SIAKIMATIVA SIMETA VS ALBERTA DEVELOPMENT PARTNERS LLC ET AL

Tentative Rulings

Case Number: BC643011 Hearing Date: April 25, 2023 Dept: C

SIMETA v. ALBERTA DEVELOPMENT PARTNERS, LLC, et al.

CASE NO.: BC643011

HEARING: 4/25/23 @ 1:30 PM

#5

TENTATIVE RULING

I. Cross-Defendant Crew Inc.’s motion for summary judgment or alternatively summary adjudication as to PCCP IRG Downey, LLC is CONTINUED to Friday, April 28, 2023 at 9:30 a.m. in Dept. C to confirm settlement. This action was settled in open court on March 14, 2023. However, to date, no Notice of Settlement for Request for Dismissal have been filed.

II. Cross-Defendant Crew Inc.’s motion for summary judgment or alternatively summary adjudication as to Command Performance Constructors, Inc. is CONTINUED to Friday, April 28, 2023 at 9:30 a.m. in Dept. C to confirm settlement. This action was settled in open court on March 14, 2023. However, to date, no Notice of Settlement for Request for Dismissal have been filed.

III. Cross-Defendant Crew Inc.’s motion for summary judgment or alternatively summary adjudication as to IRG Downey, LLC is CONTINUED to Friday, April 28, 2023 at 9:30 a.m. in Dept. C to confirm settlement. This action was settled in open court on March 14, 2023. However, to date, no Notice of Settlement for Request for Dismissal have been filed.

Moving Party to give NOTICE.

Case Number: BC643011 Hearing Date: April 20, 2023 Dept: C

SIMETA v. ALBERTA DEVELOPMENT PARTNERS LLC

CASE NO.: BC643011

HEARING: 04/20/23

#6

TENTATIVE ORDER

I. CROSS-DEFENDANT COLONIAL ELECTRIC, INC.’s Motion to Dismiss the Complaint FILED by Plaintiff ALFREDO PEREZ is CONTINUED to Friday, April 28, 2023 at 9:30 a.m. in Dept. SE-C to confirm settlement. This action was settled in open court on March 14, 2023. However, to date, no Notice of Settlement or Request(s) for Dismissal have been filed.

II. CROSS-DEFENDANT COLONIAL ELECTRIC, INC.’s Motion to Dismiss the Complaint FILED by Plaintiff SIAKIMATIVA SIMETA is CONTINUED to Friday, April 28, 2023 at 9:30 a.m. in Dept. SE-C to confirm settlement. This action was settled in open court on March 14, 2023. However, to date, no Notice of Settlement or Request(s) for Dismissal have been filed.

Moving Party to give notice.

Case Number: BC643011 Hearing Date: April 13, 2023 Dept: C

SIMETA v. ALBERTA DEVELOPMENT PARTNERS LLC

CASE NO.: BC643011

HEARING: 04/13/23

#3

TENTATIVE ORDER

I. Cross-Defendant in Intervention ALLIED WORLD SURPLUS LINES INSRUANCE COMPANY’s RENEWED Motion for Summary Judgment/Adjudication against Cross-Complainants ALBERTA DEVELOPMENT PARTNERS, LLC; LYLE PARKS JR. CONSTRCTION; PCCP IRG DOWNEY, LLC; IRG DOWNEY, LLC; and COMMAND PERFORMANCE CONSTRUCTORS, INC. is CONTINUED to Friday, April 28, 2023 at 9:30 a.m. in Dept. SE-C to confirm settlement. This action was settled in open court on March 14, 2023. However, to date, no Notice of Settlement or Request(s) for Dismissal have been filed.

II. Intervenor TWIN CITY FIRE INSURANCE COMPANY’s Motion for Summary Judgment/Adjudication against Cross-Complainants ALBERTA DEVELOPMENT PARTNERS, LLC; LYLE PARKS JR. CONSTRCTION; PCCP IRG DOWNEY, LLC; IRG DOWNEY, LLC; and COMMAND PERFORMANCE CONSTRUCTORS, INC. is CONTINUED to Friday, April 28, 2023 at 9:30 a.m. in Dept. SE-C to confirm settlement. This action was settled in open court on March 14, 2023. However, to date, no Notice of Settlement or Request(s) for Dismissal have been filed.

Moving Party to give notice.

Case Number: BC643011 Hearing Date: March 8, 2023 Dept: C

Colonial Electrical's ex parte application is GRANTED. The motion set for September 12, 2023, is advanced to this date, and continued to April 20, 2023, at 10:30 am in Dept. C. Moving Party to give notice.

Case Number: BC643011 Hearing Date: February 8, 2023 Dept: C

Cross-Defendant Crew, Inc. moves to specially set its motions for summary judgment to a date within 30 days of trial. Alternatively, Crew requests that the court continue trial, or sever the cross-complaints. Crew also requests that all five motions be heard on one day.

Cross-Defendant Crew, Inc.'s ex parte application is GRANTED in part. The court declines to continue trial, sever the Cross-Complaints, or set all five motions on one day. Hearing all motions in one day will overburden this court's resources.

The MSJ/MSA set for May 25, 2023[as to Lyle Parks] and the MSJ set for August 1, 2023 [as to Alberta Tierra Luna] are advanced to this date, and continued to March 30, 2023, at 1:30 pm in Dept. C.

The MSJ set for August 1, 2023 [as to IRG Downey] and the MSJ/MSA set forJuly 27, 2023 [as to PCCP IRG Downey], and the MSJ set for August 8, 2023 [as to Command Performance] are advanced to this date, and continued to April 25, 2023, at 1:30 pm in Dept. C.

Moving Party to give NOTICE.

Case Number: BC643011 Hearing Date: February 6, 2023 Dept: C

Cross-Defendant's ex parte application is GRANTED. The motion to dismiss is advanced to this date and continued to April 20, 2023, at 10:30 am in Dept. C. Briefing schedule per Code. Moving Party to give Notice.

Case Number: BC643011 Hearing Date: January 30, 2023 Dept: C

TENTATIVE RULING:

Simeta v. City of Alberta Development Partners BC643011

Plaintiffs' Ex Parte Application Re: Plaintiff's Motion for New Trial and Written Notice that Ruling Must be Made by Monday, January 30, 2023 is GRANTED. The Court will issue a ruling on Plaintiff's Motion for New Trial and Plaintiff's Request to Strike Defendants' Opposition to Plaintiff's Motion for New Trial by the close of business today. Moving Party to give notice.

Case Number: BC643011 Hearing Date: November 8, 2022 Dept: SEC

Siakimativa Simeta v. Alberta Development Partners, LLC, et al.

CASE NO.: BC643011 [c/w BC677157]

HEARING: 11/08/22

#3

TENTATIVE ORDER

GRANT THE MOTION TO BIFURCATE/TRIFURCATE, OR SEVER

Moving parties to give notice.

Factual Background

These consolidated actions arise out of a single car motor vehicle accident that occurred in September, 2015 at an active construction site in Downey. Plaintiffs Siakimativa Simeta and Alfredo Perez, security guards at the property where the accident took place, were injured when their motor vehicle struck an unseen concrete light pole base in the construction zone while they were patrolling the area. The concrete light pole base was constructed by co-defendant Command Performance Constructors, Inc., which had been been hired by co-defendant general contractor Lyle Parks.

Procedural Background

On December 7, 2016, Simeta filed a complaint alleging two causes of action for 1) negligence and 2) premises liability.

On September 25, 2017, Perez filed his complaint alleging two causes of action for 1) negligence and 2) premises liability.

On August 15, 2022, defendants Alberta Tierra Luna Management, LLC, Lyle Parks Jr. Construction, PCCP IRG Downey, LLC, and IRG Downey, LLC filed this motion to bifurcate, trifurcate, or sever trial.

On September 29, 2022, the court issued a ruling granting in part defendants’ summary judgment motions.

On October 18, 2022, plaintiffs filed an opposition to defendants’ motion.

On October 28, 2022, defendants filed a reply to plaintiffs’ opposition.

Moving Party Arguments

Defendants Alberta Tierra Luna Management, LLC, Lyle Parks Jr. Construction, PCCP IRG Downey, LLP, and IRG Downey, LLP (collectively “defendants”) move for an order to bifurcate, trifurcate or sever the issues of liability including but not limited to 1) the applicability of the Privette Doctrine, 2) damages, and 3) indemnity with respect to the personal injury actions brought by plaintiffs Siakimativa Simeta and Alfredo Perez (collectively “plaintiffs”).

Defendants argue that this order would A) simplify and organize the presentation of evidence, B) promote judicial economy, C) result in no prejudice to plaintiffs, D) prevent undue prejudice to defendants, and E) increase the likelihood of settlement.

Opposing Party Arguments

Plaintiffs argue that granting the motion would lead to separate trials to resolve the claims of two plaintiffs and therefore would require all of plaintiffs’ witnesses to come to court and testify at least three separate times. They argue this would burden judicial economy. Additionally, plaintiffs contend they would be prejudiced because defendants would have complete control over the manner and timing of presenting witnesses. Plaintiffs argue this is a bully tactic by defendants.

DISCUSSION

Legal Authority

Trial courts “may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby” order that “the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case.” Code of Civil Procedure Section 598. Additionally, “in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy,” courts may order a separate trial of any separate issue or of any number of causes of action of issues. Code of Civil Procedure Section 1048(b). Trial courts also possess broad discretion to “provide for the orderly conduct of proceedings before [them].” Code of Civil Procedure Section 128(3). The objective of bifurcating/trifurcating or severing trial is to avoid “the waste of time and money caused by the unnecessary trial of damage questions in cases where the liability issue is resolved against the plaintiff.” (Horton v. Jones (1972) 26 Cal.App.3d 952, 954.)

Analysis

Defendants move for an order severing or bifurcating/trifurcating the issues of liability from the issues of damages and indemnity. Defendants expect the issue of liability to be decided quickly compared to the issues of damages and indemnity. Defendants argue that resolution of the liability issue could eliminate the issues of damages and indemnity. Additionally, defendants argue that under the Privette Doctrine they did not owe any duty to plaintiffs because defendants had delegated all safety concerns to their subcontractors, did not affirmatively contribute to plaintiffs’ injuries, and did not conceal any preexisting and latent hazardous condition. Furthermore, defendants argue that admissible evidence and reasonable inferences drawn from the evidence establish that no exception to the Privette Doctrine exists.

Normally the court would defer this ruling to the trial court. However, in this case, based upon the court’s previous analysis and rulings, the court is going to rule on the motion. The court agrees with defendants that bifurcating the issues of liability and damages/indemnity will simplify the presentation of evidence and promote judicial economy while not prejudicing either party. Accordingly, the court grants defendants’ motion.

This Motion is Not Moot

Plaintiffs argue as a preliminary matter that defendants’ motion is moot following the court granting in part defendants’ motion for summary judgment on September 22, 2022. However, the court simultaneously denied defendants’ summary judgment motions for Twin City Fire Insurance Company (“Twin City”) and Allied World Surplus Lines Insurance Company (“Allied World”). Therefore, as liability as to Twin City and Allied World will potentially pose an indemnity issue for defendants later in trial, defendants have the right to contest liability and so have a role, albeit limited, in the liability phase. Accordingly, this issue is not moot.

The Issues at Play are Separate and Distinct

Courts favor granting motions to sever or bifurcate where the issues at play are distinct and separate. Downey Savings & Loan Assn. v. Ohio Casualty Ins. Co. 234 Cal.Rptr. 835, 872.

Here, the matters involved in the liability issue are clearly distinct and separate from those associated with damages and indemnity. Plaintiffs do not even attempt to argue that the damages, indemnity, and liability issues are interrelated. The issue of damages will be proven by extensive medical expert testimony. On the other hand, the issue of liability revolves around the issue of duty and whether or not an exception to the Privette Doctrine applies. Therefore, the issues defendants are seeking to bifurcate, trifurcate, or sever are not interrelated.

A. Granting the motion will Simplify and Organize the Presentation of Evidence

Defendants argue that granting the motion would simplify and organize the presentation of evidence because the jury could focus on the threshold issue, which is whether any exception to the Privette Doctrine applies. If the jury were to determine it did not apply, the trial would be simplified because there would be no need to hear evidence regarding damages or indemnification. And, even if the jury found an exception to the Privette Doctrine applied so that Twin City and Allied World did owe a duty to plaintiffs, granting this motion would preclude presenting duplicative evidence on damages and indemnification—first at this initial stage and then later during trial.

The issue of duty is a threshold issue. Accordingly, it should be isolated and considered first. As discussed above, the issues of damages and indemnity are moot if the jury finds that Twin City and Allied World did not owe a duty to plaintiffs. Therefore, it would be logical to begin the presentation of evidence with liability.

B. Serve the Interests of Judicial Economy

Defendants argue that granting the motion could improve judicial economy by disposing of a threshold issue at the outset of trial.

Due to the extensive medical fallout from the accident for both plaintiffs, the liability phase will require fewer witnesses than the damages phase. Therefore, as stated above, if the jury were to find there is no liability, the court could dismiss plaintiffs’ claims entirely without having to hear all of the evidence pertaining to damages and indemnity. Moreover, even if the jury were to find there was liability, the defendants might have more incentive to settle rather than proceed to trial. For these reasons, the court finds that granting the motion would serve the interests of judicial economy.

C. Neither Party will be Prejudiced

Defendants argue that granting the motion will not result in prejudice to either party because it will not preclude any relevant evidence from being heard; rather, it will efficiently organize the evidence. The court agrees. Because the evidence relating to damages and indemnity is completely distinct and separate from the evidence relating to liability, bifurcating the issues would not work to deprive the jury of important, relevant information. Therefore, plaintiffs would not be prejudiced. Any relevant evidence pertaining to damages or indemnity would be presented during the later stages if the trial were to proceed.

D. Denying the Motion Would Unduly Prejudice Defendants

The damages phase of trial will necessarily contain significant testimony from medical experts about the nature of plaintiffs’ injuries, their rehabilitation, and their future medical needs. This type of evidence has the potential to influence the jury emotionally to feel sympathy for plaintiffs. The court agrees with defendants that granting this motion would better ensure that the issue of whether an exception to the Privette Doctrine applies is decided on its merits.

CONCLUSION

For the above stated reasons, the court GRANTS defendants’ motion to bifurcate trial by separating the issue of liability from the issues of damages and indemnity.

Case Number: BC643011 Hearing Date: September 6, 2022 Dept: SEC

SIMETA v. ALBERTA DEVELOPMENT PARTNERS, LLC, et al.

CASE NO.: BC643011

HEARING: 9/6/22 @ 9:30 AM

TENTATIVE RULING

Cross-Defendant Crew, Inc.’s motion to quash service of summons and, alternatively, motion to dismiss for failure to serve Cross-Complainant, Alberta Tierra Luna Management, LLC’s second amended cross-complaint within three years is DENIED.

Opposing Party to give NOTICE.

Cross-Defendant Crew, Inc. moves to quash service of summons and, alternatively, motion to dismiss for failure to serve Cross-Complainant, Alberta Tierra Luna Management, LLC’s second amended cross-complaint within three years pursuant to CCP 418.10 and 583.210.

"(a) A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes: "(1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her." (CCP 418.10(a)(1).)

CCP 583.210 states that “[t]he summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant.” (Id.) A recognized exception to the general rule is the substitution under section 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint. If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed.” (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.) “Among the requirements for application of the section 474 relation back doctrine is that the new defendant in an amended complaint be substituted for an existing fictitious Doe defendant named in the original complaint.” (Id.)

Here, Alberta Tierra Luna Management, LLC sought leave to name Crew as a newly named defendant—not to substitute in as an existing Doe defendant. CCP 583.210 and the relation back doctrine do not apply.

The Motion is DENIED.

Case Number: BC643011 Hearing Date: August 31, 2022 Dept: SEF

SIMETA v. ALBERTA DEVELOPMENT PARTNERS LLC

CASE NO.: BC643011

HEARING: 08/31/22

#2

TENTATIVE ORDER

I. Cross-Defendant CREW, INC.’s Motion to Continue Trial and all Corresponding Pre-Trial Deadlines is GRANTED in part. The Alternative Motion to Sever all Cross-Complaints against Crew, Inc. is DENIED without prejudice.

II. Defendants/Cross-Defendants/Cross-Complainants COMMAND PERFORMANCE CONSTRUCTORS, INC.; LYLE PARKS JR. CONSTRUCTION; ALBERTA TIERRA LUNA MANAGEMENT, LLC; PCCP IRG DOWNEY, LLC; and IRG DOWNEY, LLC’s Joint Application to Continue Trial and all Related Pre-Trial Deadlines is GRANTED.

Moving Parties to give Notice.

Plaintiff ALFREDO PEREZ’s Joinder to All Oppositions for an Order Continuing the Trial Date filed by Plaintiff Simeta is GRANTED.

Cross-Defendant COLONIAL ELECTRIC, INC’s Joinder to Cross-Defendant Crew Inc.’s Motion to Continue Trial and Supplemental Brief in Support of Ex Parte Application for Order to Continue Trial is GRANTED.

This personal injury action was filed on December 7, 2016. The Court notes that the parties to the action as of March 10, 2022 had previously stipulated to extend the five-year cutoff to June 6, 2023. (See 03/10/22 Stip. and Order.) At the time the March 10, 2022 Stipulation and Order was entered, Cross-Defendant CREW, INC. (“Crew”) was not yet a party to this case.

Crew moves for an order to continue trial and all corresponding pre-trial deadlines to a date no sooner than October 12, 2023, or any date thereafter. Crew argues that a trial continuance to October 12, 2023, or any date thereafter, is necessary because Crew was recently named as a Cross-Defendant and has not had a reasonable opportunity to conduct discovery, file dispositive motions, and prepare for trial. Alternatively, Crew moves for an order severing all Cross-Complaints against Crew form the main action of Plaintiffs Simeta and Perez for purposes of trial.

Defendants/Cross-Defendants/Cross-Complainants COMMAND PERFORMANCE CONSTRUCTORS, INC.; LYLE PARKS JR. CONSTRUCTION; ALBERTA TIERRA LUNA MANAGEMENT, LLC; PCCP IRG DOWNEY, LLC; and IRG DOWNEY, LLC (collectively “Joint Defendants”) separately move to continue trial and all corresponding pre-trial deadlines to May 17, 2023, or the Court’s first available date thereafter. Joint Defendants argue that there is no practical way to proceed with trial on October 12, 2022 because: (1) Six new cross-defendants have been added to this action and the case is not fully at issue; (2) there is outstanding discovery—Plaintiff Simeta’s five IME’s must be coordinated and scheduled in Samoa; and (3) Defendants are not ready to begin expert depositions.

Plaintiff Simeta opposes a trial continuance. Simeta argues that the newly filed Cross-Complaints have nothing to do with the “main” action. Simeta maintains that the claims against the newly added Cross-Defendants should not be litigated in the same action. Consequently, Simeta does not oppose Crew’s alternative request to sever the Cross-Complaints against Crew from the main action.

The Joint Defendants do not oppose Crew’s motion to continue trial but do oppose Crew’s request that all cross-actions against it be severed from the main action. Joint Defendants argue that the key issues of comparative fault and indemnity rights are inextricably intertwined.

Defendant COMMAND PERFORMANCE CONSTRUCTORS, INC. (“Command”) opposes Crew’s motion to sever all cross-complaints against Crew, arguing that two separate trials would be duplicative. Command maintains that Crew and Colonial Electric, Inc. “would be stuck with the allocations of liability they are awarded at the first trial in which they served as empty chairs with no one to defend them” if severance is granted. (Opp. 2:27-3:1.)

“Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good case requiring the continuance. Circumstances that may indicate good cause include…. (2) The unavailability of a party because of death, illness, or other excusable circumstances…. (5) The addition of a new party if: (A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or (B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party’s involvement in the case. (6) A party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.” (CRC Rule 3.1332(c).) The Court, in making its determination to continue the trial should consider the following factors: (1) The proximity of the trial date; (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party (3) The length of the continuance requested; (4) The unavailability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) The prejudice that parties or witnesses will suffer as a result of the continuance; (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) The court’s calendar and the impact of granting a continuance on other pending trials; (8) Whether trial counsel is engaged in another trial; (9) Whether all parties have stipulated to a continuance; (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) Any other fact or circumstance relevant to the fair determination of the motion or application.” (CRC Rule 3.1332(d).)

The Court finds that a continuance to May 2023 (depending on the Court and parties’ availabilities) is warranted due to the inability of newly-added parties to conduct discovery and prepare for trial. Further, it is undisputed that there is a plethora of outstanding discovery in this action— the Joint Defendants have not been able to complete discovery, despite their diligent efforts. However, the Court does not find that a continuance to October 12, 2023 is warranted or feasible at this time. As indicated above, the (then) parties to the action only stipulated to extend the 5 year cut off to June 2023. “The parties may extend the time within which an action must be brought to trial pursuant to this article by the following means: (a) By written stipulation…. (b) By oral agreement….” (CCP 583.330.)

The Motion to Continue Trial to a date to approximately May 2023 is GRANTED. All pre-trial deadlines will track the new trial date. The Court will confer with the parties at the hearing in order to select the new MSC, FSC, and Trial dates.

Crew’s alternative motion for severance is DENIED without prejudice. A motion for severance asks the Court for separate trials on certain issues. Generally, the purpose of such motion is to avoid prejudice, promote convenience, or allow for economic and efficient handling of the case. (See CCP 1048(b).) Also, “[t]he court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby… make an order… that the trial of any issue or any part thereof shall precede the trial of any other issue of any part thereof….” (CCP 598.) The comparative fault and indemnity issues are inextricably intertwined, and the Court does not find that judicial economy or efficiency would be served by severance at this time. However, Crew is not foreclosed from seeking the trial court’s reconsideration of this issue.

Case Number: BC643011 Hearing Date: August 2, 2022 Dept: SEC

SIMETA v. ALBERTA DEVELOPMENT PARTNERS, LLC, et al.

CASE NO.: BC643011

HEARING: 8/2/22 @ 1:30 PM

JUDGE: MARGARET M. BERNAL

#Add-On

TENTATIVE RULING

I. Defendants Lyle Parks Jr. Construction, Inc.’s motion for summary judgment or, in the alternative, summary adjudication (Perez Case) is CONTINUED to Tuesday, August 16, 2022, at 1:30 pm in Dept. C.

II. Defendants Lyle Parks Jr. Construction, Inc.’s motion for summary judgment or, in the alternative, summary adjudication (Simeta Case) is CONTINUED to Tuesday, August 16, 2022, at 1:30 pm in Dept. C.

Moving Party to give NOTICE.

Case Number: BC643011 Hearing Date: July 27, 2022 Dept: SEC

SIMETA v. ALBERTA DEVELOPMENT PARTNERS, LLC, et al.

CASE NO.: BC643011

HEARING: 7/27/22 @ 1:30 PM

JUDGE: OLIVIA ROSALES

#Add-On

TENTATIVE RULING (REVISED)

Defendant Command Performance Constructors, Inc.’s motion for an order compelling Plaintiff, Siakimativa Simeta to appear for his independent medical examination is GRANTED in part and DENIED in part. Plaintiff Simeta is ordered to appear for an IME. However, the request to compel Plaintiff to conduct the IME in the United States is DENIED.

Opposing Party to give NOTICE.

Defendant Command Performance Constructors, Inc. (“CPC”) moves for an order compelling plaintiff to attend his five independent medical exams, noticed for August 17-18, 22-24, 2022, in California, pursuant to CCP 2032.310, 2032.320(a), (d), and (e).

Defendant’s Objection No. 3 is sustained and Plaintiff should share the Reply with Defendant. Objection Nos. 1-2 are overruled. Objection No. 4 is overruled because it concerns a separate order, and separate procedural rules govern objections to orders.

“(a) In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied: (1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive. (2) The examination is conducted at a location within 75 miles of the residence of the examinee. (b) A defendant may make a demand under this article without leave of court after that defendant has been served or has appeared in the action, whichever occurs first.” (CCP 2032.220.)

“(a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court. (b) A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (CCP 2032.310.)

“(a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown…. d) An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination. (e) If the place of the examination is more than 75 miles from the residence of the person to be examined, an order to submit to it shall be entered only if both of the following conditions are satisfied: (1) The court determines that there is good cause for the travel involved. (2) The order is conditioned on the advancement by the moving party of the reasonable expenses and costs to the examinee for travel to the place of examination.” (CCP 2032.320(a), (d), (e).)

After filing the above lawsuit in Los Angeles Superior Court, plaintiff thereafter relocated to the foreign country of Samoa. Plaintiff has refused Defendant’s offers to fly Plaintiff to California where his travel and lodging expenses would be covered so that he could submit himself to the IMEs.

In opposition, Plaintiff claims CCP 2032.220(a) requires that defense medical exams be conducted within 75 miles of Plaintiff’s residence. However, CCP 2032.320 allows examinations to take place beyond the 75-mile radius for “good cause shown.”

The court has reviewed the immigration documents relating to Plaintiff’s immigration status filed ex parte and later shared with Defendant. The Court does not find that Defendant has presented good cause to mandate an IME in the United States when Plaintiff cannot re-enter the United States due to federal immigration laws. (Ev. Code 351.2(a) – “In a civil action for personal injury or wrongful death, evidence of a person’s immigration status shall not be admitted into evidence, nor shall discovery into a person’s immigration status be permitted.”)

Although Defendant could not find a doctor that would entertain the idea of traveling to Samoa (Haigh Decl., 10), Defendant has not detailed its efforts in locating a doctor in Samoa or areas that are closer to Samoa. Further, Plaintiff is partially quadriplegic and will have a difficult time during the 13-hour flight, which may endanger his health.

Accordingly, the motion is GRANTED in part and DENIED in part. Plaintiff Simeta is ordered to appear for an IME. However, the request to compel Plaintiff to conduct the IME in the United States is DENIED.

Case Number: BC643011 Hearing Date: July 21, 2022 Dept: SEC

SIMETA v. ALBERTA DEVELOPMENT PARTNERS, LLC

CASE NO.: BC643011

HEARING: 07/21/22

JUDGE: OLIVIA ROSALES

#4

TENTATIVE ORDER

I. Cross-Defendant CREW, INC.’s Motion to Quash Service of Summons is DENIED. The Alternative Motion to Dismiss for Failure to Serve Cross-Complainant COMMAND PERFORMANCE CONSTRUCTORS, INC.’s Second Amended Cross-Complaint within Three Years is DENIED.

II. Defendants/Cross-Defendants PCCP IRG DOWNEY, LLC and IRG DOWNEY, LLC’s Motion for Summary Judgment is DENIED. The Alternative Motion for Summary Adjudication is DENIED. (Simeta Case)

III. Defendants/Cross-Defendants PCCP IRG DOWNEY, LLC and IRG DOWNEY, LLC’s Motion for Summary Judgment is DENIED. The Alternative Motion for Summary Adjudication is DENIED. (Perez Case)

IV. Defendant/Cross-Complainant/Cross-Defendant ALBERTA TIERRA LUNA MANAGEMENT, LLC’s Motion for Summary Judgment is DENIED. The Alternative Motion for Summary Adjudication is DENIED. (Simeta Case)

V. Defendant/Cross-Complainant/Cross-Defendant ALBERTA TIERRA LUNA MANAGEMENT, LLC’s Motion for Summary Judgment is DENIED. The Alternative Motion for Summary Adjudication is DENIED. (Perez Case)

Opposing Parties to give Notice.

Motion to Quash/Dismiss

Cross-Defendant CREW, INC.’s Opposition was untimely filed on July 11, 2022. It was due by July 8, 2022. (CCP 1005(b).) In the interests of justice, and in favor of adjudication this matter on the merits, the Court waives the procedural defect and considers all documents filed prior to this hearing.

Cross-Defendant CREW, INC. (“Crew”) moves to quash service of the summons and pursuant to CCP 583.210. Crew alternatively argues that COMMAND PERFORMANCE CONSTRUCTORS, INC.’s (“Command”) Second Amended Cross-Complaint should be dismissed with prejudice pursuant to CCP 583.210 due to Command’s failure to serve Crew within three years of the filing of the complaint.

CCP 583.210 states that “[t]he summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant.” (Id.). A recognized exception to the general rule is the substitution under section 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint. If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed.” (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.) “Among the requirements for application of the section 474 relation back doctrine is that the new defendant in an amended complaint be substituted for an existing fictitious Doe defendant named in the original complaint.” (emphasis added.) (Id.)

Here, Crew does not argue that it was improperly substituted as a Doe defendant. Rather, Command sought leave to file it’s Second Amended Cross-Complaint and name Crew as a newly named defendant—not to substitute in as an existing Doe defendant. CCP 583.210 and the relation back doctrine does not apply.

The Motion is DENIED.

Motions for Summary Judgment/Adjudication

This personal injury action was filed on December 7, 2016. Plaintiffs SIMETA and PEREZ (collectively “Plaintiffs”) were working as security patrol officers at a construction site in Downey, California for their employer, SECURITY PROTECTION SERVICES, INC. (“SPS”) on September 23, 2015, when their vehicle hit a concrete block causing Plaintiffs to suffer serious injuries. (“Subject Incident”). Plaintiffs filed two separate actions against the Property Owners, General Contractor (LYLE PARKS JR., INC.), its subcontractor (COMMAND PERFORMANCE CONSTRUCTORS, INC.), and the developers and property owners (ALBERTA DEVELOPMENT PARTNERS; PCCP IRG DOWNEY and IRG DOWNEY). The actions were consolidated on 03/28/18.

In separately filed, but substantively identical moving papers, Moving Parties Defendant/Cross-Complainant/Cross-Defendant ALBERTA TIERRA LUNA MANAGEMENT (“Alberta”) and PCCP IRG DOWNEY, LLC and IRG DOWNEY, LLC (“Downey”) (collectively “Moving Parties”) move for summary judgment/adjudication as to: (1) The Complaint of Plaintiff SIMETA; the First Amended Cross-Complaint of COMMAND PERFORMANCE CONSTRUCTORS, INC. (“Command”); the First Amended Cross-Complaint in Intervention of ALLIED WORLD SURPLUS LINES INSURANCE CO. (“Allied”); and the Cross-Complaint in Intervention of TWIN CITY FIRE INSURANCE COMPANY (“Twin City”); and (2) The Complaint of Plaintiff PEREZ; the First Amended Cross-Complaint of COMMAND PERFORMANCE CONSTRUCTORS, INC. (“Command”); the First Amended Cross-Complaint in Intervention of ALLIED WORLD SURPLUS LINES INSURANCE CO. (“Allied”); and the Cross-Complaint in Intervention of TWIN CITY FIRE INSURANCE COMPANY (“Twin City”).

The Moving Parties seek summary judgment/adjudication under the doctrine set forth in Privette v. Superior Court (1993) 5 Cal.4th 689 and its progeny. Moving Parties argue that they owed no duty of care to Plaintiff; that they did not retain control or affirmatively contribute to Plaintiff’s injuries; that they did not provide any supplies or equipment to Plaintiffs; that they did not fail to disclose a preexisting concealed hazardous condition; and that there is no admissible evidence that they breached any duty of care or caused the Subject Accident.

In Opposition, Plaintiffs separately argue that they were not within the scope of their employment at the time the Subject Accident occurred and are not subject to Privette; and that the cause of Plaintiffs’ injuries was not a risk of the work that Plaintiffs were hired to perform.

Opposition(s) filed by Cross-Complainants (e.g., Allied) argue that, in the event the Moving Parties’ Motions are denied, then the Cross-Complainants’ claims against the Moving Parties should still stand and summary judgment/adjudication of the Cross-Complainants should similarly be denied.

As an initial matter, the Court finds that Plaintiffs were acting in the scope of employment during the time of the Subject Accident. Plaintiffs’ own allegations admit that they were injured while working. (See Simeta Complaint 11; Perez Complaint 12.)

A hirer of a contractor owes no duty of care to the contractor’s injured employee because the employee has an alternative remedy through the workers’ compensation system. (Privette v. Superior Court (1993) 5 Cal.4th 689, 696-702.) “[W]hen the person injured by negligently performed contracted work is one of the contractor’s own employees, the injury is already compensable under the workers’ compensation scheme and therefore the doctrine of peculiar risk should provide no tort remedy, for those same injuries, against the person who hired the independent contractor.” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267.) It is “unfair to subject the hirer to civil liability while the actor primarily responsible for the injury was subject only to the limited liability imposed by workers’ compensation law. (Browne v. Turner Construction Co. (2005) 127 Cal.App.4th 1334, 1342.) Generally, an injured employee of an independent contractor cannot sue the landowner who hired the contractor. (Seabright Ins. Co. v. U.S. Airways, Inc. (2011) 52 Cal.4th 590, 594.) The remedy for injuries to the contractor’s employees is worker’s compensation. (Id. at 598.)

Since Privette, courts have extended its reasoning to preclude liability for owners of property where injuries to an employee of an independent contractor occurred where there is no evidence that the property owner affirmatively contributed to the injury. In Laico v. Chevron U.S.A., Inc. (2004) 123 Cal.App.4th 649, 666-667, the Appellate Court considered an independent contractor employee’s claim that a non-hiring property owner was liable for his workplace injuries because the owner could have exercised control over the premises. The Laico Court indicated that although the property owner did not hire the plaintiff’s employer as an independent contractor, “[nevertheless] we find sufficient similarity in the plaintiffs’ theory of the case that Privette, Toland, and Hooker provide a useful analogy to the issues presented here.” (Id. at 668.) Laico holds, “in these circumstances, even though there is no evidence of a hirer-contractor relationship between [property owner and plaintiff’s employer], we believe it would be ‘illogical and unfair’ to impose liability on [property owner] for an injury attributable to [employer], whose liability is limited by workers’ compensation insurance.” (Id.) Therefore, notwithstanding Plaintiff’s arguments to the contrary, this Court finds that the Privette doctrine is applicable to the circumstances presented in the instant litigation.

Thus, in order to successfully argue Privette, Defendant must show that no exceptions to Privette apply— that Defendant did not retain control over the Plaintiffs/the Subject Property and did not affirmatively contribute to Plaintiffs’ injuries. (See Hooker at 198.); and that Defendant did not fail to warn about a concealed dangerous condition.

Control/Affirmative Contribution

An employer may be liable for injuries suffered by an independent contractor’s employees because of unsafe conditions at the worksite which the employer controlled. (See McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4th 219, 225-226 [claim that employer of independent contractor requested use of unsafe equipment held sufficient to show employer contributed to injuries suffered by contractor’s employees].); (but see Hooker v. Dept. of Transp. (2002) 27 Cal.4th 198, 214-215 [claim that employer of independent contractor permitted construction vehicles to pass by crane operator creating unsafe condition was not sufficient to show employer contributed to the contractor’s employees’ injuries.].) The principal employer is liable only insofar as its exercise of retained control affirmatively contributed to the independent contractor's employee's injuries: “Such an assertion of control occurs, for example, when the principal employer directs that the contracted work be done by use of a certain mode or otherwise interferes with the means and methods by which the work is to be accomplished.” (Hooker v. Department of Transp., supra, 27 Cal.4th at 215.) [internal quotes omitted]; (Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1348 [no evidence to show general contractor controlled “means and methods” of subcontractor's employee's work.].)

“When the employer directs that work be done by use of a particular mode or otherwise interferes with the means and methods of accomplishing the work, an affirmative contribution occurs. When the hirer does not fully delegate the task of providing a safe working environment but in some manner actively participates in how the job is done, the hirer may be held liable to the employee if its participation affirmatively contributed to the employee's injury. [ ] By contrast, passively permitting an unsafe condition to occur rather than directing it to occur does not constitute affirmative contribution. The failure to institute specific safety measures is not actionable unless there is some evidence that the hirer or the contractor had agreed to implement these measures. Thus, the failure to exercise retained control does not constitute an affirmative contribution to an injury. Such affirmative contribution must be based on a negligent exercise of control. In order for a worker to recover on a retained control theory, the hirer must engage in some active participation.” (Tverberg v. Fillner Constr., Inc. (2012) 202 Cal.App.4th 1439, 1446.) [internal citations omitted.]

Plaintiffs worked for an independent security guard company (SPS); at the time they were injured when they collided with a concrete light pole base located in a construction zone that they were patrolling at the Subject Property. (SS No. 1.) In responses to interrogatories, both Plaintiffs responded that they were instructed by SPS to patrol the Subject Premises on the date of the Subject Accident. (See SS Nos. 12 and 13.)

With respect to “control,” Plaintiff submits evidence which stands for the proposition that the Moving Parties retained some control because Moving Parties provided some general safety measures to be followed at the Subject Project. The Court finds that Plaintiff has raised a triable issue of material fact as to whether Defendant “controlled” the area where the Subject Accident occurred.

However, Plaintiffs have submitted no evidence to suggest that the Moving Parties affirmatively contributed to their injuries. It is undisputed that the Moving Parties did not direct the actions of Plaintiffs, provide any equipment or materials to Plaintiff, or fail to take any safety precautions after promising to do so. The uncontroverted evidence proffered by the Moving Parties indicates that Plaintiff’s employer communicated to Plaintiffs about how to do their jobs. Here, Plaintiffs fail to raise a triable issue as to whether the Moving Parties affirmatively contributed to the Plaintiffs’ injuries.

Concealed Hazard

“[T]he hirer as landowner may be independently liable to the contractor’s employee, even if it does not retain control over the work, if (1) it knows or reasonably should know of a concealed, pre-existing hazardous condition on its premises; (2) the contractor does not know and could not reasonably ascertain the condition; and (3) the landowner fails to warn the contractor.” (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 675.) “When the landowner knows or should know of a concealed hazard on its premises, then under ordinary premises liability principles, the landowner may be liable for a resultant injury to those employees.” (Id. at 674.) However, “[a] landowner is…not liable where a worker is injured because the contractor has failed to engage in inspections of the premises implicitly or explicitly delegated to it.” (Gravelin v. Satterfield (2011) 200 Cal.App.4th 1209, 1216.)

Here, the Moving Parties argue that they did not retain any control over how any of the subcontractors performed their contracted work at the Subject Project, but instead, left the decisions regarding how the subcontractors performed their work solely to the subcontractors themselves. (See SS No. 126.) Moving Parties also contend that they did not know of any preexisting and latent hazardous conditions.

Plaintiffs raise a triable issue as to whether Plaintiffs had knowledge of previous car crashes that occurred on the project site. (PRSS No. 89.)

Moreover, based on the evidence provided, the Court cannot determine that the Moving Parties delegated inspections of the Subject Property to SPS where the terms of any such agreement have not been proffered.

Viewing the evidence in a light most favorable to the Opposing Parties/Plaintiffs—summary judgment is DENIED.

Command’s Evidentiary Objections:

Nos. 1-21. OVERRULED

Plaintiff SIMETA’s Evidentiary Objections to Evidence Submitted by Downey:

Nos. 1-58. OVERRULED

Evidentiary Objections to the Declaration of Plaintiff Simeta:

Nos. 1-27. OVERRULED

Evidentiary Objections to the Declaration of Brad Avrit, P.E.

Nos. 1-10. OVERUULED

Case Number: BC643011 Hearing Date: July 19, 2022 Dept: SEC

SIMETA v. ALBERTA DEVELOPMENT PARTNERS, LLC, et al.

CASE NO.: BC643011

HEARING: 7/19/22 @ 1:30 PM

JUDGE: OLIVIA ROSALES

#8

TENTATIVE RULING

I. Defendants Lyle Parks Jr. Construction, Inc.’s motion for summary judgment or, in the alternative, summary adjudication (Perez Case) is CONTINUED to Tuesday, August 2, 2022, at 1:30 pm in Dept. C.

II. Defendants Lyle Parks Jr. Construction, Inc.’s motion for summary judgment or, in the alternative, summary adjudication (Simeta Case) is CONTINUED to Tuesday, August 2, 2022, at 1:30 pm in Dept. C.

Moving Party to give NOTICE.

Case Number: BC643011 Hearing Date: July 14, 2022 Dept: SEC

SIMETA v. ALBERTA DEVELOPMENT PARTNERS, LLC

CASE NO.: BC643011

HEARING: 07/14/22

JUDGE: OLIVIA ROSALES

#5

TENTATIVE ORDER

Defendant COMMAND PERFORMANCE CONSTRUCTORS, INC.’s Motion for Order Compelling Plaintiff’s Attendance for a Medical Exam in California is GRANTED.

Moving Party to give Notice.

This personal injury action was filed by Plaintiff on December 7, 2016. Plaintiff asserts claims for negligence and premises liability. Plaintiff alleges that he “suffered a spinal cord injury resulting in quadriplegia due to [a] cervical cord injury.” (Complaint 15.)

This action was filed in Los Angeles County. Sometime during the pendency of litigation, Plaintiff relocated to the foreign county of Samoa. Defendant COMMAND PERFORMANCE CONSTRUCTORS, INC. (“Command”) now moves to compel Plaintiff to attend independent medical examinations to be performed in California.

In Opposition, Plaintiffs argue that the Motion should be denied because Defendant improperly seeks to compel a physical examination of Plaintiff beyond the 75 mile distance from his residence without good cause. Plaintiff argues that the medical exams should be conducted in Samoa, or remotely via Zoom.

CCP 2032.020 provides that any party may conduct a physical examination of a party to the action in which the mental or physical condition of that party is at issue. Generally, the mental and/or physical examination must be conducted at a location within 75 miles of the residence of the examinee. (CCP 2032.220(a)(2).) “The court shall grant a motion for physical or mental examination under Section 2032.310 only for good cause shown…. [ ] If the place of the examination is more than 75 miles from the residence of the person to be examined, an order to submit to it shall be entered only if both of the following conditions are satisfied: (1) The court determines that there is good cause for the travel involved. (2) The order is conditioned on the advancement of the moving party of the reasonable expenses and costs to the examinee for travel to the place of examination.” (CCP 2032.320(a) and (e).)

Here, the jury trial is set to commence on October 12, 2022. The moving defendant has agreed to advance all reasonable travel costs and related expenses. The Court finds that there is good cause to require Plaintiff to travel to California for the Medical Examinations identified. The additional cost to Command to bring its examiners to Samoa, or to conduct physical examinations via Zoom would be an unfair burden.

Moreover, the Court cannot determine, based on the evidence provided, that Plaintiff is barred from entering the United States under Federal Immigration laws.

The Motion is GRANTED. Plaintiff is ORDERED to attend the Independent Medical Examinations as articulated in the Proposed Order submitted with Command’s Motion within 60 days of the date of this hearing. The independent medical examinations shall proceed pursuant to the terms articulated in the Moving Party’s Notice and Motion.

Case Number: BC643011 Hearing Date: February 24, 2022 Dept: SEC

SIMETA v. ALBERTA DEVELOPMENT PARTNERS, LLC, et al.

CASE NO.: BC643011

#4 HEARING: 02/24/22

TENTATIVE ORDER

I. Defendant COMMAND PERFORMANCE CONSTRUCTORS, INC.’s Motion to Compel Plaintiff’s Responses to Supplemental Demand for Production of Documents (set one) is OFF-CALENDAR. A Notice of Withdrawal was FILED on February 17, 2022.

II. Defendant COMMAND PERFORMANCE CONSTRUCTORS, INC.’s Motion to Compel Plaintiff’s Responses to Supplemental Interrogatory (set one) is OFF-CALENDAR. A Notice of Withdrawal was FILED on February 17, 2022.

Moving Party to give Notice.

Case Number: BC643011 Hearing Date: February 15, 2022 Dept: C

SIMETA v. ALBERTA DEVELOPMENT PARTNERS, LLC, et al.

CASE NO.: BC643011

HEARING: 2/15/22 @ 1:30 PM

#8

TENTATIVE ORDER

I. Defendant Command Performance Constructors, Inc.’s motion for summary judgment or, in the alternative, summary adjudication as against the Complaint of… Siakimativa Simeta is DENIED.

II. Defendant Command Performance Constructors, Inc.’s motion for summary judgment or, in the alternative, summary adjudication as against the Complaint of Plaintiff Alfredo Perez is DENIED.

III. Defendant Command Performance Constructors, Inc.’s motion for summary judgment or, in the alternative, summary adjudication as against the First Amended Cross-Complaint of… Alberta Development Partners, LLC is DENIED.

IV. Defendant Command Performance Constructors, Inc.’s motion for summary judgment or, in the alternative, summary adjudication as against the Third Amended Cross-Complaint of… Lyle Parks Jr. Construction is DENIED.

V. Defendant Command Performance Constructors, Inc.’s motion for summary judgment or, in the alternative, summary adjudication as against the First Amended Cross-Complaint of… PCCP IRG Downey, LLC, and IRG Downey, LLC is DENIED.

VI. Defendant Command Performance Constructors, Inc.’s motion for summary judgment or, in the alternative, summary adjudication as against the Cross-Complaint of… Twin City Fire Insurance Company is DENIED.

VII. Defendant Command Performance Constructors, Inc.’s motion for summary judgment or, in the alternative, summary adjudication as against the First Amended Cross-Complaint of… Allied World Surplus Lines Ins. Co. is DENIED.

Plaintiff Simeta to give NOTICE.

PLEADINGS

Plaintiffs Siakimativa Simeta and Alfredo Perez’s Complaints both allege that the subject accident was caused by the lack of “adequate safety measures and/or warning of known roadway hazards, specifically, light pole bases approximately 36 inches from the ground, by the Defendants... along with inadequate conditions of property such as poor lighting.” (Simeta Complaint, 16; Perez Complaint, 17.) Both plaintiffs allege that defendants should have placed warning signs, cones, delineators, or caution tape around the light pole bases “to make it/them highly visible” as well as provide plaintiffs with “safety training and/or protocol that addressed the presence of light pole bases,” adequate lighting, and “briefing the security company of potential daytime and nighttime hazards.” (Id.) Based thereon, the Complaints assert the following causes of action:

1. Negligence

2. Premises Liability

Subsequently, the Defendants filed their own cross-complaints against one another seeking indemnification. The operative cross-complaints are:

1. Alberta Development Partners, LLC (“Alberta”)’s First Amended Cross-Complaint (“FAXC”)

2. Lyle Parks Jr. Construction (“Lyle Park”)’s Third Amended Cross-Complaint (“3AXC”)

3. PCCP IRG Downey, LLC, and IRG Downey, LLC (collectively “IRG”)’s FAXC

4. Twin City Fire Insurance Company (“Twin City”)’s Cross-Complaint

5. Allied World Surplus Lines Ins. Co. (“Allie”)’s FAXC

OBJECTIONS

Defendants Alberta, Lyle Parks, and IRG’s Objection Nos. 1-12 to Korn Declaration are overruled.

Defendants Alberta, Lyle Parks, and IRG’s Objection Nos. 1-6 to Chavez Declaration are overruled.

MERITS

Defendant Command Performance Constructors, Inc. (“Command”) moves for summary judgment or, in the alternative, summary adjudication as to the Complaints and Cross-Complaints pursuant to CCP 437c.

Oppositions were filed by:

1. Plaintiff Simeta

2. Plaintiff Perez

3. Defendants Alberta, Lyle Parks, and IRG

4. Intervenor Twin City Fire Insurance Company (on behalf of Security Protection Services, Inc.)

5. Intervenor Allied World Surplus Lines Insurance Company (on behalf of Security Protection Services, Inc.)

Command seeks summary adjudication of the following issues:

As to Plaintiffs Simeta and Perez’s Complaints:

ISSUES 1-2: Command contends the 1^st – 2^nd causes of action for Negligence and Premises Liability have no merit. (Command Separate Statement (“CSS”) 1-44.)

As to Cross-Complainants Alberta’s FAXC; Lyle Parks Jr. Construction, Inc.’s 3AXC; and PCCP IRG Downey, LLP and IRG Downey, LLP’s FAXC:

ISSUES 1-14: Command contends the 1^st – 14^th causes of action have no merit. (CSS 1-44.)

As to Intervenor Twin City’s Cross-Complaint:

ISSUES 1-4: Command contends the 1^st – 4^th causes of action have no merit. (CSS 1-44.)

As to Intervenor Allied’s FAXC:

ISSUES 1-4: Command contends the 1^st – 3^rd and 6^th causes of action have no merit. (CSS 1-44.)

Command submits the following facts:

The Promenade at Downey is a commercial shopping center. (“Command Separate Statement (“CSS”) 2.)

Command was contracted by Lyle Parks to construct 72 light pole bases for the extensive parking lots on the property. (CSS 3.)

The concrete portion of the subject light pole base extended 3 feet above ground and was 2 feet in diameter, with colorful wiring standing upward from the top an additional 1 to 2 feet in height. (CSS 4.)

The installation of the light pole and light were not within Command’s scope of work. (CSS 5.)

When the subject accident occurred, Command had completed its construction of the 72 light pole bases and was no longer working on this area of the project. (CSS 6.)

At the time of the accident, the “Promenade at Downey” and the parking lot where the accident occurred remained unfinished; was closed off to the general public; and was only accessible to those involved in the construction project. (CSS 7-9, 13.)

The accident took place on September 23, 2015, at 6:35 p.m. (CSS 10.)

Both plaintiffs were operating the vehicle in what they claim to be the course and scope of their jobs as security guards patrolling the construction site. (CSS 14.)

Simeta was driving the vehicle (CSS 11) and Perez was riding in the passenger seat (CSS 12).

The vehicle was Simeta’s personal vehicle and had not been provided by SPS or any other entity on the project. (CSS 15-16.)

Simeta had worked at least three full days, and recalled that he performed at least some of these shifts driving in his vehicle. (CSS 18.)

Command never authorized, instructed, or advised plaintiffs in any way as to the operation of vehicles on the subject construction site. (CSS 20.)

Prior to the subject accident, Lyle Parks informed SPS that no vehicles were to be driven on the construction site, including for purposes of patrolling the site. (CSS 21.)

At the time of the subject accident, it was the understanding of Command Performance’s personnel that only trained construction personnel would be driving any sort of vehicle on the construction site. (CSS 22.)

Simeta could not recall whether he saw any light pole base prior to impact; what the lighting conditions were at the time of impact; whether the sun was in his eyes prior to impact; what speed he was travelling or if he ever tried to slow down prior to impact; if he ever attempted an evasive maneuver prior to impact; and could not even confirm that it was a light pole base that he ran into. (CSS 23-29.)

Perez speculates that the sun got into Simeta’s eyes; Perez testified that the sun was so bad that he himself could not see anything in front of the vehicle when it was approaching the subject light pole base; when Perez was asked at his deposition, “Do you expect [Simeta] to have driven around this light pole base?,” his answer was “Yes”. (Perez Deposition, 130:9 - 132:3, 189:18 - 198:14, 202:25 - 204:2, 218:2-19.)

There is no evidence to suggest that cones, delineators, training/instruction, or anything similar would have actually prevented the subject accident. (CSS 30.)

Command entered two subcontracts with Lyle Parks, one dated July 14, 2014 and the other dated May 20, 2015. (CSS 31.)

The construction of the light pole bases is specifically included within the scope of work of both subcontracts at Exhibit A, Section 2.14 in the July 2014 subcontract and Section 2.11 in the May 2015 subcontract. (CSS 32.)

Both subcontracts contain within the general terms, Section 18 entitled “INDEMNITY.” Section 18.1 states:

Subcontractor shall also protect, defend, and fully indemnify General Contractor and Owner or either of them, and their respective agents and employees, against and from any liability or damages, and claims for such, including costs, expenses, and attorney’s fees incurred in connection therewith on account of the death or injury of any person or damage to any property arising out of any act or omission of Subcontractor. (CSS 33.)

These subcontracts underwent several amendments (CSS 34) and each of these proposals included a section entitled “Exclusions,” which stated that “construction barricades & traffic control” were to be specifically excluded from the scope of Command Performance’s work. (CSS 36.)

Section 19.3 specifically prohibits Command from “Plac[ing] or permit[ing] to be placed any signs or other advertisements on, or in the vicinity of, the project”; the subcontracts do not require Command to perform traffic control functions to prevent vehicles from colliding with the light pole bases. (CSS 37-39.)

Command did not own, lease, occupy, or control the subject light pole base or the wider area where the subject accident occurred, particularly at the time that it occurred. (CSS 40-42.)

NEGLIGENCE and PREMISES LIABILITY:

The duty arising from possession and control of property is adherence to the same standard of care that applies in negligence cases. "The proper test to be applied to the liability of the possessor of land... is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others." (Rowland v. Christianson (1968) 69 Cal.2d 108, 119.)

"Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm." (Vasilenko v. Grace Family Church (2016) 248 Cal.App. 4th 146, 154.)

“Foreseeability of harm is typically absent when a dangerous condition is open and obvious. ‘Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.’ In that situation, owners and possessors of land are entitled to assume others will ‘perceive the obvious’ and take action to avoid the dangerous condition.” (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 447.) “An exception to this general rule exists when ‘it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g., when necessity requires persons to encounter it).’” (Id.) “The issue is whether there is any evidence from which a trier of fact could find that, as a practical necessity, [plaintiff] was foreseeably required to expose himself to the danger.” (Id.)

While employees knew generally of the presence of overhead wires, the nature of the job and visibility conditions were such that the danger was not so obvious to the employees or that they might have momentarily forgotten their presence due to the rush job and nature of the work. (Austin v. Riverside Portland Cement Co. (1955) 44 Cal.2d 225, 233.)

Plaintiffs’ Complaints allege that someone should have put up traffic controls or trained them so that they could avoid colliding with the subject light pole base. (Simeta Complaint, 16; Perez Complaint, 17.)

In opposition, Plaintiff Simeta submits the following evidence:

On September 23, 2015, Simeta and his coworker, Perez, were conducting a security patrol of the construction site as security guards hired to patrol and secure the Promenade at Downey. (Simeta Decl., 3.) Plaintiffs were conducting their security patrol from a vehicle, as they had been instructed to do. (Simeta Decl., 3-4.)

The color of the concrete light pole base was light gray in color and lacked any contrasting color to distinguish it within the driver’s field of vision; the concrete base was off-set in positioning from the other concrete bases, in a non-symmetrical and/or unanticipated pattern and in an unexpected position. (Avrit Decl., 8.)

The day of the incident was Simeta' s first time patrolling the parking lot. (Simeta Decl., 3.)

At the time of the crash, the construction site had no trees or delineated aisles in the parking lot. (Ex. 4, Simeta Depo, Vol.18, 25:20-29:6, 29:7-31:14, 32:24-35:21, 36:13-40:6.)

Unable to see the unaligned light pole base due to its height, matching color to the concrete parking lot, and the lighting at that time, Plaintiffs vehicle crashed into the concrete light pole base at a rate of approximately 15 Miles per hour. (Ex. 4, Simeta Depo, 37:13-27:23.)

The impact from the collision knocked Simeta unconscious and caused him to sustain gervious injuries, rendering him a permanent quadriplegic. (Simeta Decl., 8-9.)

Command could have mitigated the dangerous condition by utilizing proper signage or contrasting visual warnings to highlight the low lying, unmarked concrete base as referenced in the Manual on Traffic Control Devices (MUTCD). (Avrit Decl., 10)

In opposition, Plaintiff Perez submits the following evidence:

Chief Edwards, the president of SPS, authorized Perez and Simeta to use their vehicles to patrol the site. (Perez Deposition, 93:21-25, 152:4-153:9, 169:1-11.)

The day of the incident was Perez’s first time at the jobsite. (Perez Deposition, 99:18-25; 103:4-11.)

Perez’s head hit and broke the windshield, he went unconscious and suffered a concussion and other injuries from the impact. (Perez Deposition, 199:15-19; 200:1-2; 228:2-5; 280:9-25.)

Chief Edwards does not remember whether he told Simeta to drive his car on the construction site at Downey. (Edwards Deposition, 73:19-25.)

In opposition, Defendants Alberta, Lyle Parks, PCCP IRG Downey, LLP, and IRG Downey, LLP submit the following evidence:

Lyle Parks was hired as the general contractor for the Subject Project by PCCP IRG Downey, LLP and IRG Downey, LLP (collectively, “IRG”). (Alberta Separate Statement (“ASS”) 13.)

All of the decisions regarding the construction of the Subject Project, including the hiring of subcontractors, were left to Lyle Parks by IRG. (ASS 14.)

Alberta was the real estate management company with respect to the Subject Project. (ASS 15.)

Lyle Parks hired subcontractor SPS to provide security guard services at the Subject Project. (ASS 16.)

Pursuant to the agreement between SPS and Lyle Parks, SPS’s scope of work included the nighttime foot patrolling of the Subject Project. (ASS No. 17.)

Lyle Parks also hired CPC, who was the subcontractor who installed the subject concrete light pole base that SIMETA collided with at the time of the Subject Accident. (ASS 18.)

CPC was still working at the Subject Project at the time of the Subject Accident (ASS 32), and therefore the concrete light pole base where the Subject Accident occurred was, therefore, still under the control of CPC. (ASS 19.)

CPC failed to protect or secure its jobsite with sufficient safety or warning signs or measures and further failed to perform its work to completion in a good and workmanlike manner according to the best practices of its trade. (ASS 31.)

The Subcontracts did not preclude CPC from securing its jobsite or otherwise providing necessary safety or warning signs or measures of any dangerous or hazardous condition to prevent the accident. (ASS 33.)

Tamaine Diamond Hopkins did not remember observing any flags, warning cones or caution tape around the concrete light pole base. (ASS 46.)

Twin City and Allied (on behalf of SPS) do not submit any evidence in opposition, but instead argues that if Command’s motion is denied as to the other parties, then the motion should also be denied as to Twin City and Allied.

The court finds triable issues exist regarding whether the light pole bases are “open and obvious.” Plaintiffs present evidence that the color of the concrete light pole base, that was 34” high, was light gray in color and lacked any contrasting color to distinguish it from the unpaved parking lot; the concrete base was off-set in positioning from the other concrete bases, in a non-symmetrical and/or unanticipated pattern and in an unexpected position. (Avrit Decl., 8.)

Triable issues also exist regarding whether, as a practical necessity, Plaintiffs were foreseeably required to expose themselves to the light pole bases. Simeta and Perez were conducting a security patrol of the construction site as security guards hired to patrol and secure the Promenade at Downey. (Simeta Decl., 3.) Plaintiffs were instructed to conduct their security patrol from a vehicle, as this is a huge construction site and it would have been impossible to patrol on foot. (Simeta Decl., 3-4; Perez Deposition, 93:21-25, 152:4-153:9, 169:1-11.)

Triable issues also exist regarding whether Command’s work was completed in a good and workmanlike manner; and whether “caution tape” and “flag trees” (Avrit Decl., 10; ASS 46) are considered “construction barricades & traffic control” that would have been excluded from Command’s scope of work (CSS 36).

As such, triable issues also exist regarding the cross-claims.

Accordingly, the motions are DENIED.

b'

Case Number: BC643011 Hearing Date: September 30, 2021 Dept: C

SIMETA v. ALBERTA DEVELOPMENT PARTNERS LLC

CASE NO.: BC643011

HEARING: 09/30/21

#3

TENTATIVE ORDER

I. Defendant/Cross-Complainant/Cross-Defendant LYLE PARKS JR. CONSTRUCTION, INC.’s Demurrer to the First Amended Cross-Complaint-in-Intervention of Cross-Complainant-in-Intervention ALLIED WORLD SURPULS LINES INSURANCE COMPANY on behalf of Security Protection Services, Inc. is OVERRULED.

II. Defendant/Cross-Complainant/Cross-Defendant LYLE PARKS JR. CONSTRUCTION, INC.’s Motion to Strike Portions of the First Amended Cross-Complaint-in-Intervention of Cross-Complainant-in-Intervention ALLIED WORLD SURPULS LINES INSURANCE COMPANY on behalf of Security Protection Services, Inc. is GRANTED with 15 days leave to amend.

Opposing Party to give notice.

LYLE PARKS JR. CONSTRUCTION, INC.’s Request for Judicial Notice of the Express Indemnity Agreement between LYLE PARKS and COMMAND PERFORMANCE CONSTRUCTORS, INC. is DENIED. This document is not properly the subject of judicial notice.

This personal injury action was filed on December 7, 2016. Plaintiffs SIMETA and PEREZ were working as security patrol officers at a construction site in Downey, California for their employer, SECURITY PROTECTION SERVICES, INC. (“SPS”) on September 23, 2015, when their vehicle hit a concrete block causing Plaintiffs to suffer serious injuries. (“Subject Incident”). Plaintiffs filed separate actions against the Property Owners, General Contractor (LYLE PARKS JR., INC.), its subcontractor (COMMAND PERFORMANCE CONSTRUCTORS, INC.), and the developers and property owners (ALBERTA DEVELOPMENT PARTNERS; PCCP IRG DOWNEY and IRG DOWNEY). The actions were consolidated on 03/28/18. On May 18, 2021, Cross-Complainant in Intervention/Cross-Defendant in Intervention ALLIED WORLD SURPLUS LINES INSURANCE COMPANY (“Allied”) filed the subject First Amended Cross-Complaint. (“FAXC”).

Defendant/Cross-Complainant/Cross-Defendant LYLE PARKS JR. CONSTRUCTION, INC. (“Lyle Parks”) specially and generally demurs to the fourth cause of action for express contractual indemnity.

Breach of Express Contractual Indemnity

Lyle Parks argues that this cause of action is subject to demurrer because the FAXC does not contain any allegations that an express indemnity contract was entered into between Lyle Parks and SPS prior to the Subject Accident.

Whether it is written, oral, or implied, the elements of a cause of action for breach of contract are as follows: (1) the existence of a contract; (2) a plaintiff’s performance or excused non-performance; (3) a defendant’s breach; and (4) resulting damage to a plaintiff. (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830.) “If an action is based on a breach of written contract, the terms must be set forth verbatim in the body of the complaint or a copy of the contract must be attached and incorporated by reference.” (Id. at 459.) Alternatively, if the claim is based on a written contract then “a plaintiff may plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co., (2002) 29 Cal.4th 189, 198-199.)

The FAXC alleges, in pertinent part, “If any written contract exists between Lyle Parks or any of the defendants ROES 1 through 50, on the one hand, and SPS, on the other hand, then the written contract provides that Lyle Parks and ROES 1 through 40, and each of them, agreed to indemnify and defend SPS, and hold SPS harmless; SPS performed that portion of the contract which gives rise to this defense and indemnification claim; the scope of said defense and indemnity applies to this Incident and the Complaints and Cross-Complainants at issue; and the failure of Lyle Parks and ROES 1 through 50, and each of them, to satisfy the defense, indemnity, and hold harmless obligations caused SPS damages.” (FAXC ¶41.)

The demurrer to the fourth cause of action is OVERRULED. The Court finds that Allied has sufficiently pled the legal effect of the written indemnity agreement for purposes of surviving demurrer.

Motion to Strike Attorney’s Fees

A motion to strike lies either when (1) there is “irrelevant, false or improper matter inserted in any pleading”; or (2) to strike any pleading or part thereof “not drawn or filed in conformity with the laws of this state, a court rule or order of court.” (CCP ;436.)

In the absence of an express agreement or statute, each party to a lawsuit is responsible for its own attorney fees. (CCP ;1021.)

The Motion to Strike attorney’s fees is GRANTED with 15 days leave to amend. Allied fails to allege the express terms of the agreement establishing Allied’s entitlement to attorney’s fees based on contract.

'

b'

Case Number: BC643011 Hearing Date: August 19, 2021 Dept: C

SIMETA v. ALBERTA DEVELOPMENT PARTNERS LLC

CASE NO.: BC643011

HEARING: 08/19/21

#4

TENTATIVE ORDER

I. Cross-Defendant in Intervention ALLIED WORLD SURPLUS LINES INSURANCE COMPANY’s Motion for Summary Judgment against Cross-Complainants ALBERTA DEVELOPMENT PARTNERS, LLC; LYLE PARKS JR. CONSTRUCTION; PCCP IRG DOWNEY, LLC; IRG DOWNEY, LLC; and COMMAND PERFORMANCE CONSTRUCTORS, INC. is DENIED.

II. Intervenor TWIN CITY FIRE INSURANCE COMPANY’s (in its capacity as insurer of Cross-Defendant SECURITY PROTECTION SERVICES, INC.) Motion for Summary Judgment or alternatively Summary Adjudication against Cross-Defendant/Cross-Complainant COMMAND PERFORMANCE CONSTRUCTORS, INC. and Defendant/Cross-Complainant LYLE PARKS JR., INC.’s Third Amended Cross-Complaint. is DENIED.

Opposing Party(s) to give Notice.

This personal injury action was filed on December 7, 2016. Plaintiffs SIMETA and PEREZ were working as security patrol officers at a construction site in Downey, California for their employer, SECURITY PROTECTION SERVICES, INC. (“SPS”) on September 23, 2015, when their vehicle hit a concrete block causing Plaintiffs to suffer serious injuries. (“Subject Incident”). Plaintiffs filed two separate actions against the Property Owners, General Contractor (LYLE PARKS JR., INC.), its subcontractor (COMMAND PERFORMANCE CONSTRUCTORS, INC.), and the developers and property owners (ALBERTA DEVELOPMENT PARTNERS; PCCP IRG DOWNEY and IRG DOWNEY). The actions were consolidated on 03/28/18.

Cross-Defendant in Intervention ALLIED WORLD SURPLUS LINES INSURANCE COMPANY (“Allied”), in its capacity as insurer of SPS moves for summary judgment against: (1) Cross-Complainant ALBERTA DEVELOPMENT PARTNERS, LLC (“Alberta”) (First Amended Cross-Complaint FILED on March 2, 2018); (2) LYLE PARKS JR. CONSTRUCTION (“Lyle Parks”) (Third Amended Cross-Complaint FILED on April 18, 2019; (3) PCCP IRG DOWNEY, LLC and IRG DOWNEY, LLC (“PCCP/IRG”) (First Amended Cross-Complaint FILED on March 2, 2018); and (4) COMMAND PERFORMANCE CONSTRUCTORS, INC. (“Command”) (Cross-Complaint FILED on September 13, 2018).

Intervenor TWIN CITY FIRE INSURANCE COMPANY (“Twin City”), in its capacity as insurer of SPS separately moves for summary judgment against (1) Command; and (2) Lyle Parks. Unlike Allied, Twin City alternatively moves for summary adjudication as to Command’s causes of action for: comparative indemnity and apportionment of fault, total equitable indemnity, and declaratory relief; as well as Lyle Parks’ causes of action for: total equitable indemnity; partial equitable indemnity; contribution and repayment; declaratory relief re duty to indemnify; declaratory relief re duty to contribute; negligence; intentional misrepresentation and fraudulent concealment; negligent misrepresentation; breach of oral contract; and Unfair Bus. Practices.

SPS is a suspended California corporation and cannot defend itself in this action. However, its insurers, Allied and Twin City, have intervened in the action on behalf of their insured. Consequently, Allied and Twin City argue that the California Workers Compensation Exclusivity Rule bars all claims contained in the above referenced pleadings against SPS.

In Oppositions separately filed in response to both Motions, the Opposing Parties generally and similarly argue that their claims are not barred by the Workers Compensation Exclusivity Rule because: (1) there was a written agreement between the Opposing Parties and SPS wherein SPS expressly agrees to indemnify the Opposing Parties in the event of any injuries occurring to its employees; (2) the exclusivity rule does not apply because SPS fraudulently concealed the existence of its workers’ compensation policy; (3) the exclusivity rule does not apply because no evidence can be presented that Plaintiff Simeta has or will receive workers’ compensation benefits; and (4) the exclusivity rule does not apply because Plaintiffs were acting outside the scope of their employment at the time of the Subject Incident.

California’s workers compensation system provides the exclusive remedy “in lieu of any other liability whatsoever” for injury or damages sustained by an employee arising out of and in the course of employment. (Labor Code ;;3600, 3602 et seq.) The Supreme Court noted that the essence of the Labor Code’s “compensation and the exclusive remedy provisions is an injury sustained and arising out of the course of employment….” (Cole v. Fair Oaks Fire Protection (1987) 43 Cal.3d 148, 160.) If injuries are sustained because of an act “arising out of employment” an action is barred “no matter what its name or technical form….” (Id.)

“If an action as provided in this chapter prosecuted by the employee, the employer, or both jointly against the third person results in judgment against such third person, or settlement by such third person, the employer shall have no liability to reimburse or hold such third person harmless on such judgment or settlement in the absence of a written agreement so to do executed prior to the injury.” (emphasis added.) (Labor Code ;3864.) “The purpose of the statute is to eliminate an employer’s liability under an equitable or implied indemnity theory when its employee is injured during the course and scope of employment due to the negligence or partial negligence of a third party. Section 3864 restricts the employer’s responsibilities to those imposed by the workers’ compensation laws and insulates it from indemnity claims unless they are based on an express contract of indemnity executed by the employer prior to the injury. [Cite.]” (City of Oakland v. Delcon Associates (1985) 168 Cal.App.3d 1126, 1128-1129.)

In Oppositions to the instant Motions, the Opposing Parties submit and rely upon the Declaration of Van Hester—Vice President/Project Manager for Lyle Parks with respect to The Promenade at Downey construction site. Mr. Hester states, in pertinent part, “At all times relevant herein, LYLE PARKS was the general contractor for the Subject Project. Prior to the Subject Accident, LYLE PARKS entered into an agreement with the owner of SPS, Chief Robert Edwards (‘Edwards’), which both LYLE PARKS and SPS signed, to provide foot patrol security services at the Subject Project. Pursuant to the agreement reached with Chief Edward of SPS and LYLE PARKS, SPS expressly agreed to defend, indemnify and hold harmless LYLE PARKS for any claims or injuries arising out of or related to its work at the Subject Project, and further agreed to purchase and maintain appropriate commercial general liability coverage for the Subject Project, with LYLE PARKS, ALBERTA TIERRA LUNA MANAGEMENT, PCCP IRG DOWNEY, LLC; and IRG DOWNEY, LLC named as additional insureds.” (Hester Decls., ¶¶4.) Mr. Hester further indicates that he has searched for the written agreement between Lyle Parks and SPS but has been unable to locate it. (Hester Decls. ¶¶6.)

Based on the evidence presented, the Court finds that there is a triable issue of material fact as to whether an express written agreement for indemnity exists. Although the actual agreement has not been submitted into evidence, no party is disputing the fact that it actually exists. Consequently, the Court cannot find that the Cross-Claims are barred by the Workers’ Compensation Act at this stage in the litigation. Accordingly, the Motions are DENIED, and the Court declines to render any opinions as to the parties’ further arguments in support of or on in Opposition to the subject Motions.

Requests to Continue

In separate Declarations filed in Opposition to each Motion, Attorney Matthew J. Eschenburg (on behalf of Alberta, Lyle Parks, and PCCP/IRG) requests that both Motions be CONTINUED pursuant to CCP ;437c(h). Specifically, Mr. Eschenburg indicates that a continuance is warranted because he has “not had the opportunity to complete…questioning of Plaintiff SIMETA regarding issues directly related to the present Motion[s] as to whether he was in the scope of employment at the time of the Subject Accident, whether Chief Edwards had misrepresented to him, as he had with Plaintiff PEREZ, regarding the fact that SPS did not have workers’ compensation insurance for which to apply or whether workers’ compensation benefits were not recoverable based on the Subject Accident and/or whether Plaintiff SIMETA has received any workers’ compensation benefits as a result of the Subject Accident. Presently, no date has been set forth further session of Plaintiff’s SIMETA’s deposition and, therefore, a continuance of the present Motion is necessary until this necessary deposition has been completed.” (Eschenburg Decl(s). ¶¶32 and 38.)

“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” (CCP ;437c(h).) A party seeking continuance under CCP ;437c(h) must show “(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain those facts.” (Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270.)

The Court finds that the facts contained in Mr. Eschenburg’s declarations fail to provide sufficient information to invoke CCP ;437c(h). It is unclear how Plaintiff SIMETA’s testimony would shed any light on the issue of the existence of an express indemnification agreement (the main fact in which the Court bases it’s ruling upon). The requests to continue the Motions are DENIED.

Allied’s Evidentiary Objections to the Declaration of Matthew J. Eschenburg

1. Overruled

2. Sustained

3. Sustained

4. Overruled

5. Sustained

Allied’s Request for Judicial Notice is GRANTED. Cal. Ev. Code ;452.

Twin City’s Evidentiary Objections to Evidence Submitted in Support of Lyle Parks Jr. Inc.’s Opposition

1. Overruled

2. Overruled

3. Sustained

4. Overruled

5. Overruled

6. Sustained

7. Sustained

8. Sustained

9. Sustained

10. Sustained

11. Sustained

12. Sustained

13. Sustained

14. Sustained

15. Sustained

16. Sustained

17. Sustained

18. Overruled

Twin City’s Evidentiary Objections to Evidence Submitted in Support of Command’s Opposition

1. Overruled

2. Overruled

3. Sustained

Command’s Evidentiary Objections to Evidence Submitted by Twin City and Allied

1. Overruled

2. Overruled

3. Overruled

4. Overruled

Cross-Complainants ALBERTA TIERRA LUNA MANAGEMENT; LYLE PARKS JR. CONSTRUCTION, INC.; PCCP IRG DOWNEY, LLC and IRG DOWNEY, LLC’s Evidentiary Objections to Declaration of Ryan Z. Zeller Filed in Support of Allied’s Motion

1. Overruled

2. Overruled

Cross-Complainants ALBERTA TIERRA LUNA MANAGEMENT; LYLE PARKS JR. CONSTRUCTION, INC.; PCCP IRG DOWNEY, LLC and IRG DOWNEY, LLC’s Request for Judicial Notice is GRANTED. Cal. Ev. Code ;452.

Lyle Parks’ Evidentiary Objection to the Declaration of Heather L. McCloskey

1. Overruled

Lyle Parks’ Evidentiary Objections to the Declaration of Peyton Dziura

1. Overruled

2. Overruled

Lyle Parks’ Request for Judicial Notice is GRANTED. Cal. Ev. Code ;452.

'

Case Number: BC643011    Hearing Date: April 13, 2021    Dept: C

SIMETA v. ALBERTA DEVELOPMENT PARTNERS, LLC, et al.

CASE NO.: BC643011

HEARING:  4/13/21 @ 1:30 PM

#7

TENTATIVE ORDER

I. The court will hear from the parties. The court is inclined to GRANT the motion, but will continue the hearing to Tuesday, 6/8/21 at 1:30 p.m. in Dept. C, to allow Attorney Mayers to submit a declaration regarding his assertion of the attorney-client privilege.

II. Defendants Command Performance Constructors, Inc., Lyle Parks Jr. Construction, Alberta Tierra Luna Management, LLC, PCCP IRG Downey, LLP, and IRG Downey, LLP’s motion for issue and evidentiary sanctions is GRANTED in part. Edwards is once again ordered to appear at Defendants’ next properly noticed deposition(s). Monetary sanctions are imposed against Edwards, with $500.00 payable to Defendant Lyle Parks Jr. Construction and $500.00 payable to Defendant Command Performance Constructors, Inc., within 30 days.

In addition, this court is inclined to reconsider and amend its prior 9/15/20 Order, and order Security Protections Services’ PMK to appear at the next properly noticed deposition. The Court will hear from the parties.

Moving Parties to give NOTICE, including notice to Attorney Mayers.

I. Motion to Compel Further Responses

Defendants Alberta Tierra Luna Management, LLC, Lyle Parks Jr. Construction, Inc., PCCP IRG Downey, LLP, and IRG Downey, LLP’s motion to compel further responses to request for production of document (set no. one) propounded to Cross-Complainant-in-Intervention Twin City Fire Insurance Company pursuant to CCP ; 2031.310.

Plaintiffs Simeta and Perez were security guards employed by Security Protection Services, Inc. (“SPS”). They were injured when Simeta’s personal vehicle crashed into a light pole base in the parking lot of a commercial construction project. The project manager is Lyle Parks Construction, Inc. and the installer of the light pole base is Performance Constructors, Inc. Plaintiffs filed suit against Lyle Parks and Performance Constructors for negligence and premises liability.

Cross-Complaints were filed against SPS, which is a suspended corporation.

Allied World Surplus Lines Insurance Company (“Allied”) and Twin City Fire Insurance Company (“Twin City”) each issued policies of insurance to SPS, and intervened on behalf of SPS in this action.

Nos. 12 and 13

On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand. (CCP ; 2031.310(a).)

Movants seek the recorded interview between Edwards and Hopkins (of SPS), Attorney Darren Mayers, and a representative of Twin City. Twin City requested the interview to determine whether Attorney Mayers could represent Twin City and SPS (as he was already representing SPS under Allied’s policy). Subsequently, Twin City retained Attorney Mayers until 3/23/20, when current counsel was substituted in place of Attorney Mayers as counsel for Twin City. (Opposition, McCloskey Decl., ¶¶2-5.)

Movants contend that Twin City failed to timely respond to Cross-Defendant’s discovery, and therefore waived any objection, including one based on privilege or on the protection for work product. (CCP ; 2031.3100(a).)

In opposition, Twin City does not assert the privilege, and does not object to producing the recorded interview.

However, Twin City points out that the privilege is also held by SPS who had retained the same attorney. Twin City cannot waive SPS’s privilege. Each of the joint clients holds the privilege protecting their confidential communications with the attorney; one client may not waive the privilege without the consent of the other. (American Mut. Liab. Ins. Co. v. Superior Court (1974) 38 Cal.App.3d 579, 591; Armenta v. Superior Court (2002) 101 Cal.App.4th 525, 533; Ev. Code ; 912(b).)

McCloskey’s reference to what Attorney Mayers said is inadmissible hearsay. This court is not in receipt of any declaration from Attorney Mayers nor is the court in receipt of any objection lodged by SPS asserting any privilege.

As it is SPS’s burden to establish that the privilege exists, but failed to do so, the court is inclined to grant the motion.

However, as it appears that Attorney Darren Mayers was not notified of the motion and hearing, this court will continue the hearing to Tuesday, 6/8/21 at 1:30 p.m. in Dept. C, to allow Attorney Mayers to submit a declaration regarding any assertion of the attorney-client privilege.

II. Sanctions

Defendants Command Performance Constructors, Inc. (“Command Performance”), Lyle Parks Jr. Construction (“Lyle Parks”), Alberta Tierra Luna Management, LLC, PCCP IRG Downey, LLP, and IRG Downey, LLP move for evidentiary and issue sanctions pursuant to CCP ; 2023.030.

If anyone engages in conduct that is a misuse of the discovery process, the court may impose monetary sanction, issue sanction, evidence sanction, terminating sanction, and contempt sanction. (CCP ; 2023.030.) The sanctions the court may impose are such as are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery he seeks, but the court may not impose sanctions which are designed not to accomplish the objects of discovery but to impose punishment. (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487.) A prerequisite to the imposition of the dismissal sanction is that the party has willfully failed to comply with a court order. (Ibid.) Terminating sanctions should only be ordered when there has been previous noncompliance with a rule or order and it appears a less severe sanction would not be effective. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1326.) A terminating sanction issued solely because of a failure to pay a monetary sanction is never justified. (Newland v. Sup.Ct. (1995) 40 Cal.App.4th 608, 615.)

Both Defendants Lyle Parks and Command Performance noticed depositions of SPS’s PMK and Chief Robert Edwards (SPS’s principal) multiple times from July 2019 through July 2020, resulting in failures to appear on behalf of SPS’s PMK and Chief Edwards.

On 9/15/20, this court ordered Edwards to appear at Defendant’s depositions. This court denied the motions relating to SPS’s PMK because SPS is a suspended corporation, and any SPS deposition would be futile because SPS is prohibited from defending itself.

Now, in opposition, Allied and Twin City contend that because the court did not order SPS to appear at deposition, SPS did not violate any court order, and Edwards is a non-party so any violation should not result in sanctions against SPS.

It is undisputed that Edwards is the principal of SPS, and has resisted all discovery efforts and communications to date.

To accomplish the object of discovery and prevent the misuse of the discovery process, the motion is GRANTED in part as to Edwards.

Edwards is once again ordered to appear at Defendants’ next properly noticed deposition(s). Monetary sanctions are imposed against Edwards, with $500.00 payable to Defendant Lyle Parks Jr. Construction and $500.00 payable to Defendant Command Performance Constructors, Inc., within 30 days.

As it appears that Allied and Twin City are now attempting to use Edwards’ intransigence as both a sword and shield, the court is inclined to reconsider its prior 9/15/20 order, and issue the following Amended Order:

Defendants Lyle Parks Jr. Construction and Command Performance Constructors, Inc.’s motion to compel the deposition of the PMK of Security Protection Services, Inc. is GRANTED. SPS’s PMK is ordered to appear at the next properly noticed deposition(s). If SPS is still in suspended status at the time of its deposition, SPS is prohibited from defending itself, and Defendants may record a non-appearance, as well as bring the appropriate sanctions motion.

The Court will hear from the parties as to the amended order.

Case Number: BC643011    Hearing Date: September 15, 2020    Dept: C

SIMETA v. ALBERTA DEVELOPMENT PARTNERS, LLC, et al.

CASE NO.: BC643011

HEARING:  9/15/20

JUDGE: OLIVIA ROSALES

[Remote appearances are encouraged and will be given priority.]

#10

TENTATIVE ORDER

I. Defendant Lyle Parks Jr. Construction’s motion to compel the deposition of Security Protection Services, Inc.’s Officer Chief Robert Edwards is GRANTED.

II. Defendant Lyle Parks Jr. Construction’s motion to compel the deposition of the PMK of Security Protection Services, Inc. is DENIED.

III. Defendant Command Performance Constructors, Inc.’s motion to compel the deposition of Security Protection Services, Inc.’s Officer Chief Robert Edwards is GRANTED.

IV. Defendant Command Performance Constructors, Inc.’s motion to compel the deposition of the PMK of Security Protection Services, Inc. is DENIED.

No sanctions. Moving Parties to give NOTICE.

Defendants Lyle Parks Jr. Construction and Command Performance Constructors, Inc. move to compel the depositions of Security Protection Services, Inc. (“SPS”)’s PMK and Chief Robert Edwards pursuant to CCP ; 2025.010.

Plaintiffs Simeta and Perez were security guards employed by SPS. They were injured when Simeta’s personal vehicle crashed into a light pole base in the parking lot of a commercial construction project. The project manager is Lyle Parks Construction, Inc. and the installer of the light pole base is Performance Constructors, Inc. Plaintiffs filed suit against Lyle Parks and Performance Constructors for negligence and premises liability.

Allied World Surplus Lines Insurance Company and Twin City Fire Insurance Company intervened on behalf of SPS.

"Any party may obtain discovery within the scope delimited by Chapter 2 (commencing with ;2017.010) and Chapter 3 (commencing with ;2017.710), and subject to the restrictions set forth in Chapter 5 (commencing with ;2019.010) by taking in California the oral deposition of any person, including any party to the action." (CCP ; 2025.010.)

"[A]n oral deposition may be taken as follows: (a) The defendant may serve a deposition notice without leave of court at any time after that defendant has been served or has appeared in the action, whichever occurs first. (b) The plaintiff may serve a deposition notice without leave of court on any date that is 20 days after the service of the summons on, or appearance by, any defendant. On motion with or without notice, the court, for good cause shown, may grant to a plaintiff leave to serve a deposition notice on an earlier date." (CCP ; 2025.210.)

SPS is a suspended corporation and as such, “lacks the legal capacity to prosecute or defend a civil action during its suspension. On the other hand, a suspended corporation may be sued and a default judgment may be entered upon its failure to respond.”  (Tabarrejo v. Superior Court (2014) 232 Cal.App.4^th 849, 862.) Its insurers may intervene in the action to address, in the insurer’s own name, the claims against the suspended policyholder corporation. (Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2006) 136 Cal.App.4^th 212.)

Intervenor Allied World Surplus Lines Insurance Company (“Allied”) intervened in March 2019, “to protect its own interests and defend SPS on liability and damages to minimize exposure to Allied.” (Allied Opposition, 2:21-22.)

On 11/12/19, Intervenor Twin City Fire Insurance Company filed an Answer “on behalf of… Security Protection Services, Inc.” (Answer filed 11/12/19)

Both Lyle Parks and Command Performance noticed depositions of SPS’s PMK and Chief Edwards multiple times from July 2019 through July 2020, resulting in a failure to appear on behalf of SPS’s PMK and Chief Edwards.

In opposition, both Allied and Twin Cities contend that they should not be sanctioned for SPS’s conduct because they do not represent SPS. Allied attempted to gain SPS and Chief Edwards’ participation, but they failed to cooperate. (Allied Opposition, 4:11-27.)

Allied makes the additional argument that SPS’s PMK cannot be deposed because SPS has no capacity to defend the lawsuit. Neither Allied nor Twin City argue that Edwards may not be deposed.

Accordingly, the motions are DENIED as to SPS’s PMK because SPS lacks the capacity to participate in the action. The motions are GRANTED as to SPS’s Chief Edwards. Chief Edwards, in his individual capacity, is ordered to appear at the next properly noticed deposition.

Because it appears that SPS has no desire to revive its corporate status to participate in this action, and has heretofore failed to respond to the parties’ requests, upon a properly filed motion, this court will consider imposing issue sanctions to preclude any party (including Twin Cities and Allied) from offering any witnesses, documents, or evidence from SPS.

No sanctions.

Case Number: BC643011    Hearing Date: August 06, 2020    Dept: G

SIAKIMATIVE SIMETA VS ALBERTA DEVELOPMENT PARTNERS, LLC

BC643011

EX PARTE HEARING: AUGUST 6, 2020 DEPT. G

TENTATIVE RULING

Grant.

All hearings are consolidated and set for September 15, 2020 at 10:30 a.m., in Dept. C

Case Number: BC643011    Hearing Date: February 25, 2020    Dept: SEC

SIMETA v. ALBERTA DEVELOPMENT PARTNERS LLC, et al.

CASE NO.: BC643011

HEARING: 2/25/20

JUDGE: OLIVIA ROSALES

#4

TENTATIVE ORDER

Defendant Lyle Parks Jr. Construction, Inc.’s motion for an order requiring undertaking to secure an award of costs and fees under CCP 1030 is DENIED.

Plaintiff to give NOTICE.

Defendant Lyle Parks Jr. Construction, Inc. moves for an undertaking pursuant to CCP ; 1030.

(a) (b) The motion shall be made on the grounds that the plaintiff resides out of the state or is a foreign corporation and that there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding. The motion shall be accompanied by an affidavit in support of the grounds for the motion and by a memorandum of points and authorities. The affidavit shall set forth the nature and amount of the costs and attorney's fees the defendant has incurred and expects to incur by the conclusion of the action or special proceeding. (CCP ; 1030(a) and (b).)

Plaintiff presently “resides in the Independent State of Samoa.” (Motion, Ex. J, Plaintiff’s Objection to the Notice of Deposition served on 3/1/19.) Plaintiff does not dispute this fact in opposition.

When an employee of an independent contractor is injured in the workplace, the injured employee generally cannot sue the party that hired the contractor to do the work. (Privette v. Superior Court (1995) 5 Cal.4^th 689, 695.) A hirer “delegate[s] responsibility for performing the task safely, and assignment of liability to the contractor follow[s] that delegation.” (Seabright Ins. v. U.S. Airways Inc. (2011) 52 Cal.4^th 590, 600.)

An exception to the Privette general rule of nonliability provides that a hirer of an independent contractor may be liable if the hirer retained control over safety conditions and the exercise of retained control affirmatively contributed to the employee’s injuries. (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202.) Because the liability of the contractor, the person primarily responsible for the worker's on-the-job injuries, is limited to providing workers' compensation coverage, it is unfair to impose tort liability on the hirer of the contractor merely because the hirer retained the ability to exercise control over safety at the worksite. The imposition of tort liability on a hirer should depend on whether the hirer exercised the control that was retained in a manner that affirmatively contributed to the injury of the contractor's employee. (Hooker, supra, 27 Cal.4th at 210.) Another narrow exception to Privette's general rule of nonliability is that a hirer can be liable to an employee of an independent contractor insofar as the hirer's provision of unsafe equipment affirmatively contributes to the employee's injury. (McKown v. Wal-Mart Stores, Inc. (2002) 27 Cal.4^th 219, 225.)

Defendant contends that there is a reasonable possibility that Defendant will obtain a judgment. In support of this contention, Defendant submits the following evidence:

· Defendant hired Security Protection Services, Inc. (“SPS”) as an independent subcontractor to perform security services at the construction site. (Mahlstead Decl., ¶ 3.)

· Pursuant to the contract, SPS’s scope of work did not include the use of patrol cars, but instead was specifically restricted to foot (walking) patrol. (Id.; Motion, Ex. I, 5/9/18 letter.)

· Defendant hired Command Performance Constructors, Inc. (“CPC”), who was the subcontractor who installed the light pole base that Plaintiff collided with. (Id.)

· Plaintiff was employed by SPS when he was injured while driving his vehicle during his patrol and collided with a light pole base. (Ex. D, Plaintiff’s response to Special Interrogatory No. 1; Complaint, ¶ 11.)

· Defendant did not design, construct or install or otherwise work on the light pole base that Plaintiff ran into and had no responsibility for the safety of the subcontractors, which instead were delegated to the subcontractors. (Mahlstead Decl., ¶ 5.)

· Defendant did not provide any instruction or direct oversight over the means and methods by which Plaintiff was to perform his work. Instead, all of these decisions regarding instructions or direct oversight over the means and methods of providing work were left solely to SPS, CPC and/or Plaintiff. (Id. at ¶ 6.)

· Defendant did not supervise, instruct or otherwise advise any of the subcontractors or their employees on the means and methods of performing their work. Instead, all of these decisions regarding the means and methods of performing their work were left solely to the subcontractors themselves. (Id. at ¶ 7.)

· Defendant did not provide any supplies or equipment to any subcontractors. Instead, all of these decisions regarding providing supplies or equipment were left solely to the subcontractors themselves. (Id. at ¶ 8.)

· Defendant did not retain any control on how any of the subcontractors performed their work at the Subject Project. Instead, all of these decisions regarding how the subcontractors performed their work were left solely to the subcontractors themselves. (Id. at ¶ 9.)

· Defendant did not provide any safety instructions to any of the subcontractors. Instead, all of the decisions regarding the providing of safety for their employees were left solely to the subcontractors themselves. (Id. at ¶ 10.)

· Prior to the accident, no one had advised Defendant that a dangerous condition existed, including the concrete light pole base that Plaintiff collided into. (Id. at ¶ 11.)

· Defendant was unaware of any concealed preexisting hazardous condition that existed at the Subject Project. (Id. at ¶ 12.)

The evidence supports the reasonable possibility that Defendant hired SPS, an independent contractor to perform patrol services, and therefore, delegated to SPS responsibility over safety in the performance of such services. The evidence also supports the reasonable possibility that Defendant did not retain control over the means and methods of any of the work of its subcontractors, did not provide any supplies or equipment involved in the accident, and was unaware of any dangerous or concealed preexisting hazardous conditions. Further, there are no facts or evidence showing that any act or omission on the part of Defendant affirmatively contributed to Plaintiff’s injuries.

In opposition, Plaintiff contends that Defendant’s evidence is not “substantial or the best available.” (Opposition, 7:26-27.) However, substantial evidence is not the standard. The standard is whether Defendant possesses evidence that supports a “reasonable possibility” of prevailing. Plaintiff’s evidence merely disputes Defendant’s evidence. The court is not weighing the evidence at this juncture. Based on the evidence submitted, pursuant to Privette v. Superior Court (1995) 5 Cal.4^th 689 and Seabright Ins. v. U.S. Airways Inc. (2011) 52 Cal.4^th 590, Defendant has demonstrated a reasonable possibility of prevailing.

Alternatively, Plaintiff requests that the court exercise its discretion in waiving the undertaking based on Plaintiff’s indigency.

Where the plaintiff establishes indigency, a trial court has discretion to waive the posting of security under Section 1030. (Bank of America v. Superior Court (1967) 255 Cal.App.2d 575, 578.) The “party seeking relief from the requirement of posting a bond or undertaking has the burden of proof to show entitlement to such relief.” (Williams v. FreedomCard, Inc. (2004) 123 Cal.App.4th 609, 614; see Baltavan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1434 - “the plaintiff should make a prima facie showing that he has unsuccessfully attempted to obtain the required undertaking or that he is unable to furnish it”.) “[T]he court had discretion to deny plaintiff's motion upon the sole ground that while the support for the motion showed plaintiff's present personal inability to make any payment, it did not show her inability to obtain sureties against a future contingency.” (Fuller v. State of California (1969) 1 Cal.App.3d 664, 670-671.)

In exercising its discretion the court shall take into consideration all factors it deems relevant, including but not limited to the nature of the action or proceeding, the nature of the beneficiary, whether public or private, and the potential harm to the beneficiary if the provision for the bond is waived. (Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 429.)

Here, Plaintiff declares: “I have been unable to work and my condition is worsening. I am single and have no children. I rely on family and friends for life's basic necessities, such as food, shelter, transportation and the like. I cannot provide a cashier's check or bank letter of credit for any amount and I do not know anyone who could or would post the undertaking for me. I do not own any real property or other appreciable assets. I have no investments such as stocks or bonds or life insurance policies or retirement accounts. I do not own an automobile. I am not currently earning any money and need medical treatment as my condition continues to worsen.” (Simeta Decl., ¶¶ 4-5.)

Contrary to Defendant’s assertion in its Reply at 1:24-11:2, Plaintiff denies owning any “appreciable assets,” and states that he is single and does not know anyone who could or would post an undertaking on his behalf. The court is satisfied that Defendant is unable to obtain an undertaking.

Accordingly, this court will exercise its discretion in waiving the undertaking. The motion is DENIED.