Tentative Rulings

Case Number: BC643161    Hearing Date: December 04, 2020    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

daniel garcia, Plaintiff, v. brunton enterprises, inc. dba plas-tal manufacturing co., Defendant.

Case No.: BC643161 (Consolidated with BC651073) Hearing Date: December 4, 2020 [TENTATIVE] order RE: motion to continue trial date

BACKGROUND

A. Allegations of the Complaint and Cross-Complaints

Plaintiff Daniel Garcia (“Garcia” or “Plaintiff”) commenced this action against Defendant Brunton Enterprises, Inc. dba Plas-Tal Manufacturing Co. (“Plas-Tal”). Garcia alleges that he was on a building construction site at Universal Studios in his role as a carpenter for his employer, Matt Construction Company. Plaintiff alleges he was using hand signals to communicate instructions with the crane operator, Plas-Tal, to lift and lower beams. He alleges that he gave a hand signal to lower a beam, but Plas-Tal’s crane operator lifted the beam, causing the beam to come into contact with another wood beam that became dislodged and fell on Garcia’s head. His complaint, filed December 7, 2016, alleges a single claim for personal injury damages.

On January 11, 2017, Plas-Tal filed a cross-complaint against Cross-Defendant Bigge Crane and Rigging Co. (“Bigge”) for: (1) implied indemnity; (2) express indemnity; (3) equitable contribution; and (4) declaratory relief.

On April 19, 2017, Bigge filed a cross-complaint against Plas-Tal for: (1) contractual indemnity; (2) equitable indemnity; (3) contribution; and (4) declaratory relief.

On December 7, 2018, Garcia voluntarily dismissed with prejudice the complaint as to Plas-Tal regarding the waiver of costs only.

B. Motion on Calendar

The Final Status Conference and Jury Trial are currently set for February 11, 2021 and February 22, 2021, respectively.

On October 29, 2020, Plaintiff filed a motion to continue the trial date.

On November 23, 2020, Bigge filed a “Response” to the motion. Bigge states that it has no objection to a 60 or 90-day trial continuance in light of the upcoming mediation and need to conduct expert discovery. Bigge only objects to Plaintiff’s characterization of the motion as the parties’ “last request” for a continuance, as it is impossible to know what circumstances may arise in the future that may cause a later trial date.

DISCUSSION

Plaintiff moves the Court for an order continuing the trial date of February 22, 2021 to summer or fall of 2021, and to extend discovery cutoff dates and dates for designation of expert witnesses.

“Continuances are granted only on an affirmative showing of good cause requiring a continuance.” (In re Marriage of Falcone and Fyke (2008) 164 Cal.App.4th 814, 823.) A trial court has broad discretion with regard to denying a request for a trial continuance. (Pham v. Nguyen (1997) 54 Cal.App.4th 11, 13-18.) CRC, Rule 3.1332 provides guidance and factors for the Court to apply in making a determination on whether to grant a motion to continue trial.

Plaintiff requests a continuance, arguing that the Court inadvertently misinterpreted the stipulation and order entered in the consolidated case between Plaintiff and Arch Insurance Company by not only dismissing the Arch case (BC651073), but also this instant action (BC643161). (Ryneal Decl., ¶10.) Plaintiff’s counsel states that they did not discover that this case had been dismissed by mistake until late 2019, and thus Plaintiff had to file a motion to vacate the dismissal in January 2020 to resolve the issue. (Id., ¶¶11-12.) Plaintiff’s counsel also states that a continuance is necessary because the pandemic has had dire consequences on the court system. (Id., ¶¶12-14.) Plaintiff’s counsel states that there are logistical and practical problems of trying to conduct a 3-4 week trial with all attorneys, the judge, jurors, and witnesses with having to wear masks each day of trial, which will negatively impact the flow of the trial and the presentation of evidence. (Id., ¶15.) Finally, Plaintiff’s counsel states that the parties agreed to a final mediation on December 8, 2020, which counsel believes will unlikely produce a settlement given the complexities of the case and the cross-complaints. (Id., ¶¶17, 19.) Plaintiff’s counsel states that the Plas-Tal’s counsel had no objections to this motion, but that Bigge Crane’s counsel wanted to wait until after the mediation. (Id., ¶20.) In its response, Bigge states that it has no objection to a 60 to 90-day continuance.

In light of the upcoming mediation, the parties’ desire to have sufficient time to designate and conduct discovery on experts, and the parties’ agreement to continue the trial date, the Court will grant the motion and continue the trial for a reasonable period.

CONCLUSION AND ORDER

Plaintiff’s motion to continue the trial date is granted. The Jury Trial is continued to May 24, 2021, at 9:30 a.m. in this department. The Final Status Conference is continued to May 13, 2021, at 8:30 a.m. in this department. All discovery, motion, and expert cut-off dates will be tied to the new trial date.

Plaintiff shall provide notice of this order.

Case Number: BC643161    Hearing Date: November 13, 2020    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

daniel garcia, Plaintiff, v. brunton enterprises, inc. dba plas-tal manufacturing co., Defendant.

Case No.: BC643161 (Consolidated with BC651073) Hearing Date: November 13, 2020 [TENTATIVE] order RE: motion for summary adjudication of issues

BACKGROUND

A. Allegations of the Complaint and Cross-Complaints

Plaintiff Daniel Garcia (“Garcia” or “Plaintiff”) commenced this action against Defendant Brunton Enterprises, Inc. dba Plas-Tal Manufacturing Co. (“Plas-Tal”). Garcia alleges that at the time of the subject incident, he was on a building construction site at Universal Studios in his role as a carpenter for his employer, Matt Construction Company (“Matt”). Plaintiff alleges he was using hand signals to communicate instructions with the crane operator, Plas-Tal, to lift and lower beams. He alleges that he gave a hand signal to lower a beam, but Plas-Tal’s crane operator lifted the beam, causing the beam to come into contact with another beam that became dislodged and fell on Garcia’s head. His complaint, filed December 7, 2016, alleges a single claim for personal injury damages.

On January 11, 2017, Plas-Tal filed a cross-complaint against Cross-Defendant Bigge Crane and Rigging Co. (“Bigge”) for: (1) implied indemnity; (2) express indemnity; (3) equitable contribution; and (4) declaratory relief.

On April 19, 2017, Bigge filed a cross-complaint against Plas-Tal for: (1) contractual indemnity; (2) equitable indemnity; (3) contribution; and (4) declaratory relief.

On December 7, 2018, Garcia voluntarily dismissed with prejudice the complaint as to Plas-Tal “ONLY for waiver of costs.”

B. Bigge’s Motion for Summary Adjudication against Plas-Tal

Defendant/Cross-Complainant/Cross-Defendant Bigge moves for summary adjudication in its favor and against Cross-Defendant/Cross-Complainant Plas-Tal on the 1^st cause of action for contractual indemnity and 4^th cause of action for declaratory relief alleged in Bigge’s cross-complaint. Specifically, Bigge seeks summary adjudication on the 1^st and 4^th causes of action on the following issues:

• (1) Plas-Tal was contractually obligated and thus had a duty to obtain general liability insurance up to $1,000,000 covering Bigge’s crane and the crane operator at the Job Site for the Incident. (3) Plas-Tal did not obtain general liability insurance covering Bigge’s crane and the crane operator at the time of the Incident. (5) Plas-Tal breached its contractual duty to Bigge in not obtaining general liability insurance covering Bigge’s crane and the crane operator at the time of the Incident. (7) Plas-Tal is liable to Bigge up to $1,000,000 for the resolution of Plaintiff’s complaint.
• (2) Plas-Tal was contractually obligated and thus had the duty to defend Bigge against Plaintiff following tender of the claim to Plas-Tal. (4) Plas-Tal did not defend Bigge against Plaintiff’s claims following tender of the claim to Plas-Tal. (6) Plas-Tal breached its contractual duty to Bigge in not defending Bigge against the Incident following tender to Plas-Tal. (8) Plas-Tal is liable to Bigge for payment of Bigge’s defense fees from the date of Bigge’s tender to Plas-Tal in an amount to be determined at the conclusion of Plaintiff’s lawsuit.

On October 30, 2020, 2020 Plas-Tal filed an opposition brief.

On November 6, 2020, Bigge filed a reply brief.

EVIDENTIARY OBJECTIONS

With the reply brief, Bigge submitted evidentiary objections to the declaration of Sean Brunton, President of Plas-Tal. The objection nos. 1-5 are overruled.

DISCUSSION

A. 1^st cause of action for Contractual Indemnity[1]

Bigge seeks summary adjudication on the 1^st cause of action regarding the issue of Plas-Tal’s duty owed to Bigge regarding the duty to defend and the duty to obtain general liability insurance covering Bigge’s crane and crane operator at the job site. Bigge argues that Plas-Tal was contractually obligated to defend it and maintain insurance naming Bigge, but that Plas-Tal failed to accept Bigge’s defense and did not obtain general liability insurance to cover Bigge.

In the non-insurance context, parties to a contract, including a construction contract, may define their duties toward one another in the event of a third-party claim against one or both arising out of their relationship. (Crawford v. Weather Shield Mfg., Inc. (2008) 44 Cal.4th 541, 551.) Terms of this kind may require one party to indemnify the other under specified circumstances, as well as assign one party responsibility for the other’s legal defense when a third-party claim is made against the latter. (Id.) They may also agree that the promisor’s indemnity and/or defense obligations will only apply if a promisor was negligent, or, conversely, even if the promisor was not negligent. (Id.) A contractual promise to “defend” another connotes an obligation of active responsibility from the outset for the promisee’s defense against such claims and where the indemnitor has breached this obligation, an indemnitee who was thereby forced to defend itself is entitled to reimbursement of the costs of doing so. (Id. at 554-555, 557-558.) “[E]ven if the indemnity obligation is triggered only by an ultimate finding of the indemnitor's fault, the defense obligation applies before, and thus regardless of, any finding to be made in the course of the litigation for which a defense is owed.” (Id. at 561.)

The background facts regarding the incident are largely undisputed as they apply to this motion. The accident that gave rise to this personal injury lawsuit occurred on July 28, 2016 at 100 Universal City Plaza in Los Angeles when Plaintiff Garcia (carpenter) was injured by an unsecured beam that was displaced. (Bigge Fact 1-2.) Matt Construction Company (“Matt”) was the general contractor of the job site and it engaged various subcontractors through written agreements. (Id. at 3-4.) On March 18, 2016, Matt engaged Plas-Tal under a written subcontract agreement to hoist and install miscellaneous metals, including providing crane certifications and operator certifications for hoisting equipment. (Id. at 5.) For anything arising out of or in any way connected with its work, Plas-Tal assumed the duty to protect all people at the site from risk of bodily injury and to comply with all safety orders, rules, and regulations. (Id. at 6.)

It is undisputed that Plas-Tal leased 2 cranes with operators from Bigge. (Id. at 7-8.) Bigge was not a subcontractor of Matt, but a tiered contractor of Plas-Tal. (Id. at 19.) The lease terms and conditions between Plas-Tal and Bigge are documented in daily Job Tickets signed by an authorized representative of Plas-Tal, and Plas-Tal signed written Job Tickets for the at-issue crane before, on, and after the date of the incident. (Id. at 14-16.) Plas-Tal paid Bigge’s invoices for the lease of the crane at issue. (Id. at 17.) While Plas-Tal rented/leased the crane at issue, Plas-Tal contends that Matt used the crane at the time of the incident and the leasing of the crane never changed from Plas-Tal to Matt. (Id. at 13, 18.)

Bigge provides the Job Tickets as Exhibit 5 of its evidence. Exhibit 6 includes Bigge’s Terms and Conditions for the “Equipment Lease with Operating Personnel” (“Lease Agreement”). The Lease Agreement states in relevant part:

1. NO OTHER AGREEMENT: Except as otherwise mutually agreed in writing, these terms and conditions constitute the complete agreement between the parties with respect to the Equipment and Operating personnel described on the reverse page. This agreement shall govern and take precedence over conflicting terms of any other agreement, including “flow down” provisions between Customer and owner, general contractor or higher-tier subcontractor. Any alterations to this agreement must be initialed and dated by an authorized representative of Bigge Crane & Rigging Co.

2. TERM: This lease term (“Term”) shall commence on the date and time stated in the “Description” on the reverse page or, upon dispatch of Equipment to the job sited provided by Customer, whichever comes first, and continues until the Equipment is returned to Bigge Crane & Rigging Co. in the same condition as delivered, normal wear and tear from proper use excepted.

5. INDEMNITY: Customer [Lessee Plas-Tal] agrees that the Equipment and all persons operating such Equipment, including Bigge Crane & Rigging Co.’s employees, are under Customer’s exclusive jurisdiction, supervision and control. Customer agrees to indemnify, defend and hold Bigge Crane & Rigging Co., its officers, directors, employees and agents harmless … from all claims for death or injury to persons, including Bigge Crane & Rigging Co.’s employees, and from all loss, damage or injury to property, including the Equipment, arising in any manner from Customer’s operations, regardless of any active or passive negligence on the part of Bigge Crane & Rigging Co. … Customer shall not be required to indemnify Bigge Crane & Rigging Co. for Bigge Crane & Rigging Co.’s sole negligence or willful misconduct. … Customer’s duty to defend is wholly independent of and separate from the duty to indemnify and it exists regardless of Bigge Crane & Rigging Co.’s ultimate liability.

6. INSURANCE: (a) Customer shall maintain insurance during the Term covering the Equipment and operating personnel at the work location, as follows: (i) general liability policy ... in amounts not less than $1,000,000 per occurrence….

(Bigge Fact 21-24; Bigge Evid. at Ex. 6 [Lease Agreement].)

After Bigge was added as a defendant to Plaintiff Garcia’s complaint on February 9, 2017, Bigge tendered the complaint to Plas-Tal requesting insurance coverage, defense, and indemnity of Plaintiff’s suit pursuant to the Lease Agreement. (Bigge Fact 29-30.) On April 12, 2017, Plas-Tal denied Bigge’s tender, stating that preliminary investigation revealed that it was the sole negligence or willful misconduct of Bigge through Scot Palmer that caused the accident. (Id. at 31.) On June 17, 2017 and June 21, 2018, Colony Insurance (Plas-Tal’s insurer) denied Bigge’s two demands for coverage. (Id. at 32-33.)

Bigge dedicates a portion of its moving papers to establishing that the parties entered into the Job Tickets and the Terms and Conditions of the Lease Agreement and arguing the admissibility of such evidence. (See Mot. at pp. 12-15.) The parties do not dispute that they entered into the Job Tickets and the Lease Agreement or that the terms apply. Thus, the Court need not discuss these undisputed facts further.

As to the substantive merits, Bigge argues that Plas-Tal had a duty to defend Bigge because Plas-Tal’s project foreman signed off for the crane’s use and boom length on June 28, 2016. Thus, it argues that Plas-Tal breached its obligations to Bigge when it unilaterally determined that it had no duty to defend Bigge, based on the opinion that the crane operator was solely responsible for the injury. (See Bigge Fact 31.) Bigge argues that the duty to defend is broader than and wholly independent and separate from the duty to indemnify.

Based on the terms of the agreement regarding the duty to defend, which is distinct from the duty to indemnify, the Court finds that Bigge has established its initial burden in summary adjudication on the issue of Plas-Tal’s duty to defend Bigge in this action.

Thus, the burden shifts to Plas-Tal to raise triable issues of material fact.

As a preliminary matter, the Court notes that Plas-Tal’s facts in its separate statements are somewhat confusing. For example, in its response to Bigge’s separate statement, Plas-Tal states that it does not dispute that “Plas-Tal leased two cranes with operators from Bigge” and that “Plas-Tal ordered a 35-ton capacity crane and operator from Bigge who assisted Plas-Tal in its work.” (See Bigge Fact 7-8.) However, in its Additional Material Facts, Plas-Tal states that “Matt Construction leased Bigge’s 35-ton Rough Terrain Crane from July 5, 2016 through to August 8, 2016 to hoist and erect glulam beams at the subject property.” (Plas-Tal Additional Material Fact [PT AMF] 10.) The Court will not find that Plas-Tal’s own contradictions in its response to the separate statement and its additional material facts will be sufficient to raise a triable issue of material fact.

In opposition, Plas-Tal argues that it submitted Change Order Request No. 4 to the subcontract agreement with Matt that it would provide crane, rigging, and labor to hoist and erect wood trusses and glulam beams. (PT AMF 6; PT Evid., Ex. C.) Sean Brunton (Plas-Tal’s President) states that after submitting Change Order Request No. 4 and prior to the date of the subject accident, Matt advised Plas-Tal that its scope of work would no longer include hoist and erection of the glulam beams. (PT AMF 7; PT Evid., Ex. R [Brunton Decl., ¶7].) Mr. Brunton states that Matt employed its own carpenters to hoist and erect the glulam beams, Matt leased Bigge’s crane for the project, and Plas-Tal advised Bigge that Matt would lease the crane. (PT AMF 8-9; Brunton Decl., ¶¶8-10.) In Change Order Request No. 5, Plas-Tal revised its work scope to furnishing 2 cranes for Matt’s use as requested, and crediting costs for labor of glulam beam installation. (PT AMF 11; PT Evid., Ex. D.)

Plas-Tal’s evidence does not establish that Matt, rather than Plas-Tal, leased the crane at issue. While Mr. Brunton states that Plas-Tal informed Bigge that Matt would lease the crane, his declaration fails to specify who made such representations, to whom, when, and by what means, etc. As stated in the Lease Agreement, any change of the terms must be in writing and initialed by Bigge’s representative. Further, Bigge has presented evidence in the form of the Job Tickets for the lease of the cranes, naming Plas-Tal as the customer—not Matt. (See Bigge Evid., Ex. 5.) Although Plas-Tal may have shown that Matt reimbursed Plas-Tal for leasing the cranes, this does not equate to a showing that Matt was in fact the lessee of the cranes or that Plas-Tal should not be held to the terms of the Lease Agreement.

Plas-Tal argues there are factual questions regarding whether it, Matt, or Matt’s subcontractor C Matt was required to perform installation of the glulam beams, and that Bigge has not explained why Plas-Tal should bear liability for Plaintiff’s accident. (Opp. at p.9.) Plas-Tal states that at the time of the subject accident, it was using the 265-ton crane to hoist and set trusses in a different bay, about 20-30 feet behind where the 35-ton crane was positioned when the accident occurred. (PT AMF 25-26.) Although Plas-Tal argues that Change Order Request No. 5 establishes that it was no longer providing the labor for installing glulam beams, Plas-Tal still agreed in the Lease Agreement with Bigge that all equipment and all persons operating the equipment were under Plas-Tal’s exclusive jurisdiction, supervision, and control. (See Lease Agreement at § 5.) While there may have been a side agreement or understanding between Plas-Tal and Matt about the scope of work to be performed, Plas-Tal has not shown or raised a triable issue on whether it was absolved of its duties to Bigge pursuant to the Lease Agreement.

Plas-Tal also argues that there are triable issues of material fact regarding whether Scot Palmer, Bigge’s employee, was solely negligent in causing the accident.[2] The Lease Agreement states in section 6 that Plas-Tal shall not be required to indemnify Bigge for Bigge’s sole negligence or willful conduct; however, it also states that Plas-Tal’s duty to defend is wholly independent of and separate from the duty to indemnify and it exists regardless of Bigge’s ultimate liability. As stated in Crawford, while an indemnity obligation is trigged upon an ultimate finding of the indemnitor’s fault, the defense obligation applies immediately upon a proper tender of defense by the indemnitee and does not depend on the outcome of the litigation. (Crawford, supra, 44 Cal.4th at 558, 561.) This is consistent with the terms of the Lease Agreement.

Next, Plas-Tal argues that Bigge has not incurred any actual recoverable damages, such that there is no duty to indemnify Bigge. (Opp. at p.11.) However, Plas-Tal’s argument misses the point. Bigge has moved for summary adjudication on the issue of the duty to defend, which is broader than the duty to indemnify. The motion does not raise issues on the duty to indemnify.

Finally, Plas-Tal argues that it cannot be liable for the services that Bigge seeks to hold it liable for because Plaintiff dismissed Plas-Tal with prejudice from the matter on December 7, 2018. However, the fact that Plas-Tal was dismissed from Plaintiff’s complaint does not mean that Plas-Tal has been adjudged to have no liability in the matter or that any and all cross-complaints against it are barred. (Alternatively, there is no determination of good faith settlement or a CCP § 877.6(c) determination.) Thus, Bigge may still have cross-claims against Plas-Tal even if Plaintiff no longer has direct claims against Plas-Tal. This argument does not raise a triable issue of material fact nor is it a basis to deny the motion.

Finally, with regard to Bigge’s argument that Plas-Tal was required to obtain general liability insurance covering Bigge’s crane and crane operator, the Court does not find that Bigge has established its burden in showing that Plas-Tal failed to obtain insurance on Bigge’s behalf pursuant to the Lease Agreement, §6. At most, Bigge provides evidence that its claims for insurance coverage were denied by Plas-Tal’s insurer, Colony Specialty, but this is not a showing that Plas-Tal failed to obtain general liability insurance in the first place. Thus, the burden does not shift to Plas-Tal on this particular issue. (The Court notes that in its opposition brief, Plas-Tal does not discuss its alleged duty to obtain general liability insurance up to $1,000,000 covering Bigge’s crane and the crane operator at the job site for the subject incident.)

The Court grants in part the motion for summary adjudication on the 1^st cause of action only on the issue of Plas-Tal’s duty to defend Bigge. The Court denies the motion in part as to the issue regarding Plas-Tal’s duty to obtain general liability insurance covering Bigge.

B. 4^th cause of action for Declaratory Relief

“Any person interested under a written instrument … or under a contract, or … in, over or upon property… may in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint … for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract.” (CCP § 1060.) Declaratory relief is allowed if the seeking party presents two essential elements: “(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to [the party's] rights or obligations.” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.) “Declaratory relief generally operates prospectively to declare future rights, rather than to redress past wrongs” and is a remedy in the interests of “... preventative justice, to declare rights rather than execute them.” (Id.; Babb v. Superior Court (1971) 3 Cal.3d 841, 848.)

Bigge moves for summary adjudication on the 4^th cause of action, arguing that there is an actual controversy between itself and Plas-Tal regarding their respective rights and duties as to defense costs.

For the reasons stated above, the Court grants the motion for summary adjudication as to the issue of Plas-Tal’s duty to defend Bigge. To the extent the motion for summary adjudication on the 4^th cause of action was directed at the issue of insurance, the motion is denied.

CONCLUSION AND ORDER

Bigge’s motion for summary adjudication is granted as to the 1^st and 4^th causes of action with regard to the issue of Plas-Tal’s duty to defend Bigge on Plaintiff’s complaint. The remainder of the motion is denied.

Bigge shall provide notice of this order.

Case Number: BC643161    Hearing Date: July 10, 2020    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

daniel garcia, Plaintiff, v. brunton enterprises, inc. dba plas-tal manufacturing co., Defendant.

Case No.: BC643161 (Consolidated with BC651073) Hearing Date: July 10, 2020 [TENTATIVE] order RE: (1) motion for an order directing t-mobile to respond to subpoenas; and (2) motion to sever

BACKGROUND

A. Allegations of the Complaint and Cross-Complaints

Plaintiff Daniel Garcia (“Garcia” or “Plaintiff”) commenced this action against Defendant Brunton Enterprises, Inc. dba Plas-Tal Manufacturing Co. (“Plas-Tal”). Garcia alleges that he was on a building construction site at Universal Studios in his role as a carpenter for his employer, Matt Construction Company. Plaintiff alleges he was using hand signals to communicate instructions with the crane operator, Plas-Tal, to lift and lower beams. He alleges that he gave a hand signal to lower a beam, but Plas-Tal’s crane operator lifted the beam, causing the beam to come into contact with another wood beam that became dislodged and fell on Garcia’s head. His complaint, filed December 7, 2016, alleges a single claim for personal injury damages.

On February 9, 2017, Garcia substituted Bigge Crane and Rigging Co. as Doe 1 and Scott Palmer as Doe 6. On April 20, 2017, Garcia voluntarily dismissed without prejudice the complaint as to Defendant Scott Palmer (Doe 6) only. On December 7, 2018, Garcia voluntarily dismissed with prejudice the complaint as to Plas-Tal regarding the waiver of costs only.

On January 11, 2017, Plas-Tal filed a cross-complaint against Cross-Defendant Bigge Crane and Rigging Co. (“Bigge”) for: (1) implied indemnity; (2) express indemnity; (3) equitable contribution; and (4) declaratory relief.

On April 19, 2017, Bigge filed a cross-complaint against Plas-Tal for: (1) contractual indemnity; (2) equitable indemnity; (3) contribution; and (4) declaratory relief.

On June 6, 2017, this action was consolidated with Arch Insurance Company v. Brunton Enterprises Inc. (Case No. BC651073). The BC643161 action and the BC651073 action will hereinafter be referred to as the “Garcia action” and “Arch action”, respectively.

B. Relevant Background and Motion to Vacate

On March 12, 2020, Bigge filed a motion to sever trial of the cross-complaints from the main action, or to conduct the trial in two phases.

On March 16, 2020, Bigge filed a motion requesting an order directing T-Mobile to respond to subpoenas.

The Court is not in receipt of an opposition brief to the motions. On June 30, 2020, Bigge filed Notices of No Opposition Received to the two motions on calendar.

DISCUSSION RE MOTION TO DIRECT T-MOBILE TO RESPOND TO SUBPOENAS

Bigge moves for an order directing T-Mobile USA, Inc. and T-Mobile US, Inc. (collectively, “T-Mobile”) to respond to subpoenas.

A. Proofs of Service

California Rules of Court, Rule 3.1346 states: “A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.”

On April 24, 2020, Bigge filed proofs of personal service of the moving papers on T-Mobile USA, Inc. and T-Mobile US, Inc.

B. Merits of Motion

Bigge served a subpoena on each of T-Mobile USA, Inc. and T-Mobile US, Inc., seeking all records regarding incoming/outgoing calls, call logs, call summaries, billings, statements, cellular service call details, all logs reflecting incoming/outgoing SMS messages, and all records containing date/times of messages for Garcia’s phone number. (Cammarano Decl., Exs. 1-2.) In response, T-Mobile/MetroPCS stated it was unable to respond to the subpoenas without the consent of the account holder pursuant to Public Utilities Code, §2891(a)(4) and CCP §1985.3(f), or a court order. (Id., Ex. 3.)[1]

Bigge seeks Plaintiff’s cellular phone activity in order to refute his assertion that he was totally disabled as a result of the accident. Bigge seeks the subpoenaed information to show the extent Plaintiff has been able to use his cell phone during his claimed total disability, including a 25-day period when he was purportedly in Mexico.

Pursuant to CCP §1985.3, prior to the date called for in the subpoena duces tecum for the production of documents, the subpoenaing party shall serve or cause to be served on the consumer whose records are being sought a copy of the subpoena duces tecum personally or if he is a party to his attorney of record. (CCP §1985.3(b).) Personal records include documents pertaining to a consumer (individual) and which are maintained by any “witness”, including a telephone corporation which is a public utility. (CCP §1985.3(a)(1)-(2).) “A subpoena duces tecum for personal records maintained by a telephone corporation which is a public utility, as defined in Section 216 of the Public Utilities Code, shall not be valid or effective unless it includes a consent to release, signed by the consumer whose records are requested, as required by Section 2891 of the Public Utilities Code.” (CCP §1985.3(f).)

Public Utilities Code, §2891(a) states:

(a) No telephone or telegraph corporation shall make available to any other person or corporation, without first obtaining the residential subscriber's consent, in writing, any of the following information:

(1) The subscriber's personal calling patterns, including any listing of the telephone or other access numbers called by the subscriber, but excluding the identification to the person called of the person calling and the telephone number from which the call was placed, subject to the restrictions in Section 2893, and also excluding billing information concerning the person calling which federal law or regulation requires a telephone corporation to provide to the person called.

(Pub. Util. Code, § 2891(a)(1).)

Bigge argues that Public Utilities Code §2891 applies only to “residential subscribers” and not to cellular/mobile services. However, CCP §1985.3 does not make any distinction with regard to personal records maintained by telephone corporations that are a public utility—whether the phone records sought are for residential subscribers or mobile phone users. And here, Bigge acknowledges that Plaintiff has not given his consent for the production of the documents sought. (Mot. at p.3.)

The Legislature has apparently decided that telephone consumers’ right to privacy in their cellular communications outweighs the need for such information in private litigation. Thus, the motion to direct T-Mobile to respond to the subpoenas is denied.

DISCUSSION RE MOTION TO SEVER

1. Legal Standard

CCP §1048(b) states in relevant part:

The 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, preserving the right of trial by jury required by the Constitution or a statute of the state or of the United States.

(CCP §1048(b).)

1. Merits of Motion

Bigge moves to sever trial of the cross-complaints between Plas-Tal and Bigge from Plaintiff’s underlying personal injury action. Alternatively, Bigge requests that the trial be conducted in two phases before two separate juries: (1) the issues of the cross-complaints of Plas-Tal and Bigge (each alleging express and implied indemnity, contribution, and declaratory relief) be heard in phase one; and (2) Plaintiff’s underlying personal injury claim (negligence) in phase two. Bigge states that it is currently the only personal injury defendant because Plaintiff dismissed the other defendants from the lawsuit.

According to Bigge, Plas-Tal’s claims hinge on whether the operation of Bigge’s crane was within the perimeter of the date of accident “job ticket” terms and conditions and whether Plas-Tal owed a duty of care to Plaintiff or Bigge, while Bigge’s cross-claims that the work was within the terms and conditions of the job ticket. Bigge argues that its cross-complaint against Plas-Tal and Plas-Tal’s cross-complaint against Bigge are for indemnity, contribution, and declaratory relief, which relate to insurance obligations and the duty to defend and insure and which are irrelevant and separate from the personal injury action.

At this time, Bigge states that Plas-Tal and its insurer have denied coverage to Bigge. Bigge argues that if Plas-Tal is held responsible for its contractual obligations, then Plas-Tal is obligated to defend Bigge before the jury and pay for defense fees incurred up to the assumption of its obligation. On the other hand, Bigge contends that Plas-Tal may circumvent its indemnity obligations only if Bigge is found solely negligent. Bigge then argues that the final findings of Plas-Tal’s indemnity obligation may possibly need to wait until the conclusion of the personal injury trial because there may be issues of comparative fault of Plaintiff or his co-workers that defeat Plas-Tal’s “sole negligence” defense. Finally, Bigge argues that issues regarding insurance coverage should be severed because trying negligence with evidence of liability insurance in the same trial would violate Evidence Code §1155.

The Court finds that severance in this situation would be proper under CCP §1048(b) as it would further convenience and avoid prejudice to the parties, as well as be conducive to expedition and economy. (See e.g., Rutter Guide, Cal. Prac. Gudie Civ. Trials & Ev. (Sept. 2019 Update) Ch.4-G, §4.348 [“Complaint for indemnification under a release and hold harmless agreement was properly severed from a cross-complaint for breach of these agreements. (Day v. Papadakis Morehart v. County of Santa Barbara, supra, 7 C4th at 743-744, 29 CR2d at 815 & fn. 11])].) Further, the motion is not opposed by any of the parties. Bigge points out that Plas-Tal stated in its case management statement in section 14 regarding bifurcation (filed February 25, 2020) that it “intend[s] to file a motion for an order bifurcating and request separate trials under Code of Civil Procedure section 1048(b) of the Plaintiff’s personal injury action.” (See Dennis A. Cammarano Decl., ¶12.)

CONCLUSION AND ORDER

Bigge’s motion for an order directing T-Mobile to respond to the subpoenas is denied.

Bigge’s motion to sever trial of Plas-Tal and Bigge’s cross-complaints from Plaintiff’s underlying personal injury complaint is granted.

Bigge shall provide notice of this order.

[1] Exhibit 4 of Bigge’s counsel’s declaration includes “refined” deposition subpoenas to T-Mobile.  (Cammarano Decl., Ex. 4.) 

Case Number: BC643161    Hearing Date: January 17, 2020    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

daniel garcia, Plaintiff, v. brunton enterprises, inc. dba plas-tal manufacturing co., Defendant.

Case No.: BC643161 (Consolidated with BC651073) Hearing Date: January 17, 2020 [TENTATIVE] order RE: motion to vacate order dismissing case

BACKGROUND

A. Allegations of the Complaint and Cross-Complaints

Plaintiff Daniel Garcia (“Garcia” or “Plaintiff”) commenced this action against Defendant Brunton Enterprises, Inc. dba Plas-Tal Manufacturing Co. (“Plas-Tal”). Garcia alleges that he was on a building construction site at Universal Studios in his role as a carpenter for his employer, Matt Construction Company. Plaintiff alleges he was using hand signals to communicate instructions with the crane operator, Plas-Tal, to lift and lower beams. He alleges that he gave a hand signal to lower a beam, but Plas-Tal’s crane operator lifted the beam, causing the beam to come into contact with another wood beam that became dislodged and fell on Garcia’s head. His complaint, filed December 7, 2016, alleges a single claim for personal injury damages.

On January 11, 2017, Plas-Tal filed a cross-complaint against Cross-Defendant Bigge Crane and Rigging Co. (“Bigge”) for: (1) implied indemnity; (2) express indemnity; (3) equitable contribution; and (4) declaratory relief.

On April 19, 2017, Bigge filed a cross-complaint against Plas-Tal for: (1) contractual indemnity; (2) equitable indemnity; (3) contribution; and (4) declaratory relief.

On December 7, 2018, Garcia voluntarily dismissed with prejudice the complaint as to Plas-Tal regarding the waiver of costs only.

On June 6, 2017, this action was consolidated with Arch Insurance Company v. Brunton Enterprises Inc. (Case No. BC651073).

The BC643161 action and the BC651073 action will hereinafter be referred to as the “Garcia action” and “Arch action”, respectively.

B. Relevant Background and Motion to Vacate

On July 30, 2019, the Court entered the Stipulation for Dismissal and Proposed Order Thereon. Garcia, Arch Insurance Company (“Arch”) (the plaintiff in the consolidated case), Plas-Tal, and Bigge stipulated that Garcia and Arch settled Garcia’s Worker’s Compensation action (Case No. AJD10539334) and had agreed to dismissed with prejudice Arch’s complaint and all cross-actions in BC651073 (the Arch action), with each party to bear its own attorney’s fees and costs.

As a result of the July 30, 2019 Stipulation and Order for Dismissal, the Garcia action was dismissed.

On December 23, 2019, Garcia filed a motion to vacate the dismissal entered on July 30, 2019, dismissing the Garcia action (Case No. BC643161).

The Court is not in receipt of an opposition brief.

DISCUSSION

Plaintiff Garcia moves to vacate the dismissal, arguing that the stipulation and order was only meant to dismiss Arch’s complaint and all cross actions therein (i.e., in the Arch action, case no. BC651073), and was not meant to dismiss the Garcia action (case no. BC643161) alleged against third-parties and related cross-complaints. Thus, Garcia moves for an order vacating the dismissal of the Garcia action so that it is restored to the civil active list and request that a new final status conference and trial date be set.

In support of the motion, Garcia provides the declaration of his counsel, F. Steve Ryneal. Mr. Ryneal states that he filed the complaint on Garcia’s behalf in the Garcia action, naming Plas-Tal, Bigge, and Scott Palmer as defendants; Brunton filed a cross-complaint against Bigge and Palmer; and Bigge filed a cross-complaint against Brunton. (Ryneal Decl., ¶¶2-4.) A parallel action was filed by Arch against Brunton in the Arch action to recover workers compensation benefits paid to Garcia; both Benton and Bigge filed cross-complaints in the second action. (Id., ¶¶5-7.) The Garcia action (BC643161) and the Arch action (BC651073) were consolidated on June 6, 2017. (Id., ¶8.) Counsel states that the parties in the Arch action later settled via a Compromise and Release agreement, and that the stipulation and order was intended only to dismiss the complaint and related cross-complaints in the Arch action only—not the Garcia action. (Id., ¶¶9-10, Ex. A.) He states that it was not the intent of the parties or their counsel to dismiss the Garcia action and related cross-complaints therein with the Arch action. (Id., ¶12.) Mr. Ryneal states that the stipulation and order was misconstrued such that the Garcia case was dismissed and the FSC and trial dates vacated (initially set for January 16 and 27, 2020, respectively). (Id., ¶¶13-14.) He states that the parties only recently discovered the accident when Bigge’s counsel went only to check the status of the case. (Id., ¶15.)

Based on the declaration of Garcia’s counsel, the Court finds that there is substantive merit to granting this motion. The motion was filed within 6 months of the dismissal. Also, the policy of the law is to have a hearing on the merits wherever possible and appellate courts are much more disposed to affirm an order when the result is to compel a trial on the merit than it is when the judgment by default is allowed to stand, and it appears that a substantial defense could be made. (Thompson v. Sutton (1942) 50 Cal.App.2d 272, 276.)

CONCLUSION AND ORDER

For the reasons stated above, Plaintiff’s motion to vacate the dismissal entered in the Garcia case (case no. BC643161) is granted.

The Court sets a Case Management Conference for March 12, 2020.

Plaintiff shall provide notice of this order.