This case was last updated from Los Angeles County Superior Courts on 08/15/2019 at 09:51:21 (UTC).

ADELAIDE ROSE PALMSTROM VS CITY OF PASADENA ET AL

Case Summary

On 02/01/2018 ADELAIDE ROSE PALMSTROM filed a Personal Injury - Other Personal Injury lawsuit against CITY OF PASADENA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are YOLANDA OROZCO and WILLIAM D. STEWART. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2443

  • Filing Date:

    02/01/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

YOLANDA OROZCO

WILLIAM D. STEWART

 

Party Details

Plaintiffs, Guardian Ad Litems and Cross Defendants

PALMSTROM MARCI

MOAD PATRICIA

HASBUN ANNA

Defendants, Respondents, Cross Plaintiffs and Cross Defendants

PASADENA CITY OF

MERCHANTS LANDSCAPE SERVICES INC

CHILDREN'S CENTER

DOES 1 TO 30

PASADENA UNIFIED SCHOOL DISTRICT

WEST COAST ARBORISTS INC

LINDA VISTA CHILDREN'S CENTER

WEST COAST ARBORISTS INC.

MERCHANTS LANDSCAPE SERVICES INC.

WEST COAST ARBORISTS INC. A CALIF CORP.

CITY OF PASADENA A PUBLIC ENTITY

PALMSTROM MARCI

CITY OF PASADENA ROE 2

PASADENA UNIFIED SCHOOL DISTRICTROE 1

PASADENA GARDENING & TREE SERVICE INC.

PASADENA GARDENING AND TREE SERVICE INC

CITY OF PASADENA ROE 1

Minor

PALMSTROM ADELAIDE ROSE

28 More Parties Available

Attorney/Law Firm Details

Minor and Plaintiff Attorneys

VANNI GREGORY R.

GLASSMAN ROBERT SAMUEL

Defendant, Respondent and Cross Defendant Attorneys

OLSON SONALI ESQ.

MCCUNE DANA JOHN ESQ

DOUMANIAN NANCY P. ESQ.

ZIMMERMAN BRIAN F. ESQ.

MYERS JEFFREY CABOT ESQ.

PANISH SHEA & BOYLE LLP

MYERS JEFFREY CABOT

OLSON SONALI

BUEHLER MARK B. ESQ.

NORTON & MELNIK

LEE TED MATTHEW

BUEHLER MARK BERNARD ESQ.

BUEHLER MARK BERNARD

BUEHLER MARK

MCMAHAN MARTIN SCOT

BAKER PHILLIP

NORTON GEOFFREY PAUL

MCCUNE DANA JOHN

Defendant, Respondent and Cross Plaintiff Attorney

DOUMANIAN NANCY P. ESQ.

14 More Attorneys Available

 

Court Documents

Opposition

7/24/2019: Opposition

Motion in Limine

8/12/2019: Motion in Limine

Motion in Limine

8/13/2019: Motion in Limine

Cross-Complaint

8/27/2018: Cross-Complaint

Status Report

4/22/2019: Status Report

Notice of Joinder

5/1/2019: Notice of Joinder

Minute Order

5/2/2019: Minute Order

Opposition

5/15/2019: Opposition

Minute Order

5/31/2019: Minute Order

Substitution of Attorney

6/14/2019: Substitution of Attorney

Notice

7/18/2019: Notice

Answer

7/18/2019: Answer

Answer

11/15/2018: Answer

CIVIL DEPOSIT

5/31/2018: CIVIL DEPOSIT

DEFENDANT WEST COAST ARBORISTS, INC.'S ANSWER TO DEFENDANT PASADENA UNIFIED SCHOOL DISTRICT'S CROSS-COMPLAINT

6/15/2018: DEFENDANT WEST COAST ARBORISTS, INC.'S ANSWER TO DEFENDANT PASADENA UNIFIED SCHOOL DISTRICT'S CROSS-COMPLAINT

PROOF OF SERVICE OF SUMMONS

3/14/2018: PROOF OF SERVICE OF SUMMONS

PROOF OF SERVICE OF SUMMONS

3/14/2018: PROOF OF SERVICE OF SUMMONS

PROOF OF SERVICE SUMMONS

3/19/2018: PROOF OF SERVICE SUMMONS

345 More Documents Available

 

Docket Entries

  • 09/16/2019
  • Hearingat 09:30 AM in Department B at 300 East Olive, Burbank, CA 91502; Jury Trial

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  • 09/05/2019
  • Hearingat 13:30 PM in Department B at 300 East Olive, Burbank, CA 91502; Hearing on Motion to Sever

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  • 09/05/2019
  • Hearingat 13:30 PM in Department B at 300 East Olive, Burbank, CA 91502; Hearing on Motion to Sever

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  • 09/05/2019
  • Hearingat 13:30 PM in Department B at 300 East Olive, Burbank, CA 91502; Hearing on Motion to Reclassify (Walker Motion)

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  • 09/05/2019
  • Hearingat 13:30 PM in Department B at 300 East Olive, Burbank, CA 91502; Hearing on Motion to Reclassify (Walker Motion)

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  • 09/05/2019
  • Hearingat 13:30 PM in Department B at 300 East Olive, Burbank, CA 91502; Hearing on Motion to Bifurcate

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  • 09/05/2019
  • Hearingat 13:30 PM in Department B at 300 East Olive, Burbank, CA 91502; Hearing on Motion for Summary Judgment

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  • 09/05/2019
  • Hearingat 13:30 PM in Department B at 300 East Olive, Burbank, CA 91502; Hearing on Motion for Summary Judgment

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  • 09/05/2019
  • Hearingat 13:30 PM in Department B at 300 East Olive, Burbank, CA 91502; Final Status Conference

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  • 08/30/2019
  • Hearingat 08:30 AM in Department B at 300 East Olive, Burbank, CA 91502; Hearing on Motion for Summary Judgment

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508 More Docket Entries
  • 02/27/2018
  • DocketSummons Issued; Filed by Clerk

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  • 02/27/2018
  • DocketSummons; Filed by Clerk

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  • 02/27/2018
  • DocketSummons Issued; Filed by Clerk

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  • 02/27/2018
  • DocketSUMMONS

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  • 02/21/2018
  • DocketApplication ; Filed by Plaintiff/Petitioner

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  • 02/21/2018
  • DocketApplication-Miscellaneous (FOR ADELAIDE ROSE PALMSTROM GUARIDAN AD LITEM ); Filed by Attorney for Pltf/Petnr

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  • 02/21/2018
  • DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM-CIVIL

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  • 02/01/2018
  • DocketComplaint; Filed by null

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  • 02/01/2018
  • DocketComplaint

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  • 02/01/2018
  • DocketCOMPLAINT FOR DAMAGES: 1. DANGEROUS CONDITION OF PUBLIC PROPERTY ;ETC

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Tentative Rulings

Case Number: BC692443    Hearing Date: February 07, 2020    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

adelaide rose palmstrom,

Plaintiff,

v.

city of pasadena, et al.,

Defendants.

Case No.: BC692443

Consolidated with: BC705917

Hearing Date: February 7, 2020 (continued from December 20, 2019)

[TENTATIVE] order RE:

defendant west coast arborists, inc.’s motion to recover costs and attorney fees from defendant pusd for its failure to admit requests for admissions

Background

A. Allegations

In this BC692443 action, Plaintiff Adelaide Rose Palmstrom (“Palmstrom”), a minor, by and through her guardian ad litem, Marci Palmstrom, alleges that she was injured on August 29, 2017 when a tree limb crashed onto the playground at Defendant Linda Vista Children’s Center, striking Palmstrom. Palmstrom filed this action against Defendants City of Pasadena (“City”), Pasadena Unified School District (“PUSD”), Linda Vista Children’s Center (“LVCC”), Merchant’s Landscape Services, Inc. (“MLS”), and West Coast Arborists, Inc. (“WCA”). The complaint, filed February 1, 2018, alleges causes of action for: (1) dangerous condition of public property against City and PUSD; (2) premises liability against LVCC; (3) negligent supervision against LVCC; and (4) negligence against MLS and WCA.

On May 15, 2018, Plaintiffs Penelope Moad (“Moad”), a minor by and through her guardian ad litem, Patricia Moad, and Evan Hasbun (“Hasbun”), a minor by and through his guardian ad litem, Anna Hasbun, commenced an action against City, PUSD, LVCC, MLS, and WCA for the same 4 causes of action based on the same incident.

On May 25, 2018, PUSD filed a cross-complaint against City, LVCC, MLS, and WCA for express indemnity, implied indemnity, and declaratory relief. On July 27, 2018, LVCC filed a first amended cross-complaint for equitable indemnity, implied indemnity, declaratory relief, and contribution. On November 2, 2018, City filed cross-complaints against LVCC, MLS, WCA, and Pasadena Gardening & Tree Service, Inc. for total equitable indemnity, partial equitable indemnity, declaratory relief, and express indemnity. On January 18, 2019, WCA filed a cross-complaint for equitable indemnity, contribution, and declaratory relief. On May 24, 2019, MLS filed a cross-complaint against City, PUSD, LVCC, and WCA for implied indemnity, contribution, apportionment of fault, and declaratory relief.

The two actions were related on December 11, 2018. The Palmstrom case (BC692443) was deemed the lead case and the Court ordered that all subsequent filings be filed under BC692443 and reflect the lead case.

B. Relevant Background and Motion on Calendar

On November 22, 2019, WCA filed a motion to recover costs and attorney’s fees from PUSD for its failure to admit requests for admissions (“RFA”).

On December 13, 2019, PUSD filed an untimely opposition brief.[1]

On December 18, 2019, WCA filed a reply brief.

The matter came for hearing on December 20, 2019 and the Court took the matter under submission. On December 23, 2019, the Court ruled on the submitted matter by continuing the motion to this date of February 7, 2020. The Court ordered WCA to file a supplemental declaration of its counsel by January 14, 2020, specifically delineating in chart form the dates, hours, spent, staff member, and tasks that counsel and his staff engaged in that was specifically for the purpose of proving the truths of the RFAs, as well as those costs specifically incurred thereto. The Court also stated that no further briefing would be permitted by the parties.

On January 14, 2020, WCA filed the Supplemental Declaration of Martin S. McMahan in support of the motion.

On January 21, 2020, PUSD filed evidentiary objections to the Supplemental Declaration.

LEGAL STANDARD

CCP §2033.420 states:

(a) If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees.

(b) The court  unless it finds any of the following:

(1) An objection to the request was sustained or a response to it was waived under Section 2033.290.

(2) The admission sought was of no substantial importance.

(3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter.

(4) There was other good reason for the failure to admit.

(CCP §2033.420.)

One need not be a prevailing party to be entitled to sanctions under this statute.” (Smith v. Circle P Ranch Co. (1978) 87 Cal.App.3d 267, 274–275.)

“[W]here it becomes clear from evidence introduced by either party at trial that the party who denied for lack of information or belief had access to the information at the time requests for admissions were propounded, sanctions are justified because that party has a duty to investigate ….” (Bloxham v. Saldinger[S]ince requests for admissions are not limited to matters within personal knowledge of the responding party, that party has a duty to make a reasonable investigation of the facts before answering items which do not fall within his personal knowledge.” (Id. at 751-52.)

EVIDENTIARY OBJECTIONS

PUSD submitted evidentiary objections to the Supplemental Declaration of Mr. McMahan (filed 1/14/20). The objections are overruled. PUSD’s evidentiary objections are made in a chart form with the billing entry date, the tasks performed, and PUSD’s statement that the fee was not incurred in proving the truth of the RFA directed to PUSD. This is not a proper form of objection pursuant to CRC Rule 3.1354 and essentially amounts to supplemental arguments by PUSD, which the Court expressly disallowed in its December 23, 2019 minute order on the submitted matter. Accordingly, the objections are overruled.

DISCUSSION

A. Merits of Motion

WCA moves for costs and attorney’s fees against PUSD for PUSD’s failure to admit certain RFAs, thereby causing WCA to incur additional expenses in defending this matter and proving the truth of the RFAs. The following background is relevant:

WCA argues that in light of this procedural history and the Court’s ruling on its motion for summary judgment, WCA was able to prove the truth of each of the RFAs. Specifically, the Court stated in its written order that: (1) WCA was retained by PUSD on a proposal basis to perform work on LVCC’s premises, but PUSD did not retain WCA’s services for the subject tree in the park (i.e., the grid prune); (2) WCA did not perform work on the subject tree because PUSD never formally approved the work and expressly told WCA not to perform services in the park; and (3) WCA was not responsible for the condition of the subject tree as it did not own, possess, or control the subject tree. (See McMahan Decl., Ex. G.)

WCA also argues that PUSD cannot show that any exceptions apply to relieve PUSD of its obligation to reimburse WCA for its attorney’s fees and costs incurred in proving the truth of the RFAs. (See CCP §2033.420(b).) PUSD argues that exceptions apply in its belatedly-filed opposition.

Under subsection (b)(1), fees and costs are not warranted if PUSD’s objections to the RFAs were sustained or a response to it was waived. WCA argues that PUSD only stated “Objection”, but then provided its responses. (Mot. at p.9; McMahan Decl., Ex. D [PUSD’s RFA Responses].) Thus, this subsection is not a ground to exempt PUSD from reimbursing WCA for its fees and costs. The Court also notes that PUSD does not argue the applicability of this subsection in the opposition.

Under subsection (b)(2), fees and costs are not warranted if the admissions sought was of no substantial importance. In opposition, PUSD argues that the RFAs were not central to proving or disproving WCA’s liability in this action vis a vis Plaintiff. However, the Court finds, as discussed above, the RFAs were of substantial importance. For example, RFA Nos. 1-3 asked PUSD to admit that it did not contract with WCA to perform tree trimming services on the subject tree, WCA did not trim the subject tree, and WCA was not responsible for the subject tree prior to the subject incident. These issues formed the basis of WCA’s defense and the grounds upon which it ultimately prevailed by way of its motion for summary judgment. As summarized above, WCA established in its motion for summary judgment, and PUSD was unable to refute, that WCA did not perform any maintenance or tree trimming services on the subject tree prior to the subject incident at the direction of PUSD. Thus, this subsection too is not a ground to exempt PUSD from reimbursing WCA for its fees and costs.

Under subsection (b)(3), fees and costs are not allowed if PUSD had reasonable grounds to believe that it would prevail on the matter. In opposition, PUSD argues that it does not have a tree maintenance department but instead contract outside vendors like WCA and that WCA should have pointed out the subject tree’s failing branch. However, WCA’s motion for summary judgment and PUSD’s opposition thereto show that PUSD lacked reasonable grounds to believe it would have prevailed on the matter. Had PUSD undertaken a reasonable investigation of its own documents and correspondence from its own employees, the facts would have surfaced that PUSD’s own employee, Ms. Barrett, was the one who told WCA not to perform tree-trimming services on the subject tree (i.e., conduct a grid prune on the park area) prior to the subject incident. Thus, this subsection will not be a ground upon which PUSD may seek an exception.

Finally, under subsection (b)(4), PUSD argues that this subsection (4) exception applies but fails to provide any actual arguments in support thereof. (Opp. at p.14.) Thus, PUSD has not opposed the motion on this basis and, thus, has not shown what “other good reason” there was for its failure to admit the RFAs.

Aside from arguing the exceptions, PUSD also makes other arguments. PUSD argues that WCA’s motion should have been directed against Plaintiffs because WCA only obtained summary judgment against Plaintiffs. While the motion for summary judgment may have been directed against Plaintiffs’ complaint, this does not negate the fact that WCA’s RFAs at issue were directed at PUSD. Next, PUSD argues that WCA’s motion for summary judgment was unopposed, but this is false as LVCC, City, and PUSD opposed WCA’s motion for summary judgment and none of those opposing parties were able to raise a triable issue of material fact against WCA. In addition, PUSD argues that other parties responded similarly to WCA’s RFAs and that they too should be sanctioned. However, the RFAs directed at PUSD ask it to admit whether PUSD had a contract with WCA, whether PUSD had evidence in its possession of WCA’s liability, etc. In other words, the RFAs directed at other co-defendants sought admissions/denials of conduct between those co-defendants and WCA—not their knowledge of PUSD and WCA’s conduct/transactions. Finally, PUSD argues that this motion is premature and there has been no adjudication on the merits of PUSD’s cross-complaint for express indemnity against WCA. However, the RFAs were not directed at PUSD’s cross-complaint. To the extent the RFAs were (i.e., regarding whether PUSD and WCA had a contract for the express indemnity claim), WCA points out that PUSD has yet to provide any proof of such an agreement between PUSD and WCA.

For the reasons stated above, the Court finds that WCA has properly moved for relief under CCP §2033.420(a) for reasonable expenses it incurred in proving the truth of the matters in its RFAs, and that PUSD has not shown that an exception to imposing such fees and costs applies under CCP §2033.420(b).

B. Amount of Reasonable Fees and Costs Awarded

In the initial moving papers (filed November 22, 2019), WCA sought $136,653.81 (= $129,373.00 in attorney’s fees[2] + $7,280.81 expenses[3]) against PUSD as the amount it incurred in proving the truth of its RFAs against PUSD that PUSD failed to admit. Martin S. McMahan initially stated in his declaration that his office spent 688.1 hours establishing the truth of the RFAs. (McMahan Decl., ¶14.) Mr. McMahan states that the time billed includes 34 depositions, preparing for and attending 24 court hearings, preparing and responding to law and motion matters, and conducting written and expert discovery. (Id., ¶16.) The costs sought were in the amount of $7,280.81. (Id.) He provided redacted billing records of nearly 100 pages from Yoka & Smith from February 2019 (when PUSD served its objections/responses to the RFAs) through September 2019 (when the Court granted WCA’s motion for summary judgment). (McMahan Decl., ¶14, Ex. L [Billing Records].)

Upon the Court’s December 23, 2019 minute order, Mr. McMahan has filed a Supplemental Declaration, which now revises the total amount of attorney’s fees and costs sought in the reduced amount of $66,369.71. (Suppl. McMahan Decl., ¶2, Ex. A.) As discussed at the prior hearing, the Court will not allow time billed by paralegals to be recovered, any time from February 1 to 28, 2019, nor any fees incurred that were not in connection with proving the truth of the RFAs. In the amended invoice, Mr. McMahan has removed such hours and fees.

The revised billing records include the date, attorney who performed the task, the task performed, the time spent, and the amount billed for entries from March 4, 2019 to August 30, 2019. The total hours incurred from this period are 327.8 hours. The records indicate hours billed by Jeff Gordon ($210/hour), Martin McMahan ($190/hour), Linette Yoon ($190/hour), Alex Sharp ($175/hour), and William Choi ($175/hour).

The Court has reviewed the 8 pages of revised billing records and find that the time incurred by WCA’s counsel was reasonable. The time billed includes time spent on depositions, conducting discovery, and the motion for summary judgment. Mr. McMahan states that each of the tasks listed in the revised billing records were directly related to proving one or more of the RFAs or so closely related/inextricably intertwined, such that apportionment or segregation of time would be impossible. (Suppl. McMahan Decl., ¶3.)

However, as noted in the Court’s footnote number 2, it appears that Linette Yoon is an associate attorney who was admitted in 2018. (McMahan Decl., ¶¶14-15.) However, in the supplemental declaration and amended invoice, Ms. Linette is shown to be billing at a senior rate of $190/hour, which is the same rate billed by Mr. McMahan (senior associate, admitted 1999). (See Suppl. McMahan Decl., Ex. A [Amended Invoice].) The Court will reduce Ms. Yoon’s hourly rate to $175/hour, which seems to be consistent with Mr. McMahan’s original declaration and in line with the rates billed by his other associates, Alex Sharp (admitted 2017) and William Choi (admitted 2017). The Court has reviewed the amended invoice and calculates that Ms. Yoon has incurred a total of 19.2 hours. Thus, the fees will be reduced by $288 (= 19.2 hours x [$190 rate - $175 rate]).

The last page of the revised billing records also includes the costs specifically incurred by counsel to prove the truth of the RFAs at issue. The costs were incurred from March 15, 2019 to August 27, 2019. The costs total $3,312.71. The costs sought appear to be reasonably necessary as they involve motion filing fees, service fees, and deposition transcript fees.

Thus, the Court grants WCA’s motion for attorney’s fees and costs pursuant to CCP §2033.420 in the amount of $66,081.71 (= requested attorney’s fees and costs of $66,369.71 minus $288 reduction in fees).

CONCLUSION AND ORDER

WCA’s motion to recover costs and reasonable attorney’s fees against PUSD for its failure to admit RFAs pursuant to CCP §2033.420 is granted in the total amount of $66,081.71.

WCA shall give notice of this order.


[1] PUSD filed its opposition on December 13, 2019, which was untimely by 4 court days to the initial hearing date of December 20, 2019. (See CCP §1005(b).) Pursuant to CRC Rule 3.1300(d), the Court in its discretion may refuse to consider a late filed paper, such as PUSD’s opposition. In this situation, the Court will consider the untimely opposition as WCA has had the opportunity to respond to the reply brief.

[2] This accounted for the following times: (1) 142.1 hours billed by partner attorneys at a rate of $210/hour by Chris Faenza (admitted 1999) and Jeff Gordon (admitted 1997); (2) 415.4 hours billed by senior associate attorneys at a rate of $190/hour by Marin McMahan (admitted 1999), Kimberly Byrge (admitted 2014), and Nicholas von der Lancken (admitted 2013); (3) 96 hours billed by associate attorneys at a rate of $175/hour by Ben Hand (admitted 2018), Alex Sharp (admitted 2017), William Choi (admitted 2017), and Linette Yoon (admitted 2018); and (4) 34.6 hours billed by paralegals at a rate of $110/hour by Martina Moran, Maz Master, Maria Baird, and Ri Bunn. (McMahan Decl., ¶¶14-15.) The Court notes that though Mr. McMahan states that Linette Yoon is an associate attorney, the billing records indicate that she is a Senior Associate who bills at $190/hour.

[3] The $7,280.81 costs included $2,400 in expert costs, $365.66 in personal service costs, $664.70 in photocopying costs, $573.75 in filing costs, $376.00 in Court Call costs, and $2,900.00 in deposition transcript costs. (McMahan Decl., ¶16.)

Case Number: BC692443    Hearing Date: December 20, 2019    Dept: NCB

 

Superior Court of California

County of Los Angeles

North Central District

Department B

adelaide rose palmstrom,

Plaintiff,

v.

city of pasadena, et al.,

Defendants.

Case No.: BC692443

Consolidated with: BC705917

Hearing Date: December 20, 2019

[TENTATIVE] order RE:

defendant west coast arborists, inc.’s motion to recover costs and attorney fees from defendant pusd for its failure to admit requests for admissions

Background

  1. Allegations

    In this BC692443 action, Plaintiff Adelaide Rose Palmstrom (“Palmstrom”), a minor, by and through her guardian ad litem, Marci Palmstrom, alleges that she was injured on August 29, 2017 when a tree limb crashed onto the playground at Defendant Linda Vista Children’s Center, striking Palmstrom. Palmstrom filed this action against Defendants City of Pasadena (“City”), Pasadena Unified School District (“PUSD”), Linda Vista Children’s Center (“LVCC”), Merchant’s Landscape Services, Inc. (“MLS”), and West Coast Arborists, Inc. (“WCA”). The complaint, filed February 1, 2018, alleges causes of action for: (1) dangerous condition of public property against City and PUSD; (2) premises liability against LVCC; (3) negligent supervision against LVCC; and (4) negligence against MLS and WCA.

    On May 15, 2018, Plaintiffs Penelope Moad (“Moad”), a minor by and through her guardian ad litem, Patricia Moad, and Evan Hasbun (“Hasbun”), a minor by and through his guardian ad litem, Anna Hasbun, commenced an action against City, PUSD, LVCC, MLS, and WCA for the same 4 causes of action based on the same incident.

    On May 25, 2018, PUSD filed a cross-complaint against City, LVCC, MLS, and WCA for express indemnity, implied indemnity, and declaratory relief. On July 27, 2018, LVCC filed a first amended cross-complaint for equitable indemnity, implied indemnity, declaratory relief, and contribution. On November 2, 2018, City filed cross-complaints against LVCC, MLS, WCA, and Pasadena Gardening & Tree Service, Inc. for total equitable indemnity, partial equitable indemnity, declaratory relief, and express indemnity. On January 18, 2019, WCA filed a cross-complaint for equitable indemnity, contribution, and declaratory relief. On May 24, 2019, MLS filed a cross-complaint against City, PUSD, LVCC, and WCA for implied indemnity, contribution, apportionment of fault, and declaratory relief.

    The two actions were related on December 11, 2018. The Palmstrom case (BC692443) was deemed the lead case and the Court ordered that all subsequent filings be filed under BC692443 and reflect the lead case.

  2. Relevant Background and Motion on Calendar

    On November 22, 2019, WCA filed a motion to recover costs and attorney’s fees from PUSD for its failure to admit requests for admissions (“RFA”).

    The Court is not in receipt of an opposition brief.

    LEGAL STANDARD

    CCP §2033.420 states:

    (a) If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees.

    (b) The court  unless it finds any of the following:

    (1) An objection to the request was sustained or a response to it was waived under Section 2033.290.

    (2) The admission sought was of no substantial importance.

    (3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter.

    (4) There was other good reason for the failure to admit.

    (CCP §2033.420.)

    One need not be a prevailing party to be entitled to sanctions under this statute.” (Smith v. Circle P Ranch Co. (1978) 87 Cal.App.3d 267, 274–275.)

    “[W]here it becomes clear from evidence introduced by either party at trial that the party who denied for lack of information or belief had access to the information at the time requests for admissions were propounded, sanctions are justified because that party has a duty to investigate ….” (Bloxham v. Saldinger[S]ince requests for admissions are not limited to matters within personal knowledge  of the responding party, that party has a duty to make a reasonable investigation of the facts before answering items which do not fall within his personal knowledge.” (Id. at 751-52.)

    DISCUSSION

  1. Merits of Motion

    WCA moves for costs and attorney’s fees against PUSD for PUSD’s failure to admit certain RFAs, thereby causing WCA to incur additional expenses in defending this matter and proving the truth of the RFAs. The following background is relevant:

WCA argues that in light of this procedural history and the Court’s ruling on its motion for summary judgment, WCA was able to prove the truth of each of the RFAs. Specifically, the Court stated in its written order that: (1) WCA had a contract with PUSD to perform work on LVCC’s premises, but PUSD did not retain WCA’s services for the subject tree in the park (i.e., the grid prune); (2) WCA did not perform work on the subject tree because PUSD never formally approved the work and expressly told WCA not to perform services in the park; and (3) WCA was not responsible for the condition of the subject tree as it did not own, possess, or control the subject tree. (See McMahan Decl., Ex. G.)

WCA also argues that PUSD cannot show that any exceptions apply to relieve PUSD of its obligation to reimburse WCA for its attorney’s fees and costs incurred in proving the truth of the RFAs. (See CCP §2033.420(b).)

Under subsection (b)(1), fees and costs are not warranted if PUSD’s objections to the RFAs were sustained or a response to it was waived. WCA argues that PUSD only stated “Objection”, but then provided its responses. (Mot. at p.9; McMahan Decl., Ex. D [PUSD’s RFA Responses].) Thus, this subsection is not a ground to exempt PUSD from reimbursing WCA for its fees and costs.

Under subsection (b)(2), fees and costs are not warranted if the admissions sought was of no substantial importance. As discussed above, the RFAs were substantially important. For example, RFA Nos. 1-3 asked PUSD to admit that it did not contract with WCA to perform tree trimming services on the subject tree, WCA did not trim the subject tree, and WCA was not responsible for the subject tree prior to the subject incident. These issues formed the basis of WCA’s defense and the grounds upon which it ultimately prevailed by way of its motion for summary judgment. As summarized above, WCA established in its motion for summary judgment, and PUSD was unable to refute, that WCA did not perform any maintenance or tree trimming services on the subject tree prior to the subject incident at the direction of PUSD. Thus, this subsection too is not a ground to exempt PUSD from reimbursing WCA for its fees and costs.

Under subsection (b)(3), fees and costs are not allowed if PUSD had reasonable grounds to believe that it would prevail on the matter. As the motion is unopposed, PUSD has not shown that it would have prevailed on the matter. Also, WCA’s motion for summary judgment and PUSD’s opposition thereto also show that PUSD lacked reasonable grounds to believe it would have prevailed on the matter. Gad PUSD undertaken a reasonable investigation of its own documents and correspondence from its own employees, the facts would have surfaced that PUSD’s own employee, Ms. Barrett, was the one who told WCA not to perform tree-trimming services on the subject tree prior to the subject incident. Thus, this subsection will not be a ground upon which PUSD may seek an exception.

Finally, under subsection (b)(4), PUSD has not opposed the motion and thus has not shown what “other good reason” there was for its failure to admit the RFAs.

For the reasons stated above, the Court finds that WCA has properly moved for relief under CCP §2033.420(a) for reasonable expenses it incurred in proving the truth of the matters in its RFAs, and that PUSD has not shown that an exception to imposing such fees and costs applies under CCP §2033.420(b).

  1. Amount of Reasonable Fees and Costs Awarded

    Total, WCA seeks $136,653.81 against PUSD as the amount it incurred in proving the truth of its RFAs against PUSD that PUSD failed to admit.

    In support of the motion, WCA provides the declaration of Martin S. McMahan. Mr. McMahan states that his office spent 688.1 hours establishing that the RFAs were true. (McMahan Decl., ¶14.) He states that the time includes:

Case Number: BC692443    Hearing Date: November 15, 2019    Dept: NCB

 

Superior Court of California

County of Los Angeles

North Central District

Department B

adelaide rose palmstrom,

Plaintiff,

v.

city of pasadena, et al.,

Defendants.

Case No.: BC692443

Consolidated with: BC705917

Hearing Date: November 15, 2019

[TENTATIVE] order RE:

defendant PUSD’s motion for issue, evientiary, and other sanctions or alternatively motion to compel plaintiff’s guardian ad litem and her attorney to identify treating provider not disclosed in discovery

Background

  1. Allegations

    In this BC692443 action, Plaintiff Adelaide Rose Palmstrom (“Palmstrom”), a minor, by and through her guardian ad litem, Marci Palmstrom, alleges that she was injured on August 29, 2017 when a tree limb crashed onto the playground at Defendant Linda Vista Children’s Center, striking Palmstrom. Palmstrom filed this action against Defendants City of Pasadena (“City”), Pasadena Unified School District (“PUSD”), Linda Vista Children’s Center (“LVCC”), Merchant’s Landscape Services, Inc. (“MLS”), and West Coast Arborists, Inc. (“WCA”). The complaint, filed February 1, 2018, alleges causes of action for: (1) dangerous condition of public property against City and PUSD; (2) premises liability against LVCC; (3) negligent supervision against LVCC; and (4) negligence against MLS and WCA.

    On May 15, 2018, Plaintiffs Penelope Moad (“Moad”), a minor by and through her guardian ad litem, Patricia Moad, and Evan Hasbun (“Hasbun”), a minor by and through his guardian ad litem, Anna Hasbun, commenced an action against City, PUSD, LVCC, MLS, and WCA for the same 4 causes of action based on the same incident.

    On May 25, 2018, PUSD filed a cross-complaint against City, LVCC, MLS, and WCA for express indemnity, implied indemnity, and declaratory relief. On July 27, 2018, LVCC filed a first amended cross-complaint for equitable indemnity, implied indemnity, declaratory relief, and contribution. On November 2, 2018, City filed cross-complaints against LVCC, MLS, WCA, and Pasadena Gardening & Tree Service, Inc. for total equitable indemnity, partial equitable indemnity, declaratory relief, and express indemnity. On January 18, 2019, WCA filed a cross-complaint for equitable indemnity, contribution, and declaratory relief. On May 24, 2019, MLS filed a cross-complaint against City, PUSD, LVCC, and WCA for implied indemnity, contribution, apportionment of fault, and declaratory relief.

    The two actions were related on December 11, 2018. The Palmstrom case (BC692443) was deemed the lead case and the Court ordered that all subsequent filings be filed under BC692443 and reflect the lead case.

  2. Relevant Background and Motion on Calendar

    On October 7, 2019, Defendant PUSD filed a motion for issue, evidentiary, and other sanctions, or in the alternative, a motion to compel Plaintiff Palmstrom’s guardian ad litem and her attorneys to identify treating physicians—namely, a Dr. Ronald Fisk—who evaluated Plaintiff in February 2019.

    On November 1, 2019, Plaintiff filed an opposition to the motion.

    On November 12, 2019, PUSD filed a reply brief.

    DISCUSSION

  1. Untimeliness

    Preliminarily, Plaintiff argues that this motion is untimely.

    CCP §2024.020(a) states that a party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.

    PUSD brought this motion pursuant to CCP §2023.030 et seq., seeking discovery sanctions for Plaintiff’s purported discovery abuses. In the alternative, PUSD seeks to compel Plaintiff to provide the complete names and contact information of the neurologist or other medical provider that evaluated Plaintiff.

    The Court notes that the trial date has since been vacated. Had a trial date still been set, the motion would have been untimely—both in its request for discovery sanctions and seeking to compel discovery. As the trial date has been vacated, the Court will hear the motion on its merits.

  2. Issue and Evidence Sanctions

    Under CCP §2023.030, the Court may impose issue sanctions ordering that designated facts be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. (CCP §2023.030(b).) The Court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence. (CCP §2023.030(c).) Any motion for issue or evidentiary sanctions must be accompanied by a separate statement. (CRC Rule 3.1345(a)(7).) Evidence or issue sanctions may be imposed only after parties violated discovery orders compelling further responses, except in exceptional circumstances, including where there was sufficiently egregious misconduct regarding a failure to respond to discovery, or a prior discovery order would be futile. (New Albertsons, Inc. v. Sup. Ct. (2008) 168 Cal.App.4th 1403, 1426.) Two prerequisites for the imposition of non-monetary sanctions are: (1) there must be a failure to comply; and (2) the failure must be willful. (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.)

    PUSD seeks issue and evidentiary sanctions against Plaintiff. PUSD seeks issue sanctions that it be established that Plaintiff suffers from no neurological disorders; impairments; structural, biochemical, or electrical abnormalities in the brain, and she suffers no aphasia or speaking gibberish as a result of the subject incident. For evidentiary sanctions, PUSD requests that Plaintiff be precluded from: offering into evidence at trial neurological expert trial testimony, as well as any and all reports, notes, pictures, memorandums, opinions, etc., or any other documentary evidence generated by neurological expert witnesses; “backdooring” expert opinions through other witnesses, experts or otherwise, at trial; offering any evidence, argument, or examination into evidence at the time of trial of the damages relating to any of Plaintiff’s neurological injuries, as well as any and all reports, notes, pictures, memorandums, opinions, etc., or any other documentary evidence generated to prove Plaintiff’s damages, including special damages; and “backdooring” evidence on the amount of damages, including special damages, at trial.

    PUSD argues that on February 4, 2019, it took the deposition of Marci Palmstrom (Plaintiff’s mother) and during her deposition, Mrs. Palmstrom inadvertently mentioned that Plaintiff saw a neurologist outside of the Kaiser provider network. (Doumanian Decl., Ex. A [Marci Palmstrom Depo. at pp. 106, 219].) PUSD argues that though Plaintiff identified her treating healthcare providers within her provider network (including Kaiser Permanente, LAC+USC, and Children’s Hospital of Los Angeles), she did not identify anyone she saw outside her provider network. Then on July 1, 2019, Anne Kaufman drafted a report to Carol Hyland (Plaintiff’s retained Life Care Planning expert) wherein she stated that Plaintiff had testing in February 2019 but that Plaintiff’s parents did not have the doctor’s name. (Doumanian Decl., Ex. G [7/1/19 Report].) PUSD also attaches Dr. Fernando Miranda’s neurological evaluation report of Plaintiff, which shows his first meeting date with Plaintiff dated August 8, 2018. (Doumanian Decl., Ex. H [8/29/18 Report].) Finally, PUSD argues that on October 15, 2019, the deposition of Dr. Miranda took place and his file materials specified that he reviewed records including “Dr. Ronald Fisk neurological consultation.”

    In opposition, Plaintiff argues that PUSD is essentially seeking sanctions against her for discovery that does not exist. Plaintiff argues that there is no record or any other information supporting the notation other than what Plaintiff’s life planner’s assistant, Anne Kaufman, wrote down in a conversation with Plaintiff’s parents. Plaintiff thus argues that Ms. Kaufman’s notation was either a mistake or incorrect transcribing of information. In support of this, Plaintiff provides the deposition testimony of Ms. Hyland, who states that from the records, she did not determine that Plaintiff had been tested in February 2019 and has no further information than what Ms. Kaufman wrote in the report. (Opp., Ex. 1 [Hyland Depo. at pp.80-81].)

    The Court denies PUSD’s requests for several reasons.

    First, the Court notes that this motion for evidence and/or issue sanctions is not accompanied by a separate statement.

    Second, there is no indication by either party that there is a court order compelling Plaintiff to provide the name of this particular healthcare provider. Thus, there is a lack of showing that Plaintiff has willfully disobeyed a court order or that Plaintiff’s actions are so egregious or a misuse of the discovery process that issue and evidentiary sanctions are warranted.

    Third, while it appears that Plaintiff is essentially admitting that she did not see a neurologist in February 2019, this is not an admission that Plaintiff did not suffer neurological damage. PUSD’s drafted issue and evidentiary sanctions that are overbroad and which essentially seek a blanket statement that Plaintiff suffered no neurological disorders or brain abnormalities, and that she not be able to bring in any evidence corroborating any such injuries. Such sanctions sought by PUSD are overbroad and will not be imposed against Plaintiff at this time. The motion for issue and/or evidentiary sanctions is denied.

  3. Alternative Request to Compel

    In the alternative, PUSD requests that the Court compel Plaintiff’s parents and their attorneys to provide the complete name and contact information of the neurologist or other medical provider that has evaluated Plaintiff, allow PUSD to depose that provider, and provide PUSD with all medical records and documents related to Plaintiff’s evaluation thereto. In the reply brief, PUSD specifically states that it is seeking discovery and information regarding Dr. Fisk’s evaluation/report of Plaintiff and the depositions of Dr. Fisk and the parent of Plaintiff who took Plaintiff to see Dr. Fisk.

    Although Plaintiff denies that she was tested in February 2019, she does not mention if she knows or consulted with Dr. Fisk. There does appear to be some ambiguity on whether Plaintiff did or did not see a neurologist or Dr. Fisk in February 2019, and propounding supplemental written discovery or filing appropriation motions to discover such information may be necessary.

    At this point, the Court is entitled to answer as to whether or not Dr. Fisk was consulted and provided treatment or testing of Plaintiff so that the Court can tell how this matter should be treated.

    CONCLUSION AND ORDER

    PUSD’s motion for issue and evidentiary sanctions is denied. With regard to PUSD’s alternative request, the Court will hear argument.

    Plaintiff Palmstrom shall give notice of this order.

Case Number: BC692443    Hearing Date: November 08, 2019    Dept: NCB

 

Superior Court of California

County of Los Angeles

North Central District

Department B

adelaide rose palmstrom,

Plaintiff,

v.

city of pasadena, et al.,

Defendants.

Case No.: BC692443

Consolidated with: BC705917

Hearing Date: November 8, 2019

[TENTATIVE] order RE:

(1) motion for judgment on the pleading; and

(2) motion for leave to file first amended cross-complaint

Background

  1. Allegations

    In this BC692443 action, Plaintiff Adelaide Rose Palmstrom (“Palmstrom”), a minor, by and through her guardian ad litem, Marci Palmstrom, alleges that she was injured on August 29, 2017 when a tree limb crashed onto the playground at Defendant Linda Vista Children’s Center, striking Palmstrom. Palmstrom filed this action against Defendants City of Pasadena (“City”), Pasadena Unified School District (“PUSD”), Linda Vista Children’s Center (“LVCC”), Merchant’s Landscape Services, Inc. (“MLS”), and West Coast Arborists, Inc. (“WCA”). The complaint, filed February 1, 2018, alleges causes of action for: (1) dangerous condition of public property against City and PUSD; (2) premises liability against LVCC; (3) negligent supervision against LVCC; and (4) negligence against MLS and WCA.

    On May 15, 2018, Plaintiffs Penelope Moad (“Moad”), a minor by and through her guardian ad litem, Patricia Moad, and Evan Hasbun (“Hasbun”), a minor by and through his guardian ad litem, Anna Hasbun, commenced an action against City, PUSD, LVCC, MLS, and WCA for the same 4 causes of action based on the same incident.

    On May 25, 2018, PUSD filed a cross-complaint against City, LVCC, MLS, and WCA for express indemnity, implied indemnity, and declaratory relief.

    On July 27, 2018, LVCC filed a first amended cross-complaint for equitable indemnity, implied indemnity, declaratory relief, and contribution.

    On November 2, 2018, City filed cross-complaints against LVCC, MLS, WCA, and Pasadena Gardening & Tree Service, Inc. for total equitable indemnity, partial equitable indemnity, declaratory relief, and express indemnity.

On January 18, 2019, WCA filed a cross-complaint for equitable indemnity, contribution, and declaratory relief.

On May 24, 2019, MLS filed a cross-complaint against City, PUSD, LVCC, and WCA for implied indemnity, contribution, apportionment of fault, and declaratory relief.

The two actions were related on December 11, 2018. The Palmstrom case (BC692443) was deemed the lead case and the Court ordered that all subsequent filings be filed under BC692443 and reflect the lead case.

  1. Relevant Background and Motions on Calendar

    There are 2 motions on calendar: (1) LVCC’s motion for judgment on the pleadings and (2) City’s motion to for leave to file an amended cross-complaint.

    On October 11, 2019, LVCC filed a motion for judgment on the pleadings as to PUSD’s cross-complaint. On October 24, 2019, PUSD filed an opposition to LVCC’s motion.

    On October 11, 2019, City filed a motion for leave to file the proposed First Amended Cross-Complaint (“FAXC”) against one defendant, PUSD, to add PUSD to the causes of action alleged in the cross-complaint. On October 23, 2019, PUSD filed an opposition to City’s motion.

    LVCC’S MOTION FOR JUDGMENT ON THE PLEADINGS

  1. Request for Judicial Notice

    LVCC requests judicial notice of the Court’s rulings on: (A) LVCC’s motion for summary judgment and (B) PUSD’s motion for summary judgment. The request is granted. (Evid. Code, §452(d).)

  2. Discussion

    By way of background, on September 26, 2019, the Court granted LVCC’s motion for determination of good faith settlement with Plaintiffs. The Court stated: “By granting this motion, any further claims by joint tortfeasors or co-obligors for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault against City of Pasadena, Merchant's Landscape Services, Inc., and Linda Vista Children's Center are barred. (CCP §877.6(c).)”

    LVCC seeks an order dismissing PUSD’s express indemnity cause of action against LVCC for failure to state a cause of action. LVCC argues that PUSD’s claims for implied indemnity and contribution are now barred and that the cross-claim for express indemnity should be dismissed.

    The Court will hear the merits of this motion pursuant to CCP §438(e), as the Court may permit the filing of a motion for judgment on the pleadings outside the time periods delineated in the code.

    “Express indemnity refers to an obligation that arises by virtue of express contractual language establishing a duty in one party to save another harmless upon the occurrence of specified circumstances.” (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1158 [internal quotation marks omitted].)

    PUSD’s 1st cause of action for express indemnity alleges that PUSD was not negligent towards Plaintiffs and that Cross-Defendants each had written contractual agreements with PUSD that provided for landscape and maintenance for PUSD and for the premises where Plaintiffs’ accident occurred. (Opp. at Ex. B, PUSD XC, ¶¶12-13.) The agreements stated that Cross-Defendants would defend, indemnify, and hold PUSD harmless for injuries/damages giving rise to Plaintiff’s underlying complaint. (Id., ¶13.)

    The Court finds that the allegations of PUSD’s cross-complaint sufficiently allege an express indemnity cause of action as it alleges that PUSD had a written agreement with LVCC for contractual indemnity. Although the terms could have been more artfully and specifically pled, the allegations are sufficient to allege an express indemnity claim against LVCC. The Court notes that though PUSD’s cross-complaint does not attach any exhibits, PUSD provides a copy of the agreement entered between LVCC and PUSD as Exhibit D to the opposition papers. (See Opp. at Ex. D [PUSD/LVCC Agreement at ¶14, Indemnification].) Though the PUSD/LVCC Agreement is not incorporated into PUSD’s cross-complaint, the allegations of the cross-complaint sufficiently allege facts and the legal effect of the written agreement to put LVCC on notice of the cross-claim for express/contractual indemnity against it.

    LVCC also argues that even if the allegations of the cross-complaint are found to be sufficient, the Court should still grant the motion because LVCC was not negligent as a matter of law pursuant to the Court’s ruling on the motion for summary judgment. However, the Court’s ruling on LVCC’s motion for summary judgment did not adjudicate whether LVCC entered into a written indemnity agreement with PUSD, whether that indemnity term is or is not enforceable, whether the term was or was not triggered, and ultimately whether LVCC has a duty to indemnify PUSD. As noted in the Court’s ruling on LVCC’s motion for determination of good faith settlement, claims for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault against LVCC are barred, but express/contractual indemnity claims are not barred against LVCC.

    Thus, the Court denies LVCC’s motion for judgment on the pleadings.

    CITY’S MOTION FOR LEAVE TO FILE THE FAXC

  1. Legal Standard

CCP §428.50(c) states that a party shall obtain leave of court to file any cross-complaint except one filed at or before the time to answer or before the court has set a trial date. “Leave may be granted in the interest of justice at any time during the course of the action.” (CCP §428.50(c).) Furthermore, under CCP §428.10(b), a party to an action may file a cross-complaint setting forth any cause of action he has against a person to be liable thereon if the cause of action asserted in the cross-complaint arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him, or asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him.

CCP §473(a)(1) states: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”

CRC rule 3.1324 requires a motion seeking leave to amend to include a copy of the proposed pleadings, to identify the amendments, and to be accompanied by a declaration including the following facts:

1) The effect of the amendment;

2) Why the amendment is necessary and proper;

3) When the facts giving rise to the amended allegations were discovered; and

4) The reasons why the request for amendment was not made earlier.

“[T]he court's discretion will usually be exercised liberally to permit amendment of the pleadings. The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified. Leave to amend should be denied only where the facts are not in dispute, and the nature of the plaintiff's claim is clear, but under substantive law, no liability exists and no amendment would change the result.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428 [internal quotations and citations omitted].)

  1. Discussion

    City moves for leave to file the FAXC to add PUSD as a cross-defendant to the causes of action alleged in the cross-complaint for total equitable indemnity, partial equitable indemnity, declaratory relief, and express indemnity. The FAXC seeks to add allegations regarding PUSD

    In support of the motion, City provides the declaration of its counsel, Tammy Kim. Ms. Kim states that on May 24, 2018, PUSD filed a cross-complaint naming City and other cross-defendants for express indemnity, implied indemnity, and declaratory relief. (Kim Decl., ¶6, Ex. 2.) On November 2, 2018, City filed a cross-complaint against LVCC, MLS, and WCA, but did not name PUSD. (Id., ¶7, Ex. 3.) Prior to City filing the cross-complaint, its counsel had agreed with PUSD’s counsel that the parties would refrain from pursuing their respective cross-complaints against each other in the interim. (Id., ¶8.) Thus, on February 12, 2019, PUSD filed a request for dismissal, without prejudice, of City from PUSD’s cross-complaint. (Id., ¶9, Ex.4.) Thereafter, the parties to the action engaged in settlement discussions. (Id., ¶¶11-13.) Ms. Kim states that as City negotiated settlements with Plaintiffs and MLS, Dana McCune of her office conferred with Nancy Doumanian (PUSD’s counsel) about the potential indemnity cross-complaints between City and PUSD. (Id., ¶13.) City offered that City and PUSD mutually and reciprocally waive their respective indemnity cross-claims or, alternatively, to agree from later arguing that any jury allocation of fault at trial should apply in subsequent proceeding regarding mutual indemnity obligations—but after a September 26, 2019 PUSD Board meeting, Ms. Doumanian advised Mr. McCune that PUSD rejected City’s offer. (Id., ¶¶13-14.)

    The action currently has no trial date and that PUSD, LVCC, City, and Plaintiff are engaged in expert discovery. (Kim Decl., ¶15.) City seeks leave to file the FAXC, which is attached as Exhibit 5 to the moving papers. (See Notice of Errata to Motion, Ex. 5 [Proposed FAXC].) Ms. Kim states that this motion was filed as a result of PUSD’s refusal to reciprocally waive the 2 public entities’ respective mutual indemnity claims against each other. (Kim Decl., ¶17.) She states that the amendment is necessary and proper because otherwise City would likely be prevented from participating in trial and be at the risk of PUSD later applying a jury allocation determined from trial, and thus it would potentially be financially impacted. (Id.)

    In opposition, PUSD argues that the motion should be denied for numerous reasons. However, alternatively, PUSD argues that if the motion is granted, the Court should reopen discovery.

    The Court has reviewed the opposition and notes that PUSD makes various arguments on the basis of untimeliness of the motion, no good cause, lack of standing by City, etc., but PUSD does not respond to City’s main argument that PUSD rejected City’s offer that the parties waive cross-claims against each other.

    Rather, in opposition, PUSD argues that City is no longer a party to this action because it settled with the Plaintiffs. Whether or not this is the case, PUSD is still in the action as a participating defendant and, as shown by Ms. Kim’s declaration, PUSD declined City’s offer that the parties reciprocally waive their respective indemnity cross-claims against each other as originally contemplated by the parties.

    Next, the fact that City was granted leave to amend its answer on March 6, 2019 and granted leave to file a cross-complaint on October 26, 2018, but chose not to include allegations against PUSD is not necessarily determinative that this motion should be denied. Rather, as explained by Ms. Kim, City chose not to include PUSD in its initial cross-complaint based on City and PUSD’s discussions that the parties would refrain from pursuing their respective cross-complaints against each other in the interim. (Kim Decl., ¶8.) After City settled with Plaintiffs, City sought to confirm this arrangement, but PUSD rejected City’s offer that they waive their cross-claims against each other. (Id., ¶¶13-14.) Thus, the circumstances have now changed such that amendment of the cross-complaint is not untimely.

    PUSD also argues that the Court previously rejected PUSD’s similar motion for leave to file a cross-complaint against Philadelphia Insurance Company on August 22, 2019. PUSD had filed an ex parte application for an order permitting an order shortening time to hear a motion to amend its cross-complaint, which the Court heard and denied without prejudice. PUSD did not thereafter pursue filing of the motion to amend. Thus, this too will not be a ground to deny the motion. Further, unlike PUSD’s insurance company, City has been involved in this action from its inception and thus adjudicating City’s cross-claims against LVCC, MLS, WCA, and Pasadena Gardening & Tree Service, Inc., as well as PUSD would best promote judicial economy and efficiency.

    Lastly, PUSD argues that the motion is untimely as it is beyond the discovery cut-off of August 26, 2019 and motion cut-off of September 11, 2019 (dictated by the original trial date of September 26, 2019), pursuant to CCP §2024.020. The trial date in this action has since been vacated and the Court has set an OSC re Long Cause Trial and Status of Expert Depositions to be heard concurrently with this motion. As noted above, the Court is inclined to grant City’s motion for leave to file the FAXC. Thus, as requested by PUSD, the Court will reopen discovery for the limited purpose of allowing PUSD and City to conduct discovery on the issues raised by City against PUDS in the FAXC.

    PUSD also requests that the Court make an order that City’s cross-claims be severed from the personal injury trial, and that City and its counsel cannot participate at the Palmstrom v. PUSD trial because City already settled all of its claims with Plaintiffs. On September 5, 2019, the Court granted PUSD’s motion to sever the trial of Plaintiffs’ personal injury complaints (to be heard first) from the trials on the cross-complaints. Similarly, the trial on City’s cross-claims will be heard after the trial on the personal injury complaint(s). So long as the City is a party of record, it has the right to attend trial.

    CONCLUSION AND ORDER

    LVCC’s motion for judgment on the pleadings to PUSD’s cross-complaint is denied.

    City’s motion to amend the cross-complaint is granted. City is ordered to electronically file a copy of the FAXC by this date. As requested by PUSD, the Court will reopen discovery for the limited purpose of City and PUSD conducting discovery on the matters raised in the FAXC. Also, consistent with the Court’s prior ruling on the motion to sever the personal injury trial from the trial on the cross-complaints, City’s FAXC alleged against PUSD too will be severed and heard with the other cross-complaints.

    LVCC and City shall each give notice of their respective order.

Case Number: BC692443    Hearing Date: November 01, 2019    Dept: NCB

 

Superior Court of California

County of Los Angeles

North Central District

Department B

adelaide rose palmstrom,

Plaintiff,

v.

city of pasadena, et al.,

Defendants.

Case No.: BC692443

Consolidated with: BC705917

Hearing Date: November 1, 2019

[TENTATIVE] order RE:

defendant PUSD’s motion for reconsideration of court order denying its motion for summary judgment given new and different information and evidence per ccp §1008

Background

  1. Allegations

    In this BC692443 action, Plaintiff Adelaide Rose Palmstrom (“Palmstrom”), a minor, by and through her guardian ad litem, Marci Palmstrom, alleges that she was injured on August 29, 2017 when a tree limb crashed onto the playground at Defendant Linda Vista Children’s Center, striking Palmstrom. Palmstrom filed this action against Defendants City of Pasadena (“City”), Pasadena Unified School District (“PUSD”), Linda Vista Children’s Center (“LVCC”), Merchant’s Landscape Services, Inc. (“MLS”), and West Coast Arborists, Inc. (“WCA”). The complaint, filed February 1, 2018, alleges causes of action for: (1) dangerous condition of public property against City and PUSD; (2) premises liability against LVCC; (3) negligent supervision against LVCC; and (4) negligence against MLS and WCA.

    On May 15, 2018, Plaintiffs Penelope Moad (“Moad”), a minor by and through her guardian ad litem, Patricia Moad, and Evan Hasbun (“Hasbun”), a minor by and through his guardian ad litem, Anna Hasbun, commenced an action against City, PUSD, LVCC, MLS, and WCA for the same 4 causes of action based on the same incident.

    On May 25, 2018, PUSD filed a cross-complaint against City, LVCC, MLS, and WCA for express indemnity, implied indemnity, and declaratory relief. On July 27, 2018, LVCC filed a first amended cross-complaint for equitable indemnity, implied indemnity, declaratory relief, and contribution. On November 2, 2018, City filed cross-complaints against LVCC, MLS, WCA, and Pasadena Gardening & Tree Service, Inc. for total equitable indemnity, partial equitable indemnity, declaratory relief, and express indemnity. On January 18, 2019, WCA filed a cross-complaint for equitable indemnity, contribution, and declaratory relief. On May 24, 2019, MLS filed a cross-complaint against City, PUSD, LVCC, and WCA for implied indemnity, contribution, apportionment of fault, and declaratory relief.

    The two actions were related on December 11, 2018. The Palmstrom case (BC692443) was deemed the lead case and the Court ordered that all subsequent filings be filed under BC692443 and reflect the lead case.

  2. Relevant Background and Motion on calendar

    On May 17, 2019, Defendant PUSD filed a motion for summary judgment on the 1st cause of action alleged against it for dangerous condition on public property in the consolidated complaints of the Palmstrom case and the Moad/Hasbun case. The motion was opposed by MLS and Plaintiff.

    On September 16, 2019, the Court issued an order denying PUSD’s motion for summary judgment on the 1st cause of action asserted in the complaint.

    On September 26, 2019, the Court granted the motions for determination of good faith settlement filed by City, MLS, and LVCC.

    On calendar now is PUSD’s motion for reconsideration of the Court’s order denying its motion for summary judgment given new and different information and evidence per CCP §1008, filed October 8, 2019. Plaintiff filed an opposition brief on October 21, 2019.

    LEGAL STANDARD

    CCP §1008(a) states: “When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (CCP §1008(a).)

    DISCUSSION

    PUSD moves the Court for an order reversing its prior ruling set forth in its September 16, 2019 minute order denying PUSD’s motion for summary judgment, and entering a new and different order granting PUSD’s motion for summary judgment. PUSD argues that there are no material factual disputes presented that PUSD had constructive notice of any dangerous condition of public property and that the Court has already concluded that PUSD did not have actual notice of a dangerous condition of public property.

  1. Legal Basis

    Preliminarily, the Court notes that though PUSD cites to CCP §1008 as the basis for bringing its motion for reconsideration, PUSD has not specified which subsection of section 1008 it is bringing the motion under nor has PUSD included a section in the memorandum of points and authorities, which provides a concise statement of the law. (CRC Rule 3.1113(b).)

    However, the Court assumes that since the motion is labeled as a motion for reconsideration, this motion is being brought under CCP §1008(a), as opposed to CCP §1008(b) which are renewed (subsequent) motion for the same relief previously requested.

  2. Untimeliness

    Pursuant to CCP §1008(a), this motion for reconsideration was not timely filed by PUSD.

    The Court entered its ruling on PUSD’s motion for summary judgment on September 16, 2019. The minute order indicates that a copy of the minute order was mailed to counsel for PUSD.

    Motions for reconsideration must be filed within 10 days after service upon the party. In other words, 10 days (plus 5 days for mailing) falls on October 1, 2019. PUSD filed its motion for reconsideration on October 8, 2019. Thus, the motion is not timely and may be denied on procedural grounds. The Court notes that PUSD does not address the issue of timeliness in its papers.

    In opposition, Plaintiff argues that this motion is also untimely based on CCP §2024.020. However, the Court notes that the 15-day hearing cut-off period prior to trial is regarding “motions concerning discovery” and is thus not applicable to other non-discovery types of motions.

  3. Merits

    Even if considered on its substantive merits, the Court would deny the motion for reconsideration.

    First, PUSD argues that the Court’s denial of PUSD’s motion for summary judgment is inconsistent with its ruling and judgments on the motions for summary judgment/adjudication of WCA and LVCC because the three motions were based on the same factual and legal bases. (Mot. at pp.1, 4.)

    The Court does not find this argument persuasive. This argument does not present new or different facts, circumstances, or law. In addition, the legal grounds for Plaintiffs’ claims against PUSD are different from the claims alleged against LVCC and WCA. PUSD is a government entity and the requirements to find liability for dangerous conditions on public property are set forth Government Code, §§835, 835.2, and 830. This is a different burden than premises liability or negligent supervision claims. Thus, PUSD’s burden in summary judgment was not the same as WCA and LVCC’s initial burdens.

    Second, PUSD argues that the Court’s ruling on WCA’s motion for summary judgment defeats Plaintiffs’ theory of liability as to PUSD and thus requires granting PUSD’s motion for summary judgment. (Mot. at pp.1-2.) Specifically, PUSD argues that though the Court considered the conversations between Tim Crothers (WCA’s representative) and Shirly Barrett (PUSD’s employee) about a site inspection in both WCA and PUSD’s motions for summary judgment, but came to different conclusions on the evidence’s significance.

    Again, this argument fails to raise any new or different facts, circumstances, and/or law. In addition, when ruling on WCA’s motion for summary judgment, the Court noted that WCA provided 2 proposals to PUSD to: (1) prune 6 trees on LVCC’s property; and (2) perform a grid prune of all trees at the site, including the LVCC park. WCA had performed the first proposal and informed Ms. Barrett that it was ready to perform the grid prune, but Ms. Barrett wrote back telling WCA to hold off on the park and never confirmed performing the grid prune. Thus, while this evidence submitted at the summary judgment stage showed that WCA was ready and willing to provide services to prune all the trees on the premises, PUSD (through its employee) informed WCA not to perform the work. Thus, even if the same evidence was considered, different results regarding different defendants are certainly possible. Merely because the evidence was favorable as to one defendant does not automatically make it favorable to all defendants. (The Court also notes that there were various other reasons why the Court granted WCA’s motion for summary judgment, which is stated more fully in the order regarding WCA’s motion for summary judgment.)

    Third, PUSD argues that the Court’s ruling on LVCC’s motion for summary judgment requires it to grant PUSD’s motion for summary judgment because the same evidence was considered in both. The Court rejects this argument for the same reason stated above. PUSD also argues that the Court stated in its ruling of LVCC’s motion for summary judgment that “LVCC did not have actual or constructive notice of the alleged dangerous condition or fail to repair the condition” and cites to Exhibit B of its moving papers at pages 3-4. (Notice of Motion at ¶10, p.3; Mot. at pp.3, 5-6, Ex. B at pp.3-4. The Court has reviewed Exhibit B and does not find anywhere in the minute order or specifically on pages 3-4 of the minute order the phrase quoted by PUSD. At most, the closest language to what PUSD is citing can be found in the “BACKGROUND” section of the Court’s ruling where the Court laid out the issues raised by LVCC in its notice of motion for summary judgment. The Court stated that LVCC sought summary adjudication of Issue 2 that: “Plaintiffs 2nd cause of action for premises liability is barred because Plaintiffs cannot prove any elements of the cause of action. Plaintiffs cannot show that LVCC owned, leased, occupied, and controlled the property on which the subject tree that caused Plaintiffs injuries was located; that LVCC was negligent in the use or maintenance of that property; that LVCC had any actual or constructive notice of the alleged dangerous condition; or that LVCC failed to repair the condition.” (Mot., Ex. B [9/10/19 Minute Order at p.2].) The Court’s iteration of LVCC’s summary adjudication issues was not a ruling.

    Fourth, PUSD attempts to re-argue that motion for summary judgment and that Plaintiff’s opposing separate statement as to constructive notice of any dangerous condition of property did not raise any triable issues. However, the Court already considered these arguments when considering PUSD’s motion for summary judgment on its merits, orally at the hearing on the motion, and when it took the matter under submission. This argument does not present any new or different facts, circumstances, or law.

    Accordingly, even if the Court were to consider PUSD’s motion for reconsideration on its merits, the Court would deny the motion.

    CONCLUSION AND ORDER

    PUSD’s motion for reconsideration of the Court’s ruling on PUSD’s motion for summary judgment is denied on both procedural and substantive grounds.

    Plaintiffs shall give notice of this order.