DEPARTMENT A LAW AND MOTION RULINGS

REQUESTING ORAL ARGUMENT PER CRC 3.1308

The Court will attempt to post all Tentative Rulings at least the day prior to the hearing by 3:00 p.m.; however, the Court does not post Tentative Rulings for all matters.  

The Court will indicate in the Tentative Ruling whether the Court is requesting oral argument.  For cases where the Court is not requesting argument, then the Court is guided by California Rules of Court, Rule 3.1308(a)(1) where the Court requests notice of intent to appear.  Unless the Court directs argument in the Tentative Ruling, a party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.   

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

Notice of the ruling must be served as indicated in the tentative.  Remote appearances are permitted for all law and motion unless otherwise indicated by the Court.  

 

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Case Number: 22BBCV01209    Hearing Date: March 7, 2025    Dept: A

MOTION TO SET ASIDE DEFAULT

 

MP:	Laurel Canyon Collection, Inc. (Defendant)
RP:	Mehrin May (Plaintiff)

 

NOTICE:

 

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is required and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

 

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

 

ALLEGATIONS: 

 

Mehrin May (Plaintiff) brings this action against Soheil Kashani, Cassandra Yekani, and Laurel Canyon Collection, Inc. (Laurel Canyon) (collectively Defendants). Laurel Canyon serves as the Home Owner’s Association (HOA) for properties owned by Plaintiff, Kashani, and Yekani. Plaintiff alleges Laurel Canyon failed to soundproof the floors in various units. Plaintiff alleges that this has resulted in significant noise from adjacent properties in violation of her quiet enjoyment.

 

Before the Court is Laurel Canyon’s motion to set aside the default entered against it by Plaintiff. This is the second such default sought by Plaintiff, the first having been set aside by Court order on December 15, 2023. Laurel Canyon thereafter demurred to the Complaint, which the Court sustained with leave to amend. After Plaintiff filed her FAC, Laurel Canyon failed to file a responsive pleading by the deadline and Plaintiff sought to enter default once more.

 

Laurel Canyon argues the default should be set aside as they received no notice that Plaintiff’s counsel was moving to enter default. Plaintiff opposes and Defendant replies.

  

ANALYSIS: 

 

I.                    LEGAL STANDARD 

 

C.C.P. § 473(b) has both a discretionary relief provision and a mandatory relief provision. (Jackson v. Kaiser Foundation Hospitals, Inc. (2019) 32 Cal.App.5th 166, 173.)  The discretionary provision of Code of Civil Procedure § 473(b), in pertinent part, reads as follows:

 

The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken…

 

The mandatory provision of C.C.P. § 473(b) reads, in pertinent part, as follows:

 

Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. 

 

The general underlying purpose of C.C.P. § 473(b) is to promote the determination of actions on their merits. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830.) Under this statute, an application for relief must be made no more than six months after entry of the judgment, dismissal, order, or other proceeding from which relief is sought and must be accompanied by an affidavit of fault attesting to the mistake, inadvertence, surprise or neglect of the moving party or its attorney. (C.C.P. § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

 

II.                 MERITS

 

Procedural Background

 

On April 26, 2024, the Court sustained Laurel Canyon’s demurrer to the entire Complaint with 20 days’ leave to amend.

 

On May 15, 2024, Plaintiff filed her First Amended Complaint (FAC). The final page of Plaintiff’s FAC is a proof of service, showing service via email upon Laurel Canyon, and other Defendants, on the same day as the FAC was filed. (FAC p. 123.)

 

On August 26, 2024, the case came on for a Case Management Conference.

 

On September 10, 2024, counsel for Laurel Canyon sent counsel for Plaintiff a letter attempting to meet and confer with respect to the FAC. (Ryu Decl. Exh. 11.) Neither party states whether this letter received any response.

 

On September 13, 16, and 17, 2024, Plaintiff requested default be entered against Laurel Canyon three times. Plaintiff’s September 17 request was granted, and default was entered.

 

Discussion

 

Relief under the mandatory provision of C.C.P. § 473(b) requires that the attorney for the moving party file a sworn affidavit attesting to their mistake, inadvertence, surprise, or neglect. When relief is sought on the basis of attorney mistake or neglect, mandatory relief does not require that mistake or neglect to be “excusable”. (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438.) Nor does mandatory relief require that the attorney provide an explanation for the reasons behind their mistake or neglect where the fault is undisputably on the attorney. (Id.) While an explanation may be useful in determining the application of mandatory relief, the granting of mandatory relief cannot be contingent upon an attorney’s reason or lack thereof except where it is unclear whether the attorney or client is at fault. (Id. at 442.)

 

While an attorney need not provide reasons for their mistake or neglect, “…it is not enough for the attorney to attest ‘My client is entitled to relief under section 473, subdivision (b)’ as that would be an impermissible conclusion of ultimate fact. (Id.) In essence, the attorney affidavit cannot be conclusory and must include at least enough facts for the Court to determine that the attorney, not the client, was at fault. (Id. at 437.)

 

Here, Laurel Canyon’s statutory deadline to respond to the FAC via responsive pleading was June 14, 2024. (See C.C.P. § 471.5(a).) No demurrer or answer was filed by Laurel Canyon prior to that date or thereafter. In moving for mandatory relief from this default, Laurel Canyon is required to submit the sworn affidavit of its counsel attesting to mistake, inadvertence, surprise, or neglect. Counsel for Laurel Canyon need not justify why any of these conditions occurred, but they must at least provide sufficient facts for the Court to determine they were solely to blame for the failure to timely file a responsive pleading. For reasons set forth below, the Court finds the declaration of Laurel Canyon’s counsel does not attest to such facts.

 

Counsel for Laurel Canyon, Jennifer Ryu (Ryu), submits the affidavit in support of mandatory relief. Ryu states that on May 15, 2024, after the demurrer was sustained with leave to amend, Plaintiff filed her FAC. (Ryu Decl. ¶ 8.) Ryu next states, “At the Case Management Conference on August 26, 2024, the Court indicated that Defendant had not been served with Plaintiff’s First Amended Complaint.” (Id.) This statement does not comport with the Court’s recollection and notes of the Case Management Conference.

 

The Court recalls, and its notes confirm, that it inquired about service upon Laurel Canyon because Plaintiff had mistakenly failed to separately file her Proof of Service for the FAC. When the Court raised this issue, counsel for Laurel Canyon confirmed they had accepted service via email and would file a responsive pleading. Later that day, Plaintiff filed her separate proof of service, which appears identical to the one attached to her FAC. (See FAC at p. 132.)

Ryu does not deny having received service in her declaration, and in fact makes no mention of service at all. Ryu also make no mention of Laurel canyon’s deadline to file a responsive pleading. The only facts in Ryu’s declaration speaking to the default are an erroneous statement regarding service followed by statements that her office sent a meet and confer letter well after the deadline to respond had passed.  

 

In essence Ryu has not attested to any facts as to any mistake or neglect attributable to her office. The Court cannot parse from this declaration what the mistake or neglect was and to who it is attributable. While the bar for mandatory relief under C.C.P. § 473(b) is low, its requirements are not nonexistent. Laurel Canyon counsel need not provide a reasons for their mistake/neglect, but they must at the very least acknowledge that one occurred. A declaration which completely ignores the failure to timely file a responsive pleading, especially when the Court addressed the issue at a Case Management Conference, is not a legal basis for mandatory relief.

 

As a last matter, the Court finds Laurel Canyon’s argument that Plaintiff’s counsel owed a professional courtesy to warn prior to seeking default, while true, is inapplicable to this situation.   Laurel Canyon should not have been surprised by the default given the Court raising the responsive pleading issue during the Case Management Conference and counsel’s affirmative statement that a responsive pleading would be filed.

 

In Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, the California Court of Appeal reversed a trial court order denying relief from default. The court relied, in part, upon the ethical obligation of the plaintiff’s counsel to inform defendant’s legal department of an attempt to enter default, in light of the fact that the plaintiff’s counsel had been in contact with them prior. (Id. at 701.) The court found that while this obligation was not legal, it played an appropriate role in the determining whether defendant’s mistake was excusable. (Id.) When combined with the fact that the defendant genuinely believed the matter was being responded to by their insurer, the court found the ethical violation persuasive to grant discretionary relief. (Id. at 694.) Still, the court cautioned, “Nor do we hold that a plaintiff's attorney must warn a defendant's attorney before taking a default. We recognize that each situation is sui generis and must be analyzed accordingly.” (Id. at 703.)

 

In the wake of Fasuyi, courts have begun to incorporate this ethical obligation into their rulings more readily. (See Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 135.) Regardless, the Court finds consideration of any ethical violation in this case does not weigh toward the granting of Laurel Canyon’s motion. Fasuyi concerned discretionary relief and whether the defendant’s mistake was excusable. Given that Laurel Canyon has moved for mandatory relief, which does not require the Court consider the merits of excuse, it is unclear that Fasuyi applies. Even assuming Fasuyi did apply to mandatory relief, the circumstances here indicate that the failure of plaintiff’s counsel to notify prior to default has no bearing on Laurel Canyon’s failure to timely respond.

 

Accordingly, the motion to set aside default is DENIED without prejudice.

 

Sanctions

 

Plaintiff requests that sanctions be granted pursuant to C.C.P. § 128.5(a) which provides in pertinent part:

 

A trial court may order a party, the party's attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.

 

The Court declines to exercise its discretion in this regard. While the Court does not find Laurel canyon’s declaration sufficient, there is no evidence that they failed to respond to the FAC with a bad faith intent to cause delay.

 

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RULING:

 

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

 

ORDER 

 

Laurel Canyon Collection, Inc.’s Motion to Set Aside Default came on regularly for hearing on March 7, 2025, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

 

THE MOTION TO VACATE DEFAULT IS DENIED WITHOUT PREJUDICE.

 

THE COURT ALSO SETS A CASE MANAGEMENT CONFERENCE FOR MAY 6, 2025 AT 9:00 AM.

 

PLAINTIFF TO PROVIDE NOTICE.

 

IT IS SO ORDERED. 

 

 

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Case Number: 22STCV04063    Hearing Date: March 7, 2025    Dept: A

CONTINUANCE

MARCH 7, 2025

MOTION FOR SUMMARY ADJUDICATION

Los Angeles Superior Court Case # 22STCV04063

 

MP:	365 Disposal and Recycling, Inc. (Defendant)
RP:	Mark Renyer, Sara Dakarmen, Tara Dakarmen, Shayla Dakarmen, Skyla Dakarmen, Tate Dakarmen, Kal Nelson Aviation, Inc. Stuart Nelson, Mike Nelson, and Margorie Nelson (Plaintiffs)

 

The Court is still reviewing the Motion for Summary Adjudication has been unable to complete its tentative ruling.  As a result, additional time is necessary to hear this matter and issue a Tentative Ruling.   On the Court’s own motion, the matter is continued to March 14, 2025 at 9:00 AM or such other date as stipulated to by the parties provided the date is available for the Court.  The Court will issue a Tentative Ruling prior to that date.

ORDER 

 

The Motion for Summary Adjudication came on for hearing on March 7, 2025, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

 

THE MOTION FOR SUMMARY ADJUDICATION IS CONTINUED TO MARCH 14, 2025 AT 9:00 AM OR SUCH OTHER DATE STIPULATED TO BETWEEN THE PARTIES AND AVAILABLE TO THE COURT.

 

DEFENDANT 365 RECYCLING TO GIVE NOTICE. 

 

IT IS SO ORDERED. 

 

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Case Number: 22STCV22768    Hearing Date: March 7, 2025    Dept: A

MOTION TO BIFURCATE TRIAL

Los Angeles Superior Court Case # 22STCV22768

 

MP:	The City of Los Angeles & William Dorsey Jones, Jr. (Defendants)
RP:	The Estate of Valentina Orellana Peralta, Soledad Peralta, and Juan Pablo Orellana Larenas (Plaintiffs)

 

NOTICE:

 

The Court is requesting oral argument on this matter. 

 

For purposes of this motion, presuming liability is found against Officer Jones, the parties are requested to address the limited issue of whether the request for punitive damages against Officer  Jones would eliminate any significant benefit from a separate trial as to damages since the jury would need to learn of the underlying circumstances in determining whether punitive damages should be awarded.  Furthermore, the Court requests argument as to whether a bifurcated trial utilizing one jury would resolve the Moving Defendants’ concerns.

 

ALLEGATIONS: 

 

This is a negligence action brought by the Estate of Valentina Orellana Peralta (Valentina), Soledad Peralta (Peralta), and Juan Pablo Orellana Larenas (Larenas) (collectively Plaintiffs). Plaintiffs bring this against the City of Los Angeles (the City), the Los Angeles Police Department (LAPD), William Dorsey Jones, Jr. (Jones), and Burlington Coat Factory of Texas, LLC (Burlington).

 

Plaintiffs allege that on December 23, 2021, Peralta and her 14 year-old daughter Valentina were shopping at a retail location owned by Burlington in North Hollywood. While Peralta and Valentina were in the store, Daniel Elena-Lopez (Lopez) entered the store, began to shoplift, and then became violent attacking other customers. When LAPD officers arrived on the scene, they confronted Lopez and Jones fired upon him. Valentina, who was hiding in a nearby dressing room with Peralta, was tragically killed by one of the bullets discharged at Lopez.

 

Before the Court is a motion by the City and Jones (hereinafter Moving Defendants) to bifurcate the trial in this matter. Moving Defendants move to separate the trial into two trials, one for the determination of liability and the other for the determination of damages. Moving Defendants generally argue that the evidence to be presented pertaining to liability is so extreme that they would suffer material prejudice if the same jury were to determine damages. Plaintiffs oppose the motion and Moving Defendants reply.

 

ANALYSIS: 

 

I.                    LEGAL STANDARD 

 

C.C.P. § 598 provides in pertinent part that, "[t]he court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order . . . that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof." Similarly, C.C.P. § 1048(b) provides in pertinent part that, "[t]he court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues."

 

The Court's discretionary authority to sever claims and try them separately may also be employed to avoid undue prejudice to a party. (Stencel Aero Engineering Corp., v. Superior Court (1976) 56 Cal.App.3d 988.) Courts have inherent power to regulate the order of trial, and therefore can entertain a motion to bifurcate at any time—even during the trial itself. (McLellan v. McLellan (1972) 23 Cal.App.3d 343, 353.)

 

C.C.P. §3295 requires the Court to preclude the admission of evidence of that defendant’s financial condition until after the jury returns a verdict for plaintiff awarding actual damages and finding the defendant acted with malice, oppression, or fraud per C.C.P. §3294.  (C.C.P. §3295(d).

 

II.                 MERITS

 

Judicial Economy

 

The Court finds the Moving Defendants’ argument that bifurcation would promote judicial efficiency here to be problematic given the demand for punitive damages against Officer Jones.

 

Moving Defendants argue that, should they succeed at the first trial and be found completely non-liable, bifurcation would save the time and expense of determining damages. While that may be true, nonetheless should liability be found, given that punitive damages are sought the second jury may be required to learn of the underlying details of the incident to determine whether punitive damages are justified, and if so in what amount.  It is on this issue that the Court is requesting further argument.

 

The Court finds it is just as, if not more, likely that bifurcation would incur more judicial resources. It is undisputed that the evidence concerning Moving Defendants’ potential liability and Plaintiffs’ alleged damages are closely interrelated. In any instance where Moving Defendants do not completely escape liability in the first trial, a second trial on damages would necessitate the process of empaneling a new jury and re-presenting that evidence. While no time spent reaching a just result can be considered wasted, such a second trial would most certainly not promote efficiency.

 

Nevertheless, the Court is aware that this case involves the shooting death of a child.   In such instances that can raise significant emotional issues making it difficult for a jury determining liability to likewise be in the best position to determine damages.  This is especially true when there are multiple defendants.  In some instances, a newly empaneled jury may be appropriately necessitated to protect the due process interests of the Moving Defendants and in others a two-part trial can achieve the same goal.

 

Prejudice to Moving Defendants

 

The Court also finds Moving Defendants’ argument that they would be materially prejudiced by a singular trial to likewise be problematic.

 

Moving Defendants argue that if liability and damages are tried together, there is potential that the jury may, “…choose to begin thinking through a prism of awarding damages, rather than making a determination of liability.” (Mot. p. 5) The Court finds this argument hinges on the probability of prejudice rather than any demonstrable threat thereof. No case exists in which the possibility of prejudice does not arise from the evidence presented. It is for this reason that the courts have formed a litany of remedies to mitigate and avoid undue prejudice at trial (i.e. motions in limine, motions to strike, jury instructions.) The Court is unpersuaded with the argument presented concerning the “prism of awarding damages.”  A jury would not peer through that prism unless they believed that liability existed.  The Court understands that Moving Defendants may be concerned that the jury, due to emotion may decide that the Plaintiffs should receive compensation for their loss regardless of liability, and issue that exits is any emotionally charged case.  However, the Court has other options rather than empaneling two separate juries.  For example, the Court has the option of a bifurcated trial with a single jury which first determines liability, and after that determination if liability is found then to determine what if any damages are justified.

 

Further, Moving Defendants cite no binding authority in support of their argument. The Federal authority upon which Moving Defendants rely, Estate of Diaz v. City of Anaheim (9th Cir. 2016) 840 F.3d 592, is both non-binding and inapposite. Estate of Diaz concerned bifurcation of a criminal homicide case pursuant to Federal Rule 42(b). (Id. at 601.) The case does not concern the bifurcation of civil trials and nowhere discusses the section of the California Code of Civil Procedure under which Moving Defendants seek relief.

 

Bifurcation Mandated by Law

 

Ultimately, the noticed motion is to “bifurcate” matters but the moving party references Code of Civil Procedure sections which pertain to severance of trials.   The Court is uncertain whether the moving party is requesting bifurcation of issues with the same jury or severance with two separate juries.   Regardless, C.C.P. §3295(d) mandates a partial bifurcation when punitive damages are sought and a defendant requests a separating between actual damages and a determination of C.C.P. §3294 liability for malice, oppression, or fraud.

 

Conclusion

 

Whether to bifurcate or sever a trial is a matter within the sound discretion of the trial court. The Court finds that additional argument is required prior to making a final determination on the Motion to Bifurcate. 

 

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Case Number: 23BBCV00114    Hearing Date: March 7, 2025    Dept: A

MOTION TO COMPEL DEPOSITION

Los Angeles Superior Court Case # 23BBCV00114

 

MP:	Nora Aguilar (Plaintiff)
RP:	American Honda Motor Co., Inc. (Defendant)

 

NOTICE:

 

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is required and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

 

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

 

ALLEGATIONS: 

 

Nora Aguilar (Plaintiff) brings this action against American Honda Motor Co., Inc. (Honda) for claims arising out of the purchase of a 2016 Honda HR-V (the Subject Vehicle). The Complaint alleges several causes of action for violation of the Song-Beverly Consumer Warranty Act.

 

Before the Court is Plaintiff’s Motion to Compel the Deposition of Honda’s Person Most Knowledgeable (PMK). Honda opposes the motion and Plaintiff replies.  

  

ANALYSIS: 

 

I.                    LEGAL STANDARD 

 

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” (C.C.P. § 2025.450(a).)

 

II.                 MERITS

 

Timeline

 

Plaintiff’s deposition notice was served on Defendant on October 12, 2023, noticed for January 11, 2024. (Marks. Decl. ¶ 16, Exh. 5.) On or about December 29, 2023, Honda served its objection to the notice. (Id, Exh. 6.) Honda objected on grounds that the deposition was unilaterally set and asked that Plaintiff consult with counsel as to alterative dates. (Id. at p. 2 [“Please consult with counsel so that a mutually agreeable date and time can be arranged for all parties concerned.”].)

 

On January 12, 2024, Plaintiff’s counsel emailed Honda’s then attorney of record (Clark Hill LLP) and requested that they provide alternative deposition dates no later than January 26, 2024. (Id., Exh. 7.) On January 31, 2024, Plaintiff’s counsel sent Honda’s counsel an identical email, this time requesting alternative dates no later than February 7, 2023 [sic]. (Id., Exh. 8.) Plaintiff maintains that Honda has failed to provide any alternative dates and thus the deposition must be compelled.

 

On October 18, 2024, Bowman and Brooke (Bowman) substituted in as attorneys for Honda. (Dixon Decl. ¶ 9.) Bowman states that since they have substituted into the case, Plaintiff’s counsel has made no communications regarding the deposition of Honda’s PMK. (Dixon Decl. ¶ 11.)

 

Discussion

 

The Court finds Plaintiff’s motion should be denied without prejudice for failure to meet and confer in good faith for the reasons set forth below.

 

A motion under C.C.P. § 2025.450 must be accompanied by a meet and confer declaration demonstrating that the moving party has made a reasonable and good faith attempt at an informal resolution of each issue presented in the motion, or, if the motion is based on the deponent's failure to attend the deposition and to produce documents, it must be accompanied by a declaration stating that the moving party has contacted the deponent to inquire about the nonappearance. (C.C.P. §§ 2025.450(b)(2), 2016.040.) The Court may deny a motion to compel discovery for lack of a reasonable and good faith attempt to meet and confer. (Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1436-1439; Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 434-435.)

 

Here, the record is clear that Plaintiff attempted to resolve the issue with Honda’s prior counsel but neglected to meet and confer with Honda’s new counsel of record, Bowman, prior to bringing this motion. While an attorney taking over a case is usually charged with becoming acquainted with its details, it makes little sense to impute the prior attorney’s failure to respond to meet and confer to the new attorney. The Court does not find it unreasonable to view C.C.P. § 2016.040 as requiring a plaintiff to reach out to newly substituted counsel when their previous meet and confer attempts went without response. This is especially true where those meet and confer attempts consisted of form language emails sent several months prior to the new attorney substituting into the case.

 

As a last note, the Court admonishes Honda for having initially objected to the deposition on grounds that it was unilaterally noticed. Despite being commonly asserted, unilateral notice of a deposition is not a valid means of objection under C.C.P. § 2025.410. Though it may be a professional courtesy to mutually schedule a deposition, the Civil Discovery Act does not require it. (see Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal.App.4th 1109, 1124). “The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action… to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.” (C.C.P. § 2025.280(a).)

 

Accordingly, the Motion to Compel the Depositions of Honda’s PMK is DENIED without prejudice.  The Court notes that this case is set for trial in just under five months and has already been continued once. Better cooperation between the parties is encouraged to timely complete discovery prior to trial.

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RULING:

 

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

 

ORDER 

 

Nora Aguilar’s Motion to Compel Deposition came on regularly for hearing on March 7, 2025, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

 

THE MOTION TO COMPEL THE DEPOSITION OF AMERICAN HONDA MOTOR CO., INC.’S PERSON MOST KNOWLEDGEABLE IS DENIED WITHOUT PREJUDICE.

 

PARTIES ARE ORDERED TO MEET AND CONFER IN GOOD FAITH AS REQUIRED BY THE CODE OF CIVIL PROCEDURE.

 

AMERICAN HONDA MOTOR CO., INC. TO GIVE NOTICE.

 

IT IS SO ORDERED.  

 

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Case Number: 23BBCV02356    Hearing Date: March 7, 2025    Dept: A

MARCH 7, 2025

MOTION FOR TERMINATING SANCTIONS

Los Angeles Superior Court Case # 23BBCV02356

 

MP:	Complete Gym Solutions, LLC (Plaintiff)
RP:	Lance Zavela & Ryde Enterprises, LLC (Defendant)

 

NOTICE:

 

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is required and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

 

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

 

ALLEGATIONS: 

 

Complete Gym Solutions, LLC (Complete Gym) brings this action against Lance Zavela (Zavela) and Ryde Enterprises, LLC (Ryde). Plaintiff alleges Zavela, its former National Sales Manager, misappropriated trade secrets. Specifically, Plaintiff alleges Zavela utilized Plaintiff’s confidential customer database to convince Plaintiff’s customers to rent equipment from Zavela’s new employer, Ryde.

 

Before the Court is Complete Gym’s motion seeking terminating sanctions against Zavela and Ryde. Zavela and Ryde oppose the motion, Complete Gym replies.

  

ANALYSIS: 

 

I.                    LEGAL STANDARD 

 

Where a party fails to obey an order compelling answers to discovery, “the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.” (C.C.P. §§ 2030.290(c), 2023.010(c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal. App. 4th 486, 495.) Terminating sanctions are appropriate when a party persists in disobeying the court’s orders. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795-796.)

 

A terminating sanction is a “drastic measure which should be employed with caution.” (Id. at 793.) “A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.” (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal. App. 4th 262, 279-280.)

 

While the court has discretion to impose terminating sanctions, these sanctions “should be appropriate to the dereliction and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Deyo supra, 84 Cal. App. 3d at 793.)

 

II.                 PROCEDURAL HISTORY

 

April 19, 2024 Court Order for Further Production

 

On February 2, 2024, Complete Gym filed the following two discovery motions:

 

·         A motion to compel Ryde’s further responses to Complete Gym’s RFPD Set One Nos. 1-14, 19-21, 25-32, 40-43, 45-49, 51-53, 55-59, 64, 66-69, 75 and 77- 81.

 

·         A motion to compel Zavela’s further responses to Complete Gym’s RFPD Set One Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 21, 22, 23, 24, 25, 26, 27, 28, 30, 31, 32, 33, 34, and 36

 

After these motions were filed, the parties engaged the Court in an Informal Discovery Conference, which was unable to resolve all the issues presented by the motions. On April 19, 2024, the motions came on for hearing, oral argument was heard, and the Court took the matter under submission. On April 22, 2024, the Court issued its final ruling and ordered Ryde and Zavela to do the following:

 

• Provide further responses to Requests for Production Nos. 1-14, 19-21, 25-32, 40-43, 45-49, 51-53, 55- 59, 64, 66-69, 75, and 77-81 as served on Ryde (the “Ryde Requests”)

 

• Provide further responses to Requests for Production Nos. 1-10, 21-28, 30-34, and 36 as served on Zavela (the “Zavela Requests”);

 

This production was due within 30 days. The Court additionally ordered Ryde and Zavela to pay monetary sanctions to Plaintiff.

 

September 6, 2024 Hearing on First Terminating Sanctions Motion

 

On August 7, 2024, Complete Gym filed a motion seeking evidentiary, issue, and terminating sanctions against Ryde and Zavela. Complete Gym maintained that Ryde and Zavela willfully violated the Court’s order to produce further responsive documents.

 

On September 6, 2024, the motion came on for hearing. At this time, the Court noted that Complete Gym’s motion failed to comply with the procedure for a motion seeking sanctions for discovery abuse, in that it did not include a separate statement. In the Court’s view a separate statement was necessary for its review of an already complicated discovery dispute. The Court ordered the motion continued and ordered Complete Gym file a separate statement outlining the issues to be adjudicated. The Court granted leave to Ryde and Zavela to respond with a separate statement in responses to the extent they saw fit to do so.

 

Thereafter, Ryde and Zavela both filed additional declarations in opposition to the motion which were not authorized by the Court’s September 6 order. The Court clarified at an October 10, 2024, hearing that it only sought separate statements from the parties, not additional or revised argument. The Court then took the matter under submission.

 

November 7, 2024 Order re: First Motion for Terminating Sanctions

 

On November 7, 2024, the Court issued its final ruling and order regarding Complete Gym’s motion for sanctions. As a brief summary, the Court ordered the following:

 

·         Ryde and Zavela shall produce any remaining items that were subject to the Court’s order (referring to the April 19, 2024 order) within 10 court days – to the extent it exists.

 

·         Ryde and Zavela are prohibited from presenting any responsive evidence that was not turned over and was the subject of the Court’s prior discovery order. Furthermore, such evidence will not be permitted to rebut evidence presented by the Complete Gym.

 

·         Ryde and Zavela are barred from presenting any documents or information directly or indirectly derived from documents they assert do not exist or were not provided pursuant to the Court’s prior discovery order. This included any motion for Summary Judgement/Adjudication as well as any eventual trial.

 

·         To the extent necessary, the Court will conduct an evidentiary hearing to determine if a specific document or other evidence directly or indirectly derives from a document that was improperly withheld by Ryde and Zavela.

 

·         Should the case go to jury trial, the Court will consider an instruction concerning undisclosed evidence which was requested in discovery. The instruction will permit, but not obligate the jury, to take an adverse inference against Ryde and Zavela for evidence that should have been disclosed but was not.

 

·         If after additional discovery and depositions, Complete Gym provides further evidence concerning a willful violation, the Court may reconsider this order and impose further sanctions, including issue sanctions or other appropriate sanctions.

 

III.              DISCOVERY ISSUES

 

RFPD in Dispute

 

While the Court’s April 19, 2024 order directed Ryde and Zavela further respond to a number of RFPD, there are three RFPD which remain principally in dispute. These are as follows:

 

·         RFPD No. 24 to Zavela: All communications and documents (including e-mails and attachments) between you and any current customers of CGS, from January 1, 2023 to the present.

 

·         RFPD No. 27 to Ryde: All communications and documents (including e-mails and attachments) between YOU and anyone, concerning any current customer of CGS, from January 1, 2023 to the present.

 

·         RFPD No. 64 to Ryde: All your internal communications and documents (including but not limited to proposals, sales quotations and price lists) provided to or concerning any present or former customer of CGS.

 

While these three RFPD represent the issues at play, they are of course not exhaustive given the Court ordered further production as to all RFPD contained in Complete Gym’s initial discovery motions. Given this discovery dispute has now persisted for over a year, the Court finds little value in analyzing the issues through the frame of Complete Gym’s original RFPD. To this end the Court endeavors to provide a brief summary below of the distinct discovery issues relevant to this motion for terminating sanctions.

 

Issues in Dispute

 

Documents and Data Stored in Ryde’s Customer Databases

 

As early as the Informal Discovery Conference the Court and the parties were in discussion about Ryde’s production of information from its customer databases. In its Minute Order for the IDC the Court specifically remarked, “The parties agreed to meet and confer and file a stipulation and order concerning the hiring and access of an Information Technology expert to examine Defendant-Ryde’s database and email accounts for discovery compliance.” (March 19, 2024 Minute Order). To the Court’s knowledge, no such stipulation was ever filed.

 

The Court’s April 19, 2024 Minute Order did not include an analysis as to Ryde’s database specifically. This was because the Court ordered further production of ALL responsive documents, which incorporated any information present on Ryde’s database. The Court considered Ryde’s objections and argument that the requests were overbroad or unduly burdensome and found them to be without merit.

 

In its November 7, 2024 order, the Court specifically considered that good cause has been demonstrated as to Ryde’s database. The Court found persuasive the Second Declaration of Danielle Rivera in which she describes in detail the existence and use of the RGE program by Ryde and Zavela and her own involvement in inputting CGS’s confidential information and then contacting Plaintiff’s clients on behalf of Ryde and Zavela. As such, the Court believed good cause continued to exist to compel Ryde to produce information contained in its database as to Complete Gym clients.

 

As a result of Ryde’s supplemental production from its databases, Complete Gym has obtained the following documents: 

 

• Documents and information contained in the “RGE”, (short for Rental Gym Equipment or a similar acronym) program.

 

• A rudimentary version of Salesforce, wherein Danielle Rivera (“Rivera”) and others are alleged to have input all of CGS’s confidential information including, without limitation, client names, addresses, contact information, quotes/bids, equipment rented, and pricing, and which program keeps track of Ryde and Zavela’ communications, including solicitations, bids, and invoices, with prospective and actual clients, inclusive of entities that Ryde and Zavela knew were Plaintiff’s clients at the time Ryde and Zavela solicited them.

 

Complete Gym currently maintains that despite this production, there remains information present in Ryde’s databases pertaining to Complete Gym Clients which have not been produced. Despite the Court’s clear ruling to the contrary on several occasions, Ryde maintains its refusal to have its database observed by any independent technological expert on grounds that Complete Gym’s requests are overbroad.

 

Documents and Communications between Zavela and Complete Gym Clients

 

As with any responsive information in Ryde’s databases, communications between Zavela and Complete Gym clients have been repeatedly ordered turned over by the Court. The Court has repeatedly found good cause for their production. Ryde/Zavela appear to have complied with the order for further production to some extent, as Complete Gym now has:

 

·         Photos and screenshots taken by Zavela of Plaintiff’s proprietary database, which screenshots were, among other things, emailed by Zavela from his personal Gmail account.

 

·         Communications with a subset of Complete Gym clients Ryde and Zavela contacted after Zavela left Plaintiff’s employ.

 

Complete Gym maintains that there are several Complete Gym clients which have been identified as being contacted by Ryde/Zavela, but for which communications have not been produced. In making its November 7, 2024 ruling, the Court specifically mentioned Exhibit F to the Austin Hai declaration. Exhibit F is a pdf of an excel spreadsheet produced by Ryde and Zavela in discovery. Complete Gym maintains that, despite this clear record, Ryde/Zavela have not produced their communications with several of the Complete Gym clients identified in this exhibit. The Court’s Order additionally noted that the Rivera declarations identified a great deal more of Complete Gym’s clients which were entered into Ryde’s database for potential contact, yet no communications had been produced as to many of them.

 

Ryde and Zavela maintain that they have produced all documents responsive to Complete Gym’s RFPD and that any further requests by Complete Gym are an unauthorized fishing expedition. This position fundamentally misstates the dispute. The issue is Ryde/Zavela have been ordered, several times, to produce ALL documents responsive to Complete Gym’s request. Ryde/Zavela contend that they have done so, and Complete Gym claims that they have not. Thus far, the evidence presented to the Court has demonstrated Complete Gym’s position to be the more meritorious of the two.

 

IV.              DISCUSSION

 

The above procedural and factual background having been conducted; the Court turns to the instant Motion for Terminating Sanctions. This is the second such motion, with Complete Gym’s previous request for terminating sanctions having been denied by the Court. The Court’s November 7, 2024 order was a final determination on the issue of terminating sanctions encompassing every allegation of discovery abuse by Ryde/Zavela up to that point. The Court found that considering all of those elements in their totality, terminating sanctions were not warranted.

 

The Court explicitly stated the following in its November 7, 2024 order:

 

If after additional discovery and depositions the Plaintiff provides further evidence concerning a willful violation, the Court may reconsider this order and impose further sanctions, including issue sanctions or other appropriate sanctions.

 

As such the question posed by Complete Gym’s second motion for terminating sanctions is, “What evidence of willful violation has been uncovered by Complete Gym in its additional discovery?” If Complete Gym has produced such evidence, the question then becomes, “Does this newly revealed evidence warrant terminating sanctions?”

 

Complete Gym’s Evidence of Willful Violation

 

Complete Gym’s evidence of willful violation in support of this motion is simple. Complete Gym states that on December 27, 2024, they served the Golden Rain Foundation of Laguna Woods (Laguna Woods) with a subpoena requesting any communications between themselves and Ryde or Zavela. (Kamorsky Decl. Exh. 14.) Laguna Woods is indisputably identified as a Complete Gym client in the aforementioned Exhibit F to the Hai Declaration (a document produced by Ryde/Zavela in discovery).

 

On December 23, Laguna Woods responded to the subpoena and produced the following:

 

·         6/13/2023 e-mail from Zavela to representatives of Laguna Woods. (Kamorsky Decl. Exh. 6.)

 

·         6/20/2023 e-mail from Zavela to representatives of Laguna Woods. (Kamorsky Decl. Exh. 7.)

 

·         6/22/2023 e-mail from Zavela to representatives of Laguna Woods. (Kamorsky Decl. Exh. 8.)

 

·         8/30/2023 e-mail from Zavela to representatives of Laguna Woods. (Kamorsky Decl. Exh. 9.)

 

·         1/24/2024 e-mail from Zavela to representatives of Laguna Woods attaching two quotes. (Kamorsky Decl. Exh. 10.)

 

 

·         1/25/2024 e-mail from Zavela to representatives of Laguna Woods attaching a revised quote. (Kamorsky Decl. Exh. 10.)

 

·         2/17/2024 e-mail from Zavela to representatives of Laguna Woods attaching a revised quote. (Kamorsky Decl. Exh. 12.)

 

·         3/11/2024 e-mail from Zavela to representatives of Laguna Woods. (Kamorsky Decl. Exh.13.)

 

The Court views the above as clear evidence of Ryde and Zavela’s willful violation of the order to turn over all responsive communications with Complete Gym clients. The facts are plain to see. Ryde/Zavela claimed they had no further responsive communications and yet Complete Gym has clearly obtained them.  Complete Gym has previously argued that they do not want to subpoena more clients for additional proof of violation as such action may jeopardize their relationship with those clients.   Document demands on third parties not part of the litigation, especially those which are clients is not without inconvenience to those entities and costs.  Their argument is well taken.

 

The court finds Ryde and Zavela’s arguments in opposition to be insufficient to negate the clear showing of willful violation. Ryde and Zavela argue that, despite the fact that the scope of discovery has been continuously clarified for them over the course of a year, they did not understand that communications to Laguna Woods and other clients identified were subject to production. This argument is unacceptable. Ryde and Zavela themselves produced a spreadsheet of Complete Gym clients upon which explicitly included Laguna Woods. They cannot now, eight months later, claim that they did not understand they had to produce these communications because the term “client” was unclear.

 

In his opposition declaration, Zavela states that after being served with the instant motion he conducted a search of his emails and found an additional 170 pages of communications to the following entities: Bell Canyon, Waterfront at Catalina Landing, Sheraton Universal Hotel Westside Habitats, LLC, Cahuenga Hills HOA Laguna Woods, Yardi Systems, 910 Grandview Apartments; Pacific Beacon, Job Corps, and Olentangy Village. (Zavela Decl. ¶ 5, Exh. A.) Zavela states all these communications were turned over to Complete Gym on February 21, 2025. (Id.)

 

Zavela’s subsequent production of communications which he and Ryde insisted did not exist for over a year does not mitigate Complete Gym’s showing of a willful violation. A Court order is just that, an order;  it is not an invitation to comply if so desired. The Court did not suggest that Ryde and Zavela turn over these documents, it ordered they do so. If Ryde and Zavela were genuinely confused about the scope of the production, they had a significant amount of time to seek clarification from both Complete Gym and the Court. If they were concerned that the information contained highly confidential information that they did not wish to disclose to a competitor, they could have sought a protective order for redactions.  On two occasions now this clarification was provided by yet another order of the Court. There is no good faith argument to be made that Ryde and Zavela did not know these 170 pages were subject to production under the Court’s order. Their violation was undoubtedly willful.

 

Terminating Sanctions

 

As concerns the propriety of terminating sanctions, the Court finds they are indeed warranted as less draconian sanctions, both financial and evidentiary, have not resulted in compliance.

 

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

 

Here, the Court finds the evidence clearly indicates that lesser sanctions would be insufficient to curb Ryde and Zavela’s habitual evasion of the discovery process. The Court has already leveled monetary sanctions, after which the discovery abuses persisted. The Court then issued evidentiary sanctions and raised the possibility of an adverse jury instruction. Despite these increased sanctions, Ryde and Zavela still refused to produce responsive communications which were undoubtedly in their possession.

 

By Zavela’s own admission, these additional communications were not turned over until Complete Gym brought this motion. Ryde and Zavela did not produce these documents out of a good faith effort to comply with the discovery process and the Court’s orders, they produced them because Complete Gym had finally obtained irrefutable proof of their existence. This indicates to the Court that any sanctions lesser than terminating would be ineffective to prevent further gamesmanship by Ryde and Zavela. Ryde and Zavela have demonstrated to the Court that they will continue their elusive discovery practices until such time as they can do so no longer, regardless of legally binding Court orders to the contrary. In the Court’s eyes this is exact sort of behavior which warrants the remedy of terminating sanctions.

 

C.C.P. §2023.030(d) provides that a court may impose terminating sanctions by, inter alia, an order striking out the pleadings or part of the pleadings of any party.  C.C. P. §2023.030(d)(1). As such, the motion for terminating sanctions is GRANTED and the Court strikes Defendants’ answer as a terminating sanction for repeated discovery violations.

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RULING:

 

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

 

ORDER 

 

Complete Gym Solutions, LLC’s Motion for Terminating Sanctions came on regularly for hearing on March 7, 2025, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

 

THE MOTION FOR TERMINATING SANCTIONS IS GRANTED.  THE COURT STRIKES DEFENDANTS’ ANSWER.

 

PLAINTIFF TO GIVE NOTICE.

 

IT IS SO ORDERED. 

 

 

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Case Number: 24NNCV04245    Hearing Date: March 7, 2025    Dept: A

DEMURRER & MOTION TO STRIKE

Los Angeles Superior Court Case # 24NNCV04245

 

MP:	Doorstead, Inc.
RP:	Charles White (Plaintiff) [No Opposition Filed]

 

NOTICE:

 

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is required and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

 

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

 

ALLEGATIONS: 

 

Charles White (Plaintiff) brings this action against Mark & Beate Hathaway (Hathaway Defendants) and Doorstead, Inc. (Doorstead). Plaintiff alleges that the property he rented from Hathaway Defendants and, which was managed by Doorstead, was defective in several regards. Plaintiff alleges that Doorstead refused to remediate various conditions on the premises, resulting in damages to Plaintiff. Plaintiff states causes of action for (1) Breach of the Warranty of Habitability, (2) Breach of the Covenant of Quiet Enjoyment, (3) Negligence, (4) Intentional Infliction of Emotional Distress, (5) Negligent Infliction of Emotional Distress, and (6) Punitive Damages.

 

Doorstead now demurs to the fourth, fifth, and sixth causes of action on grounds that they fail to allege sufficient facts. Plaintiff has filed no opposition. A plaintiff’s failure to oppose the demurrer can be treated as an implied abandonment of the challenged claims. (Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20.)

  

ANALYSIS: 

 

I.                    LEGAL STANDARD 

 

Demurrer

 

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Id.)

 

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at 318.)

 

Pursuant to C.C.P. §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

 

Motion to Strike

 

Motions to strike are used to reach defects or objections to pleadings that are not challengeable by demurrer, such as words, phrases, and prayers for damages. (See C.C.P. §§ 435, 436, and 437.) The proper procedure to attack false allegations in a pleading is a motion to strike. (C.C.P. § 436(a).) In granting a motion to strike made under C.C.P. § 435, “[t]he court may, upon a motion made pursuant to Section 435 [notice of motion to strike whole or part of complaint], or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” (C.C.P. § 436(a).) Irrelevant matters include immaterial allegations that are not essential to the claim or those not pertinent to or supported by an otherwise sufficient claim. (C.C.P. § 431.10.)

 

The court may also “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (C.C.P. § 436 (b).)

 

II.                 MERITS

 

Meet and Confer

 

C.C.P. §§ 430.41(a) and 435.5(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer and/or motion to strike. Upon review, the Court finds the meet and confer requirements were met here. (Webber Decl. ¶ 2.)

 

Facts Alleged

 

On December 1, 2023, Plaintiff entered into an agreement to rent the premises located at 2000 Hanscom Dr., South Pasadena, CA 91030 (the Subject Premises) from the Hathaway Defendants. (Compl. ¶¶ 1, 2.) The Subject Premises is allegedly managed by Doorstead. (Compl. ¶ 3.)

 

Plaintiff alleges that, due to numerous issues with the Subject Premises, on January 7, 2024, he had a home inspection conducted. (Compl. ¶ 12.) Plaintiff alleges this home inspection revealed the several defects with the Subject Premises including “serious electrical issues”, “plumbing issues”. (Compl. ¶ 12.) The inspector also recommended that a licensed contractor evaluate the foundation posts due to their shifting creating an unsafe condition. (Id.)

 

Plaintiff alleges that between February 17, 2024 and the filing of this action on September 12, 2024, he gave repeated oral and written notices to Doorstead regarding “tenantability issues” with the Subject Premises. (Compl. ¶ 13.) Plaintiff alleges these complaints included, “…plumbing issues, wiring issues, HVAC issues, inadequate heat, plumbing problems resulting in raw sewage backing up into the bathtub, and electrical issues.” (Id.)

 

Plaintiff further alleges that in June 2024, he sent texts and emails to Doorstead requesting that they fix the Subject Premises’ air conditioning system. (Compl. ¶ 14.) Plaintiff alleges these requests went unanswered and that he subsequently paid to have the air conditioning system fixed. (Id.) Plaintiff alleges he sought reimbursement from Doorstead thereafter, but they refused. (Id.) Plaintiff alleges that Doorstead, “…knowingly and intentionally did not respond…and the denied [Plaintiff’s] request for reimbursement in bad faith.” (Id.)

 

On March 1, 2024, Plaintiff alleges he sent a second written demand for repairs. (Compl. ¶ 15.) This letter apparently concerned water leaks caused by rain storms, sewage backup, and an electric circuit that was malfunctioning. (Id.) Plaintiff alleges this letter went without response. (Compl. ¶ 17.)

 

On August 6, 2024, Plaintiff alleges he requested, “…immediate repairs for broken light switches, a detached ceiling tile, garbage disposal repair, and ceiling lights that went out.” (Compl. ¶ 17.) Plaintiff does not allege how these requests were made but alleges that none of the requested repairs were made. (Id.)

 

On August 7, 2024, Plaintiff alleges the air conditioning system stopped working again. (Compl. ¶ 18.) Plaintiff alleges he was quoted around $10,000 to make the needed repairs and requested that Doorstead make such repairs. (Id.) Plaintiff alleges that Doorstead did not make the repairs, and that Plaintiff had to stay in a hotel for a time because a heat wave made the Subject Premises unsuitable. (Id.)

 

Plaintiff lastly alleges that, “…Defendants have failed to meaningfully address any of the serious issues brought to their attention. Instead, defendants have made the most minimal of repairs and have engaged in delay tactics designed to frustrate plaintiff and make the property completely unlivable with the hopes that plaintiff will move out.” (Compl. ¶ 19.)

 

Fourth COA – IIED – Overruled

 

“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009, [citation and ellipses omitted].)

 

Doorstead demurs to this cause of action on grounds that Plaintiff has not alleged conduct which is sufficiently extreme and outrageous. For reasons stated below, the Court finds Doorstead’s argument on this front unpersuasive.

 

Courts have found that allegations of refusal to remediate mold and other harmful building conditions can constitute extreme and outrageous conduct. In Burnett v. Chimney Sweep, plaintiffs repeatedly complained of a mold issue and defendant landlord refused to remediate. (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057.) The trial court granted defendant’s motion for judgment on the pleadings without leave to amend. The Court of Appeals reversed the judgment, holding that whether the landlord’s refusal to rectify the mold issue was extreme and outrageous presented a factual question for the jury. (Id. at 1069, citing Stoiber supra, 101 Cal.App.3d 903.)

 

Here, Plaintiff alleges a variety of building defects present at the Subject Premises which could constitute infliction of emotional distress if Doorstead were found to have affirmatively refused to remediate them. Much like the plaintiff in Burnett, Plaintiff has sufficiently alleged an affirmative refusal of Doorstead to remediate the air conditioning issues at the Subject Premises. Plaintiff has alleged that Doorstead refused to respond to repair requests and thereafter refused to compensate him for the costs of repairs. (Compl. ¶ 13.) Plaintiff further alleges that when the air conditioning broke a second time, Doorstead again refused to make the repairs required. (Compl. ¶ 19.) While a single incident may not be sufficient to justify this cause of action, in this instance it is alleged that the condition reoccurred and still Doorstead refused to remediate the issue.  In Stoiber v. Honeychuck (1980) 101 Cal. App. 3d 903, 921, the appellate court concluded that the plaintiff tenant had stated a cause of action for intentional infliction of emotional distress by alleging that she had suffered “ ‘extreme emotional distress’ as a result of the [landlord's and property manager's] ‘knowing, intentional, and willful’ failure to correct defective conditions of the premises.” The Stoiber court observed that whether the failure to act was extreme and outrageous “under the present allegations, presents a factual question—it cannot be said as a matter of law that [plaintiff] has not stated a cause of action.” (Id., at p. 922.)  Whether Plaintiff will be able to convince a trier of fact that such conduct constitutes extreme and outrageous behavior remains to be seen, but his pleadings on this front are sufficient to state a cause of action.

 

The Court notes that Doorstead’s authority in support of their demurrer is procedurally inapposite. McNairy v. C.K. Realty (2007) 150 Cal.App.4th 1500 concerned whether a jury award for damages in an IIED action were supported by substantial evidence. McNairy did not deal with the issue of whether an IIED cause of action was sufficiently pleaded.

 

In short, the Court finds Plaintiff has sufficiently pleaded a cause of action for IIED in alleging Doorstead’s repeated refusal to remediate the air conditioning defects at the Subject Premises. As such, the demurrer to this cause of action is OVERRULED.

 

Fifth COA – NIED – Sustained with Leave to Amend

 

The Court first addresses Doorstead’s demurrer to this cause of action on grounds that it is alleged to be duplicative of Plaintiff’s Negligence cause of action. Indeed, California courts have consistently held that "Negligent infliction of emotional distress is not an independent tort," but rather, is a species of the tort of negligence. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 884; accord Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072 ["[T]he negligent causing of emotional distress is not an independent tort, but the tort of negligence."] Regardless, for reasons explained below, the Court does not find the duplicative nature of this cause of action is proper grounds to sustain a demurrer.

 

There is a variety of competing authority as to whether a demurrer brought under C.C.P.§ 430.10 can be sustained where a cause of action is found to be duplicative of another. Some courts have held that duplicative causes of action are subject to demurrer. (See Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290; see also Careau & Co. V Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1392.) Other courts have found sustaining such a demurrer to be inconsistent with a plaintiff’s right to assert inconsistent causes of action at the pleading stage. (See Blickman Turkus, LP v. MF Downtown Sunnydale, LLC (2008) 162 Cal.App.4th 858, 890; see also Adams v. Paul (1995) 11 Cal.4th 583, 593.)

 

In resolving this conundrum, the Court finds the reasoning in Blickman to be the most instructive. The Blickman court first noted that the language of C.C.P. § 430.10 does not authorize a demurrer on grounds of redundancy (Blickman supra, 162 Cal.App.4th at 890.) The Blickman court observed that the practice of sustaining a demurrer to a duplicative cause of action was actually grounded in language no longer present in the statutory scheme.  (Id.) Although the statute authorizing a motion to strike, C.C.P. § 436(a), did previously authorize courts to strike out “irrelevant and redundant” matter, that language has since been removed. (Id.) The court observed that the modern statute contained no analogous language authorizing the striking of redundant material. (Id.)

 

The Court finds the reasoning in Blickman persuasive. These demurrers are undoubtedly brought pursuant to C.C.P. § 430.10 and that code section simply does not authorize a demurrer where a cause of action is alleged to be duplicative.

 

As concerns the cause of action itself, the Court finds it is subject to demurrer for failure to plead sufficient facts. A negligent infliction of emotional distress (NIED) cause of action is permitted in two types of actions: “bystander” and “direct victim” cases. (Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 127.) “Direct victim cases involve the breach of a duty owed [to] the plaintiff that was assumed by the defendant, imposed on the defendant as a matter of law, or arose out of a preexisting relationship between the two.” (Id. [citations omitted].) Direct victim cases involve instances where a plaintiff has established a special relationship between themselves and the tortfeasor, such as a fiduciary or guardian. (See Christen v. Superior Court (1991) 54 Cal.3d 868, 884; Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1073.)

 

Plaintiff’s fifth cause of action does not distinguish his claim as either a bystander or direct victim claim. To the extent that the Complaint indicates a direct victim theory of NIED, Plaintiff has pled no facts which establish a special relationship between himself and Defendants. Plaintiff’s allegation that, “Defendants abused their positions as landlords and acted in an unconscionable and outrageous manner…” is insufficient to plead a special relationship giving rise to a duty owed to him. (Compl. ¶ 37.) Outside of these instances there is no recognized cause of action for negligent infliction of emotional distress, as it is encompassed in a common law negligence claim. (See McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509.)

 

Accordingly, the demurer to this cause of action is SUSTAINED. As it seems reasonably possible that Plaintiff could add facts speaking to a special relationship, 20 days’ leave to amend is granted.

 

Sixth COA – Punitive Damages – Sustained Without Leave to Amend

 

Doorstead demurs to this cause of action on grounds that “Punitive Damages” does not constitute a legally cognizable cause of action. The Court agrees, as the California Court of Appeal has made very clear that,

 

There is no cause of action for punitive damages. Punitive or exemplary damages are remedies available to a party who can plead and prove the facts and circumstances set forth in Civil Code section 32944 .... Punitive damages are merely incident to a cause of action, and can never constitute the basis thereof.

 

(Grieves v. Superior Court (1984) 157 Cal.App.3d 159 [quotation marks and citations omitted].)

 

Accordingly, the demurrer to this cause of action is SUSTAINED without leave to amend.

 

Motion to Strike

 

Doorstead moves to strike the following portions of the Complaint:

 

1.      Page 8, lines 1 through 2, “43. Defendants, jointly and severally, are guilty of oppression, fraud, and malice, as those terms are defined by Civil Code § 3294 (c).”

2.      Page 8, lines 3 through 4, “44. Plaintiff requests an award of punitive damages against Defendants, jointly and severally. Defendants’ conduct justifies such an award.”

3.      Page 8, lines 22 through page 9, line 14, Plaintiff’s “SIXTH CAUSE OF ACTION, Claim for Punitive Damages,” in its entirety.

4.      Page 9, lines 20 through 21, “3. For punitive damages in an amount necessary to punish Defendant as permitted by law;”

 

The Court notes that Items 1-3 of Doorstead’s motion to strike are located in Plaintiff’s sixth cause of action. The Court having sustained the demurrer to this cause of action without leave to amend, the motion to strike its contents is mooted. All that remains is Item 4, Plaintiff’s request for punitive damages in the Prayer for Relief.

 

Here, the Court finds that Plaintiff has insufficiently pled acts by Doorstead which constitute “malice, fraud, or oppression”. A plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud, or malice as there is a heightened pleading requirement regarding a claim for punitive damages. (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.) While Plaintiff may have sufficiently pled Doorstead’s refusal to remedy defects with the Subject Premises, his allegations that Doorstead’s actions were done with malice, fraud, or oppression are conclusory. Read as a whole, the Complaint alleges only that Doorstead refused to remediate issues on the Subject Premises, not that it did so maliciously.

 

Accordingly, the motion to strike Paragraph Three of the Prayer for Relief is GRANTED with 20 days’ leave to amend. Leave to amend is granted as the Court finds it reasonably possible that Plaintiff could allege specific facts speaking to the malice requirement.

 

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RULING:

 

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

 

ORDER 

 

Doorstead, Inc.’s Demurrer and Motion to Strike came on regularly for hearing on March 7, 2025, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

 

THE DEMURRER TO THE FOURTH CAUSE OF ACTION IS OVERRULED.

 

THE DEMURRER TO THE FIFTH CAUSE OF ACTION IS SUSTAINED WITH 20 DAYS LEAVE TO AMEND.

 

THE DEMURRER TO THE SIXTH CAUSE OF ACTION IS SUSTAINED WITHOUT LEAVE TO AMEND.

 

THE MOTION TO STRIKE IS GRANTED WITH 20 DAYS LEAVE TO AMEND AS TO PARAGRAPH 3 OF THE PRAYER FOR RELIEF, AND MOOT AS TO ALL OTHER SECTIONS.

 

IT IS SO ORDERED. 

 

 

 

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Case Number: 24NNCV05217    Hearing Date: March 7, 2025    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

 

TENTATIVE RULING

MARCH 7, 2025

DEMURRER

Los Angeles Superior Court Case # 24NNCV05217

 

MP:	Jessica Ray (Defendant)
RP:	Liz Stewart Barnes (Plaintiff)

 

NOTICE:

 

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is required and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

 

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

 

ALLEGATIONS: 

 

Liz Stewart Barnes (Plaintiff) brings this action against Jessica Ray (Defendant). Plaintiff alleges that Defendant has persistently attempted to seduce Plaintiff’s husband Cooper Barnes. Plaintiff and her family live in the same condominium complex as Defendant, and Defendant serves as the head of the Home Owner’s Association (HOA) for the complex. Plaintiff alleges an ongoing campaign by Defendant to sabotage Plaintiff’s marriage beginning in 2020. Plaintiff alleges that Defendant has, among other things, publicly disparaged Plaintiff to other members of the complex, made false representations in order to obtain a Temporary Restraining Order against Plaintiff, abused her position as the head of the HOA to harass Plaintiff, and violated the Mutual Stay Away Order entered into in LASC Family Court Case No. 24VERO00208.

 

Plaintiff’s Complaint (which totals 392 pages inclusive of exhibits), includes causes of action for (1) Intentional Infliction of Emotional Distress, (2) Negligent Infliction of Emotional Distress, (3) Defamation of Character, (4) Slander, (5) Libel, and (6) Breach of Contract.

 

Before the Court is a demurrer to each cause of action in the Complaint on grounds that (1) each cause of action fails to state sufficient facts and (2) each cause of action is uncertain.

 

Defendant argues that each cause of action is improperly based upon the now defunct legal theories of Alienation of Affection. Defendant additionally argues that each cause of action is barred by law as a function of the litigation privilege and Cal. Civ. Code § 5800.

 

Plaintiff has not opposed this demurrer, instead filing a Notice of Non-Opposition stating that she found some of the argument raised by Defendant meritorious and intends to amend the Complaint accordingly. In reply, Defendant argues that leave to amend should not be granted because Plaintiff did not amend prior to their deadline to oppose the demurrer and because Plaintiff has articulated no facts upon which amendment can be premised.

  

ANALYSIS: 

 

I.                    LEGAL STANDARD 

 

Demurrer

 

The grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. (C.C.P. § 430.30(a); Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) The only issue involved in a demurrer hearing is whether the complaint states a cause of action. (Id.)

 

A demurrer assumes the truth of all factual, material allegations properly pled in the challenged pleading. (Blank v. Kirwan, supra, 39 Cal. 3d at p. 318.) No matter how unlikely or improbable, the plaintiff’s allegations must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.  App. 3d 593, 604.) But this does not include contentions; deductions; conclusions of fact or law alleged in the complaint; facts impossible in law; or allegations contrary to facts of which a court may take judicial notice.  (Blank, supra, 39 Cal. 3d at 318.)

 

Pursuant to C.C.P. §§ 430.10(e) and (f), the party against whom a complaint has been filed may demur to the pleading on the grounds that the pleading does not state facts sufficient to constitute a cause of action, or that the pleading is uncertain, ambiguous and/or unintelligible. It is an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable probability that the defect can be cured by amendment. (Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1082.)

 

II.                 MERITS

 

Meet and Confer

 

C.C.P. §§ 430.41(a) requires that the moving party meet and confer with the party who filed the pleading that is subject to the demurrer. Upon review, the Court finds the meet and confer requirements were met here. (Chesney Decl.)

 

Discussion

 

Plaintiff’s has signaled they believe certain aspects of the demurrer are meritorious and that they intend to amend the Complaint. As such, all that remains to be adjudicated by the Court is whether Plaintiff should be granted leave to amend. Defendant argues that Plaintiff should not be allowed to do because each cause of action in the Complaint is legally barred such that amendment would not cure the defects present. For reasons stated below, the Court finds this argument unpersuasive.

 

When a Complaint, liberally construed, can state a cause of action under any theory or there is a reasonable possibility that amendment could cure the defect, it is an abuse of discretion for a judge to deny leave to amend. (Alborzi v. University of Southern California (2020) 55 Cal.App.5th 155, 183.) While the plaintiff bears a legal burden to demonstrate facts upon which amendment may be based, this burden is relaxed where they have had no previous opportunity to amend. (Physicians Committee for Responsible Medicine v. Los Angeles Unified School Dist. (2019) 43 Cal.App.5th 175, 193; Camsi IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1539.) Where a plaintiff has had no previous opportunity to amend, a court should only deny leave to amend where it is apparent from the pleading itself that the plaintiff’s claims are legally barred. (Eghtesad v. State Farm General Insurance Company (2020) 51 Cal.App.5th 406, 412-414.)

 

Here, Plaintiff’s causes of action may implicate a theory of Alienation of Affection, but they are also based on allegations of public disparagement and harassment which would appear independently actionable when liberally construed in her favor. Further, Defendant’s argument that each cause of action is protected by the litigation privilege inherently relies on evidence and facts which do not appear on the face of the Complaint and are thus improper for resolution upon demurrer. Lastly, Defendant’s argument that her actions as the head of the HOA are protected under Civil Code § 5800 is also improper grounds for demurrer. Civil Code § 5800 provides officers of common interest developments immunity from personal liability for decisions made in the context scope of their association duties. The application of this code section to bar Plaintiff’s cause of action necessarily requires the consideration of extrinsic evidence and is not proper for demurrer.

 

Still, the Court admonishes Plaintiff for her failure to file an amended pleading prior to her deadline to respond to Defendant’s demurrer. Plaintiff has provided no explanation of extenuating circumstances which would have prevented her from doing so. This Court is of the firm belief that plaintiffs should be diligent in the prosecution of their case regardless of its procedural disposition.

 

Accordingly, the demurrer as to each cause of action is SUSTAINED with leave to amend. The Court grants Plaintiff 20 days’ leave to file her amended Complaint.

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RULING:

 

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

 

ORDER 

 

Jessica Ray’s Demurrer came on regularly for hearing on March 7, 2025, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

 

THE DEMURRER TO EACH CAUSE OF ACTION IS SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

 

THE CASE MANAGEMENT CONFERENCE SCHEDULED FOR MARCH 20, 2025 IS ADVANCED AND CONTINUED ON THE COURT’S OWN MOTION TO MAY 6, 2025 AT 9:00 AM.

 

DEFENDANT TO GIVE NOTICE.  

 

IT IS SO ORDERED. 

 

 

 

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DEPARTMENT A LAW AND MOTION RULINGS

REQUESTING ORAL ARGUMENT PER CRC 3.1308

The Court will attempt to post all Tentative Rulings at least the day prior to the hearing by 3:00 p.m.; however, the Court does not post Tentative Rulings for all matters.  

The Court will indicate in the Tentative Ruling whether the Court is requesting oral argument.  For cases where the Court is not requesting argument, then the Court is guided by California Rules of Court, Rule 3.1308(a)(1) where the Court requests notice of intent to appear.  Unless the Court directs argument in the Tentative Ruling, a party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.   

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

Notice of the ruling must be served as indicated in the tentative.  Remote appearances are permitted for all law and motion unless otherwise indicated by the Court.  

 

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Case Number: 22STCV04063    Hearing Date: March 13, 2025    Dept: A

MOTION FOR SUMMARY ADJUDICATION

 

MP:	365 Disposal and Recycling, Inc. (Defendant)
RP:	Mark Renyer, Sara Dakarmen, Tara Dakarmen, Shayla Dakarmen, Skyla Dakarmen, Tate Dakarmen, Kal Nelson Aviation, Inc. Stuart Nelson, Mike Nelson, and Margorie Nelson (Plaintiffs)

 

NOTICE:

 

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is required and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

 

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

 

ALLEGATIONS: 

 

This is a Negligence and Civil Nuisance action brought by the following parties (hereinafter collectively referred to as Plaintiffs):

 

·         IPD, Inc. dba Los Angeles Dismantler (IPD)

 

·         Mark Renyer

 

·         Sara Dakarmen and Tara Dakarmen

 

·         Shayla Dakarmen, Skyla Dakarmen, and Tate Dakarmen [each a minor represented by their guardian ad litem Sara].

 

·         Kal Nelson Aviation, Inc. (Kal Nelson Aviation)

 

·         Stuart Nelson, Mike Nelson, and Margorie Nelson.

 

For purposes of this ruling, the Court will refer to Sara, Tara, Shayla, Skyla, and Tate Dakarmen as the “Dakarmen Plaintiffs”. Similarly, the Court will refer to Stuart, Mike, and Margorie Nelson and the “Nelson Plaintiffs”. The Court reference to Plaintiffs in this ruling is understood to refer to individual, rather than corporate, plaintiffs.  

 

Plaintiffs have named the following Defendants in this action (hereinafter collectively referred to as Defendants):

 

·         365 Disposal and Recycling, Inc. (365)

 

·         Sevan Dakarian Weir and Ani Kemkemian as successor trustees of the Kivork Dakarmenian Family Trust (Trustee Defendants).

 

Plaintiffs state causes of action for (1) Negligence [by all Plaintiffs as against all Defendants], (2) Intentional Infliction of Emotional Distress [by all Plaintiffs except IPD as against all Defendants], (3) Nuisance [by all Plaintiffs as against all Defendants], (4) Trespass [by all Plaintiffs as against all Defendants].

 

Before the Court is a Motion for Summary Adjudication brought by 365. 365 requests summary adjudication of the following issues:

 

1.      Plaintiff Stuart Nelson’s claims for Negligence and Intentional Infliction of Emotional Distress (First and Second COA) are time-barred by the statute of limitations.

 

2.      Plaintiff Michael’s claims for Negligence and Intentional Infliction of Emotional Distress (First and Second COA) are time-barred by the statute of limitations.

 

3.      Plaintiff Sara’s claims for Negligence and Intentional Infliction of Emotional Distress (First and Second COA) are time-barred by the statute of limitations.

 

4.      The claims of Dakarmen and Nelson Plaintiffs in their Second Cause of Action for Intentional Infliction of Emotional Distress have no merit, as they have insufficient evidence to support such a cause of action.

 

5.      All Plaintiffs’ claims for punitive damages have no merit because there is insufficient evidence of oppression, fraud, or malice to support any award.

 

Plaintiffs oppose the motion and 365 replies.

  

ANALYSIS: 

 

I.                    LEGAL STANDARD 

 

In analyzing a motion for summary adjudication, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294). Thus, summary adjudication is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist, and the moving party is entitled to judgment as a matter of law. (C.C.P. § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741).

 

The party moving for summary adjudication must satisfy the initial burden of proof by presenting facts to negate an essential element. (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520). 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).

 

Once the moving party has met the burden, the burden shifts to the opposing party to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto. (C.C.P. § 437c(o)(2)). When a party cannot establish an essential element or defense, a court must grant a motion for summary adjudication. (C.C.P. § 437c(o)(1)-(2)).

 

II.                 EVIDENTIARY OBJECTIONS

 

365’s evidentiary objections to the declaration of Plaintiffs’ counsel Robert J. Golde are SUSTAINED as to Nos. 4, 5, 6 and 7; OVERRULED as to all others.

 

III.              MERITS

 

Facts

 

The Facilities

 

This lawsuit concerns 365’s operation of a waste disposal facility on land owned by Trustee Defendants. This facility is located at 9813 Glenoaks Blvd., Sun Valley, CA 91352 (hereinafter the 365 Facility). (Compl. ¶ 14.)

 

IPD and Dakarmen Plaintiffs

 

IPD is a business engaged in the salvage of Porsche vehicles and is located at 9819 Glenoaks Blvd (hereinafter IPD facility). (Compl. ¶ 1.)

 

Plaintiff Sara Dakarmen owns and operates the IPD facility. (Compl. ¶ 2.) Plaintiff Mark Renyer is Plaintiff Sara Dakarmen’s brother and is employed at the IPD facility. (Compl. ¶ 3.) Plaintiff Tara Dakarmen is also employed at the IPD facility. (Compl. ¶ 5.) The minor Dakarmen Plaintiffs are all alleged to have spent “a lot of time” at the IPD Facility. (Compl. ¶¶ 4, 6-7.)

 

Aviation and Nelson Plaintiffs

 

Kal Nelson Aviation is a business which sells aircraft and helicopter parts and is located at 9801 Glenoaks Blvd. (hereinafter the Aviation Facility). (Compl. ¶ 8.) The Nelson Plaintiffs are all are alleged to be employed at the Aviation Facility and to frequently visit/spend a lot of time at the Aviation facility. (Compl. ¶¶ 10-12.)

 

Alleged Negligence/Nuisance Actions

 

Plaintiffs allege that the 365 Facility takes in waste including, upon information and belief, toxic waste. (Compl. ¶ 18.) Plaintiffs allege this waste to include concrete, asphalt, and dirt, which are broken down via variety of machinery employed by 365. (Id.) Plaintiffs also allege that the waste is both brought in and shipped out by commercial trucks. (Id.) This includes the dumping of the waste material from trucks onto the grounds at the 365 Facility. (Id.)

 

Plaintiffs allege that, because the IPD and Aviation Facilities are adjacent to the 365 Facility, they frequently experience issues resulting from 365’s handling of the waste. (Compl. ¶¶ 20-22.) This includes Plaintiffs’ exposure to material from the waste which, upon information and belief, includes asbestos, metals, lead, and other hazardous waste. (Compl. ¶ 23.) Plaintiffs allege they have each been exposed to these hazardous materials by 365’s creation of “fugitive dust” which then permeates the surrounding neighborhood. (Compl. ¶ 24.) Plaintiffs also allege that they have been damages by virtue of the noise created by the 365 Facility, which also permeates the neighborhood during long an extensive hours of operation. (Compl. ¶ 25.) Plaintiffs similarly allege they have been damages by fumes created by the 365 facility’s processing of waste. (Compl. ¶ 26.) Plaintiffs also allege their method of ingress and egress are frequently impaired by Defendants. (Compl. ¶ 27.)

 

Issue Nos. 1, 2, & 3 – Statute of Limitations

 

Under C.C.P. § 335.1, the statute of limitations on a claim for personal injury, whether caused by the wrongful act or neglect of another, is two years. Here, 365 moves for summary adjudication as to whether the Negligence and Intentional Infliction of Emotional Distress (IIED) claims of Plaintiffs Stuart, Michael, and Sara are time barred as outside the two year limitation.

 

365 basis its calculation of the time to file on the date from which it began its operations at Glenoaks Blvd (and thus began producing fugitive dust). Under this metric, 365 states that Plaintiffs had until January 9, 2022 to timely file their claims. This includes accounting for the six month tolling provided by Emergency Rule 9. (See People v. Financial Casualty & Surety, Inc. (2022) 78 Cal.App.5th 879, 885.) 365 goes on to assert that Plaintiffs February 2, 2022 filing was untimely and their claims are barred.

 

As will be discussed in greater detail below, the Court finds this argument unpersuasive on two fronts. First, 365’s evidence as to when the claims accrued does not satisfy 365’s burden in moving for summary adjudication. Second, the claims would be timely under the doctrine of continuous accrual. 

 

Evidence of Accrual

 

It is generally held that a civil cause of action accrues upon the occurrence of the last act necessary to complete the cause of action. (C.C.P. § 312 [“Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, unless where, in special cases, a different limitation is prescribed by statute”]; see generally Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806-809 [“Generally speaking, a cause of action accrues at “the time when the cause of action is complete with all of its elements”].)

 

Here, 365 argues that it began operations on July 9, 2019 at the latest, and Plaintiffs’ claims for Negligence and IIED began to run on that date. In evaluating this argument, the Court notes that 365 does not actually provide definitive evidence of when they began “operations” versus when they obtained “occupancy.” As evidence that Plaintiffs’ claims are time barred, 365 offers the following:

 

·         Certificate of Occupancy granted by the Los Angeles Department of Building and Safety on July 19, 2019. (Wilking Decl. Exh. ZZ)

 

·         Plaintiff Marjorie Nelson’s deposition testimony that 365 has been operating since the Spring of 2019. (Wilking Decl. Exh. B, p. 47:19-48:6)

 

·         Plaintiff Mike Nelson’s deposition testimony that 365 began operating in the first quarter of 2019. (Wilking Decl. Exh. C, p. 35:18-36:5)

 

·         Plaintiff Stuart Nelson’s deposition testimony that 365 moved in to the property between 2018 and March 2019. (Wilking Decl. Exh. D, p. 52:4-13)

 

·         Plaintiff Sara Dakarmen’s deposition testimony that 365 moved next door in March 2019. (Wilking Decl. Exh. E, p. 43:18-25)

 

·         Plaintiff’s Tara Dakarmen’s deposition testimony that 365 moved next door to IPD a “few years ago” (Wilking Decl. Exh. F, p. 53:21-25)

 

·         365 owner Ayelet Suzi Baron’s deposition testimony that 365 began operation in the Summer of 2019. (Wilking Decl. Exh. G, p. 24:22-25; 28:25-29:5.)

 

365’s evidentiary offerings make it abundantly clear that no party has a good understanding of when 365 began “operating.” The evidence from the Certificate of Occupancy and 365’s owner Ayelet Suzi Baron (Baron) certainly seem to indicate 365 began operations in July of 2019, though even those two accounts are insufficient to create a date certain for when operations began. The deposition testimony of the Plaintiffs is similarly conflicting, with Plaintiffs Stuart, Mike, and Marjorie all stating the operations began in Spring 2019.

 

The above discrepancies are important because 365 must show a definite date of accrual to negate Plaintiffs’ timely filing. The presentation of conflicting deposition testimony does not serve this purpose. From review of the evidence presented, the Court does not find 365 has satisfied their prima facie burden on summary adjudication.

 

Continuing Accrual Doctrine

 

Even assuming 365’s evidence definitely showed that the claims began to accrue on July 19, 2019, the claims would still be timely under the doctrine of continuous accrual.

 

“Under the continuous accrual doctrine each breach of a recurring obligation is independently actionable.” (Gilkyson v. Disney Enterprises, Inc. (2016) 244 Cal.App.4th 1336, 1342 citing Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185.) “The effect of the doctrine is that a suit for relief may be partially time-barred as to older events but timely as to those acts of wrongdoing occurring within the applicable limitations period.” (Id. internal quotation marks omitted].) “In this way, the doctrine represents an equitable response to the inequities that would arise if the expiration of the limitations period following a first breach of duty or instance of misconduct were treated as sufficient to bar suit for any subsequent breach or misconduct; absent the doctrine, parties engaged in long-standing misfeasance would thereby obtain immunity in perpetuity from suit even for recent and ongoing misfeasance.” (Id.)

 

Further, under the continuous accrual doctrine a plaintiff may allege a single cause of action covering the entire series of actionable wrongs. Nothing in the theory of continuous accrual requires every severable act to be pleaded as a distinct cause of action.” (Orange County Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 395 [internal quotation marks omitted].)

 

Here, the harms which Plaintiffs allege undisputedly extend beyond July 19, 2019. Plaintiffs’ Complaint makes clear that the harms allegedly caused by 365 are ongoing in nature and 365 has presented no evidence to the contrary in making this motion. As such, 365 cannot seek summary adjudication of these causes of action solely on grounds that some of the allegedly injurious conduct occurred outside the statute of limitations. This is doubly so where 365 has failed to conclusively establish the date on which the claims began to accrue.

 

365’s argues in reply that the continuous accrual doctrine does not apply because Plaintiffs have not sufficiently specified when the allegedly wrongful acts occurred. The Court finds this argument impermissibly seeks to place the burden on Plaintiffs and is unsupported by authority. 365 is seeking summary adjudication of these causes of action, not Plaintiffs. If 365 believed the pleadings were insufficient to identify the allegedly actionable wrongs, the forum for raising such issues was a demurrer or motion for judgment on the pleadings. As it stands, the Complaint alleges that Plaintiffs continue to suffer injury as a result of 365’s waste processing. 365 has failed to show that any of the injuries encompassed in the Complaint fall outside the statute of limitations. 

 

Accordingly, the motion for summary adjudication is DENIED as to Issues No. 1, 2, and 3. However, as to the Causes of Actions, our inquiry does not end with Issues 1, 2 and 3.

 

Issue No. 4 – Insufficient Evidence as to IIED of all Plaintiffs

 

The elements for a claim of IIED are “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)

 

Intentional or Reckless Disregard

 

In proving the first element of an IIED claim a plaintiff must show that defendant acted either intentionally or with reckless disregard. Here, Plaintiffs allege both. Plaintiffs, on information and belief, allege that 365 “intended to cause farm or acted with reckless disregard of the likelihood of causing distress to Plaintiffs.” (Compl. ¶ 72.) While Plaintiffs are permitted to plead alternative theories of liability, logic dictates that their facts must prove one or the other. Plaintiff must eventually prove that 365 either intentionally caused Plaintiffs’ severe emotional distress or they did so with reckless disregard. In the context of this motion, 365 bears the burden to demonstrate that Plaintiff cannot show extreme or outrageous conduct which was either intentional or done with reckless disregard.

 

Where a plaintiff claiming IIED proceeds on the theory of intentional action, they must show that defendant’s conduct was directed at the plaintiff, (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903 [emphasis added].) Here, the evidence presented by 365 in support of their motion clearly establishes that they were not directing their actions at Plaintiff. 365 has shown they were granted a certificate of occupancy by the Los Angeles Department of Building and Safety to operate a “Building Materials Salvage Yard”. (Wilking Decl. Exh. HH.) From all the evidence presented it is clear that 365 operates its facility for the purpose of conducting its scrapyard business. Nothing in the evidence before the Court suggest that 365 operates its facility for the purpose of directing fugitive dust at Plaintiffs. Plaintiffs have offered no evidence to support a triable issue of fact that 365 is acting intentionally to inflict emotional distress upon them.

 

Where a plaintiff claiming IIED proceeds on the theory of reckless disregard, they must demonstrate that defendant’s actions occurred in the presence of a plaintiff of whom the defendant is aware. (Id.) Additionally, the conduct must be of a nature that is especially calculated to cause mental distress of a very serious kind. (Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 130.) Here, the relevant question is whether 365’s conduct occurred in Plaintiffs presence and with knowledge that extreme emotional distress was the likely result.

 

In analyzing this factor, the Court finds the holding in Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965 to be instructive. Potter concerned a cause of action for IIED against the tire manufacturer Firestone. (Id. at 975.) The plaintiff claimed that Firestone knew chemicals it was dumping at a landfill were toxic and would expose nearby landowners to certain carcinogens. (Id.) Actual injury from any contamination was not at issue, only whether the plaintiff suffered IIED as the result of his fear that he would contract cancer from the dumping of carcinogenic material. (Id.) The trial court and Court of Appeal found that Firestone’s conduct was sufficiently extreme and outrageous to support a claim for IIED and granted/affirmed judgment. (Id. at 1001.)  However, the Supreme Court issued its decision in Christensen, which in turn prompted the Supreme Court to grant review in Potter. (Id.)

 

Applying the principles of Christensen, the Supreme Court found it was unable to say that there was sufficient evidence as to whether Firestone’s behavior was either directed at or conducted in the presence of the particular plaintiffs at issue. (Id. 1002.) Firestone could certainly foresee that the dumping of known toxic chemicals into a landfill surrounded by residences might contaminate the drinking water. At the same time, there was no evidence to suggest that Firestone had actual knowledge that their actions were substantially certain to inflict emotional injury on those particular plaintiffs. (Id. at 974, 1003.) Thus, the Supreme Court remanded the case for retrial on Firestone’s liability for IIED. (Id. at 1012.)

 

Here, 365 has sufficiently demonstrated that they did not act with reckless disregard to Plaintiffs in creating the fugitive dust. The evidence before the Court does not indicate that 365 was aware of Plaintiffs or committed any acts in reckless disregard of emotional injury in their presence. Plaintiff’s Special Interrogatory No. 2 served upon 365 asks them to “Describe all communications with any Plaintiffs from January 1, 2018, to the present.” (Wilking Decl. ¶ Exh. FF at p. 1800.) 365 responded:

 

Guillermo Jimenez of responding party exchanged text messages and was involved in several different verbal interactions with former plaintiff Mark Renyer on multiple occasions relating to the business operations at the Glenoaks location, among other disputes, many other interactions occurred between various employees and former employees and former plaintiff Mark Renyer. however, as it relates to the remaining plaintiffs, there were only a handful of in-person interactions with plaintiffs Stuart Nelson and Margorie Nelson regarding traffic issues, as well as at least one in-person interaction with plaintiff Mike Nelson regarding an incident involving a rock causing damage to responding party’s personal property. responding party cannot recall specific dates of those communications.

 

The above response indicates that 365 had only cursory knowledge of Stuart and Margorie Nelson, knowledge which did not appear related to any conduct which was substantially certain to cause them emotional distress. Blocking a lane of traffic or causing a rock to damage a neighboring property might be unpleasant acts, but they are not the kind which are especially calculated to cause extreme mental distress. The response also reveals a lack of communication between 365 and any of the Dakarmen Plaintiffs.

 

Plaintiffs argue in opposition that 365 was not only aware is was harming Plaintiffs emotionally, but that they acted to conceal their action. (Mot. p. 12.) Plaintiff’s briefing on this point completely omits any argument as to how 365 was aware they were emotionally harming Plaintiffs instead only argue that 365 denied South Coast Air Quality Management District (AQMD) access to inspect their facility. The Court sustained the objection to these documents as lacking foundation.  Likewise, denying access, even if true at other facilities is not sufficient evidence to support this element.  In addition, AQMD has a mechanism for obtaining access through an Inspection Warrant and law enforcement assistance.   This in fact was included as an exhibit, an Inspection Warrant which expressly included permission for law enforcement to aid AQMD inspectors with gaining entry and conducting an inspection.   As such, this argument is without evidentiary support. Even if these exhibits were admissible, they say nothing about whether 365’s conduct was directed at Plaintiffs or recklessly disregarded a substantial likelihood that severe emotional distress would befall them. Plaintiff is unable to articulate or point to any evidence in the record that 365 knew or was even reasonably aware that their actions would cause Plaintiffs severe emotional distress.

 

Extreme and Outrageous Conduct

 

Conduct is only “extreme and outrageous” when it is “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Davidson v. City of Westminster (1982) 32 Cal. 3d 197.) “Generally, conduct will be found to be actionable where the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” (KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028.) There is no bright line standard for judging when conduct is outrageous, rather the process, “…hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser's values, sensitivity threshold, and standards of civility.” (So v. Shin (2013) 212 Cal.App.4th 652, 671.)

 

 “Whether a defendant’s conduct can reasonably be found to be outrageous is a question of law that must initially be determined by the court; if reasonable persons may differ, it is for the jury to determine whether the conduct was, in fact, outrageous.  (Berkley v. Dowds (2007) 152, Cal. App. 4 518, 534. 51.) Nontheless, “the court may determine in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.)

 

In support of their motion, 365 attaches evidence of their compliance with local regulations governing waste disposal. 365 states that it employs “a certified Dust Control Supervisor to observe unloading events and to ensure loads are moistened with water both before and during unloading.” (Wilking Decl. Exh. FF, p. 1812.) 365’s further states that they wet the waste down to ensure dust emissions are “not continuing” and employ “Best Available Control Measures” (Id.) 365’s further states they have taken steps to comply with the South Coast Air Quality Management District’s “Notices to Comply”. 365 claims that these notices had nothing to do with airborne toxic substances or asbestos. (Wilking Decl. Exh. GG) Lastly, 365 states that the City of Los Angeles Department of Building and Safety Local Enforcement Agency has inspected the 365 Facility 10 times and found no violations relating to emissions of airborne fugitive dust, asbestos or toxic substances. (Wilking Decl. Exh. HH.)

 

The Court finds the above showings are sufficient to satisfy 365’s initial burden to demonstrate Plaintiffs’ claim of extreme and outrageous conduct is without merit. 365 has demonstrated various measures it takes in an effort to control the fugitive dust naturally produced by its operations, operations which are conducted pursuant to a permit issued to them to run a waste recycling business. As such, the burden shifts to Plaintiffs to demonstrate conduct of the kind which is outrageous or extreme. For reasons set forth below, the Court finds they have failed to do so.

 

In meeting its burden, Plaintiff relies primarily on a May 7, 2021 “Petition for an Order of Abatement” filed by AQMD as against 365. (Golde Decl. Exh. 28.) This petition concerns all three of 365 facilities, Tuxford, Sutter, and Glenoaks. As previously stated, the Court has sustained objection to those exhibits offered by Plaintiffs which reference the facilities as lacking foundation. As concerns the Glenoaks facility, the petition states that there were seven complaints received by AQMD from neighbors. (Id. at p. 168.) In connection with its investigations of the complaints as to Glenoaks, AQMD issued two violations for AQMD Rule 403(d)(4). (Id. at p. 169.) This rule appears to be that “track-out” cannot extend 25 feet or more in cumulative length from the point of origin from an active operation. (Id. at p. 179.)

 

Plaintiffs further state that the petition reveals that 365 has refused to allow AQMD to complete full inspections of their premises. A review of the petition reveals no specific statement that 365 has refused access to its Glenoaks facility. Neither of the Notices of Violation (NOV) addressed to the Glenoaks facility mention a refusal to inspect the premises. The only statement in the petition about a refusal does not differentiate between facilities. (Id. at p. 172, ¶ 23.) As discussed above, if inspection was denied, AQMD would have legal recourse to force such an inspection.  Nothing indicates that any such Inspection Warrant was unsuccessfully attempted.

 

Plaintiffs additionally state that 365 refused to comply with a warrant to inspect the Glenoaks premises. (See Opp. Separate Statement No. 4.21) While Plaintiff attaches the warrant, which appears to have been issued in connection with the aforementioned petition, Plaintiffs have offered no evidence that 365 failed to comply with that warrant. None of the NOV issued to 365 regarding the Glenoaks facility after the warrant was issued refer to a refusal to allow AQMD to inspect the premises. (See Golde Decl. Exh. 21, 24, 25.) These NOV reference that “track-out” continued to be an issue into 2022, but they do not show that 365 refused AQMD access. (Id.)

 

In essence, Plaintiffs evidence of “extreme and outrageous” behavior by 365 consists solely of their intermittent violation of an AQMD governing “track-out” from a waste recycling facility. In the Court’s view, these violations are not evidence of conduct which is so outrageous as that it cannot be tolerated in a civilized community. While the failure to adhere to AQMD guidelines may be unfavorable, it simply does not rise to the level of conduct contemplated in an action of IIED.

 

Extreme Emotional Distress

 

365 argues that the burden of proving extreme emotional distress is reversed from its usual posture, relying on Collin v. CalPortland Co. (2014) 228 Cal.App.4th 582. Collin held that where a moving party has produced evidence of properly produced discovery and that the plaintiff has provided insufficient responses, such insufficient responses can raise “an inference that the plaintiff cannot prove causation.” (Id. at 589 [emphasis added].) Such an inference is sufficient to shift the burden of proof to the plaintiff. (Id.)

 

Accordingly, 365 argues Plaintiffs’ deficient responses to their Special Interrogatories and Request for Production of Document, are grounds to shift the burden on motion for summary adjudication. Specifically, 365 argues that none of the individual Plaintiffs’ responses attest to “extreme emotional distress” and that they did not produce medical or counseling records in support of their claims for extreme emotional distress. (See Wilking Decl. Exhs. I-Z, AA -EE.) For reasons stated below, the Court finds this burden shifting is improper.

 

The discovery responses upon which 365 relies in making this argument are as follows:

 

• Plaintiff Stuart Nelson responded that he experiences emotional distress, insomnia, feelings of being overwhelmed, irritability, stress and anxiety. (Wilking Decl. Exh. I.)

 

• Plaintiff Marjorie Nelson responded that she experiences emotional distress, insomnia, feelings of being overwhelmed, irritability, stress and anxiety. (Wilking Decl. Exhs. K, L.) The only production in corroboration was a receipt for the purchase of vitamins. (Id., Exh. M.)

 

• Plaintiff Michael Nelson responded that he experiences emotional distress, insomnia, feelings of being overwhelmed, irritability, stress and anxiety. (Wilking Decl. Exhs. N, O.)

 

• Plaintiff Sara Dakarmen responded that she experiences loss of appetite, unexplained rapid weight loss, headaches, body aches, muscle tension and soreness, irregular menstrual cycle, and teeth grinding as well as exacerbation of preexisting emotional distress, insomnia, feelings of being overwhelmed, irritability, depression, stress and anxiety. (Wilking Decl. Exh. R.)

 

• Plaintiff Tara Dakarmen responded that she experiences emotional distress, and stress from seeing her mother under emotional distress. (Wilking Decl. Exhs. T, U.)

 

• Plaintiff Tate Dakarmen responded that she experienced emotional distress, and stress from seeing her mother under emotional distress. (Wilking Decl. Exhs. W, X.)

 

• Plaintiff Shayla Dakarmen responded that she experienced emotional distress, and stress from seeing her mother under emotional distress. (Wilking Decl. Exhs. Z, AA.)

 

• Plaintiff Skyla Dakarmen responded that she experienced emotional distress, and stress from seeing her mother under emotional distress. (Wilking Decl. Exhs. CC, DD.)

 

Having reviewed these responses, the Court finds they are indeed insufficient for purposes of demonstrating extreme emotional distress for reasons set forth below.

 

With respect to the element of severe emotional distress, the bar is set high. A plaintiff cannot recover on a cause of action for IIED unless they show their emotional suffering to be “severe”. (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 396.) “Severe emotional distress means emotional distress of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.)  [citation and internal quotation marks omitted].) To recover damages for emotional distress on a claim of negligence where there is no accompanying personal, physical injury, the plaintiff must show that the emotional distress was serious, which may be found were a reasonable person would be unable to adequately cope with the mental stress engendered by the circumstances of the case. (Belen v. Ryan Seacrest Productions, LLC (2021) 65 Cal.App.5th 1145, 1166.)

 

In Hughes v. Pair, the California Supreme Court upheld summary judgment on a cause of action for IIED where plaintiff had claimed, “…discomfort, worry, anxiety, upset stomach, concern, and agitation.” (Hughes, supra, 46 Cal.4^th at 1051.) The Hughes court found these generalized statements did not comprise emotional distress of a substantial or enduring quality. (Id.) In Wong v. Jing (2010) 189 Cal.App.4th 1354, the California Court of Appeal found similarly general statements of “lost sleep, stomach upset, and generalized anxiety” to be insufficient to avoid summary judgment on IIED. (Wong supra, 189 Cal.App.4th at 1377.)

 

Hughes and Wong make clear that something more than a generalized statement of emotional disturbance is required to support a claim for IIED. Plaintiffs have offered insufficient evidence showing the extent of the emotional harm.  Having offered nothing more than such general statements in response to discovery, the burden properly shifts to Plaintiffs to demonstrate they can produce evidence of extreme emotional distress.

 

In opposition, Plaintiffs offer the following evidence:

 

·         Tara Dakarmen’s deposition testimony wherein she stated that she, “…experienced unusually high anxiety due to concerns for her mom, siblings and herself… [and] experienced several panic attacks.” (Golde Decl. Exh. 12.)

 

·         The declaration of Tate Dakarmen wherein he states Sara Dakarmen’s demeanor changed and the changes in her behavior were “very apparent”. (Golde Decl. Exh. 32.) Tate Dakarmen also states that Sara and his family do not go to the doctor unless necessary and thus treat their symptoms holistically. (Id.)

 

·         Plaintiffs produced medical records for Sara Dakarmen on January 17, 2025. (Golde Decl. ¶ 40.) These records are not attached to Plaintiffs evidence or declarations.

 

The Court finds the above showings are insufficient to demonstrate that Plaintiffs can produce evidence of extreme emotional distress. How often did these symptoms occur?   What was the severity of the symptoms?   How did these symptoms affect any particular plaintiff?  Outside of Tara, Tate, and Sara Dakarmen, Plaintiffs have produced no evidence further than their generalized discovery responses. As concerns the deposition of Tara, the Court finds her statements are insufficient to establish emotional distress which is intolerable by the ordinary person. This same statement applies to the Tate declaration. Further, if Plaintiffs may have produced medical records for Sara which demonstrate extreme emotional distress, their failure to attach them here is troublesome. While medical records are not mandated to defend against this motion, the inclusion of such medical records may have shown the extent of the emotional distress such that Plaintiffs would have met their burden.  When the content of the records remain a mystery, a statement that medical records exist is not sufficient to satisfy Plaintiffs’ burden to show that relevant evidence of extreme emotional distress can be produced.

 

Conclusion

 

The Court finds the 365 has sufficiently negated the elements of intentional conduct/reckless disregard, extreme and outrageous conduct, and extreme emotional distress. Plaintiffs have not shown there to be a triable issue of fact as to these elements. As such, the Motion for Summary Adjudication is GRANTED as to Issue No. 4.  

 

Fifth Issue – Punitive Damages

 

"[A] claim for punitive damages is one of the substantive areas which is properly the subject of a motion for summary adjudication".  (Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 92)

Punitive damages may be recovered under C.C.P. § 3294, “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.”  “Although the clear and convincing evidentiary standard is a stringent one, it does not impose on a plaintiff the obligation to prove a case for punitive damages at summary judgment or summary adjudication. Even so, where the plaintiff’s ultimate burden of proof will be by clear and convincing evidence, the higher standard of proof must be taken into account in ruling on a motion for summary judgment or summary adjudication, since if a plaintiff is to prevail on a claim for punitive damages, it will be necessary that the evidence presented meet the higher evidentiary standard.” (Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1158-1159 [citation and internal quotation marks omitted].)

 

Plaintiffs allegations as to oppression, fraud, or malice mirror their allegations of “extreme and outrageous behavior”. As the Courts previously stated, 365 has sufficiently demonstrated that they take active measures to prevent the creation of fugitive dust in their operation of the Glenoaks. That some fugitive dust may still be created is not, in and of itself, evidence of malicious conduct sufficient to support punitive damages. Plaintiffs only argument as to malicious conduct is 365’s alleged refusal to allow AQMD inspection, an argument unsupported by evidence as to the Glenoaks facility. It follows that if Plaintiffs evidence is insufficient to demonstrate a triable issue of fact as to “extreme and outrageous conduct”, that same evidence cannot create a triable issue of fact as to malicious conduct warranting punitive damages. 

 

Accordingly, the motion for summary adjudication is GRANTED as to Issue No. 5.

 

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RULING:

 

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

 

ORDER 

 

365 Disposal and Recycling, Inc.’s Motion for Summary Adjudication came on regularly for hearing on March 13, 2025, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

 

THE MOTION FOR SUMMARY ADJUDICATION IS GRANTED AS TO PLAINTIFFS’ FIRST AND SECOND CAUSES OF ACTION - NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. 

 

THE MOTION FOR SUMMARY ADJUDICATION IS GRANTED AS TO PUNITIVE DAMAGES.

 

DEFENDANT 365 TO GIVE NOTICE.

 

IT IS SO ORDERED. 

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DEPARTMENT A LAW AND MOTION RULINGS

REQUESTING ORAL ARGUMENT PER CRC 3.1308

The Court will attempt to post all Tentative Rulings at least the day prior to the hearing by 3:00 p.m.; however, the Court does not post Tentative Rulings for all matters.  

The Court will indicate in the Tentative Ruling whether the Court is requesting oral argument.  For cases where the Court is not requesting argument, then the Court is guided by California Rules of Court, Rule 3.1308(a)(1) where the Court requests notice of intent to appear.  Unless the Court directs argument in the Tentative Ruling, a party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.   

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

Notice of the ruling must be served as indicated in the tentative.  Remote appearances are permitted for all law and motion unless otherwise indicated by the Court.  

 

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Case Number: 23BBCV00259    Hearing Date: March 12, 2025    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

 

MOTION FOR JUDGMENT ON THE PLEADINGS

 

MP:	California Automobile Insurance Company (Plaintiff)
RP:	Karim Araujo (Defendant) [No Response Rendered]

 

NOTICE:

 

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is required and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

 

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

 

ALLEGATIONS: 

 

California Automobile Insurance Company (Plaintiff) brings this action against Karim Araujo (Defendant). Plaintiff alleges that Defendant, an unlicensed electrician, was hired by Plaintiff’s Insured to install a new bathroom fan in the Insured’s apartment. Defendant allegedly cut into the emergency sprinkler lines, causing significant flooding and damage to the Insured’s apartment. Plaintiff seeks to be reimbursed for insurance payments made to rectify Defendant’s alleged negligence.  

 

On October 4, 2024, the Court granted Plaintiff’s motion to deem matters in their Request for Admissions (RFA) admitted. Defendant, in pro per, did not oppose this motion.

 

Before the Court is a motion by Plaintiff for judgment on the pleadings. Defendant has rendered no opposition to this motion. The Court notes that, pursuant to C.R.C. Rule 8.54(c), a failure to oppose a motion may be deemed consent to its being granted. 

  

ANALYSIS: 

 

I.                LEGAL STANDARD 

 

When the moving party is the plaintiff, there is only one ground for a motion for judgment on the pleadings: "the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint." (C.C.P. 438(c)(1)(A).) The grounds for the motion shall appear on the face of the challenged pleading or from any matter of which the Court is required to take judicial notice (C.C.P. § 438(d).)

 

"[A]ny matter admitted in response to a request for admission is conclusively established against the party making the admission in the pending action, unless the court has permitted withdrawal or amendment of that admission." (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 978 979 [italics omitted].)"[A]dmissions or concessions of matters which cannot be reasonably be controverted are properly considered on a motion for judgment on the pleadings." (Evans v. California Trailer Court, Inc. (1994) 28 Cal. App. 4th 540, 549 [citation omitted].) “The court will take judicial notice of records such as admissions, answers to interrogatories, affidavits, and the like, when considering a demurrer, only where they contain statements of the plaintiff or his agent which are inconsistent with the allegations of the pleading before the court.” (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal. App. 3d 604-05)

 

II.              MERITS

 

Request for Judicial Notice

 

Plaintiff requests the Court take judicial notice of the following:

 

1.     Defendant’s Answer to the Complaint (attached as Exh. 1.)

 

2.     Motion to Deem Admissions (Attached as Exh. 2.)

 

3.     The Court’s order granting Plaintiff’s Motion to Deem RFA Matters Admitted (attached as Exh. 3.)

 

Plaintiff’s request is GRANTED. Defendant’s Answer and Plaintiff’s motion are all records of the Court within the meaning of Evidence Code § 452, and thus subject to judicial notice.

 

Discussion

 

Plaintiff moves for judgment to be entered on grounds that the above judicially noticed documents establish Plaintiff is entitled to the relief sought in the Complaint. For reasons stated below, the Court agrees.

 

Plaintiff’s sole cause of action is for Subrogation. To state a cause of action for Subrogation, an insurer must allege that (1) payment was made by the subrogee to protect his own interest, (2) the subrogee did not act as a volunteer, (3) the debt is not one for which the subrogee was primarily liable, (4) the entire debt was paid, and (5) subrogation does not work any injustice to the rights of others. (American Contractors Indemnity Co. v. Saladino (2004) 115 Cal.App.4th 1262, 1268 [quotation marks and citations omitted].)

 

Here, the Court finds the matters deemed admitted conclusively establish that Plaintiff is entitled to relief on its cause of action for Subrogation. By virtue of Defendant’s failure to respond, the following items were deemed admitted:

 

·       Defendant was hired to install a bathroom fan at the Subject Property. (RFA No. 3.)

·       Defendant cut into the emergency fire sprinkler system. (RAF No. 2.)

·       Defendant caused the flooding at the Subject Property (RFA No. 1.)

·       Defendant caused Insured to incur damages of at least $ 107,866.17. (RFA No. 6.)

·       Plaintiff as the insurer, has been damaged in the amount of at least $ 107,866.17. (RFA No. 7.)

 

Absent the filing of a motion to withdraw admissions pursuant to C.C.P. § 2033.300(a), Defendant’s admissions here cannot reasonably be controverted. Defendant’s admissions stand at odds with the general denial as stated in his Answer. Given these admissions, the Court sees no way in which Plaintiffs could amend their pleading to cure this defect. Accordingly, the motion for judgment on the pleadings is GRANTED without leave to amend.

 

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RULING:

 

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

 

ORDER 

 

California Automobile Insurance Company’s Motion for Judgment on the Pleadings came on regularly for hearing on March 12, 2025, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

 

THE MOTION FOR JUDGMENT ON THE PLEADINGS IS GRANTED.

 

PLAINTIFF TO FILE A JUDGMENT CONSISTENT WITH THIS RULING.  OSC RE JUDGMENT (NON-APPEARANCE) IS SET FOR APRIL 22, 2025.

 

PLAINTIFF TO GIVE NOTICE.  

 

IT IS SO ORDERED. 

 

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