AZALEA C VS LOS ANGELES CONSERVATION CORPS INC ET AL

Tentative Rulings

Case Number: ****2075    Hearing Date: May 27, 2021    Dept: 24

Cross-Defendants Great American Insurance Company’s motion for summary judgment is GRANTED.

This case arises from the alleged sexual assault of Plaintiff Azalea C. (“Plaintiff”), a minor, by Defendant Brian Davis (“Davis”), an employee at an after-school program ran by Defendants Los Angeles Conservation Corps, Inc. (“LACC”) and Los Angeles Unified School District (“LAUSD”). At the time of the assault, Plaintiff was 15 years old. Plaintiff alleges that beginning in March 2017, Plaintiff was regularly volunteering to assist younger students with their studies at her younger sister’s elementary school, Normandy Avenue Elementary School (the “School”). LACC enrolled Davis into a program that provided job training for at-risk young adults in September 2017 as a trainee, apparently working with children in an after-school program. Davis began to show an interest in Plaintiff during their interactions at the School. Davis’s sexual advances towards Plaintiff increased and became physical. Younger children, LACC personnel, and School personnel noticed this obviously dangerous behavior. On September 7, 2017, Davis sexually assaulted and raped Plaintiff at the School.

On July 2, 2018, Plaintiff, by and through her guardian ad litem Roberta D., filed the instant suit against LACC, LAUSD, and Davis. The operative First Amended Complaint (“FAC”) alleges nine causes of action for: 1) negligence (LACC); 2) negligent supervision of school premises; 3) negligent hiring, training, retention, and supervision; 4) failure to warn; 5) intentional infliction of emotional distress; 6) gender violence; 7) sexual battery in violation of Civ. Code ; 1708.5; and 8) battery.

On November 14, 2019, LAUSD filed a cross-complaint against LACC and Great American Insurance Company (“GAIC”). LAUSD alleges that as a part of the After School Services Master Contract between itself and LACC, LACC agreed to indemnify, defend, and hold harmless LAUSD from liability arising out of the agreement or its performance. Based on the allegations of the FAC, LAUSD tendered its defense and requested indemnity from LACC and GAIC. On April 19, 2019, GAIC denied the tender of defense. The operative First Amended Cross-Complaint (“FACC”) states five causes of action for: 1) breach of contract; 2) breach of contract; 3) breach of implied obligation of good faith and fair dealing; 4) breach of implied obligation of good faith and fair dealing; 5) express contractual indemnity; 6) equitable indemnity; 7) contribution; and 8) declaratory relief.

On March 8, 2021, GAIC moved for summary judgment/adjudication of the second, fourth and eighth causes of action of the FACC. LAUSD opposes.

Summary Judgment Standard

A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed. (See CCP ;437c(f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.) A cause of action has no merit if: (1) one or more elements of the cause of action cannot be separately established, even if that element is separately pleaded, or (2) a defendant establishes an affirmative defense to that cause of action. (See CCP ;437c(n); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.) Once the defendant has shown that a cause of action has no merit, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action. (See CCP ;437c(o)(2); Union Bank, supra, 31 Cal.App.4th at 583.)

In order to obtain summary judgment, “all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action.” (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; see also Mitchell v. United National Ins. Co. (2005) 127 Cal.App.4th 457.) “Although he remains free to do so, the defendant need not himself conclusively negate any such element.” (Ibid.) “Once the defendant has made such a showing, 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 as to a defense to the cause of action. If the plaintiff does not make such a showing, summary judgment in favor of the defendant is appropriate.” (See Mitchell, supra, 127 Cal.App.4th at 467.)

Until the defendant meets this evidentiary burden, the plaintiff has no burden to present evidence showing a triable issue of fact. (See Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 178; see also Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940, citing Duckett v. Pistoresi Ambulance Service, Inc. (1993) 19 Cal.App.4th 1525, 1533 [“[w]here the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff”].)

Request for Judicial Notice

The requests for judicial notice are GRANTED. (Evid. Code ; 452(d).)

Discussion

GAIC moves for summary judgment on the grounds that there is no duty to defend from its insurance agreement with LACC.

The interpretation of an insurance contract is an issue of law. (E.M.M.I. Inc. v. Zurich American Ins. Co. (2004) 32 Cal.4th 465, 470.) Ordinary rules of contract interpretation apply to insurance policies. (Palmer v. Truck Ins. Exchange (1999) 21 Cal.4th 1109, 1115.) “Under statutory rules of contract interpretation, the mutual intention of the parties at the time the contract is formed governs interpretation. [Citation.] Such intent is to be inferred, if possible, solely from the written provisions of the contract. [Citation.] The ‘clear and explicit’ meaning of these provisions, interpreted in their ‘ordinary and popular sense,’ unless ‘used by the parties in a technical sense or a special meaning is given to them by usage’ [citation], controls judicial interpretation. [Citation.] (AIU Ins. Co. v. Superior Court

“The proper interpretation of a contract is disputable if the contract is susceptible of more than one reasonable interpretation, that is, if the contract is ambiguous. An ambiguity may appear on the face of a contract, or extrinsic evidence may reveal a latent ambiguity. (Pacific Gas & E. Co. v. G.W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 37–39.) When particular policy language is ambiguous, a court must determine whether coverage is consistent with the insured’s “objectively reasonable expectations.” (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1265.) The court must “interpret the language in context, with regard to its intended function in the policy.” (Id.) In the insurance context, courts generally resolve ambiguities in favor of coverage. (Minkler

An insurer must defend its insured from a third-party claim that “potentially seeks damages within the coverage of the policy.” (Gray v. Zurich Ins. Co. (1966) 65 Cal.2d 263, 275.) A defense is excused only when “the third-party complaint can by no conceivable theory raise a single issue which could bring it within the policy coverage.” (Montrose Chem. Corp. of Calif. v. Sup.Ct. (1993) 6 Cal.4th 287, 295.) “[L]iberal, pro-insured rules notwithstanding, there is no duty to defend if there is no potential for coverage.” (Alterra Excess & Surplus Ins. Co. v. Snyder (2015) 234 Cal.App.4th 1390, 1401.) “This includes claims falling outside the scope of the insuring clause, or within an express exclusion from coverage. . .” (Ibid.) In determining whether a claim creates the potential for coverage under an insurance policy, a court is “guided by the principle that interpretation of an insurance policy is a question of law.” (Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59 Cal.4th 277, 288.)

GAIC issued to LACC certain policies covering the relevant period, policy number PAC 068-42-78-03. (UMF 5, 20-25.) GAIC divides this into two relevant areas, the Primary CGL Coverage and the Umbrella Policy.

Under its Primary CGL Coverage, GAIC owes no duty to defend LAUSD for liability arising out of abuse/molestation claims. The CGL Coverage Part is modified by certain endorsements, including a form CG 80 15, the “Abuse, Molestation, Harassment or Sexual Conduct Exclusion.” (UMF 7-8.) This provides an exclusion for damages arising out of the “bodily injury” coverage where the injuries arise out of “the actual, threatened or alleged abuse, molestation, harassment or sexual conduct by anyone of any person; or (b) the negligent: (i) employment; (ii) investigation; (iii) supervision…” (UMF 9.) The umbrella policy is also subject to this limitation. (See UMF 24, 25.)

A separate Abuse or Molestation Coverage Form provides for coverage in those instances to LACC as a direct insured. (UMF 12, 13.) The term “abuse” is defined in a way that includes the sexual assault alleged by Azalea in this action. (UMF 15.) The term “Insured” in the Abuse/Molestation form does not include persons with whom LACC contracted, including LAUSD. (UMF 17-19.)

Indeed, this provides that GAIC owes no defense to LAUSD under LACC’s policies. The claims arising out of sexual abuse are excluded from the primary CGL Coverage form. The umbrella policy “follows from” the underlying CGL coverage, and thus cannot be broader than that coverage. Under the Abuse/Molestation form, only LACC is owed a duty to defend as LAUSD is not an Insured as defined by that coverage form. Thus, GAIC has demonstrated that the causes of action fail against it.

LAUSD argues that GAIC omitted the last sentence of the Molestation Exclusion which provides: “This endorsement does not change any other provision of the policy.” (LASUD UMF 43.) However, this does not change anything. LASUD’s interpretation of this single sentence is unreasonable and would render the exclusion incoherent.

LAUSD also raises that the Molestation Coverage Form as “part” of the CGL Coverage Part, to later argue that it should be interpreted in light of other provisions. (See LAUSD UMF 39-42.) Further, that there is an ambiguity in the Molestation Coverage Form, since it is silent as to how anyone can be added to the Policy as an additional insured. (LAUSD UMF 45.)

LAUSD attempts to use these ambiguities to boot-strap the “Broadening Endorsement” provisions of the Policy, which would provide coverage if LAUSD had a contract with LACC for insurance. Indeed, LAUSD had a contract with LACC (the Services Contract). (UMF 29-30.) As a part of that contract, LAUSD was to be named as an additional insured under LACC’s Commercial General Liability policy. (LAUSD UMF 26, 31.) A Certificate of Liability Insurance was provided to LAUSD verifying the agreed upon insurance coverages LACC obtained. (Id.) LACC was also expressly required to secure abuse and molestation coverage, unless it was afforded elsewhere in the Commercial General Liability policy by endorsement.

However, these promises and certificates do not provide a substantive dispute of fact here. Certificates of insurance are not a contract of insurance, are not issued by the insurer, are not probative of actual coverage, and are meaningless as an aid to construction. (See Empire Fire & Marine Ins. Co. v. Bell (1997) 55 Cal.App.4th 1410, 1423 [“A certificate of insurance is merely evidence that a policy has been issued. (Ins. Code, ; 384.) It is not a contract between the insurer and the certificate holder.”]; Carolina Cas. Ins. Co. v. Estate of Fuentes (9th Cir. 2011) 433 Fed.Appx. 608, 610; Travelers Property Casualty Co. of America v. Superior Court (2013) 215 Cal.App.4th 561, 582.) The Policy and the Services Contract contemplated the adding of an additional insured by written contract. (LAUSD UMF No. 31, 44, 48, 49.) LAUSD does not supply evidence that they were included as additional insureds or explain why they would not be subject to the exclusion discussed above.

Further, the “Signature General Liability Broadening Endorsement” does not modify the more-specific Abuse and Molestation form. For one, the Broadening Endorsement explicitly disclaims: “[t]he following extension only applies in the event that no other specific coverage for the indicated loss exposure is provided under this Policy. If other specific coverage applies, the terms, conditions and limits of that Coverage are the exclusive coverage applicable under this Policy, unless otherwise noted in this Endorsement.” (Emphasis Added.) LAUSD seems to ignore that “other specific coverage for the indicated loss exposure” exists, the Molestation Coverage Form, which covers the specific “indicated loss exposure” here (sexual assault). Since another “specific coverage” applies, the more general provisions of the Broadening Endorsement do not apply.

There is no apparent ambiguity, whether the forms are read as discrete contracts or a part of a larger, single policy. Under any reasonable construction of the policy, it is undisputed that the Molestation Coverage Form provides its own definitions for coverage and Insureds, which does not include LAUSD. (UMF 17-19.) Otherwise, the exclusions apply. (UMF 7-8, 24-25.) Therefore, GAIC owes no duty to defend or indemnify LAUSD here.

Accordingly, GAIC’s motion for summary judgment is GRANTED.

Moving party is ordered to give notice.

Case Number: ****2075    Hearing Date: August 31, 2020    Dept: 24

The Court will set a hearing for an in camera review for to be attended by LAPD. (Evid. Code ; 915(b).) The date for the in camera review will be decided at the hearing.

This case arises from the alleged sexual assault of Plaintiff Azalea C. (“Plaintiff”), a minor, by Defendant Brian Davis (“Davis”), an employee at an after-school program ran by Defendants Los Angeles Conservation Corps, Inc. (“LACC”) and Los Angeles Unified School District (“LAUSD”). At the time of the assault, Plaintiff was 15 years old. Plaintiff alleges that beginning in March 2017, Plaintiff was regularly volunteering to assist younger students with their studies at her younger sister’s elementary school, Normandy Avenue Elementary School (the “School”). LACC enrolled Davis into a program that provided job training for at-risk young adults in September 2017 as a trainee, apparently working with children in an after-school program. Davis began to show an interest in Plaintiff during their interactions at the School. Davis’s sexual advances towards Plaintiff increased and became physical. Younger children, LACC personnel, and School personnel noticed this obviously dangerous behavior. On September 7, 2017, Davis sexually assaulted and raped Plaintiff at the School.

On July 2, 2018, Plaintiff, by and through her guardian ad litem Roberta D., filed the instant suit against LACC, LAUSD, and Davis. The operative First Amended Complaint (“FAC”) alleges nine causes of action for: 1) negligence (LACC); 2) negligent supervision of school premises; 3) negligent hiring, training, retention, and supervision; 4) failure to warn; 5) intentional infliction of emotional distress; 6) gender violence; 87) sexual battery in violation of Civ. Code ; 1708.5; and 8) battery.

On November 14, 2019, LAUSD filed a cross-complaint against LACC and Great American Insurance Company (“GAIC”). LAUSD alleges that as a part of the After School Services Master Contract between itself and LACC, LACC agreed to indemnify, defend, and hold harmless LAUSD from liability arising out of the agreement or its performance. Based on the allegations of the FAC, LAUSD tendered its defense and requested indemnity from LACC and GAIC. On April 19, 2019, GAIC denied the tender of defense. The First Amended Cross-Complaint (“FACC”) states five causes of action for: 1) breach of contract (against LACC); 2) breach of contract (against GAIC); 3) breach of implied obligation of good faith and fair dealing (against LACC); 4) breach of implied obligation of good faith and fair dealing (against GAIC); 5) express contractual indemnity; 6) equitable indemnity; 7) contribution; and 8) declaratory relief.

On February 10, 2020, LACC filed the instant motion to compel a response to a Subpoena issued to non-party Los Angeles Police Department (“LAPD”). On August 18, 2020, Plaintiff filed an opposition. On August 24, 2020, LACC filed a reply. On August 26, 2020, LAPD filed a response.

Legal Standard

Personal service of a deposition subpoena obligates the production of whatever documents or things are specified in the subpoena and to appear in any proceedings to enforce discovery. (CCP ; 2020.220(c). If a nonparty disobeys a deposition subpoena, the subpoenaing party may seek a court order pursuant to CCP section 1987.1 compelling the nonparty to comply with the subpoena within 60 days after completion of the deposition record. (CCP ; 2025.480(b); see also UnzippedApparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 127.)

The motion must be accompanied by a meet and confer declaration. (CCP ; 2025.480(b).) There is no “good cause” requirement when seeking to compel documents from a nonparty. (CCP ; 2020.410(c); Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter Group 2016) ; 8:609.3, p. 8E-6.) Where personal records of a “consumer” (CCP ; 1985.3) or an employee's employment records (CCP ; 1985.6) are subpoenaed, the records turnover cannot take place until at least 20 days after the subpoena is “issued.” (CCP ; 2025.270(c).)

The Subpoenas at Issue

LACC moves to compel a response to the subpoenas at issue. LACC apparently issued two subpoenas.

First, on September 4, 2019, LACC served a deposition subpoena for production of business records on LAPD, requesting the production of the entire investigation file regarding Case File No. LAPD DR 17-12-01016 for any and all information reflecting, relating or in any way concerning the September 26, 2017 sexual assault incident at the School involving Plaintiff and Davis. (Rothenberger Decl., Ex. A.)

Second, LACC filed a subpoena at some unspecified point, specifically requesting any and all cell phones, cell phone records, electronically stored information, screenshots, etc. containing information relevant, reflecting, relating or in any way concerning the same incident involving Plaintiff and Davis. (Rothenberger Decl., Ex. C.) No proof of service is attached, though LAPD concedes it received the first subpoena (but not the second). LACC has the burden to show that it properly served the subpoenas at issue. Proof of service of the underlying subpoena will be required before the instant motion to compel will be granted. Absent additional support showing this, the Court is not inclined to grant the motion to compel for this reason.

Privacy

Plaintiff objects specifically to the disclosure of the cell phones, cell phone records, text messages, screen shots or other documents relating to the cell phone of plaintiff or defendant Brian Davis. She argues she has a privacy interest regarding conversational texts between herself and Davis.

As an initial matter, the Court notes that for discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) Admissibility is not the test, and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. (Ibid.) These rules are applied liberally in favor of discovery and, contrary to popular belief, fishing expeditions are permissible in some cases. (Ibid.) CCP section 1987.1 empowers this Court to quash the subpoenas outright in order to protect parties "from unreasonable or oppressive demands including unreasonable violations of a witness's or consumer's right of privacy."

The right to privacy is guaranteed by the U.S. Constitution. (Griswold v. State of Connecticut (1965) 381 U.S. 479,484; Palay v. Superior Court (1993) 18 Cal.App.4th 919, 931.) The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35-37.) The state's privacy provision “extends to one's confidential financial affairs as well as to the details of one's personal life” (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 368.) Even highly relevant, non-privileged information may be shielded from discovery if its disclosure would impair a person's "inalienable right of privacy" provided by California Constitution Article 1, Section 1. (Britt v. Superior Court (1978) 20 Cal.3d 844, 855-856.)

In cases where the right of privacy is raised, the court must then "carefully balance" the interest involved: i.e., the claimed right of privacy versus the public interest in obtaining just results in litigation. (Valley Bank of Nevada v. Superior Court (1975) 15 Cal. 3d 652, 657.) To obtain information protected by a right to privacy, the propounding party must show a particularized need for the confidential information sought. The broad "relevancy to the subject matter" standard is not enough. The court must be convinced that the information is directly relevant to a cause of action or defense ... i.e., that it is essential to determining the truth of the matters in dispute. (Harris v. Superior Court (1992) 3 Cal.App.4th 661, 665.)

With these authorities in mind, the Court will examine Plaintiff’s privacy claims. Indeed, such sensitive topics related to Plaintiff’s sexual assault may fairly be described as an important privacy interest. The subpoena does threaten a serious intrusion into the details of the sexual assault. However, such details are directly relevant to the cause of action and defense. The sexual assault, and the details thereto, are precisely at issue here. Information contained in the case file regarding the assault would be essential to determine the truth of this matter. Thus, LACC has a compelling interest in the disclosure of the documents and physical evidence in the file, because the text message communications may contain information relevant to LACC’s defenses on liability and damages. Indeed, Plaintiff put the communications with Davis at issue when she filed the suit. Plaintiff’s privacy concerns are also mitigated due to the parties’ stipulated protective order. Therefore, the Court finds that the interests of discovery outweigh Plaintiff’s claimed right of privacy here.

Plaintiff also argues that the records will ultimately prove inadmissible. Of course, admissibility is not the standard. Thus, Plaintiff’s citations to Evidence Code sections 352, 783, 1101(a) are inapplicable, as these sections deal with admissibility and depends largely on what the evidence actually is, and what the evidence is being presented for. CCP section 2017.220(a) also does not bar discovery here, since LACC is not seeking discovery that “concern[s] the plaintiff's sexual conduct with individuals other than the alleged perpetrator[.]”

LAPD’s Objections

LAPD argues that the California Child Abuse and Neglect Reporting Act (“CANRA”) makes certain mandatory reports (that may be in the file) privileged, absent a court order. Further, LAPD asserts evidence gathered by police as a part of an ongoing criminal investigation is confidential and privileged, and that an in camera review is required prior to disclosure.

Indeed, “the contents of police investigative files sought in civil discovery must remain confidential so long as the need for confidentiality outweighs the benefits of disclosure in any particular case.” (County of Orange v. Superior Court (2000) 79 Cal.App.4th 759, 765 [discussing Evid. Code section 1040(b)(2)].) The official information privilege set forth in Evid. Code section 1040(b)(2) applies to “information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.” (Evid. Code ; 1040(a).) The privilege is conditional and attaches only if “the court determines, in accordance with precise statutory standards, that disclosure is against the public interest ....” (Shepherd v. Superior Court (1976) 17 Cal.3d 107, 123.) The “weighing procedure will entail a separate assessment of the 'necessity for disclosure in the interest of justice' and the 'necessity for preserving the confidentiality [of the subject information.]' [ ] Implicit in each assessment is a consideration of consequences-i.e., the consequences to the litigant of nondisclosure, and the consequences to the public of disclosure. The consideration of consequences to the litigant will involve matters similar to those in issue in the determination of materiality and good cause in the context of [the subpoena process], including the importance of the material sought to the fair presentation of the litigant's case, the availability of the material to the litigant by other means, and the effectiveness and relative difficulty of such other means. The consideration of the consequences of disclosure to the public will involve matters relative to the effect of disclosure upon the integrity of public processes and procedures ....” (Id. at 126 [fn. Omitted].)

LAPD advises that an in camera review is necessary to determine this. Indeed, the Shepherd court's directives are a clear command for a particularized assessment of the applicability of the privilege as to each item a public entity seeks to keep confidential in the face of a litigant's request for disclosure. (Michael P. v. Superior Court (2001) 92 Cal.App.4th 1036, 1043.) Subsequent decisions by courts of appeal have further delineated the procedures required for a proper determination of the applicability of the section 1040(b)(2) conditional privilege. (Ibid.; see People v. Superior Court (1971) 19 Cal.App.3d 522, 530-531.) These include an in camera review pursuant to Evidence Code section 915(b), attended by the party claiming the privilege, and an ensuing full-scale adversary hearing at which the strength of the parties' competing interests are explored, along with “the possibility of reasonable alternatives” to outright disclosure of the information sought. (Michael P., supra, 92 Cal.App.4th at 1043.)

Thus, an in camera review will be necessary to make any determination regarding the investigative file. The Court does note that any forbearance on discovery due to an ongoing investigation is irrelevant here, as the investigation is apparently over. (See County of Orange, supra, 79 Cal.App.4th at 768 [“the appropriate remedy in this case is for the trial court to stay discovery of investigative information in the civil action in order to allow the sheriff's department the necessary time to investigate.”].) This will substantially weaken the public interests at play, versus the necessity of disclosure.

The disclosure of the "Suspected Child Abuse Report” (“SCAR”) contained in the file will also be subject to this analysis. The SCAR and identity of the reporter may be disclosed only as set forth in Penal Code section 11167.5(b), which provides a specified list of persons and agencies-not including parties to civil litigation. (Pen. Code; 11167.5(b)(l).) However,

Pen. Code section 11167 does authorize disclosure to LACC. Pen. Code section 11167(d)(1) provides for an authorized disclosure of the identity of a reporter through a court order. Conjointly, Pen. Code section 11167.5 provides that the reports themselves may be disclosed to “persons or agencies to whom disclosure of the identity of the reporting party is permitted under Section 11167.” Thus, so long as the disclosure of the identity of the reporter is subject to disclosure via court order, so too are the report itself.

The Court declines to rule on the motion until an in camera review is held. The Court will also require proof of service for the subpoenas.

Moving party is ordered to give notice.