This case was last updated from Los Angeles County Superior Courts on 07/21/2021 at 21:57:05 (UTC).

AMERICAN CLAIMS MANAGEMENT INC VS MEMOS SCAFFOLDING NORWALK

Case Summary

On 10/12/2017 AMERICAN CLAIMS MANAGEMENT INC filed a Personal Injury - Other Personal Injury lawsuit against MEMOS SCAFFOLDING NORWALK. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are THOMAS D. LONG, DAVID J. COWAN and HOLLY E. KENDIG. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9342

  • Filing Date:

    10/12/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

THOMAS D. LONG

DAVID J. COWAN

HOLLY E. KENDIG

 

Party Details

Plaintiffs

AMERICAN CLAIMS MANAGMENT INC

GUZMAN JOSE LUIS

Defendants, Cross Plaintiffs and Cross Defendants

MEMO'S SCAFFOLDING NORWALK INC

SELMA & VINE HOLLYWOOD LLC

BERNARDS BROS. INC.

EXCEL PLASTERING INC.[DOE 1]

BERNARD'S CONSTRUCTION GROUP INC

APELDOORN FRANK

BERNARDS BUILDERS INC.

ALTA INTERIORS INC.

PATRIOT EXTERIORS INC.

Attorney/Law Firm Details

Plaintiff Attorneys

CAPALBO CHRISTOPHER J. ESQ.

VALDEZ FRANK JOE JR

Defendant Attorneys

GILBERT DON

MENEKSHE AYHAN

ORLAND JAMES J. ESQ.

ORLAND JAMES JOHN

PARKS SCOTT GREGORY

STRONG DAVID LEE

 

Court Documents

Notice - NOTICE CHANGE OF HANDLING ATTORNEY AND FIRM ADDRESS

12/18/2019: Notice - NOTICE CHANGE OF HANDLING ATTORNEY AND FIRM ADDRESS

Motion to Compel - MOTION TO COMPEL PLAINTIFF IN INTERVENTION JOSE LUIS GUZMANS NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO AMENDED REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE AGAINST DEFENDA

1/8/2020: Motion to Compel - MOTION TO COMPEL PLAINTIFF IN INTERVENTION JOSE LUIS GUZMANS NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO AMENDED REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE AGAINST DEFENDA

Motion to Compel - MOTION TO COMPEL PLAINTIFF IN INTERVENTION JOSE LUIS GUZMANS NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES, SET ONE AGAINST DEFENDANT EXCEL PLASTERING

1/8/2020: Motion to Compel - MOTION TO COMPEL PLAINTIFF IN INTERVENTION JOSE LUIS GUZMANS NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES, SET ONE AGAINST DEFENDANT EXCEL PLASTERING

Motion to Deem RFA's Admitted

1/8/2020: Motion to Deem RFA's Admitted

Motion to Compel - MOTION TO COMPEL PLAINTIFF IN INTERVENTION JOSE LUIS GUZMANS NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES, SET ONE AGAINST DEFENDANT EXCEL PLASTERING

1/8/2020: Motion to Compel - MOTION TO COMPEL PLAINTIFF IN INTERVENTION JOSE LUIS GUZMANS NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO SPECIAL INTERROGATORIES, SET ONE AGAINST DEFENDANT EXCEL PLASTERING

Declaration in Support of Ex Parte Application

1/17/2020: Declaration in Support of Ex Parte Application

Declaration in Support of Ex Parte Application - DECLARATION IN SUPPORT OF EX PARTE APPLICATION OF DAVID L. STRONG

1/21/2020: Declaration in Support of Ex Parte Application - DECLARATION IN SUPPORT OF EX PARTE APPLICATION OF DAVID L. STRONG

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR ORDER TO CONTINUE)

1/22/2020: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR ORDER TO CONTINUE)

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR ORDER CONTINUING TRIAL OR...)

1/23/2020: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR ORDER CONTINUING TRIAL OR...)

Order - ORDER RE EX PARTE APPLICATION CONTINUING TRIAL, OR IN THE ALTERNATIVE SHORTENING TIME TO HEAR MOTION TO CONTINUE TRIAL

1/23/2020: Order - ORDER RE EX PARTE APPLICATION CONTINUING TRIAL, OR IN THE ALTERNATIVE SHORTENING TIME TO HEAR MOTION TO CONTINUE TRIAL

Ex Parte Application - Ex Parte Application for Order Continuing Trial or in the Alternative Shortening Time to Hear Motion to Continue Trial

1/23/2020: Ex Parte Application - Ex Parte Application for Order Continuing Trial or in the Alternative Shortening Time to Hear Motion to Continue Trial

Memorandum of Points & Authorities

2/10/2020: Memorandum of Points & Authorities

Declaration - DECLARATION DECLARATION OF JAY HART IN SUPPORT OF PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

2/10/2020: Declaration - DECLARATION DECLARATION OF JAY HART IN SUPPORT OF PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Notice - NOTICE PLAINTIFF AMERICAN CLAIMS MANAGEMENT, INC.'S NOTICE OF OPPOSITION TO BERNARD'S CONSTRUCTION GROUP, INC.'S MOTION OF SUMMARY JUDGMENT

2/10/2020: Notice - NOTICE PLAINTIFF AMERICAN CLAIMS MANAGEMENT, INC.'S NOTICE OF OPPOSITION TO BERNARD'S CONSTRUCTION GROUP, INC.'S MOTION OF SUMMARY JUDGMENT

Notice of Joinder - NOTICE OF JOINDER (NAME EXTENSION) PLAINTIFF'S NOTICE OF JOINDER TO PLAINTIFF-IN-INTERVENTION JOSE LUIS GUZMAN'S OPPOSITION TO BERNARDS BROS. INC.'S MOTION FOR SUMMARY JUDGMENT

2/10/2020: Notice of Joinder - NOTICE OF JOINDER (NAME EXTENSION) PLAINTIFF'S NOTICE OF JOINDER TO PLAINTIFF-IN-INTERVENTION JOSE LUIS GUZMAN'S OPPOSITION TO BERNARDS BROS. INC.'S MOTION FOR SUMMARY JUDGMENT

Declaration - DECLARATION DECLARATION OF MIKE BROWN IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT BERNARDS BROS. INC,'S MOTION FOR SUMMARY JUDGMENT

2/10/2020: Declaration - DECLARATION DECLARATION OF MIKE BROWN IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT BERNARDS BROS. INC,'S MOTION FOR SUMMARY JUDGMENT

Declaration - DECLARATION DECLARATION OF CHRISTOPHER J. CAPALBO IN SUPPORT OF PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

2/10/2020: Declaration - DECLARATION DECLARATION OF CHRISTOPHER J. CAPALBO IN SUPPORT OF PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Opposition - OPPOSITION PLAINTIFF'S OPPOSITION FO SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

2/10/2020: Opposition - OPPOSITION PLAINTIFF'S OPPOSITION FO SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

132 More Documents Available

 

Docket Entries

  • 10/27/2021
  • Hearing10/27/2021 at 08:30 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial

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  • 10/13/2021
  • Hearing10/13/2021 at 10:00 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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  • 07/02/2021
  • Docketat 1:30 PM in Department 31, Thomas D. Long, Presiding; Hearing on Motion to Dismiss - Not Held - Vacated by Court

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  • 07/02/2021
  • DocketMinute Order ( (Hearing on Motion to Dismiss)); Filed by Clerk

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  • 06/15/2021
  • DocketNotice of Entry of Dismissal and Proof of Service; Filed by AMERICAN CLAIMS MANAGMENT INC (Plaintiff)

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  • 05/28/2021
  • Docketat 08:30 AM in Department 31, Thomas D. Long, Presiding; Jury Trial - Not Held - Advanced and Continued - by Court

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  • 05/14/2021
  • Docketat 10:00 AM in Department 31, Thomas D. Long, Presiding; Final Status Conference - Held - Continued

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  • 05/14/2021
  • DocketMinute Order ( (FINAL STATUS CONFERENCE)); Filed by Clerk

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  • 05/13/2021
  • DocketRequest for Dismissal (only as to Complaint filed by American Claims Management, Inc.); Filed by AMERICAN CLAIMS MANAGMENT INC (Plaintiff)

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  • 05/07/2021
  • DocketJury Instructions; Filed by Memo's Scaffolding Norwalk, Inc. (Defendant); Excel Plastering, Inc.[Doe 1] (Defendant)

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202 More Docket Entries
  • 02/07/2018
  • DocketCross-Complaint; Filed by Memo's Scaffolding Norwalk, Inc. (Defendant)

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  • 12/27/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 12/27/2017
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 12/27/2017
  • DocketProof-Service/Summons; Filed by AMERICAN CLAIMS MANAGMENT INC (Plaintiff)

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  • 12/27/2017
  • DocketProof of Service (not Summons and Complaint); Filed by AMERICAN CLAIMS MANAGMENT INC (Plaintiff)

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  • 11/21/2017
  • DocketNOTICE OF ACTION PURSUANT TO LABOR CODE SECTION 3853

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  • 11/21/2017
  • DocketNotice; Filed by AMERICAN CLAIMS MANAGMENT INC (Plaintiff)

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  • 10/12/2017
  • DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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  • 10/12/2017
  • DocketSUMMONS

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  • 10/12/2017
  • DocketComplaint; Filed by AMERICAN CLAIMS MANAGMENT INC (Plaintiff)

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Tentative Rulings

Case Number: ****9342 Hearing Date: July 20, 2022 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

AMERICAN CLAIMS MANAGEMENT INC.,

Plaintiff(s),

vs.

MEMO’S SCAFFOLDING NORWALK, ET AL.,

Defendant(s).

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CASE NO: ****9342

[TENTATIVE] ORDER GRANTING MOTION TO VACATE DISMISSAL

Dept. 31

1:30 p.m.

July 20, 2022

1. Background

Plaintiff American Claims Management Inc., for Everest National Insurance Company as real party in interest (“American Claims Management”), filed this action against defendants Memo’s Scaffolding Norwalk, Inc. and Bernard’s Construction Group, Inc. for damages arising out of a workplace accident that injured Jose Luis Guzman. Jose Luiz Guzman (“Guzman”), as plaintiff in intervention, brought claims against Memo’s Scaffolding Norwalk, Inc., Bernard’s Construction Group, Inc., and Selma and Vine North Hollywood LLC for damages arising out of the same accident.

Selma and Vine North Hollywood LLC is the owner of the building that was under construction. Bernards Bros, Inc. (erroneously sued as Bernard’s Construction Group, Inc.) is the general contractor. Excel Plastering, Inc. was Bernard’s subcontractor for stucco work. Excel hired a scaffolding sub-subcontractor, Memo’s Scaffolding Norwalk, and another sub-subcontractor for preliminary lathing, Patriot Exteriors, Inc. Guzman was an employee of Patriot who fell from the scaffolding installed by Memo’s while working on the project. On February 24 and 25, 2020, Selma and Vine North Hollywood LLC’ and Bernards Bros., Inc.’s motions for summary judgment as to American Claims Management’s and Guzman’s complaints were granted. On May 13, 2021, American Claims Management filed a Request for Dismissal as to its complaint only.

On August 3, 2021, Defendants Memo’s Scaffolding Norwalk, Inc. (“Memo’s”) and Excel Plastering, Inc. (“Excel”) (collectively, “Defendants”) filed a motion to dismiss Guzman’s complaint in intervention for failure to prosecute. No opposition was filed, and the motion was granted on September 21, 2021. (Min. Order Sept. 21, 2021.)

At this time, Guzman’s purported successor in interest, Gabriel Guzman (“Gabriel”), moves to set aside the dismissal. Defendants oppose, and Gabriel filed a reply.

Gabriel asserts that the failure to timely substitute in the proper successor in interests and oppose Defendants’ motion to dismiss was due solely to Gabriel’s counsel’s calendaring error. Gabriel provides that Guzman passed away on or about December 24, 2020, and Guzman’s counsel then began trying to locate Guzman’s successor in interest, which allegedly took considerable time. Gabriel requests relief from the dismissal under the mandatory relief provisions of CCP 473.

In opposition, Defendants contend that Guzman’s counsel and Gabriel- the proposed successor in interest- lack standing to bring the present motion. Further, Defendants contend that Gabriel failed to establish the dismissal was the result of mistake, inadvertence, surprise or excusable neglect, and that Gabriel failed to move for relief within a reasonable time after the dismissal.

Gabriel, in reply, avers that he has standing to bring this motion as Guzman’s successor in interest, and that relief is mandatory under CCP 473.

2. Motion to Set Aside Dismissal

a. Request for Judicial Notice

Defendants request the court take judicial notice of 13 Exhibits attached to its request. The Exhibits are all court records, and thus, the request is granted as to all 13 Exhibits pursuant to Evidence Code 452(d).

b. Standing

A dismissal generally divests a trial court of jurisdiction to take further action in a case, but the court retains power to vacate a dismissal under CCP 473. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 254-55; see also Hagan Engineering, Inc. v. Daniel G. Mills (2003) 115 Cal.App.4th 1004, 1007-08 [“The dismissal with prejudice of the lawsuit deprived the superior court of subject matter jurisdiction. Absent a pending lawsuit, a court cannot issue judgments or orders… A superior court thereafter has no subject matter jurisdiction to grant relief other than costs and fees as appropriate. A court may also entertain a motion to vacate on grounds of mistake, excusable neglect and so forth.” (Citations Omitted)].) Notwithstanding this limited retention of jurisdiction, as a general principle, “persons who are not parties to litigation ordinarily cannot be heard in the litigation.” (People v. Martinez (2009) 47 Cal.4th 399, 419, fn. 2.)

Accordingly, whether the court has jurisdiction to act on Gabriel’s motion to set aside dismissal turns on whether he has standing to make the motion.[1]

CCP 473(b) states in pertinent part, “[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect…” (Emphasis added.) Based on section 473's express statutory language, “ ‘[o]nly a party to an action or his legal representative may avail himself of the relief afforded by Code of Civil Procedure section 473.’ ” (O'Dell v. Freightliner Corp. (1992) 10 Cal.App.4th 645, 658.)

In this case, Defendants assert Gabriel has not filed a motion to be appointed Guzman’s successor in interest as required by CCP 377.31, and so Gabriel does not have standing to bring this motion. CCP 377.31 states, “[o]n motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent's personal representative or, if none, by the decedent's successor in interest.” (Emphasis added.) Although Defendants are correct that Gabriel has not filed a motion to be appointed as Guzman’s successor in interest, this action is not currently pending. The September 21, 2021 Order dismissed Guzman’s complaint in intervention, and there were otherwise no claims or crossclaims being asserted by or against Guzman.[2]

Given the dismissal, which deprived this court of subject matter jurisdiction, the court would not have the authority to hear a motion by Gabriel to be appointed as Guzman’s successor in interest without first vacating the dismissal. (See Zamora, 28 Cal.4th at 254-55; see also Hagan Engineering, Inc., 115 Cal.App.4th at 1007-08.) Because the court would not have jurisdiction to hear the motion, it would be a futile act to require Gabriel to first file the motion. Moreover, Defendants do not cite any authority holding that Gabriel is required to file a motion under CCP 377.31 et seq. before filing the instant motion to set aside dismissal.

As Gabriel argues, a nonparty who is the legal representative of a party may move for relief pursuant to CCP 473. “The term ‘legal representative’ has been interpreted with considerable liberality to permit one who would not normally be considered a party's ‘representative’ but has a sufficient interest in the action to maintain the motion. (Cal. Prac. Guide: Civ. Proc. Before Trial Ch. 5-G 5:285, citing Clemmer v. Hartford Ins. Co. (1978) 22 Cal.3d 865, 885, overruled on other grounds by Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 134-35.) “A legal representative has been held to include, among other things, an executor, a successor in interest, and a trustee in bankruptcy.” (O'Dell, 10 Cal.App.4th at 660, citing 8 Witkin, Cal.Procedure (3d ed. 1985) Attack on Judgment in Trial Court, 146, pp. 548–549.)

Gabriel attests that he is Guzman’s eldest child and has been authorized to file this motion and pursue Guzman’s surviving claims. As Guzman’s successor in interest, Gabriel is essentially stepping into Guzman’s shoes to continue this action against Defendants. (See San Diego Gas & Electric Co. v. Superior Court (2007) 146 Cal.App.4th 1545, 1553 [“There is but one survivor cause of action belonging to the decedent that is brought on behalf of the decedent by the decedent's personal representative or successor in interest.”].) Consequently, by acquiring the right to continue pursuing Guzman’s claims as his successor in interest, Gabriel is Guzman’s legal representative within the meaning of CCP 473. (See Credit Managers Assn. v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1171-72 [“Per Curiam.—We think that (grantees) after acquiring the entire interest of the defendant in the subject-matter of this action, were his legal representatives … [ ] Being the legal representative of the defendant the court was authorized upon such terms as might be just to relieve them from a default taken against him, through his mistake, inadvertence, surprise, or excusable neglect.” (Internal quotations omitted)].)

Therefore, Gabriel has standing to file this motion to set aside dismissal as Guzman’s successor in interest.

c. Analysis

CCP 473(b) states in pertinent part: “Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any … dismissal entered against his or her client…” (Emphasis added.)

“To obtain mandatory relief under section 473, plaintiffs' counsel need not show that his or her mistake, inadvertence, surprise or neglect was excusable. No reason need be given for the existence of one of these circumstances. Attestation that one of these reasons existed is sufficient to obtain relief, unless the trial court finds that the dismissal did not occur because of these reasons.” (Graham v. Beers (1994) 30 Cal.App.4th 1656, 1660; accord. Leader v. Health Indus. of America, Inc. (2001) 89 Cal.App.4th 603, 616 [“The range of attorney conduct for which relief can be granted in the mandatory provision is broader than that in the discretionary provision, and includes inexcusable neglect”.].)

In this case, the underlying dismissal was entered on September 21, 2021, and the instant motion was filed on March 18, 2022, which is within six months from the date of the dismissal. Consequently, the motion is timely.

Moreover, Gabriel submits the declaration of his counsel, Lindsay Burton, Esq. (“Burton”), who attests that because of a calendaring error, Burton did not timely substitute in Gabriel as Guzman’s successor in interest and did not oppose Defendants’ underlying motion to dismiss. (Mot. Burton Decl. 18.) Burton further states that after learning of Guzman’s death, Burton began reaching out to family members to determine a proper successor in interest, but there was a delay in getting responses because Guzman’s family members were hospitalized or suffering from Covid-19. (Id. 16.) Given Burton’s declaration, Gabriel’s motion satisfies the requirements of CCP 473(b)’s mandatory provision.

While Defendants contend that Gabriel unreasonably delayed in filing this motion, as analyzed above, the motion was timely filed within six months of the dismissal. Lastly, Defendants cite to CCP 583.410 in arguing that the requested relief would prejudice Defendants. Defendants, however, do not cite any authority holding that a delay in prosecution as set forth in CCP 583.410 can be a basis to deny a motion to set aside a dismissal made under the mandatory provisions of CCP 473(b).[3] Similarly, Defendants do not cite any authority stating that prejudice to Defendants is a factor to consider in granting a motion to set aside a dismissal under the mandatory provision of CCP 473(b).

The court finds Burton’s declaration establishes neglect by counsel in connection with the dismissal entered on September 21, 2021. (Graham, 30 Cal.App.4th at 1660.) The motion is therefore granted. (CCP 473(b).) The action is reinstated. The Court sets a Trial Setting Conference for August 22, 2022 at 8:30 a.m. Gabriel must file a noticed motion to properly be appointed as Guzman’s successor in interest promptly.

Defendants request compensatory legal fees and costs. (CCP 473(b) [“The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” Defendants request legal fees of $3,080. Defendants are awarded four hours total for preparing the opposition and one hour to appear at the hearing all at the reasonable rate of $300 per hour for a total of $1,500 in attorney’s fees. This amount is sought and imposed against Guzman’s attorney of record only. Guzman’s counsel is ordered to pay compensatory legal fees to Defendants, by and through counsel of record, in the total amount of $1,500.00, within twenty days.

Moving party is ordered to give notice.

PLEASE TAKE NOTICE:

Dated this 20th day of July 2022

Hon. Audra Mori

Judge of the Superior Court


[1] Gabriel does not contend that Guzman’s counsel, which is also Gabriel’s counsel, has standing to bring this motion on its own. Furthermore, the court notes that a client's death or incapacity generally terminates the attorney's authority. (See Civ.C. 2356(a)(2), (3); Swartfager v. Wells (1942) 53 Cal.App.2d 522, 527-28 [death of client during action terminating authority of attorney to represent client in that suit].)

[2] Additionally, as noted above, American Claims Management filed a Request for Dismissal as to its complaint on May 13, 2021.

[3] However, CCP 473(b) is clear that this provision does not lengthen the time for an action to be brought to trial pursuant to CCP 583.310.



b"

Case Number: ****9342 Hearing Date: September 21, 2021 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

AMERICAN CLAIMS MANAGEMENT INC.,

Plaintiff(s),

vs.

MEMO’S SCAFFOLDING NORWALK, ET AL.,

Defendant(s).

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CASE NO: ****9342

[TENTATIVE] ORDER GRANTING MOTION TO DISMISS PLAINTIFF-IN-INTERVENTION’S COMPLAINT

Dept. 31

1:30 p.m.

September 21, 2021

1. Background

Plaintiff American Claims Management Inc., for Everest National Insurance Company as real party in interest (“American Claims Management”), filed this action against defendants Memo’s Scaffolding Norwalk, Inc. and Bernard’s Construction Group, Inc. for damages arising out of a workplace accident that injured Jose Luis Guzman. Jose Luiz Guzman (“Guzman”), as plaintiff in intervention, brings claims against Memo’s Scaffolding Norwalk, Inc., Bernard’s Construction Group, Inc., and Selma and Vine North Hollywood LLC for damages arising out of the same accident.

Selma and Vine North Hollywood LLC is the owner of the building that was under construction. Bernards Bros, Inc. (“Bernards”) (erroneously sued as Bernard’s Construction Group, Inc.) is the general contractor. Excel Plastering, Inc. was Bernards’ subcontractor for stucco work. Excel hired a scaffolding sub-subcontractor, Memo’s Scaffolding Norwalk, and another sub-subcontractor for preliminary lathing, Patriot Exteriors, Inc. was an employee of Patriot who fell from the scaffolding installed by Memo’s while working on the project.

On February 24 and 25, 2020, Selma and Vine North Hollywood LLC (“Selma”) and Bernards’ motions for summary judgment as to American Claims Management’s and Guzman’s complaints were granted. On May 13, 2021, American Claims Management filed a Request for Dismissal as to its complaint only.

At this time, Defendants Memo’s Scaffolding Norwalk, Inc. and Excel plastering, Inc. (“Defendants”) move for an order dismissing Guzman’s complaint-in-intervention under CCP ;; 583.410 and 583.420 for failure to prosecute. No opposition has been timely filed.

Moving Defendants assert Guzman has resisted discovery at every turn in this matter delaying Defendants’ ability to obtain crucial discovery and key evidence and witnesses are no longer available. Defendants assert they noticed Guzman’s deposition multiple times, but it was never completed, and Guzman has not served responses to Defendants’ written discovery. Defendants provide Guzman passed away on December 24, 2020, and that while Guzman’s counsel indicated in February 2021 that Guzman had a successor-in-interest, to date, nothing further has been done on this case.

2. Motion to Dismiss

a. Request for Judicial Notice

Defendants request the court take judicial notice of 10 exhibits attached to Defendants’ request. The exhibits are each in the court’s records, and thus, the request is granted pursuant to Evidence Code ; 452(d).

b. Analysis

CCP ; 583.410(a) states: The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case.

In ruling on a motion to dismiss under CCP ; 583.410, the court must consider all matters relevant to a proper determination of the motion, including:

(1) The court's file in the case and the declarations and supporting data submitted by the parties and, where applicable, the availability of the moving party and other essential parties for service of process;

(2) The diligence in seeking to effect service of process;

(3) The extent to which the parties engaged in any settlement negotiations or discussions;

(4) The diligence of the parties in pursuing discovery or other pretrial proceedings, including any extraordinary relief sought by either party;

(5) The nature and complexity of the case;

(6) The law applicable to the case, including the pendency of other litigation under a common set of facts or determinative of the legal or factual issues in the case;

(7) The nature of any extensions of time or other delay attributable to either party;

(8) The condition of the court's calendar and the availability of an earlier trial date if the matter was ready for trial;

(9) Whether the interests of justice are best served by dismissal or trial of the case; and

(10) Any other fact or circumstance relevant to a fair determination of the issue.

(Cal. Rules of Court, Rule 3.1342(e).)

“ ‘The competing considerations to be evaluated are the policies of discouraging stale claims and compelling reasonable diligence balanced against the strong public policy which seeks to dispose of litigation on the merits rather than on procedural grounds.’ [Citation.] ‘However, it is now well established that the policy [of preferring to dispose litigation on the merits] only comes into play when a plaintiff makes a showing of some excusable delay.’ [Citation.]” (Van Keulen v. Cathay Pacific Airways, Ltd. (2008) 162 Cal.App.4th 122, 131.)

Here, this action is nearly four years old, and there is no indication Guzman has conducted any discovery since filing the complaint-in-intervention. Moreover, Defendants’ evidence shows that Guzman’s failure to appear for multiple noticed depositions has deprived Defendants of important evidence, which Defendants can no longer obtain as Guzman is now deceased. (See Fleming v. Gallegos (1994) 23 Cal.App.4th 68, 75-76 [demonstration of actual prejudice to a defendant, although not required for a discretionary dismissal, strengthens the argument for dismissing an action that the plaintiff has not prosecuted with promptness or diligence].) Defendants aver additional key witnesses are now deceased as well. Furthermore, while Guzman’s counsel indicated to Defendants that Guzman had a successor-in-interest as early as February 2021, nothing has been filed concerning a successor-in-interest for Guzman.

Moreover, neither Guzman nor Guzman’s estate has filed any opposition to the motion. “The failure of the opposing party to serve and file a written opposition may be construed by the court as an admission that the motion is meritorious, and the court may grant the motion without a hearing on the merits.” (Cal. Rules of Court, Rule 3.1342(b).) Guzman, therefore, fails to provide any explanation for the delay in prosecuting this action, such that the facts and evidence presented warrant discretionary dismissal of the complaint-in-intervention under CCP ; 583.410 and Cal. Rules of Court, Rule 3.1342(e). The interests of justice are best served by dismissing this action.

Defendants’ motion to dismiss is granted. Guzman’s complaint-in-intervention is dismissed.

Moving Defendants is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Dated this 21st day of September, 2021

Hon. Audra Mori

Judge of the Superior Court

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Case Number: ****9342    Hearing Date: September 09, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

AMERICAN CLAIMS MANAGEMENT INC.,

Plaintiff(s),

vs.

MEMO’S SCAFFOLDING NORWALK, ET AL.,

Defendant(s).

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CASE NO: ****9342

[TENTATIVE] ORDER GRANTING IN PART PLAINTIFF’S MOTION TO STRIKE AND/OR TAX COSTS

Dept. 31

8:30 a.m.

September 9, 2020

  1. Background Facts

    Plaintiff American Claims Management Inc., for Everest National Insurance Company as real party in interest, filed this action against Defendants Memo’s Scaffolding Norwalk, Inc. and Bernard’s Construction Group, Inc. for damages arising out of a workplace accident that injured Jose Luis Guzman. Jose Luiz Guzman, as plaintiff in intervention, brings claims against Memo’s Scaffolding Norwalk, Inc., Bernard’s Construction Group, Inc., and Selma and Vine North Hollywood LLC for damages arising out of the same accident.

    Selma and Vine North Hollywood LLC is the owner of the building under construction. Bernards Bros, Inc. (erroneously sued as Bernard’s Construction Group, Inc.) is the general contractor. Excel Plastering, Inc. was Bernard’s subcontractor for stucco work. Excel hired a scaffolding sub-subcontractor, Memo’s Scaffolding Norwalk, and another sub-subcontractor for preliminary lathing, Patriot Exteriors, Inc. Jose Luiz Guzman was an employee of Patriot who fell from the scaffolding installed by Memo’s while working on the project.

    On 12/27/18, Selma and Vine North Hollywood LLC (“Selma”) and Bernards Bros, Inc. (“Bernards”) (collectively “Defendants”) filed a motion for summary judgment against Guzman, setting it for hearing on 3/19/19. On 4/5/19, Defendants rescheduled the hearing for 6/10/19. On 8/2/19, Defendants and Guzman filed a stipulation to continue the hearing, the trial and all related dates, which was rejected by the Court on 8/9/19. On 8/22/19, the Court heard and granted an ex parte application to continue the trial date and all related dates. On 12/5/19, Defendants re-noticed and re-filed the motion for summary judgment against Guzman, setting it for hearing on 2/25/20. At the hearing on 2/25/20, Defendants Bernards’ and Selma’s motion for summary judgment was granted.

    On 3/6/20, Defendants filed a Memorandum of Costs seeking total costs of $4,058.38 based on $2,191.35 as motion and filing fees, $607.20 as deposition costs, $1,075.00 as court reporter fees, and $184.83 as fees for electronic filing or service. On 3/24/20, Guzman filed the instant motion to strike and/or tax costs. Defendants filed an opposition, and Guzman filed a reply.

    The court originally heard this matter on 8/11/20, and continued it to 9/9/20 to allow defense counsel to file an amended declaration to include missing bills and allow Guzman to file a reply to the amended declaration. Defense counsel filed the supplemental declaration on 8/14/20, and Guzman filed a surreply on 9/1/20.

  2. Motion to Strike and/or Tax Costs

  1. Moving Argument

Guzman requests the court strike the Defendants’ alleged deposition costs, court reporter fees, and fees for electronic filing; however, Guzman does not dispute the costs sought for motion and filing fees. Guzman argues that the deposition costs are not reasonable and were not necessary to the conduct of the litigation. Guzman contends that Defendants do not support the request for $607.20 for deposition travel with any evidence to show the costs were re reasonably incurred. . Further, as to the remaining costs, Guzman asserts that defendants Memo and Excel remain parties in this action and are represented by the same defense counsel as Defendants Bernards and Selma, but that the remaining claimed costs are not apportioned between prevailing Defendants and non-prevailing Memo and Excel. Guzman avers that as a result, Defendants should recover no more than $2,191.35 in costs.

  1. Opposing Argument

Defendants Bernards and Selma provide that an error was made as to the requested deposition costs, and that the correct amount is $200, not $607.20. Defendants, nevertheless, contend that the costs for the depositions at issue involved Bernards’ PMQ and Selma’s PMQ, and that no costs are being sought for any other depositions. The costs claimed are travel costs in driving from Temecula to Los Angeles. Further, Defendants contend that the court reporter fees incurred for the hearings on the motions for summary judgment are expressly recoverable under CCP ; 1033.5.

  1. Supplemental Declaration and Surreply

The supplemental declaration includes Exhibits that were omitted from Bernards’ and Selma’s opposition.

Guzman, in his surreply, asserts the supplemental declaration is still deficient in providing a basis to apportion the costs among prevailing and non-prevailing Defendants represented by the same counsel. In particular, Guzman argues that $625 in court reporter fees should be stricken as they pertain to Bernards’ and Selma’s summary judgment motion against American Claims Management, not Guzman. Further, Guzman asserts Bernards and Selma are seemingly seeking to recover $585 in costs for filing an answer to American Claims Management’s complaint, but Bernards and Selma should not recover costs against Guzman for litigating against an entirely different party. Lastly, Guzman contends the requested travel costs should be stricken in their entirety, or at a minimum, apportioned between prevailing and non-prevailing Defendants.

  1. Analysis

In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. (CCP, ;1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. Of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) Assuming the “prevailing party” requirements are met, the trial court has no discretion to order each party to bear his or her own costs of suit. (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1198; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.)

Allowable costs under CCP Section 1033.5 must be reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation, and must be reasonable in amount. An item not specifically allowable under Section 1033.5(a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if they meet the above requirements (i.e., reasonably necessary and reasonable in amount). If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-774.) On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Ibid.) Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. (Ibid.) However, because the right to costs is governed strictly by statute, a court has no discretion to award costs not statutorily authorized. (Id.) Discretion is abused only when, in its exercise, the court “exceeds the bounds of reason, all of the circumstances being considered.” (Ibid.)

First, as to the travel costs for the subject depositions, travel expenses to attend depositions are authorized by CCP ; 1033.5. (CCP ; 1033.5 (a)(3); Ladas, supra, 19 Cal.App.4th at 775-776.) Guzman contends that the travel costs relating to the depositions should not be awarded because Defendants do not provide any evidence showing the costs were actually incurred or any information, such as the mode of travel, to support the amounts requested. In opposition, Defendants provide that the correct amount being requested is $200, which represent two round trip drives of 200 miles from Temecula to Los Angeles to attend the subject depositions. (Opp. Strong Decl. ; 13.) In its supplemental declaration, defense counsel provides the travel costs claimed were calculated as follows: 200 miles x 2 round trips at $0.50 per mile=$200.00. (Supp. Strong Decl. ; 13, Exh. 5.) Because the costs were incurred in traveling to depositions of Bernards’ and Selma’s person most qualified, the court finds the requested $200 in travel costs was necessary to the litigation and reasonably incurred.

Guzman’s motion to tax costs is granted as to $407.20 of the deposition costs requested in the subject memorandum of costs.

Second, as to the court reporter fees of $1,075.00 and fees for electronic service of $184.83, Guzman argues that because defense counsel represents both prevailing Defendants Bernards and Selman and non-prevailing Memo and Excel, these tasks and costs benefitted all four defendants, and so these costs must be apportioned if possible or taxed in their entirety. Regarding the court reporter fees, Defendants argue that the costs were reasonably incurred by the prevailing Defendants. Defendants assert that the court reporter fees were incurred for the two hearings on the motion for summary judgment. Defense counsel’s supplemental declaration contains the invoices for the court reporting fees for the 2/24/20 and 2/25/20 hearings for which costs are requested. (Supp. Strong Decl. ; 14, Exh. 3.) The court’s records show that the 2/24/20 hearing concerned Bernards’ summary judgment motion against Plaintiff American Claims Management, not Guzman’s. (See Min. Order 2/24/20; see also Defendant Bernards’ Motion for Summary Judgment Filed 12/5/19.) At the 2/24/20 hearing, American Claims Managements’ counsel and Defendants counsel orally agreed to continue that matter to 2/25/20 to be held with the other motions for summary judgment, including Bernards’ and Selma’s motion against Guzman. Bernards and Selma do not provide any reason why they are entitled to costs against Guzman for the court reporter at the 2/24/20 hearing, which concerned only Bernards’ motion against American Claims Management. Consequently, Bernards and Selma fail to show the costs for the 2/24/20 hearing were reasonably necessary to prevailing against Guzman’s claims. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-774.) Guzman’s motion to tax costs, therefore, is granted as to the $625 court reporter fees claimed for 2/24/20.

Regarding the electronic filing fees, Defendants state that the costs incurred were for the following: Court filing fee for Bernards’ Answer to Complaint: $49.95, Court filing fee Selma’s Answer to Complaint in Intervention: $49.95, Court filing fee Bernards’ Answer to Complaint in Intervention: $49.95, Court filing fee MSJ: $11.66, Court filing fee Reply: $11.66, Court filing fee Reply: $11.66. (Supp. Strong Decl. ; 15.) Defense counsel attaches the invoices for the electronic filing fees to its supplemental Declaration. (Ibid. at Exh. 4.) In its surreply, Guzman contends Bernards and Selma should not recover costs against him incurred litigating against another party. While a party who intervenes may be held liable for costs in the same manner as the original parties, an intervenor’s liability is limited to costs incurred while he or she was a party to the action. (Garcia v. Hyster Co. (1994) 28 Cal.App.4th 724, 733.) This liability, however, does not relate back to the filing of the original complaint. (Id.) Thus, the court strikes the $585 requested for filing an Answer to American Claims Management’s complaint, and the associated $49.95 electronic filing fee.

Accordingly, Guzman’s motion to tax costs is granted as to $625.00 claimed for court reporter fees, $585 of the requested motion and filing fees, and $49.95 of the requested electronic filing fees.

  1. Conclusion

Based on the foregoing, Guzman’s motion to tax costs is granted in the total amount of $1,867.03 ($407.20 [travel costs] + $625 [court reporter] + $585 [filing fees] + $49.95 [electronic filing fees].)

Plaintiff in Intervention is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Dated this 9th day of September, 2020

Hon. Thomas D. Long

Judge of the Superior Court



Case Number: ****9342    Hearing Date: August 12, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

AMERICAN CLAIMS MANAGEMENT INC.,

Plaintiff(s),

vs.

MEMO’S SCAFFOLDING NORWALK, ET AL.,

Defendant(s).

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CASE NO: ****9342

[TENTATIVE] ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE AND/OR TAX COSTS

Dept. 31

8:30 a.m.

August 11, 2020

  1. Background Facts

    Plaintiff American Claims Management Inc., for Everest National Insurance Company as real party in interest, filed this action against Defendants Memo’s Scaffolding Norwalk, Inc. and Bernard’s Construction Group, Inc. for damages arising out of a workplace accident that injured Jose Luis Guzman. Jose Luiz Guzman, as plaintiff in intervention, brings claims against Memo’s Scaffolding Norwalk, Inc., Bernard’s Construction Group, Inc., and Selma and Vine North Hollywood LLC for damages arising out of the same accident.

    Selma and Vine North Hollywood LLC is the owner of the building under construction. Bernards Bros, Inc. (erroneously sued as Bernard’s Construction Group, Inc.) is the general contractor. Excel Plastering, Inc. was Bernard’s subcontractor for stucco work. Excel hired a scaffolding sub-subcontractor, Memo’s Scaffolding Norwalk, and another sub-subcontractor for preliminary lathing, Patriot Exteriors, Inc. Jose Luiz Guzman was an employee of Patriot who fell from the scaffolding installed by Memo’s while working on the project.

    On 12/27/18, Selma and Vine North Hollywood LLC (“Selma”) and Bernards Bros, Inc. (“Bernards”) (collectively “Defendants”) filed a motion for summary judgment against Guzman, setting it for hearing on 3/19/19. On 4/5/19, Defendants rescheduled the hearing for 6/10/19. On 8/2/19, Defendants and Guzman filed a stipulation to continue the hearing, the trial and all related dates, which was rejected by the Court on 8/9/19. On 8/22/19, the Court heard and granted an ex parte application to continue the trial date and all related dates. On 12/5/19, Defendants re-noticed and re-filed the motion for summary judgment against Guzman, setting it for hearing on 2/25/20. At the hearing on 2/25/20, Defendants Bernards and Selma’s motion for summary judgment was granted.

    On 3/6/20, Defendants filed a Memorandum of Costs seeking total costs of $4,058.38 based on $2,191.35 as motion and filing fees, $607.20 as deposition costs, $1,075.00 as court reporter fees, and $184.83 as fees for electronic filing or service. On 3/24/20, Guzman filed the instant motion to strike and/or tax costs. Defendants filed an opposition, and Guzman filed a reply. The court rules as follows:

  2. Motion to Strike and/or Tax Costs

  1. Moving Argument

Guzman requests the court strike the Defendants’ alleged deposition costs, court reporter fees, and fees for electronic filing; however, Guzman does not dispute the costs sought for motion and filing fees. Guzman argues that the deposition costs are not reasonable and were necessary to the conduct of the litigation, as the $607.20 requested is for deposition travel, but Defendants do not support that the costs were actually incurred or are reasonable. Further, as to the remaining costs, Guzman asserts that defendants Memo and Excel remain parties in this action and are represented by the same defense counsel as Defendants Bernards and Selma, but that the remaining claimed costs are not apportioned between prevailing Defendants and non-prevailing Memo and Excel. Guzman avers that as a result, Defendants should recover no more than $2,191.35 in costs.

  1. Opposing Argument

Defendants Bernards and Selma provide that an error was made as to the requested deposition costs, and that the correct amount is $200, not $607.20. Defendants, nevertheless, contend that the costs for the depositions at issue involved Bernards’ PMQ and Selma’s PMQ, and that no costs are being sought for any other depositions. The costs claimed are travel costs in driving from Temecula to Los Angeles. Further, Defendants contend that the court reporter fees incurred for the hearings on the motions for summary judgment are expressly recoverable under CCP ; 1033.5.

  1. Analysis

In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. (CCP, ;1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. Of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) Assuming the “prevailing party” requirements are met, the trial court has no discretion to order each party to bear his or her own costs of suit. (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1198; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.)

Allowable costs under CCP Section 1033.5 must be reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation, and must be reasonable in amount. An item not specifically allowable under Section 1033.5(a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if they meet the above requirements (i.e., reasonably necessary and reasonable in amount). If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-774.) On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Ibid.) Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. (Ibid.) However, because the right to costs is governed strictly by statute, a court has no discretion to award costs not statutorily authorized. (Id.) Discretion is abused only when, in its exercise, the court “exceeds the bounds of reason, all of the circumstances being considered.” (Ibid.)

First, as to the travel costs for the subject depositions, travel expenses to attend depositions are authorized by CCP ; 1033.5. (CCP ; 1033.5 (a)(3); Ladas, supra, 19 Cal.App.4th at 775-776.) Guzman contends that the travel costs relating to the depositions should not be awarded because Defendants do not provide any evidence showing the costs were actually incurred or any information, such as the mode of travel, to support the amounts requested. In opposition, Defendants provide that the correct amount being requested is $200, which represent two round trip drives of 200 miles from Temecula to Los Angeles to attend the subject depositions. (Opp. Strong Decl. ; 13.) However, Defendants fail to provide any evidence as to the reasonableness of the travel expenses, how they were calculated, or proof that they were actually incurred. (See Bach v. County of Butte (1989) 215 Cal.App.3d 294, 308 [“Documentation must be submitted only when a party dissatisfied with the costs claimed in the memorandum challenges them by filing a motion to tax costs.”].) Defendants, thus, are not entitled to recover the claimed travel costs related to the depositions.

Guzman’s motion to tax costs is granted as to the deposition costs of $607.20.

Second, as to the court reporter fees of $1,075.00 and fees for electronic service of $184.83, Guzman argues that because defense counsel represents both prevailing Defendants Bernards and Selman and non-prevailing Memo and Excel, these tasks and costs benefitted all four defendants, and so these costs must be apportioned if possible or taxed in their entirety. Regarding the court reporter fees, Defendants argue that the costs were reasonably incurred by the prevailing Defendants. Defendants assert that the court reporter fees were incurred for the two hearings on the motion for summary judgment, and state that they have attached as Exhibit 3 to defense counsel’s declaration a copy of the alleged invoices for the court reporting fees. (Opp. Strong Decl. ; 14.) However, the court is unable to locate an Exhibit 3 to defense counsel’s declaration. The document titled Exhibits to Declaration of David L. Strong is Support of Defendants’ Opposition to Guzman’s Motion to Tax Costs, filed 5/6/20, contains only Exhibits 1 and 2. Consequently, the court is unable to determine that the court reporter fees were reasonably incurred by Defendants. (See Bach, 215 Cal.App.3d at 308.)

Regarding, the electronic filing fees, Defendants state that the costs incurred were for the following: Court filing fee Bernards’ Answer to Complaint: $49.95, Court filing fee Selma’s Answer to Complaint in Intervention: $49.95, Court filing fee Bernards’ Answer to Complaint in Intervention: $49.95, Court filing fee MSJ: $11.66, Court filing fee Reply: $11.66, Court filing fee Reply: $11.66. (Opp. Strong Decl. ; 15.) Defendants state that attached as Exhibit 4 to defense counsel’s declaration are true and correct copies of the invoices for the electronic filing fees. However, again the court is unable to locate an Exhibit 4 to defense counsel’s declaration. Therefore, while the fees are allegedly attributable to Defendants Bernards and Selma, there is no evidence provided so that the court can determine that the fees were in fact reasonably incurred by prevailing Defendants.

Accordingly, Guzman’s motion to tax costs is granted as to the $1,075.00 claimed for court reporter fees, and $184.83 claimed as electronic filing fees.

  1. Conclusion

Based on the foregoing, Guzman’s motion to tax costs is granted in the total amount of $1,867.03.

Plaintiff is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Dated this 11th day of August, 2020

Hon. Thomas D. Long

Judge of the Superior Court



Case Number: ****9342    Hearing Date: August 11, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

AMERICAN CLAIMS MANAGEMENT INC.,

Plaintiff(s),

vs.

MEMO’S SCAFFOLDING NORWALK, ET AL.,

Defendant(s).

)

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)

)

)

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CASE NO: ****9342

[TENTATIVE] ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE AND/OR TAX COSTS

Dept. 31

8:30 a.m.

August 11, 2020

  1. Background Facts

    Plaintiff American Claims Management Inc., for Everest National Insurance Company as real party in interest, filed this action against Defendants Memo’s Scaffolding Norwalk, Inc. and Bernard’s Construction Group, Inc. for damages arising out of a workplace accident that injured Jose Luis Guzman. Jose Luiz Guzman, as plaintiff in intervention, brings claims against Memo’s Scaffolding Norwalk, Inc., Bernard’s Construction Group, Inc., and Selma and Vine North Hollywood LLC for damages arising out of the same accident.

    Selma and Vine North Hollywood LLC is the owner of the building under construction. Bernards Bros, Inc. (erroneously sued as Bernard’s Construction Group, Inc.) is the general contractor. Excel Plastering, Inc. was Bernard’s subcontractor for stucco work. Excel hired a scaffolding sub-subcontractor, Memo’s Scaffolding Norwalk, and another sub-subcontractor for preliminary lathing, Patriot Exteriors, Inc. Jose Luiz Guzman was an employee of Patriot who fell from the scaffolding installed by Memo’s while working on the project.

    On 12/27/18, Selma and Vine North Hollywood LLC (“Selma”) and Bernards Bros, Inc. (“Bernards”) (collectively “Defendants”) filed a motion for summary judgment against Guzman, setting it for hearing on 3/19/19. On 4/5/19, Defendants rescheduled the hearing for 6/10/19. On 8/2/19, Defendants and Guzman filed a stipulation to continue the hearing, the trial and all related dates, which was rejected by the Court on 8/9/19. On 8/22/19, the Court heard and granted an ex parte application to continue the trial date and all related dates. On 12/5/19, Defendants re-noticed and re-filed the motion for summary judgment against Guzman, setting it for hearing on 2/25/20. At the hearing on 2/25/20, Defendants Bernards and Selma’s motion for summary judgment was granted.

    On 3/6/20, Defendants filed a Memorandum of Costs seeking total costs of $4,058.38 based on $2,191.35 as motion and filing fees, $607.20 as deposition costs, $1,075.00 as court reporter fees, and $184.83 as fees for electronic filing or service. On 3/24/20, Guzman filed the instant motion to strike and/or tax costs. Defendants filed an opposition, and Guzman filed a reply. The court rules as follows:

  2. Motion to Strike and/or Tax Costs

  1. Moving Argument

Guzman requests the court strike the Defendants’ alleged deposition costs, court reporter fees, and fees for electronic filing; however, Guzman does not dispute the costs sought for motion and filing fees. Guzman argues that the deposition costs are not reasonable and were necessary to the conduct of the litigation, as the $607.20 requested is for deposition travel, but Defendants do not support that the costs were actually incurred or are reasonable. Further, as to the remaining costs, Guzman asserts that defendants Memo and Excel remain parties in this action and are represented by the same defense counsel as Defendants Bernards and Selma, but that the remaining claimed costs are not apportioned between prevailing Defendants and non-prevailing Memo and Excel. Guzman avers that as a result, Defendants should recover no more than $2,191.35 in costs.

  1. Opposing Argument

Defendants Bernards and Selma provide that an error was made as to the requested deposition costs, and that the correct amount is $200, not $607.20. Defendants, nevertheless, contend that the costs for the depositions at issue involved Bernards’ PMQ and Selma’s PMQ, and that no costs are being sought for any other depositions. The costs claimed are travel costs in driving from Temecula to Los Angeles. Further, Defendants contend that the court reporter fees incurred for the hearings on the motions for summary judgment are expressly recoverable under CCP ; 1033.5.

  1. Analysis

In general, the “prevailing party” is entitled as a matter of right to recover costs for suit in any action or proceeding. (CCP, ;1032(b); Santisas v. Goodin (1998) 17 Cal.4th 599, 606; Scott Co. Of Calif. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) Assuming the “prevailing party” requirements are met, the trial court has no discretion to order each party to bear his or her own costs of suit. (Michell v. Olick (1996) 49 Cal.App.4th 1194, 1198; Nelson v. Anderson (1999) 72 Cal.App.4th 111, 129.)

Allowable costs under CCP Section 1033.5 must be reasonably necessary to the conduct of the litigation, rather than merely convenient or beneficial to its preparation, and must be reasonable in amount. An item not specifically allowable under Section 1033.5(a) nor prohibited under subdivision (b) may nevertheless be recoverable in the discretion of the court if they meet the above requirements (i.e., reasonably necessary and reasonable in amount). If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-774.) On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. (Ibid.) Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. (Ibid.) However, because the right to costs is governed strictly by statute, a court has no discretion to award costs not statutorily authorized. (Id.) Discretion is abused only when, in its exercise, the court “exceeds the bounds of reason, all of the circumstances being considered.” (Ibid.)

First, as to the travel costs for the subject depositions, travel expenses to attend depositions are authorized by CCP ; 1033.5. (CCP ; 1033.5 (a)(3); Ladas, supra, 19 Cal.App.4th at 775-776.) Guzman contends that the travel costs relating to the depositions should not be awarded because Defendants do not provide any evidence showing the costs were actually incurred or any information, such as the mode of travel, to support the amounts requested. In opposition, Defendants provide that the correct amount being requested is $200, which represent two round trip drives of 200 miles from Temecula to Los Angeles to attend the subject depositions. (Opp. Strong Decl. ; 13.) However, Defendants fail to provide any evidence as to the reasonableness of the travel expenses, how they were calculated, or proof that they were actually incurred. (See Bach v. County of Butte (1989) 215 Cal.App.3d 294, 308 [“Documentation must be submitted only when a party dissatisfied with the costs claimed in the memorandum challenges them by filing a motion to tax costs.”].) Defendants, thus, are not entitled to recover the claimed travel costs related to the depositions.

Guzman’s motion to tax costs is granted as to the deposition costs of $607.20.

Second, as to the court reporter fees of $1,075.00 and fees for electronic service of $184.83, Guzman argues that because defense counsel represents both prevailing Defendants Bernards and Selman and non-prevailing Memo and Excel, these tasks and costs benefitted all four defendants, and so these costs must be apportioned if possible or taxed in their entirety. Regarding the court reporter fees, Defendants argue that the costs were reasonably incurred by the prevailing Defendants. Defendants assert that the court reporter fees were incurred for the two hearings on the motion for summary judgment, and state that they have attached as Exhibit 3 to defense counsel’s declaration a copy of the alleged invoices for the court reporting fees. (Opp. Strong Decl. ; 14.) However, the court is unable to locate an Exhibit 3 to defense counsel’s declaration. The document titled Exhibits to Declaration of David L. Strong is Support of Defendants’ Opposition to Guzman’s Motion to Tax Costs, filed 5/6/20, contains only Exhibits 1 and 2. Consequently, the court is unable to determine that the court reporter fees were reasonably incurred by Defendants. (See Bach, 215 Cal.App.3d at 308.)

Regarding, the electronic filing fees, Defendants state that the costs incurred were for the following: Court filing fee Bernards’ Answer to Complaint: $49.95, Court filing fee Selma’s Answer to Complaint in Intervention: $49.95, Court filing fee Bernards’ Answer to Complaint in Intervention: $49.95, Court filing fee MSJ: $11.66, Court filing fee Reply: $11.66, Court filing fee Reply: $11.66. (Opp. Strong Decl. ; 15.) Defendants state that attached as Exhibit 4 to defense counsel’s declaration are true and correct copies of the invoices for the electronic filing fees. However, again the court is unable to locate an Exhibit 4 to defense counsel’s declaration. Therefore, while the fees are allegedly attributable to Defendants Bernards and Selma, there is no evidence provided so that the court can determine that the fees were in fact reasonably incurred by prevailing Defendants.

Accordingly, Guzman’s motion to tax costs is granted as to the $1,075.00 claimed for court reporter fees, and $184.83 claimed as electronic filing fees.

  1. Conclusion

Based on the foregoing, Guzman’s motion to tax costs is granted in the total amount of $1,867.03.

Plaintiff is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Dated this 11th day of August, 2020

Hon. Thomas D. Long

Judge of the Superior Court



Case Number: ****9342    Hearing Date: February 25, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

AMERICAN CLAIMS MANAGEMENT INC.,

Plaintiff(s),

vs.

MEMO’S SCAFFOLDING NORWALK, ET AL.,

Defendant(s).

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CASE NO: ****9342

[TENTATIVE] ORDER

Dept. 31

1:30 p.m.

February 25, 2020

1. Background Facts

Plaintiff American Claims Management Inc., for Everest National Insurance Company as real party in interest, filed this action against Defendants Memo’s Scaffolding Norwalk, Inc. and Bernard’s Construction Group, Inc. for damages arising out of a workplace accident that injured Jose Luis Guzman.  Jose Luiz Guzman, as plaintiff in intervention, brings claims against Memo’s Scaffolding Norwalk, Inc., Bernard’s Construction Group, Inc., and Selma and Vine North Hollywood LLC for damages arising out of the same accident.

Selma and Vine North Hollywood LLC is the owner of the building under construction. Bernards Bros, Inc. (erroneously sued as Bernard’s Construction Group, Inc.) is the general contractor. Excel Plastering, Inc. was Bernard’s subcontractor for stucco work. Excel hired a scaffolding sub-subcontractor, Memo’s Scaffolding Norwalk, and another sub-subcontractor for preliminary lathing, Patriot Exteriors, Inc. Jose Luiz Guzman was an employee of Patriot who fell from the scaffolding installed by Memo’s while working on the project.

2. History of Motion for Summary Judgment/Motion for Leave to Amend

On 12/27/18, Bernards and Selma (“Defendants”) filed a motion for summary judgment against Guzman, setting it for hearing on 3/19/19.  On 4/5/19, Defendants rescheduled the hearing for 6/10/19. On 8/2/19, Defendants and Guzman filed a stipulation to continue the hearing, the trial and all related dates, which was rejected by the Court on 8/9/19. On 8/22/19, the Court heard and granted an ex parte application to continue the trial date and all related dates. On 12/5/19, Defendants re-notice and re-filed the motion for summary judgment against Guzman, setting it for hearing on 2/25/20.

3. Motion for Summary Judgment

a. Parties’ Positions

Defendants move for summary judgment, contending (a) it cannot be liable for the injuries sustained by Guzman, (b) as the hirer of a subcontractor, it cannot be liable as a matter of law for injuries to the subcontractor’s employees per Privette, (c) none of the exceptions to Privette apply because Defendants did not retain control over Guzman’s work or provide Guzman with equipment or affirmatively contribute to Guzman’s accident by providing “safety oversight”.

Guzman opposes the motion.  He argues Privette does not apply because: Selma hired Bernards to ensure the safety of the scaffolding; Bernards set standards for erection and maintenance of the scaffolding; Bernards knew that Memo’s did not itself inspect the scaffolding; Bernards regularly inspected the scaffolding and directed subcontractors to make repairs; and Bernards took the lead role at all times in directing safety on the worksite including by directing Patriot how it wanted work done safely. Therefore, the retained control exception to Privette applies.

Defendants, in reply, contends Selma delegated responsibility for safety to Bernards, which in turn delegated responsibility for daily inspection of the scaffolding to the subcontractors using the scaffolding: Patriot. On the morning of the accident Patriot inspected the scaffolding. Informing a subcontractor of safety concerns with the scaffolding is not retention of control under the recent decision Strouse v. Webcor (2019) 34 Cal.App.5th 703.

b. Improper Citation to Case Under Review

Defendants and Guzman cite to Strouse v. Webcor (2019) 34 Cal.App.5th 703, which is improper under California Rules of Court 8.1105 and 8.1115 because the California Supreme Court has granted review of that case. The Court will not consider Strouse.

c. Evidentiary Objections

Defendants submitted evidentiary objections with their reply papers.  The objections to the Brown Declaration are sustained.

Bernards also submitted new evidence with its reply: the Declaration of John Martinet and its Exhibits A and B. The Court will not consider this new evidence because Guzman had no chance to respond to it. See Regency Outdoor Advertising v. Carolina Lances, Inc. (1995) 31 Cal.App.4th 1323, 1333 (new issues raised for the first time in a reply brief are not properly presented to a trial court and may be disregarded).

d. Privette Rule

“Generally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work.  By hiring an independent contractor, the hirer implicitly delegates to the contractor any tort law duty it owes to the contractor’s employees to ensure the safety of the specific workplace that is the subject of the contract.”  (Brannan v, Lathrop Construction Associates, Inc. (2012) 206 Cal.App.4th 1170, 1175.)  “One of the doctrine’s underpinnings is the availability of workers’ compensation to the injured employee: ‘[W]hen the person injured by negligently performed contracted work is one of the contractor’s own employees, the injury is already compensable under the workers’ compensation scheme and therefore the [law] should provide no tort remedy, for those same injuries, against the person who hired the independent contractor.’” (Id.)  “Thus, subject to certain exceptions, when a general contractor hires a subcontractor, the general contractor is not liable for injuries that occur to the subcontractor’s employees.”  (Id. at 1176.)  This is known as the Privette rule.

Here, Defendants has submitted evidence that Selma hired Bernards as general contractor. (UMF 2.) Bernards, as the general contractor, hired subcontractors. (UMF 3-5; Parks Dec., Ex. A ¶¶ 5-7.) Implicitly, hiring subcontractors itself delegated to the contractor any tort law duties to the contractor’s employees, even though the party hiring the subcontractors was itself a general contractor. (Brannan, supra, 206 Cal.App.4th at pp. 1175-76.) The burden shifts to Guzman to prove an exception to the Privette doctrine applies.

Further, it is undisputed that there was a second layer of subcontractors between Bernards and Guzman’s employer, Patriot. Bernards subcontracted to Excel, which subcontracted to both Memo’s Scaffolding and Patriot. (UMFs 3-5 and Responses thereto.) Accordingly, Guzman must overcome not only the presumption that Bernards delegated tort duties to Excel but also the presumption that Excel delegated tort duties to Patriot. Guzman’s causes of action against Bernards will fail unless he can show one of the Privette exceptions applies to both Bernards and Excel. Guzman’s claims against Selma will fail unless Guzman can show a Privette exception applies to each of Excel, Bernards, and Selma.

e. Privette Exceptions

One of the exceptions concerns the situation in which a hirer knows about a latent hazardous condition.  The Privette rule does not preclude the employee of an independent contractor from suing the hirer/premises owner where (a) the hirer knew or should have known about a latent or concealed pre-existing hazardous condition, (b) the independent contractor did not know and could not have reasonably discovered the hazard, and (c) the hirer failed to warn the independent contractor about the hazard.  (See Kinsman, supra, 37 Cal.4th 659, 664, 675.)

Another exception involves the situation in which a hirer provides unsafe equipment.  The hirer will be “directly liable to an employee of an independent contractor when the hirer’s provision of unsafe equipment affirmatively contributes to the employee’s injury.”  (Brannan, supra, 206 Cal.App.4th at 1176 [citing McKown (2002) 27 Cal.4th 219].)

In addition, there is a “retained control” exception.  “If a hirer entrusts work to an independent contractor, but retains control over safety conditions at a jobsite and then negligently exercises that control in a manner that affirmatively contributes to an employee’s injuries, the hirer is liable for those injuries, based on its own negligent exercise of that retained control.”  (Tverberg (2012) 202 Cal.App.4th 1439, 1446; see also Brannan, supra, 206 Cal.App.4th at 1176 [citing Hooker (2002) 27 Cal.4th 198].)

“Even so, a hirer is not liable to a contractor or a contractor’s employee merely because it retains control over safety conditions. . . .  The imposition of tort liability turns on whether the hirer exercised that retained control in a manner that affirmatively contributed to the injury.”  (Tverberg, supra, 202 Cal.App.4th at 1446.)  “An affirmative contribution may take the form of actively directing a contractor or employee about the manner of performance of the contracted work. . . .  When the employer directs that work to be done by use of a particular mode or otherwise interferes with the means and methods of accomplishing the work, an affirmative contribution occurs. . . .  When the hirer does not fully delegate the task of providing a safe working environment but in some manner actively participates in how the job is done, the hirer may be held liable to the employee if its participation affirmatively contributed to the employee’s injury.” (Id.)

“By contrast, passively permitting an unsafe condition to occur rather than directing it to occur does not constitute affirmative contribution. . . .  The failure to institute specific safety measures is not actionable unless there is some evidence that the hirer or the contractor had agreed to implement these measures. . . .  Thus, the failure to exercise retained control does not constitute an affirmative contribution to any injury.  Such affirmative contribution must be based on negligent exercise of control. . . .  In order for a worker to recover on a retained control theory, the hirer must engage in some active participation.”  (Id.)

However, “if the hirer promises to undertake a particular safety measure, then the hirer's negligent failure to do so should result in liability if such negligence leads to an employee injury.” Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198, 212 fn 3.

Here, Guzman argues only one exception to the Privette rule applies: retained control. Guzman argues Defendants retained control of Guzman’s work for Patriot because (1) Bernards provided Patriot with a scaffold checklist for inspections that included checking for overlapping planks, the condition that caused Guzman’s fall; (2) directed subcontractors to inspect the scaffolding; (3) Bernards regularly inspected the scaffolding and ordered repairs to the scaffolding; (4) Bernards knew the scaffolding subcontractor Memo’s would not inspect the scaffolding. Guzman’s arguments fail as to Selma but raise a triable issue as to Bernards.

Guzman fails to present any evidence that Selma retained any control of Guzman’s work. Guzman’s only evidence involving Selma shows merely that Selma hired Bernards as a general contractor and expected Bernards to run the construction project in a safe manner. Guzman presents zero evidence that Selma had any direct involvement in his work and therefore cannot show Selma affirmatively contributed to Guzman’s injury.

Guzman presents evidence that Bernards retained control of Guzman’s work by directing the inspection and repairs of the scaffolding. Guzman cites deposition testimony from Bernards’s person most knowledgeable stating Bernards provided a scaffold safety checklist to it subcontractors, including Patriot, directing certain measures be taken to ensure the scaffolding was safe before work began each day. (AMF 4.) Further, Bernards knew from experience that the subcontractor who erected the scaffolding would not inspect it. (AMF 2.) On approximately fifty occasions, Bernards ordered that the scaffolding be fixed after its PMK personally inspected the scaffolding and found it unsafe. (AMF 15.) Thus, Guzman has raised a triable issue of whether Bernards retained control of the work Guzman performed on top of the scaffolding by directing the inspection and repair of that scaffolding.

Guzman argues Bernards’s failure to inspect the scaffolding qualifies as Bernards affirmatively contributing to Guzman’s injury. Guzman cites to a footnote in Hooker v. Dept. of Transportation (2002) 27 Cal.4th 198, 212 fn 3, which states “if the hirer promises to undertake a particular safety measure, then the hirer's negligent failure to do so should result in liability if such negligence leads to an employee injury.” This same proposition was applied in Regalado v. Callahan (2016) 3 Cal.App.5th 582, 597, where the court of appeal held a building owner had retained control over safety conditions for a new propane line because the building owner was required to get a safety permit for the new propane line. (Ibid.) The building owner failed to exercise reasonable care when he failed to get the permit and the propane line exploded. (Ibid.) Defendants offer no argument distinguishing the Hooker footnote.

Here, Guzman also presents evidence that Bernards affirmatively contributed the Guzman’s injury by negligently exercising Bernards duty to inspect and direct repairs of the scaffolding. Viewed in the light most favorable to the non-moving party, evidence that Bernards regularly inspected and directed repairs of the scaffolding could carry an implied promise to ensure the safety of the scaffolding by continuing to inspect and direct repairs, particularly when there is evidence that Bernards did so about 50 times. (AMF 15.) Bernards failure to inspect the scaffolding on the day of Guzman’s injury raises a triable issue as to Bernards affirmative contribution to Guzman’s injury. Thus, Guzman has overcome the Privette presumption that Bernards is not liable for injuries to its sub-subcontractor’s employees.

f. Conclusion

Selma’s motion for summary judgment is granted.  Selma has presented unrebutted evidence that it hired subcontractors to perform the work that injured Guzman, creating a presumption that Selma delegated its tort law duties to those subcontractors. Guzman has failed to produce evidence to overcome the presumption, and therefore cannot establish an essential element of its claims against Selma: Selma’s duty to the insured Guzman.

Bernard’s motion for summary judgment is denied. Although Bernards presented evidence that it hired subcontractors to perform the work that injured Guzman, Guzman presented evidence creating a triable issue of fact that Bernards retained control over an aspect of Guzman’s work – inspecting the scaffolding – and Bernards affirmatively contributed to Guzman’s injury by negligently failing to undertake the scaffold inspections and repairs Bernards had promised to undertake.

Defendants ordered to give notice. 

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.



Case Number: ****9342    Hearing Date: February 24, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

AMERICAN CLAIMS MANAGEMENT INC.,

Plaintiff(s),

vs.

MEMO’S SCAFFOLDING NORWALK, ET AL.,

Defendant(s).

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CASE NO: ****9342

[TENTATIVE] ORDER

Dept. 31

1:30 p.m.

February 24, 2020

1. Background Facts

Plaintiff American Claims Management Inc., for Everest National Insurance Company as real party in interest, filed this action against Defendants Memo’s Scaffolding Norwalk, Inc. and Bernard’s Construction Group, Inc. for damages arising out of a workplace accident that injured Jose Luis Guzman.  Jose Luiz Guzman, as plaintiff in intervention, brings claims against Memo’s Scaffolding Norwalk, Inc., Bernard’s Construction Group, Inc., and Selma and Vine North Hollywood LLC for damages arising out of the same accident.

Selma and Vine North Hollywood LLC is the owner of the building under construction. Bernards Bros, Inc. (erroneously sued as Bernard’s Construction Group, Inc.) is the general contractor. Excel Plastering, Inc. was Bernard’s subcontractor for stucco work. Excel hired a scaffolding sub-subcontractor, Memo’s Scaffolding Norwalk, and another sub-subcontractor for preliminary lathing, Patriot Exteriors, Inc. Jose Luiz Guzman was an employee of Patriot who fell from the scaffolding installed by Memo’s while working on the project.

2. History of Motion for Summary Judgment/Motion for Leave to Amend

On 12/27/18, Bernards filed a motion for summary judgment against American Claims, setting it for hearing on 3/21/19.  On 4/5/19, Bernards rescheduled the hearing for 6/11/19. On 8/2/19, Bernards and American filed a stipulation to continue the hearing, the trial and all related dates, which was rejected by the Court on 8/9/19. On 8/22/19, the Court heard and granted an ex parte application to continue the trial date and all related dates. On 12/5/19, Bernards re-notice and re-filed the motion for summary judgment against American Claims, setting it for hearing on 2/24/20.

3. Motion for Summary Judgment

a. Parties’ Positions

Bernards moves for summary judgment, contending (a) it cannot be liable to American Claims or Everest National Insurance Company because it cannot be liable for the injuries sustained by the insured Jose Luis Guzman, (b) as the hirer of a subcontractor, it cannot be liable as a matter of law for injuries to the subcontractor’s employees per Privette, (c) none of the exceptions to Privette apply because Bernards did not retain control over Guzman’s work or provide Guzman with equipment or affirmatively contribute to Guzman’s accident.

American Claims opposes the motion.  It argues jobsite safety was under Bernard’s control because Bernard’s had a statutory duty under Cal/OSHA regulations to maintain a safe worksite as the general contractor in this construction project. It argues (1) Bernards never explicitly or implicitly assigned its safety obligations to any of its subcontractors. Bernards failed in its duty to ensure the scaffolding was safe for Guzman to use, affirmatively contributing to the injury. (2) Bernards as falls within the exception to Privette for retained control over the work by retaining its safety duties and requiring its subcontractor Excel to complete the project according to Bernard’s Prime Contract, plans and specifications.

Bernards, in reply, contends Patriot assumed safety duties for the scaffolding by inspecting it the morning of the accident and Bernards delegated safety responsibilities to its subcontractors. Also, the retained control exception to Privette does not apply because (1) Bernards did not retain control of safety and inspection of the scaffolding and (2) nothing Bernards did or failed to do caused the accident.   

b. Untimely Service of Opposition

Bernards contends American Claims’s opposition should be disregarded because American Claims failed to serve the opposition in a manner reasonably calculated to ensure delivery by the close of the next business day, as required by Code of Civil Procedure section 1005(c). Bernards cites to the Declaration of David Strong for the fact that the opposition was not received until 2/14/2020 when it was due 2/11/2020. However, Bernards failed to file any Declaration of David Strong. Additionally, while the proof of service for American Claims’s opposition shows impermissible service by regular mail, the Court in its discretion will consider the opposition, finding that Bernards is not prejudiced by the late service of the opposition. The issues on this motion for summary judgment are limited and Bernards was able to produce a reply. Further, because the opposition was timely filed electronically with the Court, Bernards could have accessed it by the Court’s website on 2/11/2020. Bernards has made no showing it did not have actual notice of the opposition.

c. Evidentiary Objections

Bernards submitted evidentiary objections with its reply papers.  The objections to the Brown Declaration are sustained.

Bernards also submitted new evidence with its reply: the Declaration of John Martinet and its Exhibits A and B. The Court will not consider this new evidence because American Claims had no chance to respond to it. See Regency Outdoor Advertising v. Carolina Lances, Inc. (1995) 31 Cal.App.4th 1323, 1333 (new issues raised for the first time in a reply brief are not properly presented to a trial court and may be disregarded).

d. Privette Rule

“Generally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work.  By hiring an independent contractor, the hirer implicitly delegates to the contractor any tort law duty it owes to the contractor’s employees to ensure the safety of the specific workplace that is the subject of the contract.”  (Brannan v, Lathrop Construction Associates, Inc. (2012) 206 Cal.App.4th 1170, 1175.)  “One of the doctrine’s underpinnings is the availability of workers’ compensation to the injured employee: ‘[W]hen the person injured by negligently performed contracted work is one of the contractor’s own employees, the injury is already compensable under the workers’ compensation scheme and therefore the [law] should provide no tort remedy, for those same injuries, against the person who hired the independent contractor.’” (Id.)  “Thus, subject to certain exceptions, when a general contractor hires a subcontractor, the general contractor is not liable for injuries that occur to the subcontractor’s employees.”  (Id. at 1176.)  This is known as the Privette rule.

Here, Bernards has submitted evidence that it, as the general contractor, hired subcontractors. (UMF 3-5; Parks Dec., Ex. A ¶¶ 5-7.) Implicitly, hiring subcontractors itself delegated to the contractor any tort law duties to the contractor’s employees, even though the party hiring the subcontractors was itself a general contractor. (Brannan, supra, 206 Cal.App.4th at pp. 1175-76.) The burden shifts to American Claims.

American Claims does not dispute that Bernards hired subcontractors, instead arguing that the presumption should be reversed because Bernards had a statutory duty under Cal/OHSA regulations to be responsible for safety at the jobsite because Bernards was the general contractor. However, American Claims has cited no law holding that Cal/OHSA’s administrative regulations apply to this question of tort law. The case law of the Privette doctrine explicitly states a presumption that a general contractor delegates safety responsibility by hiring subcontractors which contradicts the presumption in Cal/OSHA’s regulations. The Court will follow the law in the binding court of appeals decisions.

Further, it is undisputed that there was a second layer of subcontractors between Bernards and Guzman’s employer, Patriot. Bernards subcontracted to Excel, which subcontracted to both Memo’s Scaffolding and Patriot. (UMFs 3-5 and Responses thereto.) Accordingly, American Claims must overcome not only the presumption that Bernards delegated tort duties to Excel but also the presumption that Excel delegated tort duties to Patriot. American Claims causes of action will fail unless it can show one of the Privette exceptions applies to both Bernards and Excel.

e. Privette Exceptions

One of the exceptions concerns the situation in which a hirer knows about a latent hazardous condition.  The Privette rule does not preclude the employee of an independent contractor from suing the hirer/premises owner where (a) the hirer knew or should have known about a latent or concealed pre-existing hazardous condition, (b) the independent contractor did not know and could not have reasonably discovered the hazard, and (c) the hirer failed to warn the independent contractor about the hazard.  (See Kinsman, supra, 37 Cal.4th 659, 664, 675.)

Another exception involves the situation in which a hirer provides unsafe equipment.  The hirer will be “directly liable to an employee of an independent contractor when the hirer’s provision of unsafe equipment affirmatively contributes to the employee’s injury.”  (Brannan, supra, 206 Cal.App.4th at 1176 [citing McKown (2002) 27 Cal.4th 219].)

In addition, there is a “retained control” exception.  “If a hirer entrusts work to an independent contractor, but retains control over safety conditions at a jobsite and then negligently exercises that control in a manner that affirmatively contributes to an employee’s injuries, the hirer is liable for those injuries, based on its own negligent exercise of that retained control.”  (Tverberg (2012) 202 Cal.App.4th 1439, 1446; see also Brannan, supra, 206 Cal.App.4th at 1176 [citing Hooker (2002) 27 Cal.4th 198].)

“Even so, a hirer is not liable to a contractor or a contractor’s employee merely because it retains control over safety conditions. . . .  The imposition of tort liability turns on whether the hirer exercised that retained control in a manner that affirmatively contributed to the injury.”  (Tverberg, supra, 202 Cal.App.4th at 1446.)  “An affirmative contribution may take the form of actively directing a contractor or employee about the manner of performance of the contracted work. . . .  When the employer directs that work to be done by use of a particular mode or otherwise interferes with the means and methods of accomplishing the work, an affirmative contribution occurs. . . .  When the hirer does not fully delegate the task of providing a safe working environment but in some manner actively participates in how the job is done, the hirer may be held liable to the employee if its participation affirmatively contributed to the employee’s injury.” (Id.)

“By contrast, passively permitting an unsafe condition to occur rather than directing it to occur does not constitute affirmative contribution. . . .  The failure to institute specific safety measures is not actionable unless there is some evidence that the hirer or the contractor had agreed to implement these measures. . . .  Thus, the failure to exercise retained control does not constitute an affirmative contribution to any injury.  Such affirmative contribution must be based on negligent exercise of control. . . .  In order for a worker to recover on a retained control theory, the hirer must engage in some active participation.”  (Id.)

Here, American Claims argues only one exception to the Privette rule applies: retained control. American Claims argues Bernards retained control of Guzman’s work for Patriot because Bernards (1) “retained safety duties tied to the premises”; (2) Bernard’s contract with Excel declared the “work is to be performed in accordance with the Prime Contract and the plans and specifications” and Excel’s “subcontractors will be and are bound by any and all of [the] Prime Contract and Contract Documents insofar as they related in any part or in any way, directly or indirectly to the work covered by this Agreement” (Capalbo Dec. Ex. B, Recitals and ;1); and (3) because Excel retained the supervisory position between its two subcontractors – Memo’s and Patriot – since Excel subcontracted with Memo’s and Patriot separately. American Claims arguments each fail.

American Claims argument that Bernards retained safety duties tied to the premises is based on the same erroneous interpretation of Cal/OHSA regulations discussed above. This argument fails.

American Claims argument that Bernards contract with Excel is unavailing because American Claims fail to cite case law holding a general contractor explicitly retains tort law duties of care by including contract provisions that bind subcontractors to either an architectural plan or the prime contract between the building owner and the general contractor. Given how common such provisions are in construction subcontracts, American Claims’s interpretation would effectively abrogate the Privette rule in every situation. Additionally, this contract language says nothing about control of the work; it merely establishes the common objective in the architectural plan and the common legal duties to the building’s owner in the Prime Contract. Even if the contract language creates a triable issue about retained tort law duties, American still cannot create a triable issue on Bernard’s liability without showing Excel also retained tort law duties for its subcontractor, Patriot, which employed Guzman.

American Claims argument that Excel retained “the supervisory position” between its two subcontractors fails because American Claims cites no case law holding a “supervisory position” has anything to do with the retained control Privette exception and because American Claims presents no evidence from which this Court could find that Excel retained control of Patriot’s work. The only evidence American Claims presents of Excel’s relationship with Patriot or involvement in Patriot’s work is the job bid that Patriot submitted to Excel and a Notice of No Accident-Related Violation After investigation from the Department of Industrial Relations which states Patriot’s part in Guzman’s injury did not violate the California Labor Code or corresponding regulations. (Hart Dec., Exs. A, C.) Both documents say nothing about Excel’s tort law duties or involvement in and control of Patriot’s work.

American Claims also argues that Guzman was an innocent bystander because of his relation to Memo’s Scaffolding and its activities. American Claims cites no law for this innocent bystander argument and the Court finds Guzman’s relation to the scaffolding subcontractor is not at issue because American Claims has presented no evidence that Excel retained control over Memo’s scaffolding work. Alternatively, if American Claims is trying to argue Bernards provided faulty equipment, in the form of the scaffolding, American Claims argument fails because it is undisputed that Memo’s provided and erected the scaffolding at issue. (UMF 4.)

Similarly, American Claims fails to convince the Court that Bernards and Excel created a hazardous condition by requiring Guzman to use the scaffolding set up by Memo’s to reach the second story where Guzman was working. American Claims fails to provide any evidence to establish the three elements of the hazardous condition exception: (a) the hirer knew or should have known about a latent or concealed pre-existing hazardous condition, (b) the independent contractor did not know and could not have reasonably discovered the hazard, and (c) the hirer failed to warn the independent contractor about the hazard.  (See Kinsman, supra, 37 Cal.4th 659, 664, 675.) American Claims offers no evidence that Bernards knew there was a hidden, faulty scaffolding plank that would cause Guzman to fall. American Claims offers no evidence that Patriot could not have reasonably discovered the faulty plank.

Lastly, American Claims’s argument that Bernards affirmatively contributed to Guzman’s injury because Bernards retained control of the subject premises fails for lack of evidence. American Claims does not present a single piece of evidence to show Bernards occupied or controlled the property, failed to delegate tort duties to its subcontractors, or failed to perform safety inspections.

f. Conclusion

Bernards’s motion for summary judgment is granted.  Bernards has presented unrebutted evidence that it hired subcontractors to perform the work that injured Guzman, creating a presumption that Bernards delegated its tort law duties to those subcontractors. American Claims has failed to produce evidence to overcome the presumption, and therefore cannot establish an essential element of its claims against Bernards: Bernards’s duty to the insured Guzman.

Bernards is ordered to give notice. 

Parties who intend to submit on this tentative must send an email to the court at sscdept3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.



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