This case was last updated from Los Angeles County Superior Courts on 07/20/2022 at 16:59:47 (UTC).

AMIRA STRUGANO VS ELIZABETH ROSE QUINN ET AL

Case Summary

On 12/01/2017 AMIRA STRUGANO filed a Personal Injury - Motor Vehicle lawsuit against ELIZABETH ROSE QUINN. This case was filed in Los Angeles County Superior Courts, Glendale Courthouse located in Los Angeles, California. The case status is Other.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4976

  • Filing Date:

    12/01/2017

  • Case Status:

    Other

  • Case Type:

    Personal Injury - Motor Vehicle

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff

STRUGANO AMIRA

Defendants

QUINN ELIZABETH ROSE

A BIRD AND A BEAR ENTERTAINMENT LLC

VIACOM INTERNATIONAL INC. D/B/A VIACOM

KYLES CEDRIC ANTONIO AKA CEDRIC THE ENTERTAINER

SAMJEN PRODUCTIONS DOE 3

HAZY MILLS PRODUCTIONS INC. DOE 2

MARTIN SUZANNA DBA SAMJEN PRODUCTIONS

KING STREET PRODUCTIONS INC. DOE 5

HUDSON STREET PRODUCTIONS INC.

MELNICK JEFF

Attorney/Law Firm Details

Plaintiff Attorneys

MILLER DELANEY L. ESQ.

ROSENSWEIG MITCHELL

SCHWIMER MICHAEL EVAN ESQ.

WEINSTEIN ZEV YONI

Defendant Attorneys

PARMINTER STEVEN ROBERT ESQ.

PEIRIS ASHAN KYLE

ROUSIER SUSAN

SULLIVAN PAUL FRANCIS ESQ.

 

Court Documents

ANSWER OF DEFENDANT HAZY MILLS PRODUCTION, INC. (DOE 2) TO PLAINTIFF?S UNVERIFIED COMPLAINT

2/23/2018: ANSWER OF DEFENDANT HAZY MILLS PRODUCTION, INC. (DOE 2) TO PLAINTIFF?S UNVERIFIED COMPLAINT

NOTICE OF LIEN

2/27/2018: NOTICE OF LIEN

REQUEST FOR ENTRY OF DEFAULT -

3/8/2018: REQUEST FOR ENTRY OF DEFAULT -

REQUEST FOR ENTRY OF DEFAULT -

3/8/2018: REQUEST FOR ENTRY OF DEFAULT -

REQUEST FOR ENTRY OF DEFAULT -

3/8/2018: REQUEST FOR ENTRY OF DEFAULT -

DEFENDANTS VIACOM INTERNATIONAL INC. DBA VIACOM MEDIA NETWORKS AND/OR TV LAND AND KING STREET PRODUCTIONS, INC'S ANSWER TO PLAINTIFF'S COMPLAINT

3/23/2018: DEFENDANTS VIACOM INTERNATIONAL INC. DBA VIACOM MEDIA NETWORKS AND/OR TV LAND AND KING STREET PRODUCTIONS, INC'S ANSWER TO PLAINTIFF'S COMPLAINT

Proof of Service -

4/24/2018: Proof of Service -

Amendment to Complaint (Fictitious/Incorrect Name) -

10/1/2018: Amendment to Complaint (Fictitious/Incorrect Name) -

Amendment to Complaint (Fictitious/Incorrect Name) -

10/1/2018: Amendment to Complaint (Fictitious/Incorrect Name) -

Answer

11/28/2018: Answer

Amendment to Complaint (Fictitious/Incorrect Name)

3/25/2019: Amendment to Complaint (Fictitious/Incorrect Name)

Substitution of Attorney

4/18/2019: Substitution of Attorney

Notice of Ruling

8/6/2019: Notice of Ruling

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO SHORTEN TIME FOR HEARING O...)

8/6/2019: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO SHORTEN TIME FOR HEARING O...)

Ex Parte Application - EX PARTE APPLICATION TO SHORTEN TIME FOR HEARING ON DEFENDANTS' MOTION TO CONTINUE THE TRIAL DATE OR ALTERNATIVELY TO CONTINUE THE TRIAL AND ALL TRIAL RELATED DATES AND DEADLINE

8/6/2019: Ex Parte Application - EX PARTE APPLICATION TO SHORTEN TIME FOR HEARING ON DEFENDANTS' MOTION TO CONTINUE THE TRIAL DATE OR ALTERNATIVELY TO CONTINUE THE TRIAL AND ALL TRIAL RELATED DATES AND DEADLINE

Notice of Ruling - NOTICE OF RULING DEFENDANTS' AMENDED NOTICE OF RULING OF EX PARTE APPLICATION TO CONTINUE THE TRIAL DATE, AND ALL TRIAL RELATED DATES AND DEADLINES

8/9/2019: Notice of Ruling - NOTICE OF RULING DEFENDANTS' AMENDED NOTICE OF RULING OF EX PARTE APPLICATION TO CONTINUE THE TRIAL DATE, AND ALL TRIAL RELATED DATES AND DEADLINES

Memorandum of Points & Authorities

11/21/2019: Memorandum of Points & Authorities

Motion for Summary Judgment

11/21/2019: Motion for Summary Judgment

142 More Documents Available

 

Docket Entries

  • 03/14/2022
  • Docketat 08:30 AM in Department D; Order to Show Cause Re: (Dismissal After Settlement) - Not Held - Vacated by Court

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  • 03/11/2022
  • DocketRequest for Dismissal; Filed by Amira Strugano (Plaintiff)

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  • 01/12/2022
  • Docketat 08:30 AM in Department D; Order to Show Cause Re: (Dismissal After Settlement) - Held - Continued

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  • 01/12/2022
  • DocketMinute Order ( (Order to Show Cause Re: Dismissal After Settlement)); Filed by Clerk

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  • 11/19/2021
  • Docketat 09:00 AM in Department D; Hearing on Motion for Summary Adjudication (or in the alt, for Summary Adjudication filed on behalf of Defendant A Bird and A Bear Entertainment, LLC) - Not Held - Advanced and Vacated

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  • 11/19/2021
  • Docketat 09:00 AM in Department D; Hearing on Motion for Summary Judgment - Not Held - Advanced and Continued - by Court

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  • 11/19/2021
  • Docketat 09:00 AM in Department D; Hearing on Motion for Summary Adjudication (or in the alt, for Summary Adjudication filed on behalf of Defendant Hazy Mills) - Not Held - Advanced and Vacated

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  • 11/15/2021
  • Docketat 09:00 AM in Department D; Jury Trial - Not Held - Advanced and Vacated

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  • 11/04/2021
  • Docketat 09:00 AM in Department D; Final Status Conference - Not Held - Advanced and Vacated

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  • 11/04/2021
  • Docketat 09:00 AM in Department D; Order to Show Cause Re: (Mandatory Settlement Conference) - Not Held - Advanced and Vacated

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229 More Docket Entries
  • 12/15/2017
  • DocketAmendment to Complaint; Filed by Amira Strugano (Plaintiff)

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  • 12/15/2017
  • DocketAmendment to Complaint; Filed by Amira Strugano (Plaintiff)

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  • 12/15/2017
  • DocketAmendment to Complaint; Filed by Amira Strugano (Plaintiff)

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  • 12/15/2017
  • DocketAmendment to Complaint; Filed by Amira Strugano (Plaintiff)

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  • 12/15/2017
  • DocketAmendment to Complaint (Fictitious Name)

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  • 12/15/2017
  • DocketAmendment to Complaint (Fictitious Name)

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  • 12/15/2017
  • DocketAmendment to Complaint (Fictitious Name)

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  • 12/01/2017
  • DocketComplaint

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  • 12/01/2017
  • DocketSummons; Filed by null

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  • 12/01/2017
  • DocketComplaint; Filed by Amira Strugano (Plaintiff)

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Tentative Rulings

b"

Case Number: ****4976 Hearing Date: October 1, 2021 Dept: D

TENTATIVE RULING
Calendar: 16
Date: 10/1/2021
Case Number: ****4976 Trial date: November 15, 2021
Case Name: Strugano v. Quinn, et al.
MOTIONS FOR SUMMARY ADJUDICATION (2)
[CCP ; 437c; CRC 3.1350 et seq.]
Moving Party: Defendant Viacom International Inc.
Defendant King Street Productions Inc.
Responding Party: Plaintiff Amira Strugano
Relief Requested:
Viacom Motion
Summary adjudication as to plaintiff’s allegations of punitive damages in her complaint.
King Street Productions Motion
Summary adjudication as to plaintiff’s allegations of punitive damages in her complaint
Causes of Action from Complaint
1) Negligence
2) Negligence Per Se
SUMMARY OF COMPLAINT:
Plaintiff Amira Strugano alleges that on December 17, 2017, plaintiff was lawfully traveling on Laurel Canyon Boulevard in plaintiff’s motor vehicle when the vehicle was involved in a collision caused by a vehicle operated by defendant Elizabeth Rose Quinn, who drove defendant’s vehicle into oncoming traffic, as a result of which plaintiff was hurt and physically injured and sustained damages. The complaint alleges that at the time of the collision, defendant Quinn was intoxicated and arrested at the scene of the collision and charged with a felony count of driving under the influence of alcohol. The complaint alleges that defendant operated the vehicle in a negligent, reckless and careless manner, and in violation of applicable Vehicle Code sections.
It is also alleged that defendants negligently entrusted the vehicle to the driver and were careless and negligent in that they knew or had reason to know that the driver was an unfit driver and posed a dangerous risk to the public.
The file shows that moving defendant Viacom International, Inc. was added to this action by an Amendment to Complaint filed on December 15, 2017, substituting the true name of defendant Viacom International for the fictitious name of Doe 4. Moving defendant King Street Productions Inc. was added to this action by an Amendment to Complaint filed on December 15, 2017, substituting the true name of defendant King Street Productions for Doe 5.
The motions have been continued several times. Most recently, continuances have been granted to permit plaintiff to conduct further discovery to oppose the motions. The most recent amended opposition does not include in the supporting declaration a request for any further continuance.
ANALYSIS:
Under CCP ; 437c(p)(2) a defendant “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant... has met that burden, the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”
CCP ; 437c(f)(1) provides that “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”
Subdivision (f)(1) provides “a party may move for summary adjudication as to ... one or more claims for damages ... if that party contends ... that there is no merit to a claim for damages as specified in Section 3294 of the Civil Code...”
Defendants here accordingly seek to summarily adjudicate the claim for punitive damages brought by plaintiff pursuant to Civil Code ; 3294. The motions, although filed separately, make very similar arguments.
Civil Code ; 3294 (a) authorizes recovery of punitive damages on the basis of findings that “the defendant has been guilty of oppression, fraud, or malice…” “Oppression” is defined to mean “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” Civil Code ; 3294 (c)(2). “Malice” is defined to mean “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Civil Code ; 3294 (c)(a).
Under Civil Code section 3294, punitive damages may be recovered “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice…”
It is held that “where the plaintiff’s ultimate burden of proof will be by clear and convincing evidence, the higher standard of proof must be taken into account in ruling on a motion for a summary judgment or summary adjudication, since if a plaintiff is to prevail on a claim for punitive damages, it will be necessary that the evidence presented meet the higher evidentiary standard.” American Airlines, Inc. v Sheppard, Mullin, Richter & Hampton (2002, 2nd Dist.) 96 Cal.App.4th 1017, 1049, citation omitted. Accordingly, plaintiff must present evidence on this motion to support a claim for punitive damages against the moving defendants by clear and convincing evidence.
Summary judgment on the issue of punitive damages is proper “when no reasonable jury could find the plaintiff's evidence to be clear and convincing proof of malice, fraud or oppression.” Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App. 4th 1004, 1053, quoting Hoch v. Allied-Signal, Inc., (1994) 24 Cal.App.4th 48, 60–61.
Defendants argue that they are sued as the corporate employers of defendant Quinn at the time of the incident, and that plaintiff will be unable to establish any recognized basis for seeking punitive damages against them.
Civil Code ; 3294(b) requires that a plaintiff seeking punitive damages against a corporate employer must show such wrongful conduct by managing personnel of the corporation:
“(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”
Defendants argue that in this matter, there is no evidence which would meet any of these three bases for finding defendants liable for punitive damages. Defendants argue that there is no evidence that any officer, director, or managing agent of defendants had advance knowledge of any unfitness of Quinn as an employee or employed her with conscious disregard for the rights and safety of others, there is no evidence that any officer, director, or managing agent ratified or authorized Quinn’s conduct of driving while impaired, and there is no evidence showing that an officer, director, or managerial agent of the moving defendants is personally guilty of oppression, fraud or malice.
With respect to the argument that there is no evidence that any officer, director or managing agent had “advance knowledge” of Quinn’s unfitness as an employee or employed her with conscious disregard for the rights and safety of others, Viacom submits evidence that defendant Quinn was at the time of the incident the distributor on its TV Land cable television network of a series entitled, “The Soul Man,” and that Viacom’s wholly owned subsidiary, King Street Productions, engaged production personnel for the series, including Quinn, and that at the time of the incident Quinn was working as a staff writer for the fifth, and ultimately the final, season of the series. [UMF Nos. 4, 5 and evidence cited]. Viacom relies on Quinn’s deposition testimony, in which she testified that there was an event held at the CBS Radford lot where the series was taping, which members of the cast and crew attended. [UMF No. 10, and evidence cited]. Quinn testified that there was a bartender present to serve alcohol to attendees, and that she became intoxicated at the event before driving home, but thought she was capable of driving, so was driving her own vehicle home, when the accident occurred. [UMF Nos. 11-16, and evidence cited]. Quinn testified that she had not did not tell anyone on the series about the incident. [UMF No. 19, and evidence cited: Peiris Decl., Ex. K, Quinn Depo. pp. 133-134]. Viacom submits the declaration of its Manager of Scripted Production for TV Land, Kathy Cruz, who states she is not aware of any company organized or sponsored cast and crew party for the show Soul Man that took place on the date in question, is not aware of the company exercising control over Quinn’s personal activities on that date, including her alcohol consumption or the operation of her vehicle, and also states:
“Before learning of Plaintiff’s complaint, I was not aware that Ms. Quinn had any incidents related to the consumption of alcohol or driving while intoxicated. Nor was I aware of Ms. Quinn consuming alcohol or driving while intoxicated on December 17, 2015.”
[UMF No. 20, and evidence cited; Cruz Decl., paras. 1-3, 6].
Quinn also testified that she had no other issues involving alcohol while working on the series prior to the incident. [UMF No. 17, and evidence cited; Peiris Decl. Ex. K, Quinn Depo. p. 161].
It appears that Quinn was not hired to perform services related to driving a vehicle pursuant to which she would have been improperly hired, but was hired as a writer on a series, and, in any case, defendants have submitted evidence that there were no previous incidents, and that defendants were not aware of any dangerous propensities prior to the incident, and indeed, until long after the incident, when they received notice of this lawsuit.
King Street Productions relies on this same evidence. [UMF Nos. 4, 5, 10-17, 19, 20, and evidence cited].
With respect to the argument that plaintiff cannot show that any officer, director, or managing agent of defendants ratified or otherwise authorized Quinn’s conduct of driving while impaired, both defendants rely on the above evidence to show that plaintiff has no evidence showing that any of the Viacom defendants knew at the time of the event that Quinn became intoxicated at the event or drove while intoxicated after the event. Defendants argue that there is no evidence that Quinn was visibly intoxicated at the event, or that the Viacom defendants knew that Quinn, an adult with no prior incidents on the series, would drive home while intoxicated. Again, defendants rely on the testimony that Quinn told no one about the incident, and the Cruz declaration indicating that moving defendants did not know of the incident until they were served with this lawsuit, years after the series ended, and Quinn was no longer an employee, so that it was not possible for these defendants to have ratified Quinn’s conduct. [UMF Nos. 17, 19, 20, and evidence cited].
This showing is sufficient to establish a lack of authorization or ratification on the part of an appropriate managing agent of defendants.
With respect to the argument that no officer, director or managerial agent of moving defendants is personally guilty of oppression, fraud or malice, defendants argue that directly or indirectly sponsoring an event at which alcohol is available does not constitute “oppression, fraud, or malice,” and is not even a basis for negligence liability on the part of these defendants.
Defendants rely on Civil Code section 1714 provides, in pertinent part:
“(a) Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself. The design, distribution, or marketing of firearms and ammunition is not exempt from the duty to use ordinary care and skill that is required by this section. The extent of liability in these cases is defined by the Title on Compensatory Relief.
(b) It is the intent of the Legislature to abrogate the holdings in cases such as Vesely v. Sager (1971) 5 Cal.3d 153, Bernhard v. Harrah's Club (1976) 16 Cal.3d 313, and Coulter v. Superior Court (1978) 21 Cal.3d 144 and to reinstate the prior judicial interpretation of this section as it relates to proximate cause for injuries incurred as a result of furnishing alcoholic beverages to an intoxicated person, namely that the furnishing of alcoholic beverages is not the proximate cause of injuries resulting from intoxication, but rather the consumption of alcoholic beverages is the proximate cause of injuries inflicted upon another by an intoxicated person.
(c) Except as provided in subdivision (d), no social host who furnishes alcoholic beverages to any person may be held legally accountable for damages suffered by that person, or for injury to the person or property of, or death of, any third person, resulting from the consumption of those beverages.
(d)(1) Nothing in subdivision (c) shall preclude a claim against a parent, guardian, or another adult who knowingly furnishes alcoholic beverages at his or her residence to a person whom he or she knows, or should have known, to be under 21 years of age, in which case, notwithstanding subdivision (b), the furnishing of the alcoholic beverage may be found to be the proximate cause of resulting injuries or death.”
(Emphasis added).
Business & Professions Code section 25602 (b) provides:
“(b) No person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic
beverage pursuant to subdivision (a) of this section shall be civilly liable to any injured person or the estate of such person for injuries inflicted on that person as a result of intoxication by the consumer of such alcoholic beverage.”
Defendants cite DeBolt v. Kragen Auto Supply, Inc. (1986) 182 Cal.App.3d 269, in which the court of appeal affirmed a judgment of dismissal entered after the trial court sustained a demurrer without leave to amend, finding that Civil Code section 1714, as amended in 1978, providing social host immunity, barred an action based on defendant’s alleged furnishing of alcoholic beverages despite allegations that defendant ordered plaintiff to leave the event and failed to provide alternative and safer means of transportation. DeBolt, at 274-275.
In Knighten v. Sam’s Parking Valet (1988) 206 Cal.App.3d 69, the court of appeal held that a restaurant or valet service has no duty to withhold automobiles from intoxicated patrons, despite arguments defendants were in temporary control of the vehicle, and failed to prevent further use by an intoxicated driver, and had previously withheld keys from intoxicated patrons. Knighten, at 74-75.
Defendants have submitted evidence that at the time that defendants are alleged to have supplied alcoholic beverages to plaintiff, she was over the age of 21. [UMF No. 13, and evidence cited]. They argue that plaintiff has established no facts to support a claim for direct liability based on defendant’s conduct, relying instead on general allegations that defendants provided alcoholic beverages for the event, which, even if true, are insufficient to establish personal guilt on the part of defendants as a matter of law.
Defendants further argue that punitive damages fail against these defendants for the separate reason that plaintiff has not identified a culpable director, officer, or managing agent, meaning someone who exercises substantial discretionary authority over significant aspects of a corporation’s business and policy. See CRST, Inc. v. Superior Court (2017, 2nd Dist.) 11 Cal.App. 5th 1255, 1273, citing White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 576-577 (requiring that conduct supporting punitive damages be shown on the part of a corporate employee “with substantial discretionary authority over decisions that ultimately determine company policy,” and that “a plaintiff seeking punitive damages would have to show that the employee exercised substantial authority over significant aspects of a corporation’s business.”). Given the evidence showing no knowledge at all on the part of the corporate witnesses, it appears that plaintiff will be unable to make such a showing.
This showing is sufficient to establish that plaintiff will be unable to establish a claim for punitive damages against the moving defendants. The burden accordingly shifts to plaintiff to raise triable issues of material fact.
Plaintiff in opposition argues that drunk driving has been determined to be conduct that justifies imposing punitive damages under Taylor v. Superior Court (1979) 24 Cal.3d 890, in which the California Supreme Court held:
“One who wilfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.”
Taylor, at 896-897.
Plaintiff argues that it is axiomatic that incentivizing or enabling one’s employees to consume alcohol, knowing that they will become intoxicated and then be operating a motor vehicle exhibits the same disregard for the safety of others. Plaintiff argues that for this reason, there are several cases holding employers liable for the tortious conduct of employees who consume alcohol within the scope of employment.
Plaintiff then cites in a footnote, without discussion, the cases Harris v. Trojan Fireworks (1981) 120 Cal.App.3d 157, Chiders v. Shasta Livestock Auction Yard (1987) 190 Cal.App.3d 792, and McCarty v.
Workers’ Compensation Appeal Board (1974) 12 Cal.3d 677. As argued in the reply, these cases do not support an employer’s vicarious liability for punitive damages based on the employee’s actions. The issue here is not whether the employers may be determined to be negligent or vicariously liable for the subject conduct in this matter, but whether the conduct of the employers displays a sufficient conscious disregard of rights or safety. Harris was a pleading case, not involving punitive damages, and hinged on the allegations that intoxication occurred at a party held during working hours, which the employee was paid to attend. Childers and McCarty also did not involve punitive damages and were based on findings that the employees in each had consumed alcohol in the scope of their employment.
Plaintiff argues that there are disputed material facts between the defendants concerning the incident, as Viacom’s Person Most Qualified regarding the subject incident and Viacom’s policies and procedures for work-sponsored parties, Rebecca Kukkonen, testified that defendant Melnick concealed the subject Christmas Party by mislabeling the cost of the party and splitting up the invoices into multiple payments, and that Viacom did not approve the party, was not aware of it, and would only approve one party per season, the “wrap party.” [Additional Fact Nos. 65-67, and evidence cited]. However, Melnick in his deposition testified that Kukkonen directly approved the Christmas party and budget for the party and that all expenditures were required to be and were signed off by Viacom accounting prior to the party. [Additional Facts No. 69, and evidence cited]. Melnick testified that in addition to weekly taping parties, he was approved to host at least three formal parties a season, and often was asked by Viacom to host additional formal parties to entertain advertisers. [Additional Facts. Nos. 70, 71, and evidence cited]. This dispute in the evidence does not appear to be material, however, as even if the facts as reported by Melnick are true, and there was a series of company sponsored parties, and the Christmas party was company sponsored, this would not establish direct responsibility on the part of the employer for punitive damages, as the provider of alcoholic beverages. There is no evidence showing that the employer intended to disregard rights or safety or employed Quinn’s knowing of her propensity to pose a danger to others. There is no evidence showing that anyone was aware of past problems with Quinn’s drinking, or drinking and driving by Quinn or other employees, and no evidence that on the night in question anyone observed that she was intoxicated. [UMF No. 17, and evidence cited; Quinn Depo. p. 170]. Plaintiff submits evidence confirming that defendants, in fact, had hired a bartender for the party to limit and monitor the service of alcohol. [UMF No. 11, Undisputed; Additional Fact No. 46, and evidence cited].
There is also insufficient evidence submitted to show that Melnick, who supposedly hosted the parties, was a managing agent of the corporation, in a position to influence corporate policy. As noted above, in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, the California Supreme Court required that conduct supporting punitive damages be shown on the part of a corporate employee “with substantial discretionary authority over decisions that ultimately determine company policy,” and that “a plaintiff seeking punitive damages would have to show that the employee exercised substantial authority over significant aspects of the corporation’s business.” White, at 576-577. The Second District has held, “In this context, ‘corporate policy’ refers to, ‘formal policies that affect a substantial portion of the company and that are of the type likely to come to the attention of corporate leadership.’ CRST, Inc., supra, 11 Cal.App.5th at 1273, quotation citations omitted.
Plaintiff here relies on evidence that Melnick oversaw the budget for the Series and was administratively responsible for payment of the expenses of the production crew, without showing how this placed him in a position to influence corporate policy on, for example, the provision of transportation after company events. [See Additional Fact No. 51, and evidence cited]. In fact, plaintiff’s argument that there are triable issues of fact between the defendants rely on evidence that the expenditures made by Melnick had other layers of approval. [See Additional Fact No. 69, 70, and evidence cited; Kukkonen Depo., p. 100; Melnick Depo. Exhibit F, p. 67, 73, 87-88 (no page nos. on transcript)]. Plaintiff does not dispute defendants’ evidence that Melnick did not supervise or control creative work or have personal authority to terminate the Series’ writers. [Response to UMF No. 7, Undisputed].
The cases in which sufficient malice to impose liability for punitive damages on an employer for creating an atmosphere of wrongdoing involve employer awareness of, or participation, in wrongdoing. Defendants rely on Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, in which the court of appeal affirmed a trial court judgment based on a jury verdict awarding punitive damages directly against a law firm in a sexual harassment action involving one of the firm’s partners. The court of appeal found that substantial evidence supported the award against the firm, as there was evidence that managing agents were aware of the partner’s propensity to engage in harassing conduct, even at the time he was hired, that it was commonly known that the partner harassed female employees, but the firm failed to effectively handle the problem, and there was also evidence that persons who complained about the partner’s actions were transferred or were terminated. Weeks, at 1159-1160.
Defendants also rely on Roberts v. Ford Aerospace & Communications Corp. (1990) 224 Cal.App.3d 793, 802, in which the Second District affirmed an award of punitive damages against an employer based on a jury verdict in a wrongful termination action, where the jury found that all defendants, including the employer, affirmatively retaliated against the employee for complaining of racial discrimination, and the court of appeal concluded that the jury could also reasonably find in that case that the corporate consciousness of the employer of discriminatory conduct fostered tolerance of discrimination, and that the employer had ratified the discriminatory conduct of its supervisors, agents and employees. Roberts, at 801-802.
These cases involve evidence and circumstances showing an awareness of wrongdoing, as well as direct participation by the employer in the misconduct, which is not present in this action.
Plaintiff argues that punitive damages can be imposed upon an employer even in cases of non-intentional misconduct. Plaintiff relies on Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, in which the Second District affirmed a judgment entered against the owner of a convenience store with self-service gasoline pumps, which awarded punitive damages. In that case, plaintiff had just finished filling her tank with gasoline from the pumps when she slipped and fell, fracturing her ankle. The court found that the evidence presented at trial was sufficient to support an award of punitive damages, justifying the jury’s finding of malice, as defendant had demonstrated a conscious disregard of the safety of others.
The facts presented to the jury in that case included the following:
- a defective condition on the nozzle of one of the pumps routinely spilled gasoline over the pump apron and over customers
- store employees requested repair of the nozzle many times
- defendant’s district representative was aware of the overflowing nozzle
- there were two incidents prior to plaintiff’s fall, which the manager had reported to his supervisor
- the response of the supervisor was that there was nothing to worry about, as defendant had a team of successful lawyers to deal with slip and fall cases
- in addition to gasoline spills, there was history of oil spills at the area, as customers could purchase oil but no method was provided for them to transfer the oil to their engines, so customers would use makeshift funnels to do so, consistently leaving oil spills.
- defendant gave no training to employees concerning clean up procedures
- there was no consistent clean-up procedure-- the area was hosed down once a week, and sometimes swept, with no use of solvents or provision of cleaning materials for the task
-the lighting was poor
-prior to the accident, two members of the public had fallen, as well as several employees
- when employees placed warning signs on the pumps, supervisors removed them, citing their makeshift nature ruining the store’s image, but refused requests for an official sign.
- when employees began advising patrons over the loudspeaker of the hazards around the pumps, the supervisor ordered that this practice be terminated.
Nolin, at 283-284.
The Second District concluded:
“In the case at bench, we find the evidence amply sufficient to justify the jury’s determination of malice and an award of punitive damages. As Seimon tells us ‘most often this element is proven by circumstantial evidence alone.’ (Seimon, supra, 67 Cal.App.3d 600, 607.) Here, there was considerable evidence, both direct and circumstantial, that a very dangerous condition existed around defendant’s gas pumps; there was dual peril to both customers and employees of fire and slipping and falling.
Defendant’s established inattention to the danger showed a complete lack of concern regarding the harmful potential-- the probability and likelihood of the injury. The entire nature of defendant’s operation, as it was presented to the jury, reflected defendant’s overriding concern for a minimum-expense operation, regardless of the peril involved. This concern was evidenced by the method of deployment of clerks, the absence of maintenance personnel, and the absence of necessary equipment for handling oil sold to customers. The evidence also established that the employees who observed the danger daily communicated it upward to supervisory personnel, but to no avail.”
Nolin, at 288.
Nolin thus presents a case based on a great deal of evidence of misconduct on the part of the premises owner. Nolin was also decided before the most recent amendments to the Civil Code in 1987, which added to the conscious disregard analysis the term “despicable,” so that the standard now reads
“Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of that person’s rights.”
Civil Code section 3294(c)(1) (emphasis added). See Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 332, n.28, in which the Second District points out that Nolin’s discussion of nonintentional conduct as a basis for punitive damages predated this amendment.
There is no evidence here of this type of knowledge of prior problems with Quinn, or any employee, with respect to alcohol usage and driving at employer events, or any direct participation by the employer defendants. There is accordingly insufficient evidence here to impose direct liability for punitive damages on the employer as a provider of the alcohol, particularly in light of the statutory immunity for civil liability.
Plaintiff also argues that there is evidence in this matter that defendants ratified Quinn’s conduct, as, after defendants taking the position throughout this litigation that no one knew about Quinn’s accident until this lawsuit was filed, there have been recently produced e-mails by William Martin to Quinn in which Martin acknowledged that he had learned about Quinn’s accident after the Christmas party, e-mailing the messages, “And what roads are you driving on so I can avoid them?” and “If the TV had been in the car, it might have killed you. His Christmas would’ve been ruined twice.” [Additional Fact No. 85, and evidence cited, Martin Decl., pp. 23, 24, Ex. J]. Martin at his deposition indicated that he and another executive producer, Michael Schiff, had been made aware of the accident, and that Quinn had totaled her car and injured herself in the accident, and would be taking a Lyft and be late to work. [Additional Fact No. 84, and evidence cited]. Plaintiff argues that there is no evidence that defendants, despite knowing about the accident, made any
attempts to investigate the circumstances of the accident, or reprimand Quinn, but, that accommodations were made due to Quinn’s inability to drive to work, and she was invited to attend the next major Soul Man party at which alcohol was served a few months later. [Additional Facts Nos. 86, 87, and evidence cited.].
However, the deposition transcript shows submitted that Martin found out about the accident sometime before December 19, when the e-mails were exchanged, and when asked what he knew during that time period about how the accident took place, Martin responded, “All I knew that I can recall was that she was in an accident, and her car was either totaled or out of commission.” [Martin Depo., p. 27]. Evidently, there was no knowledge that the accident had involved alcohol. At deposition Martin said he was aware that the accident happened following the December 17 Christmas party but was not sure when he realized that. [Martin Depo., p. 28]. Schiff similarly testified that he knew that Quinn had been in an accident, and that her car was wrecked as she would take a Lyft. He testified, “And I didn’t probe about her car wreck because—I don’t know—it just didn’t seem polite. I never—I had assumed it was just a – you know, look, I’ve been in car accidents—A lot of people I know have been in car accidents, so I didn’t want to embarrass her about it. So, all I knew was that the car wasn’t working.” [Schiff Depo., p. 19]. Schiff testified that he and Martin had only learned of the circumstances that Quinn was driving intoxicated after the Christmas party “recently.” [Schiff Depo., p. 21].
It is accordingly not clear that anyone other than Quinn knew that the accident was related to drinking while intoxicated, so that such conduct would not have been ratified by these two employees who knew about a generic car accident and failed to report it or investigate or make a different response.
In addition, such ratification would have to have been on the part of a managing agent, and the evidence plaintiff offers here is that William Martin and Michael Schiff were employees of the moving defendants, executive producers, with creative control of the contents of the show and afforded deference in the hiring of writers. [Additional Facts Nos. 77, 78, and evidence cited]. This evidence does not show any authority over corporate policymaking, or even over the employment of Quinn. Plaintiff has failed to show that clear and convincing proof exists that the corporate employers engaged in conduct constituting malice, fraud, or oppression or that such conduct was ratified by an officer, director or managing agent of the moving defendants. The motions accordingly are granted.
RULING:
CCP 437c(g): Material facts which do or do not create a triable issue of controversy:
Defendant Viacom International Inc.’s Motion for Summary Adjudication is GRANTED.
Civil Code ; 3294(b) requires that a plaintiff seeking punitive damages against a corporate employer must show
such wrongful conduct by managing personnel of the corporation:
“(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”
Defendant has sufficiently established that plaintiff will be unable to establish facts showing that any of the three statutory grounds apply to support a finding that defendant would be liable for punitive damages. Specifically, defendant has submitted evidence showing that there is no evidence that any officer, director, or managing agent of defendant had advance knowledge of any unfitness of defendant Quinn as an employee or employed her with conscious disregard for the rights and safety of others, that there is no evidence that any officer, director, or managing agent ratified or authorized Quinn’s conduct of driving while impaired, and that there is no evidence showing that an officer, director, or managerial agent of the moving defendants is personally guilty of oppression, fraud or malice. [UMF Nos. 4, 5, 10-17, 19, 20, and evidence cited].
In response to this showing, plaintiff has failed to submit evidence which would support a finding by clear and convincing evidence that any officer, director, or managing agent of defendant had advance knowledge of any unfitness of defendant Quinn as an employee or employed her with conscious disregard for the rights and safety of others, or was personally guilty of oppression, fraud or malice. Plaintiff has submitted no evidence to dispute the fact that no one was aware of any problems with defendant Quinn’s drinking and driving in advance of the subject accident, and Quinn has testified that there were none. [UMF No. 17, and evidence cited; Undisputed; Quinn Depo. p. 170]. There is no evidence that anyone was aware that Quinn was intoxicated on the night of the party or intended to drive impaired. [See UMF Nos. 19, 20]. While plaintiff argues that there was a culture of alcohol fueled parties being hosted by defendants, plaintiff has submitted no evidence that there were any previous incidents of employees driving while intoxicated, or cause to take action, which defendants failed to do. Plaintiff at best has argued that there are triable issues of fact with respect to when defendants became aware of the Quinn’s accident, and so potentially ratified Quinn’s intoxicated driving after the fact. Plaintiff relies on deposition testimony and recently produced e-mails, showing that producers William Martin and Michael Schiff learned about Quinn’s accident within two days of its occurrence, and Martin joked with her about it in e-mails. [Additional Fact No. 85, and evidence cited, Martin Decl., pp. 23, 24, Ex. J]. However, a close review of that testimony shows that both Martin and Schiff testified that they did not learn until recently that the accident had involved Quinn driving while intoxicated, so their awareness did not ratify the conduct at issue. [See Martin Depo., pp. 27, 28; Schiff Depo., pp. 19, 21]. In addition, Martin and Schiff were not aware of the nature of the accident during a time period when their conduct could have ratified Quinn’s misconduct. Moreover, plaintiff has failed to sufficiently establish that at the time plaintiff argues certain agents of defendants were hosting parties and serving alcohol or were aware of the accident, those persons were officers, directors or managing agents of defendants with authority over corporate policymaking. Plaintiff has failed to raise triable issues of material fact.
Summary adjudication as to plaintiff’s allegations of punitive damages in her complaint as to moving defendant Viacom International Inc. is entered as requested.
Defendant King Street Productions Inc.’s Motion for Summary Adjudication is GRANTED.
Civil Code ; 3294(b) requires that a plaintiff seeking punitive damages against a corporate employer must show such wrongful conduct by managing personnel of the corporation:
“(b) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”
Defendant has sufficiently established that plaintiff will be unable to establish facts showing that any of the three statutory grounds apply to support a finding that defendant would be liable for punitive damages. Specifically, defendant has submitted evidence showing that there is no evidence that any officer, director, or managing agent of defendant had advance knowledge of any unfitness of defendant Quinn as an employee or employed her with conscious disregard for the rights and safety of others, that there is no evidence that any officer, director, or managing agent ratified or authorized Quinn’s conduct of driving while impaired, and that there is no evidence showing that an officer, director, or managerial agent of the moving defendants is personally guilty of oppression, fraud or malice. [UMF Nos. 4, 5, 10-17, 19, 20, and evidence cited].
In response to this showing, plaintiff has failed to submit evidence which would support a finding by clear and convincing evidence that any officer, director, or managing agent of defendant had advance knowledge of any unfitness of defendant Quinn as an employee or employed her with conscious disregard for the rights and safety of others, or was personally guilty of oppression, fraud or malice. Plaintiff has submitted no evidence to dispute the fact that no one was aware of any problems with defendant Quinn’s drinking and driving in advance of the subject accident, and Quinn has testified that there were none. [UMF No. 17, and evidence cited; Undisputed; Quinn Depo. p. 170]. There is no evidence that anyone was aware that Quinn was intoxicated on the night of the party or intended to drive impaired. [See UMF Nos. 19, 20]. While plaintiff argues that there was a culture of alcohol fueled parties being hosted by defendants, plaintiff has submitted no evidence that there were any previous incidents of employees driving while intoxicated, or cause to take action, which defendants failed to do. Plaintiff at best has argued that there are triable issues of fact with respect to when defendants became aware of the Quinn’s accident, and so potentially ratified Quinn’s intoxicated driving after the fact. Plaintiff relies on deposition testimony and recently produced e-mails, showing that producers William Martin and Michael Schiff learned about Quinn’s accident within two days of its occurrence, and Martin joked with her about it in e-mails. [Additional Fact No. 85, and evidence cited, Martin Decl., pp. 23, 24, Ex. J]. However, a close review of that testimony shows that both Martin and Schiff testified that they did not learn until recently that the accident had involved Quinn driving while intoxicated, so their awareness did not ratify the conduct at issue. [See Martin Depo., pp. 27, 28; Schiff Depo., pp. 19, 21]. In addition, Martin and Schiff were not aware of the nature of the accident during a time period when their conduct could have ratified Quinn’s misconduct. Moreover, plaintiff has failed to sufficiently establish that at the time plaintiff argues certain agents of defendants were hosting parties and serving alcohol or were aware of the accident, those persons were officers, directors or managing agents of defendants with authority over corporate policymaking. Plaintiff has failed to raise triable issues of material fact.
Summary adjudication as to plaintiff’s allegations of punitive damages in her complaint as to moving defendant King Street Productions Inc. is entered as requested.
Defendant Viacom International, Inc. and King Street Productions Inc.’s Supplemental Amended Consolidated Objections to Evidence:
Objections are OVERRULED. The objections appear to be to statements in plaintiff’s separate statement. The Court does not consider statements in a separate statement as evidence in this matter.
GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES
Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect/Microsoft Teams offers audio and video appearance at a cost of $15.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear. Anyone who appears in person for the hearing, regardless of vaccination status, must wear a face mask over both the nose and mouth. If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.
"


b"

Case Number: ****4976 Hearing Date: August 27, 2021 Dept: D

TENTATIVE RULING
Calendar: 15
Date: 8/27/2021
Case Number: ****4976 Trial date: November 15, 2021
Case Name: Strugano v. Quinn, et al.
MOTIONS FOR SUMMARY ADJUDICATION (2)
[CCP ; 437c; CRC 3.1350 et seq.]
Moving Party: Defendant Viacom International Inc.
Defendant King Street Productions Inc.
Responding Party: Plaintiff Amira Strugano
Relief Requested:
Viacom Motion
Summary adjudication as to plaintiff’s allegations of punitive damages in her complaint.
King Street Productions Motion
Summary adjudication as to plaintiff’s allegations of punitive damages in her complaint
Causes of Action from Complaint
1) Negligence
2) Negligence Per Se
SUMMARY OF COMPLAINT:
Plaintiff Amira Strugano alleges that on December 17, 2017, plaintiff was lawfully traveling on Laurel Canyon Boulevard in plaintiff’s motor vehicle when the vehicle was involved in a collision caused by a vehicle operated by defendant Elizabeth Rose Quinn, who drove defendant’s vehicle into oncoming traffic, as a result of which plaintiff was hurt and physically injured and sustained damages. The complaint alleges that at the time of the collision, defendant Quinn was intoxicated and arrested at the scene of the collision and charged with a felony count of driving under the influence of alcohol. The complaint alleges that defendant operated the vehicle in a negligent, reckless and careless manner, and in violation of applicable Vehicle Code sections.
It is also alleged that defendants negligently entrusted the vehicle to the driver and were careless and negligent in that they knew or had reason to know that the driver was an unfit driver and posed a dangerous risk to the public.
The file shows that moving defendant Viacom International, Inc. was added to this action by an Amendment to Complaint filed on December 15, 2017, substituting the true name of defendant Viacom International for the fictitious name of Doe 4. Moving defendant King Street Productions Inc. was added to this action by an Amendment to Complaint filed on December 15, 2017, substituting the true name of defendant King Street Productions for Doe 5.
The motions have been continued several times.
ANALYSIS:
Request for Continuance
The opposition requests that if the court is inclined to grant the motion in any respect, plaintiff be permitted a further continuance to pursue additional evidence to defeat the motion.
The opposition indicates that necessary controverting evidence cannot be presented at this time because in February of 2021, plaintiff identified eight individuals plaintiff needed to depose, that in response counsel for defendants agreed to make all cooperating witnesses available for deposition and to continue the motion date to accommodate those depositions, and that three of those depositions have been conducted. [Rosensweig Decl., paras. 5, 6, 7]. Plaintiff indicates that defendants have agreed to produce four more of the individual witnesses, which are scheduled to occur within the next two weeks, and have not agreed to produce one witness. Plaintiff seeks a further continuance, stating that the testimony of these recently identified individuals is critical to plaintiff’s ability to oppose these motions, as, “[t]hese individuals have knowledge of the drinking culture of Soul Man, as well as the willful failure of the Corporate Defendants to implement procedures to ensure the safety of their employees and the public at large during and after work-sponsored parties.” [Rosensweig Decl., para. 8]. The declaration also states that the individuals, “have further knowledge to rebut the contention of the Corporate Defendants that none of the individuals involved in organizing these inappropriate and dangerous work-sponsored parties were ‘managing agents.’” [Rosensweig Decl., para. 8]. The declaration also indicates that the parties have all been working diligently and in good faith to complete the discovery, but defendants encountered significant difficulty in coordinating the depositions, as many of the deponents are no longer employed with defendants. [Rosensweig Decl., para. 9].
CCP section 437c(h) provides, in pertinent part:
“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just….”
Since the amendment of the summary judgment timelines in 2003, the courts have imposed good faith/diligence requirement on parties seeking continuances. The Second District in Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, set forth the required elements of an affidavit in support of a request for continuance, holding that
“A declaration in support of a request for a continuance under section 437c, subdivision (h) must show:
(1) the facts to be obtained are essential to opposing the motion;
(2) there is reason to believe such facts may exist; and
(3) the reasons why additional time is needed to obtain these facts.”
Cooksey, at 254, citations, internal quotations omitted.
It is recognized that where an appropriate declaration meeting these requirements is submitted, then denial of the motion or grant of the continuance is mandatory. Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 34-35. Where the declaration is not timely submitted, or fails to make the required showing, then whether to grant a continuance is a matter within the trial court’s discretion, and the trial court’s ruling will be reviewed for abuse of discretion. Cooksey, at 254.
In Dee, the Second District found that the trial court’s failure to grant a continuance constituted reversible error, noting:
“ '[A] summary judgment is a drastic measure which deprives the losing party of trial on the merits.' ” (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395 [107 Cal.Rptr.2d 270].) “To mitigate summary judgment's harshness, the statute's drafters included a provision making continuances-which are normally a matter within the broad discretion of trial courts-virtually mandated ....” (Ibid.; Code Civ. Proc., ; 437c, subd. (h).) Where the opposing party submits an adequate affidavit showing that *35 essential facts may exist but cannot be presented timely, the court must either deny summary judgment or grant a continuance. (Frazee v. Seely (2002) 95 Cal.App.4th 627, 633 [115 Cal.Rptr.2d 780].)
Dee, at 34-35.
In Dee, the Second District found that the declaration in support of the request for continuance had explained why a deposition transcript could not be filed within the deadline for opposition, as well as why the admissions in the deposition were essential to plaintiff’s case. The Second District also found that defendant had acted promptly so that the transcript was available for the trial court before the summary judgment hearing. Dee, at 35.
Defendants in the reply argue that the showing submitted by plaintiff in the moving papers fails to meet this statutory standard, and the court should deny this third request to continue these hearings. The argument is that the affidavit submitted in support of the continuance does not identify any specific essential facts which may be discovered, but general topic areas, and that the affidavit does not identify any new factual topical areas that have not already been covered in the depositions taken of multiple other witnesses, let alone what new facts could be discovered.
Plaintiff’s counsel’s declaration was timely filed, and the parties and court had previously recognized that the very same depositions and their status as outstanding justified the discretionary granting of a continuance of the hearing date. While it is not entirely clear that the status of certain individuals as managing agents is critical to the motion, given that the reply is argued in the alternative concerning such status of at least one individual, it would appear that the fact remains that the individuals could provide information concerning the extent of any knowledge on the part of the moving defendants with respect to the grounds upon which punitive damages can be imposed on an employer on a respondeat superior theory.
The showing is not as factually devoid as suggested in the reply, and while it may not necessarily support a mandatory continuance, it is sufficient for this court to exercise its discretion, one final time, to continue the hearing on these motions, particularly given the history of this matter with respect to circumstances related to the Covid-19 pandemic and the challenges of conducting remote discovery, as well as that it appears that defendants are in a position of having to produce witnesses which are no longer employed by defendants, and have evidently scattered since the ending of the Soul Man series. It would be in the interests of all concerned, judicial economy, and the fair resolution of what could be a significant aspect of this matter against the moving defendants, to continue these motions to permit the remaining four depositions to be conducted. Summary adjudication remains a drastic remedy, and the court accordingly exercises its discretion to grant a continuance.
The court will expect the parties to be prepared to set a schedule at the hearing which will ensure that the discovery is concluded by the time of the continued opposition hearing date. The court will also at the hearing continue the hearing dates on the other two outstanding motions for summary adjudication, currently set for hearing on September 17, 2021, which were previously specifically set to follow the instant motions. A new trial date will also be assigned to permit the parties a reasonable opportunity to prepare for trial after the summary adjudication motions are determined.
RULING:
CCP 437c(g): Material facts which do or do not create a triable issue of controversy:
Defendant Viacom International Inc.’s Motion for Summary Adjudication is CONTINUED to ____________.
Defendant King Street Productions Inc.’s Motion for Summary Adjudication is CONTINUED to ____________. (Same date).
The Court finds pursuant to CCP ; 437c (h) and the discretionary authority of the Court, that, based on the Declaration of Mitch Rosensweig submitted in opposition to the motions, the matters are continued to permit limited further discovery of facts essential to justify the opposition.
The Court will expect the parties to be prepared to verify the scheduling of the four outstanding individual depositions. The Court does not find that the opposition justifies a continuance with respect to the one individual deposition to which defendants have not agreed. Plaintiffs shall serve any supplemental opposition fourteen (14) days prior to the newly scheduled hearing. Any reply thereto or other supplemental papers shall be filed within the statutory mandates.
The hearings on the Motion for Summary Adjudication filed on behalf of Defendant Hazy Mills and the Motion for Summary Adjudication filed on behalf of Defendant A Bird and A Bear Entertainment, LLC, currently scheduled for September 17, 2021 are CONTINUED to ________________, a date following the hearings on the motions currently scheduled for this date.
The Court also expects the parties to be prepared at the hearing to schedule a new trial date.
GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES
Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect/Microsoft Teams offers audio and video appearance at a cost of $15.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear. Anyone who appears in person for the hearing, regardless of vaccination status, must wear a face mask over both the nose and mouth. If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.
"


Case Number: ****4976    Hearing Date: March 05, 2021    Dept: D


Case Number: EC067094    Hearing Date: March 05, 2021    Dept: D

TENTATIVE RULING
Calendar:    13
Date:         3/5/21
Case No:    EC067094 Trial Date:   October 18, 2021
Case Name: Lu, et al. v. Lu, et al.
MOTIONS TO COMPEL FURTHER RESPONSES TO DISCOVERY (3)
Moving Party: Defendant Jam Lu   
Responding Party: Plaintiff Frederick Yu 
Plaintiff Megan Way Mun Wong  
RELIEF REQUESTED:
Further Responses to Special Interrogatories, Set Two from Frederick Wu
Further Responses to Request for Admissions, Set Three from each plaintiff  
MONETARY SANCTION
 Notice stating person/party/counsel against
 whom sanction being sought: Plaintiff and counsel     
 Notice stating amount sought: $940, each of 3 motions  
  
Declaration supporting amount sought:
5 hours preparing moving papers/3 motions  
3 hours preparing replies / 3 motions @ $330 per hour 
Filing fees = $60
TOTAL= $960 for each of three motions       
 
 Points & authorities supporting sanction:   yes  
CHRONOLOGY
Date Discovery served: October 28, 2020
Date Responses served: November 30, 2020, elect.
Date Motion served:  January 14, 2021 timely     
Meet and Confer? Ok, Para. 8  
FACTUAL BACKGROUND: 
Plaintiffs Frederick Yu and Megan Way Mun Wong allege that in June of 2009, upon the death of the father of defendant Jam Lu, plaintiff Yu discussed purchasing real property located in Monterey Park, held by a family trust of which defendant Lillian Lu, Jam Lu’s wife, and her siblings, were the named beneficiaries.   The beneficiaries agreed to sell the property to defendants Jam and Lillian, and it was suggested to plaintiff Yu that the parties, Yu and Lillian Lu and Jam Lu, create a partnership to purchase, renovate and sell the property.  The parties entered into such an agreement, and further agreed to put title to the property into the name of defendant Kathy Lu, the daughter of defendants Lillian Lu and Jam Lu, to claim an incentive from the government for first time home buyers.  
Plaintiffs allege that plaintiff Yu expended efforts to renovate the property, and to obtain renters for the property, and that eventually the parties agreed to open an investment account with the rental proceeds, to invest and make a profit, but that Lillian Yu has withdrawn all funds from the account, and defendants have failed to honor the partnership agreement.  It is also alleged that defendant Kathy Lu executed two short form deeds of trust and assignment of rents to plaintiff Megan Wong in the amount of $150,000 and promissory notes secured by the deeds.  Plaintiffs allege that they have collected nothing in connection with the partnership agreement such as net rent income and renovation costs, and Megan has not received any payments toward her notes. 
 
It is also alleged that defendants misrepresented to plaintiffs that they would abide by the partnership agreement, to induce plaintiffs to enter the agreement and provide funds to purchase the property, and that plaintiff Wong is entitled to enforce her security interest against the property by judicial foreclosure.  
Defendant Kathy Lu has filed a cross-complaint against Yu and Wong, alleging that in September 2009, when Lu and her parents desired to purchase property in Monterey Park, cross-defendants Yu and Wong agreed to loan her $100,000 for the purchase price of the property, and demanded interest for repayment in the total sum of $150,000, and required Lu to execute a promissory note and deed of trust for the same.  The cross-complaint alleges that by the very terms of the Note, the interest rate being charged exceeds the maximum rate allowed by the California Constitution, and is usurious, entitling cross-complainant to recover treble the amount of interest paid, damages, and attorneys’ fees. 
ANALYSIS:
Interrogatories 
Under CCP ; 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action...if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”  The section specifically provides that “Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action,” and that discovery may be obtained “of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition and location of any document, electronically stored information, tangible thing, or land or other property.”
CCP ; 2030.300(a) provides that if the party propounding interrogatories deems that an objection “is without merit or too general” or that “an answer to a particular interrogatory is evasive or incomplete”,   “the propounding party may move for an order compelling a further response...”
If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully respond to discovery.  Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.  The granting or denial of a motion to compel is in the discretion of the trial court.  Coy, at 221-222.   A court should generally consider the following factors:
The relationship of the information sought to the issues framed in the pleadings;
The likelihood that disclosure will be of practical benefit to the party seeking discovery;
The burden or expense likely to be encountered by the responding party in furnishing the information sought.
Columbia Broadcast System, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 19.
The motion as to Special Interrogatories is directed to plaintiff Frederick Yu, and concerns one Special Interrogatory, No. 96. 
This interrogatory requests, “For each and every date YOU IDENTIFIED in YOUR response to Special Interrogatory No. 95, state in detail the contents of each communication or correspondence.”  
The response are objections that the request calls for information that is irrelevant, is compound as phrased, and subject to the objections, the response states, “Responding Party’s communications with Daniel Kwoh were as follows:  (1) to advise him that my counsel would like to speak with him regarding this matter; and (2) to discuss what he told my counsel.”  
As an initial matter, the separate statement is incomplete, as it does not set forth Special Interrogatory No. 95 or the response referenced.  
CRC Rule 3.1345(c) requires that a separate statement “must be full and complete so that no person is required to review any other document in order to determine the full request and the full response.”  The rule requires the statement “must include” for each discovery request to which a further response is requested, the text of the request, the text of each response or further response, and “(5) If the response to a particular discovery request is dependent on the response given to another discovery request,…the other request and the response to it must be set forth.”    
Here, the separate statement does not include the request and response on which Special Interrogatory No. 96 is dependent.
However, the interrogatories and responses were themselves provided with the moving papers, and the Court has reluctantly reviewed these other documents. Interrogatory No. 95 requests the identification of all dates on which plaintiff Yu communicated or corresponded with Dr. Daniel Kwoh, identified in paragraph 43 of the FAC “as it RELATES to this action from 2017 to present.”  The response is the same set of objections, and a response that, “Responding Party communicated with Daniel Kwoh regarding this litigation on two occasions, the dates of which I do not recall, but they were either late 2019 or early 2020.”
Defendant argues that Dr. Kwoh was a mutual friend of the parties who, pre-litigation, acted as a mediator for purposes of trying to settle the matter for the parties, which mediation was not successful and this lawsuit was filed.  Defendant argues that Dr. Kwoh is a potential witness in this action, that plaintiff admits that he communicated with him on two occasions, and that the response that the communication was to discuss what Dr. Kwoh told plaintiff’s counsel is evasive.  Defendant argues that defendant is entitled to know what was discussed, and what the witness said during these communications, and that prior to this motion being filed, during meet and confer, plaintiff’s counsel said he would check with his client to ensure nothing more was said between plaintiff and the witness, suggesting there was not the appropriate level of diligence prior to the responses being served.
  
Under CCP ; 2030.220:
“(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.”
Plaintiff Yu in opposition argues that the willingness of counsel to check again does not constitute an admission that plaintiff’s counsel was not diligent, and that, in any case, plaintiff’s counsel did speak to plaintiff after meeting and conferring, and confirmed that Dr. Kwoh stated only that he had spoken to plaintiff’s counsel and that the remainder of the conversation revolved around COVID-19, with no details of the discussion between Dr. Kwoh and plaintiff’s counsel.  Plaintiff argues that there is accordingly nothing to supplement.  Plaintiff also argues that defendant has known of the existence of Dr. Kwoh as a witness since before litigation commenced, and has more than three years to interview or depose him to gain the information sought.  
The opposition makes no attempt to justify the objections, so the court will order that a further response be served without objection.  It is also not clear why plaintiff, if he recalls that there was a communication “to discuss what he told my counsel,” plaintiff cannot provide details of what was said during this discussion related to this lawsuit.  It seems unlikely that a discussion about what Dr. Kwoh told plaintiff’s counsel would involve only a discussion of COVID-19.  Plaintiff accordingly is ordered to serve a further response, without objections, and which provides all the information plaintiff recalls concerning the second communication as it relates to this action.  
Requests for Admissions
There are two motions brought here—one against plaintiff Yu and one against plaintiff Wong, which seek further responses to the same three RFAs, Requests Nos. 34, 39, and 40. 
The RFAs, responses, motions and oppositions are substantially identical with respect to this set of discovery as to each plaintiff. 
Under CCP Section 2033.290:
“(a) On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply:
(1) An answer to a particular request is evasive or incomplete.
(2) An objection to a particular request is without merit or too general.”  
RFA No. 34 
These requests ask that plaintiffs admit that, “YOU are a creditor of Defendant Kathy Lu.” 
The responses are objections that the request calls for a legal conclusion and is vague and ambiguous as to the definition of “creditor,” and that subject to such objections, “Admit that he/she is a person to whom an obligation is owed by Kathy Lu.” 
Defendant argues that the objections are unfounded as a request may seek a legal conclusion, and that the responses are not unequivocal admissions, but do not properly admit in part or deny in part the Requests.   
Under CCP ; 2033.220(b):
“(b) Each answer shall:
 (1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party.
(2) Deny so much of the matter involved in the request as is untrue.
 (3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge.”
Because the language of CCP ; 2033.220(b) is so broad and permits the qualification of response by a responding party, it is held that it is not proper ground for objection that a request for admission is vague or “ambiguous,” unless it is so ambiguous that the responding party cannot in good faith make an intelligent reply.  See Cembrook v. Superior Court (1961) 56 Cal.2d 423, 428-430.  
The opposition argues that these responses are essentially unequivocal admissions, as they correctly observe that the terms “creditor” is not defined, and answer the inquiry based on the definition of “creditor,” in the Civil Code, that is, “one in whose favor an obligation exists, by reason of which he is, or may become, entitled to the payment of money.”   Civil Code section 3430.  
The opposition does not attempt to justify the objections, and it is not clear why plaintiffs did not simply admit that plaintiffs are creditors as that term is defined in Civil Code section 3430, as the responses were easily explained in the opposition.  Further responses, without objection, and which fully comply with the Code are ordered to be served. 
Request No. 39
These RFAs request that plaintiffs each admit that defendant Kathy Lu owes each plaintiff “$150,000 plus interests as stated in the Promissory Note attached as Exhibit 4 to YOUR Verified First Amended Complaint.”  
The response are that the requests call for a legal conclusion, expert opinion and the document speaks for itself.  The responses are then that, “Responding Party admits that Kathy Lu, along with the other defendants, owe Plaintiff no less than $150,000 plus interest on the Promissory Note.  Responding Party denies, however, that this is the exclusive sum owed.”  
Again, the objections are not justified in the opposition, and do not appear appropriate. Further responses, without objection, will accordingly be ordered to be served.  
Plaintiffs argue that a denial of a request must be unequivocal, but that is not what the statute appears to require, as it permits qualification in the responses, which appears to be what is done here by denying that this is the exclusive sum owed.  The oppositions explain that the responses are truthful and not evasive, as it has been plaintiffs’ position throughout this lawsuit that plaintiffs were part of a partnership, and are therefore entitled to half the value of the real property, so that it if the Court finds a partnership exists, the amount owed would not be limited to $150,000.   This appears to be a prudent response, appropriately explained.   The Court orders further responses, without objection, to be served, but does not require further substantive changes to the responses. 
Request No. 40
These RFAs seek that each plaintiff, “Admit that Defendant Kathy Lu must issue a payment of all unpaid principle balance and interest” to each plaintiff, “when the PROPERTY is sold” pursuant to the Promissory Note attached to the FAC.  
The responses make the same objections that these call for a legal conclusion, expert opinion and the document speaks for itself, and that, Responding Party admits in part and denied in part, and again states, “Responding Party admits that Kathy Lu, along with the other defendants, owe Plaintiff no less than $150,000 plus interest on the Promissory Note.  Responding Party denies, however, that this is the exclusive sum owed.”  
Again, the objections are not justified, and further responses without objections are ordered to be served.   The responses also do not appear to respond to the gist of the question, which is not about how much is owed, but when the payment must be issued, essentially, when the property is sold.   The responses are not responsive to the admission sought, and plaintiffs are ordered to serve further responses, without objections, which address the actual request for admission propounded. 
Sanctions 
This leaves the issue of sanctions, which are sought by both sides.  
CCP ; 2030.300 (d) provides that the court “shall impose a monetary sanction...against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  Similar provisions apply to requests for admissions.  CCP ; 2033.290 (d).
  
Under CCP ; 2023.010, misuse of the discovery process includes “(e) Making, without substantial justification, an unmeritorious objection to discovery”; and “(f) Making an evasive response to discovery.”  Where there has been a misuse of the discovery process, under Section 2023.030(a), the court “may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” 
The burden is on the party subject to sanctions to show substantial justification or injustice.  Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1436.  
In this case, plaintiffs have made evasive responses to discovery, interposed objections plaintiffs have failed to justify, and have made these motions necessary. 
The Court accordingly awards sanctions in favor of the moving party.  The sanctions sought are $940 for each of three motions, which do not appear unreasonable, although, as noted above, the two RFAs motions were likely very efficiently cut and pasted from each other.  Hence, the sanctions are adjusted accordingly as follows: $858.00 for the motion to compel interrogatories, $858.00 for the first motion to compel RFAs and $495.00 for the second motion to compel RFAs, since it is duplicative of the first motion to compel RFAs with an attorney rate of $300.00 per hour for all motions.
RULING:
Defendant Jam Lu’s Motion to Compel Further Responses to Special Interrogatories, Set Two is reluctantly considered by the Court despite the submission by defendant in support of the motion of a Separate Statement which is not complete.   CRC Rule 3.1345(c) provides that a separate statement is a “separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue.”   This separate statement “must include” for each discovery request to which a further response is requested, the text of the request, the text of each response or further response, and “(5) If the response to a particular discovery request is dependent on the response given to another discovery request,…the other request and the response to it must be set forth.”    Here, the response at issue includes references to other responses, Special Interrogatory No. 95, but the text of that request, and, more importantly, the response to it, are not set forth.   The subdivision further states that “The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response.”  The Court has greatly inconvenienced by this omission, and defendant is cautioned that further motions must provide all matter required to understand the discovery request and response.   
Motion is GRANTED. 
Plaintiff Frederick Yu is ordered to serve a further complete response to Special Interrogatory No. 96, without objection, which provides all information requested, including the specific content of the second communication between the parties.   
Plaintiff has failed in the opposition to justify the objections asserted, and the Court has considered the asserted objections and finds they are without merit, and therefore overrules all objections, so that the further response is to be served without objections.  
Further response to be served within ten days. 
Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $858.00 (2.6 hours @ $330/hour) (8/3; 2- 2/3) plus costs of $60 filing fee [Amount Requested $940], which sum is to be awarded in favor of defendant Jam Lu and against plaintiff Frederick Yu, payable within 30 days. CCP ;; 2030.300(c), 2023.010 (e) and (f), and 2023.030(a).
Monetary sanctions requested in the opposition are DENIED.
Defendant Jam Lu’s Motion to Compel Further Responses to Requests for Admissions, Set Three, from Plaintiff Frederick Yu is GRANTED. 
Plaintiff Frederick Yu is ordered to serve further complete verified responses, which provide all information requested, and which fully comply with the Code as to Requests No. 34 and 40.  The response to Request No. 40 is to answer the Request propounded, in essence, concerning the due date for payment, not the amount due, which is not mentioned in the request, so that the current response is not responsive.  The Court has considered the asserted objections and finds they are not justified in the opposition, and are without merit, and therefore overrules all objections, so that further responses are to be served without objections. 
As to Request No. 39, a further response, without objection, is also ordered to be served, but no substantive supplemental response is required. 
Further responses to be served within ten days. 
Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $858.00 (2.6 hours @ $330/hour) (8/3; 2- 2/3) plus costs of $60 filing fee [Amount Requested $940], which sum is to be awarded in favor of defendant Jam Lu and against plaintiff Frederick Yu, payable within 30 days.   CCP sections 2033.290 (d), 2023.010(e) and (f), 2023.030(a).
Monetary sanctions requested in the opposition are DENIED.
Defendant Jam Lu’s Motion to Compel Further Responses to Requests for Admissions, Set Three, from Plaintiff Megan Way Mun Wong is GRANTED. 
Plaintiff Megan Way Mun Wong is ordered to serve further complete verified responses, which provide all information requested, and which fully comply with the Code as to Requests No. 34 and 40.  The response to Request No. 40 is to answer the Request propounded, in essence, concerning the due date for payment, not the amount due, which is not mentioned in the request, so that the current response is not responsive.  The Court has considered the asserted objections and finds they are not justified in the opposition, and are without merit, and therefore overrules all objections, so that further responses are to be served without objections. 
As to Request No. 39, a further response, without objection, is also ordered to be served, but no substantive supplemental response is required. 
Further responses to be served within ten days. 
Monetary sanctions requested by moving party: Utilizing a lodestar approach, and in view of the totality of the circumstances, the Court finds that the total and reasonable amount of attorney’s fees and costs incurred for the work performed in connection with the pending motion is $495.00 (1.6 hours @ $330/hour) (8/3; 2- 2/3) plus costs of $60 filing fee [Amount Requested $940], which sum is to be awarded in favor of defendant Jam Lu and against plaintiff Megan Way Mun Wong, payable within 30 days.   CCP sections 2033.290 (d), 2023.010(e) and (f), 2023.030(a).
Monetary sanctions requested in the opposition are DENIED.
GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES 
Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance.  Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00.   Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court.  Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff.  If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative. 


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