This case was last updated from Los Angeles County Superior Courts on 12/01/2022 at 15:38:45 (UTC).

ARMANDO JAPA CABANLIT ET AL VS CON-WAY FREIGHT INC ET AL

Case Summary

On 04/04/2017 ARMANDO JAPA CABANLIT filed a Personal Injury - Motor Vehicle lawsuit against CON-WAY FREIGHT INC. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judges overseeing this case are AUDRA MORI, JILL FEENEY, JON R. TAKASUGI, THOMAS D. LONG and DAVID S. CUNNINGHAM III. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6364

  • Filing Date:

    04/04/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Motor Vehicle

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

AUDRA MORI

JILL FEENEY

JON R. TAKASUGI

THOMAS D. LONG

DAVID S. CUNNINGHAM III

 

Party Details

Plaintiff

CABANLIT ARMANDO JAPA

Petitioner

NATHALI PATRICIA

Defendants

CON-WAY FREIGHT INCORPORATION

HERNANDEZ JOSE NUNEZ

XPO LOGISTICS FREIGHT

RAMIREZ MARIO

Cross Plaintiffs and Defendants

HERNANDEZ JOSE NUNEZ

XPO LOGISTICS FREIGHT

Cross Defendants and Defendants

RAMIREZ MARIO

UNION PACIFIC RAILROAD COMPANY A DELAWARE CORPORATION

CALIFORNIA DEPARTMENT OF TRANSPORTATION CALTRANS

CITY OF INDUSTRY

Attorney/Law Firm Details

Plaintiff Attorneys

HOMAMPOUR ARASH

FRANCISCO RHETT T. ESQ.

ADAMS THOMAS GREGORY ESQ.

Cross Plaintiff Attorneys

MOTU MITCHELL C ESQ.

TRACHTMAN BENJAMIN ROSS ESQ.

Cross Defendant Attorneys

SCHAFF JASON WENDALL ESQ.

CASSO JAMES MARJIL ESQ.

DIPIETRO PAUL MICHAEL DEPUTY ATTORNEY

 

Court Documents

Notice of Lodging - NOTICE OF LODGING PURSUANT TO LOS ANGELES COUNTY LOCAL RULE 4.115(C)

11/15/2022: Notice of Lodging - NOTICE OF LODGING PURSUANT TO LOS ANGELES COUNTY LOCAL RULE 4.115(C)

Notice of Ruling

11/15/2022: Notice of Ruling

Petition to Approve Compromise of Disputed Claim

11/15/2022: Petition to Approve Compromise of Disputed Claim

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR AN ORDER TO SEAL SETTLEME...)

11/15/2022: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR AN ORDER TO SEAL SETTLEME...)

Petition to Confirm Minor's Compromise with Special Needs Trust

11/10/2022: Petition to Confirm Minor's Compromise with Special Needs Trust

Notice - NOTICE NOTICE OF HEARING - DECEDENTS ESTATE OF TRUST

11/10/2022: Notice - NOTICE NOTICE OF HEARING - DECEDENTS ESTATE OF TRUST

Notice of Lodging - NOTICE OF LODGING UNREDACTED PETITION AND ORDER

11/10/2022: Notice of Lodging - NOTICE OF LODGING UNREDACTED PETITION AND ORDER

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR AN ORDER TO SEAL SETTLEME...)

11/10/2022: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FOR AN ORDER TO SEAL SETTLEME...)

Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER TO SEAL SETTLEMENT AMOUNT OR SHORTEN TIME FOR HEARING

11/9/2022: Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER TO SEAL SETTLEMENT AMOUNT OR SHORTEN TIME FOR HEARING

Declaration - DECLARATION OF JULIE A. LUETKENHAUS IN SUPPORT OF MOTION FOR AN ORDER TO SEAL SETTLEMENT AMOUNT

11/8/2022: Declaration - DECLARATION OF JULIE A. LUETKENHAUS IN SUPPORT OF MOTION FOR AN ORDER TO SEAL SETTLEMENT AMOUNT

Motion to Seal - MOTION TO SEAL FOR AN ORDER TO SEAL SETTLEMENT AMOUNT;

11/8/2022: Motion to Seal - MOTION TO SEAL FOR AN ORDER TO SEAL SETTLEMENT AMOUNT;

Minute Order - MINUTE ORDER (FURTHER STATUS CONFERENCE)

10/17/2022: Minute Order - MINUTE ORDER (FURTHER STATUS CONFERENCE)

Minute Order - MINUTE ORDER (STATUS CONFERENCE RE: STIPULATION TO BIFURCATE)

10/11/2022: Minute Order - MINUTE ORDER (STATUS CONFERENCE RE: STIPULATION TO BIFURCATE)

Request for Dismissal

10/6/2022: Request for Dismissal

Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

10/7/2022: Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

Reply - REPLY IN SUPPORT OF MOTION FOR DETERMINATION OF GFS

9/7/2022: Reply - REPLY IN SUPPORT OF MOTION FOR DETERMINATION OF GFS

Notice of Lodging - NOTICE OF LODGING OF DOCUMENTS RE GFS

9/7/2022: Notice of Lodging - NOTICE OF LODGING OF DOCUMENTS RE GFS

Notice of Continuance - NOTICE OF CONTINUANCE OF HEARING ON MOTION FOR SUMMARY JUDGEMENT

9/12/2022: Notice of Continuance - NOTICE OF CONTINUANCE OF HEARING ON MOTION FOR SUMMARY JUDGEMENT

391 More Documents Available

 

Docket Entries

  • 12/16/2022
  • Hearing12/16/2022 at 08:30 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Dismissal (Settlement)

    [+] Read More [-] Read Less
  • 11/30/2022
  • Docketat 1:30 PM in Department 31; Hearing on Motion for Determination of Good Faith Settlement (CCP 877.6)

    [+] Read More [-] Read Less
  • 11/30/2022
  • Docketat 1:30 PM in Department 31, Audra Mori, Presiding; Hearing on Petition to Confirm Minor's Compromise with Special Needs Trust

    [+] Read More [-] Read Less
  • 11/28/2022
  • Docketat 08:30 AM in Department 31; Jury Trial - Not Held - Advanced and Vacated

    [+] Read More [-] Read Less
  • 11/15/2022
  • Docketat 08:30 AM in Department 31, Audra Mori, Presiding; Hearing on Ex Parte Application (for an Order to Seal Settlement Amount or Shorten Time for Hearing) - Held - Motion Granted

    [+] Read More [-] Read Less
  • 11/15/2022
  • DocketNotice of Ruling; Filed by Jose Nunez Hernandez (Defendant); XPO Logistics Freight (Defendant)

    [+] Read More [-] Read Less
  • 11/15/2022
  • DocketNotice of Lodging (PURSUANT TO LOS ANGELES COUNTY LOCAL RULE 4.115(C)); Filed by Armando Japa Cabanlit (Plaintiff); Patricia Nathali (Petitioner); Ethan Cabanlit (Plaintiff)

    [+] Read More [-] Read Less
  • 11/15/2022
  • DocketPetition to Approve Compromise of Disputed Claim; Filed by Patricia Nathali (Petitioner)

    [+] Read More [-] Read Less
  • 11/15/2022
  • DocketMinute Order ( (Hearing on Ex Parte Application for an Order to Seal Settleme...)); Filed by Clerk

    [+] Read More [-] Read Less
  • 11/10/2022
  • Docketat 08:30 AM in Department 31, Audra Mori, Presiding; Hearing on Ex Parte Application (for an Order to Seal Settlement Amount or Shorten Time for Hearing) - Held - Continued

    [+] Read More [-] Read Less
543 More Docket Entries
  • 04/18/2017
  • DocketApplication ; Filed by Plaintiff/Petitioner

    [+] Read More [-] Read Less
  • 04/18/2017
  • DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM-CIVIL

    [+] Read More [-] Read Less
  • 04/14/2017
  • DocketAmended Complaint ( (1st)); Filed by Armando Japa Cabanlit (Plaintiff); Patricia Nathali (Petitioner)

    [+] Read More [-] Read Less
  • 04/14/2017
  • DocketFirst Amended Complaint; Filed by Armando Japa Cabanlit (Plaintiff); Ethan Cabanlit (Claimant); Patricia Nathali (Petitioner)

    [+] Read More [-] Read Less
  • 04/14/2017
  • DocketFIRST AMENDED COMPLAINT FOR DAMAGES; (1) NEGLIGENCE, ETC

    [+] Read More [-] Read Less
  • 04/06/2017
  • DocketNOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

    [+] Read More [-] Read Less
  • 04/04/2017
  • DocketApplication ; Filed by Plaintiff/Petitioner

    [+] Read More [-] Read Less
  • 04/04/2017
  • DocketCOMPLAINT FOR DAMAGES; (1) NEGLIGENCE (2) NEGLIGENCE PER SE

    [+] Read More [-] Read Less
  • 04/04/2017
  • DocketAPPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM CIVIL

    [+] Read More [-] Read Less
  • 04/04/2017
  • DocketComplaint; Filed by Armando Japa Cabanlit (Plaintiff)

    [+] Read More [-] Read Less

Tentative Rulings

Case Number: ****6364 Hearing Date: November 30, 2022 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ARMANDO JAPA CABANLIT, ET AL.,

Plaintiff(s),

vs.

CON-WAY FREIGHT INC., ET AL.,

Defendant(s).

)

)

)

)

)

)

)

)

)

)

)

Case No.: ****6364

[TENTATIVE] ORDER CONDITIONALLY GRANTING PETITION TO APPROVE COMPROMISE OF MINOR

Dept. 31

1:30 p.m.

November 30, 2022

On April 4, 2017, Plaintiffs Armando Japa Cabanlit, Patricia Nathali (“Petitioner”), Ethan Cabanlit (“Claimant”), a minor by and through his guardian ad litem, Petitioner, (collectively, “Plaintiffs”) filed this action against Defendants, Con-Way Freight Inc., XPO Logistics Freight (“XPO”), and Jose Nunez Hernandez (“Hernandez”) for damages arising from a collision between a train and tractor trailer that occurred on or about September 1, 2015.

On November 10, 2022, Petitioner filed the instant petition for approval of compromise of claim pertaining to Claimant. The petition is redacted. On November 15, 2022, Petitioner filed an unredacted copy of the petition and proposed order on Judicial Council form MC-351 in connection with XPO and Hernandez’s ex parte application for an order to seal the settlement amount in the petition. The ex parte application was granted. (Min. Order, Nov. 15, 2022.)

The Court will not set forth the terms of the settlement in this public order, as doing so would violate the purpose of the requested sealing order. The Court has reviewed the terms of the settlement for Claimant and finds them fair and reasonable. Petitioner proposes to transfer the settlement proceeds to the trustee of a special needs trust. The probate attorney is to review the proposed trust, and the Court will discuss any notes from the probate attorney with Counsel at the time of the hearing.

Per California Rules of Court, rule 7.952, Petitioner and Claimant must appear at the hearing unless the Court finds good cause to excuse their appearance. Given Claimant’s age and condition, the Court finds good cause to excuse Claimant’s appearance. The Court will require only Petitioner’s appearance. Petitioner is encouraged to appear remotely. If the probate review results in approval of the trust, and the Court is satisfied with Petitioner’s testimony, the petition will be granted.

As a final matter, the Court notes that Petitioner filed, as opposed to lodged, unredacted copies of the petition and proposed order. The Judicial Assistant will ensure the unredacted petitions, which were filed on November 15, 2022, are removed from the public court file. The redacted petitions, filed on November 10, 2022, are deemed filed and will remain in the Court file.

Petitioner is ordered to give notice.

PLEASE TAKE NOTICE:

Dated this 30th day of November 2022

Hon. Audra Mori

Judge of the Superior Court



Case Number: ****6364 Hearing Date: September 21, 2022 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ARMANDO JAPA CABANLIT, ET AL.,

Plaintiff(s),

vs.

CON-WAY FREIGHT INC., ET AL.,

Defendant(s).

)

)

)

)

)

)

)

)

)

)

)

CASE NO: ****6364

[TENTATIVE] ORDER GRANTING MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT

Dept. 31

1:30 p.m.

September 21, 2022

1. Background

Plaintiffs Armando Japa Cabanlit (“Armando”), Patricia Nathali (“Nathali”), and Ethan Cabanlit (“Ethan”), a minor, by and through his guardian ad litem, Patricia Nathali, (collectively, “Plaintiffs”) filed this action against defendants Con-Way Freight Inc. (“Con-Way”), XPO Logistics Freight (“XPO Logistics”), and Jose Nunez Hernandez (“Hernandez”) for damages arising from a collision between a train and tractor trailer. On June 16, 2021, Plaintiffs filed the operative Second Amended Complaint alleging the crash occurred on or about September 1, 2015, when Hernandez, who was in the course and scope of his employment for Con-Way, failed to clear train tracks at an intersection controlled by railroad cross traffic lights. The collision between the Union Pacific freight train and trailer caused the trailer to strike Plaintiff’s vehicle. XPO Logistics acquired Con-Way after the accident.

XPO Logistics and Hernandez then filed a cross-complaint against Union Pacific Railroad Company (“Union Pacific”) alleging causes of action for equitable indemnity and contribution. On April 4, 2022, XPO Logistics and Hernandez filed their operative Second Amended Cross-Complaint against Union Pacific, Mario Ramirez, and the City of Industry (the “City”) for equitable indemnity and contribution.

On August 22, 2022, XPO Logistics and Hernandez (collectively, “XPO”) filed the instant motions to seal court records and for determination of good faith settlement. In particular, XPO moved to seal the unredacted version of XPO’s motion for determination of good faith settlement. The only portions redacted in the motion for good faith settlement contain the settlement amount between Plaintiffs and XPO. The motion to seal was unopposed. The motions to seal and for determination of good faith settlement were heard on September 14, 2022, where the motion to seal was granted. The motion for determination of good faith settlement was then continued to September 21, 2022, to allow the Court additional time to review the unredacted moving papers, opposition, and reply.

XPO provides that XPO and Plaintiffs have reached a settlement, and XPO moves for an order pursuant to CCP 877.6 determining that the settlement was entered into in good faith between them. Union Pacific opposes XPO’s motion for determination of good faith settlement, and XPO filed a reply to Union Pacific’s opposition.

The Court has reviewed the underacted documents; however, the Court will not set forth the terms of the settlement in this public order, as doing so would violate the purpose of the requested sealing order.

2. Motion for Determination of Good Faith Settlement

a. Law Governing Good Faith Settlement

In an action involving two or more joint tortfeasors or co-obligors, when one tortfeasor or obligor enters into a settlement with the plaintiff, the other tortfeasors or obligors are entitled to a hearing on the issue of whether the settlement was entered into in good faith. (Code Civ. Proc., 877.6(a).) Where a plaintiff settles with one of several joint tortfeasors or co-obligors without releasing the others, a determination of “good faith” discharges the settling defendant from liability to the other defendants for equitable contribution or comparative indemnity. (CCP 877(a)-(b).) The amount paid by the settling defendant reduces the claim against the others (CCP 877(a)), but a risk of prejudice remains because an unreasonably low settlement (i.e., with the “most culpable” tortfeasor) exposes the remaining defendants to a judgment exceeding their fair share of the liability. (See Bay Development, Ltd. v. Superior Court (1990) 50 Cal. 3d 1012, 1019-1020.)

There is no precise yardstick for measuring the “good faith” of a settlement with one of several tortfeasors, but it must harmonize the public policy favoring settlements with the competing public policy favoring equitable sharing of costs among tortfeasors. (See Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499.)

“A more appropriate definition of ‘good faith,’ in keeping with the policies of American Motorcycle and the statute, would enable the trial court to inquire, among other things, whether the amount of the settlement is within the reasonable range of the settling tortfeasor's proportional share of comparative liability for the plaintiff's injuries. This is not to say that bad faith is ‘established by a showing that a settling defendant paid less than his theoretical proportionate or fair share.’ [Citation.] Such a rule would unduly discourage settlements. ‘For the damages are often speculative, and the probability of legal liability therefor is often uncertain or remote. And even where the claimant's damages are obviously great, and the liability therefor certain, a disproportionately low settlement figure is often reasonable in the case of a relatively insolvent, and uninsured, or underinsured, joint tortfeasor.’ [Citation.] Moreover, such a rule would tend to convert the pretrial settlement approval procedure into a full scale mini trial [citation].

“But these considerations do not lead to the conclusion that the amount of the settlement is irrelevant in determining good faith. Rather, the intent and policies underlying section 877.6 require that a number of factors be taken into account including a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants. [Citation.] Finally, practical considerations obviously require that the evaluation be made on the basis of information available at the time of settlement. ‘[A] defendant's settlement figure must not be grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate the settling defendant's liability to be.’ [Citation.] The party asserting the lack of good faith, who has the burden of proof on that issue ( 877.6(d)), should be permitted to demonstrate, if he can, that the settlement is so far ‘out of the ballpark’ in relation to these factors as to be inconsistent with the equitable objectives of the statute. Such a demonstration would establish that the proposed settlement was not a ‘settlement made in good faith’ within the terms of section 877.6.

(Tech-Bilt, Inc., 38 Cal.3d at 499-500.)

Section 877.6 contemplates that the determination of good faith may be made by the court on the basis of affidavits (subd. (b)), and as the court observed in River Garden Farms, ‘The price levels are not as unpredictable as one might suppose. Despite the uncertainties, generalized valuation criteria are recognized by the personal injury bar, insurance claims departments and pretrial settlement courts. When testing the good faith of a settlement figure, a court may enlist the guidance of the judge's personal experience and of experts in the field. Represented by knowledgeable counsel, settlement negotiators can predict with some assurance whether a settlement is within the reasonable range permitted by the criterion of good faith. The danger that a low settlement violates the good faith clause will not impart uncertainty so long as the parties behave fairly and the courts maintain a realistic awareness of settlement imponderables.’ [Citation.]

(Id. at 500-01.)

The Tech-Bilt factors can be summarized as follows:

(1) A rough approximation of plaintiff’s total recovery and the settlor’s proportionate liability;

(2) The amount paid in settlement;

(3) The allocation of settlement proceeds among plaintiffs;

(4) A recognition that a settlor should pay less in settlement than he would if he were found liable after a trial;

(5) The financial conditions and insurance policy limits of settling defendants; and

(6) The existence of collusion, fraud, or tortious conduct aimed to injure the interests of the nonsettling defendants.

Accordingly, if the party contesting the settlement can show, with admissible evidence, that the settlement is “so far ‘out of the ballpark’ in relation to [the above-referenced factors] as to be inconsistent with the equitable objectives of the statute,” then the court should find the settlement to be lacking in good faith. (Id. at 499-500.) If no such showing is made, the settlement should be deemed to be in good faith and the settlor is entitled to an order barring any further claims by any other joint tortfeasor or co-obligor for “equitable comparative contribution, or partial or comparative indemnity” and/or an order dismissing any such claims. (CCP 877.6(c).)

b. Evidentiary Objections

Union Pacific, in its opposition, submits an objection to the entire declarations of James R. Loumiet and Charles L. Culver submitted with the motion. The objections are sustained, as neither expert provided a reasoned explanation connecting the factual predicates to the ultimate conclusions asserted therein. (See, e.g., Sanchez v. Kern Emergency etc. (2017) 8 Cal.App.5th 146, 155 [“by a reasoned explanation connecting the factual predicates to the ultimate conclusion” or it lacks evidentiary value.”].)

c. Analysis

XPO’s burden in moving for good faith determination is to prove the value of the settlement, the evidentiary basis for the value, and that it was reached in a sufficiently adversarial manner to show a reasonable valuation was reached. (Franklin Mint Co. v. Superior Court (2005) 130 Cal.App.4th 1550, 1558; see also CCP 877.6(a)(2).)

XPO provides it has reached a monetary settlement with Plaintiffs, plus agreed to jointly retain liability experts with Plaintiffs as to the allegations against Union Pacific, as described in greater detail in the sealed submission.

As to the basis for the valuation, XPO provides that it was not the only cause of the accident, that Plaintiffs’ damages are greatly disputed, and that the settlement was reached after significant litigation and mediation. XPO shows that it has filed a Cross-Complaint against Union Pacific and the City, and states, “XPO admitted it was a factor, but denied it was the only factor, in causing the subject accident.” (Mot. Memo. of Points and Authorities at p. 1:22-23.) XPO provides evidence that its experts have determined that neither Armando nor Nathali sustained a brain injury related to this accident and that Ethan sustained a small right-sided subarachnoid hemorrhage. According to the evidence that XPO provides in connection with this motion, Ethan’s medical issues are due to a hemorrhage he suffered at his premature birth, not the accident. Thus, XPO shows that the damages claimed by Plaintiffs in this case are greatly contested, which Union Pacific does not dispute. According to XPO, “Although Plaintiffs have postured that this case is worth more than $50 Million, clearly Plaintiffs can see the hurdles they will have to overcome related to the causation and damages claims.” (Id. at p. 9.) Further, XPO shows that settlement was only reached, “[a]fter two mediations, five (5) years of litigation and prolonged negotiations.” (Mot. Luetkenhaus Decl. 44, Exh. 45.) Thus, XPO shows the evidentiary basis for the value of the settlement and that it was reached in a sufficiently adversarial manner to be reasonable.

Because XPO meets its moving burden, the burden shifts to Union Pacific to show the settlement was not in good faith. (CCP 877.6(d). [“The party asserting lack of good faith shall have the burden of proof on that issue.”]; see Mattco Forge, Inc. v. Arthur Young & Company (1995) 38 Cal.App.4th 1337, 1350 n. 6.)

In opposition, Union Pacific contends that it is undisputed that the only parties that violated the law were XPO Logistics and Hernandez, and so XPO’s settlement is not based in equity and fairness considering their culpability compared to Plaintiffs’ $164,001,000 statement of damages. Union Pacific argues that XPO caused the incident, and that Union Pacific was not responsible for installing any advanced preemption at the subject railroad crossing. Further, Union Pacific contends that XPO’s expert declaration submitted with the motion are inadmissible, and that the Tech-Bilt factors weigh in favor of denying the motion.

The Court will now consider the Tech-Bilt factors. As to the first and second factors, Union Pacific argues that XPO’s and Plaintiffs’ proposed settlement is not a rough approximation of XPO’s potential exposure and is grossly disproportionate in light of Plaintiffs’ statements of damages. XPO asserts that Armando and Nathali are claiming $27,500,000 in damages and Ethan is claiming $109,001,000 for a total of $164,001,000. (Opp. Low Decl. Exh. F.) However, while Union Pacific avers that this is the ballpark as defined by Plaintiffs, Union Pacific cites no authority holding that a plaintiff’s statement of damages is used to determine the ballpark range when considering the Tech-Bilt factors in a motion for determination of good faith settlement. Moreover, although Plaintiffs may claim a total of $164,001,000 through their statements of damages, a statement of damages is not evidence or determinative of Plaintiffs’ actual damages, and it does not otherwise itself establish Plaintiffs are entitled to the amount claimed therein.[1] (See Dole Food Co., Inc. v. Superior Court (2015) 242 Cal.App.4th 894, 904 [“A plaintiff's claims for damages are not determinative in finding good faith.” (quoting West v. Superior Court (1994) 27 Cal.App.4th 1625, 1636)].) Furthermore, any argument that Plaintiffs would recover the amounts sought in their statements of damages if this matter went to trial is merely speculative. (Tech-Bilt, Inc., 38 Cal.3d at 499 [“For the damages are often speculative, and the probability of legal liability therefor is often uncertain or remote.”].) Union Pacific provides no evidence that Plaintiffs are entitled to, or that Plaintiffs are likely to recover, substantially more in damages than the settlement amount at this time.

Concerning XPO’s proportionate liability, Union Pacific contends that XPO previously accepted liability for the incident, and that XPO’s own director of safety testified that the accident would not have happened but for Hernandez’s conduct. Union Pacific avers that it has no liability for the accident.

Union Pacific’s evidence shows the following exchange with XPO’s director of safety, who reviewed the accident for XPO, at his deposition:

Q. And you stated after further investigation, DSR Jose Nunez Hernandez made a critical error in that he failed to use his Smith System training. Was that your opinion?

A. Yes.

Q. And it says that clearly, this accident could have been avoided. That was your opinion?

A. Yes.

Q. And what was your ruling?

A. Preventible [sic].

(Opp. Low Exh A at pp. 44:7-11, 47:3-7.) While this deposition testimony suggests that XPO’s director of safety found that Hernandez made a “critical error” pursuant to XPO’s defensive driver training, and that the accident was preventable, it does not establish that Hernandez was the sole cause of the accident or that Union Pacific bears no liability for it.

XPO asserts that while it has admitted that it was a factor in causing the accident, it denies being the only factor. XPO asserts that liability also lies with Union Pacific and the City. XPO asserts that Union Pacific’s engineer and conductor testified that they saw the XPO’s trailer on the train tracks and that they assumed and hoped the trailer would move prior to impact. (Mot. Luetkenhaus Decl. 14.) XPO argues that this violated Union Pacific’s own rules and regulations for train handling. XPO further avers that Union Pacific was aware of a problem with southbound traffic queueing on the tracks of the crossing as early as 1994, and that the City and Union Pacific were aware that the subject intersection where the accident happened needed 60 seconds of advanced preemption installed. (Id. at 15-17.) In addition, XPO contends that it is disputing Armando’s and Nathali’s claims they suffered brain injuries of any kind, (Id. at 32-33), and that XPO has strong evidence that Ethan’s ongoing issues are a direct result of his premature birth and not related to the accident. (Id. at 43.)

Consequently, contrary to Union Pacific’s contentions, causation is disputed in this matter. Union Pacific does not establish that XPO’s potential liability is grossly disproportionate to the settlement amount reached between Plaintiffs and XPO.[2] Accordingly, the first and second factors balance in favor of finding a good faith settlement.

As to the third factor regarding allocation of the settlement between Plaintiffs, XPO attests that 20% of the settlement is being apportioned to each Armando and Nathali and 60% is being apportioned to Ethan. In opposition, Union Pacific seemingly contends that the proposed allocations are disproportionate to each Plaintiffs’ total claimed damages in the statement of damages but does not address the allocation of the settlement proceeds among Plaintiffs. [3] However, as analyzed above, the amounts sought in the statements of damages are not evidence of Plaintiffs’ actual damages. Union Pacific does not provide any evidence to support the assertion that allocation among Plaintiffs is improper. Given the lack of evidence presented, the third factor weighs in favor of finding a good faith settlement.

As to the fourth factor, in recognizing that a settlor should pay less in settlement than if found liable after trial, settlements have been upheld as being in good faith in cases with a $25,000 settlement in a $5 million case, a $30,000 settlement in a $1 million case, a $65,000 settlement in a $7 million case, and a $50,000 settlement in a $1.425 million case. (See Cahill v. San Diego Gas & Elec. Co. (2011) 194 Cal.App.4th 939, 968 [citing Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012; Wysong & Miles Co. v. Western Industrial Movers (1983) 143 Cal.App.3d 278; Wilshire Ins. Co. v. Tuff Boy Holding, Inc. (2001) 86 Cal.App.4th 627].) Other damages are speculative or uncertain at this time. And there is no evidence submitted to suggest that Plaintiffs would be entitled to a substantially higher amount than the settlement if they were completely successfully on their claims. Therefore, the fourth factor balances in favor of finding a good faith settlement.

As to the fifth factor concerning XPO’s financial condition and insurance policy limits, as analyzed above, there is no evidence showing the settlement amount is disproportionately low. Because the settlement amount is not disproportionately low, XPO’s financial condition is not relevant at this time. (See, L.C. Rudd & Son, Inc. v. Superior Court (1997) 52 Cal.App.4th 742, 749-50 [settling defendant’s financial condition was irrelevant where the settlement amount was not disproportionately low; disproportionately low settlement is a “threshold requirement” to finding financial condition relevant.].) Further, although Union Pacific argues that XPO’s insurance limits are unknown, the party asserting the lack of good faith of a settlement agreement has the burden of proof to demonstrate that this is significant in assessing whether the settlement is so far “out of the ballpark” in relation to the reasonable range of the settling tortfeasor’s proportionate share of comparative liability for the plaintiff’s injuries as to be inconsistent with the equitable objectives of the statute. (Nutrition Now, Inc. v. Superior Court (2003) 105 Cal.App.4th 209, 213-214.) In this case, Union Pacific does not make such a showing. Furthermore, insurance limits are mainly relevant to demonstrate that even a “disproportionately low settlement figure” can often be “reasonable in the case of a relatively insolvent, and uninsured, or underinsured, joint tortfeasor.” (Tech-Bilt, Inc., 38 Cal.3d at 499; compare with Long Beach Mem. Med. Ctr. v. Sup. Ct. (2009) 172 Cal.App.4th 865, 873-75 [a $200,000 settlement in $10 million medical malpractice case not in good faith where insurance coverage was $2 million, defendants appeared to have high degree of culpability and other co-defendants offered over $8 million].) Given the evidence presented, there is no showing that the settlement amount is disproportionately low. The fifth factor, thus, balances in favor of finding a good faith settlement.

As to the sixth factor, Union Pacific does not contend the settlement was the result of fraud, collusion, or other tortious conduct, and the Court has not found, based on the evidence presented, the settlement is so low such as to establish that it is aimed at making the non-settling defendants pay more than their fair share. There is no evidence or argument made to show collusion, fraud or tortious conduct between Plaintiffs and XPO. Consequently, the sixth factor balances in favor of finding a good faith settlement.

Based on the foregoing, XPO’s settlement with Plaintiffs appears reasonable. There is not sufficient evidence showing otherwise.

3. Conclusion

XPO’s motion for determination of good faith settlement between Plaintiffs and defendants XPO Logistics and Hernandez is granted.

XPO Logistics and Hernandez are ordered to give notice.

PLEASE TAKE NOTICE:

Dated this 21st day of September 2022

Hon. Audra Mori

Judge of the Superior Court


[1] XPO asserts, and Union Pacific does not dispute, that “Plaintiffs in this case have served 998 Offers to Compromise upon Union Pacific” for amounts that are “less than half of the [total] XPO is paying to settle this claim.” (Mot. Memo. of Points and Authorities in Support of Motion for Determination of Good Faith Settlement at p. 8:23-27.) While these offers were not accepted, the amounts at which Plaintiffs offered to compromise undermine Union Pacific’s assertion that the Statement of Damages represents an accurate estimate of Plaintiff’s recovery at trial.

[2] As XPO has indicated that the 998 Offers to Compromise made by Plaintiffs to Union Pacific sought “less than half of the [total] XPO is paying to settle this claim,” it seems that the settlement also reflects the view that Union Pacific is proportionally less liable than XPO. (Mot. Memo. of Points and Authorities in Support of Motion for Determination of Good Faith Settlement at p. 8:23-27.)

[3] The percentage of the settlement allocated to each Plaintiff in the Statement of Damages is not far different than the percentage of the settlement allocated to each Plaintiff. In the Statement of Damages, Armando and Nathali each received approximately 17% of the settlement, and Ethan received approximately 66%.



Case Number: ****6364 Hearing Date: September 14, 2022 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ARMANDO JAPA CABANLIT, ET AL.,

Plaintiff(s),

vs.

CON-WAY FREIGHT INC., ET AL.,

Defendant(s).

)

)

)

)

)

)

)

)

)

)

)

CASE NO: ****6364

AMENDED [TENTATIVE] ORDER GRANTING (1) MOTION TO SEAL COURT RECORDS; (2) CONTINUING MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT

Dept. 31

1:30 p.m.

September 14, 2022

1. Background

Plaintiffs Armando Japa Cabanlit (“Armando”), Patricia Nathali (“Nathali”), Ethan Cabanlit (“Ethan”), a minor, by and through his guardian ad litem, Patricia Nathali, (collectively, “Plaintiffs”) filed this action against defendants Con-Way Freight Inc. (“Con-Way”), XPO Logistics Freight (“XPO Logistics”), and Jose Nunez Hernandez (“Hernandez”) for damages arising from a collision between a train and tractor trailer. On June 16, 2021, Plaintiffs filed the operative Second Amended Complaint alleging the crash occurred on or about September 1, 2015, when Hernandez, who was in the course and scope of his employment for Con-Way, failed to clear train tracks at an intersection controlled by railroad cross traffic lights. The collision between the Union Pacific freight train and trailer caused the trailer to strike Plaintiff’s vehicle. XPO Logistics acquired Con-Way after the accident.

XPO Logistics and Hernandez then filed a cross-complaint against Union Pacific Railroad Company (“Union Pacific”) alleging causes of action for equitable indemnity and contribution. On April 4, 2022, XPO Logistics and Hernandez filed their operative Second Amended Cross-Complaint against Union Pacific, Mario Ramirez, and the City of Industry for equitable indemnity and contribution.

On August 22, 2022, XPO Logistics and Hernandez (collectively, “XPO”) filed the instant motions to seal court records and for determination of good faith settlement. In particular, XPO moves to seal the unredacted version of XPO’s motion for determination of good faith settlement. The motion to seal is unopposed. Union Pacific, however, opposes XPO’s motion for determination of good faith settlement, and XPO filed a reply.

Given that portions of the motion for determination of good faith settlement filed with the Court have been redacted, the Court will first address the motion to seal.

2. Motion to Seal Court Records

California Rules of Court, rule 2.551(b)(1) states, “[a] party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” CRC 2.550(d) makes clear that records cannot be sealed without appropriate findings. It provides:

The Court may order that a record be filed under seal only if it expressly finds facts that establish:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(2) The overriding interest supports sealing the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(4) The proposed sealing is narrowly tailored; and

(5) No less restrictive means exist to achieve the overriding interest.

(Cal. Rules of Court, rule 2.550(d).)

A confidential settlement agreement may support sealing of court records. In Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1283, the Court considered the issue of whether a confidential settlement agreement can be redacted at length. The Court concluded, “We agree with defendant that its contractual obligation not to disclose can constitute an overriding interest within the meaning of rule 243.1(d).” The Court went on, however, to note that the parties’ interests can typically be protected by redacting, as opposed to fully sealing, the subject documents.

Here, XPO asserts that the only portions it proposes be redacted from the motion for determination of good faith settlement contain the amount of the settlement. XPO contends that the confidentiality provision contained within Plaintiffs’ and XPO’s settlement agreement constitutes an overriding interest in sealing these records, and that the request is narrowly tailored. Further, XPO contends that XPO Logistics and Hernandez will be prejudiced if the records are not sealed because it could subject them to public ridicule as it will be viewed as an admission of guilt. Additionally, Defendants assert that disclosing the gross settlement amount and how it is to be apportioned between Plaintiffs, their medical providers and counsel would be in direct violation of the confidential agreement.

The motion to seal is unopposed, and XPO’s proposed redactions are appropriate and narrowly tailored, as they are designed so that the specific amounts of the settlement remain confidential, but the remainder of the motion for determination of good faith settlement is permitted to remain in the public. Furthermore, the settlement agreement is confidential in nature, and the proposed redactions will protect Plaintiffs’ privacy interests from disclosing the apportionment of the settlement amounts between Plaintiffs and others. The proposed sealing cannot be made narrower, and XPO establishes good cause to seal the subject portions of the motion for determination of good faith settlement, as Plaintiffs’ and XPO’s settlement is confidential in nature.

The Court grants the motion to seal the unredacted version of the motion for determination of good faith settlement.

3. Motion for Determination of Good Faith Settlement

XPO filed redacted copies of its motion for determination of good faith settlement and the declaration of Julie A. Luetkenhaus on August 22, 2022. Thereafter, Union Pacific filed an opposition with the settlement amount redacted, as did XPO with its reply to Union Pacific’s opposition. However, additional time is required to review the unredacted versions of those documents. Thus, the motion for determination of good faith settlement will be continued briefly for the Court to review all UNREDACTED copies of the moving papers, opposition, and reply.

The hearing on the motion for determination of good faith settlement is continued to September 27, 2022, at 1:30 p.m. in Department 31.

XPO Logistics and Hernandez are ordered to give notice.

PLEASE TAKE NOTICE:

Dated this 14th day of September 2022

Hon. Audra Mori

Judge of the Superior Court



Case Number: ****6364 Hearing Date: July 26, 2022 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ARMANDO JAPA CABANLIT, ET AL.,

Plaintiff(s),

vs.

CON-WAY FREIGHT INC., ET AL.,

Defendant(s).

)

)

)

)

)

)

)

)

)

)

)

Case No.: ****6364

[TENTATIVE] ORDER DENYING MOTION FOR PROTECTIVE ORDER

Dept. 31

1:30 p.m.

July 26, 2022

1. Background

On April 4, 2017, Plaintiffs, Armando Japa Cabanlit, Patricia Nathali, Ethan Cabanlit, a minor, by and through his guardian ad litem, Patricia Nathali, (collectively, “Plaintiffs”) filed this action against Defendants, Con-Way Freight Inc., XPO Logistics Freight (“XPO”), and Jose Nunez Hernandez (“Hernandez”) for damages arising from a collision between a train and tractor trailer that occurred on or about September 1, 2015. XPO Logistics and Hernandez have filed a First Amended Cross-Complaint against Union Pacific Railroad Company (“Union Pacific”) alleging causes of action for equitable indemnity and contribution.

Plaintiffs provide that on June 21, 2022, XPO and Hernandez issued a deposition notice for Armando Japa Cabanlit’s (“Armando”) ex-wife, Debbie Allida (“Allida”), setting Allida’s deposition for July 23, 2022. Plaintiffs state that Union Pacific then served a joiner to the deposition notice of Allida.

At this time, Plaintiffs move to quash the subpoenaed deposition of non-party Allida, or alternatively, for a protective order precluding the deposition from going forward. Union Pacific and XPO and Hernandez each oppose the motion. Plaintiffs filed a reply.

2. Motion for Protective Order

a. Meet and Confer

CCP 2025.420(a) states that “Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.”

In this case, Plaintiffs, through counsel, asserts they attempted to resolve this matter without the court intervention. (Mot. Lincors Decl. 4-9.) The court finds this is sufficient to satisfy CCP 2025.420(a).

b. Analysis

CCP 2025.010 provides, “[a]ny party may obtain discovery within the scope delimited by Chapter 2 (commencing with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by taking in California the oral deposition of any person, including any party to the action.” (Emphasis added.)

Pursuant to CCP 2025.420(b), “[t]he court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:”

(1) That the deposition not be taken at all.

(2) That the deposition be taken at a different time.

(5) That the deposition be taken only on certain specified terms and conditions.

Furthermore, CCP 2017.020(a) states “[t]he court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. The court may make this determination pursuant to a motion for protective order by a party or other affected person.”

“Unless otherwise limited by order of the court in accordance with [the discovery statutes], 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. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action....” (See Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012-13.) “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement....’ [Citation.] Admissibility is not the test and information unless privileged, is discoverable if it might reasonably lead to admissible evidence. [Citation.] These rules are applied liberally in favor of discovery [citation], and (contrary to popular belief), fishing expeditions are permissible in some cases.” (Id. at 1013.) “Moreover, even were the questions designed to elicit irrelevant evidence, irrelevance alone is an insufficient ground to justify preventing a witness from answering a question posed at a deposition.” (Id. at 1014.)

Here, Plaintiffs assert that Allida is Armando’s ex-wife, from whom he has been divorced for eight years before the accident. Plaintiff state that Armando has had no contact with Allida since their divorce, and Plaintiffs contend the deposition subpoena is a fishing expedition to harass, annoy, and embarrass Plaintiffs. Plaintiffs contend that Allida has no information relevant to any claims or defenses in this action, or any information about Plaintiffs’ injuries or conditions prior to the incident. Plaintiffs aver that Defendants can offer no explanation for why Allida should be deposed.

Union Pacific, in opposition, provides that it believes that Plaintiffs will offer evidence in the form of testimony from family and friends to describe Armando’s changed mood in support of his traumatic brain injury (“TBI”) claim. Union Pacific asserts that it intends to depose Allida as to his mood. memory, and temperament during her relationship with Armando prior to the incident. Union Pacific argues the probative value of the testimony outweighs any claimed prejudice by Plaintiffs.

XPO and Hernandez, in their own opposition, further assert they are entitled to take Allida’s deposition in order to obtain evidence to defend against Armando’s TBI claims. XPO and Hernandez provide that Allida is cooperative and willing to testify, and that Plaintiffs do not provide any evidence showing that the deposition will subject Plaintiffs to any unwarranted annoyance or embarrassment. XPO and Hernandez contend that appearing at a deposition noticed by another party does not equate to undue burden or expense. Additionally, XPO and Hernandez contend they will be prejudiced if the deposition does not proceed because the information related is directly related to Armando’s claims and injuries.

In reply, Plaintiffs again contend that Defendants are seeking irrelevant information from Armando’s ex-wife, and the intrusiveness outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.

However, Plaintiffs also confirm in their reply that Plaintiffs will present witnesses to support Armando’s TBI claims and testify as to his mood, memory, and temperament before and after the accident. While Plaintiffs argue that Allida does not have information or personal knowledge concerning these topics, Plaintiffs do not submit any evidence to support this argument. Indeed, it is reasonable to infer that Plaintiff’s ex-wife would know about his mood, memory, and temperament before the accident. The party seeking the protective order is “required to show that the burden and expense or intrusiveness in (the discovery procedure) clearly outweighs the likelihood that the information sought will lead to discovery of admissible evidence.” (Emerson Elec v. Superior Court, (1997) 16 Cal.4th 1101, 1110.)

Although the deposition involves Armando’s ex-wife, who Plaintiffs claim Armando has not had contact with for some time, Plaintiffs do not articulate with any specific facts how the deposition would subject Plaintiffs or Armando to undue expense, harassment, annoyance, or embarrassment. Plaintiffs further assert the deposition is merely a fishing expedition, but this alone is insufficient to warrant quashing the subpoena. (See Stewart, 87 Cal.App.4th at 1013 [noting that fishing expeditions are permissible at times].) Given Armando’s TBI claims, and Plaintiffs’ admission that witnesses will be called to testify as to his mood, memory, and temperament before accident, Allida may well provide relevant information. Plaintiffs do not establish good cause for precluding Defendants from deposing Allida. Therefore, Plaintiffs fail to show that any burden, expense, or intrusiveness involved in Allida’s deposition clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. (Emerson Elec, 16 Cal.4th at 1110.) Furthermore, to the extent Plaintiffs argue a protective order should be issued limiting Allida’s testimony, Plaintiffs fail to articulate what limitations they wish to impose. The court will not now surmise as to what limitations may be proper or not.

Based on the foregoing, Plaintiffs’ motion to quash the deposition subpoena served on non-party Allida and for a protective order is denied.

No sanctions are requested, and none are awarded.

Plaintiffs are ordered to give notice.

PLEASE TAKE NOTICE:

Dated this 26th day of July 2022

Hon. Audra Mori

Judge of the Superior Court



Case Number: ****6364 Hearing Date: July 11, 2022 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ARMANDO JAPA CABANLIT, ET AL.,

Plaintiff(s),

vs.

CON-WAY FREIGHT INC., ET AL.,

Defendant(s).

)

)

)

)

)

)

)

)

)

)

)

CASE NO: ****6364

[TENTATIVE] ORDER TAKING MOTION FOR SUMMARY JUDGMENT OFF CALENDAR

Dept. 31

1:30 p.m.

July 11, 2022

On March 21, 2022, Cross-Defendant the City of Industry’s (the “City”) Ex Parte Application to Set Hearing on its Motion for Summary Judgment was granted, and the City’s motion for summary judgment was set for June 21, 2022. (Min. Order March 21, 2022.) The City was to file and serve its motion for summary judgment 75 days prior to the hearing. (Ibid.) The hearing date was then continued to July 11, 2022, due to the court’s unavailability. (June 1, 2022.) As of July 5, 2022, the City has not filed anything in connection with the motion for summary judgment set for July 11, 2022. The court notes the City has filed a motion for summary judgment set for hearing on September 20, 2022.

Therefore, the instant motion for summary judgment set for July 11, 2022, is taken off calendar. The September 20, 2022, summary judgment motion remains on calendar as set. Moving party’s counsel is reminded to take matters off-calendar when they become moot or are no longer going forward.

Moving Cross-Defendant the City is ordered to give notice.

PLEASE TAKE NOTICE:

Dated this 11th day of July 2022

Hon. Audra Mori

Judge of the Superior Court



Case Number: ****6364 Hearing Date: June 10, 2022 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ARMANDO JAPA CABANLIT, ET AL.,

Plaintiff(s),

vs.

CON-WAY FREIGHT INC., ET AL.,

Defendant(s).

)

)

)

)

)

)

)

)

)

)

)

CASE NO: ****6364

[TENTATIVE] ORDER GRANTING MOTION FOR RELIEF FROM WAIVER OF DISCOVERY OBJECTIONS

Dept. 31

1:30 p.m.

June 10, 2022

1. Background

On April 4, 2017, Plaintiffs Armando Japa Cabanlit (“Armando”), Patricia Nathali (“Nathali”), Ethan Cabanlit (“Ethan”), a minor, by and through his guardian ad litem, Patricia Nathali, (collectively, “Plaintiffs”) filed this action against Defendants, Con-Way Freight Inc. (“Con-Way”), XPO Logistics Freight (“XPO Logistics”), and Jose Nunez Hernandez (“Hernandez”) for damages arising from a collision between a train and tractor trailer. XPO Logistics and Hernandez filed a cross-complaint against Union Pacific Railroad Company (“Union Pacific”). On January 11, 2022, XPO Logistics and Hernandez filed an Amendment to Cross-Complaint naming the City of Industry (the “City”) as Roe 1 in the FACC.

At this time, the City moves for relief from waiver as to , XPO Logistics’ and Hernandez’s first set of Requests for Admission, Requests for Production, Special Interrogatories, and Form Interrogatories served on the City. The City contends that the subject discovery was improperly served, and that when the discovery was re-served, the City timely served responses. The court has not received any opposition to the motion.

2. Motion for Relief from Waiver of Objections

The motion is governed by CCP 2030.290(a), 2031.300(a), and 2033.280(a), all of which provide that a party who fails to serve timely responses to discovery requests waives any objections, but the court may relieve the party from the waiver if its determined both that (1) the party has subsequently served responses that are in substantial compliance, and (2) the party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.

The words “mistake, inadvertence, or excusable neglect” have the same meaning in the discovery statutes as those terms have in CCP 473(b). (New Albertsons v. Superior Court (2008) 168 Cal.App.4th 1403, 1418-19; see also Carli v. Superior Court (1984) 152 Cal.App.3d 1095, 1099 [in the context of deemed admissions 473 should be applied liberally “so cases can be tried on the merits”].)

First, the City provides copies of the discovery responses it served on XPO Logistics and Hernandez. (Mot. Exhs. G-J.) The court has reviewed the City’s responses and finds they are in substantial compliance with the Code.

Second, as to whether the City’s failure to serve responses constitutes mistake, inadvertence, or excusable neglect, the City avers that it had not consented to electronic service when XPO Logistics and Hernandez served the subject first set of discovery on it. The City contends that is failed to properly calendar its responses to the discovery requests due to the miscommunication between the parties concerning email service. After learning of the discovery and being provided with copies of such on March 17, 2022, the City then served responses on April 15, 2022.

Thus, the City’s evidence shows the failure to serve responses was the result of defense counsel’s inadvertence, mistake or excusable neglect. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 234 [“Where an attorney states that he was unaware of his duty to appear or answer because his employees misplaced papers or misinformed him as to the relevant date, relief is routinely granted.”].) Furthermore, XPO Logistics and Hernandez do not oppose the motion or identify any prejudice if responses are permitted with objections.

Based on the foregoing, the City’s motion for relief from waiver of objections is granted.

The City is ordered to give notice.

PLEASE TAKE NOTICE:

Dated this 10th day of June 2022

Paul Bruguera

Commissioner



Case Number: ****6364 Hearing Date: May 18, 2022 Dept: 30

Department 30, Spring Street Courthouse

May 18, 2022

****6364

Motion for Leave to Amend or Withdraw Responses to Plaintiffs’ and Cross Defendant Union Pacific Railroad Company’s Requests for Admission (Set One) filed by XPO Logistics Freight and Jose Nunez Hernandez

DECISION

The motion is granted.

XPO Logistics and Hernandez are ordered to serve amended responses to the subject RFAs within five days. The motion is not granted as to RFA, set one, No. 2 propounded by Cabanlit on Hernandez, which was withdrawn by XPO Logistics and Hernandez.

Moving party is ordered to provide notice.

Background

On April 4, 2017, Plaintiffs Armando Japa Cabanlit (“Armando”), Patricia Nathali (“Nathali”), Ethan Cabanlit (“Ethan”), a minor, by and through his guardian ad litem, Patricia Nathali, (collectively, “Plaintiffs”) filed this action against Defendants, Con-Way Freight Inc. (“Con-Way”), XPO Logistics Freight (“XPO Logistics”), and Jose Nunez Hernandez (“Hernandez”) for damages arising from a collision between a train and tractor trailer. On June 16, 2021, Plaintiffs filed the operative Second Amended Complaint alleging the crash occurred on or about September 1, 2015, when Hernandez, who was in the course and scope of his employment for Con-Way, failed to clear train tracks at an intersection controlled by railroad cross traffic lights. The collision between the Union Pacific freight train and trailer caused the trailer to strike Plaintiff’s vehicle. XPO Logistics acquired Con-Way after the accident.

XPO Logistics and Hernandez then filed a cross-complaint against Union Pacific Railroad Company (“Union Pacific”) alleging causes of action for equitable indemnity and contribution. On April 4, 2022, XPO Logistics and Hernandez filed their operative Second Amended Cross-Complaint against Union Pacific, Mario Ramirez, and the City of Industry for equitable indemnity and contribution.

At this time, XPO Logistics and Hernandez move to amend or withdraw responses to Plaintiffs’ and Union Pacific’s requests for admissions (“RFAs”), sets one, propounded on XPO Logistics and Hernandez. Plaintiffs and Union Pacific each oppose the motion, and XPO Logistics and Hernandez filed a reply to the oppositions.

Motion to Amend or Withdraw Admissions

CCP 2033.300 states:

(a) A party may withdraw or amend an admission made in response to a request for admission only on leave of court granted after notice to all parties.

(b) The court may permit withdrawal or amendment of an admission only if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party's action or defense on the merits.

(c) The court may impose conditions on the granting of the motion that are just, including, but not limited to, the following:

(1) An order that the party who obtained the admission be permitted to pursue additional discovery related to the matter involved in the withdrawn or amended admission.

(2) An order that the costs of any additional discovery be borne in whole or in part by the party withdrawing or amending the admission.

CCP 2033.300 permits amendment or withdrawal of admissions expressly made by a party and also applies to “deemed admissions.” (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979.)

“The court may permit withdrawal of an admission only if the admission was the result of mistake, inadvertence, or excusable neglect and the opposing party will not be substantially prejudiced.” (Stover v. Bruntz (2017) 12 Cal.App.5th 19, 30-31.) “Because the law strongly favors trial and disposition on the merits, any doubts in applying section 2033.300 must be resolved in favor of the party seeking relief. Accordingly, the court's discretion to deny a motion under the statute is limited to circumstances where it is clear that the mistake, inadvertence, or neglect was inexcusable, or where it is clear that the withdrawal or amendment would substantially prejudice the party who obtained the admission in maintaining that party's action or defense on the merits.” (New Albertsons v. Superior Court (2008) 168 Cal.App.4th 1403, 1420-21.) Furthermore, CCP 2033.300 permits amendment or withdrawal of admissions expressly made by a party and also applies to “deemed admissions.” (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979.)

The words “mistake, inadvertence, or excusable neglect” have the same meaning in the discovery statutes as those terms have in CCP 473(b). (New Albertsons v. Superior Court (2008) 168 Cal.App.4th 1403, 1418-19; see also Carli v. Superior Court (1984) 152 Cal.App.3d 1095, 1099.) However, relief from a deemed admitted order cannot be granted under the general authority of CCP 473(b). (St. Paul Fire & Marine Ins. Co. v. Superior Court (1992) 2 Cal.App.4th 843, 852, [CCP 2033.300 specifically sets out the conditions under which default relief from erroneous admissions can be given, that statute must control rather than the general default statute, section 473.”] disapproved on other grounds by Wilcox v. Birtwhistle, supra, 21 Cal.4th at 983.)

Here, XPO Logistics and Hernandez seek to amend or withdraw the following admissions: RFAs, set one, No. 6 propounded by Nathali on XPO Logistics; RFAs, set one, Nos. 5, 7, 13, 14, and 15 propounded by Nathali on Hernandez; RFAs, set one, Nos. 2, 4, and 10 propounded by Cabanlit on Hernandez; RFAs, set one, No. 5 propounded by Union Pacific on XPO Logistics; and RFAs, set one, No. 5 propounded by Union Pacific on Hernandez.

XPO Logistics and Hernandez contend that at the time they filed their answer to Plaintiffs First Amended Complaint, they did not file a cross-complaint because they did not have a good faith belief that any other entity bore any portion of liability for the accident. XPO Logistics and Hernandez assert that they served multiple subpoenas on cross-defendant City of Industry (the “City”) for documents, “including but not limited to specifically requesting all documentation related to the coordination or synchronization (aka preemption) of the traffic signal at Fairway Dr. and Walnut Dr., speed studies and surveys involving the SUBJECT GRADE CROSSING …” on July 13, 2018, and July 29, 2019, but in response to the subpoenas the City did not produce documents relating to preemption or responded with a Certificate of No Records. (Mot. at p. 4:23-26.)

XPO Logistics and Hernandez state that on or about September 19, 2019, Union Pacific responded to meet and confer efforts indicating there was preemption installed at the subject crossing for which the City should be producing responsive documents, and so XPO filed a claim with the City on October 1, 2019. However, on October 2, 2019, an engineer for the City allegedly called XPO Logistics’ and Hernandez’s counsel and informed counsel there was no preemption installed at the traffic signals adjacent to the cross and there were no additional documents responsive to the subpoenas served on the City. XPO Logistics and Hernandez contend that on or about January 29, 2020, XPO Logistics and Hernandez attempted to notice a deposition for the City’s person most knowledgeable, but the deposition did not take place until May 17, 2021, in part because of the Covid-19 pandemic. At the deposition, the City allegedly produced more than 1,000 pages of records concerning the crossing that indicated the City’s liability.

XPO Logistics and Hernandez aver that had the City not negligently or willfully failed to produce the relevant documents, XPO Logistics and Hernandez would have promptly would have moved to add the City as a cross-defendant in this matter, as the City’s failure to install preemption at the crossing was a substantial factor in causing the accident. Thus, XPO Logistics and Hernandez move to amend or withdraw the subject RFAs because each admits that Hernandez’s negligence was a substantial factor in causing the accident. XPO Logistics and Hernandez argue that based on the newly obtained evidence from the City, XPO Logistics and Hernandez wish to amend the responses to admit that Hernandez’s negligence was a factor but not a substantial factor in causing the accident. XPO Logistics and Hernandez contend their previous admission resulted from mistake, inadvertence, or excusable neglect because they did not have the benefit of all information withheld by the City that now contradicts the earlier admissions.

In opposition, Union Pacific provides it served the subject discovery almost two years into litigation on April 22, 2022, and it contends that XPO Logistics and Hernandez are seeking to change their position in the case without any evidence to support changed circumstances. Union Pacific contends that XPO Logistics and Hernandez fail to establish excusable neglect, as the new evidence does not change Hernandez’s role in connection with the accident. Further, Union Pacific argues the proposed amendment would substantially prejudice Union Pacific because the proposed amendments are non-responsive and has relied on XPO Logistics’ and Hernandez’s admissions in litigating and investigating this matter.

Plaintiffs, in opposition, ague XPO Logistics and Hernandez did not meet their moving burden in establishing mistake, inadvertence or excusable neglect. Plaintiffs contend that Hernandez’s conduct was clearly a substantial factor in causing the accident, and so the proposed amendments make no difference. Additionally, Plaintiffs assert that XPO Logistics and Hernandez seek to amend an RFA where XPO Logistics and Hernandez admitted Hernandez was in the course and scope of his employment at the time of the accident, and they will be prejudiced because they will be forced to conduct further discovery concerning this issue shortly before trial.

In reply, XPO Logistics and Hernandez withdraw the request to amend RFA, set one, No. 2 propounded by Cabanlit on Hernandez, as this RFA admits Hernandez was in the course and scope of his employment at the time of the accident and was included by mistake.

Although the subject RFAs were served on XPO Logistics and Hernandez in 2018, 2020, and 2021, XPO Logistics and Hernandez assert that based on newly discovered evidence the City failed to produce after multiple requests to do so, XPO Logistics and Hernandez cannot admit that Hernandez’s negligence was a substantial factor in causing the accident. Accordingly, XPO Logistics’ and Hernandez’s evidence is sufficient to show their prior admissions in the RFAs were the result of mistake, inadvertence or excusable neglect, as XPO Logistics and Hernandez assert they were made before obtaining relevant evidence that shows they were not a substantial factor in causing the accident. (New Albertsons v. Superior Court (2008) 168 Cal.App.4th 1403, 1418-19; see also Carli v. Superior Court (1984) 152 Cal.App.3d 1095, 1099 [in the context of deemed admissions 473 should be applied liberally “so cases can be tried on the merits”].)

As to the arguments that XPO Logistics and Hernandez have already admitted that Hernandez was a factor in causing the accident, whether Hernandez was a substantial factor is relevant to determining the parties’ liability and may be relevant to apportioning damages. While Union Pacific and Plaintiffs argue they will be prejudiced by granting the motion, do not identify any prejudice of the type that warrants denying the motion. Furthermore, to alleviate any potential prejudice, the parties are permitted to conduct further discovery, including written discovery and depositions, concerning XPO Logistics’ and Hernandez’s amended responses. As to Plaintiffs’ request to shift the costs for the additional discovery to XPO Logistics and Hernandez, Plaintiffs do not identify or request any specific amounts required to conduct the discovery. Thus, the court does not impose costs on XPO Logistics or Hernandez at this time.

Based on the foregoing, XPO Logistics’ and Hernandez’s motion to amend and withdraw admissions is granted. XPO Logistics and Hernandez are ordered to serve amended responses to the subject RFAs within five days. The motion is not granted as to RFA, set one, No. 2 propounded by Cabanlit on Hernandez, which was withdrawn by XPO Logistics and Hernandez.



Case Number: ****6364 Hearing Date: May 13, 2022 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ARMANDO JAPA CABANLIT, ET AL.,

Plaintiff(s),

vs.

CON-WAY FREIGHT INC., ET AL.,

Defendant(s).

)

)

)

)

)

)

)

)

)

)

)

CASE NO: ****6364

[TENTATIVE] ORDER GRANTING MOTION TO AMEND OR WITHDRAW RESPONSES TO PLAINTIFFS’ AND UNION PACIFIC RAILROAD COMPANY’S REQUESTS FOR ADMISSIONS

Dept. 31

1:30 p.m.

May 13, 2022

1. Background

On April 4, 2017, Plaintiffs Armando Japa Cabanlit (“Armando”), Patricia Nathali (“Nathali”), Ethan Cabanlit (“Ethan”), a minor, by and through his guardian ad litem, Patricia Nathali, (collectively, “Plaintiffs”) filed this action against Defendants, Con-Way Freight Inc. (“Con-Way”), XPO Logistics Freight (“XPO Logistics”), and Jose Nunez Hernandez (“Hernandez”) for damages arising from a collision between a train and tractor trailer. On June 16, 2021, Plaintiffs filed the operative Second Amended Complaint alleging the crash occurred on or about September 1, 2015, when Hernandez, who was in the course and scope of his employment for Con-Way, failed to clear train tracks at an intersection controlled by railroad cross traffic lights. The collision between the Union Pacific freight train and trailer caused the trailer to strike Plaintiff’s vehicle. XPO Logistics acquired Con-Way after the accident.

XPO Logistics and Hernandez then filed a cross-complaint against Union Pacific Railroad Company (“Union Pacific”) alleging causes of action for equitable indemnity and contribution. On April 4, 2022, XPO Logistics and Hernandez filed their operative Second Amended Cross-Complaint against Union Pacific, Mario Ramirez, and the City of Industry for equitable indemnity and contribution.

At this time, XPO Logistics and Hernandez move to amend or withdraw responses to Plaintiffs’ and Union Pacific’s requests for admissions (“RFAs”), sets one, propounded on XPO Logistics and Hernandez. Plaintiffs and Union Pacific each oppose the motion, and XPO Logistics and Hernandez filed a reply to the oppositions.

2. Motion to Amend or Withdraw Admissions

CCP 2033.300 states:

(a) A party may withdraw or amend an admission made in response to a request for admission only on leave of court granted after notice to all parties.

(b) The court may permit withdrawal or amendment of an admission only if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party's action or defense on the merits.

(c) The court may impose conditions on the granting of the motion that are just, including, but not limited to, the following:

(1) An order that the party who obtained the admission be permitted to pursue additional discovery related to the matter involved in the withdrawn or amended admission.

(2) An order that the costs of any additional discovery be borne in whole or in part by the party withdrawing or amending the admission.

CCP 2033.300 permits amendment or withdrawal of admissions expressly made by a party and also applies to “deemed admissions.” (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979.)

“The court may permit withdrawal of an admission only if the admission was the result of mistake, inadvertence, or excusable neglect and the opposing party will not be substantially prejudiced.” (Stover v. Bruntz (2017) 12 Cal.App.5th 19, 30-31.) “Because the law strongly favors trial and disposition on the merits, any doubts in applying section 2033.300 must be resolved in favor of the party seeking relief. Accordingly, the court's discretion to deny a motion under the statute is limited to circumstances where it is clear that the mistake, inadvertence, or neglect was inexcusable, or where it is clear that the withdrawal or amendment would substantially prejudice the party who obtained the admission in maintaining that party's action or defense on the merits.” (New Albertsons v. Superior Court (2008) 168 Cal.App.4th 1403, 1420-21.) Furthermore, CCP 2033.300 permits amendment or withdrawal of admissions expressly made by a party and also applies to “deemed admissions.” (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979.)

The words “mistake, inadvertence, or excusable neglect” have the same meaning in the discovery statutes as those terms have in CCP 473(b). (New Albertsons v. Superior Court (2008) 168 Cal.App.4th 1403, 1418-19; see also Carli v. Superior Court (1984) 152 Cal.App.3d 1095, 1099.) However, relief from a deemed admitted order cannot be granted under the general authority of CCP 473(b). (St. Paul Fire & Marine Ins. Co. v. Superior Court (1992) 2 Cal.App.4th 843, 852, [CCP 2033.300 specifically sets out the conditions under which default relief from erroneous admissions can be given, that statute must control rather than the general default statute, section 473.”] disapproved on other grounds by Wilcox v. Birtwhistle, supra, 21 Cal.4th at 983.)

Here, XPO Logistics and Hernandez seek to amend or withdraw the following admissions: RFAs, set one, No. 6 propounded by Nathali on XPO Logistics; RFAs, set one, Nos. 5, 7, 13, 14, and 15 propounded by Nathali on Hernandez; RFAs, set one, Nos. 2, 4, and 10 propounded by Cabanlit on Hernandez; RFAs, set one, No. 5 propounded by Union Pacific on XPO Logistics; and RFAs, set one, No. 5 propounded by Union Pacific on Hernandez.

XPO Logistics and Hernandez contend that at the time they filed their answer to Plaintiffs First Amended Complaint, they did not file a cross-complaint because they did not have a good faith belief that any other entity bore any portion of liability for the accident. XPO Logistics and Hernandez assert that they served multiple subpoenas on cross-defendant City of Industry (the “City”) for documents, “including but not limited to specifically requesting all documentation related to the coordination or synchronization (aka preemption) of the traffic signal at Fairway Dr. and Walnut Dr., speed studies and surveys involving the SUBJECT GRADE CROSSING …” on July 13, 2018, and July 29, 2019, but in response to the subpoenas the City did not produce documents relating to preemption or responded with a Certificate of No Records. (Mot. at p. 4:23-26.)

XPO Logistics and Hernandez state that on or about September 19, 2019, Union Pacific responded to meet and confer efforts indicating there was preemption installed at the subject crossing for which the City should be producing responsive documents, and so XPO filed a claim with the City on October 1, 2019. However, on October 2, 2019, an engineer for the City allegedly called XPO Logistics’ and Hernandez’s counsel and informed counsel there was no preemption installed at the traffic signals adjacent to the cross and there were no additional documents responsive to the subpoenas served on the City. XPO Logistics and Hernandez contend that on or about January 29, 2020, XPO Logistics and Hernandez attempted to notice a deposition for the City’s person most knowledgeable, but the deposition did not take place until May 17, 2021, in part because of the Covid-19 pandemic. At the deposition, the City allegedly produced more than 1,000 pages of records concerning the crossing that indicated the City’s liability.

XPO Logistics and Hernandez aver that had the City not negligently or willfully failed to produce the relevant documents, XPO Logistics and Hernandez would have promptly would have moved to add the City as a cross-defendant in this matter, as the City’s failure to install preemption at the crossing was a substantial factor in causing the accident. Thus, XPO Logistics and Hernandez move to amend or withdraw the subject RFAs because each admits that Hernandez’s negligence was a substantial factor in causing the accident. XPO Logistics and Hernandez argue that based on the newly obtained evidence from the City, XPO Logistics and Hernandez wish to amend the responses to admit that Hernandez’s negligence was a factor but not a substantial factor in causing the accident. XPO Logistics and Hernandez contend their previous admission resulted from mistake, inadvertence, or excusable neglect because they did not have the benefit of all information withheld by the City that now contradicts the earlier admissions.

In opposition, Union Pacific provides it served the subject discovery almost two years into litigation on April 22, 2022, and it contends that XPO Logistics and Hernandez are seeking to change their position in the case without any evidence to support changed circumstances. Union Pacific contends that XPO Logistics and Hernandez fail to establish excusable neglect, as the new evidence does not change Hernandez’s role in connection with the accident. Further, Union Pacific argues the proposed amendment would substantially prejudice Union Pacific because the proposed amendments are non-responsive and has relied on XPO Logistics’ and Hernandez’s admissions in litigating and investigating this matter.

Plaintiffs, in opposition, ague XPO Logistics and Hernandez did not meet their moving burden in establishing mistake, inadvertence or excusable neglect. Plaintiffs contend that Hernandez’s conduct was clearly a substantial factor in causing the accident, and so the proposed amendments make no difference. Additionally, Plaintiffs assert that XPO Logistics and Hernandez seek to amend an RFA where XPO Logistics and Hernandez admitted Hernandez was in the course and scope of his employment at the time of the accident, and they will be prejudiced because they will be forced to conduct further discovery concerning this issue shortly before trial.

In reply, XPO Logistics and Hernandez withdraw the request to amend RFA, set one, No. 2 propounded by Cabanlit on Hernandez, as this RFA admits Hernandez was in the course and scope of his employment at the time of the accident and was included by mistake.

Although the subject RFAs were served on XPO Logistics and Hernandez in 2018, 2020, and 2021, XPO Logistics and Hernandez assert that based on newly discovered evidence the City failed to produce after multiple requests to do so, XPO Logistics and Hernandez cannot admit that Hernandez’s negligence was a substantial factor in causing the accident. Accordingly, XPO Logistics’ and Hernandez’s evidence is sufficient to show their prior admissions in the RFAs were the result of mistake, inadvertence or excusable neglect. (New Albertsons v. Superior Court (2008) 168 Cal.App.4th 1403, 1418-19; see also Carli v. Superior Court (1984) 152 Cal.App.3d 1095, 1099 [in the context of deemed admissions 473 should be applied liberally “so cases can be tried on the merits”].)

As to the arguments that XPO Logistics and Hernandez have already admitted that Hernandez was a factor in causing the accident, whether Hernandez was a substantial factor is relevant to determining the parties’ liability and may be relevant to apportioning damages. While Union Pacific and Plaintiffs argue they will be prejudiced by granting the motion, do not identify any prejudice of the type that warrants denying the motion. Furthermore, to alleviate any potential prejudice, the parties are permitted to conduct further discovery, including written discovery and depositions, concerning XPO Logistics’ and Hernandez’s amended responses. As to Plaintiffs’ request to shift the costs for the additional discovery to XPO Logistics and Hernandez, Plaintiffs do not identify or request any specific amounts required to conduct the discovery. Thus, the court does not impose costs on XPO Logistics or Hernandez at this time.

Based on the foregoing, XPO Logistics’ and Hernandez’s motion toa mend and withdraw admissions is granted. XPO Logistics and Hernandez are ordered to serve amended responses to the subject RFAs within five days. The motion is not granted as to RFA, set one, No. 2 propounded by Cabanlit on Hernandez, which was withdrawn by XPO Logistics and Hernandez.

Moving Defendants XPO Logistics and Hernandez are ordered to give notice.

PLEASE TAKE NOTICE:

Dated this 13th day of May 2022

Paul Bruguera

Commissioner



Case Number: ****6364 Hearing Date: May 12, 2022 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ARMANDO JAPA CABANLIT, ET AL.,

Plaintiff(s),

vs.

CON-WAY FREIGHT INC., ET AL.,

Defendant(s).

)

)

)

)

)

)

)

)

)

)

)

)

)

CASE NO: ****6364

[TENTATIVE] ORDER (1) SUSTAINING IN PART AND OVERRULING IN PART DEMURRER TO SECOND AMENDED CROSS-COMPLAINT; (2) GRANTING IN PART MOTION TO STRIKE; (3) DENYING MOTION TO BIFURCATE; GRANTING REQUEST TO CONTINUE TRIAL

Dept. 31

1:30 p.m.

May 12, 2022

1. Background

On April 4, 2017, Plaintiffs Armando Japa Cabanlit (“Armando”), Patricia Nathali (“Nathali”), Ethan Cabanlit (“Ethan”), a minor, by and through his guardian ad litem, Patricia Nathali, (collectively, “Plaintiffs”) filed this action against Defendants, Con-Way Freight Inc. (“Con-Way”), XPO Logistics Freight (“XPO Logistics”), and Jose Nunez Hernandez (“Hernandez”) for damages arising from a collision between a train and tractor trailer. On June 16, 2021, Plaintiffs filed the operative Second Amended Complaint (“SAC”) alleging the crash occurred on or about September 1, 2015, when Hernandez, who was in the course and scope of his employment for Con-Way, failed to clear train tracks at an intersection controlled by railroad cross traffic lights. The collision between the Union Pacific freight train and trailer caused the trailer to strike Plaintiff’s vehicle. XPO Logistics acquired Con-Way after the accident.

On November 26, 2018, XPO Logistics and Hernandez filed a cross-complaint against Union Pacific Railroad Company (“Union Pacific”), and on December 9, 2021, XPO filed their First Amended Cross-Complaint (“FACC”) against Union Pacific Railroad Company (“Union Pacific”) and Mario Ramirez alleging causes of action for equitable indemnity and contribution. On January 11, 2022, XPO filed an Amendment to Cross-Complaint naming the City of Industry (the “City”) as Roe 1 in the FACC.

The City then demurred to the FACC arguing it failed to state a claim against it because XPO Logistics and Hernandez failed to comply with the Government Claims Act (the “Act”) prior to filing the FACC. The demurrer to the FACC was sustained with 10 days leave to amend so that XPO Logistics and Hernandez could allege additional facts, if any, that they had pertaining to the equitable estoppel claim raised by XPO Logistics and Hernandez. (Min. Order March 22, 2022.)

On April 4, 2022, XPO Logistics and Hernandez filed their Second Amended Cross-Complaint (“SACC”) against Union Pacific, Mario Ramirez, and the City for equitable indemnity and contribution.[1]

At this time, the City demurs to the SACC arguing it fails to state a claim against the City because XPO Logistics and Hernandez failed to comply with the Act’s requirements and that equitable estoppel does not save their claims. The City further moves to strike portions of the SACC it contends are false and irrelevant. Plaintiff opposes the demurrer and motion to strike, and the City filed a reply to each.

In addition, the City moves for an order severing trial of XPO Logistics’ and Hernandez’s claims against the City from the trial on Plaintiffs’ SAC. Alternatively, the City requests the court continued trial in this matter to October 3, 2022. XPO Logistics and Hernandez oppose this motion, and the City filed a reply.

2. Demurrer

A demurrer is a pleading used to test the legal sufficiency of other pleadings. It raises issues of law, not fact, regarding the form or content of the opposing party's pleading (complaint, answer or cross-complaint). (CCP 422.10, 589; see Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true. (Donabedian, 116 Cal.App.4th at 994.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, supra, 116 Cal.App.4th at 994.) No other extrinsic evidence can be considered. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [error for court to consider facts asserted in memorandum supporting demurrer]; see also Afuso v. United States Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 862 [disapproved on other grounds in Moradi-Shalal v. Fireman’s Fund Ins. Cos. (1988) 46 Cal.3d 287] [error to consider contents of release not part of court record].)

A demurrer can be utilized where the “face of the complaint” itself is incomplete or discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 971-72.) The “face of the complaint” includes material contained in attached exhibits that are incorporated by reference into the complaint; or in a superseded complaint in the same action. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94; see also Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505 [“[W]e rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”]).

A demurrer can only be sustained when it disposes of an entire cause of action. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97,119; Kong v. City of Hawaiian Gardens Redev. Agency (2003) 108 Cal.App.4th 1028, 1046.)

a. Meet and Confer

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP 430.41(a).)

The court finds Defendant has fulfilled this requirement prior to filing the demurrer. (Demurrer Cheng Decl. RE: Meet and Confer 2-4.)

b. Evidentiary Objections

XPO Logistics and Hernandez submit 15 objections to the declarations submitted with the City’s demurrer and to the City’s requests for judicial notice. Objections 1-5 are overruled. Nonetheless, in ruling on the demurrer and motion to strike, the court will only consider the relevant pleading- the SACC- and any judicially noticeable evidence. The court addresses objections 6-15 directed at the City’s requests for judicial notice below.

c. Requests for Judicial Notice

The City submits 14 requests for judicial notice. Requests 1 and 2 are granted. (Evid. Code 452(c)-(d).) The court notes it is not taking judicial notice of any testimony or the truth of any matters asserted therein, but rather is taking judicial notice of the filing and contents of the government claim. (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 369-70 n. 1; see also Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1752-53.) Requests 4-6 and 10 are granted as they are in the court’s records. (Evid. Code 452(d).) Requests 11-13 concerning definitions of words in the California Department of Transportation, California Manual on Uniform Traffic Control Devices are granted. (See Evid. Code 451(e); see also Californians v. Fair Representation—No on 77 v. Superior Court (2006) 138 Cal.App.4th 15, 25, fn. 3 [granting judicial notice of Fair Political Practices Commission's Addendum to Campaign Manuals as a publication of an public agency].)

Requests 3, 7-9, and 14 are denied, as the City does not establish it is proper to take judicial notice of the subject subpoena, proposed facts, and website printouts. (Richtek USA, Inc. v. uPI Semiconductor Corporation (2015) 242 Cal.App.4th 651, 660 [“A demurrer is simply not the appropriate procedure for determining the truth of disputed facts. The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable.” (internal quotations and citations omitted)]; see also Freemont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-115 [“Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable.”]; see also Hartwell Corp. v. Superior Court (2002) 27 Cal.4th 256, 279 fn. 12 [denied request for judicial notice of internet pages from Department of Health Services website].)

Based on the foregoing, Plaintiff objections 6-11 and 15 are sustained. Objections 12-14 are overruled.

c. Untimely Government Claim

Government Code 945.5 provides, “No suit for damages may be maintained against a public entity unless the claim has been presented to it.” Further, Government Code 901 provides:

For the purpose of computing the time limits prescribed by Sections 911.2, 911.4, 945.6, and 946.6, the date of the accrual of a cause of action to which a claim relates is the date upon which the cause of action would be deemed to have accrued within the meaning of the statute of limitations which would be applicable thereto if there were no requirement that a claim be presented to and be acted upon by the public entity before an action could be commenced thereon. However, the date upon which a cause of action for equitable indemnity or partial equitable indemnity accrues shall be the date upon which a defendant is served with the complaint giving rise to the defendant's claim for equitable indemnity or partial equitable indemnity against the public entity.

(Emphasis added.)

California Government Code 911.2(a) states, “[a] claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action.”

“The Tort Claims Act requires that any civil complaint for money or damages first be presented to and rejected by the pertinent public entity [Citation]. The act creates a bond between the administrative claim and the judicial complaint. Each theory of recovery against the public entity must have been reflected in a timely claim. In addition, the factual circumstances set forth in the claim must correspond with the facts alleged in the complaint.” (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1776.)

“A public entity cannot be sued for tort unless (1) a timely written claim has previously been presented to the governmental entity, (2) any late claim has been presented to the public entity and been excused by it or the court, or (3) conditions described by Government Code section 946.4 … have been met.” (Greyhound Lines, Inc. v. County of Santa Clara (1986) 187 Cal.App.3d 480, 483.)

“The failure to timely present a proper claim … bars a plaintiff from filing a lawsuit against that entity. [Citation.]” (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 374.) Thus, “[e]ven if the public entity has actual knowledge of facts that might support a claim, the claims statutes still must be satisfied. [Citation.]” (DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 990.) “The filing of a claim is a condition precedent to the maintenance of any cause of action against the public entity and is therefore an element that a plaintiff is required to prove in order to prevail.” (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 767.)

“ ‘A key restrictive feature of traditional equitable indemnity is that, on matters of substantive law, the doctrine is “wholly derivative....” [Citations.] This rule “is often expressed in the shorthand phrase ‘... there can be no indemnity without liability.’ ” [Citation.]’ ” (Centex Homes v. Superior Court (2013) 214 Cal.App.4th 1090, 1099.) The plain language of Government Code 901 “provides that a defendant's equitable indemnity cause of action against a public entity accrues upon the service of the complaint that contains the cause of action for which indemnity is sought.” (Id. at 1101, citing State v. Superior Court (1983) 143 Cal.App.3d 754 (Shortstop); Greyhound Lines, Inc. v. County of Santa Clara (1986) 187 Cal.App.3d 480.)

Here, Plaintiffs served their FAC on XPO Logistics on June 16, 2017, and on Hernandez on November 25, 2017. In ruling on the City’s demurrer to the FACC, the court determined that pursuant to Government Code 901, XPO Logistics’ and Hernandez’s claims for indemnity accrued when each was served with Plaintiffs’ FAC. However, XPO Logistics and Hernandez did not file a claim with the City until October 1, 2019, which was more than two years after XPO Logistics’ claim accrued, and nearly two years after Hernandez’s claim accrued. (FACC 26; SACC 35.) Consequently, XPO Logistics’ and Hernandez’s allegations and the judicially noticeable evidence showed that XPO Logistics and Hernandez failed to comply with the Act’s claims requirements. After addressing XPO Logistics’ and Hernandez’s arguments that the City was equitably estopped from asserting a limitations defense due to its conduct, the City’s demurrer was sustained with leave to amend to allow XPO Logistics and Hernandez specifically to clarify the grounds for estoppel. (Min. Order March 22, 2022.)

Therefore, whether XPO Logistics and/or Hernandez can plead a claim against the City depends on whether the doctrine of equitable estoppel applies to bar the City from asserting XPO Logistics’ and Hernandez’s claim was untimely.

d. Equitable Estoppel

A public entity “may be estopped from asserting the limitations of the claims statute where its agents or employees have prevented or deterred the filing of a timely claim by some affirmative act.” (Santos v. Los Angeles Unified School Dist. (2017) 17 Cal.App.5th 1065, 1075.) “ ‘Estoppel most commonly results from misleading statements about the need for or advisability of a claim.’ [Citation.] However, ‘[e]quitable estoppel does not require factually misleading statements.’ [Citations.] ‘[A]ctual fraud or the intent to mislead is not essential.’ ” (Id. at 1075-76.) However, “[r]eliance by the party asserting the estoppel on the conduct of the party to be estopped must have been reasonable under the circumstances.” (Id. at 1076.)

“Estoppel as a bar to a public entity’s assertion of the defense of noncompliance arises when the plaintiff establishes by a preponderance of the evidence: (1) the public entity was apprised of the facts, (2) it intended its conduct to be acted upon, (3) plaintiff was ignorant of the true state of facts, and (4) [the plaintiff] relied upon the conduct to his detriment.” (Id. at 1076.)

Here, the SACC alleges that alleges that XPO Logistics and Hernandez served multiple subpoenas on the City concerning preemption of the subject crossing, but the City did not produce documents relating to preemption until years after XPO Logistics and Hernandez made the first request. The SACC alleges that XPO Logistics and Hernandez served subpoenas on the City for documents relating to the incident, “including but not limited to specifically requesting all documentation related to the coordination or synchronization (aka preemption) of the traffic signal at Fairway Dr. and Walnut Dr., speed studies and surveys involving the SUBJECT GRADE CROSSING …” on July 13, 2018, and July 29, 2019, but in response to the subpoenas the City did not produce documents relating to preemption or responded with a Certificate of No Records. (SACC 15-21, 28-30.)

Thereafter, on or about September 19, 2019, Union Pacific responded to meet and confer efforts indicating there was preemption installed at the subject crossing for which the City should be producing responsive documents, and so XPO filed a claim with the City on October 1, 2019. (Id. at 34-35.) However, on October 2, 2019, an engineer for the City called XPO Logistics’ and Hernandez’s counsel and informed counsel there was no preemption installed at the traffic signals adjacent to the cross and there were no additional documents responsive to the subpoenas served on the City. (Id. at 36.) On or about January 29, 2020, XPO Logistics and Hernandez attempted to notice a deposition for the City’s person most knowledgeable, but the deposition did not take place until May 17, 2021, in part because of the Covid-19 pandemic. (Id. at 41-46.) At the deposition, the City allegedly produced more than 1,000 pages of records concerning the crossing that indicated the City’s liability. (Id. at 46.)

The SACC further alleges that based on the City’s actions, including providing declarations under penalty of perjury that the City did not have any documents concerning preemption, the City intended XPO Logistics and Hernandez to rely on its representations and induce XPO Logistics and Hernandez into not filing a claim or late claim against the City. (Id. 20, 31.)

The City argues the SACC contains no additional facts that XPO Logistics relied on any conduct by the City prior to XPO’s six-month deadline to present a claim to the City, which was December 18, 2017, and its deadline to apply to present a late claim, which was June 18, 2018. Further, the City contends Hernandez failed to present a timely claim or application to present a late claim, and that Hernandez cannot satisfy all the elements of equitable estoppel. The City asserts that Hernandez was not ignorant of the true state of facts to timely file his claim against the City because Hernandez knew all the information necessary to file a claim with the City by July 2018, and that the City did not induce Hernandez into failing to file a timely claim because his six-month deadline to file a timely claim passed on May 25, 2018, when the City responded to the July 2018 subpoena. The City contends Hernandez also failed to act diligently to discovery the truth of his claims against the City, and that Hernandez failed to act diligently after allegedly discovering the truth of his claims. Additionally, the City argues applying equitable estoppel would defeat the operation effective operation of the Act and would lead to unjust results.

In opposition, XPO Logistics and Hernandez assert that on four separate occasions the City affirmatively represented there were no documents in its possession that related to preemption, and that it took five attempts for the City to produce documents responsive to the subpoena. XPO Logistics and Hernandez contend the City clearly intended they rely on the representations, and that based on the representations, XPO Logistics and Hernandez were deterred from filing a government claim or late claim application. Moreover, XPO Logistics and Hernandez argue the City’s extrinsic facts and evidence cannot be considered on demurrer, and as to the City’s arguments that Hernandez’s name was not on the subpoena, XPO Logistics and Hernandez asserts they are represented by the same counsel. XPO Logistics and Hernandez contend they acted diligently when they became aware of the City’s liability, and that equitable estoppel can apply under the Act.

The City, in reply, avers XPO Logistics and Hernandez do not address how XPO Logistics’ claims can be cured, so XPO Logistics’ claims must be dismissed. Further, the City again asserts that Hernandez cannot establish equitable estoppel.

Concerning XPO Logistics, the SACC alleges XPO Logistics was served with Plaintiff’s FAC on June 16, 2017. This would mean that XPO Logistics had until December 16, 2017, to present a claim for damages to the City, (Gov. Code 911.2(a)), or until June 16, 2018, to file an application for leave to present a late claim. (Gov. Code 911.4(a)-(b).) However, XPO Logistics did not serve the first subpoena requesting records relating to preemption at the crossing until July 13, 2018, more than one year after XPO Logistics was served with Plaintiffs’ FAC. Accordingly, the SACC does not contain any allegations that any actions by the City prevented XPO Logistics from timely presenting a claim to the City, as the allegations concerning the City’s misrepresentations in in response to the subpoenas concern conduct that occurred solely after the deadline for XPO Logistics to file a claim expired. (See Lantzy v. Centex Homes (“Lantzy”) (2003) 31 Cal.4th 363, 385 [plaintiff's allegations in the complaint that “at various times” the defendants made certain representations were insufficient to support plaintiffs' estoppel claim because they did not allege sufficient facts to show that this conduct prevented plaintiffs from filing their lawsuit during the period in which it would have been timely].) Therefore, there is no showing that XPO Logistics relied on any conduct by the City to its detriment prior to the deadline for XPO Logistics to file its claim expiring, and the SACC does not sufficiently allege the City is equitably estopped from asserting XPO Logistics did not comply with the Act’s claim filing requirements.

Accordingly, as to XPO Logistics’ claims in the SACC against the City, the demurrer is sustained.

As to Hernandez, the SACC alleges he was served with Plaintiffs’ FAC on November 25, 2017. While Hernandez would have been required to file a claim with the City by May 25, 2017, Hernandez would have had until November 25, 2018, to file an application to present a late claim to the City. The SACC alleges that prior to the time to present a late claim expiring, Hernandez and XPO Logistics issued a subpoena to the City requesting documents relating to the incident, including for preemption, but the City produced no documents indicating the City may be liable for the incident and instead provided an affidavit stating the City was not in possession of any documents related “to the coordination or synchronization of the traffic light (aka preemption)” at the crossing. (SACC 16.)

The SACC asserts that the July 13, 2018, subpoena’s scope apprised the City that an accident occurred at the subject crossing and a claim against the City could result. (Id. at 15, 18.) Furthermore, Hernandez alleges the City clearly intended to induce Hernandez into not filing a claim or presenting a late claim application because if the City had produced the relevant documents, Hernandez would have timely filed a late claim application. (Id. at 17.) Hernandez, however, contends he detrimentally relied on the City’s representation the documents did not exist and did not believe he had a claim against the City. (Id. at 17, 21.) Hernandez avers that based on the City’s multiple misrepresentations, Hernandez was ignorant of the true facts related preemption at the crossing and that there was an ongoing issue with traffic queuing at the crossing. (Id. at 21, 32, 38.) The SACC, thus, on its face states all necessary elements of equitable estoppel. (Santos v. Los Angeles Unified School Dist., 17 Cal.App.5th at 1076.)

While the City argues Hernandez was not ignorant of the true state of facts to timely file a claim, the SACC sufficiently alleges that based on the City’s representations, Hernandez was not aware of the true state of facts. As to the City’s arguments that the July 2018 subpoena was not issued by Hernandez, the City’s request for judicial notice of the subpoena was denied. Furthermore, Hernandez asserts the subpoena indicated that additional parties were involved such that the court cannot determine whether the City actually had any factual basis to be aware Hernandez was involved in serving the subpoena. In ruling on the demurrer, the court is limited to the face of the SACC and judicially noticeable evidence, so the court cannot determine whether the subpoena actually made the City aware of the true state of facts, including Hernandez’s involvement.

Additionally, the SACC alleges that the City did not produce relevant documents concerning preemption until May 17, 2021, and Hernandez asserts he then filed a Roe Amendment naming the City on September 1, 2021. Hernandez, thus, filed the Roe Amendment just over three months after the City produced the relevant documents and did not fail to act diligently after discovering such. Lastly, as to the City’s arguments that equitable estoppel would defeat the operating of the Act and would lead to unjust results, as Hernandez argues in opposition, the doctrine of equitable estoppel has been applied in circumstances involving the Act, and given the SACC’s allegations that the delay in naming the City was due at least in part to the City’s misrepresentations, the court does not find that allowing Hernandez to plead equitable estoppel against the City will lead to unjust results.

Therefore, the demurrer as to Hernandez’s claims against the City is overruled.

e. Leave to Amend for XPO Logistics

The burden is on Plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.)

In this case, XPO Logistics does not request leave to amend, nor is there any argument provided showing there is a reasonable possibility the SACC can be cured as to XPO Logistics.

Defendant’s demurrer is sustained without leave to amend as to XPO Logistics’ claims against the City.

3. Motion to Strike

California law authorizes a party’s motion to strike matter from an opposing party’s pleading if it is irrelevant, false, or improper. (CCP 435; 436(a).) Motions may also target pleadings or parts of pleadings which are not filed or drawn in conformity with applicable laws, rules or orders. (CCP 436(b).) A motion to strike is used to address defects that appear on the face of a pleading or from judicially noticed matter but that are not grounds for a demurrer. (Pierson v Sharp Memorial Hospital (1989) 216 Cal.App.3d 340, 342; see also City & County of San Francisco v Strahlendorf (1992) 7 Cal.App.4th 1911, 1913 (motion may not be based on a party's declaration or factual representations made by counsel in the motion papers).) In particular, a motion to strike can be used to attack the entire pleading or any part thereof – in other words, a motion may target single words or phrases, unlike demurrers. (Warren v. Atchison, Topeka & Santa Fe Railway Co. (1971) 19 Cal.App.3d 24, 40.) California’s policy of liberal construction applies to motions to strike. (CCP 452; see also Duffy v. Campbell (1967) 250 Cal.App.2d 662, 666 (noting that courts must resolve all reasonable doubts in favor of the pleading when considering a motion to strike).) The Code of Civil Procedure also authorizes the Court to act on its own initiative to strike matters, empowering the Court to enter orders striking matter “at any time in its discretion, and upon terms it deems proper.” (CCP 436.)

Here, the City moves to strike paragraphs 15-22 and 35 on the grounds that the matters asserted demonstrably false based on judicially noticeable documents.

First, as to the City’s arguments concerning XPO Logistics, the motion is moot in light of the above ruling sustaining the demurrer without leave to amend as to XPO Logistics’ claims against the City.

Second, to the extent the City relies on the July 2018 subpoena in asserting that Hernandez’s claims are false, as addressed above, the City’s request for judicial notice of the subpoena was denied. Moreover, the allegations concerning the subpoena are not irrelevant as to Hernandez’s equitable estoppel claim. Similarly, as to the City’s argument that the SACC makes multiple false claims that coordination or synchronization of traffic lights and preemption with respect to a rail crossing are the same thing, the City’s request for judicial notice was denied as to the definition of traffic signal synchronization was denied, and even if the request were granted, the parties interpretations of the relevant definitions in the subpoena is relevant to the issues between the parties such that the relevant allegations would not be stricken from the SACC.

Based on the foregoing, the City’s motion to strike is denied to the extent the subject allegations are made by Hernandez, in whole or in part.

4. Motion to Bifurcate or Continue Trial

The City moves for an order severing trial of XPO Logistics’ and Hernandez’s SACC from Plaintiffs’ SACC. Alternatively, the City seeks to continue the current trial date of July 19, 2022, to October 3, 2022, and all related discovery and procedural deadlines.

a. Request to Bifurcate Trial

The City’s motion to bifurcate is denied without prejudice to the City raising this issue for the trial judge to consider, on its own motion, at the time that the judge rules upon motions in limine. The court orders that the bifurcation briefing be included in the trial binders in Tab B along with any motions in limine filed in the case. The Court recognizes that CRC Rule 3.57(c) states, “A motion in limine may not be used for the purpose of seeking an order to try an issue before the trial of another issue or issues,” and thus this order should not be construed in a way that contradicts this rule. The City may direct the trial court to this order, which should not be construed to in any way bind the trial court in making a bifurcation decision on its own motion.

The City properly sought a bifurcation order in advance of the trial date. See CCP 598 (court to issue order bifurcating case on noticed motion by the pretrial conference or, absent a pretrial conference, no later than 30 days in advance of trial). However, a trial court may also “on its own motion . . . make such an order at any time.” Id.

On the facts of this case, and given that in the Personal Injury Court system this case will be tried by a different court than the court ruling on this motion, the Court finds it appropriate for the trial judge to determine whether bifurcation is warranted. In the PI Court system, the trial court rules on motions in limine, even those that significantly affect trial preparation. While this bifurcation request is not a motion in limine, the logic of having the trial judge determine it here is similar. The request for bifurcation here appears to be one for which the trial judge should make a discretionary determination based on its experience.

Accordingly, the request to sever trials is denied without prejudice.

b. Request to Continue trial

Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. (CRC Rule 3.1332(c).) The Court may grant a continuance only on an affirmative showing of good cause requiring the continuance. (CRC Rule 3.1332(c).) The Court may look to the following factors in determining whether a trial continuance is warranted: (1) proximity of the trial date; (2) whether there was any previous continuance of trial due to any party; (3) the length of the continuance requested; (4) the availability of alternative means to address the problem that gave rise to the motion; (5) the prejudice that parties or witnesses will suffer as a result of the continuance; and (6) whether trial counsel is engaged in another trial. (See generally, CRC Rule 3.1332(d)(1)-(11).) Additional factors for the Court to consider include: a party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; whether all parties have stipulated to a continuance; and any other fact or circumstance relevant to the fair determination of the motion or application. (CRC Rule 3.1332(c), (d).)

Here, the City avers a continuance is necessary because the current trial date is only 109 days after the City was served with XPO Logistics’ and Hernandez’s SACC, and that without a continuance, the City is precluded from having a motion for summary judgment heard at least 75 days before the hearing date. The City contends the continuance will not violate the five-year deadline to bring a case to trial because Emergency Rule 10 extended the time to bring a case to trial by six months, and that City was only involved in one previous trial continuance. While XPO Logistics and Hernandez oppose the request for separate trials, they do not oppose the request for a trial continuance. The request for a trial continuance, thus, is unopposed, and the City establishes good cause for the continuance in light of the fact Defendant was named as a cross-defendant after significant time had passed in this matter.

The City’s request to continue trial is granted. The July 19, 2022, trial date is continued to October 3, 2022, at 8:30 a.m. in Department 31 of the Spring Street Courthouse. The July 6, 2022, Final Status Conference is continued to September 16, 2022, at 10:00 a.m. in Department 31. All discovery and expert cut-off dates are continued to reflect the new trial date.

Moving Defendants are ordered to give notice.

PLEASE TAKE NOTICE:

Dated this 12th day of May 2022

Paul Bruguera

Commissioner


[1] The SACC also named California Department of Transportation as Roe 2. However, after filing the SACC, XPO Logistics and Hernandez filed a Request for Dismissal dismissing California Department of Transportation.



Case Number: ****6364 Hearing Date: May 10, 2022 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ARMANDO JAPA CABANLIT, ET AL.,

Plaintiff(s),

vs.

CON-WAY FREIGHT INC., ET AL.,

Defendant(s).

)

)

)

)

)

)

)

)

)

)

)

CASE NO: ****6364

[TENTATIVE] ORDER GRANTING XPO’S MOTION TO COMPEL DEPOSITIONS

Dept. 31

1:30 p.m.

May 10, 2022

On April 4, 2017, Plaintiffs, Armando Japa Cabanlit, Patricia Nathali, Ethan Cabanlit, a minor, by and through his guardian ad litem, Patricia Nathali, (collectively, “Plaintiffs”) filed this action against Defendants, Con-Way Freight Inc., XPO Logistics Freight (“XPO Logistics”), and Jose Nunez Hernandez (“Hernandez”) for damages arising from a collision between a train and tractor trailer that occurred on or about September 1, 2015. XPO Logistics and Hernandez (collectively, “XPO”) have filed a First Amended Cross-Complaint against Union Pacific Railroad Company (“Union Pacific”) alleging causes of action for equitable indemnity and contribution.

At this time, XPO moves to compel the deposition of Union Pacific employees, Israel Razo (“Razo”) and John Johnson (“Johnson”). Union Pacific opposes the motion, and XPO filed a reply.

CCP 2025.450(a) provides, “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” CCP 2025.450 requires the Court to compel the deposition unless it finds a valid objection was served under 2025.410.

Here, XPO provides that 11 days prior to the subject accident on August 21, 2015, another Union Pacific train struck a trailer on the same railroad tracks. Razo and Johnson were involved in the prior accident. XPO asserts it served Union Pacific with notices of taking Razo’s and Johnson’s depositions, but Union Pacific objected to the depositions notices and after meeting and conferring, Union Pacific indicated Razo and Johnson would not be produced absent a court order. XPO argues Razo and Johnson have information central to XPO’s defense, including that the subject crossing where the incident occurred was a known hazard.

In opposition, Union Pacific contends XPO is seeking unnecessary and irrelevant information, as Razo and Johnson were operating a train involved in a separate incident and have no knowledge of the railroad crossing. Union Pacific asserts XPO has already completed an unreasonable amount of discovery in this action, including noticing the majority of 145 depositions in this matter thus far. Further, Union Pacific avers Razo’s and Johnson’s deposition testimony is not reasonably calculated to lead to the discovery of admissible evidence.

In reply, XPO asserts that XPO has not sought a protective order at any time in this case, and contends that information concerning a similar accident 11 days prior to the subject accident is relevant to the claims and defenses in this matter. XPO contends it has only taken five depositions of Union Pacific’s employees, and that Union Pacific has made certain representations in written discovery that needs to be vetted in deposition.

Although Union Pacific argues that the depositions of Razo and Johnson will not lead to the discovery of admissible evidence, “[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action,” (Code Civ. Proc., 2017.010.) “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement ...” (citation).” These rules are applied liberally in favor of discovery, (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790), and contrary to popular belief fishing expeditions are permissible in some cases. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 385.)

Union Pacific does not dispute that Razo and Johnson were involved in a similar accident at the same railroad crossing involving a train and trailer only 11 days before the subject accident. As XPO argues, Razo and Johnson may have relevant information concerning the subject crossing and can corroborate or dispute Union Pacific’s written discovery responses indicating it specifically instructed its engineers to watch for hazards at the crossing. Union Pacific does not establish that the depositions would otherwise be unduly burdensome or excessive. (See Darbee v. Superior Court, San Mateo County (1962) 208 Cal.App.2d 680, 687 [burden of showing discovery request is unduly burdensome or oppressive is on the party making the objection].) As to Union Pacific’s argument that XPO seeks to ask improper contention questions at the depositions, Union Pacific may raise any proper objections at the time such a question is asked.

Based on the foregoing, the motion to compel is granted. (CCP 2025.450(a).) Union Pacific is ordered to produce Razo and Johnson for deposition at a date, time, and location to be noticed by XPO. XPO must give at least ten days’ notice of the deposition (notice extended per Code if by other than personal service).

CCP 2025.450(g)(1) requires the Court to impose sanctions unless it finds the deponent acted with substantial justification or there are circumstances that render imposition of sanctions unjust. The court awards XPO two hours for preparing the motion, one hour for the reply, and one hour for appearing at the hearing all at the rate of $195 per hour, for a total attorney’s fees award of $780. Further, XPO is awarded the motion filing fee of $60 as costs.

Sanctions are sought and imposed against Union Pacific and Union Pacific’s attorney of record, jointly and severally. They are ordered to pay sanctions to XPO, by and through its attorney of record, in the total amount of $840, within twenty days.

XPO is ordered to give notice.

PLEASE TAKE NOTICE:

Dated this 10th day of May 2022

Paul Bruguera

Commissioner



b"

Case Number: ****6364 Hearing Date: October 6, 2021 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ARMANDO JAPA CABANLIT, ET AL.,

Plaintiff(s),

vs.

CON-WAY FREIGHT INC., ET AL.,

Defendant(s).

)

)

)

)

)

)

)

)

)

)

)

CASE NO: ****6364

[TENTATIVE] ORDER DENYING MOTION TO COMPEL FURTHER RESPONSES

Dept. 31

1:30 p.m.

October 6, 2021

1. Background

Plaintiffs, Armando Japa Cabanlit (“Armando”), Patricia Nathali (“Nathali”), Ethan Cabanlit (“Ethan”), a minor, by and through his guardian ad litem, Patricia Nathali, (collectively, “Plaintiffs”) filed this action against Defendants, Con-Way Freight Inc. (“Con-Way”), XPO Logistics Freight (“XPO”), and Jose Nunez Hernandez (“Hernandez”) for damages arising from a collision between a train and tractor trailer. On April 14, 2017, Plaintiffs filed the operative First Amended Complaint (“FAC”) alleging the crash occurred on or about September 1, 2015, when Hernandez, who was in the course and scope of his employment for Con-Way, failed to clear train tracks at an intersection controlled by railroad cross traffic lights. (FAC ¶ 18.) The collision between the Union Pacific freight train and trailer caused the trailer to strike Plaintiff’s vehicle. (Ibid.) XPO acquired Con-Way after the accident.

On November 26, 2018, XPO and Hernandez (collectively, “XPO”) filed a cross-complaint against Union Pacific Railroad Company (“Union Pacific”) alleging causes of action for equitable indemnity and contribution. On February 11, 2019, Plaintiffs filed an Amendment to Complaint naming Doe 1 as Union Pacific and Doe 2 as Mario Ramirez (“Ramirez”).

On September 10, 2021, XPO filed the instant motion to compel further responses to request for production of documents (“RPDs”), sets two and three, against Union Pacific. On September 22, 2021, the XPO and Union Pacific participated in an Informal Discovery Conference (“IDC”) concerning the subject discovery issues. The issues were not resolved, but the court ordered the parties to further meet and confer.

On September 23, 2021, Union Pacific filed an opposition providing that after the parties met and conferred, the only remaining issue concerned RPDs, set two, Nos. 102-103, which Union Pacific asserts relate to Union Pacific’s personnel files for its employees, Ramirez and Steve Gutierrez (“Gutierrez”). In particular, Union Pacific provides it has agreed to produce Ramirez’s and Gutierrez’s training records, disciplinary records and any accidents from their hire date to September 2015, but Union Pacific contends it should not be compelled to produce the entire medical files of its employees contained in its personnel records. Union Pacific argues producing its employees’ medical records violates their right to privacy, and neither Ramirez nor Gutierrez have been advised, noticed, or subpoenaed for this information. Further, Union Pacific argues any probative value of the medical records is preempted by the Federal Railroad Safety Act (‘FRSA”).

In reply, XPO contends Ramirez and Gutierrez were involved in the subject accident, and the only remaining issue concerns their medical records. XPO contends the requested records are probative as to causation of the accident, as Union Pacific is required to perform regular medical exams of its employees to ensure they are fit for their job duties. Additionally, XPO avers the probative value of the records outweighs any privacy interest in the records, and that the FRSA does not preempt the requested records at the discovery stage.

2. Motion to Compel Further Responses

CCP ; 2031.310(a) provides that on receipt of a response to a request for production of documents, the demanding party may move for an order compelling further responses if:

(1) A statement of compliance with the demand is incomplete.

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

(3) An objection in the response is without merit or too general.

Confidential personnel files at a person's place of employment are within a zone of privacy. (Board of Trustees of Leland Stanford Jr. Univ. v. Superior Court (1981) 119 Cal.App.3d 516, 528-30.)

When compelled disclosure intrudes on constitutionally protected areas, it cannot be justified solely on the ground that it may lead to relevant information, rather, the compelled disclosure must be directly relevant. (Board of Trustees v. Superior Court (1981) 119 Cal.App.3d 516, 525.) Even when discovery of private information is found directly relevant to the issues of ongoing litigation, it will not be automatically allowed; there must then be a “careful balancing” of the “compelling public need” for discovery against the “fundamental right of privacy.” (Ibid.)

The Court must carefully balance the right of privacy against the need for disclosure. (Britt v. Superior Court (1978) 20 Cal.3d 844, 855-56; see also John B. v. Superior Court (2006) 38 Cal.4th 1177, 1199.) The ascertainment of the truth in connection with legal proceedings is a compelling state interest. (Britt v. Superior Court (1978) 20 Cal.3d 844, 857.) In balancing the divergent interests, the court considers the purpose of the information sought, the effect that disclosure will have on the affected persons and parties, the nature of the objections urged by the party resisting disclosure, and the availability of the alternative, less intrusive means for obtaining the requested information. (Hooser v. Superior Court (2000) 84 Cal.App.4th 997, 1005.) The more sensitive the nature of the personal information that is sought, the more substantial the showing of the need for the discovery that will be required before disclosure will be permitted. (Id. at 1004.)

A threatened invasion of privacy can, to be sure, be extremely grave, and to the extent it is, to conclude in a given case that only a compelling countervailing interest and an absence of alternatives will suffice to justify the intrusion may be right… Courts must [ ] place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies ... What suffices to justify an invasion will … vary according to the context. Only obvious invasions of interests fundamental to personal autonomy must be supported by a compelling interest.

(Williams v. Superior Court (2017) 3 Cal.5th 531, 557.)

Here, as to RPDs, set two, Nos. 102-103, the sole remaining issue concerns Union Pacific’s medical records for Ramirez and Gutierrez contained in their personnel files. XPO admittedly seeks the entirety of Ramirez’s and Gutierrez’s medical records in their personnel records. While XPO identifies vision and hearing records, any records identifying medical conditions necessitating prescription medications, and drug tests following the incident as probative, it is not clear how all medical records in Union Pacific’s personnel files regarding Ramirez and Gutierrez are relevant to this action. Further, the RPDs as to the medical records requested are not limited by duration, and thus, would necessarily include information concerning medical conditions Ramirez or Gutierrez may have had in the past. XPO does not establish the entirety of Ramirez’s and Gutierrez’s medical records are relevant to this action.

In addition, Union Pacific contends neither Ramirez nor Gutierrez have been advised, noticed, or subpoenaed for this information. Gutierrez is not a party to this action, and while Ramirez is a defendant, Union Pacific provides Ramirez has not yet appeared and is not represented by counsel in this action. The requests sought implicate the privacy interests of Ramirez and Gutierrez in their personnel and medical records. Personnel records are protected from disclosure by the right of privacy. (Life Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640, 652, disapproved on different grounds in Williams v. Superior Court (2017) 3 Cal.5th 531, 557.) In order to protect the privacy rights of Union Pacific’s employees in their personnel records, XPO must subpoena those employment records pursuant to Code of Civil Procedure ; 1985.6, and provide notice that the documents are sought, and that the employees have a right to serve written objections to the custodian of records before production. Ramirez and Gutierrez cannot be deprived of their right to object to discovery of information in their personnel files merely because XPO seeks production of those documents by a motion to compel further responses to RPDs, and therefore good cause for production of those documents without notice to the affected employees has not been shown. (Id. at pp. 655-656.) Consequently, although XPO contends there are no alternative means to obtain the requested medical records, XPO can subpoena the records pursuant to CCP ; 1985.6.

Based on the foregoing, the motion to compel further responses to RPDs, set two, Nos. 102-103 is denied.

XPO 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 6th day of October, 2021

Hon. Audra Mori

Judge of the Superior Court

"


b'

Case Number: ****6364 Hearing Date: September 28, 2021 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ARMANDO JAPA CABANLIT, ET AL.,

Plaintiff(s),

vs.

CON-WAY FREIGHT INC., ET AL.,

Defendant(s).

)

)

)

)

)

)

)

)

)

)

)

CASE NO: ****6364

[TENTATIVE] ORDER GRANTING MOTION TO CONTINUE TRIAL DATE

Dept. 31

1:30 p.m.

September 28, 2021

Plaintiffs, Armando Japa Cabanlit (“Armando”), Patricia Nathali (“Nathali”), Ethan Cabanlit (“Ethan”), a minor, by and through his guardian ad litem, Patricia Nathali, (collectively, “Plaintiffs”) filed this action against Defendants, Con-Way Freight Inc. (“Con-Way”), XPO Logistics Freight (“XPO”), and Jose Nunez Hernandez (“Hernandez”) for damages arising from a collision between a train and tractor trailer. On April 14, 2017, Plaintiffs filed the operative First Amended Complaint (“FAC”) alleging the crash occurred on or about September 1, 2015, when Hernandez, who was in the course and scope of his employment for Con-Way, failed to clear train tracks at an intersection controlled by railroad cross traffic lights. (FAC ¶ 18.) The collision between the Union Pacific freight train and trailer caused the trailer to strike Plaintiff’s vehicle. (Ibid.) XPO acquired Con-Way after the accident.

On November 26, 2018, XPO and Hernandez filed a cross-complaint against Union Pacific Railroad Company (“Union Pacific”) alleging causes of action for equitable indemnity and contribution. On February 11, 2019, Plaintiffs filed an Amendment to Complaint naming Doe 1 as Union Pacific and Doe 2 as Mario Ramirez.

XPO and Hernandez now move to continue the current trial date of November 10, 2021, at least four months. As of September 23, 2021, no opposition has been received.

Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. (CRC Rule 3.1332(c).) The Court may grant a continuance only on an affirmative showing of good cause requiring the continuance. (CRC Rule 3.1332(c).) The Court may look to the following factors in determining whether a trial continuance is warranted: (1) proximity of the trial date; (2) whether there was any previous continuance of trial due to any party; (3) the length of the continuance requested; (4) the availability of alternative means to address the problem that gave rise to the motion; (5) the prejudice that parties or witnesses will suffer as a result of the continuance; and (6) whether trial counsel is engaged in another trial. (See generally, CRC Rule 3.1332(d)(1)-(11).) Additional factors for the Court to consider include: a party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; the proximity of the trial date; whether all parties have stipulated to a continuance; and any other fact or circumstance relevant to the fair determination of the motion or application. (CRC Rule 3.1332(c), (d).)

Here, XPO and Hernandez avers a continuance is necessary because recent discovery of key evidence has led to XPO naming City of Industry as a Roe defendant, which was filed on September 1, 2021, there are currently 24 depositions noticed, defendant Mario Ramirez has not appeared in the case and has filed an intent to demurrer, trial counsel for all parties are engaged in binding arbitrations or trial from September through November 2021, and all parties have stipulated to the continuance.

The motion is unopposed, and XPO and Hernandez establish good cause for the continuance in light of the fact all parties require additional time to complete critical discovery, and Ramirez has not yet appeared in the case. However, the court notes there have been five prior trial continuances, and the court will not be inclined to grant any further continuances.

Defendant’s motion to continue trial is granted. The November 10, 2021, trial date is continued to March 18, 2022 at 8:30 a.m. in Department 31 of the Spring Street Courthouse. The October 27, 2021, FSC is continued to March 4, 2022 at 10:00 a.m. in Department 31. All discovery and expert cut-off dates are continued to reflect the new trial date.

Moving Defendants are 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 28th day of September, 2021

Hon. Audra Mori

Judge of the Superior Court

'


Case Number: ****6364    Hearing Date: June 1, 2021    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ARMANDO JAPA CABANLIT,

Plaintiff(s),

vs.

CON-WAY FREIGHT INC., ET AL.,

Defendant(s).

)

)

)

)

)

)

)

)

)

)

)

)

)

CASE NO: ****6364

[TENTATIVE] ORDER (1) GRANTING UNION PACIFIC’S MOTION FOR SUMMARY JUDGMENT ON FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND; (2) ORDER DENYING UNION PACIFIC’S MOTION FOR SUMMARY JUDGMENT ON CROSS-COMPLAINT

Dept. 31

2:30 p.m.

June 1, 2021

1. Background

On April 4, 2017, Plaintiffs, Armando Japa Cabanlit (“Armando”), Patricia Nathali (“Nathali”), Ethan Cabanlit (“Ethan”), a minor, by and through his guardian ad litem, Patricia Nathali, (collectively, “Plaintiffs”) filed this action against Defendants, Con-Way Freight Inc. (“Con-Way”), XPO Logistics Freight (“XPO”), and Jose Nunez Hernandez (“Hernandez”) for damages arising from a collision between a train and tractor trailer.

On April 4, 2017, Plaintiffs filed the operative First Amended Complaint (“FAC”) alleging the crash occurred on or about September 1, 2015, when Hernandez, who was in the course and scope of his employment for Con-Way, failed to clear train tracks at an intersection controlled by railroad cross traffic lights. (FAC ¶ 18.) The collision between the Union Pacific freight train and trailer caused the trailer to strike Plaintiff’s vehicle. (Ibid.) XPO acquired Con-Way after the accident.

On November 26, 2018, XPO and Hernandez filed a cross-complaint against Union Pacific Railroad Company (“Union Pacific”) alleging causes of action for equitable indemnity and contribution. On February 11, 2019, Plaintiffs filed an Amendment to Complaint naming Doe 1 as Union Pacific.

At this time, Union Pacific moves for summary judgment as to Plaintiffs’ FAC. Plaintiffs and XPO and Hernandez oppose the motion. Union Pacific filed a joint reply to each motion.

In addition, Union Pacific moves for summary judgment as to XPO’s and Hernandez’s cross-complaint. XPO and Hernandez oppose the motion, and Union Pacific filed a reply.

2. Motion for Summary Judgment on Plaintiffs’ FAC

a. Moving Argument

Union Pacific argues it is entitled to summary judgment because on Plaintiffs’ FAC because Plaintiffs cannot establish Union Pacific caused their injuries. Union Pacific asserts that both in their original complaint and the FAC Plaintiffs allege there was no action Union Pacific could have taken to avoid colliding with Hernandez’s trailer, which is a binding judicial admission. Union Pacific contends the amendments attempting to bring it into the action are a sham and must be disregarded. In addition, Union Pacific contends the doctrine of laches Plaintiffs’ claims against it because Plaintiffs could have named Union Pacific earlier, the delay was an appreciable amount of time, and Union Pacific has been prejudiced by the delay. Furthermore, Union Pacific argues the applicable statute of limitations bars Armando’s and Nathali’s claims.

b. Plaintiffs’ Opposing Argument

Plaintiff argues the facts establishing Union Pacific’s culpability in this case began to emerge in late 2018. Plaintiffs argue their CCP ; 474 amendment brought Union Pacific into this action, and relates back to the original complaint’s filing on 4/4/17, so Union Pacific is considered a party to the action from its commencement. Plaintiffs assert that when their counsel who prepared the complaint filed it, he lacked any knowledge of facts that would cause a reasonable person to believe Union Pacific was responsible for the crash, so Plaintiffs were genuinely ignorant of Union Pacific’s culpability when the action commenced and complied with CCP ; 474 procedural requirements. Moreover, Plaintiffs contend there is no judicial admissions that allow Union Pacific to avoid liability for the accident, as the FAC’s statement that there was no action Union Pacific’s train could have taken underscores Plaintiffs’ ignorance of the facts to support a claim against Union Pacific. Additionally, Plaintiffs argue the Doe Amendment is not a sham pleading, and that laches does not bar their claims against Union Pacific.

c. XPO’s and Hernandez’s Opposition

The court has not located specific California authority directly addressing whether a co-defendant can oppose another co-defendant’s motion for summary judgment. However, the court finds the California district court case of Eckert v. City of Sacramento (E.D. Cal. 2009) 2009 WL 3211278, instructive. In Eckert, the Court stated:

Union Pacific raises a procedural question that has been infrequently addressed: “[i]n the absence of cross-claims, may one co-defendant be the sole ... opposition to another co-defendant's motion for summary judgment?” Blonder v. Casco Inn Residential Care, Inc., 2000 WL 761895, at *1 (D.Me. May 4, 2000). The Blonder Court answered the question in the negative, concluding that in the absence of a crossclaim, a co-defendant lacks standing to oppose his co-defendant's motion for summary judgment. Id.

The Blonder court looked to the “principles underlying Rule 56,” when concluding that the non-moving co-defendants lacked standing to oppose the motion, stating:

Rule 56 is intended to avoid trial when appropriate and to bring about summary justice whenever legally proper. Requiring Plaintiff to prosecute her claims against [Defendants] ... when she no longer believes such claims to be viable would be contrary to the principle of Rule 56 that trials ... should be avoided when appropriate.

Id. The rationale of Blonder is persuasive, and other courts have come to the same conclusion. See Fraioli v. Lemcke, 328 F.Supp.2d 250, 263 n. 4 (D.R.I.2004) (“[S]ince none of the defendants in this case have filed cross claims against each other, the defendants are not adverse parties who are entitled to object to each others' motions for summary judgment.”); Dixon v. County of Alameda, 1997 WL 220311, at *6 n. 8 (N.D.Cal. Apr.18, 1997) (noting that co-defendant did not have standing to oppose co-defendant's motion for summary judgment); C.F. Bean Corp. v. Clayton Indus. Ltd., 1996 WL 470644, at *1(E.D.La. Aug.19, 1996) (same).

Under the rationale of Blonder, since there is no crossclaim between the Defendants, Union Pacific and the City are not adverse parties and the City therefore does not have standing to oppose Union Pacific's motion for summary judgment. The City's arguments opposing Union Pacific's motion will therefore not be considered.

(Id. at 3.)

The court finds the rationale set forth and referred to in Eckert persuasive. XPO and Hernandez filed a cross-complaint against Union Pacific, and thus, they are adverse parties. Further, Union Pacific does not object to XPO’s and Hernandez’s ability to oppose its motion on Plaintiffs’ FAC. Accordingly, the court considers XPO’s and Hernandez’s ability.

XPO and Hernandez contend Union Pacific is not prejudiced by the closure of the railroad crossing where the accident occurred because the action relates solely to the actions or in actions of Union Pacific’s train crew. Further, XPO and Hernandez aver Union Pacific fails to establish any elements of its sham pleading doctrine, laches or statute of limitations arguments. XPO and Hernandez contend the FAC adequately pleads that the Doe defendants, including Union Pacific, were responsible for the accident. XPO and Hernandez contend Plaintiffs’ Doe Amendment relates back to the original complaint filing date. In addition, XPO and Hernandez contend the FAC’s allegation that there was nothing Union Pacific could have done to avoid the accident is a legal conclusion that is not a binding judicial admission. Finally, XPO and Hernandez contend that even if Union Pacific’s motion is granted as it relates to Plaintiffs’ FAC, this does not bar XPO’s Cross-Complaint for equitable indemnity against Union Pacific.

d. Previous Hearing and Supplemental Briefing

This matter was previously heard on May 7, 2021, where the court continued it to June 1, 2021, following oral argument. The court ordered Union Pacific to file supplemental briefing by May 17, 2021, and supplemental briefing by all other parties by May 26, 2021. The briefing was to be limited to the issues discussed at the hearing. In particular, Union Pacific argued that an affidavit dated April 16, 2017, attached to a subpoena served by XPO on Union Pacific, may show that Plaintiffs knew Union Pacific was liable for the incident since 2017. (Pl.’s Opp. Index of Exhibits, Exh. H.)

On May 17, 2021, Union Pacific’s counsel filed a declaration stating counsel looked at the subpoena dated March 14, 2018, whose responsive document production included the affidavit dated April 16, 2017, and the affidavit appears to be misdated, as counsel did not locate any other responsive document production with that affidavit included. Plaintiff’s counsel states he can confirm it has no impact on the motions for summary judgment.

Plaintiffs’ supplemental brief further asserts the affidavit is misdated, and Plaintiffs aver this confirms Union Pacific did not in fact provide the subject discovery until 2018. Plaintiffs, thus, contend it was not until 2018 that Plaintiff’s learned of the facts implicating Union Pacific in this matter.

e. Request for Judicial Notice

Union Pacific requests the court take judicial notice of the following court records: (1) Plaintiffs’ complaint filed on 4/4/17, (2) Plaintiffs’ FAC filed 4/14/14, (3) XPO’s and Hernandez’s cross-complaint filed 11/26/18, and (4) Amendment to Complaint for Doe 1 filed 2/11/19. Similarly, Plaintiffs request the court take judicial notice of 14 court records. (Pl.’s Opp. Request for Judicial Notice at pp. 2-5.)

Union Pacific’s and Plaintiffs’ requests are granted pursuant to Evidence Code ; 452(d). (“Judicial notice may be taken of … Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”)

f. Evidentiary Objections

Plaintiffs submit 10 objections to Union Pacific’s evidence submitted with its motion. Objections 1-3 and 9-10 are overruled, as the declaration establishes personal knowledge for the statements asserted. Objections 4-7 are sustained, as the declarant does not authenticate the documents relied on to make each assertion nor establish how he has personal knowledge of such. Objection 8 is sustained to the extent declarant asserts XPO’s insurer accepted liability.

In addition, XPO and Hernandez submit 13 objections to Union Pacific’s evidence submitted with its motion. Objections 1-5 are sustained, as the declarant does not authenticate any documents or establish personal knowledge of the statements asserted. Objections 6-11 are made to Union Pacific’s Separate Statement of Undisputed Material Facts (“UMF”). Objections to a separate statement are improper. (Cal. Rules of Code, rule 3.1354(b).) The court, therefore, declines to rule on the purported objections to Union Pacific’s UMFs. Objections 12-13 are overruled, as the declarant establishes personal knowledge for the statements asserted.

g. Plaintiffs’ Objection to Union Pacific’s Reply

On 5/3/21, Plaintiffs submitted an objection to Union Pacific’s response, joint reply, and reply. Plaintiffs contend Union Pacific’s reply papers exceed the ten page limit for a reply memorandum under California Rules of Court, rule 3.1113(d). Further, Plaintiffs contend any new argument raised by Union Pacific in reply is improper.

However, Union Pacific’s reply memorandum is limited to ten pages. To the extent Plaintiffs contend Union Pacific exceeded the page limit by submitting responses to Plaintiffs’ and XPO’s and Hernandez’s, Plaintiffs fail to cite authority holding a response to additional facts is counted towards to the page limit for reply memorandum. Furthermore, Plaintiffs fail to identify any new argument or evidence submitted for the first time in reply. Plaintiffs objections are overruled.

h. Burdens on Summary Judgment

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. ;437c(c).) Where a defendant seeks summary judgment or adjudication, he must show that either “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 that cause of action.” (Id. at ;437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Ibid.)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at ;437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” Aguilar, supra, 25 Cal.4th at 865-66,

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

(Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.)

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at ;437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

i. Analysis re: Judicial Admissions

The admission of fact in a pleading is a “judicial admission.” Witkin describes the effect of such an admission: “An admission in the pleadings is not treated procedurally as evidence; i.e., the pleading need not (and should not) be offered in evidence, but may be commented on in argument and relied on as part of the case. And it is fundamentally different from evidence: It is a waiver of proof of a fact by conceding its truth, and it has the effect of removing the matter from the issues. Under the doctrine of ‘conclusiveness of pleadings,’ a pleader is bound by well pleaded material allegations or by failure to deny well pleaded material allegations. [Citations.]” (4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, ; 413, pp. 510–511.)

The law on this topic is well settled by venerable authority. Because an admission in the pleadings forbids the consideration of contrary evidence, any discussion of such evidence is irrelevant and immaterial. (Braverman v. Rosenthal (1951) 102 Cal.App.2d 30, 32, 226 P.2d 617.) “ ‘When a trial is had by the Court without a jury, a fact admitted by the pleadings should be treated as “found.” ... If the court does find adversely to the admission, such finding should be disregarded in determining the question whether the proper conclusion of law was drawn from the facts found and admitted by the pleadings.... In such case the facts alleged must be assumed to exist. Any finding adverse to the admitted facts drops from the record, and any legal conclusion which is not upheld by the admitted facts is erroneous.’ [Citations.]” (Welch v. Alcott (1921) 185 Cal. 731, 754, 198 P. 626.) “When allegations in a complaint are admitted by the answer (a) no evidence need be offered in their support; (b) evidence is not admissible to prove their untruth; (c) no finding thereon is necessary; (d) a finding contrary thereto is error.” (Lifton v. Harshman (1947) 80 Cal.App.2d 422, 431–432, 182 P.2d 222, disapproved on other grounds in Pao Ch'en Lee v. Gregoriou (1958) 50 Cal.2d 502, 506, 326 P.2d 135.)

(Valerio v. Andrew Youngquist Construction (2002) 103 Cal.App.4th 1264, 1271 [subcontractor bound by admission that he entered into written contract].)

“An admission in a pleading is conclusive on the pleader. (4 Witkin, Cal. Procedure, supra, Pleading, ; 415, p. 512.) ‘He cannot offer contrary evidence unless permitted to amend, and a judgment may rest in whole or in part upon the admission without proof of the fact.’ ” (Id. at 1272.) However, a court has inherent power to relieve a party from the effects of judicial admissions by amendment to the pleadings. (Id. citing CCP ; 473.) “ ‘While a pleader is not bound by allegations of evidence or conclusions of law, he is concluded by material averments of his pleading, and may not, as a rule, prove facts contrary thereto. * * * A pleader is likewise concluded by admissions in his pleading, unless they are withdrawn by[ ] amendment.’ ” (Brown v. Aguilar (1927) 202 Cal. 143, 149; accord. Savage v. Pacific Gas & Elec. Co. (1993) 21 Cal.App.4th 434, 441 [“[A] plaintiff is generally ‘bound by well pleaded material allegations....’ [Citation.] ‘Where a complaint contains allegations destructive of a cause of action the defect cannot be cured by their omission without explanation in a subsequent pleading.’”].)

This applies to both verified and unverified complaints. (Thurman v. Bayshore Transit Mgmt., Inc. (2012) 203 Cal.App.4th 1112, 1155, 1158 [disapproved on other grounds by ZB, N.A. v. Sup.Ct. (Lawson) (2019) 8 Cal.5th 175, 196 fn. 8]; Womack v. Lovell (2015) 237 CA4th 772, 786 [plaintiff's allegation in its unverified complaint that defendant general contractor was “at all times” a “licensed contractor” was binding judicial admission, removing issue of defendant's licensure from controversy]; see also Hearn Pacific Corporation v. Second Generation Roofing Inc. (2016) 247 Cal. App. 4th 117, 131-132 [“ ‘It is presumed that even an unverified pleading is filed with the consent of the client and should be regarded as an admission.’ ”].)

Here, Union Pacific asserts that in their original complaint and FAC, Plaintiffs alleged there was no action Union Pacific’s train could have taken to avoid the collision and did not name Union Pacific as a defendant. (Mot. UMF 3-5.) Union Pacific avers that as a result, Plaintiffs cannot establish Union Pacific caused Plaintiffs’ injuries.

In opposition, Plaintiffs, as well as Hernandez and XPO, contend this allegation does not constitute a judicial admission because it is a legal conclusion instead of a pure factual allegation. “When the facts submitted in opposition to a summary judgment motion indicate the existence of a material factual issue, summary judgment should not be entered based on mistaken legal conclusions in the complaint. [Citation.] Summary judgment is also inappropriate where the opposing party submits evidence indicating that a mistake was made.” (Kirby v. Albert D. Seeno Constr. Co. (1992) 11 Cal.App.4th 1059, 1066-67.)

“ ‘A defendant moving for summary judgment may rely on the allegations contained in the plaintiff's complaint, which constitute judicial admissions. As such they are conclusive concessions of the truth of a matter and have the effect of removing it from the issues.’ … [¶] On the other hand, a mere conclusion, or a “mixed factual-legal conclusion” in a complaint, is not considered a binding judicial admission. [Citation.] A mixed factual-legal conclusion may be contradicted by a declaration or other evidence in order to overcome a motion for summary judgment.” (Castillo v. Barrera (2007) 146 Cal.App.4th 1317, 1324.) Further, “an admission is not binding if it is made improvidently or unguardedly, or if it is in any way ambiguous.” (Irving v. Pacific Southwest Airlines (1982) 133 Cal.App.3d 709, 714.) Moreover, “the law recognizes the right of a pleader to contradict a previous judicial admission by amending the pleading, provided the request to do so is supported by a ‘showing ... of mistake or other excuse for changing the allegations of fact.’” (Dang v. Smith (2010) 190 Cal.App.4th 646, 658-59 n. 8.)

The FAC alleges in pertinent part:

THE CRASH occurred when HERNANDEZ failed to clear the train tracks and came to a complete stop while his trailer blocked the eastbound Union Pacific Railroad tracks. As the train approached from the west at approximately 43 miles per hour, there was no action that could have been taken by the train to avoid colliding with HERNANDEZ's tractor trailer and subsequently, the front end of the train struck the right rear of HERNANDEZ's trailer. The force of the impact was so great that it pushed the trailer to the left and in a southerly direction at which time the right side of the trailer struck the right rear end of Plaintiffs' Toyota…

(FAC ¶ 18 [emphasis added].) The FAC thus alleges Union Pacific approached the truck at approximately 43 mph and there was no action that could be taken by union Pacific’s train to avoid the collision. These are factual allegations by which Plaintiffs are bound. (See e.g. Lackner v. North (2006) 135 Cal.App.4th 1188, 1203 n. 6 [Plaintiff’s bound by judicial admission in complaint that a slope was largely deserted at the time of subject collision].)

However, Plaintiffs, XPO and Hernandez submit evidence showing that this allegation was mistakenly made, and that evidence was provided in late 2018 that suggested Union Pacific was culpable for the collision. (See Pl.’s Opp. Additional UMF 35-38; XPO’s Opp. Additional UMF 9-15.) Consequently, Plaintiffs have the right to amend their pleading on a showing of mistake for the prior allegations in the complaint and FAC. (Irving, 133 Cal.App.3d at 714.) “It would seem to be a travesty on justice if a litigant had inadvertently, ignorantly and erroneously stated as a fact, without fault on his part, an admission against interest, if he were to become bound thereby and would not be permitted upon proper showing to correct the innocent error and assert the true fact in that regard. (Jackson v. Pacific Gas & Elec. Co. (1949) 95 Cal.App.2d 204, 209.)

Nonetheless, as the parties further argue whether Plaintiffs should be permitted to amend the FAC turns on whether an Plaintiffs’ claims relate back to the filing of the original complaint, whether Plaintiffs’ Doe Amendment constitutes a sham pleading, or whether Plaintiffs’ claims are barred by the doctrine of laches.

j. Relation Back Doctrine

CCP ; 474 provides, “When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly …”

“The general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed.” (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.) “A recognized exception to the general rule is the substitution under [CCP ;] 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint… If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed.” (Id.) “Among the requirements for application of the section 474 relation-back doctrine is that the new defendant in an amended complaint be substituted for an existing fictitious Doe defendant named in the original complaint.” (Id.)

Upon compliance with applicable procedural requirements, a CCP ; 474 amendment identifying a person or entity as a “Doe” defendant “relates back” to the commencement of the action for statute of limitations purposes. (See Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 935.) Designating a defendant by a fictitious name is proper only if plaintiff alleges in the complaint that he or she is “ignorant of the name of a defendant.” (CCP ;474.) A plaintiff's requisite “ignorance” of the defendant's name has been expansively interpreted to mean either plaintiff was unaware of defendant's identity; plaintiff was unaware of defendant's culpability (facts giving rise to a cause of action against the defendant); or the law did not give plaintiff a right of action until after commencement of the action. (See Marasco v. Wadsworth (1978) 21 Cal.3d 82, 88; Snoke v. Bolen (1991) 235 Cal.App.3d 1427, 1431.)

Whether the plaintiff was genuinely “ignorant” or had “actual knowledge” of the “Doe” defendant's identity or liability when the complaint was filed is determined by a good faith test. (Woo v. Sup.Ct. (1999) 75 Cal.App.4th 169, 177.) “[T]he relevant inquiry when the plaintiff seeks to substitute a real defendant for one sued fictitiously is what facts the plaintiff actually knew at the time the original complaint was filed.” (General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 588.)

Here, Plaintiffs filed a Doe Amendment on 2/11/19 naming Doe 1 as Union Pacific. The FAC filed April 14, 2017, alleges in relevant part:

8. The true names and capacities of the Defendants, DOES 1 through 50, inclusive, whether individual, corporate, associate or otherwise, are unknown to Plaintiffs at the time of filing this Complaint and Plaintiffs, therefore, sue said Defendants by such fictitious names and will ask leave of court to amend this Complaint to show their true names or capacities when the same have been ascertained. Plaintiffs are informed and believe, and thereon allege, that each of the DOE Defendant is, in some manner, responsible for the events and happenings herein set forth and proximately caused injury and damages to Plaintiffs as herein alleged.

9. At all times herein mentioned, DOES 1 through 50, in engaging in the conduct herein complained of, were at all times acting within the course and scope of the employment, agency, ownership, joint venture, management, or their status as an officer, director, or managing agent of Defendants CON -WAY FREIGHT and/or XPO LOGISTICS.

(FAC ¶¶ 8-9.)

Union Pacific contends Armando’s and Nathali’s claims are barred by the applicable statute of limitations because the FAC alleges the incident occurred on 9/1/15, but Plaintiffs did not file the Doe Amendment until February 2019. (See CCP ; 335.1 [time to commence action for assault, battery, or injury to an individual caused by the wrongful act or neglect of another is within two years]; Mot. UMF 9.) Union Pacific argues Plaintiffs cannot use CCP ; 474 to save Armando’s and Nathali’s claims because Plaintiffs were not truly ignorant of Union Pacific’s identity, as Union Pacific is named within the body of the general allegations in the FAC.

Plaintiffs, however, aver they did not have actual knowledge of Union Pacific’s culpability when they filed this action. Plaintiffs assert that the time their prior counsel believed based on his investigations, research, and traffic collision report that Hernandez caused the collision. (Pl.’s Opp. Additional UMF 20.) Plaintiffs’ prior counsel was unaware of facts evidencing Union Pacific’s liability or facts that would cause a reasonable person to believe Union Pacific was responsible for the crash. (Ibid. at UMF 21-22.) Plaintiffs assert it was not until late 2018 that Union Pacific produced evidence demonstrating Union Pacific’s liability for the accident. (Ibid. at UMF 38.) XPO and Hernandez contend that they also were genuinely ignorant of Union Pacific’s potential liability when the action was commenced.

In reply, Union Pacific asserts Plaintiffs’ ignorance under CCP ; 474 turns on whether Plaintiffs knew, at the time they filed their complaint, what connection Union Pacific had to the accident, not its purported liability or culpability, and that the evidence shows Plaintiffs knew the identity of Union Pacific.

“The phrase ‘when the plaintiff is ignorant of the name of a defendant’ in Code of Civil Procedure section 474 has not been interpreted literally. The plaintiff is deemed ‘ignorant of the name’ if he knew the identity of the person but was ignorant of the facts giving him a cause of action against the person (citations).” (Marasco, 21 Cal.3d at 88.)

“A plaintiff can avail him or herself of section 474 if the plaintiff is ignorant of facts that give rise to a cause of action against a person who is otherwise known to the plaintiff. ‘In keeping with th[e] liberal interpretation of section 474, it is now well established that even though the plaintiff knows of the existence of the defendant sued by a fictitious name, and even though the plaintiff knows the defendant's actual identity (that is, his name), the plaintiff is ‘ignorant’ within the meaning of the statute if he lacks knowledge of that person's connection with the case or with his injuries.’ [Citation.]” (McOwen v. Grossman (2007) 153 Cal.App.4th 937, 942.)

If the identity of the Doe defendant is known but, at the time of the filing of the complaint the plaintiff did not know facts that would cause a reasonable person to believe that liability is probable, the requirements of section 474 are met. “Section 474 allows a plaintiff in good faith to delay suing particular persons as named defendants until he has knowledge of sufficient facts to cause a reasonable person to believe liability is probable.” (Dieckmann v. Superior Court (1985) 175 Cal.App.3d 345, 363, 220 Cal.Rptr. 602.) “The fact that *944 the plaintiff had the means to obtain knowledge is irrelevant.” (General Motors Corp. v. Superior Court, supra, 48 Cal.App.4th at p. 594, 55 Cal.Rptr.2d 871.) “In short, section 474 does not impose upon the plaintiff a duty to go in search of facts she does not actually have at the time she files her original pleading.” … [¶] While reasonable diligence may be material to the determination of the accrual of a cause of action, reasonable diligence is not germane to determining whether a Doe amendment was timely. [Citation.]

(Id. at 943-44.)

Consequently, the mere fact that Plaintiffs had knowledge of Union Pacific’s identity at the time they filed this action is not conclusive to prove Plaintiffs were not truly ignorant within the meaning of CCP ; 474. Plaintiffs aver they were ignorant of the facts giving them a cause of action against Union Pacific, and the reason for their ignorance is irrelevant. Furthermore, Union Pacific does not dispute that it failed to produce relevant discovery concerning the incident which may suggest Union Pacific is also liable for the incident was not produced until late 2018. (Reply Union Pacific’s Reply to XPO’s Additional UMF 9-15.)

Based on the foregoing, Plaintiff’s Doe Amendment relates back to the filing of the complaint and Union Pacific is considered a party from its commencement.

k. Sham Pleading

Union Pacific contends the Doe Amendment should be disregarded under the sham pleading doctrine, as Plaintiffs have not sought leave to amend demonstrated the earlier pleading was the result of a mistake.

A court has authority to strike sham pleadings. (Ricard v. Grobstein, Goldman, Stevenson, Siegel LeVine & Mangel (1992) 6 Cal.App.4th 157, 162.) “Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment.” (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425.) However, “[t]he sham pleading doctrine is not intended to prevent honest complainants from correcting erroneous allegations … or to prevent correction of ambiguous facts.... Instead, it is intended to enable courts to prevent an abuse of process.” (Id. at 426 (internal citations and quotations omitted).) Further, the sham pleading doctrine is not intended to prevent correction of bona fide mistaken allegations or to prevent correction of ambiguities. (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 344.) The doctrine only applies where prior allegations of fact are “destructive” of any of the causes of action alleged in the subsequently filed pleading. (Karp v. Dunn (1964) 229 Cal.App.2d 186, 190.) The sham pleading doctrine “is an exception to the general rule of pleading that prior complaints are superseded by subsequent ones. Only where an extreme situation is presented should the exception be applied.” (Id. at 191.)

Here, as analyzed above concerning Union Pacific’s judicial admission arguments, Plaintiffs submit evidence showing the earlier allegations concerning Union Pacific’s conduct regarding the accident was the result of mistake which may be clarified through an amended pleading. Therefore, the sham doctrine is not applicable to Plaintiff’s Doe Amendment involving Union Pacific.

l. Laches

“The basic elements of laches are: (1) an omission to assert a right; (2) a delay in the assertion of the right for some appreciable period; and (3) circumstances which would cause prejudice to an adverse party if assertion of the right is permitted.” (Stafford v. Ballinger (1962) 199 Cal.App.2d 289, 296.)

“There is no artificial or hard-and-fast rule either as to the lapse of time or the circumstances which will justify the application of the doctrine of laches. The question must be determined by a consideration of all the facts and circumstances of the particular case. Laches is a question of fact, on the evidence, and each case becomes largely a law unto itself. In other words, the matter is one which reposes in the sound discretion of the chancellor.” (Merry v. Garibaldi (1941) 48 Cal.App.2d 397, 401.)

Here, Union Pacific contends the doctrine of laches bars Plaintiffs’ complaint Plaintiffs could have asserted their claims earlier but delayed almost four years in naming Union Pacific as defendant, and the delay caused Union Pacific prejudice.

In opposition, Plaintiffs, XPO and Hernandez assert Union Pacific fails to establish the prejudice necessary to support its claims. First, Plaintiffs, XPO and Hernandez contend Plaintiffs named Union Pacific as a Doe defendant as soon as the evidence revealed its culpability, and there was no delay.

The evidence shows Plaintiffs, XPO and Hernandez obtained evidence that implicated Union Pacific’s liability in late 2018. XPO and Hernandez then filed a cross-complaint against Union Pacific on 11/26/18, and Plaintiffs filed the Doe Amendment on 2/11/19. This is sufficient to raise a triable issue of fact concerning any delay in naming Union Pacific as a defendant in this matter.

Moreover, Union Pacific asserts it is prejudiced because Union Pacific did not retain experts it normally would have to inspect the crossing where the accident occurred because of the delay in naming Union Pacific. (Mot. UMF 7.) Union Pacific asserts it is unable to now investigate the crossing as it existed at the time of the accident.

However, Plaintiffs aver there is no evidence the crossing no longer exists or cannot be inspected in its current condition. Plaintiffs further contend Union Pacific has actively participated in this litigation, including by serving discovery, filing law and motion, and producing its train conductor and locomotive engineer for deposition. Plaintiffs assert there is no prejudice to Union Pacific. In addition, XPO and Hernandez contend neither Plaintiffs nor XPO are claiming any malfunction with the safety equipment at the subject crossing, unsafe track conditions, or any malfunction or defect at the physical crossing, and Plaintiffs and XPO were not able to inspect the crossing before it closed to public use. Rather, Plaintiffs, XPO and Hernandez assert Union Pacific was negligent in its operation of its train.

Therefore, in making every reasonable inference in non-moving Plaintiffs’ favor, Union Pacific does not establish it has been unduly prejudiced by any delay in being added to this action as a matter of law. There is a triable issue of fact as to whether the doctrine of laches bars Plaintiffs’ claims.

m. Conclusion

Based on judicial admission contained in the FAC concerning Union Pacific, the court grants Union Pacific’s motion for summary judgment with 20 days leave to amend for Plaintiffs to correct the mistaken allegations in the FAC and original complaint. (See Stolz v. Wong Communications Limited Partnership (1994) 25 Cal. App. 4th 1811, 1817 [“A summary judgment motion necessarily includes a test of the pleadings and can become a motion for judgment on the pleadings.”]; see also Hejmadi v. Amfac, Inc. (1988) 202 Cal.App.3d 525, 536 [in ruling on a motion for summary judgment, “If the court finds that the pleading is insufficient, it has discretion…to grant the opposing party leave to amend.”].)

3. Motion for Summary Judgment to XPO’s and Hernandez’s Cross-Complaint

a. Moving Argument

Union Pacific contends XPO and Hernandez are equitably estopped from pursuing their cross-claims against Union Pacific, and that the cross-complaint is barred by the doctrine of laches and applicable statute of limitations.

b. Opposing Argument

XPO and Hernandez contend Union Pacific fails to establish the elements of equitable estoppel, and that the statute of limitations on its equitable indemnity claim has not begun to run. Further, XPO and Hernandez argues their cross-complaint is not barred by the doctrine of laches.

c. Request for judicial Notice

Union Pacific requests the court take judicial notice of the following court records: (1) Plaintiffs’ complaint filed on 4/4/17, (2) Plaintiffs’ FAC filed 4/14/14, (3) XPO’s and Hernandez’s cross-complaint filed 11/26/18, and (4) Amendment to Complaint for Doe 1 filed 2/11/19.

Union Pacific’s requests are granted pursuant to Evidence Code ; 452(d).

d. Evidentiary Objections

In its opposition, XPO and Hernandez submit 13 objections to Union Pacific’s evidence submitted with the motion. Objections 1-5 are sustained, as the declarant does not authenticate any documents or establish personal knowledge of the statements asserted. Objections 6-11 are made to Union Pacific’s UMFs. Objections to a separate statement are improper. (Cal. Rules of Code, rule 3.1354(b).) The court, therefore, declines to rule on the purported objections to Union Pacific’s UMFs. Objections 12-13 are overruled, as the declarant establishes personal knowledge for the statements asserted.

e. Analysis re: Equitable Estoppel

Four elements must ordinarily be proved to establish an equitable estoppel: (1) The party to be estopped must know the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had the right to believe that it was so intended; (3) the party asserting the estoppel must be ignorant of the true state of facts; and, (4) he must rely upon the conduct to his injury.” (Hopkins v. Kedzierski (2014) 225 Cal.App.4th 736, 756 [internal quotations omitted].)

“ ’The determination of whether a defendant's conduct is sufficient to invoke the doctrine is a factual question entrusted to the trial court's discretion. [Citation.] The issue is whether, viewing the evidence and all the inferences therefrom in the light most favorable to the defendants, there was substantial evidence upon which the court could reasonably have found as it did.’ [Citation.]” (Id.)

One aspect of equitable estoppel is codified in Evidence Code section 623, which provides that “[w]henever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it.” (See DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 60, 35 Cal.Rptr.2d 515.) But “ ‘[a]n estoppel may arise although there was no designed fraud on the part of the person sought to be estopped. [Citation.] To create an equitable estoppel, “it is enough if the party has been induced to refrain from using such means or taking such action as lay in his power, by which he might have retrieved his position and saved himself from loss.” ... “... Where the delay in commencing action is induced by the conduct of the defendant it cannot be availed of by him as a defense.” ’ ” [Citations.]

(Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 384-85.)

Here, Union Pacific asserts XPO is equitably estopped from pursuing an indemnity claim against Union Pacific because XPO and its insurer, Travelers, were aware of the facts of the incident, and Travelers accepted liability in writing on or about October 6, 2015, and paid Union Pacific’s property damage claim on or about April 8, 2016. (Mot. UMF 1-2.) Union Pacific asserts it relied on the belief the matter was resolved and did not take measures to prepare to defend a lawsuit.

However, the court notes the objections to the alleged letter sent by Travelers to Union Pacific were sustained. (Opp. Objection Nos. 1-2.) Further, even if the letter were considered, it states, “Please be advised that although Travelers insurance has accepted liability with respect to the subject accident, Travelers cannot agree at this time to ‘defend, indemnify, and hold harms less Union Pacific’ for any conceivable and unknown claims arising from the subject accident. However, in the event a claim is made against Union Pacific in the future (we are not aware of any to date), Travelers will consider such a request once the basis for the claim can be properly evaluated.” (Mot. Table of Evid. Exh. A, Exhibit 1 attached thereto.)

The plain language of the letter shows that although Travelers stated it accepted liability for the accident, Travelers was not agreeing to indemnify or defend Union Pacific against any third party claims, such as one by Plaintiffs, and would consider such a request at the time it could be evaluated. This language suggests Travelers did not have any knowledge of Plaintiffs’ claims, or of any facts concerning Union Pacific’s potential liability for negligently operating its train. While Travelers may have paid Union Pacific’s property damages claim, there is no indication Travelers agreed to accept all liability for third party claims without investigating the claims. The letter is thus ambiguous as to whether XPO or Travelers would seek indemnity against Union Pacific for a third party personal injury claim relating to the accident.

Moreover, as analyzed above concerning Union Pacific’s motion for summary judgment on Plaintiffs’ FAC, there is evidence suggesting that Union Pacific did not produce evidence that implicated its liability for the incident until late 2018, and thus, XPO did not have knowledge of the facts when the letter was sent by Travelers to Union Pacific. Furthermore, the facts and evidence concerning Union Pacific’s liability for the accident were arguably more in the knowledge of Union Pacific, so it is unclear whether Union Pacific was ignorant of the true state of facts when it received the letter.

Accordingly, Union Pacific does not establish XPO’s cross-claims are barred by equitable estoppel.

f. Laches

Union Pacific contends XPO’s cross-complaint because XPO could have asserted its claims against Union Pacific earlier, XPO’s delay was an appreciable amount of time, and Union Pacific has been prejudiced by the delay. Specifically, Union Pacific contends XPO’s insurer, Travelers, knew Union Pacific had a property damage claim for which Travelers accepted liability as of September 2015. Union Pacific argues XPO or Travelers could have asserted a claim against Union Pacific at that time, but they did not do so.

However, as XPO and Hernandez argue in opposition, the underlying claim at issue is Plaintiffs’ personal injury claims, not Union Pacific’s property damage claim. XPO and Hernandez contend the cross-complaint was timely filed 15 months after Plaintiffs filed their FAC, and four months after Union Pacific provided video evidence of the incident. XPO and Hernandez contends there was no delay, and Union Pacific was not prejudiced.

While Union Pacific asserts the subject crossing is now closed and it did not retain expert witnesses to inspect it prior to the closure, Union Pacific does not meaningfully articulate why it is prejudiced in this action by not inspecting the crossing prior to the closure. XPO and Hernandez aver their claims are based on Union Pacific’s operation of the train and not the condition of the crossing or equipment.

In making every reasonable inference in non-moving XPO’s and Hernandez’s favor, Union Pacific does not establish it has been unduly prejudiced by any delay in being added to this action as a matter of law, especially in light of the evidence that XPO and Hernandez were not aware of Union Pacific’s potential liability until late 2018. There is a triable issue of fact as to whether the doctrine of laches bars XPO’s and Hernandez’s claims.

g. Statute of Limitations

It is well established that a cause of action for equitable indemnity accrues when the plaintiff “ ‘has suffered actual loss through payment,’ “ i.e., “ ‘at the time of payment of the underlying claim, payment of a judgment thereon, or payment of a settlement thereof by the party seeking indemnity.’ “ (People ex rel. Dept. of Transportation v. Superior Court (1980) 26 Cal.3d 744, 751-52; see also Boyajian v. Ordoubadi (2010) 184 Cal.App.4th 1020, 1027 [“It is indeed true … that a cause of action for equitable indemnity does not exist until the underlying loss is paid.”].)

Consequently, equitable indemnity claims do not accrue until the defendant asserting them has paid damages to the plaintiff. (See, e.g., Preferred Risk Mut. Ins. Co. v. Reiswig (1999) 21 Cal. 4th 208, 213 [“The equitable indemnity cause of action does not accrue until the person pays the injured third party's claim.”]; Jackson v. Lacy (1940) 37 Cal. App. 2d 551, 559-560 [“It is elementary that a party acquires a right of contribution as soon as he pays more than his share but not until then.”].)

Here, Union Pacific argues XPO’s cross-complaint for indemnity is barred by the statute of limitations for indemnity claims. Union Pacific asserts XPO’s claim for equitable indemnity accrued on 4/8/16, when it paid Union Pacific’s property damage claim. Union Pacific contends XPO was required to file its action for equitable indemnity against Union Pacific within one year, or 4/8/17, but did not file the cross-complaint until 11/26/18.

However, as XPO and Hernandez argue in opposition, the statute of limitations for XPO’s claim for equitable indemnity against not begun to run, as XPO has not incurred a loss by payment to Plaintiffs concerning the underlying personal injury action. (People ex rel. Dept. of Transportation, 26 Cal.3d at 751-52.) Although Union Pacific argues XPO paid Union Pacific’s property damage claim, Union Pacific fails to cite any authority holding that the statute of limitations for a claim of equitable indemnity begins to run when an unrelated claim is paid.

Plaintiffs did not file their underlying claim for personal injuries until April 4, 2017. If Union Pacific’s position were adopted, this would essentially mean that XPO had 12 days to file a cross-complaint against Union Pacific for indemnity concerning Plaintiffs’ underlying claims. Moreover, this would put an unreasonable burden on XPO to go out and find any potential third party claims for which it could possibly seek indemnity for before any such actions are even filed.

Therefore, XPO’s claims are not barred by the applicable statute of limitations.

Union Pacific fails to show it is entitled to judgment as a matter of law. Union’s Pacific’s motion for summary judgment on XPO’s cross-complaint is denied.

4. Conclusion

Defendant Union Pacific’s motion for summary judgment on Plaintiff’s FAC is granted with leave to amend.

Union Pacific’s motion for summary judgment on XPO and Hernandez’s cross-complaint is denied.

Moving Defendant Union Pacific 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.orgIf 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 1st day of June, 2021

Hon. Thomas D. Long

Judge of the Superior Court



Case Number: ****6364    Hearing Date: May 7, 2021    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ARMANDO JAPA CABANLIT,

Plaintiff(s),

vs.

CON-WAY FREIGHT INC., ET AL.,

Defendant(s).

)

)

)

)

)

)

)

)

)

)

)

CASE NO: ****6364

[TENTATIVE] ORDER (1) GRANTING UNION PACIFIC’S MOTION FOR SUMMARY JUDGMENT ON FIRST AMENDED COMPLAINT WITH LEAVE TO AMEND; (2) ORDER DENYING UNION PACIFIC’S MOTION FOR SUMMARY JUDGMENT ON CROSS-COMPLAINT

Dept. 31

1:30 p.m.

May 7, 2021

 

1. Background

On 4/4/17, Plaintiffs, Armando Japa Cabanlit (“Armando”), Patricia Nathali (“Nathali”), Ethan Cabanlit (“Ethan”), a minor, by and through his guardian ad litem, Patricia Nathali, (collectively, “Plaintiffs”) filed this action against Defendants, Con-Way Freight Inc. (“Con-Way”), XPO Logistics Freight (“XPO”), and Jose Nunez Hernandez (“Hernandez”) for damages arising from a collision between a train and tractor trailer.

On 4/14/17, Plaintiffs filed the operative First Amended Complaint (“FAC”) alleging the crash occurred on or about 9/1/15 when Hernandez, who was in the course and scope of his employment for Con-Way, failed to clear train tracks at an intersection controlled by railroad cross traffic lights. (FAC ¶ 18.) The collision between the Union Pacific freight train and trailer caused the trailer to strike Plaintiff’s vehicle. (Ibid.) XPO acquired Con-Way after the accident.

On 11/26/18, XPO and Hernandez filed a cross-complaint against Union Pacific Railroad Company (“Union Pacific”) alleging causes of action for equitable indemnity and contribution. On 2/11/19, Plaintiffs filed an Amendment to Complaint naming Doe 1 as Union Pacific.

At this time, Union Pacific moves for summary judgment as to Plaintiffs’ FAC. Plaintiffs and XPO and Hernandez oppose the motion. Union Pacific filed a joint reply to each motion.

In addition, Union Pacific moves for summary judgment as to XPO’s and Hernandez’s cross-complaint. XPO and Hernandez oppose the motion, and Union Pacific filed a reply.

2. Motion for Summary Judgment on Plaintiffs’ FAC

a. Moving Argument

Union Pacific argues it is entitled to summary judgment because on Plaintiffs’ FAC because Plaintiffs cannot establish Union Pacific caused their injuries. Union Pacific asserts that both in their original complaint and the FAC Plaintiffs allege there was no action Union Pacific could have taken to avoid colliding with Hernandez’s trailer, which is a binding judicial admission. Union Pacific contends the amendments attempting to bring it into the action are a sham and must be disregarded. In addition, Union Pacific contends the doctrine of laches Plaintiffs’ claims against it because Plaintiffs could have named Union Pacific earlier, the delay was an appreciable amount of time, and Union Pacific has been prejudiced by the delay. Furthermore, Union Pacific argues the applicable statute of limitations bars Armando’s and Nathali’s claims.

b. Plaintiffs’ Opposing Argument

Plaintiff argues the facts establishing Union Pacific’s culpability in this case began to emerge in late 2018. Plaintiffs argue their CCP ; 474 amendment brought Union Pacific into this action, and relates back to the original complaint’s filing on 4/4/17, so Union Pacific is considered a party to the action from its commencement. Plaintiffs assert that when their counsel who prepared the complaint filed it, he lacked any knowledge of facts that would cause a reasonable person to believe Union Pacific was responsible for the crash, so Plaintiffs were genuinely ignorant of Union Pacific’s culpability when the action commenced and complied with CCP ; 474 procedural requirements. Moreover, Plaintiffs contend there is no judicial admissions that allow Union Pacific to avoid liability for the accident, as the FAC’s statement that there was no action Union Pacific’s train could have taken underscores Plaintiffs’ ignorance of the facts to support a claim against Union Pacific. Additionally, Plaintiffs argue the Doe Amendment is not a sham pleading, and that laches does not bar their claims against Union Pacific.

c. XPO’s and Hernandez’s Opposition

The court has not located specific California authority directly addressing whether a co-defendant can oppose another co-defendant’s motion for summary judgment. However, the court finds the California district court case of Eckert v. City of Sacramento (E.D. Cal. 2009) 2009 WL 3211278, instructive. In Eckert, the Court stated:

Union Pacific raises a procedural question that has been infrequently addressed: “[i]n the absence of cross-claims, may one co-defendant be the sole ... opposition to another co-defendant's motion for summary judgment?” Blonder v. Casco Inn Residential Care, Inc., 2000 WL 761895, at *1 (D.Me. May 4, 2000). The Blonder Court answered the question in the negative, concluding that in the absence of a crossclaim, a co-defendant lacks standing to oppose his co-defendant's motion for summary judgment. Id.

The Blonder court looked to the “principles underlying Rule 56,” when concluding that the non-moving co-defendants lacked standing to oppose the motion, stating:

Rule 56 is intended to avoid trial when appropriate and to bring about summary justice whenever legally proper. Requiring Plaintiff to prosecute her claims against [Defendants] ... when she no longer believes such claims to be viable would be contrary to the principle of Rule 56 that trials ... should be avoided when appropriate.

Id. The rationale of Blonder is persuasive, and other courts have come to the same conclusion. See Fraioli v. Lemcke, 328 F.Supp.2d 250, 263 n. 4 (D.R.I.2004) (“[S]ince none of the defendants in this case have filed cross claims against each other, the defendants are not adverse parties who are entitled to object to each others' motions for summary judgment.”); Dixon v. County of Alameda, 1997 WL 220311, at *6 n. 8 (N.D.Cal. Apr.18, 1997) (noting that co-defendant did not have standing to oppose co-defendant's motion for summary judgment); C.F. Bean Corp. v. Clayton Indus. Ltd., 1996 WL 470644, at *1(E.D.La. Aug.19, 1996) (same).

Under the rationale of Blonder, since there is no crossclaim between the Defendants, Union Pacific and the City are not adverse parties and the City therefore does not have standing to oppose Union Pacific's motion for summary judgment. The City's arguments opposing Union Pacific's motion will therefore not be considered.

(Id. at 3.)

The court finds the rationale set forth and referred to in Eckert persuasive. XPO and Hernandez filed a cross-complaint against Union Pacific, and thus, they are adverse parties. Further, Union Pacific does not object to XPO’s and Hernandez’s ability to oppose its motion on Plaintiffs’ FAC. Accordingly, the court considers XPO’s and Hernandez’s opposition.

XPO and Hernandez contend Union Pacific is not prejudiced by the closure of the railroad crossing where the accident occurred because the action relates solely to the actions or in actions of Union Pacific’s train crew. Further, XPO and Hernandez aver Union Pacific fails to establish any elements of its sham pleading doctrine, laches or statute of limitations arguments. XPO and Hernandez contend the FAC adequately pleads that the Doe defendants, including Union Pacific, were responsible for the accident. XPO and Hernandez contend Plaintiffs’ Doe Amendment relates back to the original complaint filing date. In addition, XPO and Hernandez contend the FAC’s allegation that there was nothing Union Pacific could have done to avoid the accident is a legal conclusion that is not a binding judicial admission. Finally, XPO and Hernandez contend that even if Union Pacific’s motion is granted as it relates to Plaintiffs’ FAC, this does not bar XPO’s Cross-Complaint for equitable indemnity against Union Pacific.

d. Request for Judicial Notice

Union Pacific requests the court take judicial notice of the following court records: (1) Plaintiffs’ complaint filed on 4/4/17, (2) Plaintiffs’ FAC filed 4/14/14, (3) XPO’s and Hernandez’s cross-complaint filed 11/26/18, and (4) Amendment to Complaint for Doe 1 filed 2/11/19. Similarly, Plaintiffs request the court take judicial notice of 14 court records. (Pl.’s Opp. Request for Judicial Notice at pp. 2-5.)

Union Pacific’s and Plaintiffs’ requests are granted pursuant to Evidence Code ; 452(d). (“Judicial notice may be taken of … Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”)

e. Evidentiary Objections

Plaintiffs submit 10 objections to Union Pacific’s evidence submitted with its motion. Objections 1-3 and 9-10 are overruled, as the declaration establishes personal knowledge for the statements asserted. Objections 4-7 are sustained, as the declarant does not authenticate the documents relied on to make each assertion nor establish how he has personal knowledge of such. Objection 8 is sustained to the extent declarant asserts XPO’s insurer accepted liability.

In addition, XPO and Hernandez submit 13 objections to Union Pacific’s evidence submitted with its motion. Objections 1-5 are sustained, as the declarant does not authenticate any documents or establish personal knowledge of the statements asserted. Objections 6-11 are made to Union Pacific’s Separate Statement of Undisputed Material Facts (“UMF”). Objections to a separate statement are improper. (Cal. Rules of Code, rule 3.1354(b).) The court, therefore, declines to rule on the purported objections to Union Pacific’s UMFs. Objections 12-13 are overruled, as the declarant establishes personal knowledge for the statements asserted.

f. Plaintiffs’ Objection to Union Pacific’s Reply

On 5/3/21, Plaintiffs submitted an objection to Union Pacific’s response, joint reply, and reply. Plaintiffs contend Union Pacific’s reply papers exceed the ten page limit for a reply memorandum under California Rules of Court, rule 3.1113(d). Further, Plaintiffs contend any new argument raised by Union Pacific in reply is improper.

However, Union Pacific’s reply memorandum is limited to ten pages. To the extent Plaintiffs contend Union Pacific exceeded the page limit by submitting responses to Plaintiffs’ and XPO’s and Hernandez’s, Plaintiffs fail to cite authority holding a response to additional facts is counted towards to the page limit for a reply memorandum. Furthermore, Plaintiffs fail to identify any new argument or evidence submitted for the first time in reply. Plaintiffs objections are overruled.

g. Burdens on Summary Judgment

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. ;437c(c).) Where a defendant seeks summary judgment or adjudication, he must show that either “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 that cause of action.” (Id. at ;437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Ibid.)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at ;437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” Aguilar, supra, 25 Cal.4th at 865-66,

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

(Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.)

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at ;437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

h. Analysis re: Judicial Admissions

The admission of fact in a pleading is a “judicial admission.” Witkin describes the effect of such an admission: “An admission in the pleadings is not treated procedurally as evidence; i.e., the pleading need not (and should not) be offered in evidence, but may be commented on in argument and relied on as part of the case. And it is fundamentally different from evidence: It is a waiver of proof of a fact by conceding its truth, and it has the effect of removing the matter from the issues. Under the doctrine of ‘conclusiveness of pleadings,’ a pleader is bound by well pleaded material allegations or by failure to deny well pleaded material allegations. [Citations.]” (4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, ; 413, pp. 510–511.)

The law on this topic is well settled by venerable authority. Because an admission in the pleadings forbids the consideration of contrary evidence, any discussion of such evidence is irrelevant and immaterial. (Braverman v. Rosenthal (1951) 102 Cal.App.2d 30, 32, 226 P.2d 617.) “ ‘When a trial is had by the Court without a jury, a fact admitted by the pleadings should be treated as “found.” ... If the court does find adversely to the admission, such finding should be disregarded in determining the question whether the proper conclusion of law was drawn from the facts found and admitted by the pleadings.... In such case the facts alleged must be assumed to exist. Any finding adverse to the admitted facts drops from the record, and any legal conclusion which is not upheld by the admitted facts is erroneous.’ [Citations.]” (Welch v. Alcott (1921) 185 Cal. 731, 754, 198 P. 626.) “When allegations in a complaint are admitted by the answer (a) no evidence need be offered in their support; (b) evidence is not admissible to prove their untruth; (c) no finding thereon is necessary; (d) a finding contrary thereto is error.” (Lifton v. Harshman (1947) 80 Cal.App.2d 422, 431–432, 182 P.2d 222, disapproved on other grounds in Pao Ch'en Lee v. Gregoriou (1958) 50 Cal.2d 502, 506, 326 P.2d 135.)

(Valerio v. Andrew Youngquist Construction (2002) 103 Cal.App.4th 1264, 1271 [subcontractor bound by admission that he entered into written contract].)

“An admission in a pleading is conclusive on the pleader. (4 Witkin, Cal. Procedure, supra, Pleading, ; 415, p. 512.) ‘He cannot offer contrary evidence unless permitted to amend, and a judgment may rest in whole or in part upon the admission without proof of the fact.’ ” (Id. at 1272.) However, a court has inherent power to relieve a party from the effects of judicial admissions by amendment to the pleadings. (Id. citing CCP ; 473.) “ ‘While a pleader is not bound by allegations of evidence or conclusions of law, he is concluded by material averments of his pleading, and may not, as a rule, prove facts contrary thereto. * * * A pleader is likewise concluded by admissions in his pleading, unless they are withdrawn by[ ] amendment.’ ” (Brown v. Aguilar (1927) 202 Cal. 143, 149; accord. Savage v. Pacific Gas & Elec. Co. (1993) 21 Cal.App.4th 434, 441 [“[A] plaintiff is generally ‘bound by well pleaded material allegations....’ [Citation.] ‘Where a complaint contains allegations destructive of a cause of action the defect cannot be cured by their omission without explanation in a subsequent pleading.’”].)

This applies to both verified and unverified complaints. (Thurman v. Bayshore Transit Mgmt., Inc. (2012) 203 Cal.App.4th 1112, 1155, 1158 [disapproved on other grounds by ZB, N.A. v. Sup.Ct. (Lawson) (2019) 8 Cal.5th 175, 196 fn. 8]; Womack v. Lovell (2015) 237 CA4th 772, 786 [plaintiff's allegation in its unverified complaint that defendant general contractor was “at all times” a “licensed contractor” was binding judicial admission, removing issue of defendant's licensure from controversy]; see also Hearn Pacific Corporation v. Second Generation Roofing Inc. (2016) 247 Cal. App. 4th 117, 131-132 [“ ‘It is presumed that even an unverified pleading is filed with the consent of the client and should be regarded as an admission.’ ”].)

Here, Union Pacific asserts that in their original complaint and FAC, Plaintiffs alleged there was no action Union Pacific’s train could have taken to avoid the collision and did not name Union Pacific as a defendant. (Mot. UMF 3-5.) Union Pacific avers that as a result, Plaintiffs cannot establish Union Pacific caused Plaintiffs’ injuries.

In opposition, Plaintiffs, as well as Hernandez and XPO, contend this allegation does not constitute a judicial admission because it is a legal conclusion instead of a pure factual allegation. “When the facts submitted in opposition to a summary judgment motion indicate the existence of a material factual issue, summary judgment should not be entered based on mistaken legal conclusions in the complaint. [Citation.] Summary judgment is also inappropriate where the opposing party submits evidence indicating that a mistake was made.” (Kirby v. Albert D. Seeno Constr. Co. (1992) 11 Cal.App.4th 1059, 1066-67.)

“ ‘A defendant moving for summary judgment may rely on the allegations contained in the plaintiff's complaint, which constitute judicial admissions. As such they are conclusive concessions of the truth of a matter and have the effect of removing it from the issues.’ … [¶] On the other hand, a mere conclusion, or a “mixed factual-legal conclusion” in a complaint, is not considered a binding judicial admission. [Citation.] A mixed factual-legal conclusion may be contradicted by a declaration or other evidence in order to overcome a motion for summary judgment.” (Castillo v. Barrera (2007) 146 Cal.App.4th 1317, 1324.) Further, “an admission is not binding if it is made improvidently or unguardedly, or if it is in any way ambiguous.” (Irving v. Pacific Southwest Airlines (1982) 133 Cal.App.3d 709, 714.) Moreover, “the law recognizes the right of a pleader to contradict a previous judicial admission by amending the pleading, provided the request to do so is supported by a ‘showing ... of mistake or other excuse for changing the allegations of fact.’” (Dang v. Smith (2010) 190 Cal.App.4th 646, 658-59 n. 8.)

The FAC alleges in pertinent part:

THE CRASH occurred when HERNANDEZ failed to clear the train tracks and came to a complete stop while his trailer blocked the eastbound Union Pacific Railroad tracks. As the train approached from the west at approximately 43 miles per hour, there was no action that could have been taken by the train to avoid colliding with HERNANDEZ's tractor trailer and subsequently, the front end of the train struck the right rear of HERNANDEZ's trailer. The force of the impact was so great that it pushed the trailer to the left and in a southerly direction at which time the right side of the trailer struck the right rear end of Plaintiffs' Toyota…

(FAC ¶ 18 [emphasis added].) The FAC thus alleges Union Pacific approached the truck at approximately 43 mph and there was no action that could be taken by union Pacific’s train to avoid the collision. These are factual allegations by which Plaintiffs are bound. (See e.g. Lackner v. North (2006) 135 Cal.App.4th 1188, 1203 n. 6 [Plaintiff’s bound by judicial admission in complaint that a slope was largely deserted at the time of subject collision].)

However, Plaintiffs, XPO and Hernandez submit evidence showing that this allegation was mistakenly made, and that evidence was provided in late 2018 that suggested Union Pacific was culpable for the collision. (See Pl.’s Opp. Additional UMF 35-38; XPO’s Opp. Additional UMF 9-15.) Consequently, Plaintiffs have the right to amend their pleading on a showing of mistake for the prior allegations in the complaint and FAC. (Irving, 133 Cal.App.3d at 714.) “It would seem to be a travesty of justice if a litigant had inadvertently, ignorantly and erroneously stated as a fact, without fault on his part, an admission against interest, if he were to become bound thereby and would not be permitted upon proper showing to correct the innocent error and assert the true fact in that regard. (Jackson v. Pacific Gas & Elec. Co. (1949) 95 Cal.App.2d 204, 209.)

Nonetheless, as the parties further argue, whether Plaintiffs should be permitted to amend the FAC turns on whether Plaintiffs’ claims relate back to the filing of the original complaint, whether Plaintiffs’ Doe Amendment constitutes a sham pleading, or whether Plaintiffs’ claims are barred by the doctrine of laches.

i. Relation Back Doctrine

CCP ; 474 provides, “When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly …”

“The general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed.” (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176.) “A recognized exception to the general rule is the substitution under [CCP ;] 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint… If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed.” (Id.) “Among the requirements for application of the section 474 relation-back doctrine is that the new defendant in an amended complaint be substituted for an existing fictitious Doe defendant named in the original complaint.” (Id.)

Upon compliance with applicable procedural requirements, a CCP ; 474 amendment identifying a person or entity as a “Doe” defendant “relates back” to the commencement of the action for statute of limitations purposes. (See Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 935.) Designating a defendant by a fictitious name is proper only if plaintiff alleges in the complaint that he or she is “ignorant of the name of a defendant.” (CCP ;474.) A plaintiff's requisite “ignorance” of the defendant's name has been expansively interpreted to mean either plaintiff was unaware of defendant's identity; plaintiff was unaware of defendant's culpability (facts giving rise to a cause of action against the defendant); or the law did not give plaintiff a right of action until after commencement of the action. (See Marasco v. Wadsworth (1978) 21 Cal.3d 82, 88; Snoke v. Bolen (1991) 235 Cal.App.3d 1427, 1431.)

Whether the plaintiff was genuinely “ignorant” or had “actual knowledge” of the “Doe” defendant's identity or liability when the complaint was filed is determined by a good faith test. (Woo v. Sup.Ct. (1999) 75 Cal.App.4th 169, 177.) “[T]he relevant inquiry when the plaintiff seeks to substitute a real defendant for one sued fictitiously is what facts the plaintiff actually knew at the time the original complaint was filed.” (General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 588.)

Here, Plaintiffs filed a Doe Amendment on 2/11/19 naming Doe 1 as Union Pacific. The FAC filed 4/14/17, alleges in relevant part:

8. The true names and capacities of the Defendants, DOES 1 through 50, inclusive, whether individual, corporate, associate or otherwise, are unknown to Plaintiffs at the time of filing this Complaint and Plaintiffs, therefore, sue said Defendants by such fictitious names and will ask leave of court to amend this Complaint to show their true names or capacities when the same have been ascertained. Plaintiffs are informed and believe, and thereon allege, that each of the DOE Defendant is, in some manner, responsible for the events and happenings herein set forth and proximately caused injury and damages to Plaintiffs as herein alleged.

9. At all times herein mentioned, DOES 1 through 50, in engaging in the conduct herein complained of, were at all times acting within the course and scope of the employment, agency, ownership, joint venture, management, or their status as an officer, director, or managing agent of Defendants CON -WAY FREIGHT and/or XPO LOGISTICS.

(FAC ¶¶ 8-9.)

Union Pacific contends Armando’s and Nathali’s claims are barred by the applicable statute of limitations because the FAC alleges the incident occurred on 9/1/15, but Plaintiffs did not file the Doe Amendment until February 2019. (See CCP ; 335.1 [time to commence action for assault, battery, or injury to an individual caused by the wrongful act or neglect of another is within two years]; Mot. UMF 9.) Union Pacific argues Plaintiffs cannot use CCP ; 474 to save Armando’s and Nathali’s claims because Plaintiffs were not truly ignorant of Union Pacific’s identity, as Union Pacific is named within the body of the general allegations in the FAC.

Plaintiffs, however, aver they did not have actual knowledge of Union Pacific’s culpability when they filed this action. Plaintiffs assert that the time their prior counsel believed based on his investigations, research, and traffic collision report that Hernandez caused the collision. (Pl.’s Opp. Additional UMF 20.) Plaintiffs’ prior counsel was unaware of facts evidencing Union Pacific’s liability or facts that would cause a reasonable person to believe Union Pacific was responsible for the crash. (Ibid. at UMF 21-22.) Plaintiffs assert it was not until late 2018 that Union Pacific produced evidence demonstrating Union Pacific’s liability for the accident. (Ibid. at UMF 38.) XPO and Hernandez contend that they also were genuinely ignorant of Union Pacific’s potential liability when the action was commenced.

In reply, Union Pacific asserts Plaintiffs’ ignorance under CCP ; 474 turns on whether Plaintiffs knew, at the time they filed their complaint, what connection Union Pacific had to the accident, not its purported liability or culpability, and that the evidence shows Plaintiffs knew the identity of Union Pacific.

“The phrase ‘when the plaintiff is ignorant of the name of a defendant’ in Code of Civil Procedure section 474 has not been interpreted literally. The plaintiff is deemed ‘ignorant of the name’ if he knew the identity of the person but was ignorant of the facts giving him a cause of action against the person (citations).” (Marasco, 21 Cal.3d at 88.)

“A plaintiff can avail him or herself of section 474 if the plaintiff is ignorant of facts that give rise to a cause of action against a person who is otherwise known to the plaintiff. ‘In keeping with th[e] liberal interpretation of section 474, it is now well established that even though the plaintiff knows of the existence of the defendant sued by a fictitious name, and even though the plaintiff knows the defendant's actual identity (that is, his name), the plaintiff is ‘ignorant’ within the meaning of the statute if he lacks knowledge of that person's connection with the case or with his injuries.’ [Citation.]” (McOwen v. Grossman (2007) 153 Cal.App.4th 937, 942.)

If the identity of the Doe defendant is known but, at the time of the filing of the complaint the plaintiff did not know facts that would cause a reasonable person to believe that liability is probable, the requirements of section 474 are met. “Section 474 allows a plaintiff in good faith to delay suing particular persons as named defendants until he has knowledge of sufficient facts to cause a reasonable person to believe liability is probable.” (Dieckmann v. Superior Court (1985) 175 Cal.App.3d 345, 363, 220 Cal.Rptr. 602.) “The fact that *944 the plaintiff had the means to obtain knowledge is irrelevant.” (General Motors Corp. v. Superior Court, supra, 48 Cal.App.4th at p. 594, 55 Cal.Rptr.2d 871.) “In short, section 474 does not impose upon the plaintiff a duty to go in search of facts she does not actually have at the time she files her original pleading.” … [¶] While reasonable diligence may be material to the determination of the accrual of a cause of action, reasonable diligence is not germane to determining whether a Doe amendment was timely. [Citation.]

(Id. at 943-44.)

Consequently, the mere fact that Plaintiffs had knowledge of Union Pacific’s identity at the time they filed this action is not conclusive to prove Plaintiffs were not truly ignorant within the meaning of CCP ; 474. Plaintiffs aver they were ignorant of the facts giving them a cause of action against Union Pacific, and the reason for their ignorance is irrelevant. Furthermore, Union Pacific does not dispute that it failed to produce relevant discovery concerning the incident which may suggest Union Pacific is also liable for the incident was not produced until late 2018. (Reply Union Pacific’s Reply to XPO’s Additional UMF 9-15.)

Based on the foregoing, Plaintiff’s Doe Amendment relates back to the filing of the complaint and Union Pacific is considered a party from its commencement.

j. Sham Pleading

Union Pacific contends the Doe Amendment should be disregarded under the sham pleading doctrine, as Plaintiffs have not sought leave to amend demonstrated the earlier pleading was the result of a mistake.

A court has authority to strike sham pleadings. (Ricard v. Grobstein, Goldman, Stevenson, Siegel LeVine & Mangel (1992) 6 Cal.App.4th 157, 162.) “Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment.” (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425.) However, “[t]he sham pleading doctrine is not intended to prevent honest complainants from correcting erroneous allegations … or to prevent correction of ambiguous facts.... Instead, it is intended to enable courts to prevent an abuse of process.” (Id. at 426 (internal citations and quotations omitted).) Further, the sham pleading doctrine is not intended to prevent correction of bona fide mistaken allegations or to prevent correction of ambiguities. (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 344.) The doctrine only applies where prior allegations of fact are “destructive” of any of the causes of action alleged in the subsequently filed pleading. (Karp v. Dunn (1964) 229 Cal.App.2d 186, 190.) The sham pleading doctrine “is an exception to the general rule of pleading that prior complaints are superseded by subsequent ones. Only where an extreme situation is presented should the exception be applied.” (Id. at 191.)

Here, as analyzed above concerning Union Pacific’s judicial admission arguments, Plaintiffs submit evidence showing the earlier allegations concerning Union Pacific’s conduct regarding the accident was the result of mistake which may be clarified through an amended pleading. Therefore, the sham doctrine is not applicable to Plaintiff’s Doe Amendment involving Union Pacific.

k. Laches

“The basic elements of laches are: (1) an omission to assert a right; (2) a delay in the assertion of the right for some appreciable period; and (3) circumstances which would cause prejudice to an adverse party if assertion of the right is permitted.” (Stafford v. Ballinger (1962) 199 Cal.App.2d 289, 296.)

“There is no artificial or hard-and-fast rule either as to the lapse of time or the circumstances which will justify the application of the doctrine of laches. The question must be determined by a consideration of all the facts and circumstances of the particular case. Laches is a question of fact, on the evidence, and each case becomes largely a law unto itself. In other words, the matter is one which reposes in the sound discretion of the chancellor.” (Merry v. Garibaldi (1941) 48 Cal.App.2d 397, 401.)

Here, Union Pacific contends the doctrine of laches bars Plaintiffs’ complaint Plaintiffs could have asserted their claims earlier but delayed almost four years in naming Union Pacific as defendant, and the delay caused Union Pacific prejudice.

In opposition, Plaintiffs, XPO and Hernandez assert Union Pacific fails to establish the prejudice necessary to support its claims. First, Plaintiffs, XPO and Hernandez contend Plaintiffs named Union Pacific as a Doe defendant as soon as the evidence revealed its culpability, and there was no delay.

The evidence shows Plaintiffs, XPO and Hernandez obtained evidence that implicated Union Pacific’s liability in late 2018. XPO and Hernandez then filed a cross-complaint against Union Pacific on 11/26/18, and Plaintiffs filed the Doe Amendment on 2/11/19. This is sufficient to raise a triable issue of fact concerning any delay in naming Union Pacific as a defendant in this matter.

Moreover, Union Pacific asserts it is prejudiced because Union Pacific did not retain experts it normally would have to inspect the crossing where the accident occurred because of the delay in naming Union Pacific. (Mot. UMF 7.) Union Pacific asserts it is unable to now investigate the crossing as it existed at the time of the accident.

However, Plaintiffs aver there is no evidence the crossing no longer exists or cannot be inspected in its current condition. Plaintiffs further contend Union Pacific has actively participated in this litigation, including by serving discovery, filing law and motion, and producing its train conductor and locomotive engineer for deposition. Plaintiffs assert there is no prejudice to Union Pacific. In addition, XPO and Hernandez contend neither Plaintiffs nor XPO are claiming any malfunction with the safety equipment at the subject crossing, unsafe track conditions, or any malfunction or defect at the physical crossing, and Plaintiffs and XPO were not able to inspect the crossing before it closed to public use. Rather, Plaintiffs, XPO and Hernandez assert Union Pacific was negligent in its operation of its train.

Therefore, in making every reasonable inference in non-moving Plaintiffs’ favor, Union Pacific does not establish it has been unduly prejudiced by any delay in being added to this action as a matter of law. There is a triable issue of fact as to whether the doctrine of laches bars Plaintiffs’ claims.

l. Conclusion

Based on judicial admission contained in the FAC concerning Union Pacific, the court grants Union Pacific’s motion for summary judgment with 20 days leave to amend for Plaintiffs to correct the mistaken allegations in the FAC and original complaint. (See Stolz v. Wong Communications Limited Partnership (1994) 25 Cal. App. 4th 1811, 1817 [“A summary judgment motion necessarily includes a test of the pleadings and can become a motion for judgment on the pleadings.”]; see also Hejmadi v. Amfac, Inc. (1988) 202 Cal.App.3d 525, 536 [in ruling on a motion for summary judgment, “If the court finds that the pleading is insufficient, it has discretion…to grant the opposing party leave to amend.”].)

3. Motion for Summary Judgment as to XPO’s and Hernandez’s Cross-Complaint

a. Moving Argument

Union Pacific contends XPO and Hernandez are equitably estopped from pursuing their cross-claims against Union Pacific, and that the cross-complaint is barred by the doctrine of laches and applicable statute of limitations.

b. Opposing Argument

XPO and Hernandez contend Union Pacific fails to establish the elements of equitable estoppel, and that the statute of limitations on its equitable indemnity claim has not begun to run. Further, XPO and Hernandez argues their cross-complaint is not barred by the doctrine of laches.

c. Request for judicial Notice

Union Pacific requests the court take judicial notice of the following court records: (1) Plaintiffs’ complaint filed on 4/4/17, (2) Plaintiffs’ FAC filed 4/14/14, (3) XPO’s and Hernandez’s cross-complaint filed 11/26/18, and (4) Amendment to Complaint for Doe 1 filed 2/11/19.

Union Pacific’s requests are granted pursuant to Evidence Code ; 452(d).

d. Evidentiary Objections

In its opposition, XPO and Hernandez submit 13 objections to Union Pacific’s evidence submitted with the motion. Objections 1-5 are sustained, as the declarant does not authenticate any documents or establish personal knowledge of the statements asserted. Objections 6-11 are made to Union Pacific’s UMFs. Objections to a separate statement are improper. (Cal. Rules of Code, rule 3.1354(b).) The court, therefore, declines to rule on the purported objections to Union Pacific’s UMFs. Objections 12-13 are overruled, as the declarant establishes personal knowledge for the statements asserted.

e. Analysis re: Equitable Estoppel

Four elements must ordinarily be proved to establish an equitable estoppel: (1) The party to be estopped must know the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had the right to believe that it was so intended; (3) the party asserting the estoppel must be ignorant of the true state of facts; and, (4) he must rely upon the conduct to his injury.” (Hopkins v. Kedzierski (2014) 225 Cal.App.4th 736, 756 [internal quotations omitted].)

“ ’The determination of whether a defendant's conduct is sufficient to invoke the doctrine is a factual question entrusted to the trial court's discretion. [Citation.] The issue is whether, viewing the evidence and all the inferences therefrom in the light most favorable to the defendants, there was substantial evidence upon which the court could reasonably have found as it did.’ [Citation.]” (Id.)

One aspect of equitable estoppel is codified in Evidence Code section 623, which provides that “[w]henever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it.” (See DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 60, 35 Cal.Rptr.2d 515.) But “ ‘[a]n estoppel may arise although there was no designed fraud on the part of the person sought to be estopped. [Citation.] To create an equitable estoppel, “it is enough if the party has been induced to refrain from using such means or taking such action as lay in his power, by which he might have retrieved his position and saved himself from loss.” ... “... Where the delay in commencing action is induced by the conduct of the defendant it cannot be availed of by him as a defense.” ’ ” [Citations.]

(Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 384-85.)

Here, Union Pacific asserts XPO is equitably estopped from pursuing an indemnity claim against Union Pacific because XPO and its insurer, Travelers, were aware of the facts of the incident, and Travelers accepted liability in writing on or about 10/6/15 and paid Union Pacific’s property damage claim on or about 4/8/16. (Mot. UMF 1-2.) Union Pacific asserts it relied on the belief the matter was resolved and did not take measures to prepare to defend a lawsuit.

However, the court notes the objections to the alleged letter sent by Travelers to Union Pacific were sustained. (Opp. Objection Nos. 1-2.) Further, even if the letter were considered, it states, “Please be advised that although Travelers insurance has accepted liability with respect to the subject accident, Travelers cannot agree at this time to ‘defend, indemnify, and hold harms less Union Pacific’ for any conceivable and unknown claims arising from the subject accident. However, in the event a claim is made against Union Pacific in the future (we are not aware of any to date), Travelers will consider such a request once the basis for the claim can be properly evaluated.” (Mot. Table of Evid. Exh. A, Exhibit 1 attached thereto.)

The plain language of the letter shows that although Travelers stated it accepted liability for the accident, Travelers was not agreeing to indemnify or defend Union Pacific against any third party claims, such as one by Plaintiffs, and would consider such a request at the time it could be evaluated. This language suggests Travelers did not have any knowledge of Plaintiffs’ claims, or of any facts concerning Union Pacific’s potential liability for negligently operating its train. While Travelers may have paid Union Pacific’s property damages claim, there is no indication Travelers agreed to accept all liability for third party claims without investigating the claims. The letter is thus ambiguous as to whether XPO or Travelers would seek indemnity against Union Pacific for a third party personal injury claim relating to the accident.

Moreover, as analyzed above concerning Union Pacific’s motion for summary judgment on Plaintiffs’ FAC, there is evidence suggesting that Union Pacific did not produce evidence that implicated its liability for the incident until late 2018, and thus, XPO did not have knowledge of the facts when the letter was sent by Travelers to Union Pacific. Furthermore, the facts and evidence concerning Union Pacific’s liability for the accident were arguably more in the knowledge of Union Pacific, so it is unclear whether Union Pacific was ignorant of the true state of facts when it received the letter.

Accordingly, Union Pacific does not establish XPO’s cross-claims are barred by equitable estoppel.

f. Laches

Union Pacific contends XPO’s cross-complaint because XPO could have asserted its claims against Union Pacific earlier, XPO’s delay was an appreciable amount of time, and Union Pacific has been prejudiced by the delay. Specifically, Union Pacific contends XPO’s insurer, Travelers, knew Union Pacific had a property damage claim for which Travelers accepted liability as of September 2015. Union Pacific argues XPO or Travelers could have asserted a claim against Union Pacific at that time, but they did not do so.

However, as XPO and Hernandez argue in opposition, the underlying claim at issue is Plaintiffs’ personal injury claims, not Union Pacific’s property damage claim. XPO and Hernandez contend the cross-complaint was timely filed 15 months after Plaintiffs filed their FAC, and four months after Union Pacific provided video evidence of the incident. XPO and Hernandez contends there was no delay, and Union Pacific was not prejudiced.

While Union Pacific asserts the subject crossing is now closed and it did not retain expert witnesses to inspect it prior to the closure, Union Pacific does not meaningfully articulate why it is prejudiced in this action by not inspecting the crossing prior to the closure. XPO and Hernandez aver their claims are based on Union Pacific’s operation of the train and not the condition of the crossing or equipment.

In making every reasonable inference in non-moving XPO’s and Hernandez’s favor, Union Pacific does not establish it has been unduly prejudiced by any delay in being added to this action as a matter of law, especially in light of the evidence that XPO and Hernandez were not aware of Union Pacific’s potential liability until late 2018. There is a triable issue of fact as to whether the doctrine of laches bars XPO’s and Hernandez’s claims.

g. Statute of Limitations

It is well established that a cause of action for equitable indemnity accrues when the plaintiff “ ‘has suffered actual loss through payment,’ “ i.e., “ ‘at the time of payment of the underlying claim, payment of a judgment thereon, or payment of a settlement thereof by the party seeking indemnity.’ “ (People ex rel. Dept. of Transportation v. Superior Court (1980) 26 Cal.3d 744, 751-52; see also Boyajian v. Ordoubadi (2010) 184 Cal.App.4th 1020, 1027 [“It is indeed true … that a cause of action for equitable indemnity does not exist until the underlying loss is paid.”].)

Consequently, equitable indemnity claims do not accrue until the defendant asserting them has paid damages to the plaintiff. (See, e.g., Preferred Risk Mut. Ins. Co. v. Reiswig (1999) 21 Cal. 4th 208, 213 [“The equitable indemnity cause of action does not accrue until the person pays the injured third party's claim.”]; Jackson v. Lacy (1940) 37 Cal. App. 2d 551, 559-560 [“It is elementary that a party acquires a right of contribution as soon as he pays more than his share but not until then.”].)

Here, Union Pacific argues XPO’s cross-complaint for indemnity is barred by the statute of limitations for indemnity claims. Union Pacific asserts XPO’s claim for equitable indemnity accrued on 4/8/16, when it paid Union Pacific’s property damage claim. Union Pacific contends XPO was required to file its action for equitable indemnity against Union Pacific within one year, or 4/8/17, but did not file the cross-complaint until 11/26/18.

However, as XPO and Hernandez argue in opposition, the statute of limitations for XPO’s claim for equitable indemnity against has not begun to run, since XPO has not incurred a loss by payment to Plaintiffs concerning the underlying personal injury action. (People ex rel. Dept. of Transportation, 26 Cal.3d at 751-52.) Although Union Pacific argues XPO paid Union Pacific’s property damage claim, Union Pacific fails to cite any authority holding that the statute of limitations for a claim of equitable indemnity begins to run when an unrelated claim is paid.

Plaintiffs did not file their underlying claim for personal injuries until 4/4/17. If Union Pacific’s position were adopted, this would essentially mean that XPO had 12 days to file a cross-complaint against Union Pacific for indemnity concerning Plaintiffs’ underlying claims. Moreover, this would put an unreasonable burden on XPO to go out and find any potential third party claims for which it could possibly seek indemnity for before any such actions are even filed.

Therefore, XPO’s claims are not barred by the applicable statute of limitations.

Union Pacific fails to show it is entitled to judgment as a matter of law. Union’s Pacific’s motion for summary judgment on XPO’s cross-complaint is denied.

4. Conclusion

Defendant Union Pacific’s motion for summary judgment on Plaintiff’s FAC is granted with leave to amend.

Union Pacific’s motion for summary judgment on XPO and Hernandez’s cross-complaint is denied.

Moving Defendant Union Pacific 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.orgIf 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 7th day of May, 2021

Hon. Thomas D. Long

Judge of the Superior Court



Case Number: ****6364    Hearing Date: February 03, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ARMANDO JAPA CABANLIT, ET AL.,

Plaintiff(s),

vs.

CON-WAY FREIGHT, INC., ET AL.,

Defendant(s).

)

)

)

)

)

)

)

)

)

)

)

CASE NO: ****6364

[TENTATIVE] ORDER

Dept. 31

1:30 p.m.

February 3, 2020

1. Background Facts

Plaintiffs, Armando and Ethan Cabanlit and Patricia Nathali filed this action against Defendants, Con-Way Freights, Inc., XPO Logistics Worldwide, Inc., and Jose Nunez Hernandez for damages arising out of an automobile accident. 

2. Motion to Compel Additional IMEs

a. Parties’ Positions

XPO and Hernandez have previously conducted orthopedic IMEs of Plaintiffs, Armando Cabanlit and Patricia Nathali.  At this time, XPO and Hernandez (hereafter “Defendants”) move to compel Armando and Patricia to sit for a neurological, neuropsychological, and neuropsychiatric examination.  Defendants contend both of the two adult plaintiffs are claiming to have suffered a TBI as a result of the accident.  Defendants also contend both of the two adult plaintiffs claim severe emotional distress as a result of the examination, both due to their own injuries and also as a result of the serious injuries sustained by their child.

Plaintiffs oppose the motion.  They contend Defendants’ failure to provide declarations from experts necessarily means they did not meet their moving burden to show good cause for the examinations sought.  Second, they contend Defendants failed to articulate the manner, condition, and scope, and other required details of the persons to conduct the examinations.  Third, they contend Defendants have not shown there is no less intrusive means to obtain the information sought.  Finally, they ask that, in the event an order compelling the examination(s) is granted, the Court also issue an order concerning preservation and exchange of information.  Notably, Plaintiffs concede they will ultimately need to sit for some type of mental examination, but contend Defendants failed to meet their burden in connection with this particular motion.

In reply, Defendants contend there is no authority for the position that experts must file declarations in support of this motion.  They contend they provided all required information about the scope of the examinations.  They contend there is no less intrusive method to obtain the information.  Finally, they argue the limitations proposed by Plaintiffs on the examinations are improper.

b. Standard for Multiple/Mental Health IMEs

Except for defense physicals in personal injury cases (in which one examination is permitted as a matter of course) and exams arranged by stipulation, a court order is required for a physical or mental examination. Such order may be made only after notice and hearing, and for “good cause shown.”  (CCP ;2032.320(a).) 

The examination will be limited to whatever condition is “in controversy” in the action.  (CCP ;2032.020(a).)  This means the examination must be directly related to the specific injury or condition that is the subject of the litigation.  Roberts v. Superior Court (1973) 9 Cal.3d 330, 337.  Often, a party's pleadings put his or her mental or physical condition in controversy ... as when a plaintiff claims continuing mental or physical injury resulting from defendant's acts: “A party who chooses to allege that he has mental and emotional difficulties can hardly deny his mental state is in controversy.”  See Vinson v. Superior Court (1987) 43 Cal.3d 833, 837, wherein the plaintiff claimed ongoing emotional distress from sexual harassment by former employer.  Discovery responses can also frame the issues regarding the injuries and damages alleged. 

Where the plaintiff's injuries are complex, several exams may be necessary by specialists in different fields. There is no limit on the number of physical or mental exams that may be ordered on a showing of good cause.  The good cause requirement checks any potential harassment of the plaintiff.  See Shapira v. Superior Court (1990) 224 Cal.App.3d 1249, 1255.

c. Good Cause

Plaintiffs contend Defendants failed to show good cause for the examinations because they did not provide expert declarations in support of their motion.  Plaintiffs fail to cite any authority for the position that this is required.  Notably, Plaintiffs expressly concede there IS good cause for the IMEs, and concede they are making claims for TBI, PTSD, and extreme emotional distress.  The Court finds good cause for the examinations sought.

d. Scope

Plaintiffs contend Defendants failed to satisfy the requirements of CCP ;2032.320(d), which requires the moving party to specify the “diagnostic tests and procedures, conditions, scope, and nature of the examination.”  Defendants’ notice of motion indicates the scope of the examination is set forth in the Declaration of Counsel, filed concurrently with the moving papers.  The Declaration of Counsel references Exhibit O thereto with respect to the scope of the examination.  Exhibit O is an e-mail from Defense Counsel to Plaintiffs’ attorney. 

With respect to the c, Defense Counsel’s e-mail included an attachment that sets for the scope of the examination.  The attachment indicates the examination will consist of a clinic interview and then a battery of tests, which could include any of 22 enumerates tests.  The attachment notes that there will be no blood tests or other intrusive or protracted medical tests.  Plaintiffs contend listing 22 potential tests is not compliant with Carpenter. 

In Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 260, the defendant argued that simply naming the types of tests to be performed, as opposed to the exact tests themselves, was sufficient in the context of a mental health examination.  The court of appeals disagreed, and noted that the statute required the defendant to specify the “diagnostic tests and procedures,” which means they must be listed by name.

The Court indicated, “Nor does the discussion in Ragge otherwise persuade us that it would be inappropriate to compel advance disclosure of the test names. Yamaha refers us to a passage in which the Ragge court stated: ‘Because the mental examination provides one of the few opportunities for a defendant to have access to a plaintiff, and the only opportunity for a defendant to have a plaintiff examined by defendant's expert, some preference should be given to allowing the examiner to exercise discretion in the manner and means by which the examination is conducted, provided it is not an improper examination.’ (Ragge, supra, 165 F.R.D. at p. 609.) In general, we have no quarrel with this proposition. Certainly the examiner should have some discretion in choosing the manner and means of conducting the examination—but only as long as the tests he or she proposes are not unduly invasive or otherwise inappropriate. The way to assure that the tests do not make the examination “improper,” as Ragge puts it, is to require the court to name the tests in its order. This assures that the court has considered any objections to the tests and provides the examiner clear parameters for the examination.”

The Court often sees cases where defendants list upwards of 100 tests to be potentially performed.  The Court finds Defendants’ choice of 22 potential tests for these joint experts is sufficiently narrow to permit Plaintiffs to prepare for the examination.  The Court therefore finds Defendants met their obligations in this regard. 

However, with respect to the neurological examination, the issue is less clear.  Defense Counsel’s e-mail merely states, “Dr. Gol’s examination may include, but is not limited to: a mental status examination, motor function and balance examination, coordination examination, sensory examination, reflex examination, and an evaluation of the cranial nerves….”  The Court finds it cannot issue an order with the “but not limited to” language; the Court must provide Plaintiffs with notice of the potential tests to be performed.  The Court asks Counsel to meet and confer to resolve this issue.

e. Less Intrusive Means

Plaintiffs do not meaningfully articulate what less intrusive means exist other than the examinations sought.   The Court finds it is self-evident that IMEs are the necessary and correct means to determine the issues presented. 

f. Conditions of Examination

In the event the Court orders the examinations, Plaintiffs ask for an order:

· Limiting the scope of inquiry by the experts;

· Directing that the examinations be video-recorded in their entirety;

· Requiring the experts to prepare and exchange reports;

· Permitting the “raw data” to only be exchanged between the parties’ experts.

The Court is not inclined, at this time, to limit the scope of the expert inquiry.  There is no authority permitting video, as opposed to audio, recording, and therefore this request is also denied.  Preparation of and exchange of expert reports is governed by Code, and there is no need for an order in this regard.  The Court asks Counsel to meet and confer concerning a protective order governing the use of raw data; it appears both parties agree this protective order is appropriate. 

g. Conclusion

The motion to compel a neuropsychological/neuropsychiatric examination is granted.  Counsel must meet and confer to select a date, time, and location for the examinations. 

The motion to compel a neurological examination is denied without prejudice due to the failure to adequately designate the scope of the examination.  The Court finds the examination is necessary, and the Court will grant a proper future motion in this regard.  The Court asks Counsel to resolve issues relating to this motion without the need for further law and motion practice.

Counsel are ordered to meet and confer concerning a protective order limiting use of the raw data obtained through  testing. 

Defendants are 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.  


Case Number: ****6364    Hearing Date: December 13, 2019    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ARMANDO JAPA CABANLIT, ET AL.,

Plaintiff(s),

vs.

CON-WAY FREIGHT, INC., ET AL.,

Defendant(s).

)

)

)

)

)

)

)

)

)

)

Case No.: ****6364

[TENATATIVE] ORDER GRANTING MOTION TO CONTINUE TRIAL DATE

Dept. 3

1:30 p.m.

December 13, 2019

INITIAL NOTE: The Court will be dark on Friday, 12/13/19. If the parties submit on the tentative, no appearance will be necessary. If the parties wish to be heard in connection with the tentative, they must appear on Monday, 12/16/19 at 1:30 p.m. in Department 3 of the Spring Street Courthouse. If that date and time are not available for the parties, the parties must meet and confer among themselves to agree upon a new date for the hearing (at 1:30 p.m.), and use the online scheduling system to reschedule the hearing on the motion. 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 a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.

Plaintiffs filed this action on 4/04/17 for damages arising out of a train v. tractor-trailer accident. One of the plaintiffs is currently four years old, and alleges serious injuries as a result of the accident. The parties are scheduling multiple IMEs concerning his damages. Additionally, new parties have been added this year by way of cross-complaint. Finally, the parties are attempting to reschedule a global mediation in an attempt to settle the case without the need for trial. Based on the foregoing, Defendants bring a stipulated motion to continue the trial date.

The Court finds Defendants met their burden to show a trial continuance is necessary, and fully justified the duration (six months) of the request. The 3/23/20 trial date is advanced to today’s date and continued to Wednesday, 9/23/20 at 8:30 a.m. in Department 3 of the Spring Street Courthouse. The 3/09/20 FSC is advanced to today’s date and continued to 9/09/20 at 10:00 a.m. in Department 3. All discovery and expert cut-off dates are continued to reflect the new trial date.

Moving Defendants are ordered to give notice.



related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where XPO LOGISTICS FREIGHT, INC. is a litigant

Latest cases where CITY OF INDUSTRY is a litigant

Latest cases where Union Pacific Railroad Company is a litigant

Latest cases represented by Lawyer SCHAFF, JASON W.