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This case was last updated from Los Angeles County Superior Courts on 06/03/2020 at 17:05:01 (UTC).

CRESTBROOK INSURANCE COMPANY VS CITY OF BEVERLY HILLS

Case Summary

On 05/26/2017 CRESTBROOK INSURANCE COMPANY filed a Property - Eminent Domain lawsuit against CITY OF BEVERLY HILLS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are ELIZABETH ALLEN WHITE, DEIRDRE HILL and MONICA BACHNER. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3164

  • Filing Date:

    05/26/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Eminent Domain

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

ELIZABETH ALLEN WHITE

DEIRDRE HILL

MONICA BACHNER

 

Party Details

Plaintiffs and Petitioners

CRESTBROOK INSURANCE COMPANY

SCOTTSDALE INSURANCE COMPANY

RAHIMIAN MOJGAN KACHAN

KACHAN SAM

Defendants, Respondents and Cross Plaintiffs

BEVERLY HILLS CITY OF

DOES 1 THROUGH 50

BEHNAM GHODSIAN

GHODSIAN BENHAM

CITY OF BEVERLY HILLS

GHODSIAN BEHNAM

Cross Defendants and Cross Plaintiffs

MOES 1-10 INCLUSIVE

ROES 1-25 INCLUSIVE

GHODSIAN BEHNAM

BEHNAM GHODSIAN

HOBBS JANIE B.

GHODSIAN BENHAM

CITY OF BEVERLY HILLS

MOES 1 THROUGH 10

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

LAW OFFICES OF JEFFREY C. SPARKS

BROWN MICHAEL W. ESQ.

DORENFELDLAW INC.

DORENFELD DAVID K.

SPARKS JEFFREY C.

Defendant and Cross Plaintiff Attorneys

RICHARDS WATSON & GERSHON LAW O/O

BOGGS JOSIAH C. ESQ.

ASAMURA SASKIA T.

WIENER LAURENCE S.

YANG REY S.

Cross Plaintiff and Cross Defendant Attorneys

YANG REY S.

ZOLFAGHARI DARYOUSH ESQ.

 

Court Documents

Summons - SUMMONS ON CROSS COMPLAINT

9/25/2019: Summons - SUMMONS ON CROSS COMPLAINT

Objection - OBJECTION CITY OF BEVERLY HILLS' OBJECTIONS TO DECLARATION OF REY S. YANG

11/7/2019: Objection - OBJECTION CITY OF BEVERLY HILLS' OBJECTIONS TO DECLARATION OF REY S. YANG

Objection - OBJECTION TO EVIDENCE OFFERED BY DEFENDANT GHODSIAN IN SUPPORT OF THE MOTION FOR JUDGMENT ON THE PLEADINGS

12/24/2019: Objection - OBJECTION TO EVIDENCE OFFERED BY DEFENDANT GHODSIAN IN SUPPORT OF THE MOTION FOR JUDGMENT ON THE PLEADINGS

Order - RULING: MOTION FOR JUDGMENT ON THE PLEADINGS

1/10/2020: Order - RULING: MOTION FOR JUDGMENT ON THE PLEADINGS

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE MOTION BY DEFENDA...)

1/29/2020: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE MOTION BY DEFENDA...)

Opposition - OPPOSITION TO CROSS-DEFENDANT HOBBS' EX PARTE MOTION TO CONTINUE THE TRIAL

2/14/2020: Opposition - OPPOSITION TO CROSS-DEFENDANT HOBBS' EX PARTE MOTION TO CONTINUE THE TRIAL

Opposition - OPPOSITION TO DEFENDANT GHODSIAN'S MOTION FOR UNDERTAKING, FILED CONCURRENTLY WITH OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

3/11/2020: Opposition - OPPOSITION TO DEFENDANT GHODSIAN'S MOTION FOR UNDERTAKING, FILED CONCURRENTLY WITH OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Declaration - DECLARATION OF JON WREN, PH.D., P.E., IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY JUDGEMENT/UNDERTAKING

3/11/2020: Declaration - DECLARATION OF JON WREN, PH.D., P.E., IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY JUDGEMENT/UNDERTAKING

KACHANS' OBJECTION TO NEW EVIDENCE SUBMITTED BY THE CITY OF BEVERLY HILLS WITH THE CITY'S REPLY IN SUPPORT OF MOTION FOR STAY

8/22/2018: KACHANS' OBJECTION TO NEW EVIDENCE SUBMITTED BY THE CITY OF BEVERLY HILLS WITH THE CITY'S REPLY IN SUPPORT OF MOTION FOR STAY

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER SETTING MANDATORY SETTLEMENT CONFERENCE) OF 09/10/2019

9/10/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER SETTING MANDATORY SETTLEMENT CONFERENCE) OF 09/10/2019

Ex Parte Application - EX PARTE APPLICATION NOTICE OF EX PARTE APPLICATION AND EX PARTE APPLICATION BY DEFENDANT BEHNAM GHODSIAN FOR LEAVE TO HAVE HIS MOTION FOR SUMMARY JUDGMENT HEARD LESS THAN 30 DA

10/15/2019: Ex Parte Application - EX PARTE APPLICATION NOTICE OF EX PARTE APPLICATION AND EX PARTE APPLICATION BY DEFENDANT BEHNAM GHODSIAN FOR LEAVE TO HAVE HIS MOTION FOR SUMMARY JUDGMENT HEARD LESS THAN 30 DA

Objection - OBJECTION TO EVIDENCE SUBMITTED IN SUPPLEMENTAL DECLARATION OF PLAINTIFF'S ATTORNEY JEFFREY C. SPARKS

12/20/2019: Objection - OBJECTION TO EVIDENCE SUBMITTED IN SUPPLEMENTAL DECLARATION OF PLAINTIFF'S ATTORNEY JEFFREY C. SPARKS

Declaration - DECLARATION OF REY S. YANG IN SUPPORT OF MOTION BY DEFENDANT BEHNAM GHODSIAN FOR SUMMARY JUDGMENT

1/3/2020: Declaration - DECLARATION OF REY S. YANG IN SUPPORT OF MOTION BY DEFENDANT BEHNAM GHODSIAN FOR SUMMARY JUDGMENT

CITY OF BEVERLY HILLS' REQUEST FOR JUDICIAL NOTICE AND EXHIBITS IN SUPPORT OF REPLY TO OPPOSITIONS BY PLAINTIFFS TO MOTION BY CITY OF BEVERLY HILLS

8/20/2018: CITY OF BEVERLY HILLS' REQUEST FOR JUDICIAL NOTICE AND EXHIBITS IN SUPPORT OF REPLY TO OPPOSITIONS BY PLAINTIFFS TO MOTION BY CITY OF BEVERLY HILLS

Minute Order -

11/2/2017: Minute Order -

CITY OF BEVERLY HILLS' ANSWER TO FIRST AMENDED COMPLAINT FILED BY PLAINTIFFS SAM KACHAN AND MOJGAN KACHAN RAHIMIAN

11/9/2017: CITY OF BEVERLY HILLS' ANSWER TO FIRST AMENDED COMPLAINT FILED BY PLAINTIFFS SAM KACHAN AND MOJGAN KACHAN RAHIMIAN

CROSS-DEFENDANT/CROSS-COMPLAINANT BEHNAM GHODSIAN'S CROSS-COMPLAINT EOR EQUITABLE INDEMNITY AND DECLARATORY RELIEF

9/14/2017: CROSS-DEFENDANT/CROSS-COMPLAINANT BEHNAM GHODSIAN'S CROSS-COMPLAINT EOR EQUITABLE INDEMNITY AND DECLARATORY RELIEF

203 More Documents Available

 

Docket Entries

  • 10/26/2020
  • Hearing10/26/2020 at 10:00 AM in Department 48 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 10/21/2020
  • Hearing10/21/2020 at 10:00 AM in Department 48 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 07/21/2020
  • Hearing07/21/2020 at 10:00 AM in Department 48 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion - Other Motion for Undertaking to Secure and Award of Costs

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  • 07/21/2020
  • Hearing07/21/2020 at 10:00 AM in Department 48 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 06/02/2020
  • DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 04/21/2020
  • Docketat 09:30 AM in Department 48, Elizabeth Allen White, Presiding; Jury Trial ((estimate5-7-days)) - Not Held - Advanced and Continued - by Court

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  • 04/20/2020
  • Docketat 08:30 AM in Department 48, Elizabeth Allen White, Presiding; Hearing on Motion - Other (Motion for Undertaking to Secure and Award of Costs) - Not Held - Advanced and Continued - by Court

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  • 04/20/2020
  • Docketat 08:30 AM in Department 48, Elizabeth Allen White, Presiding; Hearing on Motion for Summary Judgment - Not Held - Advanced and Continued - by Court

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  • 04/20/2020
  • DocketNotice (OF CONTINUANCE OF HEARING ON MOTION BY DEFENDANT BEHNAM GHODSIAN FOR AN ORDER REQUIRING PLAINTIFF TO FILE AN UNDERTAKING OF $100,000 TO SECURE AN AWARD OF COSTS); Filed by Benham Ghodsian (Defendant)

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  • 04/20/2020
  • DocketNotice (OF CONTINUANCE OF HEARING ON MOTION BY DEFENDANT BEHNAM GHODSIAN FOR SUMMARY JUDGMENT); Filed by Benham Ghodsian (Defendant)

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323 More Docket Entries
  • 06/15/2017
  • DocketNotice of Case Management Conference; Filed by Crestbrook Insurance Company (Plaintiff)

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  • 06/08/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 06/08/2017
  • DocketOSC-RE Other (Miscellaneous); Filed by Clerk

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  • 06/08/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 06/08/2017
  • DocketORDER TO SHOW CAUSE HEARING

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  • 06/06/2017
  • DocketProof-Service/Summons; Filed by Crestbrook Insurance Company (Plaintiff)

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  • 06/06/2017
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 05/26/2017
  • DocketSUMMONS

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  • 05/26/2017
  • DocketComplaint; Filed by Crestbrook Insurance Company (Plaintiff); Sam Kachan (Plaintiff); Mojgan Kachan Rahimian (Plaintiff) et al.

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  • 05/26/2017
  • DocketCOMPLAINT IN SUBROGATION FOR DAMAGES 1. INVERSE CONDEMNATION; ETC

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Tentative Rulings

Case Number: BC663164    Hearing Date: July 21, 2020    Dept: 48

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; MOTION FOR UNDERTAKING

On May 11, 2018, Plaintiff Crestbrook Insurance Company (“Plaintiff”) filed its first amended complaint (“FAC”) in subrogation against Defendants City of Beverly Hills (“City”) and Behnam Ghodsian (“Defendant”). Plaintiff named Defendant as Doe 1. Only the fourth cause of action for negligence is asserted against Defendant. The FAC alleges in the fourth cause of action for negligence that Defendant’s failure to maintain and repair his sewer lateral connections from his property to the connection with City’s sewer main caused Plaintiff’s harm. (FAC ¶ 25-27.) Plaintiff later settled its claims against the City. On January 3, 2020, Defendant moved for summary judgment. Defendant also filed a motion for an undertaking.

SUMMARY JUDGMENT

REQUEST FOR JUDICIAL NOTICE

Defendant requests the Court take judicial notice of the complaint, amendment to complaint, FAC, and Notice of Ruling on Motion to Contest Application for Good Faith Determination of Settlement Filed by Behnam Ghodsian, filed on November 21, 2018. These requests are granted. (Evid. Code, § 452, subd. (d).) Plaintiff also requests the Court take judicial notice of the Statewide General Waste Discharge Requirements for Sanitary Sewer Systems from the State Water Resources Control Board, Order No. 2006-0003-DWQ, dated May 2, 2006. This request is granted. (Evid. Code, § 452, subd. (b).)

EVIDENTIARY OBJECTIONS

Plaintiff’s Objection Nos. 1 and 5 are sustained. Plaintiff’s Objection Nos. 2-4 are overruled.

Defendant’s Objection Nos. 1-4 are overruled. Defendant’s Objection Nos. 5-6 are sustained.

FACTUAL BACKGROUND

Plaintiff insured Sam Kachan and Mojgan Kachan Rahimian (“Kachans”) for their residence at 356 S. Palm Drive, Beverly Hills, California. (FAC ¶ 1.) On or about July 30, 2016, wastewater seeped into the Kachans’ basement. (Undisputed Material Facts “UMF” 1.) Andrew Diaz (“Diaz”) and Danny Boyle (“Boyle”), members of the City’s wastewater crew, responded to an emergency call in the morning and removed a blockage inside the sewer main. (UMF 3.) Diaz and Boyle returned in the afternoon with closed-circuit television (“CCTV”) equipment to videotape the condition of the sewer main. (UMF 6.) The CCTV video shows several sewer lateral connections with root intrusion into the City’s sewer main. (UMF 20-21.) The Kachans’ basement is below the upstream manhole. (UMF 7.)

The City is responsible for inspecting the sewer main and performing proactive, regular maintenance at least once a year to prevent sewer backups. (UMF 13-16.) Between the 2015 and 2016 hydrojetting of the relevant sewer main segment, 385 days passed. (UMF 18.)

LEGAL STANDARD

For each claim in the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Then the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf, supra, 128 Cal.App.4th at p. 1520.) To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163 (Sangster).)

DISCUSSION

An insurer’s cause of action based in subrogation requires: “(a) the insured suffered a loss for which the defendant is liable, either as the wrongdoer whose act or omission caused the loss or because the defendant is legally responsible to the insured for the loss caused by the wrongdoer; (b) the claimed loss was one for which the insurer was not primarily liable; (c) the insurer has compensated the insured in whole or in part for the same loss for which the defendant is primarily liable; (d) the insurer has paid the claim of its insured to protect its own interest and not as a volunteer; (e) the insured has an existing, assignable cause of action against the defendant which the insured could have asserted for its own benefit had it not been compensated for its loss by the insurer; (f) the insurer has suffered damages caused by the act or omission upon which the liability of the defendant depends; (g) justice requires that the loss be entirely shifted from the insurer to the defendant, whose equitable position is inferior to that of the insurer; and (h) the insurer’s damages are in a liquidated sum, generally the amount paid to the insured.” (Fireman’s Fund Ins. Co. v. Md. Cas. Co. (1998) 65 Cal.App.4th 1279, 1292, emphasis in original (“Fireman’s Fund”.)

Defendant contends that the incident occurred because the Kachans did not properly maintain a functioning backwater valve and the City did not take proactive steps to inspect and maintain the sewer. (Motion at p. 5.) Accordingly, Defendant moves for summary judgment on the ground that Plaintiff cannot establish that the Kachans are not primarily liable, that the City is not primarily liable, or that Defendant is primarily liable. Defendant further contends that even if he breached his duty to comply with an ordinance regarding maintenance of his lateral connection, the actions of the Kachans and the City break the chain of causation. (Ibid.)

The Pleadings

Plaintiff contends that Defendant’s argument goes outside the pleadings because the issue of primarily liability originates in the doctrine of “superior equities,” and Defendant did not plead that affirmative defense. (Opposition at pp. 13-14.) However, as Fireman’s Fund makes clear, a showing that the insurer’s equitable position is greater than the defendant’s is an element of Plaintiff’s affirmative case, not an affirmative defense.

Defendant’s amended answer raised, as its forty-second affirmative defense, that Plaintiff’s damage was “the direct and proximate result of the independent or superseding action of PLAINTIFF and/or other persons or parties.” (Amended Answer at p. 8.) Therefore, contrary to Plaintiff’s contention (Opposition at p. 14), this defense is within the scope of the pleadings and may be adjudicated on summary judgment.

Primary Liability

Defendant starts by arguing that Plaintiff cannot show that the insured (the Kachans) are not primarily liable. However, the element is not that the insured was not primarily liable. It is that “the claimed loss was one for which the insurer was not primarily liable.” Fireman’s Fund, supra, 65 Cal.App.4th at p. 1292, emphasis added.) Defendant does not contend, or submit evidence, that Plaintiff is anything other than “an innocent insurance company (which admittedly received premiums for the very loss that occurred).” (State Farm General Ins. Co. v. Wells Fargo Bank, N.A. (2006) 143 Cal.App.4th 1098, 1119 (“State Farm”).)

As the court in State Farm explained, when the insurer merely paid the insured under the insurance policy and there is more than one potential cause of the harm, the analysis is not all or nothing. (Id. at p. 1118 [rejecting “the extreme positions advanced by the parties” and noting that the pertinent case authority does not require “that a defendant be the primary wrongdoer,” emphasis in the original].) It may be enough that the defendant “helped to cause a loss.” (Id. at p. 1119 [“Subrogation advances an important policy rationale underlying the tort system by forcing a wrongdoer who helped to cause a loss to bear the burden of reimbursing the insurer for payments made to its insured as a result of the wrongdoer’s acts and omissions”].) Thus, “the issue is whether [the defendants] were in a better position to avoid the loss than [the insurer] or its insureds.” (Id. at p. 1118.) That issue of the weighing of the equities is addressed below.

Superior Equities

“[T]he aim of equitable subrogation is to shift a loss for which the insurer has compensated its insured to one who caused the loss, or who is legally responsible for the loss caused by another and whose equitable position is inferior to the insurer’s.” (State Farm, supra, 143 Cal.App.4th at p. 1119.) The fact that a party did not directly cause the loss “does not automatically mean that they have a superior equitable position over [the insurer.]” (Id. at p. 1118.) “[A] significant factor in weighing the equities is whether a defendant’s negligent acts were related to or contributed to the primary cause of loss.” (Ibid.) Thus, even if the defendant was not the direct or primary cause of the loss, the equities may still weigh in favor of shifting the burden of the loss from the insurer to the defendant. (Id. at p. 1119.) In sum, the fact that a defendant’s actions were not the sole primary cause of loss does not automatically mean that summary judgment must be granted as a matter of law for the defendant. (Ibid.)

Here, Defendant argues that the Kachans or the City caused the loss, and that Defendant did not cause the loss. Alternatively, Defendant argues the actions of the Kachans or the City were superseding causes. In support, Defendant submits evidence that the Kachans did not maintain a properly functioning backwater valve in good working order at their residence. In the declaration and deposition testimony of Rajesh Patel (“Patel”), the City’s Assistant Director of Community Development, Patel testified that the plumbing code required a backwater valve. (Yang Decl., Ex. D at pp. 43, 54-55.) Patel opines that if the Kachans had maintained a properly functioning backwater valve in good working order at their residence, the incident would not have resulted in any sewer waste water in their basement. (Yang Decl., Ex. 132 ¶ 20.)

Defendant also submits evidence that the City did not comply with its mandatory obligation to take proactive steps to regularly and routinely inspect and maintain its sewer. According to Defendant, the incident would not have occurred in the absence of the City’s failure to inspect the relevant section of sewer in the 385 days prior to the incident. (Motion at pp. 12-13.) Defendant provides the deposition testimony of Colonel James Burnley Jr. (“Burnley”), the City’s Waste Manager, who confirms that the maintenance log shows zero maintenance between July 30, 2015 and July 29, 2016, before the emergency call on July 30, 2016. (Yang Decl., Ex. G at pp. 80-81.)

And, Defendant contends he was not at all at fault because the blockage was at the sewer main, not at his lateral connection. (Motion at p. 14.) Defendant submits the CCTV video, images from the video, and Burnley’s deposition testimony of this opinion of the video. (Yang Decl., Ex. G at pp. 165, 168; Ex. 210-211.) Burnley stated that he did not see any roots coming out of the lateral and that he saw a little bit of what appeared to be roots in the corner, at the lateral opening. (Yang Decl., Ex. G at pp. 165, 168.) Defendant also provides the deposition testimony of Patricia Rhay (“Rhay”), the City’s former Assistant Director of Public Works. (Yang Decl., Ex. E.) Rhay stated that the City owns the wye, which is labeled in a diagram as the lateral connection stub. (Id. at pp. 162, 187.) According to Burnley, the City maintains the main line. (Yang Decl., Ex. G at p. 64.)

Defendant has therefore met his initial burden of showing that the acts or omissions of the Kachans and the City were causes of the loss, and that the blockage was at a part of the lateral under the City’s, not his, control.

In opposition, Plaintiff provides evidence that the City approved the plumbing connection of the Kachans’ property to the City’s sewer main in 1991-1992, before the Kachans owned the property. (Opposition at p. 16; Sparks Decl., Ex. 6 at p. 13.) Plaintiff also submits evidence that the Kachans may not have been required to upgrade the system. (Sparks Decl., Ex. 5 at pp. 98, 105-107; Ex. 14 at pp. 33-34.) Additionally, Plaintiff’s expert opined that a functioning backwater valve would have prevented only the back flow from the City’s sewer main from flowing out of the sanitary sewer lateral of the property into the basement. (Wren Decl., ¶ 8.) This backup would have occurred only after the residence’s sewer lateral capacity was exceeded due to its inability to discharge into the City’s sewer main. (Ibid.) As the back flow of sewer water from the City’s sewer main occurred, the residence’s sewer discharge would also be redirected from its lateral into the basement, and the sanitary sewer system for the residence would discharge into the basement along with the back flow from the City’s sewer system. (Ibid.)

Therefore, there is a triable issue of fact as to whether the Kachans were required to install a backwater valve and whether, even if the valve had been installed, it would have prevented the incident.

Plaintiff also provides additional deposition testimony of Burnley, who explains that Defendant is responsible for maintaining the sewer lateral from the point of connection with the home to its connection with the City’s sewer main. (Sparks Decl., Ex. 8 at pp. 232-233, 264-265.) After the incident, Josette Descalzo, Environmental Engineer for the City, described roots in and coming out of Defendant’s lateral up to the point of connection to the City’s main line, which Defendant needed to address. (Sparks Decl., Ex. 9 at pp. 48-58.) This evidence raises disputed facts as to the location of the roots and Defendant’s obligation to maintain that area, thereby putting Defendant’s negligence in dispute.

In sum, disputed material facts exist about the cause of the loss, which preclude summary judgment.

Other Arguments

Defendant also argues that the decision in City of Oroville v. Superior Court (2019) 7 Cal.5th 1091 compels a finding that the Kachans are liable due to their failure to install the valve and a ruling in favor of Defendant. This argument is not well-taken because in that case the Supreme Court analyzed liability for inverse condemnation, not negligence of a private third party or equitable subrogation. (Id. at pp. 1097-1105.) Also, the facts in that case involving different parties, a different city, and a different property are, by definition, not the same facts present here.

Defendant contends that Plaintiff’s claim for subrogation was extinguished by its settlement with the City. (Motion at pp. 13-14.) Defendant cites American States Ins. Co. v. National Fire Ins. Co. of Hartford (2011) 202 Cal.App.4th 692 for this argument. That case involved litigation between two insurance companies about which was responsible for compensating the insured. (Id. at p. 703.) There, the court held that “the insured’s right of recovery is restricted to the actual amount of the loss,” and where “an insured has recovered the full amount of its loss” from one insurance company, “the insured has no further rights against the insurers who have not contributed to its recovery.” (Id. at p. 104.) Here, the Kachans are not seeking to collect more money from a second insurer. Rather, the insurer, who recovered from the City some but not all of the amount it paid the Kachans, is seeking to recover additional amounts from Defendant. Defendant cites no law that a good faith settlement with one defendant bars a plaintiff from recovering from another defendant.

CONCLUSION

Defendant’s motion for summary judgment is DENIED.

UNDERTAKING

LEGAL STANDARD

When a plaintiff in an action resides out of the state, the defendant may, at any time, apply to the court for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney’s fees which may be awarded in the action. (Code Civ. Proc., § 1030, subd. (a).) The motion shall be made on grounds that the plaintiff resides out of the state and there is a reasonable possibility that the moving defendant will obtain judgment in their favor. (Code Civ. Proc., § 1030, subd. (b).) The motion shall be accompanied by an affidavit in support of the grounds for the motion and setting forth the nature and amount of costs and attorney’s fees the defendant has incurred and expects to incur. (Code Civ. Proc., § 1030, subd. (b).) “The purpose of [Code of Civil Procedure section 1030] is to enable a California resident sued by an out-of-state resident to secure costs in light of the difficulty of enforcing a judgment for costs against a person who is not within the court’s jurisdiction.” (Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 428.) The moving party is not required to show there is no possibility that an out-of-state plaintiff could win at trial. Rather, the moving party is required to show only that it was reasonably possible that they would win. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432.)

If the motion is granted, the plaintiff shall file the undertaking no later than 30 days after service of the court’s order requiring it, and if plaintiff fails to file the undertaking within the time allowed, the plaintiff’s action shall be dismissed as to the moving defendant. (Code Civ. Proc., § 1030, subd. (d).)

DISCUSSION

Out of State Residency

Plaintiff is a corporation incorporated in Ohio. (Motion, Ex. L; Opposition, Ex. 4.) Plaintiff concedes this fact. (Sparks Decl. ¶ 5, Ex. 4.)

Plaintiff argues that the real party in interest is not Defendant but his out-of-state insurance company. Be that as it may, section 1030, subdivision (a) requires only that a plaintiff reside outside of California. Therefore, the out-of-state residency is satisfied.

Reasonable Possibility of Prevailing

Both parties repeat and incorporate their arguments asserted in connection with Defendant’s motion for summary judgment and rely on the same evidence. Because many disputed facts exist, the Court cannot find at this stage that Defendant has shown a reasonable possibility of prevailing.

Affidavit in Support

Defendant requests an undertaking of $100,000.00 to secure an award of reasonable costs and expert expenses. Defendant states this amount is based on filing fees, costs for participating in at least 14 depositions, retention of multiple experts, and an anticipated fifteen day trial. (Yang Decl. ¶¶ 22-25.) The declaration, however, does not explain how this adds up to $100,000.00. For example, it does not state how much Defendant has incurred for the fourteen deposition that have already taken place or in the filing fees for already-filed documents. It does not state why Defendant expects to be able to recover the cost of experts, how many experts Defendant has retained, or the hourly rate of the experts. In sum, Defendant does not substantiate the reasonableness of the $100,000.00 request. For this additional reason, the motion is denied.

CONCLUSION

Defendant’s motion for an order requiring Plaintiff to file an undertaking is DENIED.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: BC663164    Hearing Date: January 10, 2020    Dept: 48

MOTION FOR JUDGMENT ON THE PLEADINGS

MOVING PARTY: Defendant Behnam Ghodsian

RESPONDING PARTY(S): Plaintiff Crestbrook Insurance Company

PROOF OF SERVICE:

Discussion

1. Fourth Cause of Action (Negligence/Negligence Per Se).

The question of whether Plaintiff or Defendant is primarily liable is a question of fact which cannot be determined on a motion for judgment on the pleadings.

Moreover, regardless of whether the Wastewater Ordinance of the City of Beverly Hills (BHMC § 6-1-301) applies to the duty of care question, a negligence per se cause of action is not a separate cause of action for violation of the ordinance. Rather, it is a common law action for negligence, and the ordinance merely affects the evidentiary burden at trial.

Generally, “ ‘[t]he doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the  [*738] standard of care in a cause of action for negligence.’ [Citation.] [¶] The doctrine of negligence per se does not provide a private right of action for violation of a statute. [Citation.]” (Johnson v. Honeywell Internat. Inc. (2009) 179 Cal.App.4th 549, 555–556 [101 Cal. Rptr. 3d 726], quoting Millard v. Biosources, Inc., supra, 156 Cal.App.4th at p. 1353, fn. 2.) Under the doctrine, “the plaintiff ‘borrows’ statutes to prove duty of care and standard of care.” (179 Cal.App.4th at p. 558.)

Evidence Code section 669 provides that “negligence is presumed if the plaintiff establishes four elements: (1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence … the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted. The first two elements are normally questions for the trier of fact, while the latter two elements are determined by the trial court as a matter of law. [Citation.]” (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420 [107 Cal. Rptr. 2d 50].)

Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 737-38.

In any event, BHMC § 6.1.307(G) is alleged in the 1AC to provide in part: “Maintenance and repair of house connection sewers . . . from the point of connection with the internal facility plumbing to the connection to the public sewer shall be the sole responsibility of the property owner.” 1AC, ¶ 25. The 1AC alleges that Doe 1 (demurring Defendant herein) was negligent in failing to properly maintain and repair the sewer lateral connection from the property, allowing penetration of tree roots and/or foreign materials to enter the City’s sewer system. 1AC, ¶¶ 25, 26. The allegations of the 1AC are taken to be true for purposes of a motion for judgment on the pleadings. County of Orange v. Association of Orange County Deputy Sheriffs (2011) 192 Cal.App.4th 21, 32-33. The allegations are sufficient to give rise to a duty on the part of Defendant to maintain the sewer lateral connection on Defendant’s property.

Defendant did not request that the Court take judicial notice of the BHMC. Further, Defendant’s argument that Defendant had no independent access to the areas underneath the alley does not address Defendant’s ability to access the sewer lateral connection beneath his property (i.e., for instance by way of a scope inspection).

The motion for judgment on the pleadings as to the fourth cause of action is DENIED.

Case Number: BC663164    Hearing Date: January 03, 2020    Dept: 48

MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

MOVING PARTY: Plaintiff Crestbrook Insurance Company

RESPONDING PARTY(S): Defendant Behnam Ghodsian

PROOF OF SERVICE:

Case Number: BC663164    Hearing Date: November 21, 2019    Dept: 48

MOTION TO CONTEST APPLICATION FOR GOOD FAITH DETERIMINATION OF SETTLEMENT

MOVING PARTY: Defendant Benham Ghodsian

RESPONDING PARTY(S): Defendant/Cross-Complainant City of Beverly Hills

PROOF OF SERVICE:

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