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This case was last updated from Los Angeles County Superior Courts on 08/14/2019 at 08:54:33 (UTC).

JORGE GUZMAN JR VS HECTOR CHAVEZ ET AL

Case Summary

On 10/30/2014 JORGE GUZMAN JR filed a Personal Injury - Other Personal Injury lawsuit against HECTOR CHAVEZ. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is BENNY C. OSORIO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2564

  • Filing Date:

    10/30/2014

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

BENNY C. OSORIO

 

Party Details

Plaintiff and Petitioner

GUZMAN JORGE JR.

Claimant

DIRECTOR OF INDUSTRIAL RELATIONS AS

Defendants and Respondents

ALVAREZ PHILMA

CHAVEZ HECTOR

DOES 1 THROUGH 20

ROBLEDO KEVIN W. DOE 3

AVALON FOODS INC. DOE 1

YOUNAN EDWARD W. DOE 2

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

LAW OFFICES OF ALEXANDER J. PEREZ

ABIR COHEN TREYZON SALO LLP

ALEXANDER J. PEREZ ESQ.

Claimant Attorney

BETHGE MICHELLE COUNSEL

Defendant Attorney

ANDERSON MICHAEL D. ESQ.

 

Court Documents

PLAINTIFF'S OPPOSITION TO DEFENDANTS' EX PARTE APPLICATION TO CONTINUE TRIAL; DECLARATION OF AARON LAVINE

8/1/2018: PLAINTIFF'S OPPOSITION TO DEFENDANTS' EX PARTE APPLICATION TO CONTINUE TRIAL; DECLARATION OF AARON LAVINE

DECLARATION OF PHILMA CHAVEZ IN SUPPORT OF DEFENDANTS' SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

8/30/2018: DECLARATION OF PHILMA CHAVEZ IN SUPPORT OF DEFENDANTS' SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Ex Parte Application

10/30/2018: Ex Parte Application

Declaration

11/7/2018: Declaration

Opposition

7/1/2019: Opposition

Ex Parte Application

7/2/2019: Ex Parte Application

Request for Judicial Notice

7/10/2019: Request for Judicial Notice

COMPLAINT FOR DAMAGES, RESTITUTION AND INJUNCTIVE RELIEF FOR: 1. NEGLIGENCE; ETC

10/30/2014: COMPLAINT FOR DAMAGES, RESTITUTION AND INJUNCTIVE RELIEF FOR: 1. NEGLIGENCE; ETC

SUMMONS

10/30/2014: SUMMONS

STATEMENT OF DAMAGES

2/9/2015: STATEMENT OF DAMAGES

PROOF OF SERVICE SUMMONS

2/9/2015: PROOF OF SERVICE SUMMONS

REQUEST FOR ENTRY OF DEFAULT

2/9/2015: REQUEST FOR ENTRY OF DEFAULT

ORDER RE: DEMURRER

2/6/2017: ORDER RE: DEMURRER

DEFENDANT YOUNAN'S REQUEST FOR JUDICIAL NOTICE

2/28/2017: DEFENDANT YOUNAN'S REQUEST FOR JUDICIAL NOTICE

ORDER RE: DEFENDANT EDWARD YOUNAN'S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

3/29/2017: ORDER RE: DEFENDANT EDWARD YOUNAN'S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT

PLAINTIFF'S CONSOLIDATED REPLY TO DEFENDANT YOUNAN'S OPPOSITION RE MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, REQUEST FOR ADMISSONS AND REQUESTS FOR PRODUCTION, AND FOR IMPOSITION OF

7/28/2017: PLAINTIFF'S CONSOLIDATED REPLY TO DEFENDANT YOUNAN'S OPPOSITION RE MOTION TO COMPEL FURTHER RESPONSES TO FORM INTERROGATORIES, REQUEST FOR ADMISSONS AND REQUESTS FOR PRODUCTION, AND FOR IMPOSITION OF

ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

8/3/2017: ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

Minute Order

9/12/2017: Minute Order

152 More Documents Available

 

Docket Entries

  • 10/21/2019
  • Hearingat 09:30 AM in Department 56 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 08/14/2019
  • Hearingat 09:30 AM in Department 56 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 08/12/2019
  • Docketat 09:30 AM in Department 56; Jury Trial - Not Held - Continued - Stipulation

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  • 07/23/2019
  • Docketat 08:30 AM in Department 56; Final Status Conference - Held - Continued

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  • 07/23/2019
  • DocketMinute Order ( (Final Status Conference)); Filed by Clerk

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  • 07/23/2019
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by Clerk

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  • 07/23/2019
  • DocketNotice (of Non-Opposition to Plaintiffs Motions in Limine 1 - 3); Filed by Jorge, Jr. Guzman (Plaintiff)

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  • 07/22/2019
  • Docketat 08:30 AM in Department 56; Final Status Conference - Not Held - Advanced and Continued - by Court

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  • 07/22/2019
  • DocketProof of Service (not Summons and Complaint); Filed by Jorge, Jr. Guzman (Plaintiff)

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  • 07/18/2019
  • DocketWitness List; Filed by Jorge, Jr. Guzman (Plaintiff)

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308 More Docket Entries
  • 02/09/2015
  • DocketDefault Entered; Filed by Plaintiff/Petitioner

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  • 02/09/2015
  • DocketStatement of Damages (Personal Injury or Wrongful Death); Filed by Plaintiff/Petitioner

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  • 02/09/2015
  • DocketPROOF OF SERVICE SUMMONS

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  • 02/09/2015
  • DocketREQUEST FOR ENTRY OF DEFAULT

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  • 02/09/2015
  • DocketPROOF OF SERVICE SUMMONS

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  • 02/09/2015
  • DocketSTATEMENT OF DAMAGES

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  • 02/09/2015
  • DocketProof-Service/Summons; Filed by Jorge, Jr. Guzman (Plaintiff)

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  • 10/30/2014
  • DocketCOMPLAINT FOR DAMAGES, RESTITUTION AND INJUNCTIVE RELIEF FOR: 1. NEGLIGENCE; ETC

    Read MoreRead Less
  • 10/30/2014
  • DocketSUMMONS

    Read MoreRead Less
  • 10/30/2014
  • DocketComplaint; Filed by Jorge, Jr. Guzman (Plaintiff)

    Read MoreRead Less

Tentative Rulings

Case Number: BC562564    Hearing Date: November 25, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

JORGE GUZMAN, JR.,

Plaintiff,

vs.

HECTOR CHAVEZ, et al.,

Defendants.

CASE NO.: BC562564

[TENTATIVE] ORDER RE: MOTION FOR SUMMARY ADJUDICATION; MOTION FOR SANCTIONS

Date: November 25, 2020

Time: 8:30 a.m.

Dept. 56

Jury Trial: June 7, 2021

MOVING PARTIES: Defendants Edward W. Younan (“Younan”) and Avalon Foods, Inc. (“Avalon”)

RESPONDING PARTY: Plaintiff Jorge Guzman, Jr.

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

Plaintiff’s operative Second Amended Complaint (“SAC”) alleging causes of action for: (1) negligence; (2) intentional infliction of emotional distress; and (3) violation of California Business and Professions Code, Section 17200, et seq.

On August 30, 2018, Defendants filed a motion for summary judgment or, in the alternative, summary adjudication. Defendants contended that there was: (1) no triable issue of material fact as to Plaintiff’s first cause of action because Defendants were not Plaintiff’s employers; (2) no triable issue of material fact as to the second cause of action in the SAC because Defendants did not engage in outrageous conduct, Plaintiff did not suffer severe emotional distress, and any emotional distress Plaintiff suffered was not proximately caused by Defendants’ alleged outrageous conduct; and (3) no triable issue of material fact as to the third cause of action in the SAC because Defendants did not engage in unlawful business practices and Plaintiff did not suffer any injury in fact or lose money due to Defendants’ alleged unfair business practices.

On November 21, 2018, the Court ruled on Defendants’ motion for summary judgment or, in the alternative, summary adjudication. The Court granted Defendants’ motion in part. The Court: (1) denied Defendants’ motion as to the first cause of action; (2) denied Defendants’ motion as to the second cause of action[1]; and (3) granted Defendants’ motion as to the third cause of action.

Phase I of the trial in this matter was held before a jury. The jurors found, by a vote of ten to one, that Plaintiff was an employee of Avalon at the time he was struck by the vehicle and, by a vote of eight to three, that Plaintiff was an employee of Younan at the time he was struck by the vehicle. The verdict form indicating such was filed on October 25, 2019. Phase II of the trial is set to commence on June 7, 2021.

The Current Motions and Relevant Procedural History

On February 10, 2020, Defendants filed a motion for summary adjudication (the “Motion”)[2] on the following issues: (1) there is no triable issue of material fact as to Plaintiff’s first cause of action for negligence against Younan and Avalon on the grounds that Plaintiff was not injured in the course and scope of his employment with those Defendants; (2) there is no triable issue of material fact as to Plaintiff’s first cause of action for negligence against Younan and Avalon on the grounds that there is no basis to hold them liable for the alleged negligence of Plaintiff’s “employee-supervisor” as alleged in the SAC; (3) there is no triable issue of material fact as to Plaintiff’s first cause of action for negligence against Younan and Avalon on the grounds that Odelia Hernandez did not breach her duty of care or cause Plaintiff’s injury and Defendants have rebutted the Labor Code § 3708 presumption as a matter of law; and (4) there is no triable issue of material fact as to Plaintiff’s first cause of action for negligence against Younan and Avalon on the grounds that they did not operate a joint venture with Philma and Hector Chavez, were not each other’s alter egos, and Philma and Hector Chavez were not the agents or employees of Younan and Avalon.

.

Plaintiff filed a motion for sanctions on the ground that, although bifurcated, trial has already commenced, and a motion for summary judgment cannot be made after the beginning of trial. The Court will address the motions filed by the parties in this ruling.

EVIDENTIARY OBJECTIONS

The Court SUSTAINS Plaintiff’s evidentiary objections numbers 1-27 to the evidence in support of the Motion.

The Court SUSTAINS Defendants’ evidentiary objections numbers 1-8 to Plaintiff’s evidence in opposition to the Motion.

JUDICIAL NOTICE

The Court GRANTS Defendants’ request for judicial notice.

MOTION FOR SUMMARY ADJUDICATION

Initially, Defendants contend that: (1) the Motion is based on arguments not addressed in their first motion for summary judgment; and (2) the Motion is based on newly discovered facts. Plaintiff contends that Defendants cannot file a motion for summary adjudication after the start of a bifurcated trial.

Issue No.1: Timeliness of the Motion

Defendants’ reliance on: (1) Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60; (2) Green v. Bristol Myers Co. (1988) 206 Cal.App.3d 604; and (3) Horton v. Jones (1972) 26 Cal.App.3d 952 is inapposite. Defendants’ citation and reliance on Odening v. Evans (2006) 2006 WL 711071 is improper. California Rules of Court, Rule 8.1115(a) states that an opinion of the California Court of Appeal that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.

Code Civ. Proc. § 437c(a)(3) states that a motion for summary adjudication shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. A trial court has broad discretion to refuse to consider papers served and filed beyond a statutory deadline without a prior court order finding good cause for late submission. (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765.)

The Court finds that the Motion is procedurally improper. Trial has already commenced and Phase One of trial has been completed. Defendants provide no applicable legal authority to support their argument that the Motion is timely and also have failed to make a showing of good cause through the declarations in support of the Motion[3]. The Motion was filed too late.

Therefore, the Motion is DENIED WITH PREJUDICE. The Court need not address any of the other arguments raised by the parties due to the untimeliness of the Motion. The Court will now address the motion for sanctions filed by Plaintiff.

As the moving parties on the Motion, the Court orders Defendants to give notice of this ruling as to the Motion.

MOTION FOR SANCTIONS

Plaintiff’s motion for sanctions is made on the grounds that the Motion is procedurally flawed in that there is no procedural mechanism for Defendants to request summary judgment at this stage of the case[4]. Plaintiff requests the following sanctions against Defendants and their law firm Anderson & Associates, LLP: (1) the attorney’s fees and costs incurred by Plaintiff in opposing the Motion; and (2) the attorney’s fees and costs incurred by Plaintiff in bringing the motion for sanctions, specifically, $5,500.00 in fees already incurred plus such additional fees as will be incurred in preparing a reply brief and attending the hearing on the motion for sanctions, estimated to be $3,025.00. Plaintiff’s motion for sanctions is procedurally compliant under Code Civ. Proc. § 128.7(c)(1).

Legal Standard

Under Code Civ. Proc. § 128.7, there are three types of submitted papers that warrant sanctions: factually frivolous (not well grounded in fact); legally frivolous (not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law); and papers interposed for an improper purpose. (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167.) To obtain sanctions under Code Civ. Proc. § 128.7 the moving party must show the party’s conduct in asserting the claim was objectively unreasonable. (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440.) A claim is objectively unreasonable if any reasonable attorney would agree that it is totally and completely without merit. (Id.) In the absence of contrary evidence, a court will presume that a party acted properly. (Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 83.) Under Code Civ. Proc. § 128.7, only an attorney or unrepresented party may be sanctioned. (In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1221.) Code Civ. Proc. § 128.7 does not authorize sanctions against the represented party. (Id.)

Analysis

The Court references its analysis as to the Motion. Initially, the court finds that Defendants’ opposition to the motion for sanctions makes the same argument and relies on the same cases relied upon as to the timeliness argument asserted in the Motion. Such cases are inapposite. The Motion is not warranted by existing law and is untimely. Defendants’ opposition to the motion for sanctions presents no applicable legal authority that a motion for summary adjudication can be filed after the commencement of a bifurcated trial.

The Court finds that Defendants—as represented parties—cannot be sanctioned under In re Marriage of Reese. Thus, if sanctions are imposed, sanctions will only be imposed against Defendants’ counsel. The Court, however, finds that sanctions against Defendants are not warranted. While their arguments in the Motion were unsuccessful, Defendants’ arguments were not frivolous and were made in good faith. Also, the declaration in support of the motion for sanctions does not set forth any evidence that: (1) Defendants acted improperly in filing the Motion; or (2) the Motion was objectively unreasonable.

Therefore, the Court DENIES Plaintiff’s motion for sanctions.

Plaintiff is ordered to give notice of this ruling as to the motion for sanctions to all interested parties.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 25th day of November 2020

Hon. Holly J. Fujie

Judge of the Superior Court


[1] The Court found that Plaintiff had demonstrated triable issues of fact as to Younan; however, the Court granted the motion as it pertained to Avalon.

[2] The Motion was not filed with an accompanying proof of service. Defendants are to provide the Court with a filed proof of service and the Court will discuss the effect, if any, such filed proof of service has on the Court’s ruling.

[3] In law and motion practice, factual evidence is supplied to the court by way of declarations. (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)

[4] Plaintiff refers to Defendants moving for summary judgment; however, this seems to be a typographical error because the Motion is a motion for summary adjudication.

Case Number: BC562564    Hearing Date: October 20, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

JORGE GUZMAN, JR.,

Plaintiff,

vs.

HECTOR CHAVEZ, et al.,

Defendants.

CASE NO.: BC562564

ORDER RE: MOTION FOR SANCTIONS

Date: October 20, 2020

Time: 8:30 a.m.

Dept. 56

On the Court’s own motion, the Court continues the hearing on Plaintiff’s motion for sanctions scheduled for 10/20/2020 at 8:30 a.m. at Stanley Mosk Courthouse in Department 56 to 11/25/2020 at 8:30 a.m. in Department 56.

Moving party is ordered to give notice of this order.

Dated this 20th day of October 2020

Hon. Holly J. Fujie

Judge of the Superior Court

Case Number: BC562564    Hearing Date: July 30, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

JORGE GUZMAN, JR.,

Plaintiff,

vs.

HECTOR CHAVEZ, et al.,

Defendants.

CASE NO.: BC562564

[TENTATIVE] ORDER RE: MOTION FOR SANCTIONS

Date: July 30, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Plaintiff Jorge Guzman, Jr.

RESPONDING PARTIES: Defendants Edward W. Younan (“Younan”) and Avalon Foods, Inc. (“Avalon”)

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

On October 13, 2014, Plaintiff filed a complaint against Defendants arising from Plaintiff allegedly being hit by a car during his employment with Defendants. Plaintiff filed a complaint alleging the following causes of action against Defendants: (1) negligence; (2) intentional infliction of emotional distress; and (3) violation of California Business and Professions Code, Section 17200, et seq.

On July 13, 2017, Plaintiff filed the operative Second Amended Complaint (“SAC”) alleging causes of action for: (1) negligence; (2) intentional infliction of emotional distress; and (3) violation of California Business and Professions Code, Section 17200, et seq.

On August 30, 2018, Defendants filed a motion for summary judgment or, in the alternative, summary adjudication. Defendants contended that there was: (1) no triable issue of material fact as to Plaintiff’s first cause of action because Defendants were not Plaintiff’s employers; (2) no triable issue of material fact as to the second cause of action in the SAC because Defendants did not engage in outrageous conduct, Plaintiff did not suffer severe emotional distress, and any emotional distress Plaintiff suffered was not proximately caused by Defendants’ alleged outrageous conduct; and (3) no triable issue of material fact as to the third cause of action in the SAC because Defendants did not engage in unlawful business practices and Plaintiff did not suffer any injury in fact or lose money due to Defendants’ alleged unfair business practices.

On November 21, 2018, the Court ruled on Defendants’ motion for summary judgment or, in the alternative, summary adjudication. The Court granted Defendants’ motion in part. The Court: (1) denied Defendants’ motion in connection with the first cause of action; (2) denied Defendants’ motion in connection with the second cause of action[1]; and (3) granted Defendants’ motion with respect to the third cause of action.

On October 24, 2019, the Court issued a minute order in connection with the jury trial in this action. The Court’s minute order stated that counsel for Plaintiff and Defendants gave closing arguments on that date. According to the Court’s minute order: (1) the jurors found, by a vote of ten to one, that Plaintiff was an employee of Avalon at the time he was struck by the vehicle; and (2) the jurors found, by a vote of eight to three, that Plaintiff was an employee of Younan at the time he was struck by the vehicle. The verdict form indicating such was filed on October 25, 2019.

On November 5, 2019, the Court issued a minute order in connection with a non-appearance case review regarding the second phase of trial. The Court set an order to show cause regarding the second phase of trial for February 11, 2020.

On February 10, 2020, Younan and Avalon filed a motion for summary adjudication[2] on the following issues: (1) there is no triable issue of material fact as to Plaintiff’s first cause of action for negligence against Younan and Avalon on the grounds that Plaintiff was not injured in the course and scope of his employment with those Defendants; (2) there is no triable issue of material fact as to Plaintiff’s first cause of action for negligence against Younan and Avalon on the grounds that there is no basis to hold them liable for the alleged negligence of Plaintiff’s “employee-supervisor” as alleged in the SAC; (3) there is no triable issue of material fact as to Plaintiff’s first cause of action for negligence against Younan and Avalon on the grounds that Odelia Hernandez did not breach her duty of care or cause Plaintiff’s injury and Defendants have rebutted the Labor Code § 3708 presumption as a matter of law; and (4) there is no triable issue of material fact as to Plaintiff’s first cause of action for negligence against Younan and Avalon on the grounds that they did not operate a joint venture with Philma and Hector Chavez, were not each other’s alter egos, and Philma and Hector Chavez were not the agents or employees of Younan and Avalon.

On February 11, 2020, the Court issued a minute order in connection with the order to show cause regarding the second phase of trial. In its minute order, the Court indicated that jury trial is scheduled for November 2, 2020.

The Current Motion

On April 30, 2020, Plaintiff filed and served a motion for sanctions. Plaintiff seeks sanctions against Defendants[3] and their law firm Anderson & Associates, LLP. Plaintiff requests that the Court impose the following sanctions: (1) the attorney’s fees and costs Plaintiff incurred in opposing Defendants’ motion for summary judgment; and (2) the attorney’s fees and costs Plaintiff incurred in bringing the instant motion, specifically $5,500.00 in fees already incurred plus such additional fees as will be incurred in preparing a reply brief and attending the hearing on the motion, estimated to be $3,025.00.

Plaintiff’s motion is made on the grounds that: (1) although bifurcated, trial has already commenced and a motion for summary judgment[4] cannot be made after the beginning of trial; (2) summary judgment was denied as to most of these issues in Defendants’ first unsuccessful motion brought over a year ago; (3) the jury’s findings at trial directly contradict the arguments advanced in Defendants’ motion for summary judgment; and (4) despite being confronted with these facts, and being well-aware of what was adjudicated during the first phase of trial, Defendants and their counsel continued with their meritless and procedurally bereft motion.

Plaintiff asserts that: (1) there is no procedural mechanism by which Defendants can file their second motion for summary judgment because trial has already started; (2) the time period to file a motion for summary judgment has therefore passed; and (3) Defendants have already brought an unsuccessful motion for summary judgment.

Defendants oppose Plaintiff’s motion on the grounds that: (1) Plaintiff’s motion for sanctions must be denied because it does not comply with the 21-day notice requirement; (2) Plaintiff has failed to meet his burden of proving that California Code of Civil Procedure, Section 128.7 has been violated; (3) Plaintiff fails to demonstrate that Defendants filed their motion for summary adjudication for an improper purpose; and (4) sanctions should be awarded against Plaintiff’s counsel.

Plaintiff’s April 30, 2020 notice of motion for sanctions did not indicate a date or time for such hearing. On June 30, 2020, Plaintiff filed and served a notice of motion for sanctions indicating that Plaintiff’s motion would be heard on July 30, 2020 at 8:30 a.m.

Declaration of Defendants’ Counsel

Defendants present the declaration of their counsel, Andrei V. Serpik (“Serpik”) in opposition to Plaintiff’s motion for sanctions. Serpik declares that: (1) on August 30, 2018, Defendants filed a motion for summary judgment arguing that there was no employment relationship between Plaintiff and Defendants so as to make Defendants liable for Plaintiff’s injury (Serpik Decl. at ¶ 2 and Exhibit A); (2) on November 21, 2018, the Court denied Defendants’ motion for summary judgment as to the negligence cause of action (Id. at ¶ 3 and Exhibit B); (3) on Defendants’ motion, the trial was bifurcated, with phase one of trial taking place on October 21, 2019 through October 24, 2019 (Id. at ¶ 4); (4) at the Final Status Conference, the Court indicated that the sole issue to be decided in phase one was whether Plaintiff was an employee (Id. at ¶ 4 and Exhibit C); (5) on December 12, 2019, Plaintiff filed a motion for prejudgment attachment arguing that the jury’s finding in phase one amounted to a conclusive determination that Plaintiff had prevailed on the issue of liability and that the only issue left to be determined was damages (Id. at ¶ 5 and Exhibit D); (6) the Honorable Judge Chalfant, sitting in Department 85, rejected Plaintiff’s argument and found that the jury’s phase one finding only included a finding of an employment relationship, which does not make liability a certainty (Id.); (7) Plaintiff’s motion was denied on March 10, 2020 (Id.); (8) on February 20, 2020, Defendants filed their renewed motion for summary adjudication which is the subject of Plaintiff’s motion for sanctions (Id. at ¶ 6); and (9) in their motion for summary adjudication, Defendants argue that Plaintiff was not injured in the course and scope of his employment with Defendants, there is no basis to hold Defendants vicariously liable for the cook’s alleged negligence, Defendants have rebutted any presumption of negligence, and Defendants should not be held liable as a joint venture of alter ego Philma Chavez. (Id.)

Serpik also declares that: (1) on April 7, 2020, Plaintiff served an un-filed motion for sanctions via e-mail (Id. at ¶ 7 and Exhibit E); (2) on April 30, 2020, Plaintiff filed his motion for sanctions with the Court and served a copy of the filed motion via e-mail on Defendants’ counsel (Id. at ¶ 8); (3) the filed motion, like the un-filed motion, did not indicate a hearing date (Id.); (4) on May 6, 2020, Plaintiff served, via e-mail, an amended motion for sanctions together with a cover letter stating that Plaintiff would be withdrawing the previously filed motion for sanctions and would be replacing it with the amended motion (Id. at ¶ 9 and Exhibit F); (5) on June 30, 2020, Plaintiff served via e-mail a notice of hearing indicating that the hearing date for the motion was set for July 30, 2020 (Id. at ¶ 10); (6) neither he nor his office has stipulated to accept electronic service in this matter (Id. at ¶ 11); and (7) neither he nor his office was ever contacted by Plaintiff to verify the appropriateness of any electronic service address before electronically serving the instant motion for sanctions. (Id. at ¶ 12.)

DISCUSSION

California Code of Civil Procedure, Section 128.7(b) provides that “[b]y presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances” that: (1) it is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. California Code of Civil Procedure, Section 128.7(c) provides that that “[i]f, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may . . . impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.”

California Code of Civil Procedure, Section 128.7(c)(1) provides that a motion for sanctions “shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.” Notice of a motion for sanctions must be in compliance with Section 1010 of the California Code of Civil Procedure. (Code Civ. Proc. § 128.7(c)(1).) “Notices must be in writing, and the notice of a motion . . . must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based.” (Code Civ. Proc. § 1010.) “Notices and other papers may be served upon the party or attorney in the manner prescribed in this chapter.” (Id.)

A motion for sanctions under California Code of Civil Procedure, Section 128.7(b)(1) may be brought if an opposing party presents a pleading to the court that is being presented for an improper purpose such as harassment, delaying litigation, or to increase litigation costs. A motion for sanctions under California Code of Civil Procedure, Section 128.7 “must be made separately from any other motion and describe with specificity the allegedly sanctionable misconduct.” (Nutrition Distribution, LLC v. Southern SARMs, Inc. (2018) 20 Cal.App.5th 117, 124.) “In addition, the party seeking sanctions must serve the motion on the opposing party without filing or presenting it to the court.” (Id.) “During this time the offending document may be corrected or withdrawn without penalty. If that occurs, the motion for sanctions may not be filed.” (Id.) “[T]he safe harbor period is mandatory and the full 21 days must be provided absent a court order shortening that time if sanctions are to be awarded.” (Id. at 125.)

Issue No. 1: Improper Notice

Defendants assert that Plaintiff’s notice served on Defendants on April 7, 2020 in connection with the un-filed motion did not comply with California Code of Civil Procedure, Section 1010. Defendants assert that such notice did not contain a date or time when the Court would hear the proposed motion. Plaintiff asserts that Defendants are seeking to take advantage of a national emergency with respect to the COVID-19 pandemic by citing to rules that have no application in a national emergency scenario.

A notice of motion for sanctions under California Code of Civil Procedure, Section 128.7 must be served pursuant to California Code of Civil Procedure, Section 1010. (Galleria Plus, Inc. v. Hanmi Bank (2009) 179 Cal.App.4th 535, 537.) “Section 1010 provides that notice of a motion must state when . . . it will be made.” (Id. at 537-538.) “Section 128.7 is designed to be remedial, not punitive.” (Id. at 538.) “The offending party can avoid sanctions by withdrawing the improper pleading during the [21-day] safe harbor period.” (Id.) “This permits a party to withdraw a questionable pleading without penalty, thus saving the court and the parties time and money litigating the pleading as well as the sanctions request.” (Id.) “A formal noticed motion is required to begin the 21-day period.” (Id.) “Strict compliance with the statute’s notice provisions serves its remedial purpose and underscores the seriousness of a motion for sanctions.” (Id.) “Section 128.7’s incorporation of section 1010 is compulsory, not permissive.” (Id.)

Declaration in Support of Plaintiff’s Reply Brief

In connection with his reply brief, Plaintiff provides a copy of the Los Angeles Superior Court’s April 22, 2020 Frequently Asked Questions COVID-19 Update. (Kelly Decl. at ¶ 3 and Exhibit 1.) Plaintiff presents evidence that during the emergency period, the Court’s electronic filing system was available; however, the Court’s reservation system was not available to schedule hearings on motions at the time, and a moving party would receive notice of a hearing date in connection with a motion at a later time. (Id., Exhibit 1 at ¶ 11.) Plaintiff also presents evidence that for those motions filed during the emergency period for which no hearing date was provided, a party would “eventually receive notice of [a] hearing date” and “[u]nless otherwise set by the court, the deadlines for filing moving papers, opposition and reply [papers] are governed by the hearing date pursuant to CCP § 1005.” (Id., Exhibit 1 at ¶ 12.)

Analysis

The Court finds that Defendants’ citation to Galleria is instructive. In Galleria, respondent served appellant with a purported notice of motion for sanctions against appellant on April 25, 2008. (Galleria Plus, Inc. v. Hanmi Bank (2009) 179 Cal.App.4th 535, 537.) The purported notice of motion indicated that the motion “would come on for hearing ‘on AAA at BBB.’” (Id.) On June 13, 2008, respondent served appellant with a motion for sanctions stating that the motion would be heard on August 6, 2008 and filed it with the court that same day. (Id.) The Galleria court held that the original purported notice of motion was defective because it did not specify “when the motion would be made” and as such the purported notice was fatally defective. (Id. at 538.) The Galleria court opined that the purported notice of motion did not specify when the motion would be made and as such the 21-day safe harbor period and the remedial purpose of the notice provisions set forth in California Code of Civil Procedure, Section 128.7 were not met. (Id.)

Here, the Court finds that the un-filed motion served on Defendants on April 7, 2020 did not set forth a date or time for such hearing. While the Court is conscious of the unavailability of the Court’s reservation system at the time, the Court finds that the language in Galleria is controlling. Like the notice of motion served by respondent in Galleria, Plaintiff’s un-filed motion for sanctions in the instant action: (1) did not set forth a date or time for the hearing on Plaintiff’s motion for sanctions; and (2) did not specify when such motion for sanctions would be made. (Serpik Decl. at ¶ 7 and Exhibit E.) Under Galleria, strict compliance with California Code of Civil Procedure, Section 1010 is required. Plaintiff’s un-filed motion for sanctions did not comply with the mandate set forth in Galleria. Plaintiff’s reply brief presents no citation to legal authority to rebut this point of argument advanced by Defendants.

Therefore, the Court finds that Plaintiff did not provide proper notice pursuant to Galleria.

Due to this finding and Plaintiff’s motion therefore being procedurally improper, the Court need not address any other substantive arguments Plaintiff has asserted.

The Court will now address Defendants’ request for sanctions against Plaintiff.

Issue No. 2: Sanctions

Defendants assert that they are entitled to sanctions in the amount of $4,900.00 against Plaintiff and his counsel of record, Abir Cohen Treyzon Salo, LLP.

California Code of Civil Procedure, Section 128.7(c)(1) provides that “the court may award to the prevailing party on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion [for sanctions]. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.” California Code of Civil Procedure, Section 128.7(h) provides that “[a] motion for sanctions brought by a party or a party’s attorney primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the costs of litigation, shall itself be subject to a motion for sanctions. It is the intent of the Legislature that courts shall vigorously use its sanction authority to deter the improper actions or tactics or comparable actions or tactics of others similarly situated.”

The Court exercises its discretion and denies Defendants’ request for monetary sanctions against Plaintiff and his counsel of record in the amount of $4,900.00. The Court cannot find that Plaintiff’s motion was brought for an improper purpose such as to delay litigation or increase litigation costs. As indicated above, Plaintiff’s motion is procedurally improper.

Therefore, the Court exercises its discretion and denies Defendants’ request for monetary sanctions against Plaintiff and his counsel of record in the amount of $4,900.00.

Plaintiff’s motion for sanctions pursuant to California Code of Civil Procedure, Section 128.7 is DENIED WITHOUT PREJUDICE.

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by CourtCall if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 30th day of July 2020

Hon. Holly J. Fujie

Judge of the Superior Court


[1] The Court found that Plaintiff had demonstrated triable issues of fact as to Younan; however, the Court granted the motion as it pertained to Avalon.

[2] The hearing on Defendants’ motion for summary adjudication is currently set for August 19, 2020.

[3] Plaintiff seeks sanctions only against Younan and Avalon and not any other defendants in this action in connection with his motion for sanctions.

[4] The Court assumes that Plaintiff is referring to the motion for summary adjudication as such motion was filed after trial commenced. Defendants’ motion for summary judgment was filed in August 2018, which was before the first phase of trial commenced in this action. Trial commenced in this action on October 21, 2019. Plaintiff has not yet filed an opposition to Defendants’ motion for summary adjudication.

Case Number: BC562564    Hearing Date: March 10, 2020    Dept: 85

Jorge Guzman v. Hector Chavez, et al., BC562564

Tentative decision on applications for right to attach orders: denied

Plaintiff Jorge Guzman (“Guzman”) applies for right to attach orders against Defendants Edward Younan (“Younan”) and Avalon Foods, Inc. (“Avalon”).

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

A. Statement of the Case

1. Complaint

Plaintiff Guzman commenced this action on October 30, 2014 against Defendants Hector Chavez and Philma Alvarez,[1] alleging causes of action for (1) negligence, (2) intentional infliction of emotional distress, and (3) violation of Bus. & Prof. Code section 17200. The Complaint alleges in pertinent part as follows.

On January 11, 2014, Guzman was employed by Defendants as a driver of fast-food trucks owned by Defendants Chavez and Alvarez, serving Mexican food at various locations in and around the City of Los Angeles under Alvarez’s supervision. Alvarez negligently instructed Guzman to retrieve a serving table in a manner that subjected Guzman to being struck by a car and severely injured.

Defendants breached a duty of care owed to Guzman not to place him needlessly in danger while carrying out the duties of his employment, resulting in him suffering severe and permanent injuries, including being rendered comatose for nearly three months, severe pain, mental and emotional suffering, medical costs and expenses, loss of earnings, loss of earning capacity, disfigurement, and other special and general damages for which Defendants are jointly and severally liable.

In April of 2014, following Guzman’s emergence from his comatose state and recuperation sufficient to be discharged to home care, Alvarez appeared at Guzman’s church and handed him $200, intimating that was all was owed to him for his work-related injuries. Alvarez was attempting to fool Guzman into believing that $200 was fair and final compensation for his severe and permanent injuries which could potentially total hundreds of thousands of dollars.

2. Course of Proceedings

According to proofs of service on file, Defendant Avalon was served with the Summons and Complaint via substitute service on August 29, 2016. The documents were thereafter mailed the same day. Defendant Younan was served with the Summons and Complaint via substituted service on October 14, 2016.

Avalon and Younan were served with the moving papers for the instant application via mail on December 10, 2019.

On October 24, 2019, a jury in this case determined that Guzman was an employee of Avalon and Younan at the time he was struck by a car.

B. Applicable Law

1. Entity Defendants

Attachment is a prejudgment remedy providing for the seizure of one or more of the defendant’s assets to aid in the collection of a money demand pending the outcome of the trial of the action. See Whitehouse v. Six Corporation, (1995) 40 Cal.App.4th 527, 533. In 1972, and in a 1977 comprehensive revision, the Legislature enacted attachment legislation (CCP §481.010 et seq.) that meets the due process requirements set forth in Randone v. Appellate Department, (1971) 5 Cal.3d 536. See Western Steel & Ship Repair v. RMI, (12986) 176 Cal.App.3d 1108, 1115. As the attachment statutes are purely the creation of the Legislature, they are strictly construed. Vershbow v. Reiner, (1991) 231 Cal.App.3d 879, 882.

A writ of attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or implied, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500). CCP §483.010(a). A claim is “readily ascertainable” where the amount due may be clearly ascertained from the contract and calculated by evidence; the fact that damages are unliquidated is not determinative. CIT Group/Equipment Financing, Inc. v. Super DVD, Inc., (2004) 115 Cal.App.4th 537, 540-41 (attachment appropriate for claim based on rent calculation for lease of commercial equipment).

All property within California of a corporation, association, or partnership is subject to attachment if there is a method of levy for the property. CCP §487.010(a), (b). While a trustee is a natural person, a trust is not. Therefore, a trust’s property is subject to attachment on the same basis as a corporation or partnership. Kadison, Pfaelzer, Woodard, Quinn & Rossi v. Wilson, supra, 197 Cal.App.3d at 4.

The plaintiff may apply for a right to attach order by noticing a hearing for the order and serving the defendant with summons and complaint, notice of the application, and supporting papers any time after filing the complaint. CCP §484.010. Notice of the application must be given pursuant to CCP section 1005, sixteen court days before the hearing. See ibid.

The notice of the application and the application may be made on Judicial Council forms (Optional Forms AT-105, 115). The application must be supported by an affidavit showing that the plaintiff on the facts presented would be entitled to a judgment on the claim upon which the attachment is based. CCP §484.030.

Where the defendant is a corporation, a general reference to “all corporate property which is subject to attachment pursuant to subdivision (a) of Code of Civil Procedure Section 487.010” is sufficient. CCP §484.020(e). Where the defendant is a partnership or other unincorporated association, a reference to “all property of the partnership or other unincorporated association which is subject to attachment pursuant to subdivision (b) of Code of Civil Procedure Section 487.010” is sufficient. CCP §484.020(e). A specific description of property is not required for corporations and partnerships as they generally have no exempt property. Bank of America v. Salinas Nissan, Inc., (“Bank of America”) (1989) 207 Cal.App.3d 260, 268.

A defendant who opposes issuance of the order must file and serve a notice of opposition and supporting affidavit as required by CCP section 484.060 not later than five court days prior to the date set for hearing. CCP §484.050(e). The notice of opposition may be made on a Judicial Council form (Optional Form AT-155).

The plaintiff may file and serve a reply two court days prior to the date set for the hearing. CCP §484.060(c).

At the hearing, the court determines whether the plaintiff should receive a right to attach order and whether any property which the plaintiff seeks to attach is exempt from attachment. The defendant may appear the hearing. CCP §484.050(h). The court generally will evaluate the attachment application based solely on the pleadings and supporting affidavits without taking additional evidence. Bank of America, supra, 207 Cal.App.3d at 273. A verified complaint may be used in lieu of or in addition to an affidavit if it states evidentiary facts. CCP §482.040. The plaintiff has the burden of proof, and the court is not required to accept as true any affidavit even if it is undisputed. See Bank of America, supra, at 271, 273.

The court may issue a right to attach order (Optional Form AT-120) if the plaintiff shows all of the following: (1) the claim on which the attachment is based is one on which an attachment may be issued (CCP §484.090(a)(1)); (2) the plaintiff has established the probable validity of the claim (CCP §484.090(a)(2)); (3) attachment is sought for no purpose other than the recovery on the subject claim (CCP §484.090(a)(3); and (4) the amount to be secured by the attachment is greater than zero (CCP §484.090(a)(4)).

A claim has “probable validity” where it is more likely than not that the plaintiff will recover on that claim. CCP §481.190. In determining this issue, the court must consider the relative merits of the positions of the respective parties. Kemp Bros. Construction, Inc. v. Titan Electric Corp., (2007) 146 Cal.App.4th 1474, 1484. The court does not determine whether the claim is actually valid; that determination will be made at trial and is not affected by the decision on the application for the order. CCP §484.050(b).

The amount to be secured by the attachment is the sum of (1) the amount of the defendant’s indebtedness claimed by the plaintiff, and (2) any additional amount included by the court for estimate of costs and any allowable attorneys’ fees under CCP section 482.110. CCP §483.015(a); Goldstein v. Barak Construction, (2008) 164 Cal.App.4th 845, 852. This amount must be reduced by the sum of (1) the amount of indebtedness that the defendant has in a money judgment against plaintiff, (2) the amount claimed in a cross-complaint or affirmative defense and shown would be subject to attachment against the plaintiff, and (3) the value of any security interest held by the plaintiff in the defendant’s property, together with the amount by which the acts of the plaintiff (or a prior holder of the security interest) have decreased that security interest’s value. CCP §483.015(b). A defendant claiming that the amount to be secured should be reduced because of a cross-claim or affirmative defense must make a prima facie showing that the claim would result in an attachment against the plaintiff.

Before the issuance of a writ of attachment, the plaintiff is required to file an undertaking to pay the defendant any amount the defendant may recover for any wrongful attachment by the plaintiff in the action. CCP §489.210. The undertaking ordinarily is $10,000. CCP §489.220. If the defendant objects, the court may increase the amount of undertaking to the amount determined as the probable recovery for wrongful attachment. CCP §489.220. The court also has inherent authority to increase the amount of the undertaking sua sponte. North Hollywood Marble Co. v. Superior Court, (1984) 157 Cal.App.3d 683, 691.

2. Individual Defendant

In addition to the foregoing, if the action is against a defendant who is a natural person, an attachment may be issued only on a commercial claim which arises out of the defendant’s conduct of a trade, business, or profession. CCP §483.010(c). Consumer transactions cannot form a basis for attachment. CCP §483.010(c); Kadison, Pfaelzer, Woodard, Quinn & Rossi v. Wilson, (1987) 197 Cal.App.3d 1, 4 (action involving trust property was a commercial, not a consumer, transaction).

Where the defendant is a natural person, the description of the property must be reasonably adequate to permit the defendant to identify the specific property sought to be attached. CCP §484.020(e). Although the property must be specifically described, the plaintiff may target for attachment everything the individual defendant owns. Bank of America v. Salinas Nissan, Inc., (1989) 207 Cal.App.3d 260, 268.

C. Governing Law

Liability for worker’s compensation shall exists against an employer for any injury sustained by his or her employees arising out of and in the course of the employment where, inter alia, (1) at the time of the injury, the employee is performing service growing out of, and incident to, his employment and is acting with in the course of his employment, and (2) the injury is proximately caused by the employment, with or without negligence. Labor Code §3600(a).

Every private employer shall secure the payment of worker’s compensation by being insured or by obtaining a certificate of consent for self-insurance from the Director of Industrial Relations. Labor Code §3700. If any employer fails to secure the payment of worker’s compensation, any injured employee may bring an action at law against the employer for damages as if the workers’ compensation statutory scheme did not apply. Labor Code §3706.

The injured employee may in such action attach the property of the employer, at any time upon or after the institution of such action, in an amount fixed by the court, to secure the payment of any judgment ultimately obtained. The provisions of the Code of Civil Procedure that are not inconsistent with this division, shall govern the issuance of, and proceedings upon, such attachment. Labor Code §3707.

In an action under Labor Code section 3707, it is presumed that the injury to the employee was the direct result and grew out of the negligence of the employer, and the burden of proof is upon the employer, to rebut the presumption of negligence. It is not a defense to the employer that the employee was guilty of contributory negligence, or assumed the risk of the hazard complained of, or that the injury was caused by the negligence of a fellow servant. No contract or regulation shall restore to the employer any of the foregoing defenses. Labor Code §3708.

D. Statement of Facts

1. Plaintiff’s Evidence[2]

Guzman secured a jury verdict against Defendants on October 24, 2019 on the issue of Guzman’s employment. Lavine Decl. ¶3. The remaining phase of the trial, which includes allegations sufficient to establish punitive damages, is pending. Lavine Decl. ¶4. A status conference and OSC re: second phase of trial was set for February 11, 2019.[3] Lavine Decl. ¶5.

Guzman alleged in the Complaint that Defendants Younan and Avalon were his employers, which was disputed by Defendants. Lavine Decl. ¶9.

On October 21, 2019, pursuant to Defendants’ motion for bifurcation, the first phase of trial before a jury began on the issue of whether Defendants where Guzman’s employers at the time Guzman suffered injury. Lavine Decl. ¶10. The jury found that both Younan and Avalon were Guzman’s employers at the time of his injury. Lavine Decl. ¶11.

A copy of a preliminary lien notice from Medi-Cal is attached as Exhibit 1. Lavine Decl. ¶12.

Guzman testified at trial that he paid $500 per week and that he now makes $100 per week selling odds and ends to food trucks. Lavine Decl. ¶14. Guzman is also entitled to lost past wages in an amount well in excess of $124,800, based on a conservative wage loss of $400 per week for six years since the date of the collision. Lavine Decl. ¶14. Plaintiff also suffered a future lost earning capacity in the amount of $592,569. Lavine Decl. ¶14, Ex. 3.

The attachment is not sought for a purpose other than the recover on a claim upon which attachment is based; Plaintiff does not seek attachment for an improper purpose. Lavine Decl. ¶¶ 18, 19.

Guzman believes that a real property refinancing transaction was made to take cash out of the business for the purpose of hindering, delaying, or defrauding his ability to collect on his eventual damages award. Lavine Decl. ¶21.

2. Defendants’ Evidence[4]

Defendants Alvarez and her husband Chavez are the owners and operators of the catering truck. Serpik Decl. ¶2.

Avalon is a catering truck commissary where Defendant Chavez and dozens of other independently owned catering truck fleet owners park their truck as required by Health and Safety regulations. Defendant Younan is the owner of Avalon, which was incorporated in 1977 and has been continuously operating since that time. Serpik Decl. ¶4, Ex. D.

On October 30, 2014, Guzman filed a civil action against Defendants Alvarez and her husband Chavez as Plaintiff's employers, alleging that they were negligent per se under Labor Code section 3708 due to their failure to carry workers' compensation insurance. Serpik Decl. ¶ 2, Ex. A.[5] In June 2016, Guzman added Defendants Younan and Avalon to the lawsuit, alleging that they also were his employers. Serpik Decl. ¶4, Ex. C.

One of the disputed contentions was that Defendants Avalon and Younan were Guzman’s employers. Serpik Decl. ¶5. Since this was a threshold issue, the trial court ordered that the trial be bifurcated so that the issue whether Defendants were Guzman’s employers would be tried first. Serpik Decl. ¶5. The court explicitly noted that Phase I would not determine liability, but only whether there was an employment relationship between Guzman and Defendants Avalon and/or Younan. Serpik Decl. ¶5, Ex. E.

On November 25, 2019, Guzman appeared ex parte requesting that a Temporary Restraining Order and Preliminary Injunction be issued, enjoining Defendants Avalon and Younan from utilizing their assets during the pendency of the trial, based on fears that Defendants would somehow hide assets. Serpik Decl. ¶6, Ex. F. The court denied the application, finding that there was no basis for the requested relief. Serpik Decl. ¶6, Ex. G.

On December 12, 2019, Defendants Avalon and Younan filed a Motion for Summary Adjudication, arguing that Guzman’s Complaint fails as a matter of law because the undisputed facts show that: (1) Guzman was not injured during the course and scope of his employment; (2) Defendants could not be held liable for the alleged negligent acts of Guzman’s “employee-supervisor” who was not an employee of Defendants; and (3) Defendants have rebutted the presumption of Labor Code section 3708 as a matter of law. Serpik Decl. ¶7.

D. Analysis

Plaintiff Guzman applies for right to attach orders against Defendants Avalon and Younan in the amount of $5,502,898.28.

1. A Claim on Which Attachment May Issue

If any employer fails to secure the payment of worker’s compensation, any injured employee may bring an action at law against the employer for damages. Labor Code §3706. The injured employee may, at any time upon or after institution of such action, obtain attachment in an amount fixed by the court to secure the payment of any judgment which is ultimately obtained. Code of Civil Procedure provisions that are not inconsistent with this division, shall govern the issuance of such attachment. Labor Code §3707.

Guzman’s claim is that he was injured on the job while employed by Defendants due to Defendants’ negligence. Lavine Decl. ¶¶ 4-7. Attachment is statutorily authorized for Guzman’s claim by Labor Code section 3707.

2. An Amount Due That is Fixed and Readily Ascertainable

A claim is “readily ascertainable” where the damages may be readily ascertained by reference to the contract and the basis of the calculation appears to be reasonable and definite. CIT Group/Equipment Financing, Inc. v. Super DVD, Inc., (2004) 115 Cal.App.4th 537, 540-41. The fact that the damages are unliquidated is not determinative. Id. But the contract must furnish a standard by which the amount may be ascertained and there must be a basis by which the damages can be determined by proof. Id. (citations omitted).

Guzman provides no admissible evidence establishing the amount of damages that he has or will suffer as a result of his injury. Strict compliance is required with statutory requirements for affidavits for attachment (Anaheim National Bank v. Kraemer, (1932) 120 Cal.App. 63, 65), and technical defects in a declaration for failure to comply with CCP section 2015.5 precludes its use as an evidentiary document. Witchell v. Korne, (1986) 179 Cal.App.3d 965, 975. All documentary evidence, including contracts and canceled checks, must be presented in admissible form, and admissibility as nonhearsay evidence or exception to the hearsay rule, such as the business records exception. Pos-A-Traction, Inc., v. Kepplly-Springfield Tire Co., (C.D. Cal. 2000) 112 F.Supp.2d, 1178, 1182. For business records, evidence should be presented to establish that the record was made in the regular course of business, at or near the time of the act or event, and the custodian of records or other qualified witness must identify the record and its mode of preparation, as well as the sources of information and method and time of preparation. Id.

Guzman’s attorney declaration fails to lay a proper foundation to show why he knows many of the facts set forth. As a result, numerous evidentiary objections were sustained. Guzman’s argument that the court should set an evidentiary hearing to support the amount of attachment is untenable. Reply at 3. It was his obligation to present admissible evidence with his application. The amount due is not fixed and readily ascertainable.

3. Probability of Success

Guzman asserts a probability of success on his claim, arguing that his claim is a legal certainty due to the jury’s verdict in the first phase of the trial. App. at 6. Guzman argues that because the jury verdict established that he was an employee of Defendants, it also established their liability and refuted all contributory negligence and relevant affirmative defenses pursuant to Lab. Code section 3700. App. at 6. Guzman claims that the only remaining matter in dispute is the amount of damages. App. at 6.

Guzman is wrong. As Defendants correctly note, the jury verdict does not make their liability a certainty. Younan Opp. at 8; Avalon Opp. at 7. The jury verdict for the first phase of the trial only found that an employment relationship existed between Guzman and Defendants. Lavine Decl. ¶11; Serpik Decl. ¶5. The trial court expressly noted that Phase I would not determine liability, but only whether an employment relationship existed between Guzman and Defendants Avalon and/or Younan. Serpik Decl. ¶5, Ex. E.

Contrary to Guzman’s argument, Labor Code sections 3707 and 3708 do not automatically apply simply because an employment relationship exists. To obtain a liability determination, Guzman must establish that he was injured in the course and scope of his employment, that his employers-supervisors (Chavez, Alvarez, and their supervising employee) were negligent, and that Defendants Avalon and Younan should be held vicariously liable for their actions. Defendants would also be permitted to present evidence rebutting the presumption that Guzman’s injury was the direct result of negligence by Chavez, Alvarez, or their employee supervisor under Labor Code section 3708.

Guzman has not presented any evidence to establish any of these required elements and has not established a probability of success on his claim.

4. Attachment is Based on a Commercial Claim

If the action is against a defendant who is a natural person, an attachment may be issued only on a commercial claim which arises out of the defendant’s conduct of a trade, business, or profession. CCP §483.010(c). Consumer transactions cannot form a basis for attachment. CCP §483.010(c); Kadison, Pfaelzer, Woodard, Quinn & Rossi v. Wilson, (1987) 197 Cal.App.3d 1, 4 (action involving trust property was a commercial, not a consumer, transaction).

Guzman’s claim arises from injuries he suffered while employed by Younan. Lavine Decl. ¶7. As his claim for damages is necessarily premised on the existence of an employment relationship between Guzman and Defendants, it arises out of Younan’s conduct of a catering truck commissary. Serpik Decl. ¶4, Ex. D.

5. Defendant’s Younan’s Property Is Not Adequately Described

Where the defendant is a natural person, the description of the property must be reasonably adequate to permit the defendant to identify the specific property sought to be attached. CCP §484.020(e). Although the property must be specifically described, the plaintiff may target for attachment everything the individual defendant owns. Bank of America v. Salinas Nissan, Inc., (1989) 207 Cal.App.3d 260, 268.

Guzman requests attachment to all property owned by Avalon, including but not limited to, business personal property, equipment, wine inventory, accounts receivables, and real property. App. at 7. Guzman requests attachment of all of Younan’s property through which he holds an interest in Avalon, specifically shares of Avalon, and any corporate property of Avalon in which Younan holds a personal interest. Mem. at 7-8.

Younan notes that Guzman did not describe any property to be attached on the Judicial Council form or in his supporting declaration and asserts that Guzman has failed to comply with the requirement to adequately describe the property to be attached. While Guzman describes the property to be attached in the memorandum supporting his application, this statement is not under penalty of perjury and is not sufficient for the purposes of CCP section 484.020(e).[6]

E. Conclusion

The applications for right to attach orders are denied.


[1] On May 16, 2016, Guzman amended the Complaint to add Kevin W. Robledo, Younan, and Avalon as Defendants.

[2] The court has ruled on Defendant Younan’s evidentiary objections by ruling on the courtesy copy of the evidentiary objections and interlineating the courtesy copy of the Declaration of Aaron Lavine where an objection was sustained. These rulings shall apply equally to Defendant Avalon’s evidentiary objections and will be available for counsels’ review after the hearing.

[3] At this status conference, a final status conference was set for October 19, 2020 and a jury trial was set for November 2, 2020.

[4] Defendants request judicial notice of the following documents filed in the instant matter: (1) Defendant’s Notice of Motion and Motion for Summary Adjudication, filed on February 10, 2020 (Ex. A); (2) Separately Bound Appendix Of Evidence In Support Of Defendants' Motion For Summary Adjudication (Ex. B); (3) Defendants’ Separate Statement Of Undisputed Facts In Support Of Motion For Summary Adjudication, filed on February 10, 2020 (Ex. C); and (4) Declaration Of Andrei Serpik In Support Of Defendants' Motion For Summary Adjudication, filed on February 10, 2020 (Ex. D). There is no need to judicially notice documents in the instant case file. A judge can always review the court file.

[5] On November 20, 2014, Guzman filed a workers’ compensation action against Defendants Alvarez and Chavez before the Workers’ Compensation Appeals Board based on the same injury. Serpik Decl. ¶3, Ex. B.

[6] Defendants point out that neither the applications nor the supporting declarations that are part of the application are dated. Opp. at 10. This is yet another reason why the applications must be denied. Without a date, the declaration does not meet the requirements of CCP section 2015.5. Guzman only replies that Defendants’ opposition is unsigned and undated. Reply at 4. This does not cure the defect in application.

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