SUMMONS + COMPLAINT August 29, 2024 (2024)

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Ruling

ALFRED HUTCHINGS, ET AL. VS CITY OF LOS ANGELES, ET AL.

Case Number: 21STCV37250 Hearing Date: August 26, 2024 Dept: 29 Hutchings v. City of Los Angeles 21STCV37250 Motion to Continue Trial filed by Defendant Flexi-Van Leasing, LLC Tentative The motion is granted. Background On October 8, 2021, Alfred Hutchings and Jennifer Hutchings (collectively Plaintiffs) filed a complaint against City of Los Angeles (City), Flexi-Van Leasing (Flexi-Van), and Pape Material Handling, Inc. (Pape) for Dangerous Condition of Public Property under Government Code section 835, Negligence, and Loss of Consortium arising from a forklift accident on February 10, 2021. On December 21, 2021, Plaintiffs filed the First Amended Complaint (FAC) for Dangerous Condition of Public Property under Government Code section 835, Negligence, and Loss of Consortium against City, Flexi-Van, and Pape. On March 8, 2022, City filed an answer to the FAC. On March 25, 2022, Flexi-Van filed an answer to the FAC. On June 24, 2022, Pape filed an answer to the FAC and filed a cross-complaint against City and Flexi-Van. City and Flexi-Van filed answers to the cross-complaint on July 22, 2022. On March 8, 2024, a notice of settlement between Plaintiffs and Pape was filed. Pape was dismissed from the complaint on May 2, 2024, and Papes cross-complaint was dismissed on May 15, 2024. On July 12, 2024, Flexi-Van filed a motion for summary judgment set to be heard on May 23, 2025. Trial is currently set for October 28, 2024. On August 1, 2024, Flexi-Van filed this joint motion to continue trial. No opposition has been filed. Legal Standard Code of Civil Procedure section 128, subdivision (a)(8), provides that the court has the power to amend and control its process and orders so as to make them conform to law and justice. The power to determine when a continuance should be granted is within the discretion of the trial court. (Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1603.) A trial court has wide latitude in the matter of calendar control including the granting or denying of continuances. (Park Motors, Inc. v. Cozens (1975) 49 Cal.App.3d 12, 18.) To ensure the prompt disposition of civil cases, the dates assigned for trial are firm. All parties and their counsel must regard the date set for trial as certain. (Cal. Rules of Court, rule 3.1332(a).) Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. (Cal. Rules of Court, rule 3.1332(c).) The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. (Ibid.) Circ*mstances that may support a finding of good cause include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circ*mstances; (2) The unavailability of a party because of death, illness, or other excusable circ*mstances; (3) The unavailability of trial counsel because of death, illness, or other excusable circ*mstances; (4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; (5) The addition of a new party if: (A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or (B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case; (6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. (Cal. Rules of Court, rule 3.1332(c).) In ruling on a motion or application for continuance, the court must consider all the facts and circ*mstances that are relevant to the determination. (Cal. Rules of Court, rule 3.1332(d).) California Rules of Court, rule 3.1332(d) sets forth a non-exhaustive list of factors that the court may consider: (1) The proximity of the trial date; (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; (3) The length of the continuance requested; (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) The prejudice that parties or witnesses will suffer as a result of the continuance; (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) The court's calendar and the impact of granting a continuance on other pending trials; (8) Whether trial counsel is engaged in another trial; (9) Whether all parties have stipulated to a continuance; (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) Any other fact or circ*mstance relevant to the fair determination of the motion or application. (Cal. Rules of Court, rule 3.1332(d).) A trial court may not refuse to hear a summary judgment motion filed within the time limits of section 437c. (Sentry Ins. Co. v. Superior Court (1989) 207 Cal.App.3d 526, 529; accord Cole v. Superior Court (2022) 87 Cal.App.5th 84, 88.) Discussion Flexi-Van requests a trial continuance on a variety of grounds, including (1) to allow for further mediation between Plaintiffs and City and Flexi-Van, (2) to avoid a conflict that defense counsel has with a trial date in another matter in Ventura County Superior Court; and (3) so that Flexi-Vans motion for summary judgment, set to be heard on May 23, 2025, can be heard before trial. (Eilert Decl., ¶¶ 4, 7, & 8.) Trial is currently set for October 28, 2024. (Id., ¶ 8.) Flexi-Vans motion for summary judgment was timely filed, and thus, Flexi-Van has the right for the motion to be heard before trial. Plaintiffs do not oppose the continuance. The request to continue trial is GRANTED for good cause shown. Conclusion The Court GRANTS the motion to continue trial. The Court CONTINUES the trial to a date on or after June 30, 2025. The Final Status Conference and all discovery deadlines are reset based on the new trial date. Moving Party is ORDERED to give notice.

Ruling

RUTH ZAPETA VARGAS VS ROBERT YOUNG

Aug 29, 2024 |21STCV42622

Case Number: 21STCV42622 Hearing Date: August 29, 2024 Dept: B SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT RUTH ZAPETA VARGAS, Plaintiff, vs. ROBERT YOUNG, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO: 21STCV42622 [TENTATIVE] ORDER RE: MOTION FOR SUMMARY ADJUDICATION Dept. B 8:30 a.m. August 29, 2024 I. BACKGROUND On November 18, 2021, Plaintiff Ruth Zapeda Vargas (Plaintiff) filed a complaint against Defendant Robert Young, and later amended the complaint to also name Barbara Young as a defendant (Defendants). On April 16, 2022, Plaintiff filed the operative second amended complaint (SAC), alleging causes of action for (1) strict liability based on violation of Civil Code section 3342(a), negligence, and intentional infliction of emotional distress. The SAC alleges that Plaintiff was delivering a package to Defendants residence, when suddenly and without warning, Defendant intentionally opened the front door of the home and allowed a full-sized German Shepherd to come storming out, unsupervised, barking and snarling loudly while charging toward Plaintiff. The dog lunged toward Plaintiff and bit her leg. On February 13, 2024, Defendants filed an answer. On February 15, 2024, Defendants filed this motion for summary adjudication. On August 14, 2024, Plaintiff filed an opposition. On August 16, 2024, Defendants filed a reply. II. LEGAL STANDARD The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437c(c) requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.) On a motion for summary judgment, the initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c(p)(2).) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) If the plaintiff cannot do so, summary judgment should be granted. (Avivi¿v. Centro Medico¿Urgente¿Medical Center¿(2008) 159 Cal. App. 4th 463, 467.) When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.¿(Avivi, 159 Cal. App. 4th at 467; CCP §437c(c).)¿ A party may move for summary adjudication as to one or more causes of action within an action. (Code of Civ. Proc. 437c(f)(1).) A motion for summary adjudication proceeds in all procedural aspects as a motion for summary judgment. (Ibid.) III. DISCUSSION Defendants move for summary adjudication of the cause of action for Intentional Infliction of Emotional Distress (IIED), and the claim for punitive damages, arguing that Defendants had no knowledge of the dog dangerous propensities, and therefore, their conduct was not extreme or outrageous, and they did not act with malice. i. IIED The elements of the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant; (2) the intention of causing, or reckless disregard of the probability of causing, emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903, internal quotations omitted.) For conduct to be outrageous it must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. (See Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 130.) Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.) Severe emotional distress means . . . emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it. (Fletcher v. Western Nat. Life Ins. Co. (1970) 10 Cal.App.3d 376.) Here, the complaint alleges that Defendant intentionally let the dog out. In her deposition, Plaintiff states that after delivering the package to Defendants house, as she was walking back, she heard the door open and a lady opened the door, she saw the dog push her out of the way and came straight for her in full force. (UMF 5; Plaintiff Depo., pgs. 60-61.) Defendant argues this evidences that Defendant did not intentionally allow the dog, Nicholas, out of the door, but he pushed her and forced his way out. Defendants also present evidence that they had no knowledge of Nicholas dangerous propensities and his aggressiveness; he never bit anyone, charged at anyone, or showed signs of aggression, even to his dog trainer. (UMF 13, 14, 15, 16, 18, and 21.) Defendant Barbara Young had no reason to anticipate that upon opening the door Nicholas would push her aside and charge towards Plaintiff to bite her. (UMF 15, 16, 18, 19, 20, 21, 22, and 25.) Prior to this incident, Nicholas never ran out when Defendants open door. (UMF 12.) Plaintiff also stated in deposition that when the dog ran out of the door, Defendant Barbara ran after the dog, grabbed him by the collar, and tried to pull the dog back, but couldnt do so because the dog was stronger. Finally, in order to protect Plaintiff, Defendant Barbara Young threw herself on the dog and wrapped her arms around him. (UMF 7.) Defendant Barbara Young was successful in getting the dog back in the house. (UMF 8.) The court finds that Defendants have presented evidence sufficient to meet their burden on summary adjudication to show there are no triable issues of material fact as to whether their conduct was extreme or outrageous, as they did not intentionally allow the dog to run outside, but rather, he forced his way out, and they had no knowledge of his dangerous propensities. The burden shifts to Plaintiff to present triable issues of material fact. In opposition, Plaintiff presents evidence that the dog had a propensity to stay by the door and bark at anyone who approached the door, including friends, relatives, delivery persons and mailmenit was protective of the home. (PSS 10.) As Plaintiff walked up the driveway towards Defendants front door, Plaintiff heard loud barking coming from inside of the home. (PSS 3.) Defendants testified that in the past, the dog would run outside the house when the front door opened. (PSS 12.) Defendant Barbara Young intentionally opened the door, while the dog was standing beside her, barking, knowing that someone was on the property. (PSS 13.) Plaintiff also provides evidence that in response to Request for Admission no. 26, which asks Admit your dog never received any obedience training prior to the incident in question[,] Defendant responded Admit. (PSS 20.) Defendant Robert Young attempted to amend his response to RFA no. 26, but never sought leave of Court before amending. (Sepanosian Decl., ¶ 9.) Simply because the dog had a tendency to bark at people, barked at Plaintiff on the date of the incident, had run outside in the past, and Defendant opened the door while the dog was barking does not mean that Defendants knew of the dogs dangerous propensities sufficient to support a cause of action for IIED. The fact that the dog did not receive any training is not enough either. While these actions could give rise for liability for negligence, they do not give rise for a claim for IIED. [I]t is not enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.) Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. (Id.) The determination of outrageousness is generally an issue of fact to be determined by the trier of fact, however, 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.) All dogs bark, but it does not mean that they will bite or that it is evidence of aggressiveness. (Yuzon v. Collins (2004) 116 Cal.App.4th 149, 166 (holding that a dog barking, jumping against a fence, and running out and scaring neighbors are normal dog behaviors, and are not so alarming as to be charged with knowledge of the dogs vicious propensities.) As such, the court finds that no evidence has been presented to show there are triable issues of material facts as to whether Defendants conduct was extreme and outrageous. Defendants are entitled to summary adjudication as to the cause of action for IIED. ii. Claim for Punitive Damages Defendants also move for summary adjudication of the punitive damages claim, arguing it has no merit because Plaintiff cannot meet her burden of proof to establish Defendants acted with malice. Civil Code § 3294 provides, in pertinent part, as follows: (a)¿In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. *** (c)¿As used in this section, the following definitions shall apply: (1)¿Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (2)¿Oppression means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that persons rights. (3)¿Fraud means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. The term despicable has been defined in the case law as actions that are base, vile, or contemptible. (See, e.g., Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal. App. 4th 847, 891.) To prove that a defendant acted with willful and conscious disregard of the rights or safety of others, it is not enough to prove negligence, gross negligence or even recklessness. (Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, 87.) While 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. (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1053.) However, 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. (Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 11181120, 105 Cal.Rptr.2d 153.) Further, summary judgment on the issue of punitive damages is proper only when no reasonable jury could find the plaintiffs evidence to be clear and convincing proof of malice, fraud or oppression. (Id.) Based on the same evidence presented above, Defendants argue they did not intend to cause injury, and because they had no knowledge of the dogs dangerous propensities, they did not consciously disregard the risk of harm. Defendants have met their burden on summary adjudication to show that there are no triable issues of material fact as to whether they acted with malice, because the evidence presented shows that they did not know of the dogs dangerous propensities; thus, there was no despicable conduct on their part with a conscious disregard of the risks of harm, and they did not intend to injure Plaintiff. Thus, the burden shifts to Plaintiff to present triable issues of fact. Plaintiff presents the same evidence as above, and thus, fails to meet her burden to present triable issues of fact. While Plaintiffs evidence of Defendants actions could give rise for liability for negligence, they do not give rise for a claim for punitive damages. To prove that a defendant acted with willful and conscious disregard of the rights or safety of others, it is not enough to prove negligence, gross negligence or even recklessness. (Dawes v. Superior Court (1980) 111 Cal. App. 3d 82, 87.) Defendants are also entitled to summary adjudication as to the claim for punitive damages. IV. CONCLUSION Accordingly, Defendants motion for summary adjudication is GRANTED. Defendants are ORDERED to give notice.

Ruling

Vincelli vs. Hartnell Self Storage, LLC

Aug 29, 2024 |23CV-0201409

VINCELLI VS. HARTNELL SELF STORAGE, LLCCase Number: 23CV-0201409Tentative Ruling on Order to Show Cause Re: Sanctions: An Order to Show Cause Re: Monetary Sanctionsissued on July 18, 2024 to Plaintiff Larry Dean Vincelli, in pro per, for failure to appear at the MandatorySettlement Conference on July 15, 2024, failure to timely file a Settlement Conference Statement, and failure totimely prosecute. Plaintiff filed a written response on August 16, 2024 that provides sufficient excuse for thenonappearance. The Order to Show Cause is DISCHARGED. No appearance is necessary on today’scalendar.****************************************************************************************** 9:00 a.m. – Review Hearings******************************************************************************************

Ruling

CECILIA FLORES VS CITY OF HAWTHORNE

Aug 27, 2024 |22TRCV01394

Case Number: 22TRCV01394 Hearing Date: August 27, 2024 Dept: P Motion for Summary Judgment The court considered the moving, opposition and reply papers. RULING Defendants Motion for Summary Judgment is GRANTED. BACKGROUND On December 5, 2022, Plaintiff Cecilia Flores filed a complaint against Defendant City of Hawthorne, alleging a cause of action for dangerous condition of public property (Government Code section 835). The complaint alleges that on June 26, 2022, at the southeast corner of the intersection of El Segundo Boulevard and Manor Driver in the City of Hawthorne, Plaintiff tripped on a cracked, raised, damaged or uneven roadway, which was a dangerous condition. On May 29, 2024, Defendant filed this motion for summary judgment. On August 9, 2024, Plaintiff filed an opposition. On August 22, 2024, Defendant filed a reply. EVIDENTIARY OBJECTIONS Plaintiffs Objections to Defendants Evidence · The following objections are OVERRULED: 2, 4 · The following objections are SUSTAINED: 1, lacks foundation; 3, legal conclusion. LEGAL AUTHORITY The purpose of a motion for summary judgment or summary adjudication is to provide courts with a mechanism to cut through the parties pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) On a motion for summary judgment, the initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c(p)(2).) Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Id.) If the plaintiff cannot do so, summary judgment should be granted. (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment. (Avivi, 159 Cal.App.4th at 467; Code Civ. Proc., §437c(c).) DISCUSSION Defendant moves for summary judgment on the grounds that: (1) the T-shaped depression Plaintiff alleges she fell on is trivial as a matter of law, and therefore not a dangerous condition; (2) the T-shaped depression is an open and obvious condition and thus, there is no duty to warn or remedy the condition; (3) Defendant had no actual or constructive notice of the alleged dangerous condition; and (4) Plaintiff failed to substantially comply with the claim presentation requirements under the Government Claims Act because the location and condition of the dangerous condition have changed after filing the lawsuit. 1. Is the Alleged Dangerous of Property Condition a Trivial Defect? Government Code section 835 states: Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either: (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. The term dangerous condition means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used. (Gov. Code § 830(a).) A condition is not dangerous within the meaning of the statute unless it creates a hazard to those who foreseeably will use the property . . . with due care. Thus, even though it is foreseeable that persons may use public property without due care, a public entity may not be held liable for failing to take precautions to protect such persons. (Matthews v. City of Cerritos (1992) 2 Cal.App.4th 1380, 1384.) The condition of the property involved should create a substantial risk of injury, for an undue burden would be placed upon public entities if they were responsible for the repair of all conditions creating any possibility of injury however remote that possibility might be. (Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 130, fn.5.) The concept that a condition must be dangerous to be actionable is codified in Government Code section 830.2 as the trivial defect doctrine. Under that section, a condition is not a dangerous condition&if the&court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circ*mstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used. (Government Code section 830.2.) The trivial defect doctrine originated to shield public entities from liability where conditions on public property create a risk of such a minor, trivial or insignificant nature in view of the surrounding circ*mstances . . . no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used. (Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1104 (quoting Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 27).) The trivial defect doctrine is not an affirmative defense. (Id.) It is an aspect of duty that a plaintiff must plead and prove. (Id.) In appropriate cases, the trial court may determine . . . whether a given walkway defect was trivial as a matter of law. (Id.) Where reasonable minds can reach only one conclusionthat there was no substantial risk of injurythe issue is a question of law, properly resolved by way of summary judgment. (Id. at 1104-05 (quoting Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 929).) If, however, the court determines that sufficient evidence has been presented so that reasonable minds may differ as to whether the defect presents a substantial risk of injury, the court may not conclude that the defect is trivial as a matter of law. (Id. at 1105.) In determining whether a given walkway defect is trivial as a matter of law, the court should not rely solely upon the size of the defectin this case, on the depth or height of the walkway depression or elevationalthough the defects size may be one of the most relevant factors to the courts decision. (Id. (quoting Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 734) (emphasis in original).) The court should consider other circ*mstances which might have rendered the defect a dangerous condition at the time of the accident. (Id.) These other circ*mstances or factors include whether there were any broken pieces or jagged edges in the area of the defect, whether any dirt, debris or other material obscured a pedestrians view of the defect, the plaintiffs knowledge of the area, whether the accident occurred at night or in an unlighted area, the weather at the time of the accident, and whether the defect has caused any other accidents. (Id.) In sum, [a] court should decide whether a defect may be dangerous only after considering all of the circ*mstances surrounding the accident that might make the defect more dangerous than its size alone would suggest. (Id. (quoting Caloroso, supra, 122 Cal.App.4th at 927) (alteration in original).) In making that determination, the court must undertake two essential steps: First, the court reviews evidence regarding type and size of the defect. If that preliminary analysis reveals a trivial defect, the court considers evidence of any additional factors [bearing on whether the defect presented a substantial risk of injury]. If these additional factors do not indicate the defect was sufficiently dangerous to a reasonably careful person, the court should deem the defect trivial as a matter of law. (Id.) Here, there is no dispute as to the defect in the roadway which Plaintiff asserts was unreasonably dangerous. It is depicted in the exhibits of both parties as a depression in the asphalt pavement of Manor Drive approximately ten feet from the west curbline of Manor drive and almost immediately adjacent to El Segundo Boulevard. (UMF 15.) The depression is roughly shaped like a T and is approximately 103 inches in length and varies between 20 and 30 1⁄2 inches wide. (Blanchette Dec. ¶ 7; Solomon Dec. ¶ 6.) The parties also agree that the maximum depth of the depression is approximately 1 3/8 inch. (UMF 15; PUMF 3.) Plaintiffs exhibits suggest that there is not a sharp drop off between the surrounding pavement and the defect; rather, the exhibits suggest that the depression is shallower at the edges than at the center. (Decl. Meissner, Exh. 6.) All of the photographs suggest that the depression is a different color from the surrounding pavement, a fact noticeable even from the satellite data used by Google Maps. (Decl. Meissner, Exh. 4.) Taken together, the court finds that, as to the first step in the analysis, that the defect is trivial as a matter of law. In reaching this conclusion, the court notes that a depression is different in kind from a lifted section of concrete. The evidence shows that depression is scalloped rather than sharp and human experience suggests that a depression is less of a tripping hazard than a raised piece of concrete. To be sure, the height differential posed some risk of injury&[b]ut to constitute a dangerous condition, the height differential, and the area surrounding it, must have posed a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when used with due care in a manner in which it is reasonably foreseeable that it will be used. (Huckey, supra, 37 Cal. App. 5th at 110910.) The next step in the courts analysis is to determine whether there are any other conditions which, even though the defect is trivial, would make the defect dangerous. [A]dditional factors courts typically consider in assessing a sidewalk condition's triviality as a matter of law are: the nature and quality of the defect (including whether it has jagged breaks or cracks); whether anything was obstructing or concealing the defect (for instance, an object, debris, or other substance); the lighting and weather conditions at the time of the incident; whether the defect has caused other accidents; and plaintiff's familiarity with the area. (Stack v. City of Lemoore (2023) 91 Cal. App. 5th 102, 115.) In support of the motion, Defendant presented evidence that Plaintiff would cross the same crosswalk at the subject intersection 4 to 5 times a week. (UMF 11.) (But see Stack, supra, 91 Cal. App. 5th at 119-120 (familiarity with the dangerous condition does not make it less dangerous.) In opposition, Plaintiff argues that the condition was not open and obvious. Plaintiffs expert opines that although T-shaped trench has an offset of 1 3/8 inches, it is not readily apparent to pedestrians that the T-shaped trench is depressed at all, let alone by almost an inch and a half, which (AMF No. 18, Solomon Decl., 9; Exh. 3.) The depth of the T shaped trench is made inconspicuous to pedestrians because of its similar shade of asphalt to the surrounding crosswalk. (Id.) Moreover, Plaintiff presents evidence that the City employees who went out to inspect the area after having been alerted of this incident by a proper government claim having been filed, testified that not even he initially noticed that the T-shaped trench was lower than the surrounding asphalt. (AMF No., 18, Krause Depo., 22: 19-21.) After reviewing the photographs and evidence submitted, the Court finds that, insofar as the distinction in color of the depression did not make the trivial defect any more dangerous, the condition was open and obvious. As to the other assertions made by Plaintiff, regarding sunlight and shadows as well as the oil, dirt and other debris on the ground there is no evidence of such factors. (Solomon Dec. ¶ 9.) Indeed, each of the photographs submitted by both sides show a depression in the middle of the roadway which is differently colored from the surrounding pavement and unobstructed in any way. Therefore, the court finds that there are no additional factors which increased the dangerousness of the asphalt defect. Based on the foregoing, Defendants motion for summary judgment is GRANTED. As the court finds that the defect in the pavement is trivial as a matter of law and that issue is dispositive for the Motion for Summary Judgment, the court declines to address the other issues raised by defendant. Plaintiff is ordered to give notice of ruling.

Ruling

ALAL, LLC VS JIM REY, ET AL.

Aug 29, 2024 |23CHCV02773

Case Number: 23CHCV02773 Hearing Date: August 29, 2024 Dept: F47 Dept. F47 Date: 8/29/24 Case #23CHCV02773 MOTION TO COMPEL FURTHER RESPONSES (Form Interrogatory 216.1, Set 1) Motion filed on 2/16/24. MOVING PARTY: Plaintiff/Cross-Defendant Alal, LLC dba Kei-Ai Los Angeles Healthcare Center RESPONDING PARTY: Defendant/Cross-Complainant Blenda Rey NOTICE: ok RELIEF REQUESTED: An order compelling Defendant/Cross-Complainant Blenda Rey (Blenda Rey) to provide a further response to Form Interrogatory 216.1 from Set 1 served by Plaintiff/Cross-Defendant Alal, LLC dba Kei-Ai Los Angeles Healthcare Center (Kei-Ai). Additionally, Kei-Ai requests an award of sanctions in the amount of $1,550.00 against Blenda Rey. RULING: The motion is granted as set forth below. SUMMARY OF FACTS & PROCEDURAL HISTORY On 9/14/23, Alal, LLC dba Kei-Ai Los Angeles Healthcare Center (Kei-Ai) filed its complaint against Jim Rey (Jim Rey) and Blenda Rey (Blenda Ray) (collectively, the Reys), two of Kei-Ais former management employees, for: (1) Breach of Duty of Loyalty, (2) Fraud, (3) Constructive Fraud, (4) Interference With Contract, (5) Conversion, (6) Unfair Competition and (7) Receipt of Stolen Property. On 10/27/23, the Reys filed a cross-complaint and an answer which was attached to the cross-complaint and re-filed on 2/16/24. The cross-complaint alleged causes of action against Kei-Ai for: (1) Retaliation in Violation of Labor Code 1102.5, (2) Wrongful Discharge in Violation of Public Policy, (3) Racial Retaliation in Violation of FEHA 12940(h), (4) Failure to Prevent Harassment, Discrimination, Retaliation and (5) Intentional Infliction of Emotional Distress. After meet and confer efforts failed to resolve the issues Kei-Ai had with the cross-complaint, on 11/27/23, Kei-Ai filed and served a demurrer to the 4th and 5th causes of action in the Reys cross-complaint. The Reys opposed the demurrer and Kei-Ai filed a reply to the opposition. On 1/18/24, the Court sustained Kei-Ais demurrer with 30 days leave to amend. (See 1/18/24 Minute Order). On 2/16/24, the Reys filed and served a First Amended Cross-Complaint. After the Reys counsel failed to respond to Kei-Ais counsels meet and confer efforts regarding the First Amended Cross-Complaint, on 3/14/24, Kei-Ai filed and served a demurrer to the 4th and 5th causes of action in the First Amended Cross-Complaint. The Reys opposed the demurrer and Kei-Ai filed a reply to the opposition. On 5/13/24, the Court sustained the demurrer without leave to amend. (See 5/13/24 Minute Order). On 6/10/24, Kei-Ai answered the First Amended Cross-Complaint. On 11/14/23, Kei-Ai served Jim Rey and Blenda Rey, separately, with Form Interrogatories, Set 1. (Silva Decl. ¶3, Ex.3). The Reys each served untimely responses on 1/17/24. (Id., Ex.4). Kei-Ai found the response to Form Interrogatory 216.1 to be deficient. (Silva Decl. ¶4). The Reys failed to respond to Kei-Ais 1/25/24 meet and confer letter. (Silva Decl. ¶¶4-5, Ex.5). Therefore, on 2/16/24, Kei-Ai filed and served the instant motion seeking an order compelling Blenda Rey to provide a further response to Form Interrogatory 216.1 of Set 1 served by Kei-Ai. Additionally, Kei-Ai requests an award of sanctions in the amount of $1,550.00 against Blenda Rey. Blenda Rey has not opposed or otherwise responded to the motion. ANALYSIS An answer to an interrogatory must be as complete and straightforward as the information reasonably available to the responding party permits. CCP 2030.220(a). A party may move to compel further responses to an interrogatory if it deems an answer is evasive or incomplete, among other things. See CCP 2030.290(a). Form Interrogatory 216.1 asks Jim Rey to: Identify each denial of a material allegation and each special or affirmative defense in your PLEADINGS and for each: (a) state all facts upon which you base the denial or special or affirmative defense; (b) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and (c) identify all DOCUMENTS and all other tangible things, that support your denial or special or affirmative defense, and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT. In response to subdivision (a), Blenda Rey merely restates her denials/legal conclusions without providing any facts in support of same. In response to subdivision (c), Blenda Rey merely refers to text messages between [herself] and Kei-Ai employees without providing any of the other required information. Kei-Ai is entitled to sanctions against Blenda Rey for her failure to comply with her discovery obligations. CCP 2023.010(f); CCP 2030.300(d). Kei-Ai is awarded $1,000.00 in sanctions against Blenda Rey calculated as follows: 1.25 hours to prepare motion at $300/hour + .75 hour to review motion at $500/hour + .5 hour to appear at the hearing. (See Silva Decl. ¶¶6-9). CONCLUSION The motion is granted. Blenda Rey is ordered to provide a further, verified responses to Form Interrogatory 216.1 in Set 1, within 30 days. Sanctions are imposed on Blenda Rey in the amount of $1,000.00, payable within 30 days. The Court notes that Kei-Ai has failed to properly electronically bookmark the exhibits attached to the motion as required by CRC 3.1110(f)(4). The electronic bookmarks are linked to Exhibits A and B of the Complaint which is attached to the Silva declaration as Exhibit 1. There are no electronic bookmarks for Exhibits 1-5 identified in and attached to the Silva declaration. Counsel for the parties are warned that failure to comply with this rule in the future may result in matters being continued so that papers can be resubmitted in compliance, papers not being considered and/or the imposition of sanctions.

Ruling

SPEARS vs KHANCHUSTAMBHAM

Aug 27, 2024 |CVSW2207256

SPEARS VS MOTIONS TO COMPEL AND FORCVSW2207256KHANCHUSTAMBHAM MONETARY SANCTIONSTentative Ruling: GRANT all three motions. The request for admissions are deemed admittedand plaintiff shall produce verified responses to all outstanding discovery, without objection,within 30 days. GRANT $885 sanctions, payable within 30 days. CONTINUE TSC to December18, 2024.

Ruling

ZHIWEI CHEN VS VERIZON WIRELESS SERVICES, LLC

Aug 26, 2024 |23AHCV01967

Case Number: 23AHCV01967 Hearing Date: August 26, 2024 Dept: X Tentative Ruling Judge Joel L. Lofton, Department X HEARING DATE: August 26, 2024 TRIAL DATE: No date set. CASE: ZHIWEI CHEN vs VERIZON WIRELESS SERVICES, LLC CASE NO.: 23AHCV01967 MOTION TO RECUSE JUDGE MOVING PARTY: Plaintiff Zhiwei Chen RESPONDING PARTY: N/A SERVICE: Filed July 18, 2024 OPPOSITION: None filed. REPLY: None filed. RELIEF REQUESTED Plaintiff moves to recuse Hon. Joel L. Lofton from this case. BACKGROUND This is a personal injury action arising from a semi-truck-versus-automobile accident on June 16, 2023. The complaint alleges Defendant Komilov operated a semi-truck at an unsafe speed, and entered Plaintiffs lane unsafely, and as a result collided with Plaintiffs vehicle which caused significant and debilitating injuries to Plaintiff. TENTATIVE RULING Plaintiffs motion to recuse Hon. Joel L. Lofton from this case is DENIED. LEGAL STANDARD California Code of Civil Procedure Section 170.6 allows a party who timely files an affidavit of prejudice to disqualify a judge without any showing of cause. The affidavit of prejudice is not contestable and the disqualification of the judge is automatic. (Code Civ. Proc. §170.6(a)) However, only one such peremptory challenge is allowed per side. (Code Civ. Proc. § 170.6(a)(3).) Note a peremptory challenge under section 170.6 is not the same as a motion to disqualify a judge by a party or an attorney, i.e., a challenge for cause, under section 170.1. A section 170.6 challenge must be timely. (Grant v. Sup. Ct. (2001) 90 Cal.App.4th 518, 527.) The general rule is that disqualification of the judge is permitted any time prior to the commencement of trial. (People v. Sup. Ct. (1993) 4 Cal.4th 1164, 1171.) A judge . . . of a superior court of the State of California shall not try a civil or criminal action or special proceeding of any kind or character nor hear any matter therein that involves a contested issue of law or fact when it is established as provided in this section that the judge . . . is prejudiced against a party or attorney or the interest of party or attorney appearing in the action or proceeding. (Code Civ. Proc., § 170.6, subd. (a)(1).) A party to . . . an action or proceeding may establish this prejudice by an oral or written motion without prior notice supported by affidavit or declaration under penalty of perjury, or an oral statement under oath, that the judge . . . before whom the action or proceeding is pending, or to whom it is assigned, is prejudice against a party . . . or the interest of the party . . . so that the party . . . cannot, or believes that he or she cannot, have a fair and impartial trial or hearing before the judge . . . . (Code Civ. Proc., § 170.6, subd. (a)(2).) A judge must be disqualified if [a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial. (Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii).) Code of Civil Procedure section 170.3(c)(1) provides that if a judge who should disqualify himself fails to do so, any party may file with the clerk a written verified statement objecting to the hearing or trial before the judge and setting forth the facts constituting the grounds for disqualification of the judge. The statement shall be presented at the earliest practicable opportunity after discovery of the facts constituting the grounds for disqualification. Copies of the statement shall be served on each party or his or her attorney who has appeared and shall be personally served on the judge alleged to be disqualified, or on his clerk, provided that the judge is present in the courthouse or in chambers. (Code Civ. Proc., § 170.3(c)(1).) When no answer is filed in response to a statement of disqualification, the facts set out in the statement are taken as true. (Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415, 424.) If the statement is untimely filed or on its face discloses no legal grounds for disqualification, the judge against whom it is filed may strike it within 10 days after filing or service, whichever is later. (Code Civ. Proc., §170.4(b)-(c).) Orders issued by a disqualified judge are void. (Hayward v. Superior Court (2016) 2 Cal.App.5th 10, 42.) DISCUSSION As a preliminary matter, there is no proof of service establishing that Plaintiff served the motion on Defendants. While the best practice is to file the Proof of Service with the moving papers, at a minimum it must be filed no later than five court days before the time appointed for the hearing. (Cal. R. Ct. 3.1300(c).) Given the August 26 hearing date, the Proof of Service was required to be filed by August 19, 2024. The Courts records do not show the filing of the Proof of Service as of the time this tentative ruling was prepared. Therefore, due to a failure to comply with Code of Civil Procedure section 1005, the motion is properly DENIED. After a further consideration of the merits, the Court finds Plaintiffs purported disqualification motion contains a series of fatal procedural and substantive defects, including: (1) filing a motion that is not personally served on the judge; (2) seeking disqualification based merely on speculation that the judge has somehow obtained benefits from the other party and that the judge is trying to protect Verizons alleged illegal behavior (which are untrue); and (3) failing to allege any facts constituting cognizable grounds for how the judge believes his [ ] recusal would further the interest of justice pursuant to Section 170.1(a)(6)(A)(i), or how any person might reasonably entertain a doubt that the judge would be impartial pursuant to Section 170.1(a)(6)(A)(iii). In his declaration in support of the motion to recuse, Plaintiff Chen declares that he found that the judge at the hearing on May 16, 2024: (1) failed to comply with Rule Cal. R. Ct. Canon 1-3 etc.; (2) supported obstruction of justice, perjury, or filing of a false document; and (3) displayed obvious bias towards Plaintiff. (Chen Decl. ¶¶ 1-3.) Plaintiff further states that Defendant Verizons behavior violated the criminal law, the judge failed to perform his obligations, and the judges behavior tacitly supported this violation. (Chen Decl.) Plaintiff states that he believes that he has reason to believe the judge obtained benefits from the other party and that he would not have a fair and impartial trial. (Chen Decl.) Plaintiff believes he cannot have a fair and impartial trial in this courtroom. Here, the Court finds the motion lacks merit. The burden of proof is on the party seeking disqualification. (Betz v. Pankow (1993) 16 Cal.App.4th 919, 926.) Speculation, unsupported conclusions and inadmissible evidence cannot justify a finding of bias which must be clearly established. (See Gray v. City of Gustine (1990) 224 Cal.App.3d 621, 631; United Farm Workers of America, AFL-CIO v. Superior Court (1985) 170 Cal.App.3d 97.) Statutes authorizing disqualification must be applied with restraint. (McClenny v. Superior Court (1964) 60 Cal.2d 677, 680.) Plaintiff takes issue with Judge Loftons ruling on his first motion for recusal, filed May 21, 2024, which held the Court cannot grant the instant motion because the notice of motion is procedurally deficient. The notice of motion does not state the location of the hearing on the instant motion. (Cal. Rules of Court, Rule 3.1110(b)(1).) 6/24/24 Minute Order. Plaintiffs declaration states the judge is trying his best to protect the defendants illegal behavior. (Chen Decl.) Plaintiff has failed to explain or offer any authority suggesting how Judge Loftons consideration of a procedural deficiency in Plaintiffs May 21, 2024 recusal motion reflects bias. Plaintiff insists that the Tentative Rulings reflect bias. But rulings, even erroneous ones, are not a basis for disqualification. See Code Civ. Proc. § 170.2(b); Dietrich v. Litton Industries, Inc. (1970) 12 Cal.App.3d 704, 719; People v. Guerra (2006) 37 Cal.4th 1067, 1112.) None of Judge Loftons actions in the case suggest bias pursuant to Code of Civil Procedure section 170.1(a)(6)(A)(i)-(iii). Plaintiffs speculation is irrelevant. See United Farm Workers, supra, 170 Cal.App.3d at 104 (the litigants necessarily partisan views [do] not provide the applicable frame of reference.) A personal attack on a judge and criticism of his ruling do not necessarily bias the judge and disqualify him. See Ungar v. Sarafite (1964) 376 U.S. 575, 583. As it does not appear Defendant was provided with notice, the motion is denied. Even if the court were to rule on the merits of the motion, it would be denied. CONCLUSION Plaintiffs motion is DENIED. Court to provide notice. Dated: August 26, 2024 ___________________________________ Joel L. Lofton Judge of the Superior Court Parties who intend to submit on this tentative must send an email to the court indicating their intention to submit. alhdeptx@lacourt.org

Ruling

MYNOR VILLEDA, AN INDIVIDUAL VS UNIVERSITY OF SOUTHERN CALIFORNIA, A CALIFORNIA NONPROFIT CORPORATION

Aug 27, 2024 |21STCV33802

Case Number: 21STCV33802 Hearing Date: August 27, 2024 Dept: B SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT MYNOR VILLEDA, Plaintiff, vs. UNIVERSITY OF SOUTHERN CALIFORNIA and DOES 1 through 10, inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) Case No.: 21STCV33802 [TENTATIVE] ORDER RE: MOTION TO BE RELIEVED AS COUNSEL Dept. B 1:30 p.m. August 27, 2024 1. Background On September 14, 2021, Plaintiff Mynor Villeda (Plaintiff) filed a Complaint against Defendant University of Southern California (Defendant) and DOES 1 through 10, alleging causes of action for: (1) Premises Liability and (2) General Negligence. John Jahrmarkt, Esq. (Counsel), at this time, moves to be relieved as counsel for Plaintiff Mynor Villeda. The motion is unopposed. 2. Motion to be Relieved as Counsel A. Legal Standard The court may order that an attorney be changed or substituted at any time before or after judgment or final determination upon request by either client or attorney and after notice from one to the other. (Code Civ. Proc., § 284(2).) The determination whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the trial court. (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) An application to be relieved as counsel must be made on Judicial Counsel Form MC-051 (Notice of Motion and Motion) (Cal. Rules of Court, Rule 3.1362(a)), MC-052 (Declaration) (Cal. Rules of Court, Rule 3.1362(c)), and MC-053 (Proposed Order) (Cal. Rules of Court, Rule 3.1362(e)). The proposed order must specify all hearing dates scheduled in the action or proceeding, including the date of trial, if known. (Cal. Rules of Court, Rule 3.1362(e).) Further, the requisite forms must be served on the client and all other parties who have appeared in the case. (Cal. Rules of Court, Rule 3.1362(d).) The court may delay the effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court. (Cal. Rules of Court, Rule 3.1362(e).) A motion to withdraw will not be granted where withdrawal would prejudice the client. (Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.) B. Discussion Counsel contends there has been a complete and irreparable breakdown of the attorney-client relationship where it is no longer possible to continue with representation. Counsel further declares the moving papers have been served on Plaintiff via mail and email at her last known address confirmed by text message and email correspondence. Moreover, Plaintiff has filed a substitution of attorney. Additionally, the proposed order includes all the hearings scheduled in this action, i.e., the Order to Show Cause Re: Dismissal Following Settlement. (Cal. Rules of Court, rule 3.1362(e).) However, Counsel has not provided proof of service indicating all parties who have appeared in this action have been served with the moving papers. (Cal. Rules of Court, rule 3.1362(d).) As such, the motion is deficient at this time. Therefore, the motion is DENIED without prejudice. Counsel is ordered to give notice.

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