On 07/06/2015 MACKENZIE BAKER-SMITH filed a Personal Injury - Motor Vehicle lawsuit against DROR SKOLNICK. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are HOWARD L. HALM, ROBERT B. BROADBELT and RANDOLPH M. HAMMOCK. The case status is Disposed - Judgment Entered.
Disposed - Judgment Entered
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
HOWARD L. HALM
ROBERT B. BROADBELT
RANDOLPH M. HAMMOCK
DOES 1 THROUGH 100
G&L DESIGN BUILDING & LANDSCAPE INC.
DOES 1 THROUGH 100
G&L DESIGN BUILDING & LANDSCAPE INC.
MACDONALD SCOTT L. ESQ.
EFFRES & ASSOCIATES APLC
PEARSON LYNNE ESQ.
MACDONALD SCOTT L. ESQ.
4/17/2018: NOTICE TO REPORTER TO PREPARE TRANSCRIPT ON APPEAL UNLIMITED CIVIL
7/22/2015: DECLARATION OF NON SERVICE
7/22/2015: PROOF OF SERVICE SUMMONS
7/22/2015: PROOF OF SERVICE SUMMONS
8/13/2015: CROSS-COMPLAINT OF MEGHAN SMITH AND MARGARET SMITH FOR INDEMNITY, CONTRIBUTION AND DECLARATORY RELIEF
8/13/2015: SUMMONS CROSS-COMPLAINT
8/13/2015: DEMAND FOR JURY TRIAL
8/21/2015: DEMAND FOR JURY TRIAL AND NOTICE OF POSTING JURY FEES
12/12/2016: DEFENDANTS' MOTION IN LIMINE TO LIMIT THE TESTIMONY AND OPINIONS OF RETAINED EXPERTS TO OPINIONS GIVEN AT THEIR DEPOSITIONS (KENNEMUR) [NO. 1 OF 2]
12/13/2016: DEFENDANTS' TRIAL BRIEF RE: APPORTIONMENT OF LIABAILITY AND DAMAGES
12/15/2016: PLAINTIFF'S OPPOSITION TO MOTION IN LIMINE OF DEFENDANTS MEGHAN SMITH AND MARGARET SMITH TO LIMIT OPINIONS OF RETAINED EXPERTS TO THOSE OPINIONS GIVEN AT THEIR DEPOSITIONS; MEMORANDUM OF POINTS AND AU
1/31/2017: DEFENDANTS, MEGHAN SMITH AND MARGARET SMITH?S APPLICATION FOR GOOD FAITH DETERMINATION OF THEIR SETTLEMENT
3/13/2017: PLAINTIFF'S MOTION IN LIMINE NO. 4 TO PRECLUDE EXPERT TESTIMONY AND OPINIONS FROM JASON GROOMER, DO, ETC
3/16/2017: REQUEST FOR DISMISSAL
3/21/2017: DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE TO PRECLUDE OPINION TESTIMONY OF INVESTIGATING OFFICERS AS TO THE CAUSE OF AND CONCLUSIONS RELATED TO SUBJECT ACCIDENT; .ETC.
3/30/2017: DEFENDANTS' OPPOSITION TO PLAINTIFF'S IVIOTION IN LIM1NE NO.5 TO PRECLUDE PHOTOGRAPHS FROM THE SECOND ACCIDENT
6/22/2017: NOTICE OF DEFAULT
Docketat 08:30 AM in Department 93; Unknown Event TypeRead MoreRead Less
DocketNtc to Reptr/Mon to Prep Transcrpt ([SUPPLEMENTAL] ); Filed by ClerkRead MoreRead Less
DocketNtc to Reptr/Mon to Prep Transcrpt; Filed by ClerkRead MoreRead Less
DocketNOTICE TO REPORTER TO PREPARE TRANSCRIPT ON APPEAL UNLIMITED CIVILRead MoreRead Less
DocketNOTICE TO REPORTER TO PREPARE TRANSCRIPT ON APPEAL (UNLIMITED CIVIL)Read MoreRead Less
DocketNOTICE TO REPORTER TO PREPARE TRANSCRIPT ON APPEAL PER CRC RULE 8.124Read MoreRead Less
DocketNtc to Reptr/Mon to Prep Transcrpt; Filed by ClerkRead MoreRead Less
Docketat 08:30 AM in Department S10; Unknown Event Type - HeldRead MoreRead Less
Docketat 08:30 AM in Department S10; Hearing on Motion to Tax Costs - HeldRead MoreRead Less
DocketReply to OppositionRead MoreRead Less
DocketCIVIL DEPOSITRead MoreRead Less
DocketReceipt (CIVIL DEPOSIT-JURY FEES ); Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
DocketReceipt; Filed by Mackenzie Baker-Smith (Plaintiff)Read MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketProof-Service/SummonsRead MoreRead Less
DocketProof-Service/Summons; Filed by Attorney for Plaintiff/PetitionerRead MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketCOMPLAINT FOR DAMAGESRead MoreRead Less
DocketComplaint; Filed by Mackenzie Baker-Smith (Plaintiff)Read MoreRead Less
DocketComplaintRead MoreRead Less
Case Number: BC587234 Hearing Date: May 20, 2021 Dept: W
MACKENZIE BAKER-SMITH V. DROR SKOLNICK ET AL.
motion to bifurcate, motion to compel further responses to requests for production of documents, and motion to quash plaintiff’s subpoena for production of business records issued to douglas carasso
Date of Hearing: May 20, 2021 Trial Date: N/A
Department: W Case No.: BC587234
This action arises out of an incident that occurred on the US 101 Freeway. Plaintiff Mackenzie Baker-Smith alleges on May 13, 2014, defendants operated their vehicle so negligently that a mattress fell out of the vehicle and caused Plaintiff to swerve to avoid it, leading to her claimed injuries.
On July 6, 2015, plaintiff filed a complaint against defendants Dror Skolnick, G&K Design Building & Landscape, Inc., Meghan Smith, and Margaret Smith asserting causes of action for negligence and negligence per se.
On August 13, 2015, defendants Meghan Smith and Margaret Smith filed a cross-complaint against Dror Skolnick and G&K Design Building & Landscape, Inc. asserting causes of action for implied indemnification, contribution, and declaratory relief.
On August 21, 2015, defendants Dror Skolnick and G&K Design Building & Landscape, Inc. filed a cross complaint against Meghan Smith and Margaret Smith asserting causes of action for indemnity and apportionment.
This case went to trial, and the jury returned a defense verdict. Plaintiff appealed, and the Court of Appeal reversed the judgment and remanded it due to the court’s determining that one jury instruction was improper.
1. Defendants Dror Skolnick and G&K Design Building & Landscape, Inc.’s Motion to Bifurcate Trial is GRANTED.
2. Plaintiff’s Motion to Compel Further Responses to Requests for Production of Documents is GRANTED, in part.
3. Defendants Dror Skolnick and G&K Design Building & Landscape, Inc.’s Motion to Quash Plaintiff’s Subpoena for Production of Business Records Issued to Douglas Carasso is GRANTED.
1. DEFENDANTS DROR SKOLNICK AND G&K DESIGN BUILDING & LANDSCAPE, INC.’S MOTION TO BIFURCATE TRIAL
Defendants Dror Skolnick and G&K Design Building & Landscape, Inc. move this court for an order granting a prior separate trial on liability before trial on damages issues this action. Defendants make the motion on the grounds that a prior separate trial on liability issues will promote the ends of justice, promote judicial economy and convenience of witnesses, and will avoid undue prejudice to the moving parties.
Defendants contend with the matter remanded for another trial, now set for June 21, 2021, substantial controversy remains as to fault. Specifically, plaintiff’s witnesses contend that the mattress came from Defendants’ vehicle; and Defendants maintain that it did not. Based on this liability dispute and the many injuries claimed and witnesses identified in support of plaintiff’s case, bifurcating liability from damages would tend to promote judicial efficiency, witness convenience, avoiding prejudice to Defendants, and the ends of justice. Moreover, based on the prior defense verdict and the arrival of new witness Jose Arevalo who will testify that the mattress definitely came out of a large light-colored dump truck – and certainly not defendant’s much smaller black trailer that was being hauled by another vehicle – defendant believes that the jury verdict on the liability issue will not be favorable to plaintiff such that the necessity of a trial on damages issues would be precluded.
“The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order, no later than the close of pretrial conference in cases in which such pretrial conference in cases in which such pretrial conference is to be held, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any party thereof in the case . . .” (CCP §598.) Where trial of the issue of liability as to all causes of action precedes the trial of other issues or parts thereof and the decision of the court or jury is in favor of the allegedly liable party, judgment in favor of that party shall be entered and no trial of other issues in the action against that party will be had. (Ibid.) If the decision of the court or jury on the issue of liability is against the party allegedly liable, the trial of the other issues shall be had before the same or another jury as ordered by the court. (Ibid.)
Plaintiff filed a notice of non-opposition on December 10, 2020. The court finds Defendants have established bifurcation in the instant matter would further the interests of justice, expediency of trial, judicial economy and eliminate potential confusion or prejudice. As noted by defendants, there remains substantial controversy as to fault, with plaintiff maintaining that the mattress came from defendants’ vehicle and defendants maintaining that it did not. Moreover, the arrival of new witness Jose Arevalo may preclude the necessity of a trial on damages issues and plaintiff’s purported injuries (including traumatic brain injury and loss of sense of smell or taste, as well as mental and emotional distress) may bias the jury when making its determination on liability.
Accordingly, defendant’s motion to bifurcate is GRANTED.
2. PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS
Plaintiff Mackenzie Smith-Baker seeks to compel further responses to Requests for Production from defendant Dror Skolnick, and for monetary sanctions against this defendant and/or his attorneys of record in the sum of $825.00. Plaintiff contends good cause exists as the demands are relevant to the subject matter of the action, and that defendant’s responses to Requests for Production at issue contained a representation of inability to comply that is inadequate, incomplete, or evasive, and that objections raised to the responses are without merit and/or or too general.
Plaintiff contends the requests seek production of written communications between the defense and Jose Arevalo, a newly discovered eyewitness to the May 13, 2014 car accident giving rise to this action. Plaintiff contends the defense recently located this eyewitness and at the deposition, defense counsel Douglas Carasso revealed that he and Mr. Arevalo spoke on the telephone and exchanged text messages sometime in or around September 2020. Plaintiff seeks production of these known communications on the reasonable suspicion that Mr. Carasso influenced Mr. Arevalo’s memory of events that took place six years earlier. Plaintiff argues rather than respond substantively and sufficiently to the two Requests at issue, defendant raised numerous inapplicable including attorney work product. Even if the communications do constitute work product, any such protection has been waived.
In opposition, defendant argues the motion to compel is part of plaintiff’s counsel’s pattern of harassment and vengeance against defense in retaliation for defense counsel’s obtaining new testimony and the communications constitute protected work product. Specifically, witness statements obtained as a result of interviews conducted by an attorney or at an attorney’s direction are work product protected by Code of Civil Procedure section 2018.030. Moreover, plaintiff’s counsel had and continues to have every opportunity to contact this witness and is not entitled to take undue advantage of defense counsel’s efforts under the guise that he has “reasonable suspicion” of influence on his testimony simply because the witness’s testimony was not favorable to plaintiff’s case.
The court finds good cause for production of the communications. Both parties cite to Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214. In Nacht, the court held “[a] list of the potential witnesses interviewed by defendants' counsel which interviews counsel recorded in notes or otherwise would constitute qualified work product because it would tend to reveal counsel’s evaluation of the case by identifying the persons who claimed knowledge of the incident from whom counsel deemed it important to obtain statements. Moreover, any such notes or recorded statements taken by defendants’ counsel would be protected by the absolute work product privilege because they would reveal counsel’s ‘impressions, conclusions, opinions, or legal research or theories’ within the meaning of Code of Civil Procedure section 2018, subdivision (c). [Citation.]” (See Nacht & Lewis Architects, Inc. v. Superior Court (1996) 47 Cal.App.4th 214, 217.)
However, “a list of potential witnesses who turned over to counsel their independently prepared statements would have no tendency to reveal counsel’s evaluation of the case. Such a list would therefore not constitute qualified work product. Moreover, unlike interview notes prepared by counsel, statements written or recorded independently by witnesses neither reflect an attorney's evaluation of the case nor constitute derivative material, and therefore are neither absolute nor qualified work product.” (Nacht & Lewis Architects, Inc., supra, 47 Cal.App.4th at p. 217-218.)
Here, plaintiff is not seeking statements written or recorded independently by witnesses. Instead, plaintiff is seeking communications between counsel and witnesses. As to any communications there can be no work product or attorney client privilege asserted, as any such privilege would be waived by the communication itself. The court also finds no evidence to support defendant’s claim that this basic request for discoverable communications with a witness is a form of harassment or “vengeance.” The request is well within the ambit of ordinary discovery.
The court notes both parties disagree with the sufficiency of the meet and confer process. Defendant contends plaintiff’s counsel failed to reasonably or in good faith seek to resolve each of the issues raised in the motion as required by Code of Civil Procedure section 2016.040. Defendant further contends since Plaintiff’s counsel had not communicated any legally cognizable ground for why work-product protection did not apply to opposing counsel’s communication with a witness and why none of the other objections (including as to harassment, annoyance, and relevance) applied, an IDC was premature.
The court disagrees. Plaintiff has presented sufficient evidence they attempted to meet and confer in good faith before filing the instant motion. Code of Civil Procedure section 2016.040 requires a “reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” Counsel discussed in their meet and confer issues that they now seek resolution of in their motion to compel further.
Accordingly, plaintiff’s motion to compel further discovery responses is GRANTED in part. Defendant is ordered to produce any written communications of any kind between himself and his counsel with the witness. Defendant does not need to produce any note memorializing such communications or other documents reflecting the attorney’s impressions of the witness.
Plaintiff requests monetary sanctions against defendant Skolnick and/or his attorney of record in the amount of $825.00 on the grounds the objections raised to the requests in question were not only without merit but were frivolous and designed to delay and be evasive as well as his refusal to agree to participate in an IDC despite numerous requests, constitutes a failure to participate in good faith in the discovery process and necessitated the instant motion.
In opposition, defendant contends the sanctions are not warranted because defendant’s objections were with merit and has opposed the instant motion with substantial justification.
The court finds that sanctions are unwarranted as defendant’s objections did center on potentially privileged communications. Although the court ultimately disagrees with the position taken by defendant, the court nonetheless finds that that it was substantially justified.
3. DEFENDANTS DROR SKOLNICK AND G&K DESIGN BUILDING & LANDSCAPE, INC.’S MOTION TO QUASH PLAINTIFF’S SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS ISSUED TO DOUGLAS CARASSO
Defendants Dror Skolnick and G&K Design Building & Landscape, Inc. move the court for an order quashing the subpoena for Production of Business Records served upon defendant’s counsel, Douglas Carasso, seeking production of telephone billing records for four different telephone numbers. Defendants make the motion on the ground (1) the subpoena improperly seeks business records from an individual and is procedurally defective; (2) the subpoena is not reasonably calculated to lead to the discovery of admissible evidence; (3) the subpoena is unreasonable, harassing, oppressive, seeks to intimidate, and violates third-party privacy rights; and (4) the subpoena seeks attorney work-product.
Defendants submit evidentiary objections to the declaration of Justin J. Effres offered in support of plaintiff’s opposition.
The court sustains objection nos. 1, 2, 4, 6, 7, and 12.
Defendants move to quash the subpoena for production of business records. On October 27, 2020, plaintiff’s counsel issued a deposition subpoena for production of business records on behalf of plaintiff to defense counsel in his personal capacity as the custodian of records. Defendants state the subpoena requested all telephone billing records for four different telephone numbers, showing telephone calls and text message communications with two different telephone numbers. However, defendants argue plaintiff’s counsel is intentionally and improperly using the subpoena process to circumvent proper channels to obtain so-called “business records” from an individual who is not a business, does not maintain any of the requested records, and is unqualified to certify the requested telephone billing records.
Where personal records of a consumer are sought, the subpoenaing party shall, prior to the date for production, serve on the consumer a copy of the subpoena, affidavit supporting the issuance of the subpoena, if any,¿the notice to consumer, and a proof of service.¿(CCP §1985.3(b).)¿¿A party to a civil action to which a subpoena duces tecum is served may, prior to the date for production, bring a motion under 1987.1 to quash or modify the subpoena duces tecum. (CCP §1985.3(g).) “Notice of the bringing of that motion shall be given to the witness and deposition officer at least five days prior to production. The failure to provide notice to the deposition officer shall not invalidate the motion to quash or modify the subpoena duces tecum but may be raised by the deposition officer as an affirmative defense in any action for liability for improper release of records.” (Id.)¿¿
The court notes Plaintiff argues that defendant’s motion to quash plaintiff’s subpoena should be denied because it lacks a separate statement. A motion to quash production of documents at a deposition must be accompanied by a separate statement setting forth the particular documents or demands at issue and the factual and legal reasons why production should not be compelled. (Cal. Rules of Court, rule 3.1345(a)(5).) The court notes that defendant has failed to provide a separate statement with the motion. However, Rule 3.1345 does not necessarily preclude an order in the absence of a separate statement. (See Sinaiko Healthcare Consulting, Inc. v. Pac. Healthcare Consultants (2007) 148 Cal.App.4th 390, 409 n.14.) Defendant’s motion is otherwise procedurally proper, and the contents of the deposition subpoena is attached as Exhibit A, the court entertains plaintiffs’ motion.
Defendants first move to quash the subpoena on the grounds the subpoena was issued and served without any regard for the appropriate procedures. Douglas Carasso is an individual, not a business. In addition, the notice to consumer described above was not served on Mr. Carasso as required by Code of Civ. Proc. § 1985.3 (e) – rather, it was just dropped at his front door after attempted service had failed. Moreover, the telephone providers for each of the four telephone numbers are the custodians of such records and even if Mr. Carasso were the custodian of such records, he was not served with the subpoena as shown in the proof of service.
Plaintiff does not address this argument in the opposition. The court agrees defense counsel was not properly served with a notice to consumer. Moreover, defense counsel is not the custodian of records. This alone is grounds to grant the motion to quash. The subpoena must first be served on the consumer at least five days before it is served on the nonparty from whom records are sought (with a five-day extension if served by mail, pursuant to CCP §1013). (CCP §1985.3(b)(3).) A subpoena must be served on the custodian of records at least fifteen days before the date upon which records are to be produced. (CCP §§1985.3(d), 2020.410(c).) Therefore, as a practical matter, the subpoena must be personally served on the consumer at least twenty days before the date upon which records are to be produced. This is extended by an additional five days if service on the consumer is made by mail. (CCP §1985.3(b)(3).)
Although the court grants the motion to quash, the court will conduct an IDC on the underlying issue at the time of the hearing on May 20 in an effort to forestall further motion work on this issue. Some information about communications between defense counsel and this key witness are discoverable and some is not.
Accordingly, defendant’s motion to quash to subpoena is GRANTED.
Defendants also seek sanctions against Plaintiff and/or her counsel of record Justin J. Effres in the amount of $3,525.00. Defendants contend plaintiff and/or her counsel, Justin Effres, should be sanctioned for engaging in the misuse of discovery. Plaintiff’s trial counsel also threatened defense counsel, Douglas Carasso, with a subpoena for his phone, cell phone, and text message records in order to make him what plaintiff’s counsel called his “star witness” in an attempt to intimidate Defendants’ counsel and refute deposition testimony given by Jose Arevalo, a percipient witness to the subject incident, that was harmful to Plaintiff’s case. (Carasso Decl. ¶7; see Exh. C.)
In opposition, plaintiff argues sanctions are not warranted because the records sought are discoverable as plaintiff issued a subpoena that is narrowly tailored in both scope and intent. Thus, there is no misuse of the discovery process and at the very least, plaintiff has acted with substantial justification in seeking the discovery at issue and any imposition of sanctions would be unjust.
In making an order pursuant to motion made under subdivision (c) of Section 1987 or under Section 1987.1, the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive. (CCP §1987.2(a).)
The court does not find any misuse of the subpoena process, but merely that the plaintiff failed to strictly comply with consumer notice. Sanctions are denied.
Case Number: BC587234 Hearing Date: February 04, 2021 Dept: 28
The motion to quash will not be heard in dept. 28, spring st. courthouse. no further proceedings will be held in dept. 28, regardless of whether matters remain on the dept. 28 docket.After review of the court file, the Court makes the following order:
Department 28 of the Personal Injury Court has determined that the above entitled action is complicated based upon the number of pretrial hearings and/or the complexity of the issues presented. The case has been tried, appealed, and remanded.
AT THE DIRECTION OF DEPARTMENT 1:
This case is hereby transferred and reassigned to THE NORTHWEST DISTRICT, DEPT. W. All future proceedings except trial will be before a judge selected by the Supervising Judge in that district. Department 1 hereby delegates to the Independent Calendar Court the authority to assign the case for trial to that independent calendar court.
Any pending motions or hearings, including trial or status conferences, will be reset, continued or vacated at the direction of the newly assigned Independent Calendar Court at the Van Nuys Courthouse.
Plaintiff shall give notice to all parties of record.
Get Deeper Insights on Court Cases