This case was last updated from Los Angeles County Superior Courts on 06/10/2019 at 08:07:38 (UTC).

DAVID LOPEZ VS BOB FRENCH CONSTRUCTION INC ET AL

Case Summary

On 12/26/2017 DAVID LOPEZ filed a Personal Injury - Other Personal Injury lawsuit against BOB FRENCH CONSTRUCTION INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8041

  • Filing Date:

    12/26/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff

LOPEZ DAVID

Defendants

SINANIAN DEVELOPMENT INC.

BOB FRENCH CONSTRUCTION INC.

Attorney/Law Firm Details

Plaintiff Attorney

LAMBERT EARLE ESQ.

Defendant Attorney

WEINSTEIN MARK A

 

Court Documents

COMPLAINT FOR PERSONAL INJURY AND DAMAGES I. NEGLIGENT EXERCISE OF RETAINED CONTROL 2. NEGLIGENCE 3. NEGLIGENCE PER SE

12/26/2017: COMPLAINT FOR PERSONAL INJURY AND DAMAGES I. NEGLIGENT EXERCISE OF RETAINED CONTROL 2. NEGLIGENCE 3. NEGLIGENCE PER SE

SUMMONS

12/26/2017: SUMMONS

Request for Dismissal

5/29/2019: Request for Dismissal

Request for Dismissal

5/10/2019: Request for Dismissal

Request for Dismissal

4/5/2019: Request for Dismissal

Substitution of Attorney

2/4/2019: Substitution of Attorney

ANSWER OF DEFENDANT SINANIAN DEVELOPMENT, INC. TO THE UNVERIFIED COMPLAINT OF DAVID LOPEZ

5/18/2018: ANSWER OF DEFENDANT SINANIAN DEVELOPMENT, INC. TO THE UNVERIFIED COMPLAINT OF DAVID LOPEZ

 

Docket Entries

  • 05/29/2019
  • DocketRequest for Dismissal; Filed by David Lopez (Plaintiff)

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  • 05/10/2019
  • DocketRequest for Dismissal (Filed but not Entered); Filed by David Lopez (Plaintiff)

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  • 04/05/2019
  • DocketRequest for Dismissal ((Not Entered))

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  • 02/04/2019
  • DocketSubstitution of Attorney; Filed by Sinanian Development, Inc. (Defendant)

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  • 05/18/2018
  • DocketANSWER OF DEFENDANT SINANIAN DEVELOPMENT, INC. TO THE UNVERIFIED COMPLAINT OF DAVID LOPEZ

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  • 05/18/2018
  • DocketAnswer; Filed by Sinanian Development, Inc. (Defendant)

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  • 12/26/2017
  • DocketSUMMONS

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  • 12/26/2017
  • DocketComplaint; Filed by David Lopez (Plaintiff)

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  • 12/26/2017
  • DocketCOMPLAINT FOR PERSONAL INJURY AND DAMAGES I. NEGLIGENT EXERCISE OF RETAINED CONTROL 2. NEGLIGENCE 3. NEGLIGENCE PER SE

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Tentative Rulings

b"

Case Number: ****8041 Hearing Date: December 16, 2021 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

DAVID LOPEZ,

Plaintiff(s),

vs.

BOB FRENCH CONSTRUCTION, INC., ET AL.,

Defendant(s).

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Case No.: ****8041

[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Dept. 31

1:30 p.m.

December 16, 2021

1. Background

Plaintiff, David Lopez (“Plaintiff”) filed this action against defendants Bob French Construction, Inc. and Sinanian Development, Inc. for damages Plaintiff sustained when fell from a scaffolding while in the scope of his employment. Plaintiff alleges Defendants owned, leased, assembled and installed the subject scaffolding. The operative First Amended Complaint alleges causes of action for (1) negligent exercise of retained control, (2) negligence, (3) negligence per se, (4) premises liability, (5) peculiar risk, (6) non-delegable duty, and (7) failure to provide a safe place to work.

At this time, Defendant Sinanian Development, Inc. (“Defendant”) moves for summary judgment. As of December 10, 2021, no opposition has been filed.

2. Motion for Summary Judgment

a. Moving Argument

Defendant now moves for summary judgment arguing the Privette doctrine bars Plaintiff’s entire action. Defendant asserts it is a general contractor, and Plaintiff was allegedly injured while working for his employer, General Electric, inc. (“GE”). Defendant contends it explicitly and legally delegated its duties to the subcontractors hired for the construction project, GE and Bob French Construction, Inc. (“Bob French”), to ensure the necessary safety precautions were in place for employee safety. Defendant contends it did not maintain or exercise control, supervision, or direction over the details of the work performed by its subcontractors.

b. Burdens of 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.)

c. General Law Concerning Liability of Hirers to Employees of Independent Contractors

Causes of action available to an injured employee of an independent contractor against the hirer of that contractor (i.e., the general contractor, owner, developer, etc.) have been severely limited. Vicarious liability-based causes of action or theories are precluded. (Hooker v. Department of Transportation (2002) 27 Cal.4th 198.)

Ordinarily, the person hiring an independent contractor is not liable to the contractor's employees for on-the-job injuries. The independent contractor's employer's liability for such injuries is limited by workers' compensation, and the party who hired the contractor (and who indirectly paid for the contractor's workers' compensation coverage) likewise gets the benefit of that coverage. (Privette v. Superior Court (1993) 5 Cal.4th 689, 693, 700-02; Camargo v. Tjaarda Dairy (2001) 25 Cal.4th 1235, 1244-1245; Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253, 264-70.)

The Supreme Court has held that it would be unfair to impose liability on the hiring person when the liability of the contractor, the one primarily responsible for its worker’s on-the-job injuries, is limited to providing workers’ compensation coverage. As such, even if there is evidence that the hirer was directly liable for the plaintiff’s injuries, recovery is not available under the peculiar risk doctrine. (Privette, supra, 5 Cal.4th at 693, 700-02.)

Workers’ compensation “ ‘is the exclusive remedy against an employer for injury or death of an employee.’ [Citation.]” … In Privette, the Supreme Court held that “an independent contractor’s employee should not be allowed to recover damages from the contractor’s hirer, who ‘is indirectly paying for the cost of [workers’ compensation] coverage, which the [hired] contractor presumably has calculated into the contract price.’ [Citation.]” [Citation.]

The Privette holding was based on the principle that the hirer of an independent contractor generally has “ ‘ “ ‘no right of control as to the mode of doing the work contracted for.’ ” ’ ” [Citation.] Precisely because the hirer “has no obligation to specify the precautions an independent hired contractor should take for the safety of the contractor’s employees, ... [a]bsent an obligation, there can be no liability in tort.” [Citation.]

(Alvarez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 640.) Moreover, “[t]he Privette line of decisions establishes a presumption that an independent contractor’s hirer ‘delegates to that contractor its tort law duty to provide a safe workplace for the contractor’s employees.’ [Citation.]” (Id. at 642.)

However, the hirer can be held directly liable if its conduct affirmatively contributed to the plaintiff’s injuries. (Id. at 641.) “There is an exception to the general rule of nonliability when the hirer retains control over safety conditions at the worksite. The ‘hirer of an independent contractor can be liable for a workplace injury of the contractor’s employee if the hirer retained control over the contractor’s work and exercised that control in a way that “affirmatively contribute[d]” to the employee’s workplace injury. [Citation.]’ [Citation.]” (Id.)

“In order for a worker to recover on a retained control theory, the hirer must engage in some active participation. [Citation.]” (Tverberg v. Fillner Construction, Inc. (2012) 202 Cal.App.4th 1439, 1446, 136 Cal.Rptr.3d 521.) “An affirmative contribution may take the form of actively directing a contractor or an employee about the manner of performance of the contracted work. [Citations.] When the employer directs that work be done by use of a particular mode or otherwise interferes with the means and methods of accomplishing the work, an affirmative contribution occurs. [Citations.] When the hirer does not fully delegate the task of providing a safe working environment but in some manner actively participates in how the job is done, the hirer may be held liable to the employee if its participation affirmatively contributed to the employee’s injury. [Citation.]” (Ibid.)

(Id.)

Another exception is that “the hirer as landowner may be independently liable to the contractor's employee, even if it does not retain control over the work, if (1) it knows or reasonably should know of a concealed, pre-existing hazardous condition on its premises; (2) the contractor does not know and could not reasonably ascertain the condition; and (3) the landowner fails to warn the contractor.” (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 674-75.)

d. Analysis regarding Privette

Defendant Sinanian contends that Plaintiff’s claims against it are barred by the Privette doctrine, and that there are otherwise no exceptions that apply under which Defendant can be liable for Plaintiff’s injuries.

Defendant asserts that on January 4, 2016, Plaintiff was working on the subject construction project, and GE’s foreman was on the jobsite. (UMF 2-3.) GE’s foreman was responsible for the safety of his team of electricians working on the project. (UMF 5.) When Plaintiff showed up at the jobsite on January 4, 2016, he did not know what tasks he would be required to do, as GE’s foreman would let him know what to do. (UMF 6.) GE’s foreman showed Plaintiff where he was to perform the relevant work, and Plaintiff got on the scaffold to complete the work. (UMF 8-9.) After Plaintiff completed part of the work, he stepped back and at that time he fell approximately 15 feet to the ground. (UMF 12.)

Defendant was the general contractor, and Bob French was contracted to provide structural concrete and masonry in connection with the project. (UMF 14-15.) The subcontract with Bob French provides it will be responsible for the safety and protection of its own work, and that Bob French shall be responsible for the safety of workman in accordance with applicable laws and codes. (UMF 16-17.) Bob French was responsible for erecting the scaffolding and ensuring the scaffold was safe; any responsibility for ensuring the scaffold was safe was delegated to Bob French. (UMF 18-19.) Defendant did not specify, direct, or control the means and manner in which Bob French performed its work, including whether to erect a scaffold, and Bob French supplied all materials to carry out its work. (UMF 20-21.) Defendant did not control, build or supply the scaffold. (UMF 22.)

GE was a subcontractor on the project, and the contract between Defendant and GE provided that GE shall provide all materials and scaffolding necessary to complete its work. (UMF 23-24.) Further, the contract provided concerning equipment furnished by others, that it was GE’s responsibility to examine and accept the items, and that GE accepted sole responsibility for providing a safe workplace for its employees. (UMF 25-26.) Defendant did not specify, direct, or control the means or manner in which GE’s employees performed their work, including whether or not to use a scaffold, and any responsibilities for ensuring the safety of GE’s employees were delegated to GE. (UMF 27-28.)

This evidence is sufficient to shift the burden to Plaintiff to raise a triable issue of material fact. (See Alvarez, 13 Cal.App.5th at 644 [“Here, defendants provided the requisite factual foundation for the Privette presumption to apply. Their separate statement presented evidence that Evergreen hired plaintiff’s employer to perform work at the Evergreen Terminal, that the other defendants … were also hired by Evergreen to perform work there, and that plaintiff was injured while working at the site. This evidence was sufficient to establish that the Privette presumption applied and, therefore, shifted the burden to plaintiff to raise a triable issue of fact.”].)

e. Opposing Burden

Any opposition to the motion was due on or before December 2, 2021. The court has not received any opposition to the motion. Plaintiff thus failed to meet the shifted burden, and the motion is granted.

3. Conclusion

Defendant Sinanian’s motion for summary judgment is granted.

Moving Defendant is ordered to give notice.

C61906

PLEASE TAKE NOTICE:

Dated this 16th day of December, 2021

Hon. Audra Mori

Judge of the Superior Court

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Case Number: ****8041    Hearing Date: March 25, 2021    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

DAVID LOPEZ,

Plaintiff(s),

vs.

BOB FRENCH CONSTRUCTION, INC., ET AL.,

Defendant(s).

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CASE NO: ****8041

[TENTATIVE] ORDER GRANTING IN PART MOTION TO QUASH SUBPOENA

Dept. 31

1:30 p.m.

March 25, 2021

 

  1. Background

    Plaintiff, David Lopez filed this action against Defendants, Bob French Construction, Inc. and Sinanian Development, Inc. for damages Plaintiff sustained when fell from a scaffolding while in the scope of his employment. Plaintiff alleges Defendants owned, leased, assembled and installed the subject scaffolding.

    On 10/20/20, Defendant Sinanian Development, Inc. (“Defendant”) served eight deposition subpoenas for production of business records on George Electric Co., Valence Staffing Group Inc, AllCom Electric, Outsource Telecom, LLC, All Power Systems, Premier Electrical Staffing, Ducros Electrical Contracting and Design, and Priority Power Inc., who are Plaintiff’s former and current employers. The subpoenas served on each’s Cutodian of Records seek:

    1. All records related to disability from work due to accident of January 4, 2016;

    2. Dates of employment;

    3. Dates missed from work due to accident of January 4, 2016;

    4. Application for employment;

    5. Payroll records documenting all compensation paid;

    6. Records of disciplinary action; and/or

    7. Records for all training provided.

    (Mot. Exh. 2; Sep. Statement at p. 2:4-10.)

    Plaintiff now moves to quash the subject deposition subpoenas.

  2. Motion to Quash

  1. Analysis

    Plaintiff argues the subpoenas are overbroad, harassing and invade Plaintiff’s right to privacy and will not lead to the discovery of admissible evidence. Plaintiff contends the subpoenas essentially seek Plaintiff’s entire personnel file from his employers, Defendant can make showing of compelling interest or need to outweigh Plaintiff’s right to privacy, including sensitive financial information.

    In opposition, Defendant asserts a compelling need for the requested records does not always need to be shown. Defendant contends Plaintiff’s employment records are directly relevant to this action and the information relevant to Plaintiff’s claim for loss of earning cannot be obtained by any other means.

    A court “may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.” (CCP ; 1987.1.) The court, upon motion reasonably made by the party, may rule upon motions for quashing, modifying or compelling compliance with, subpoenas. (See, e.g., Lee v. Swansboro County Property Owners Ass’n (2007) 151 Cal.App.4th 575, 582-583.) The parties’ discussion of their meet and confer efforts, or lack thereof, is irrelevant as there is no meet and confer requirement in bringing a motion to quash. (See CCP ; 1987.1.)

    “[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.)

    For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. (Davies v. Superior Court (1984) 36 Cal.3d 291, 301.) These rules are applied liberally in favor of discovery (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790), and again (contrary to popular belief), fishing expeditions are permissible in some cases. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 385.)

    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, 528-530. Unlike privilege, privacy protection afforded is qualified, not absolute. In each case, the court must carefully balance the right of privacy against the need for discovery. The showing required to overcome the protection depends on the nature of the privacy right asserted; in some cases, a simple balancing test is sufficient, while in others, a compelling interest must be shown. Hill v. National Collegiate Athletic Ass'n (1994) 7 Cal.4th 1, 34-35. In almost every case, disclosure may be ordered if a “compelling public interest” would be served thereby. John B. v. Superior Court (2006) 38 Cal.4th 1177, 1199. Moreover, even if the balance weighs in favor of disclosure, the scope of disclosure must be narrowly tailored. Life Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640, 652-653.

    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.)

First, as to subject subpoenas’ request all records related to disability due to the accident of January 4, 2016, dates of employment, and dates missed from work due to accident of January 4, 2016, the records are directly relevant to this action. While Plaintiff may have an expectation of privacy in his employment records, there are no alternative means identified for Defendant to obtain the relevant information. Furthermore, information concerning Plaintiff’s dates of employment with each alleged employer is relevant and necessary for Defendant to determine which employer may have relevant records pertaining to Plaintiff’s claims, and to narrowly tailor any request for records to each employer.

To the extent Plaintiff moves to quash the subpoenas request for all records related to disability from due to accident of January 4, 2016, dates of employment, and dates missed from work due to accident of January 4, 2016, Plaintiff’s motion to quash is denied.

Second, as to the subpoenas’ request for applications for employment, Plaintiff contends Defendant offers no explanation for why such records are directly relevant to this action. Defendant contends that employment applications are necessary to determine whether Plaintiff ever informed his employers of his disability or work restrictions. However, employment applications often contain sensitive information, and Defendant seeks such records without limitation to time. While a plaintiff waives some expectation of privacy relating to matters in the lawsuit, Defendant does not show the requested employment applications are directly relevant to this matter.

To the extent the subject subpoenas request applications for employment, Plaintiff’s motion to quash is granted.

Third, as to the subpoenas’ request for payroll records documenting all compensation paid, Plaintiff argues the subpoenas violate Plaintiff’s financial privacy, and that Plaintiff’s W-2 forms and state and federal income tax returns are privileged. Defendant asserts it stipulates no tax records are intended to be sought, and instead the compensations records are intended to verify the amount of loss of earnings. However, although Defendant asserts it stipulates no tax records are intended to be sought, the subpoenas as drafted are overbroad and necessarily include all payroll records, which would include any tax documents included with Plaintiff’s payroll records. Furthermore, the request is overbroad because it requests all payroll records without limitation to time. Nonetheless, payroll records are relevant to Plaintiff’s claims for loss of earnings.

Consequently, to the extent the subpoenas seek payroll records, the subpoenas are modified as follows: the subpoenas are narrowed to payroll records pertaining to Plaintiff for five (5) years prior to the incident to the present, but tax documents are to be withheld.

Fourth, as to the subpoenas’ request for records of disciplinary action, Defendant asserts that whether Plaintiff has been disciplined for failing to comply with safety guidelines, or excessive unexcused absences will assist the defense to both call into question Plaintiff’s credibility and mitigation of damages. While Plaintiff argues the records are not admissible, the scope of discovery is broad. However, the subpoenas as drafted are overbroad, as they seek all records concerning disciplinary action without limitation to time.

To the extent the subpoenas seek records of disciplinary action, the subpoenas are modified to limit records of disciplinary action for five (5) years prior to the incident to the present.

Finally, as to the subpoenas’ request for all training provided, Plaintiff argues primarily the information is irrelevant. Defendant contends Plaintiff testified in his deposition his employer failed to hold safety meetings, which Defendant asserts has been refuted. The scope of discovery is broad and liberally construed in favor of disclosure. However, the request as drafted is overbroad.

To the extent the subpoenas seek records for all training provided, the subpoenas are limited to training records for five years (5) prior to and including the date of the incident.

  1. Sanctions

    CCP ; 1987.2 provides that the court “may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.”

    Here, both Plaintiff and Defendants move for sanctions against the other. Given the motion was granted in part, and the subpoenas pertained to relevant information, the court finds both parties acted with substantial justification in making and opposing the instant motion. No sanctions are awarded.

    Plaintiff is ordered to give notice.

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

    Dated this 25th day of March, 2021

Hon. Thomas D. Long

Judge of the Superior Court



Case Number: ****8041    Hearing Date: November 06, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

DAVID LOPEZ,

Plaintiff(s),

vs.

BOB FRENCH CONSTRUCTION, INC., ET AL.,

Defendant(s).

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CASE NO: ****8041

[TENTATIVE] ORDER RE: MOTION TO QUASH SUBPOENA

Dept. 31

1:30 p.m.

November 6, 2020

 

  1. Background

    Plaintiff, David Lopez filed this action against Defendants, Bob French Construction, Inc. and Sinanian Development, Inc. for damages Plaintiff sustained when fell from a scaffolding while in the scope of his employment. Plaintiff alleges Defendants owned, leased, assembled and installed the subject scaffolding.

    On 1/24/20, Defendant Sinanian Development, Inc. (“Defendant”) served depositions subpoenas for production of business records on George Electric., All Electric, and Valence Staffing Group, who are each Plaintiff’s former employers. The subpoenas seek: “Any and all documents and records, and all writings, including, but not limited to, employment, payroll and applications for employment, work absence and incident reports, personnel records, pre employment exam records and progress records, pertaining to the employment of David Lopez, DOB: 11/17/1979, SSN: UNKNOWN.”

    Plaintiff now moves to quash the subpoenas.

    This matter was originally set to be heard on 4/30/20. Based on current conditions, including, but not limited to, the spread of COVID-19, the court continued this matter to 9/18/20, and ordered moving party, Plaintiff, to give notice. (4/17/20.) On 9/18/20, the matter was called for hearing, but there was no appearance by moving party, and there was no communication with the court or other counsel. Consequently, the matter was continued to 10/23/20, and the court indicated Plaintiff’s motions would be taken if Plaintiff again failed to appear.

    The court then not being available on 10/23/20, continued the matter to 11/6/20, and ordered moving Plaintiff to give notice. As of 10/30/20, Plaintiff has not filed any such notice with the court.

    Consequently, the court takes the matter off-calendar.

    Alternatively, if Plaintiff appears and can produce evidence that he properly gave notice of the subject hearing date as ordered, the court rules as follows:

  2. Analysis

    Plaintiff argues the subpoenas are overbroad, invade Plaintiff’s right to privacy, and will not lead to admissible evidence. Plaintiff argues that Defendant’s argument the evidence might support an affirmative defense is not persuasive as this is not a valid ground for violating an employee’s right to privacy. Furthermore, Plaintiff contends the subpoenas are overbroad because they demand a wide variety of private information from Plaintiff’s employers.

    In opposition, Defendant argues the information is relevant because Plaintiff has indicated in discovery he maintained a workers’ compensation action against his employer, General Electric, and an online public records search reveals the case was resolved by compromise in October 2018. Defendant contends the information is relevant as to what provision, if any, was provided for future medical treatment and care related to the incident. Moreover, Defendant asserts the requested documents are relevant for the following reasons:

    (a) Information about additional skills Plaintiff has acquired that could be used to mitigate his damages;

    (b) Information regarding Plaintiffs prior wages, salary, overtime, commissions, bonuses, vacation pay, and benefits which are relevant to a determination of Plaintiffs current and future earning potential as well as the kind of employment Plaintiff may obtain in an effort to mitigate his damages;

    (c) Information that reveals that Plaintiff claimed the same injuries during previous employment that he is now asserting in this action;

    (d) Information of Plaintiffs previous performance evaluations, which may reveal a pattern of Plaintiffs misconduct and/or dishonesty relevant to the issue of Plaintiffs credibility;

    (e) Information of Plaintiffs reprimands for violating workplace safety rules.

    For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. (Davies v. Superior Court (1984) 36 Cal.3d 291, 301.) These rules are applied liberally in favor of discovery (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790), and again (contrary to popular belief), fishing expeditions are permissible in some cases. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 385.)

    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, 528-530. Unlike privilege, privacy protection afforded is qualified, not absolute. In each case, the court must carefully balance the right of privacy against the need for discovery. The showing required to overcome the protection depends on the nature of the privacy right asserted; in some cases, a simple balancing test is sufficient, while in others, a compelling interest must be shown. Hill v. National Collegiate Athletic Ass'n (1994) 7 Cal.4th 1, 34-35. In almost every case, disclosure may be ordered if a “compelling public interest” would be served thereby. John B. v. Superior Court (2006) 38 Cal.4th 1177, 1199. Moreover, even if the balance weighs in favor of disclosure, the scope of disclosure must be narrowly tailored. Life Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640, 652-653.

    In this case, it is not clear how and every document sought in the subpoena from each of Plaintiff’s former employers is discoverable. For example, Defendant seeks to discover Plaintiff’s employment applications, which often contain sensitive information. What is more, Defendant seeks to discover payroll, work absence, incident reports, personnel records, pre-employment exam and progress records without time limitation. Notably, the parties each filed separate statements, but the statements do not go through each category of documents sought, which would be helpful; the Court cannot and will not go through each individual category to determine whether Defendant met its burden of showing its need for the responsive documents outweighs Plaintiff’s right to privacy if Defendants does not do so.

    Based on the foregoing, Plaintiff’s motion to quash is granted.

    Plaintiff is ordered to give notice.

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

    Dated this 6th day of November, 2020

Hon. Thomas D. Long

Judge of the Superior Court



Case Number: ****8041    Hearing Date: September 18, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

DAVID LOPEZ,

Plaintiff(s),

vs.

BOB FRENCH CONSTRUCTION, INC., ET AL.,

Defendant(s).

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CASE NO: ****8041

[TENTATIVE] ORDER GRANTING MOTION TO QUASH SUBPOENA

Dept. 31

8:30 a.m.

September 18, 2020

 

  1. Background

    Plaintiff, David Lopez filed this action against Defendants, Bob French Construction, Inc. and Sinanian Development, Inc. for damages Plaintiff sustained when fell from a scaffolding while in the scope of his employment. Plaintiff alleges Defendants owned, leased, assembled and installed the subject scaffolding.

    On 1/24/20, Defendant Sinanian Development, Inc. (“Defendant”) served depositions subpoenas for production of business records on George Electric., All Electric, and Valence Staffing Group, who are each Plaintiff’s former employers. The subpoenas seek: “Any and all documents and records, and all writings, including, but not limited to, employment, payroll and applications for employment, work absence and incident reports, personnel records, pre-employment exam records and progress records, pertaining to the employment of David Lopez, DOB: 11/17/1979, SSN: UNKNOWN.”

    Plaintiff now moves to quash the subpoenas. This matter was originally set to be heard on 4/30/20. Based on current conditions, including, but not limited to, the spread of COVID-19, the court continued this matter to 9/18/20, and ordered moving party, Plaintiff, to give notice. As of 9/14/20, Plaintiff has not filed any such notice with the court.

    The hearing on the motion is continued to _________________ at 8:30 a.m. in Department 31 of the Spring Street Courthouse. If this date is not an available date for Plaintiff, Plaintiff may use the online reservation system to change the hearing date to the next available convenient date in the system.

    Alternatively, if Plaintiff can produce evidence that they properly gave notice of the subject hearing date as ordered, the court rules as follows:

  2. Analysis

    Plaintiff argues the subpoenas are overbroad, invade Plaintiff’s right to privacy, and will not lead to admissible evidence. Plaintiff argues that Defendant’s argument the evidence might support an affirmative defense is not persuasive as this is not a valid ground for violating an employee’s right to privacy. Furthermore, Plaintiff contends the subpoenas are overbroad because they demand a wide variety of private information from Plaintiff’s employers.

    In opposition, Defendant argues the information is relevant because Plaintiff has indicated in discovery he maintained a workers’ compensation action against his employer, General Electric, and an online public records search reveals the case was resolved by compromise in October 2018. Defendant contends the information is relevant as to what provision, if any, was provided for future medical treatment and care related to the incident. Moreover, Defendant asserts the requested documents are relevant for the following reasons:

    (a) Information about additional skills Plaintiff has acquired that could be used to mitigate his damages;

    (b) Information regarding Plaintiffs prior wages, salary, overtime, commissions, bonuses, vacation pay, and benefits which are relevant to a determination of Plaintiffs current and future earning potential as well as the kind of employment Plaintiff may obtain in an effort to mitigate his damages;

    (c) Information that reveals that Plaintiff claimed the same injuries during previous employment that he is now asserting in this action;

    (d) Information of Plaintiffs previous performance evaluations, which may reveal a pattern of Plaintiffs misconduct and/or dishonesty relevant to the issue of Plaintiffs credibility;

    (e) Information of Plaintiffs reprimands for violating workplace safety rules.

    For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. (Davies v. Superior Court (1984) 36 Cal.3d 291, 301.) These rules are applied liberally in favor of discovery (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790), and again (contrary to popular belief), fishing expeditions are permissible in some cases. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 385.)

    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, 528-530. Unlike privilege, privacy protection afforded is qualified, not absolute. In each case, the court must carefully balance the right of privacy against the need for discovery. The showing required to overcome the protection depends on the nature of the privacy right asserted; in some cases, a simple balancing test is sufficient, while in others, a compelling interest must be shown. Hill v. National Collegiate Athletic Ass'n (1994) 7 Cal.4th 1, 34-35. In almost every case, disclosure may be ordered if a “compelling public interest” would be served thereby. John B. v. Superior Court (2006) 38 Cal.4th 1177, 1199. Moreover, even if the balance weighs in favor of disclosure, the scope of disclosure must be narrowly tailored. Life Technologies Corp. v. Superior Court (2011) 197 Cal.App.4th 640, 652-653.

    In this case, it is not clear how every document sought in the subpoena from each of Plaintiff’s former employers is discoverable. For example, Defendant seeks to discover Plaintiff’s employment applications, which often contain sensitive information. What is more, Defendant seeks to discover payroll, work absence, incident reports, personnel records, pre-employment exam and progress records without time limitation. Notably, the parties each filed separate statements, but the statements do not go through each category of documents sought, which would be helpful; the Court cannot and will not go through each individual category to determine whether Defendant met its burden of showing its need for the responsive documents outweighs Plaintiff’s right to privacy if Defendant does not do so.

    Plaintiff is ordered to give notice.

    Parties who intend to submit on this tentative must send an email to the court at sscdept3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 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 18th day of September, 2020

Hon. Thomas D. Long

Judge of the Superior Court



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