and confer prior to bringing the instant motion. Defendant argues, and produces evidence through the declaration of Ms. Furman, that Plaintiffs did not meet and confer as to those categories of requests. Moreover, the Court notes that Plaintiffs motion is made pursuant to CCP § 2031.010, which concerns a party inspecting, copying, testing, or sampling documents . . . in the possession, custody, or control of any other party to the action. (Code Civ. Proc., § 2031.010, subd. (a).) Here, Defendants objected to the deposition notice. As such, Plaintiffs are moving to compel the further responses of Defendant but did not provide specific facts in the declaration of Ms. Katz showing why further production should be compelled. A party seeking to compel discovery must . . . set forth specific facts showing good cause justifying the discovery sought. (Digital Music News LLC v. Superior Court (2014) 226 Cal.App.4th 216, 224.) To establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact. (Ibid.) Thus, not only did Plaintiffs fail to properly meet and confer as to RFP Nos. 1, 2, 5, 6, 9, and 10, Plaintiffs have failed to show good cause to warrant further production as to such requests. Additionally, as to RFP Nos. 1 and 2, Defendant indicates that it produced documents in response to such requests. (Furman Decl., ¶ 4.) As such, the Court DENIES Plaintiffs motion as it concerns RFP Nos. 1, 2, 5, 6, 9, and 10. As to RFP Nos. 3, 4, 7, and 8, such requests concern discipline or disciplinary measures taken against students at Santa Monica High related to the allegations of the respective complaints. The Court notes that such information is relevant because the respective complaints allege wrongdoing against Plaintiffs perpetrated by students of Santa Monica High. Defendant does not take issue with the production of such documents. (Oppn at p. 6:19-22.) A school district is not authorized to permit access to pupil records to any person without written parental consent or under judicial order . . . . (Rim of the World Unified School Dist. v. Superior Court (2002) 104 Cal.App.4th 1393, 1396.) A pupil record is defined as any item of information directly related to an identifiable pupil, other than directory information, which is maintained by a school district. (BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 752.) A pupil record is information relative to an individual pupil gathered within or without the school system and maintained within the school system. (Ibid.) As with California law, the federal Family Education Rights and Privacy Act (FERPA) provides for the privacy of education records. (Rim of the World Unified School Dist. v. Superior Court, supra, 104 Cal.App.4th 1393, 1397.) Education records are defined as documents which contain information directly related to a student or are maintained by an educational agency or institution. (Ibid.) FERPA does not actually prohibit the release of education records. Rather, FERPA conditions the availability of federal funds on conformance with its provisions. (Id. at p. 1398.) FERPA provides that [n]o funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice permitting the release of education records . . . of students without the written consent of their parents to any individual, agency, or organization . . . . (Ibid.) Initially, the Court finds that Plaintiffs reliance on BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742 is inapposite as such case involved misconduct allegations against a school superintendent. Here, Plaintiffs are alleging that other students are perpetrators of wrongful actions. Thus, the disciplinary records sought here are pupil records as they relate to student discipline. Plaintiffs provided notice of the instant motion, via priority mail, on June 17, 2024, to the parents of the students whom disciplinary records are sought pursuant to RFP Nos. 3, 4, 7, and 8. (See 06/18/24 Proof of Service.) Given that none of the students via their parents or counsel have opposed the instant motion, the Court may authorize the release of such information pursuant to a court order. The Court finds that such information is relevant to Plaintiffs proving their claims in this action. Accordingly, the Court GRANTS Plaintiffs request to compel further verified responses to RFP Nos. 3, 4, 7, and 8. III. DISPOSITION Based on the foregoing, the Court GRANTS IN PART Plaintiffs Motion to Compel Further Production of Documents from Defendant to Plaintiffs Request for Production of Documents Pursuant to the Notice of Deposition of the Person Most Qualified for Defendant. The Court DENIES Plaintiffs request to compel further responses to RFP Nos. 1, 2, 5, 6, 9, and 10. The Court GRANTS Plaintiffs request to compel further responses to RFP Nos. 3, 4, 7 and 8 and orders Defendant to provide verified, complete, and code-compliant responses to RFP Nos. 3, 4, 7, and 8, without objections, within 30 days of the date of this order.
Ruling
MARY ANN CALIFANO VS RALPHS GROCERY COMPANY, AN OHIO CORPORATION, ET AL.
Jul 30, 2024 |23LBCV00838
Case Number: 23LBCV00838 Hearing Date: July 30, 2024 Dept: S25 Procedural Background On May 8, 2023, Plaintiff filed a complaint against Defendants Ralphs Grocery Company, Shalma Smith and Does 1 to 50, alleging negligence and premises liability causes of action. Plaintiff alleges that on or about October 19, 2022 she was at the Ralphs property located at 1050 N Western Ave San Pedro, CA 90732 (Subject Premises) and she was pushing a Ralphs shopping cart when the wheels of Ralphs shopping cart suddenly and without warning locked and halted, resulting in Plaintiffs knee slamming on the cart. (Compl., ¶¶ 1, 5, 9.) On July 31, 2023, Defendant Ralphs Grocery Company (Defendant Ralphs) filed an answer. On January 17, 2024, the Court, on its own motion, dismissed Shalma Smith pursuant to an oral request made by Plaintiff. (January 17, 2024 Order of Dismissal.) On April 5, 2024, Plaintiff made a Doe Amendment, identifying Doe 1 to Gatekeeper Systems, Inc. (April 5, 2024 Amendment to Complaint.) On May 8, 2024, the Court granted Plaintiff and Defendant Ralphs Joint Stipulation to Continue Trial, continuing the final status conference to September 20, 2024, the trial date to September 23, 2024 with all related trial deadlines to flow from the new trial date. (May 8, 2024 Order.) On May 10, 2024, Defendant Gatekeeper filed an answer. On June 24, 2024, Defendant Gatekeeper filed a motion to continue trial. As of July 24, 2024, no opposition has been filed. Legal Standard To ensure prompt dissolution of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain. (California Rules of Court, rule 3.1332(a).) Although continuances of trials are disfavored, the Court may grant a continuance if there is an affirmative showing of good cause requiring the continuance. (Cal. Rules of Court, rule 3.1332(c).) Although continuances of trials are disfavored, the Court may grant a continuance if there is an affirmative showing of good cause requiring the continuance. CRC Rule 3.1332(c). Factors that show good cause include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circ*mstances; (2) The unavailability of a party because of death, illness, or other excusable circ*mstances; (3) The unavailability of trial counsel because of death, illness, or other excusable circ*mstances; (4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; (5) The addition of a new party if: a. The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or b. The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case (6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. In ruling on a motion or application for continuance, the court must consider all the facts and circ*mstances that are relevant to the determination. (Cal. Rules of Court, rule 3.1332(d).) These factors may include: The proximity of the trial date; whether there was any previous continuance, extension of time, or delay of trial due to any party; the length of the continuance requested; the availability of alternative means to address the problem that gave rise to the motion or application for a continuance; the prejudice that parties or witnesses will suffer as a result of the continuance; if the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; the court's calendar and the impact of granting a continuance on other pending trials; whether trial counsel is engaged in another trial; whether all parties have stipulated to a continuance; whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and any other fact or circ*mstance relevant to the fair determination of the motion or application. Parties Arguments Defendant Gatekeeper asserts that good cause exists for the Court to continue the trial date from September 23, 2024 to March 17, 2025 because: (1) Defendant Gatekeeper just entered into the case last month and will not have enough time to conduct discovery in the four months before trial in September 23, 2024; (2) there was one stipulated trial continuance prior to Defendant Gatekeepers appearance in May 2024; (3) no alternative means exist to address the limited time available for Defendant Gatekeeper to obtain discovery and prepare for trial; and (4) all parties have stipulated to this trial continuance. No opposition has been filed. Tentative Ruling Defendant Gatekeepers motion for an order continuing the trial date is GRANTED. The 9/20/24 Final Status Conference and 9/23/24 Trial dates are vacated. Case Management Conference is scheduled for October 29, 2024 at 8:30 a.m. Final Status Conference is scheduled for March 13, 2025 at 8:30 a.m. Trial is scheduled for March 24, 2025 at 9:30 a.m. All related dates and deadlines, including expert discovery, to follow the new trial date.
Ruling
Rosen, Kurt vs. Henry, Michael James Neil
Aug 12, 2024 |S-CV-0052559
S-CV-0052559 Rosen, Kurt vs. Henry, Michael James NeilNo appearance required. CMC is continued to 10/28/24 at 2pm in Dept. 6.Complaint is not at issue - Need responsive pleading, default or dismissal as toDefendant(s): Henry, Michael James NeilAdditionally, no proof of service has been filed as to Defendant(s): Henry,Michael James Neil
Ruling
MARGARET ANN GOTTFRIED VS CITY OF LOS ANGELES, ET AL.
Jul 30, 2024 |Renee C. Reyna |22STCV14593
Case Number: 22STCV14593 Hearing Date: July 30, 2024 Dept: 29 Motion for Summary Judgment filed by Defendant City of Los Angeles. Tentative Ruling The motion for summary judgment is GRANTED. Background On May 3, 2022, Margaret Ann Gottfried (Plaintiff) filed a complaint against City of Los Angeles (City), Westchester County Homeowners Association (Westchester), and Does 1 to 50 for general negligence and premises liability arising out of an incident on May 4, 2020, in which Plaintiff alleges that she tripped and fell on a raised or broken sidewalk concrete at or near 20700 Wells Drive in Woodland Hills. On May 24, 2022, Westchester filed an answer to the complaint. On June 13, 2022, City filed an answer and cross-complaint against Westchester and Roes 1 through 20. Westchester filed an answer to the cross-complaint on July 21, 2022. On January 12, 2024, City filed this motion for summary judgment. No opposition has been filed. On May 14, Westchester filed a joinder to the motion for summary judgment; the joinder was taken off calendar on July 26. Legal Standard The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) As to each cause of action as framed by the complaint, a defendant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851; Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp. 850-851.) A plaintiff or cross-complainant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. (Code Civ. Proc., § 437c, subd. (p)(1).) Once the plaintiff or cross-complainant has met that burden, the burden shift to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Ibid.) The party opposing a motion for summary judgment or summary adjudication may not simply rely upon the allegations or denials of its pleadings but must instead set forth the specific facts showing that a triable issue of material fact exists. (Code Civ. Proc., § 437c, subds. (p)(1) & (p)(2). To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) Discussion In her Complaint, Plaintiff asserts that she was injured as a result of a dangerous condition on a public sidewalk located near 20700 Wells Drive in Woodland Hills. As set forth in Government Code section 835, there are four elements for such a claim: [A] public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes [1] that the property was in a dangerous condition at the time of the injury, [2] that the injury was proximately caused by the dangerous condition, [3] that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and [4] either: (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or¿(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. (Govt Code, § 835; see also, e.g., Tansavatdi v. City of Rancho Palos Verdes (2023) 14 Cal.5th 639, 653; Thimon v. City of Newark (2020) 44 Cal.App.5th 745, 753.) Here, City moves for summary judgment on the grounds (1) that the defect in the sidewalk was trivial, rather than a dangerous condition; and (2) that City did not have actual or constructive notice of the defect. The term dangerous condition means a condition of property that creates a substantial (as distinguished from a minor,¿trivial¿or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it¿will be used.¿(Gov. Code, § 830, subd. (a); see also Thimon, supra, 44 Cal.App.5th at p. 754.)¿ Public property is in a dangerous condition within the meaning of section 835 if it is physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself. (Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1105.) The existence of a dangerous condition ordinarily is a question of fact, but the issue may be resolved as a matter of law if reasonable minds can come to only one conclusion. (Peterson v. San Francisco Comm. College Dist.¿(1984) 36 Cal.3d 799, 810; accord Stack v. City of Lemoore (2023) 91 Cal.App.5th 102, 110; Nunez v. City of Redondo Beach (2022) 81 Cal.App.5th 749, 757.) Plaintiff has the burden of proving the existence of a dangerous condition and each element of a cause of action under Government Code 835. A court may not presume that there was a dangerous condition merely because the plaintiff was injured. (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 241 [describing such an argument as reason[ing] backwards].) A condition is not dangerous within the meaning of the statute unless it creates a hazard to those who foreseeably will use the property ... with due care. Thus, even though it is foreseeable that persons may use public property without due care, a public entity may not be held liable for failing to take precautions to protect such persons.¿(Matthews v. City of Cerritos¿(1992) 2 Cal.App.4th 1380, 1384.) The condition of the property involved should create a substantial risk of injury, for an undue burden would be placed upon public entities if they were responsible for the repair of all conditions creating any possibility of injury however remote that possibility might be.¿(Fredette¿v. City of Long Beach¿(1986) 187 Cal.App.3d 122, 130, fn.5; accord Nunez, supra, 81 Cal.App.5th at p. 758.) Government Code section 830.2 provides that a condition is not a dangerous condition under the Government Claims Act: if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circ*mstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used. (Gov. Code, § 830.2.) This statutory principle is sometimes referred to as the trivial defect doctrine. It is impossible to maintain public walkways in perfect condition. (Stack, supra, 91 Cal.App.5th at pp. 109-110; Nunez, supra, 81 Cal.App.5th at p. 758; Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 26.) The Government Claims Act is not intended to make public entities insurers against injuries arising from trivial defects. (Stack, supra, 91 Cal.App.5th at p. 109; Thimon, supra, 44 Cal.App.5th at p. 757.) Rather, the trivial defect doctrine shields public entities from liability for minor, trivial, or insignificant defects. (Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1104; Kasparian, supra, 156 Cal.App.4th at p. 27.) This is not to say that it is impossible for a member of the public to trip, fall, and sustain injuries as a result of a defect that is trivial. (See Nunez, supra, 81 Cal.App.5th at pp. 759-760.) But the duty of care of a public entity (or a private landowner) does not extend to protecting pedestrians or other members of the public from minor or trivial defects. (Id. at pp. 757, 759.) The trivial defect doctrine is not an affirmative defense. It is an aspect of duty that a plaintiff must plead and prove. (Huckey, supra, 37 Cal.App.5th at p. 1104; accord Nunez, supra, 81 Cal.App.5th at p. 757.) In appropriate cases, the trial court may determine ... whether a given walkway defect was trivial as a matter of law. (Huckey, supra, 37 Cal.App.5th at p. 1104.) Where reasonable minds can reach only one conclusionthat there was no substantial risk of injurythe issue is a question of law, properly resolved by way of summary judgment. (Id. at pp. 1104-1105 (quoting Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 929).) If, however, the court determines that sufficient evidence has been presented so that reasonable minds may differ as to whether the defect presents a substantial risk of injury, the court may not conclude that the defect is trivial as a matter of law. (Huckey, supra, 37 Cal.App.5th at p. 1105.) In cases involving allegedly dangerous conditions on a sidewalk or other walkway, courts generally begin their analysis by considering the size of the defect. The size of the height differential, rise, or other defect is in many cases the most important factor. (Stack, supra, 91 Cal.App.5th at p. 111; see also, e.g., Huckey, supra, 37 Cal.App.5th at p. 1105 [stating that size of defect may be one of the most relevant factors].) As the Court of Appeal has explained, however, [i]n determining whether a given walkway defect is trivial as a matter of law, the court should not rely solely upon the size of the defect. (Huckey, supra, 37 Cal.App.5th at p. 1105 [emphasis in original].) [A] tape measure alone cannot be used to determine whether the defect was trivial. (Caloroso, supra, 122 Cal.App.4th at p. 927.) Rather, a court should consider other circ*mstances which might have rendered the defect a dangerous condition at the time of the accident. (Huckey, supra, 37 Cal.App.5th at p. 1105.) These other circ*mstances or factors include whether there were any broken pieces or jagged edges in the area of the defect, whether any dirt, debris or other material obscured a pedestrians view of the defect, the plaintiffs knowledge of the area, whether the accident occurred at night or in an unlighted area, the weather at the time of the accident, and whether the defect has caused any other accidents. (Ibid.) In addition, the Court may also take into account, as part of its consideration of the totality of the circ*mstances, whether the defect was open and obvious to a person exercising due care and whether there were signs warning a person acting with due care about the danger. (Fredette, supra, 187 Cal.App.3d at pp. 131-132.) In sum, [a] court should decide whether a defect may be dangerous only after considering all of the circ*mstances surrounding the accident that might make the defect more [or less] dangerous than its size alone would suggest. (Huckey, supra, 37 Cal.App.5th at p. 1105 [quoting Caloroso, supra, 122 Cal.App.4th at p. 927]; accord Nunez, supra, 81 Cal.App.5th at p. 757.) Here, City argues the defect in the sidewalk is trivial as a matter of law. The height of the defect is, at its maximum, one and three eighths of an inch. (Defendants Statement of Undisputed Material Facts [DSUMF], No. 14.) The accident occurred during daylight hours (at approximately 8:30 am) on what Plaintiff herself described in her deposition as a beautiful day. (DSUMF, Nos. 1, 3.) There is no evidence of any obstruction of the defect. (DSUMF, Nos. 4, 8-11.) There is no evidence that there had been prior accidents at the site of the defect. (DSUMF, No. 20.) The Court has reviewed all of the admissible evidence in the record. Considering the totality of the circ*mstances, and viewing the evidence in the light most favorable to the non-moving party, the Court concludes that City has met its initial burden on summary judgment of presenting facts to show that the element of the existence of a dangerous condition in Plaintiffs claim under Government Code section 835 cannot be established. (Code Civ. Proc., § 437c, subd. (p)(2).) This shifts the burden to Plaintiff to show that there is a triable issue of material fact as to the existence of a dangerous condition. (Ibid.) Plaintiff has not filed any opposition to the motion and so has not done so. Accordingly, the Court concludes that there is no triable issue as to any material fact on the element of the existence of a dangerous condition. City has shown that, as a matter of law, the condition was a trivial defect, and that therefore it is entitled to judgment as a matter of law. Citys motion for summary judgment is granted. Conclusion The Court GRANTS the motion of Defendant City of Los Angeles for summary judgment. Moving party is to give notice.
Ruling
MARCIA MINGO VS ALICIA ANN PARTNER
Jul 29, 2024 |23TRCV03433
Case Number: 23TRCV03433 Hearing Date: July 29, 2024 Dept: M LOS ANGELES SUPERIOR COURT SOUTHWEST DISTRICT Honorable Gary Y. Tanaka Monday, July 29, 2024 Department M Calendar No. 9 PROCEEDINGS Marcia Mingo v. Alicia Ann Partner, et al. 23TRCV03433 1. Ronnivashti Whiteheads, Counsel for Plaintiff Marcia Mingo, Motion to be Relieved as Counsel TENTATIVE RULING Ronnivashti Whiteheads, Counsel for Plaintiff Marcia Mingo, Motion to be Relieved as Counsel is denied without prejudice. Background Plaintiff filed the Complaint on October 16, 2023. Plaintiff alleges the following facts. Plaintiff and Defendant were involved in a motor vehicle accident. Motion to be Relieved as Counsel Counsel states, in the declaration, valid reasons for withdrawal. Counsel states that there has been a breakdown in communication between counsel and Plaintiff. The Court finds that the attorney has filed the required declaration. The Court also finds that the attorney has shown sufficient reasons why the motion to be relieved as counsel should be granted and why the attorney brought a motion under Code of Civil Procedure § 284(2) instead of filing a consent under section 284(1). The Court finds that the attorney filed the proposed order. However, the attorney did not file the proof of service of the motion. The attorney does state that the attorney served all necessary documents but did not file the actual proof of service. Therefore, the motion to be relieved as counsel is denied without prejudice, unless moving party can produce proof of service of the motion. Ronnivashti Whitehead is ordered to give notice of the Courts ruling.
Ruling
STEVEN BRISCO, ET AL. VS FAB4 LLC, ET AL.
Jul 30, 2024 |21STCV10370
Case Number: 21STCV10370 Hearing Date: July 30, 2024 Dept: 32 PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that partys intention to submit. The email shall include the case number, date and time of the hearing, counsels contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. TENTATIVE RULING DEPT: 32 HEARING DATE: July 30, 2024 CASE NUMBER: 21STCV10370 MOTIONS: Petition for Minors Compromise MOVING PARTY: Petitioner Racquel Wills OPPOSING PARTY: Unopposed The Court has reviewed the Petition to Approve Compromise of Pending Action of a Minor, filed on by Petitioner Racquel Wills (Petitioner) on behalf of Claimant Jayda Brisco, age 16. The Court denies the petition without prejudice for the following reasons. Petitioner asserts Claimant was injured in a rear-end motor vehicle accident on February 6, 2021 and had neck, low back, and head pain, headaches, and depression. Petitioner asserts Claimant is not recovered from the neck and back pain and depression, but that the symptoms are temporary. However, the medical records attached do not indicate that the injuries are temporary. In item 12b(5)(b)(iii), based on the reduction, it appears the amount paid should be $1,100. (However, the proposed order shows $1,500 being reimbursed to Advanced Imaging Center.) Additionally, the total lien amounts in item 12b5 and attachment12b(5) do not equal $14,457 as Petitioner indicates. Petitioner requests $99,000 in attorney fees which represents 33% of the gross settlement. The Court finds this to be reasonable. Accordingly, the Court denies the petition without prejudice. Petitioner shall give notice and file a proof of service of such.
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