This case was last updated from Los Angeles County Superior Courts on 08/14/2019 at 09:46:25 (UTC).

SUZANA AREZINA VS WATSON CONSTRUCTION COMPANY INC ET AL

Case Summary

On 12/05/2016 SUZANA AREZINA filed a Personal Injury - Asbestos Product Liability lawsuit against WATSON CONSTRUCTION COMPANY INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is CHRISTOPHER K. LUI. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1560

  • Filing Date:

    12/05/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Asbestos Product Liability

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

CHRISTOPHER K. LUI

 

Party Details

Plaintiffs and Petitioners

AREZINA SUZANA

ROOM & BOARD INC

Defendants, Respondents and Cross Defendants

WATSON DUSTY

WATSON CONSTRUCTION COMPANY INC.

DOES 1 TO 10

S & N CONSTRUCTION INC. DOE 1

Defendants and Respondents

WATSON DUSTY

WATSON CONSTRUCTION COMPANY INC.

DOES 1 TO 10

Defendant, Cross Plaintiff and Cross Defendant

S & N CONSTRUCTION INC. DOE 1

Plaintiffs and Cross Defendants

ROOM & BOARD INC

S & N CONSTRUCTION INC. DOE 1

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

HOFFMAN STEVE A. ESQ.

HOFFMAN STEVE ANTHONY

Defendant Attorneys

WAGHALTER PO SATIA

HOBSON SUSAN E.

Cross Plaintiff Attorney

BEAN HEATHER M.

Cross Defendant Attorney

AKOPYAN HILDA ADRIANA

 

Court Documents

Motion for Summary Judgment

6/26/2019: Motion for Summary Judgment

Separate Statement

6/26/2019: Separate Statement

Request for Judicial Notice

6/26/2019: Request for Judicial Notice

Declaration

6/26/2019: Declaration

Memorandum of Points & Authorities

6/26/2019: Memorandum of Points & Authorities

Notice

7/9/2019: Notice

Motion to Continue Trial Date

7/26/2019: Motion to Continue Trial Date

Reply

7/30/2019: Reply

Informal Discovery Conference Form for Personal Injury Courts

8/1/2019: Informal Discovery Conference Form for Personal Injury Courts

Minute Order

8/6/2019: Minute Order

Minute Order

5/21/2018: Minute Order

Declaration re: Due Diligence

5/21/2018: Declaration re: Due Diligence

ANSWER OF WATSON CONSTRUCTION COMPANY INC., AND DUSTY WATSON TO PLAINTIFF'S COMPLAINT

6/13/2018: ANSWER OF WATSON CONSTRUCTION COMPANY INC., AND DUSTY WATSON TO PLAINTIFF'S COMPLAINT

Proof of Service of Summons and Complaint

6/27/2018: Proof of Service of Summons and Complaint

REQUEST FOR DISMISSAL

8/24/2018: REQUEST FOR DISMISSAL

Notice

1/23/2019: Notice

Motion for Leave to File a Cross-Complaint

3/6/2019: Motion for Leave to File a Cross-Complaint

Ex Parte Application

3/21/2019: Ex Parte Application

44 More Documents Available

 

Docket Entries

  • 12/05/2019
  • Hearingat 08:30 AM in Department 4A at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Dismissal

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  • 10/15/2019
  • Hearingat 08:30 AM in Department 4A at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial

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  • 10/02/2019
  • Hearingat 10:00 AM in Department 4A at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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  • 09/11/2019
  • Hearingat 13:30 PM in Department 4A at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 09/11/2019
  • Hearingat 13:30 PM in Department 4A at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 08/26/2019
  • Hearingat 13:30 PM in Department 4A at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion to Continue Trial

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  • 08/12/2019
  • DocketNotice (of Non-Opposition to Motion); Filed by S & N Construction, Inc. (DOE 1) (Defendant)

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  • 08/12/2019
  • DocketNotice of Ruling; Filed by Room & Board, Inc (Cross-Defendant)

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  • 08/06/2019
  • Docketat 1:30 PM in Department 4A, Christopher K. Lui, Presiding; Hearing on Demurrer - without Motion to Strike - Held - Motion Denied

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  • 08/06/2019
  • DocketMinute Order ( (Cross-Defendant Room & Board, Inc.'s Demurrer - without Moti...)); Filed by Clerk

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64 More Docket Entries
  • 05/21/2018
  • DocketProof of Service of Summons and Complaint

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  • 05/21/2018
  • DocketProof of Service of Summons and Complaint

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  • 05/21/2018
  • DocketDeclaration re: Due Diligence; Filed by Suzana Arezina (Plaintiff)

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  • 05/21/2018
  • DocketProof-Service/Summons; Filed by Suzana Arezina (Plaintiff)

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  • 05/21/2018
  • DocketDeclaration re: Due Diligence; Filed by Suzana Arezina (Plaintiff)

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  • 05/21/2018
  • DocketMinute order entered: 2018-05-21 00:00:00; Filed by Clerk

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  • 05/21/2018
  • DocketDeclaration re: Due Diligence

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  • 12/05/2016
  • DocketComplaint

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  • 12/05/2016
  • DocketSummons; Filed by Suzana Arezina (Plaintiff)

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  • 12/05/2016
  • DocketComplaint; Filed by Suzana Arezina (Plaintiff)

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Tentative Rulings

Case Number: BC641560    Hearing Date: July 28, 2020    Dept: 28

S&N's Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Having considered the moving, opposing, and reply papers.  The Court rules as follows.

BACKGROUND

On December 5, 2016, Plaintiff Suzana Arezina (“Plaintiff”) filed a complaint against Defendants Watson Construction Company, Inc. (“WCCI”) and Dusty Watson (“Watson”).  Plaintiff alleges three counts of products liability for strict liability, negligence, and breach of warranty, in addition to negligence in relation to a cabinet that fell on Plaintiff on December 8, 2014.

On June 27, 2018, Plaintiff filed an amendment to complaint renaming Doe 1 as Defendant S&N Construction, Inc. (“S&N”).

On August 24, 2018, the Court dismissed the breach of implied warranty count in the product liability cause of action against S&N with prejudice.

On April 30, 2019, S&N filed a cross-complaint against Cross-Defendant Room & Board, Inc. (“R&B”) seeking equitable indemnity, comparative equitable indemnity, apportionment of fault, and declaratory relief.

On September 19, 2019, the Court dismissed WCCI and Watson from the complaint with prejudice.

On October 29, 2019, S&N filed a motion for summary judgment, or in the alternative, summary adjudication against Plaintiff pursuant to California Code of Civil Procedure section 437c.

On January 10, 2020, the Court granted Plaintiff’s ex parte application to consider late opposing papers to S&N’s motion for summary judgment, or in the alternative, summary adjudication.

On January 14, 2020, the Court continued the hearing on S&N’s motion for summary judgment, or in the alternative, summary adjudication against Plaintiff to January 30, 2020.

On January 23, 2020, the Court continued the hearing on S&N’s motion for summary judgment, or in the alternative, summary adjudication against Plaintiff to March 6, 2020.

On February 10, 2020, the Court continued the hearing on S&N’s motion for summary judgment, or in the alternative, summary adjudication against Plaintiff to March 20, 2020.

On March 11, 2020, the Court continued the hearing on S&N’s motion for summary judgment, or in the alternative, summary adjudication against Plaintiff to April 7, 2020.

On March 18, 2020, the Court continued the hearing on S&N’s motion for summary judgment, or in the alternative, summary adjudication against Plaintiff to May 21, 2020

On April 17, 2020, the Court continued the hearing on S&N’s motion for summary judgment, or in the alternative, summary adjudication against Plaintiff to August 18, 2020.

On June 2, 2020, the Court advanced the hearing on S&N’s motion for summary judgment, or in the alternative, summary adjudication against Plaintiff to July 28, 2020.

A trial setting conference is scheduled for October 29, 2020.

PARTY’S REQUESTS

S&N asks the Court to grant summary judgment, or in the alternative, summary adjudication against Plaintiff because S&N did not owe a duty to Plaintiff and there was no defect in the platform upon which the cabinet that injured Plaintiff rested.

JUDICIAL NOTICE

S&N’s request for judicial notice of Plaintiff’s complaint is GRANTED.  However, the Court will not take judicial notice of the truth of the matters asserted within the complaint.

OBJECTIONS

S&N’s evidentiary objections to paragraphs two and four of Yishai Kohen’s declaration are OVERRULED.  Kohen states Steve Fisher’s declaration was reviewed.  Fisher declares in paragraph five of his declaration that the various documents he relied on are attached as Exhibit A.  As such, the Court understands Kohen’s statement that Kohen was “advised of” certain facts, Kohen obtained those facts from the evidence attached to Fisher’s declaration.

S&N’s evidentiary objections based on foundation, hearsay, speculation are SUSTAINED as to paragraphs two and four of Yishai Kohen’s declaration.  Kohen, a general contractor, lists facts Kohen was “advised of.”  Kohen merely declares Steve Fisher’s declaration was reviewed.  The Court understands this to mean the declaration of Steve Fisher, S&N’s expert, submitted in support of the motion.  Kohen does not state who advised Kohen of the information Kohen relies in forming the opinions in paragraph four of the declaration.

S&N’s evidentiary objection to paragraph three of Mackenze Hamilton’s declaration for hearsay is SUSTAINED.  Hamilton declares that Heather Neubaur told Hamilton the cabinet was attached to the wall before S&N installed the base and the incident.  This is an out of court statement offered for the truth of the matter asserted.

S&N’s evidentiary objections to paragraph four of Hamilton’s declaration for lack of foundation, being speculative, containing inadmissible speculation and conclusions, being irrelevant, and being improper expert testimony are OVERRULED.  Hamilton was a Leadership Associate of R&B and was part of a three member management team.  By virtue of her position, she has personal knowledge of the safety requirements of the cabinets at her work.  As such, she is a lay witness.

The Court OVERRULES the remaining objections.

LEGAL STANDARD

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Ibid.)  “If the plaintiff cannot do so, summary judgment should be granted.”  (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

Negligence

“‘The elements of a cause of action for negligence are well established. They are ‘(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.’’ [Citation]”  (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917-918.)

S&N argues it did not owe a duty to Plaintiff.  S&N contends it did not own, control, or possess the cabinet or the premises on which the cabinet is located, S&N did not owe a duty to attach the cabinet owned by Room and Board to the wall, and S&N has no duty as to the cabinet.  (Motion, pp. 10-13.) 

S&N has not met its burden.  S&N did not submit admissible evidence showing Plaintiff cannot establish S&N owed her a duty of care.  Plaintiff’s claims against S&N are based on S&N’s alleged design, manufacture, and construction of a base/plinth to prevent the drawers of a very heavy cabinet from self-opening.  Plaintiff alleged S&N “dangerously raised the very heavy cabinet” and negligently “detached/removed that which was securing the heavy cabinet to the wall, and had then negligently failed to secure/re-secure the heavy cabinet back to the wall.”  (Compl., pp. 4-5.)  It is undisputed that S&N was hired by R&B, on or around October 21, 2014, to build and install a platform to be secured to the bottom of a cabinet owned by R&B.  R&B hired S&N to perform the limited service: “[b]uild and install platforms to level stone topped work table and chest of drawers with samples,and the platform was intended for the specific purpose of making the chest of drawers level.  (UMF Nos. 1-3, 18.) S&N failed to cite to on-point case law or authority suggesting it did not owe a duty to persons who would use the cabinet.

Products Liability

“A manufacturer or retailer may be held strictly liable for placing a defective product on the market if the plaintiff's injury results from a reasonably foreseeable use of the product. [Citations] Strict product liability may be premised upon a theory of design defect, manufacturing defect or failure to warn. [Citation]” (Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1302.)  

“A design defect exists when the product is built in accordance with its intended specifications, but the design itself is inherently defective. [Citations]”  (Id. at p. 1303.)  “‘[T]he Supreme Court [has] recognized two tests for proving design defect.  The ‘consumer expectation test’ permits a plaintiff to prove design defect by demonstrating that ‘the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.’ [Citation.] This test, rooted in theories of warranty, recognizes that implicit in a product's presence on the market is a representation that it is fit to do safely the job for which it was intended. [Citations.] If the facts permit an inference that the product at issue is one about which consumers may form minimum safety assumptions in the context of a particular accident, then it is enough for a plaintiff, proceeding under the consumer expectation test, to show the circumstances of the accident and ‘the objective features of the product which are relevant to an evaluation of its safety’ [citation], leaving it to the fact finder to ‘employ ‘[its] own sense of whether the product meets ordinary expectations as to its safety under the circumstances presented by the evidence.’’ [Citations.] Expert testimony as to what consumers ordinarily ‘expect’ is generally improper. [Citation.] [Fn. omitted.]” (Ibid.)

“The second test for design defect is known as the ‘risk-benefit test.’ Under this test, products that meet ordinary consumer expectations nevertheless may be defective if the design embodies an ‘“excessive preventable danger.’’ [Citations.] To prove a defect under this test, a plaintiff need only demonstrate that the design proximately caused the injuries. Once proximate cause is demonstrated, the burden shifts to the defendant to establish that the benefits of the challenged design, when balanced against such factors as the feasibility and cost of alternative designs, outweigh its inherent risk of harm. [Citations.] [¶] The two tests provide alternative means for a plaintiff to prove design defect and do not serve as defenses to one another. A product may be defective under the consumer expectation test even if the benefits of the design outweigh the risks. [Citation.] On the other hand, a product may be defective if it satisfies consumer expectations but contains an excessively preventable danger in that the risks of the design outweigh its benefits. [Citation.] [¶] Whether a plaintiff may proceed under the consumer expectation test or whether design defect must be assessed solely under the risk-benefit test is dependent upon the particular facts in each case.’” (Ibid.) 

“The theory underlying a warning defect cause of action is that the product is dangerous because it lacks adequate warnings or instructions. [Citation] ‘Generally speaking, manufacturers have a duty to warn consumers about the hazards inherent in their products. [Citation.] The requirement’s purpose is to inform consumers about a product’s hazards and faults of which they are unaware, so that they can refrain from using the product altogether or evade the danger by careful use. [Citation.] Typically, under California law, we hold manufacturers strictly liable for injuries caused by their failure to warn of dangers that were known to the scientific community at the time they manufactured and distributed their product.’ [Citations] To establish strict liability for failure to warn, the plaintiff must prove the defendant ‘did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution. . . . [T]he reasonableness of the defendant's failure to warn is immaterial.’ [Citations]”  (Id. at p. 1304.) 

“As with an action asserted under a strict liability theory, under a negligence theory the plaintiff must prove a defect caused injury. [Citation] However, ‘[u]nder a negligence theory, a plaintiff must also prove ‘an additional element, namely, that the defect in the product was due to negligence of the defendant.’’ [Citation] [¶] ‘[T]he test of negligent design ‘involves a balancing of the likelihood of harm to be expected from a machine with a given design and the gravity of harm if it happens against the burden of the precaution which would be effective to avoid the harm.’ [Citation.] … ‘A manufacturer or other seller can be negligent in marketing a product because of the way it was designed. In short, even if a seller had done all that he could reasonably have done to warn about a risk or hazard related to the way a product was designed, it could be that a reasonable person would conclude that the magnitude of the reasonably foreseeable harm as designed outweighed the utility of the product as so designed.’ [Citation.] Thus, ‘most of the evidentiary matters’ relevant to applying the risk/benefit test in strict liability cases ‘are similar to the issues typically presented in a negligent design case.’’ [Citation]” (Id. at pp. 1304-1305.) 

“‘Negligence law in a failure-to-warn case requires a plaintiff to prove that a manufacturer or distributor did not warn of a particular risk for reasons which fell below the acceptable standard of care, i.e., what a reasonably prudent manufacturer would have known and warned about.’ [Citation]”  (Id. at p. 1305.) 

S&N argues Plaintiff cannot support the essential element of defect for strict products liability.  Specifically, S&N argues Plaintiff’s contention that the platform was defective because the cabinet was not attached to the wall is unsupportable and Plaintiff cannot support any allegation of manufacturing or design defect.  (Motion, pp. 13-15.)  According to S&N, the fact that the cabinet allegedly tipped over when Plaintiff opened multiple drawers does not establish the platform was defective.  (Motion, p. 14.) 

Again, S&N has not met its burdenS&N failed to submit admissible evidence showing Plaintiff cannot establish the platform was defective.  Specifically, S&N failed submit admissible evidence showing the platform did not create or contribute to a tipping hazard.  S&N merely submitted evidence suggesting it completed the job (i.e. leveling the cabinet with the platform) to R&B’s satisfaction, the cabinet is still at the store, and the exact platform continues to be a component part of the cabinet to date, with no additions or modifications since it was built by S&N.  (UMF No. 21; Pugh Decl. ¶¶ 3-8, 15-19, Exh. 1; Oliver Depo., pp. 21:14-16, 29:7-35:9, 41:7-42:7, 47:13-16, 55:18-56:20; Neubauer Depo., pp. 96:23-99:10.)

S&N submitted a declaration from Steve Fisher, a licensed general contractor with 25 years in the construction industry, in support of the motion.  Fisher opined that the platform job by S&N was consistent with the standard of care of a general contractor and, to a reasonable degree of professional certainty, there was and is no manufacturing or design defect to the platform built by S&N.  (Fisher Decl. ¶¶, 1, 4-9, 13.)  However, Fisher did not specifically address whether the platform created or contributed to a tipping hazard. 

Moreover, S&N’s own evidence suggests the platform was defective.  Specifically, S&N submitted deposition testimony suggesting the cabinet tipped over after Plaintiff opened a drawer, the cabinet partially slipped off of the platform, and the cabinet should not have tipped over or separated from the platformPlaintiff testified she pulled the drawer of the cabinet open, went to grab some of the lighter colors the client was interested in, and she felt the cabinet fall forward.  Plaintiff testified she was trying to lean back as the cabinet was falling forward, but then she realized her foot was pinned underneath.  (Plaintiff Depo., pp. 20:15-21:17.)  Plaintiff testified as follows:

That the cabinet had slid off the plinth, fell on my left foot, and I was stuck, and I couldn’t.  So I knew in that moment, had I not tried to hold it up with all my might, I would have been completely crushed.  So imagine my toes are jammed under it, and I’m leaning back, trying not to get crushed and giving it my all.

And there was lots of drawers.  I’m not exactly sure how many.  I can’t recall the total amount, but they were just popping open, ramming me – boom, boom, boom, boom.  My right hand was scraped, and this is all in a matter of seconds, mind you.  So my client ran, and she’s like, “Oh, my God.” And she tried to help and hold it up with me.  Then she realized it was a lost cause, and she started screaming, “Help, help, help.”

And at that point, two of my coworkers ran over and the cleaning associate. So they all came and came onto the right side of it and, like, tried to keep holding it up so that I don’t get crushed.  It took a while, but between the guys and all five of us were able to lift it back up to the plinth and release my left leg – or foot from underneath it.  

(Plaintiff Depo., pp. 21:23-22:19.)

Plaintiff also testified as to the following:

So the – the company had hired a contractor to build a plinth, which was – it’s just like a wooden base to house this cabinet on because the floor was unleveled.  They wanted to level the cabinet out.  So when the cabinet fell off, it fell off that plinth.  So you can just imagine just the edge of the cabinet alone.  The plinth wasn’t on my foot.

The cabinet fell off the plinth on to my – on to my foot.  It wasn’t attached to the plinth.  It wasn’t attached to the wall.  It was just purely the cabinet that fell on my foot.

(Plaintiff Depo., p. 25:7-17.)

Plaintiff later testified she did not know whether the cabinet fell off the plinth.  Plaintiff testified she does not know if the cabinet fell completely off the plinth – it was at an angle, so it may possibly have fallen off the plinth.  Plaintiff testified she would have to say the cabinet partially fell off of the plinth “because how else would have it gotten on to [her] foot.”  Plaintiff testified she did not see the cabinet fall off of the plinth, but the cabinet definitely fell off of something.  (Plaintiff Depo., pp. 30:2-34:11.)  Plaintiff testified the cabinet “slid partially off the plinth…It didn’t slide off the plinth 100 percent, completely.”  (Plaintiff Depo., pp. 175:16-176:7.)

Heather Neubauer, a Retail Market Manager for Room and Board, testified “it would not be okay if a fixture came off the plinth base…”  (Neubauer Depo., p. 86:11-12.)  Neubauer testified it was her expectation when S&N was hired to install the base beneath the cabinet that the cabinet would stay on top of that base when the drawers of the cabinet were opened up.  (Neubauer Depo., p. 87:15-23.)  Neubauer testified she expected S&N to install the plinth and the cabinet where it was in a safe manner for use by the employees.  (Neubauer Depo., pp. 12:7-15, 90:20-23.) Neubauer also testified that, to her knowledge, no one had been injured by the cabinet before the plinth was installed.  (Neubauer Depo., p. 98:10-13.) 

Vance Oliver, R&B’s person most knowledgeable, testified, as follows:

Q: So you would think, if you had opened up a couple of drawers and fell on you, the same identical cabinet weighing 275 pounds empty, you would feel that that was the – that cabinet has behaved as it’s supposed to behave?

A: No. 

Q: Okay.  You – true or false, the cabinet at your office, which is identical to the cabinet that happened to Mrs. Arezina, when you opened that drawer, you did not expect it to fall on you, right?

A: Correct.

Q: Okay. Do you agree that the piece was not supposed to tip forward onto an employee when they open the drawers?  Yes or no?

A: It would not be expected.

Q: My question is, do you agree that that is not supposed to happen?

A: That’s correct.

Q: And to you, the workmanlike manner means that it shouldn’t fall forward onto people when they open drawers, right?

A: Yes.

(Oliver Depo., pp. 7:6-9, 69:8-19, 70:2-6, 71:20-72:11, 74:15-75:20.

Finally, S&N argues Plaintiff cannot support any allegation of failure to warn of obvious danger.  (Motion, pp. 15-16.)  The only evidence in support of this argument is Fisher’s conclusory declaration stating “[t]o a reasonable degree of professional certainty, the standard of care of a general contractor in performance of the platform job does not include warning Plaintiff as to the safety of [the] platform built by [S&N] or the cabinet.”  (Fisher Decl., ¶ 14.)  This is a conclusory opinion.  As such, S&N has not met its burden.

It follows that summary judgment must be denied and summary adjudication as to Plaintiff’s products liability cause of action must be denied.

CONCLUSION

S&N’s motion for summary judgment against Plaintiff is DENIED.

S&N’s motion for summary adjudication against Plaintiff is DENIED.

S&N is ordered to give notice of this ruling.

R&B’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On December 5, 2016, Plaintiff Suzana Arezina (“Plaintiff”) filed a complaint against Defendants Watson Construction Company, Inc. (“WCCI”) and Dusty Watson (“Watson”).  Plaintiff alleges three counts of products liability for strict liability, negligence, and breach of warranty, in addition to negligence in relation to a cabinet that fell on Plaintiff on December 8, 2014.

On June 27, 2018, Plaintiff filed an amendment to complaint renaming Doe 1 as Defendant S&N Construction, Inc. (“S&N”). 

On August 24, 2018, the Court dismissed the breach of implied warranty count in the product liability cause of action against S&N with prejudice.

On April 30, 2019, S&N filed a cross-complaint against Cross-Defendant Room & Board, Inc. (“R&B”) seeking equitable indemnity, comparative equitable indemnity, apportionment of fault, and declaratory relief.

On September 19, 2019, the Court dismissed WCCI and Watson from the complaint with prejudice.

On November 15, 2019, R&B filed a motion for summary judgment, or in the alternative, summary adjudication against S&N pursuant to California Code of Civil Procedure section 437c.

On March 18, 2020, the Court continued the hearing on S&N’s motion for summary judgment, or in the alternative, summary adjudication against Plaintiff to May 21, 2020

On April 17, 2020, the Court continued the hearing on S&N’s motion for summary judgment, or in the alternative, summary adjudication against Plaintiff to August 18, 2020.

On June 2, 2020, the Court advanced the hearing on S&N’s motion for summary judgment, or in the alternative, summary adjudication against Plaintiff to July 28, 2020.

A trial setting conference is scheduled for October 29, 2020.

PARTYS REQUESTS

R&B asks the Court to grant summary judgment, or in the alternative, summary adjudication against S&N because Plaintiff’s injuries were sustained during her employment with R&B and, thus, Plaintiff’s remedy is limited to workers’ compensation.  R&B argues S&N’s cross-complaint is barred because the underlying action is barred.

JUDICIAL NOTICE

R&B asks the Court to take judicial notice of: (1) Plaintiff’s complaint; (2) S&N’s cross-complaint; and (3) a copy of Plaintiff’s worker’s compensation injury form. S&N does not oppose this request.

The Court takes judicial notice of these documents pursuant to California Evidence Code section 452, subdivision (d).  However, the Court does not take judicial notice of the truth of the matters within these documents.

The Court notes the limitation of the granted request for judicial notice regarding a copy of Plaintiff’s worker’s compensation injury form.  The Court only takes judicial notice of the fact that there was a form regarding Plaintiff’s eligibility to work, though the admissibility regarding the form is in dispute and also it does not establish that she was in fact hired or was an employee on the date in question.  The Court discusses this issue further below.

OBJECTIONS

S&N makes several objections.  The Court rules as follows: (1-8) sustained – foundation and authentication; (9) sustained - relevance. The Court in its analysis section explains the reasoning behind the evidentiary rulings based on foundation and authentication.

R&B makes two objections: (1) the entire Declaration of Nathan P. Pugh; and (2) a portion of the opposing memorandum of points and authorities.  The Court does not need to rule on these objections because they are immaterial to the Court’s decision, but for the purposes of the record the Court rules as follows: (1) overruled – there is proper foundation and there is a typed date (October 25, 2019) near the signature; and (2) overruled – this issue is not appropriate for an evidentiary objection because the opposing memorandum is not evidence.

LEGAL STANDARD

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., § 437c, subd. (p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

R&B argues that S&N’s claims are barred by operation of the workers’ compensation exclusivity rule.

The Workers Compensation Act (“WCA”) governs compensation to employees for injuries incurred in the course and scope of their employment. (Cal. Const., art. XIV, § 4; Cal. Labor Code, § 3201.)

California Labor Code section 3602 states “[w]here the conditions of compensation set forth in Section 3600 concur, the right to recover such compensation is, except as specifically provided in this section and Sections 3706 and 4558, the sole and exclusive remedy of the employee or his or her dependents against the employer.” 

California Labor Code section 3600, subdivision (a) provides, in pertinent part, as follows:

Liability . . . shall, without regard to negligence, exist against an employer for any injury sustained by his or her employees arising out of and in the course of the employment . . . in those cases where the following conditions of compensation concur:

(1) Where, at the time of the injury, both the employer and the employee are subject to the compensation provisions of this division.

(2) Where, at the time of the injury, the employee is performing service growing out of and incidental to his or her employment and is acting within the course of his or her employment . . .

(3) Where the injury is proximately caused by the employment, either with or without negligence.

Here, the parties dispute whether Plaintiff was hired by R&B and was an employee on the date she suffered her injuries. (UMF ¶¶ 1-2.) This determination largely depends on Plaintiff’s “Form I-9, Employment Eligibility Verification.”  (RJN, Exh. 3; Motion, Exh. 3.) This document includes Plaintiff’s information and signature in the employee area and a start date listed of August 27, 2012.  Additionally, R&B’s information and a signature by its Retail Market Manager is listed in the employer information. The document also includes a certification showing that Plaintiff began employment on August 27, 2012. However, this document is insufficient for R&B to meet its initial burden that Plaintiff was an employee because: (1) this document is inadmissible because there is no proper foundation or authentication; and (2) this document only shows at most that Plaintiff was hired on August 27, 2012, and not that Plaintiff was an employee on the date of the incident, i.e., December 8, 2014.  On the first point, the Court notes that R&B did not file a declaration by a manager showing that Plaintiff was hired as an employee (R&B only proffered its attorney’s declaration) and this document was part of R&B’s document production, which only the “responses” and not the documents were verified by Jean Sand.  (Motion, Exh. 3.) While the document may be legitimate, R&B does not establish the legitimacy in its motion.

Finally, this determination also depends on document entitled “Employer’s Report of Occupational Injury or Illness” (Motion, Exh. 3) that provides an injury report detailing that Plaintiff, R&B’s employee, suffered a workplace injury.  However, as previously discussed, this document is inadmissible because of a lack of proper authentication and foundation. Therefore, this document cannot show that Plaintiff was R&B’s employee on the date of incident.

The court is puzzled why, if Plaintiff was an employee of R&B at the time of the accident, R&B has not proffered a declaration from itself so stating, or Plaintiff’s verified responses to interrogatories indicating that she was employed at the time of the accident by R&B, or, even, her deposition testimony to that effect.  

In light of this evidence, the Court finds that R&B has not met its burden and, thus, summary judgment and summary adjudication must be denied.

CONCLUSION

R&B’s motion for summary judgment against S&N is DENIED.

R&B’s motion for summary adjudication against S&N is DENIED.

R&B is ordered to give notice of this ruling.

The parties are directed to the header of this tentative ruling for further instructions.

Case Number: BC641560    Hearing Date: January 14, 2020    Dept: 28

Motion for Summary Judgment, or in the alternative, Summary Adjudication

Having considered the moving and opposing, the Court rules as follows.

BACKGROUND

On December 5, 2016, Plaintiff Suzana Arezina (“Plaintiff”) filed a complaint against Defendants Watson Construction Company, Inc. and Dusty Watson alleging negligence and products liability relating to a heavy cabinet that fell on Plaintiff on December 8, 2014.

On June 27, 2018, Plaintiff amended her complaint to name Defendant S & N Construction, Inc. as Doe 1.

On April 30, 2019, Defendant/Cross-Complainant S & N Construction, Inc. filed a cross-complaint against Cross-Defendant Room & Board, Inc. seeking total equitable indemnity, comparative equitable indemnity, contribution, apportionment of fault, and declaratory relief.

On September 19, 2019, the Court dismissed Defendants Watson Construction Company, Inc. and Dusty Watson.

On October 29, 2019, Defendant/Cross-Complainant, S & N Construction, Inc. filed a motion for summary judgment, or in the alternative, summary adjudication pursuant to California Code of Civil Procedure section 437c.

Trial is set for April 22, 2020.

PARTYS REQUEST

Defendant/Cross-Complainant, S & N Construction, Inc. (“Moving Party”) asks the Court to grant summary judgment, or in the alternative, summary adjudication against Plaintiff and in Moving Party’s favor.  Moving Defendant argues Plaintiff’s negligence cause of action fails because Moving Party did not owe a duty to Plaintiff.  Moving Defendant also argues Plaintiff’s strict products liability cause of action fails because Plaintiff cannot establish that there was a defect that caused her an injury.

LEGAL STANDARD

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., § 437c(p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Id.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

Late Opposition

Plaintiff’s opposing papers were filed late.  On January 10, 2019, the Court granted Plaintiff’s ex parte application to consider Plaintiff’s opposing papers.  The Court finds it is in the interest of justice to continue the hearing on this motion if Moving Party requests additional time to file reply papers.

Strict Products Liability

“In a products liability action, every supplier in the stream of commerce or chain of distribution, from manufacturer to retailer, is potentially liable.  (Edwards v. A.L. Lease & Co. (1996) 46 Cal.App.4th 1029, 1033.)  “The elements of a strict products liability cause of action are a defect in the manufacture or design of the product or a failure to warn, causation, and injury.”  (County of Santa Clara v Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)  

Manufacturing Defect

A product may be found defective in its manufacture when it “differs from the manufacturer’s intended result or from other ostensibly identical units of the same product line.”  (In re Coordinated Latex Glove Litigation (2002) 99 Cal.App.4th 594, 611.)

Moving Defendant’s undisputed material facts establish the following.  Moving Defendant was hired by Cross-Defendant Room & Board, Inc. (“R&B”) to build and install a base to be secured to the bottom of a stone topped work table and chest of drawers with samples.  (UMF Nos. 1-2, p. 2:9-2:25.) Moving Defendant did not agree to attach the base or cabinet to the wall.  (UMF No. 10, p. 4:20-4:25.)  Moving Defendant was not hired to attach the base or cabinet to the wall.  (UMF No. 11, p. 5:4-5:12.)  The base was build in satisfaction of the expectations of R&B.  (UMF Nos. 6, p. 3:21-3:27.)

The Court finds Moving Defendant has met its burden in showing the base did not have a manufacturing defect.  Moving Defendant merely has to address whether or not the base had a manufacturing defect in that it was not connected to the wall because this is the sole allegation in the complaint of how this base was defective.  (See Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663 (“[s]ummary judgment cannot be denied on a ground not raised by the pleadings” (emphasis omitted)).)

Moving Defendant has met its burden.  Moving Defendant’s evidence shows the base’s design did not include that it was to be connected to the wall.  As such, there is no evidence of a manufacturing defect.  The burden shifts to Plaintiff.

Plaintiff has not submitted evidence showing the base was intended to be attached to the wall or an ostensibly identical unit of the same product line was intended to be attached to a wall.  As such, Plaintiff has not met its burden of proof in showing there was a manufacturing defect.

Design Defect

[A] product may be found defective in design . . . under either of two alternative tests.  First, a product may be found defective in design if the plaintiff establishes that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.  Second, a product may alternatively be found defective in design if the plaintiff demonstrates that the product’s design proximately caused his injury and the defendant fails to establish, in light of the relevant factors, that, on balance, the benefits of the challenged design outweigh the risk of danger inherent in such design. (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 432.)  

A non-exhaustive list of factors relevant to the risk-benefit test include “the gravity of the danger posed by the challenged design, the likelihood that such danger would occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design.”  (Id. at p. 431.)  This test, in short, subjects a manufacturer to liability when ‘the design is not as safe as it should be—while stopping short of making the manufacturer an insurer for all injuries which may result from the use of its product.”  (Kim v. Toyota Motor Corp. (2018) 6 Cal.5th 21, 30 (citation omitted).)

“Evidence that a manufacturer’s design conforms with industry custom and practice is not relevant, and therefore not admissible, to show that the manufacturer acted reasonably in adopting a challenged design and therefore cannot be held liable; under strict products liability law, a product can contain precisely the same features as other products on the market and still be defective.  But even though evidence of industry custom and practice cannot be dispositive of the issue, it may nevertheless be relevant to the strict products liability inquiry, including the jury’s evaluation of whether the product is as safely designed as it should be, considering the feasibility and cost of alternative designs.”  (Id.  at p. 26.)

“As applicable in summary judgment proceedings, where . . . the issue is the existence of a defect in the product’s design under the risk-benefit test, the burden lies with the moving defendant to show prima facie, “‘in light of the relevant factors, that the product is not defective.’”  [Citation.]  Because this showing involves ‘technical issues of feasibility, cost, practicality, risk, and benefit [citation] which are ‘impossible to avoid [citation] the [factfinder] must consider the manufacturer’s evidence of competing design considerations [citation].’  [Citation.]  In such a case, expert testimony is required.  (Demara v. The Raymond Corp. (2017) 13 Cal.App.5th 545, 562-563 (citations and emphasis omitted).)

Moving Defendant submits the declaration of general contractor Steve Fisher in showing there was no design defect.  (UMF No. 22, p. 8:10-8:13.)  However, this declaration is insufficient in demonstrating the risk-benefit test establishes there was no design defect.  Namely, there is no evidence presented in Mr. Fisher’s declaration of either the risks of an allegedly defective design feature or competing design possibilities.  (See Demara, supra, 13 Cal.App.5th at p. 563 (finding the trial court erred in granting summary judgment based on the risk-benefit test because the moving parties’ expert declaration was insufficient in that it did not present evidence of either the risks of an allegedly defective design feature or competing design possibilities.)

Mr. Fisher’s declaration is further insufficient in showing there was no design defect in the base because his declaration is conclusory.  The only fact provided in this declaration is that the platform was securely screwed to the cabinet.  This fact is insufficient to show Moving Defendant is entitled to summary judgment.  (See Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 530-532 (finding an expert’s conclusory declaration to be without evidentiary value).)  As such, Moving Defendant has not met its burden in showing it is entitled to summary judgment against Plaintiff’s products liability cause of action.

Failure to Warn

A manufacturer is liable for products liability based on a failure to warn of known or knowable harm from a product.  (Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167, 180-181.)

Moving Defendant has not met its burden of proof in showing it is entitled to summary judgment based on Plaintiff’s failure to warn theory in her products liability cause of action.  Again, Mr. Fisher’s declaration is detrimentally bare.  There are insufficient facts substantiating Mr. Fisher’s conclusion that there was no failure to warn.  For example, there is no evidence showing an adequate warning was affixed to the base or that such a warning was not required based on an unknowable harm that could be caused by the base.  Again, summary judgment is not properly granted against Plaintiff’s products liability cause of action.

Negligence

The elements of a negligence claim are¿(1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC¿(2014) 228 Cal.App.4th 664, 671.)

“In considering whether a party has a legal duty in a particular factual situation, a distinction is drawn between claims of liability based upon misfeasance and those based upon nonfeasance. ‘Misfeasance exists when the defendant is responsible for making the plaintiff's position worse, i.e., defendant has created a risk. Conversely, nonfeasance is found when the defendant has failed to aid plaintiff through beneficial intervention. . . . Liability for misfeasance is based on the general duty of ordinary care to prevent others from being injured by one’s conduct. Liability for nonfeasance is limited to situations in which there is a special relationship that creates a duty to act.” Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1202 (citations omitted).)

The common law concept of special relationships covers: landowner or possessor and person coming on the land; manufacturer or supplier of goods and buyer or user; vendor, lessor, or contractor and purchaser, lessee or owner of real property.’” Id. at p. 1203 (citations omitted). “A special relationship may also arise out of a statutory duty or a contractual duty. Finally, it may arise out of a voluntary assumption of a duty upon which a person reasonably relies. If a special relationship arises out of a contractual duty, the duty is owed not only to the parties to the contract but also to those persons intended to be benefited by the performance of the contract.” Id. (citation omitted).)

In Seo, the plaintiff alleged “that defendant gate repair company failed to take action to warn of or correct a dangerous design defect of the sliding gate/toggle switch combination.  This failure to act constitutes classic nonfeasance.  Defendant did not manufacture or install the gate or toggle switch.  Defendant did not negligently repair the gate or fail to make requested repairs.  Defendant never repaired the toggle switch.  Accordingly, defendant owned no duty to plaintiff in the absence of a special relationship.”  (Id. at pp. 1203-1204 (citation omitted).)

As stated above, there was no intention for Moving Defendant to attach the base to a wall.  Strikingly, Moving Defendant does not submit any facts alleging it did not remove the base and cabinet from the wall.  This is one of Plaintiff’s theories in how Moving Defendant was negligent.  Moving Defendant’s evidence showing it did not intend to attach the cabinet or base to the wall, it never agreed to attach the cabinet or base to the wall, and that such work would be outside the scope of the job does not address the Plaintiff’s contention.  Plaintiff specifically contends that Moving Defendant negligently removed the cabinet from the wall.  This is clearly misfeasance.  As such, Moving Defendant has not met its burden of proof.

CONCLUSION

The motion for summary judgment is DENIED.

The motion for summary adjudication is DENIED.

Moving Defendant is ordered to give notice of this ruling.

Case Number: BC641560    Hearing Date: November 18, 2019    Dept: 4A

Motion to Compel Responses to Special Interrogatories (Set Two)

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On December 5, 2016, Plaintiff Suzana Arezina (“Plaintiff”) filed a complaint against Defendants Watson Construction Company, Inc. and Dusty Watson alleging negligence and products liability relating to a heavy cabinet that fell on Plaintiff on December 8, 2014.

On June 27, 2018, Plaintiff amended her complaint to name Defendant S & N Construction, Inc. as Doe 1.

On April 30, 2019, Defendant/Cross-Complainant S & N Construction, Inc. filed a cross-complaint against Cross-Defendant Room & Board, Inc. seeking total equitable indemnity, comparative equitable indemnity, contribution, apportionment of fault, and declaratory relief.

On September 19, 2019, the Court dismissed Defendants Watson Construction Company, Inc. and Dusty Watson.

On October 22, 2019, Defendant/Cross-Complainant S & N Construction, Inc. filed a motion to compel Plaintiff’s responses to Special Interrogatories (Set Two) pursuant to California Code of Civil Procedure section 2030.290.

Trial is set for April 22, 2020.

PARTY’S REQUESTS

Defendant/Cross-Complainant S & N Construction, Inc. (“Moving Party”) asks the Court to order Plaintiff to provide verified responses without objections to Special Interrogatories (Set Two ) within 15 days from the Court’s ruling based on Plaintiff’s failure to provide timely responses.

Moving Party also asks the Court to impose $1,565 in monetary sanctions against Plaintiff and her counsel of record for their abuse of the discovery process.

LEGAL STANDARD

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. (Code Civ. Proc. § 2030.290, subd. (b).) The statute contains no time limit for a motion to compel where no responses have been served. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.)

Under California Code of Civil Procedure section 2023.030, subd. (a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process.  (Code of Civ. Proc. § 2023.010.)

Sanctions are mandatory in connection with a motion to compel responses to interrogatories against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (Code Civ. Proc. §§ 2030.290, subd. (c).)

DISCUSSION

Procedural Analysis

Moving Party argues Plaintiff’s opposition is untimely.  (Reply, p. 3:6-3:13.)  The Court agrees.  Plaintiff’s opposition was filed and served by U.S. mail and e-mail on November 5, 2019.  The opposition was due nine court-days before the November 18, 2019 hearing date, or by November 4, 2019.  (See Code Civ. Proc. § 1005, subd. (b).)  November 11, 2019 should not be counted because the Court was closed in observance of Veterans Day.

Because of the late opposition, the Court is willing to consider a request by Moving Party to continue the hearing on this motion. on the merits as set forth below.

Substantive Analysis

On July 19, 2019, Moving Party served Special Interrogatories (Set Two) on Plaintiff by U.S. mail.  (Waghalter Decl., ¶ 2, Exh. 1.)  Moving Party granted two extensions for Plaintiff to provide the outstanding discovery responses, resulting in an ultimate deadline of October 2, 2019.  (Waghalter Decl., ¶4, 8, Exh. 5.)  Moving Party had not received Plaintiff’s outstanding responses to Special Interrogatories (Set Two) as of the time Po Waghalter signed her declaration on October 22, 2019.  (Waghalter Decl., 9.)

Plaintiff argues the motion should be denied for three reasons.  First, Plaintiff served verified responses to Special Interrogatories (Set Two) without objections on Moving Party.  (Hoffman Decl., 2, Exh. 2.)  Second, Moving Party is seeking to “double-dip” or “double-bill” for the same declaration and statement of facts presented in a motion to deem matters as admitted that the Court resolved on November 4, 2019.  (Hoffman Decl., 5.)  Third, Moving Party is being charged nothing and has incurred nothing due to being an insurance Defendant.  (Hoffman Decl., 7.)

The Court finds Plaintiff’s first argument provides a persuasive reason for denying the motion to compel as moot.  But Plaintiff served discovery responses only after the motion to compel was filed.  As such, the motion to compel was apparently necessary to prompt Plaintiff’s compliance with her discovery obligations.  Accordingly, sanctions may still be properly imposed.

Plaintiff’s second argument does not undermine Moving Party’s entitlement to sanctions but effectively contests the reasonableness of the amount requested.  While Moving Party is not obligated to bring multiple motions before the Court on the same date, the duplicative aspects of this motion when compared to the motion heard on November 4, 2019 speak volumes as to the reasonableness of the sanctions requested.

Plaintiff’s third argument is without merit, as it is not relevant whether Moving Party is funded by an insurance company.  Po Waghalter’s declaration shows expenses have been incurred as a result of Plaintiff’s discovery abuse, which is the only necessary evidence for the Court to impose discovery sanctions.

Plaintiff’s counsel also argues that it should not be obligated to pay sanctions in the event that they are awarded because Plaintiff’s counsel is blameless.  (Hoffman Decl., 6.)  This is because Plaintiff is 13-hours ahead of California and the defense served 385 individual discovery requests on Plaintiff.  (Ibid.)  The Court agrees that Plaintiff’s counsel’s difficulties in sheer volume of discovery propounded by the defense constitute a substantial justification for the late responses and call into question the fairness of a sanctions award.  The Court rules that sanctions should not be awarded as against Plaintiff’s counsel.   

While the same justifications do not apply to Plaintiff herself, the Court finds that only a modest sanctions award should be imposed on her.  Because Moving Party’s papers are overwhelmingly duplicative of its previous discovery motion, the Court finds that $490 ($215/hr. x 2 hrs. plus one $60 filing fee) is Plaintiff for her late responses..

CONCLUSION

The motion is GRANTED in part and DENIED in part.

The motion to compel is DENIED as moot.

Plaintiff is ordered to pay Moving Party $490 within 30 days of this ruling.

Moving Party is ordered to give notice of this ruling.

Case Number: BC641560    Hearing Date: November 14, 2019    Dept: 4A

Motion for an Order Requiring Plaintiffs to File Undertaking

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On December 5, 2016, Plaintiff Suzana Arezina (“Plaintiff”) filed a complaint against Defendants Watson Construction Company, Inc. and Dusty Watson alleging negligence and products liability relating to a heavy cabinet that fell on Plaintiff on December 8, 2014.

On June 27, 2018, Plaintiff amended her complaint to name Defendant S & N Construction, Inc. as Doe 1.

On April 30, 2019, Defendant/Cross-Complainant S & N Construction, Inc. filed a cross-complaint against Cross-Defendant Room & Board, Inc. seeking total equitable indemnity, comparative equitable indemnity, contribution, apportionment of fault, and declaratory relief.

On September 19, 2019, the Court dismissed Defendants Watson Construction Company, Inc. and Dusty Watson.

On October 17, 2019, Defendant/Cross-Complainant S & N Construction, Inc. filed a motion requiring the Plaintiff to file an undertaking pursuant to California Code of Civil Procedure section 1030, subdivision (a).

Trial is set for April 22, 2020.

PARTYS REQUEST

Defendant/Cross-Complainant S & N Construction, Inc. (“Moving Party”) asks the Court to order all Plaintiffs to file an undertaking in the amount of $63,870.

LEGAL STANDARD

Under California Code of Civil Procedure section 1030, subdivision (a), the defendant may at any time apply to the court by noticed motion for an order requiring the plaintiff to file an undertaking to secure an award of costs which may be awarded in the action or special proceeding when the plaintiff in an action resides out of the state Under subdivision (b), the motion shall be made on the grounds that the plaintiff resides out of the state and that there is a reasonable possibility that the moving defendant will obtain judgment in the action.

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 the defendant has incurred and expects to incur by the conclusion of the action.  Under subdivision (c) if the court, after hearing, determines that the grounds for the motion have been established, the court shall order that the plaintiff file the undertaking in an amount specified in the court’s order as security for costs.  Under subdivision (f), the determinations of the court under this section have no effect on the determination of any issues on the merits of the action or special proceeding and may not be given in evidence nor referred to in the trial of the action or proceeding.  Under subdivision (g), an order granting or denying a motion for an undertaking under this section is not appealable.

The moving defendant is required to show that it is reasonably possible that the moving defendant will win at trial, not that Plaintiff has no possibility to win.  (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432 (finding a reasonable possibility that defendant would win at trial based on an arbitration award, the arbitrator’s letter, and a police report).)

DISCUSSION

Plaintiff resides in Australia.  (Waghalter Decl., ¶ 5, Exh. 2.)  Moving Party argues that it is reasonably possible that Moving Party will obtain a favorable judgment for two reasons.  First, Moving Party did not owe a duty to Plaintiff with regard to the cabinet that injured Plaintiff because it was built pursuant to an agreement with Cross-Defendant Room & Board, Inc, not Plaintiff.  (Motion, p. 14:3-14:8.)  Second, the platform was not defective according to the testimony of Cross-Defendant Room & Board, Inc.’s person most knowledgeable.  (Motion, p. 14:10-14:20; Waghalter Decl., 8, Exh. 5.)

The Court finds that Moving Party has failed to demonstrate it is reasonably possible that it will obtain a favorable judgment.  First, the Moving Party’s contention that it did not owe a duty to Plaintiff because of an agreement that did not include Plaintiff only concerns a duty based in contract.  Moving Party does not address whether it had or did not have a duty of care to avoid negligence in constructing the cabinet such that it would not fall on bystanders.

Additionally, the cited deposition transcript of Cross-Defendant Room & Board, Inc.’s person most knowledgeable does not stand for the proposition argued.  Moving Party argues the following citation shows Cross-Defendant Room & Board, Inc. confirmed under oath that the platform was built without defect for its specific purpose in leveling the cabinet: “Waghalter Decl., ¶ 4, Exhibit 4, Deposition of PMK of RAB, p. 31, 16-20; p. 56; 10-20.”  The Waghalter declaration does not include a deposition transcript at paragraph 4.  Exhibit 4 similarly does not consist of a deposition transcript.  Exhibit 5, paragraph 8 does include such a transcript.  The transcript states the following at page 31, lines 16-20:

[The] cabinet’s much larger than me.  It’s very large.  So in that moment, I can’t – I’m not looking at anything.  I’m trying to make sure that I’m safe.  So I don’t know.

Q. So you didn’t see it fall off the plinth?

A. Well, it would have had to fall off the plinth.

The transcript states the following at page 56 lines 10-20:

Q. Does Room & Board contend that S & N Construction, Inc. was responsible for attaching the cabinet to the wall prior to the incident wherein Plaintiff claims she was injured?

M. Hoffman: Same objections.

The Witness: No.

By Ms. Waghalter:

Q. Have you ever alleged that S & N Construction, Inc. was negligent in the performance of any work done for Room & Board, Inc.?

A. No.

This testimony does not show that the platform on which the cabinet was built was not defective.  This testimony shows a sampling of related facts, including that one witness saw the cabinet fall off the platform, that Cross-Defendant Room & Board, Inc., does not contend that Moving Party was responsible for attaching the cabinet to the wall prior to the incident, and that Cross-Defendant Room & Board, Inc., has not alleged that Moving Party was negligent in the performance of any of its work for Cross-Defendant Room & Board, Inc. Such a showing is insufficient to demonstrate, as it must, that Moving Party has a reasonable possibility of success at trial.

Accordingly, the motion is DENIED.

Moving Party is ordered to give notice of this ruling.

Case Number: BC641560    Hearing Date: November 04, 2019    Dept: 4A

Motion to Deem Matters Within Request for Admissions (Set One) as True

Having considered the moving and opposing papers, the Court rules as follows.  No reply papers were filed.

BACKGROUND

On December 5, 2016, Plaintiff Suzana Arezina (“Plaintiff”) filed a complaint against Defendants Watson Construction Company, Inc. and Dusty Watson alleging negligence and products liability relating to a heavy cabinet that fell on Plaintiff on December 8, 2014.

On June 27, 2018, Plaintiff amended her complaint to name Defendant S & N Construction, Inc. as Doe 1.

On April 30, 2019, Defendant/Cross-Complainant S & N Construction, Inc. filed a cross-complaint against Cross-Defendant Room & Board, Inc. seeking total equitable indemnity, comparative equitable indemnity, contribution, apportionment of fault, and declaratory relief.

On September 19, 2019, the Court dismissed Defendants Watson Construction Company, Inc. and Dusty Watson.

On October 8, 2019, Defendant/Cross-Complainant S & N Construction, Inc. filed a motion to deem matters set forth in its Request for Admissions (Set Two) as true as against Plaintiff pursuant to California Code of Civil Procedure section 2033.280.

Trial is set for April 22, 2020.

PARTY’S REQUESTS

Defendant/Cross-Complainant S & N Construction, Inc. (“Moving Party”) asks the Court deem Plaintiff to have admitted the truth of the matters in its Request for Admission (Set Two).

Moving Party also asks the Court impose monetary sanctions in the amount of $1,565 against Plaintiff and her counsel of record.

LEGAL STANDARD

Pursuant to Code of Civil Procedure section 2033.280, subdivision (b), a “party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with section 2023.010).”  The court “shall” grant the motion to deem requests for admission admitted “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.”  (Code Civ. Proc. § 2033.280, subd. (c).)

Sanctions are mandatory in connection with a motion to deem matters specified in a request for admissions as true and motions to compel responses to interrogatories and requests for production of documents against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (Code Civ. Proc. §§ 2030.290, subd. (c), 2031.300, subd. (c), 2033.280, subd. (c).)

California Rules of Court, rule 3.1348, subdivision (a) states: “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

DISCUSSION

On July 19, 2019, Moving Party served Plaintiff with its Request for Admissions (Set Two) by U.S. Mail.  (Waghalter Decl., ¶ 2, Exh. 1.) Moving Party extended Plaintiff’s deadline to provide the outstanding responses until October 2, 2019(Waghalter Decl., ¶ 8, Exh. 5.)  No responses had been received as of the signing of Po Waghalter’s declaration on October 8, 2019.  (Waghalter Decl., ¶ 9.)

On that same date, however, Plaintiff emailed and mailed verified responses, without objections, to all of Moving Party’s RFAs.  (Hoffman Decl.,  ¶2; Plaintiff’s Notice of Lodging of RFA Responses.)

The Court finds the motion must be denied(Code of Civil Procedure section 2033.280(c).) 

cted with substantial justification in serving late responses without notifying counsel for Moving Party that it intended to do so. The failure to contact opposing counsel led to needless work in preparing the discovery motion before the Court.

Moving Party’s request for $1,565 in monetary sanctions consists of 3 hours to draft the moving papers, 2.5 hours in drafting a reply, and 1.5 hours in traveling to and attending the hearing at a rate of $215 an hour, plus one $60 filing fee(Waghalter Decl., 10.The Court finds this amount to be unreasonable because no reply was filed and the motion is relatively straight-forwardRather, the Court finds $705 ($215/hr. x 3 hrs. plus one $60 filing fee) to be a reasonable amount of sanctions to be imposed against Plaintiff and her counsel of record for their abuse of the discovery process.

The motion is therefore DENIED.

The Court  orders Plaintiff and Plaintiff’s counsel to pay Moving Party $705, jointly and severally, within 30 days of this ruling.

Moving Party is ordered to give notice of this ruling.