DONARA GRIGORYAN VS ENTERPRISE RENT-A-CAR COMPANY OF LA ET A

Tentative Rulings

Case Number: ****4195 Hearing Date: May 19, 2023 Dept: E

Hearing Date: 05/19/2023 – 8:30am Case No. ****4195 Trial Date: 06/20/2023 Case Name: DONARA GRIGORYAN v. ENTERPRISE RENT-A-CAR COMPANYOF LA et al.

TENTATIVE RULING ON MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT-IN-INTERVENTION and ANSWER-IN-INTERVENTION

Moving Party: Intervenor, Empire Fire and Marine Insurance Company (Intervenor or Empire)

Responding Party: No Opposition submitted.

16/21 Day Lapse (CCP 12c and 1005(b)): Yes and No –

The proof of service indicates two manners of service on two different parties. As to service on the Plaintiff, the proof of service indicates personal service on April 27, 2023. April 27, 2023 would be 16 court days before the instant hearing, and since it was served by personal service, it would be deemed served that day. Therefore, service on the Plaintiff appears to be timely.

However, as to service of this motion on the Estate of Murataliev, this motion is not timely. The proof of service indicates that the Estate was served by overnight courier. Under CCP 1005(b), the required 16-day period of notice before the hearing shall be increased by two calendar days for a method of delivery providing for overnight delivery. April 27, 2023 would have been the 16th court day, and when adding two calendar days, this motion should have been served on the Estate on April 25, 2023. Therefore, as to the Estate, this motion is not timely.

Another aspect that is confusing to the Court is as such: Under the section of the Proof of Service titled “See Attached Service List,” the Intervenor states overnight courier was used for the Estate Only, and Personal Service was for the Plaintiff Only. However, under the section of the Proof of Service titled “Service List,” Third-Party Manvel Israelyan is also listed. However, there is no indication in the “See Attached Service List” as to the manner in which Manvel Israelyan was served.

Proof of Service Timely Filed (CRC, Rule 3.1300): Ok

Correct Address (CCP 1013, 1013a, 1013b): Unsure.

As to service on the Plaintiff, the service via personal service/messenger lists the same mailing address that the Court has on its file.

As to the service on the Estate, there are several aspects that are unclear. First, under the “See Attached Service List” section, Overnight Courier is marked for “Estate Only.” However, under this same section, “By Electronic Mail,” is also marked. Confusingly, the Proof of service does not indicate who was served by electronic mail in the “See Attached Service List,” section.

Additionally, under the “Service List” section of the proof of service, the Estate is indicated to have been served “Via Electronic Service.” However, since the Estate was previously indicated to have been served via Overnight Courier, it is unclear if the Estate was served by Overnight Courier or via electronic mail, or both.

Further, if the Estate was served by Overnight Courier, the mailing address for the Estate is the same mailing address that the Court has on its file. However, if the motion was served on the Estate by electronic mail, the Court is unclear as to why the Intervenor served the email addresses that it served, as the Court does not have those email addresses on file for the Estate.

Lastly, as service is also indicated for Third-Party Manvel Israelyan, the Court is uncertain as to what the proper address is for service, and the Court is uncertain as to the manner in which Manvel was served.

Moving Papers: Notice of Motion/Motion; Proof of Service; Linhardt Declaration; Proposed Order

Opposition Papers: No Oppo

No Reply submitted.

RELIEF REQUESTED Intervenor, Empire Fire and Marine Insurance Company, moves pursuant to CCP 472, 473(a)(2), and 576 for leave to amend its Complaint-in-Intervention, originally filed on January 25, 2022, to include additional claims, defenses, and allegations.

[The Court notes that in the first two paragraphs of the Notice page, the Intervenor does not mention that it is moving to file an amended Answer-in-Intervention. The third paragraph of the notice page also doesn’t mention that Intervenor is moving to file an amended Answer-in-Intervention, but the third paragraph references an Answer-in-Intervention. [See lines 20-21 of 3 on page 1 of the notice page. The only portion of the notice pages that indicate Intervenor is moving for leave to file an amended Answer-in-Intervention is the caption of the notice page. The reference to an “amended Answer in intervention” is baffling.

BACKGROUND This case arises from a motor vehicle accident which occurred on July 21, 2015, on the SR-170 Freeway in Los Angeles, California wherein Defendant, Izat Murataliev driving a rental vehicle owned and rented by Defendant Enterprise smashed into the back of a vehicle in which Plaintiff, Donara Grigoryan, was a passenger. As a result of the accident, Plaintiff sustained injuries and on March 15, 2017, brought this action to recover for the damages sustained. Plaintiff sued the driver Izat Murataliev as well as Defendants Enterprise Rent-A-Car of Los Angeles who provided the rental vehicle to the driver, and EAN Holdings, LLC. Empire Fire and Marine Insurance Company joined the lawsuit as an Intervenor and filed a Complaint in Intervention.

As to the instant motion, Empire alleges that these amendments will add factual allegations that Plaintiff Donara Grigoryan (“Plaintiff”) and her co-conspirators orchestrated the accident underlying this action for the purpose of defrauding Empire, as well as new affirmative defenses, including lack of personal jurisdiction, unclean hands, and insurance fraud, relating to the previously pled fraud scheme.

Additionally, Empire alleges that the First Amended Complaint-in-Intervention and Answer-in-Intervention accomplishes the following: (a) it includes threshold jurisdictional defenses relating to Plaintiff’s failure to timely serve the insured defendants and failure to obtain personal jurisdiction over any Empire insured; (b) it includes new factual allegations and details regarding Plaintiff’s scheme to defraud Empire; (c) it adds new allegations about Plaintiff’s co-conspirators, including Karine Mkrtchyan (the driver of the car in which Plaintiff was riding and the plaintiff in a related case), her husband Manuk Aboyan (the owner of the car carrying Plaintiff), Izat Murataliev, and Harutyan Ajaryan (the renter of the other (rental) car that was involved in the crash); and (d) it includes several new affirmative defenses that have not been asserted by any party and revolve around the fraudulent scheme at the center of this case (e.g., unclean hands, insurance fraud, fraudulent claims, breach of contract, and related defenses).

LEGAL STANDARD – LEAVE TO AMEND The court may, in furtherance of justice and on any proper terms, allow a party to amend any pleading. (Code Civ. Proc., 473, subd. (a)(1); Branick v. Downey Savings & Loan Association (2006) 39 Cal.4th 235, 242.) The court may also, in its discretion and after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code. (Code Civ. Proc., 473, subd. (a); Branick, supra, 39 Cal.4th at 242.) Judicial policy favors resolution of all disputed matters between the parties and, therefore, the courts have held that “there is a strong policy in favor of liberal allowance of amendments.” (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296-97; see also Ventura v. ABM Industries, Inc. (2013) 212 Cal.App.4th 258, 268) [“Trial courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial where the adverse party will not be prejudiced.”].) Leave to amend is thus liberally granted, provided there is no statute of limitations concern. (Kolani v. Gluska (1998) 64 Cal.App.4th 402, 411.) The court may deny the plaintiff’s leave to amend if there is prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation. (Id.)

Under California Rules of Court, rule 3.1324, a motion to amend a pleading before trial must (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. (Cal. Rules of Court, rule 3.1324(a).)

Further, a separate supporting declaration must accompany the motion and must specify (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reason why the request for amendment was not made earlier must accompany the motion. (Id., rule 3.1324(b).)

“Leave to amend is in general required to be liberally granted [citation omitted], provided there is no statute of limitations concern. Leave to amend may be denied if there is prejudice to the opposing party, such as delay in trial, loss of critical evidence, or added costs of preparation. [citation omitted].” (Kolani v. Gluska (1998) 64 Cal.App.4th 402, 411.)

Additionally, under Title 7a, “Pretrial Conferences” of the Code of Civil Procedure, CCP 576 states, “Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.” (CCP 576.)

ANALYSIS

CRC 3.1324(a)

Under California Rules of Court, rule 3.1324(a), a motion to amend a pleading before trial must:

(1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;

Here, Intervenor attached the Declaration of Alex Linhardt. Exhibit A is a copy of Empire’s proposed Amended Complaint-in-Intervention and Answer-in-Intervention. However, the Court notes there is ambiguity as to the serial numbering for the proposed amendment(s).

In particular, the Court notes that it is unclear if this is a First Amended Complaint-in-Intervention and a First Amended Answer-in-Intervention, or, if this is a First Amended Complaint-in-Intervention and an original Answer-in-Intervention. At the very least, it seems clear that this is a First Amended Complaint-In-Intervention, but it is unclear if this is a First Amended Answer-in-Intervention or an original Answer-in-Intervention.

This confusion is based on the following: The caption of Exhibit A in the Linhardt Declaration is titled, “EMPIRE FIRE AND MARINE INSURANCE COMPANY’S FIRST AMENDED COMPLAINT-IN-INTERVENTION AND ANSWER-IN-INTERVENTION.” It is thus unclear if the phrase “first amended” applies just to the complaint or if “first amended” applies to both the complaint and answer.

Additionally, on page 2 of Exhibit A, there is a section titled, “First Amended Complaint-In-Intervention,” and on page 13 of Exhibit A, there is a section titled, “Answer-In-Intervention.” The fact that Intervenor only included the qualifier of “First Amended” on page 2 and did not include it on page 13 with respect to the Answer seems to indicate that Intervenor may be saying the Answer is not a “First Amended” Answer-in-Intervention. Further, the Court does not see an original Answer on file for the Intervenor.

(2) state what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and

Here, this motion does not appear to be proposing to delete allegations in a prior pleading.

(3) state what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located. (Cal. Rules of Court, rule 3.1324(a).)

Here, Intervenor notes it seeks to add facts that it claims to have uncovered since intervening and to assert several new affirmative defenses to provide a more complete and accurate summary of the evidence that it plans to offer at trial. In particular, Intervenor states throughout its motion:

“The facts it proposes adding include the death of one of the named defendants (Murataliev), the fact that service was not properly achieved as to Murataliev and his Estate, the co-schemers’ history of felony convictions (Ajaryan and Aboyan) and suspicious insurance claims, and other facts supporting Empire’s theory that the “accident” in this case masks a scheme to defraud Empire by a set of professional fraudsters.” (Mot. p.8.)

“The affirmative defenses fall into three general categories: jurisdictional, fraud-based, and contractual. (Id., 63.) Among other things, Empire proposes adding, inter alia, under the category of “jurisdictional,” lack of personal jurisdiction and untimely and improper service; under the category of “fraud,” unclean hands, knowledge of the risk, insurance fraud, fraud and/or willful injury, false and fraudulent claims, superseding and intervening acts, estoppel, and laches; and under the category of “contract,” breach of the affirmative covenants of the rental agreement and breach of the terms and conditions of the insurance policy and operation of exclusions.” (Mot. p. 8-9.)

“Indeed, by adding further details about Empire’s fraud scheme allegations, Empire is providing additional notice regarding the proof it intends to offer at trial, which should be to Plaintiff’s advantage and will likewise allow the Court to estimate more exactly the scope and duration of any future trial and evaluate any future motions in limine.” (Mot. p.10.)

“In addition to new facts about the fraud scheme, Empire also determined definitively—by procuring a copy of his autopsy and death certificate—that its insured, Murataliev, died in July 2019. (Linhardt Decl., 11.) Murataliev was the only Empire insured named in Plaintiff’s original complaint. (Id.) While Empire was aware that Murataliev was dead when it intervened, it was not aware that Plaintiff had not yet dismissed, and would not dismiss, her claims against Murataliev. (Id., 68.) It had also not investigated the circumstances surrounding service on the Estate. (Id.) Permitting Empire to amend its Complaint-inIntervention to add facts concerning Murataliev’s death is hardly controversial and will not work an unfair prejudice for any party, as this Court has already issued an order dismissing him from this case. Likewise, its addition of facts concerning lack of personal jurisdiction as to Murataliev and the Estate is similarly appropriate and justified to support the affirmative defenses of lack of personal jurisdiction and for the reasons set forth in the separate Motion to Strike and Motion to Dismiss, both of which are pending before this Court.” (Mot. p.11.)

“Empire seeks to add three types of affirmative defenses: jurisdictional, fraud-based, and contractual. As previously briefed in this case, jurisdictional defects can be raised at any time. Following Murataliev’s death, to preserve any claims against his assets (including insurance), Plaintiff was required to serve Murataliev timely and properly and (after his death) either to continue the action against Murataliev’s personal representative or successor-in-interest under Code of Civil Procedure Sections 377.40 and 377.41, or to continue the action pursuant to Probate Code Section 550, which limits recovery to available insurance proceeds. However, Plaintiff failed timely to do these things, which provide further bases for defending this action.⁸ Her compounded failure to serve Murataliev before his death and to act timely to continue this action after his death, means that this Court lacks personal jurisdiction over any Empire insured.” (Mot. p. 11.) [Footnote 8 of Intervenor’s motion states, “The record is devoid of any proof that Plaintiff’s November 2021 attempts to amend her complaint satisfied the requirements of Probate Code Sections 550 and 552 and Code of Civil Procedure Section 472; therefore, the operative pleading continues to be Plaintiff’s complaint in the form it was originally filed on March 15, 2017.”]

“Empire previously adopted the Estate’s statute of limitations defense, and now wishes to amend its Complaint-in-Intervention to allege new affirmative defenses including lack of personal jurisdiction and failure to serve timely, so that it may introduce evidence of those defenses at trial. (Id., 19.) By adding lack of personal jurisdiction and other jurisdictional defenses to the Complaint-in-Intervention, Empire merely formally asserts within the four corners of its complaint the very same legal claims that it has raised via its Motion to Strike and Motion to Dismiss, which are presently pending before this Court.” (Mot. p. 11-12.)

“Empire, therefore, wishes to amend its Complaint-in-Intervention to assert and/or clarify its position that (a) the statute of limitations on all insured claims ran well before November 2021, and (b) there is no evidence in the record that Plaintiff satisfied the requirements of Probate Code Sections 550 and 552. Although Empire’s position remains that the Plaintiff’s original complaint was not properly and timely amended or thereafter served—and thus no answer to such pleading is required—Empire wishes to amend its Complaint-in-Intervention to make sure that the facts regarding the passage of time, the consequent statute of limitations bar, and the lack of proper and timely service are asserted and preserved before and during trial.” (Mot. p. 12.)

“…Empire wishes to also add affirmative defenses and supporting facts relating to the over-all fraud scheme it alleges that Plaintiff perpetrated with her coschemers (e.g., unclean hands and related defenses). Chief among the additions to the factual allegations are facts concerning Harutyan Ajaryan (the renter of the car Murataliev was driving and who purchased the highest-limit Empire insurance product); Manuk Aboyan, the owner of the car Murataliev allegedly hit, who was convicted of fraud in 2021; and Aboyan’s wife Karine Mkrtchyan, driver of the BMW, another Empire claimant, and an initial lawsuit plaintiff. As to Mkrtchyan, Empire wishes to add allegations that she applied for millions of dollars’ worth of life insurance and submitted to medical examinations to prove her good health at the same time that she was maintaining in a related action to this case that she was severely injured from the July 2015 collision. Indeed, after she successfully obtained around $16 million in life insurance policies, Mkrtchyan left the country and purportedly “died” in Ukraine in April 2018. (Id., 51.) Notably, despite being “dead,” she continued to maintain her personal injury case stemming from the July 2015 collision before this Court until late 2018 when she voluntarily dismissed it (presumably because her husband Aboyan had initiated claims to recover the $16 million in life insurance proceeds). (Id.) Obviously, she cannot have been both alive and dead at the same time.” (Mot. p. 13.)

“The third category of facts concern the rental and insurance contracts, and specifically the failure of the insureds to abide by their terms, disclose material facts at the time of the rental (which voids coverage), and/or the triggering of exceptions to coverage. Although discovery is not yet complete, it is apparent from materials obtained earlier this year through a subpoena to B&D Law Group and other sources, that the renter of the car (Ajaryan) and the driver of the car (Murataliev) were not honest at the time of the rental and that thereafter Murataliev operated the rental vehicle inconsistently with the obligations of those agreements and/or in a way that fell within the operative exceptions to coverage. Because these facts were not known to Empire prior to entering this lawsuit and because allowing them to be pled and the related affirmative defenses to be pled will not unfairly prejudice any party, they should be allowed.” (Mot. p. 13-14.)

Here, the motion itself does not allege where, by page, paragraph, and line number, the additional allegations are located. The motion notes, generally speaking, what it seeks to add. However, 70 of the Linhardt Declaration states, “Pursuant to CRC 3.1324, attached hereto as Exhibit B is a redline comparison of the proposed Amended Complaint-in-Intervention stating what allegations are to proposed to be added or deleted from the operative pleading by page, paragraph, and line number. These proposed additions are identified in red, while the proposed deletions are in strikethrough.” (Ibid.)

Intervenor doesn’t strictly comply with CRC 3.1324(a)(3) in the sense that it didn’t indicate page, paragraph, and line number of the additions in the motion itself. However, it may have been impractical to do so. Exhibit B is a bizarre version of a redline. It looks like an image of a redline. Intervenor didn’t explicitly state that it chose not to allege the additions by page, paragraph, etc., because it was impractical. CRC 3.1324(c) may apply to the instant scenario, as it states, “The court may deem a motion to file an amendment to a pleading to be a motion to file an amended pleading and require the filing of the entire previous pleading with the approved amendments incorporated into it.” The Court also notes that 70 of the Linhardt Declaration mentions proposed deletions being in strikethrough. But as indicated in the prior section regarding 3.1324(a)(2) of this tentative, Intervenor did not state that it sought deletions. It is not clear in the moving papers what, if anything, Intervenor seeks to delete from the Complaint-in-Intervention. The first time deletions are referenced is 70 of the Linhardt Declaration. This motion doesn’t indicate proposed additions with respect to what is separately being added to the complaint-in-intervention and what is separately being added to the answer-in-intervention. This motion appears to assume that everything is being added to one document – the combined complaint/answer.

CRC 3.1324(b)

Further, under CRC 3.1324(b), a separate declaration must accompany the motion and must specify:

(1) the effect of the amendment;

Intervenor attached the declaration of Alex Linhardt. Intervenor doesn’t explicitly state, “the effect of the amendment is…;” however, what appears to be the affect of the amendment is:

Empire’s amendment will add factual allegations related to the facts alleged in the Complaint-in-Intervention—that Plaintiff and her co-conspirators engaged in a scheme to defraud Empire. (Decl. Linhardt 60.)

In addition to factual allegations in support of its claims, Empire seeks to add affirmative defenses, including lack of personal jurisdiction and failure to serve timely, so that it may introduce evidence of those defenses at trial. (Linhardt Declaration 62.)

61-67 of the Linhardt Declaration also go to the effect of the amendment.

(2) why the amendment is necessary and proper;

The Linhardt Declaration states:

“The proposed amendment is necessary and proper because: (i) it is based on further discoveries of Plaintiff’s fraud; (ii) there is no unfair prejudice to Plaintiff; and (iii) the discovery and investigation detailing the nature and extent of the fraud supporting the amendment only recently became known to Empire after the filing of the Complaint-in-Intervention. Moreover, Empire contends that amendment is necessary to promote judicial economy. By adding further details about Empire’s fraud allegations, Empire is providing additional notice regarding the proof it intends to offer at trial, which should be to Plaintiff’s advantage and will likewise allow the Court to estimate more exactly the scope and duration of any future trial and evaluate any future motions in limine.” (Decl. Linhardt 69.)

(3) when the facts giving rise to the amended allegations were discovered;

This requirement appears to have been met and encompassed in the 4th requirement below.

(4) the reason why the request for amendment was not made earlier must accompany the motion. (Id., rule 3.1324(b).)

Intervenor states as follows in 68 of the Linhardt Declaration:

“This amendment could not have been made earlier. Although Empire was aware that it was the victim of a scheme to defraud, the parameters of that fraud had not been fully investigated when it intervened in the case in January 2022. The additional evidence of fraud was uncovered through extensive investigation, including through third-party subpoenas, many of which were objected to and/or that required motions to compel that took months to brief and resolve. For example, evidence of lack of personal jurisdiction was not discovered until Empire intervened in this case and began actively investigating whether its insureds were properly served. Further, facts concerning the collusion between Plaintiff and her co-conspirators, and the fraud scheme developed by Plaintiff with co-schemers Murataliev and Mkrtchyan were not made available to Empire until it received records in response to the life insurance subpoenas on February 27, 2023 (United), February 28, 2023 (Brighthouse), March 3, 2023 (Nationwide), and March 28, 2023 (Accordia).” (Linhardt Decl. 68.)

TENTATIVE RULING The Court will hear argument on Intervenor’s motion for leave to file a “First Amended Complaint-In-Intervention and Answer-In-Intervention,” especially with respect to the following issues:

1. Effect of waiver of the service defense;

2. Failure to follow procedural requirements?

3. Ambiguity as to amended complaint-in-intervention and an original answer-in-intervention;

4. The proposed pleading is one document;

5. Service issue; late as to the Estate but not as to Plaintiff?

Case Number: ****4195 Hearing Date: May 5, 2023 Dept: E

Hearing Date: 05/05/2023 – 8:30am Case No: ****4195 Trial Date: 06/20/2023 Case Name: DONARA GRIGORYAN v. ENTERPRISE RENT-A-CAR COMPANY et al.

2 - TENTATIVE RULINGS- (1) MOTION TO STRIKE OR IN THE ALTERNATIVE MOTION FOR JUDGMENT ON THE PLEADINGS – (2) MOTION TO DISMISS

MOTION 1

Moving Party: Intervenor, Empire Fire and Marine Insurance Company (Empire or Intervenor) Responding Party: Plaintiff, Donara Grigoryan

Moving Papers: Notice of Motion/Motion; Proof of Service; Alex Linhardt Declaration; Request for Judicial Notice; Proposed Order

[Notice of Joinder filed 1/20/23 by Defendant, The Estate of Izat Murataliev, to join in the motion of Intervenor.]

Opposition Papers: Opposition.

Reply Papers: Reply; Supplemental Declaration of Alex Linhardt

Additional Papers: Supplemental Brief submitted by Intervenor on 4/24/2023

Additional Papers: Further Briefing submitted by Plaintiff on 4/24/2023

Preliminary Procedural Matters

Proof of Service Timely Filed (CRC Rule 3.1300) : Ok 16/21 Court Days Lapsed (CCP 1005(b)): Ok.

Opposition argues that the instant motion was untimely under CCP 1005(b). Plaintiff accurately points out in Opposition that based on service by email on January 19, 2023, this motion would be late because two calendar days must be added, and the motion should have been served by email on January 17, 2023. However, the proof of service for this motion states that the moving papers were also served by personal service on January 19, 2023. January 19, 2023 would be 16 Court days before the instant hearing, and the moving papers would therefore be timely. (See Board of Trustees of Leland Stanford Junior University v. Ham (2013) 216 Cal.App.4th 330, 336 stating, “The preferred way to serve a defendant, of course, is by personal delivery, as prescribed in section 415.10, as this is the most likely to ensure actual notice to the defendant. [Citation omitted.] Service is deemed complete at the time of delivery.”)

Opposition argues, “Plaintiff’s counsel’s office did not receive the documents via the signatory on the alleged proof of service Alex Linhardt on January 30, 2023.” (Oppo. p.3.) The Court notes how this sentence is confusing and vague. If the Court were to assume that Plaintiff is attempting to argue that personal service was not conducted on January 19, 2023, the Court does not find this argument convincing. Linhardt submitted a supplemental declaration for Intervenor which contained a proof of service in Exhibit 1 of proof of personal service on Plaintiff. Proper Address: Ok

RELIEF REQUESTED Intervenor, Empire, moves to strike or dismiss (i) Plaintiff’s Amendment to Complaint filed on November 3, 2021, and (ii) Izat Murataliev as a party to the original complaint.

Intervenor moves pursuant to Code of Civil Procedure Sections 435, 436, 438, and 583.250, as well as Probate Code Section 553, and on the grounds that Plaintiff’s Amendment to Complaint is defective because (inter alia): (i) Plaintiff was required to obtain leave of court to amend her complaint but did not do so; (ii) Plaintiff cannot simultaneously sue an individual and his Estate as if he is both alive and dead; (iii) Plaintiff’s attempted amendment effectively dismissed her claim against Defendant Izat Murataliev; (iv) Plaintiff cannot amend her complaint in such a way as to fail to state a viable cause of action; (v) Plaintiff cannot add a new defendant after the statute of limitations has passed where the relation-back doctrine does not apply; (vi) Plaintiff cannot add a new defendant or “rename” a Doe defendant outside the applicable three-year service period; (vii) Plaintiff cannot use Probate Code Sections 550 and 552 to add an Estate after the statute of limitations has passed; and (viii) Plaintiff has not demonstrated that she satisfied the requirements of Probate Code Section 552.

In the alternative, Empire moves for judgment on the pleadings pursuant to CCP 438(d).

BACKGROUND This case arises from a motor vehicle accident which occurred on July 21, 2015, on the SR-170 Freeway in Los Angeles, California wherein Defendant, Izat Murataliev driving a rental vehicle owned and rented by Defendant Enterprise smashed into the back of a vehicle in which Plaintiff, Donara Grigoryan, was a passenger. As a result of the accident, Plaintiff sustained injuries and on March 15, 2017, brought this action to recover for the damages sustained. Plaintiff brought suit against the driver Izat Murataliev as well as Defendants Enterprise Rent-A-Car of Los Angeles who provided the rental vehicle to the driver, and EAN Holdings, LLC. Empire Fire and Marine Insurance Company joined the lawsuit as an Intervenor and filed a Complaint in Intervention.

The object of this motion to strike is to strike the pleading that Plaintiff filed on November 3, 2021, the Amendment to Complaint, wherein Plaintiff substituted Doe 1 for the Estate of Murataliev. Meet and Confer Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion to strike the amended pleading. (CCP 435.5(a).)

Here, the declaration of Linhardt states that the parties met and conferred but an agreement could not be reached. (Decl. Linhardt 2-3.)

Legal Standard Motion to Strike The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc. 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc. 436(b).) A motion to strike cannot be based upon the grounds that a complaint fails to state facts sufficient to constitute a cause of action, but instead is properly based on grounds of superfluous or abusive allegations, or improprieties in form or procedure. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528-29.)

The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code. Civ. Proc. 437; Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 [“In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”].)

ANALYSIS Untimely Motion to Strike Plaintiff’s Opposition argues that this motion to strike is untimely based on 435(b)(1) because it wasn’t filed within the time allowed to respond to a pleading. Plaintiff’s argument is not convincing in light of the Reply and CCP 436. “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (CCP 436, emph. added.)

Service of Murataliev Intervenor argues that there is substantial evidence in the record indicating that Murataliev was never properly served and was never aware of this lawsuit.

The Court finds this argument unavailing.

Murataliev was served by substitute service on December 26, 2017, and competent proof was filed on December 27, 2017. Contrary to what Intervenor alleges, Murataliev was competently subserved consistent with Murataliev’s March 14, 2018 Answer to the complaint.

September and November Final Status Conference Although Intervenor accurately points out that Plaintiff did not file a statement informing the Court that Murataliev had died or provide any proof of his death after the September 28, 2021 Final Status Conference, this does not take jurisdiction away from this Court. Plaintiff simply did not abide by the September 28, 2021 Minute Order.

Leave of Court to Amend Complaint Intervenor argues that Plaintiff was required to obtain leave of court to amend the pleading to add the Estate of Murataliev, and since leave to amend was not obtained, the Estate should be stricken.

The Court does not find Intervenor’s argument convincing.

Intervenor cites CCP 473(a), but Intervenor’s argument ignores the fact that Plaintiff is appearing to add the Estate as a Defendant in the context of Probate Code 550 et seq.

“An action to establish the decedent’s liability for which the decedent was protected by insurance may be commenced or continued under Section 550, and a judgment in the action may be enforced against the insurer, without first filing a claim as provided in this part.” (Prob. Code 9390(a).) “Subject to the provisions of this chapter, an action to establish the decedent’s liability for which the decedent was protected by insurance may be commenced or continued against the decedent’s estate without the need to join as a party the decedent’s personal representative or successor in interest.” (Prob. Code 550(a).)

Nothing in Prob. Code 550 et seq. or Prob. Code 9390(a) requires Plaintiff to obtain leave of court, in contrast to CCP 377.41, which requires a noticed motion, but is inapplicable to this matter.

Plaintiff cannot simultaneously sue an individual and his Estate as if he is both alive and dead Intervenor argues on page 2 of its Notice of Motion that Plaintiff cannot simultaneously sue an individual and his Estate as if he is both alive and dead.

As a preliminary matter, Intervenor did not address this issue in its motion; it only addressed it on page 2 of its Notice of Motion. However, the Court finds Intervenor’s argument in the instant context unavailing. Here, the Plaintiff brought in the Estate of Murataliev after Murataliev died.

Plaintiff’s attempted amendment effectively dismissed her claim against Defendant Izat Murataliev Intervenor argues that Plaintiff’s attempted amendment effectively dismissed her claim against Defendant Izat Murataliev. Intervenor argues that if Murataliev is not dismissed, there could potentially be a judgment against a deceased individual.

Here, the Court agrees with Intervenor’s argument that Izat Murataliev is dismissed because a judgment cannot be obtained against a deceased person.

Plaintiff cannot amend her complaint in such a way as to fail to state a viable cause of action On page 2 of Intervenor’s Notice of Motion, Intervenor argues that Plaintiff cannot amend her complaint in such a way as to fail to state a viable cause of action. This argument is not addressed in the motion, and the Court is entirely unclear as to the argument that Intervenor is making on this issue.

Plaintiff cannot add a new defendant after the statute of limitations has passed where the relation-back doctrine does not apply Intervenor argues that Plaintiff’s claims against the Estate are time barred. In particular, Intervenor argues that Plaintiff cannot rely on the relation-back doctrine to add the Estate as a defendant because the statute of limitations already ran.

Here, the Court finds that Intervenor’s arguments are nonsensical, defying common sense, and supported only by inapposite cases and statutes.

In the instant scenario, the accident at issue occurred on July 21, 2015, and Intervenor concedes that the statute of limitations ran on July 21, 2017. Further, Intervenor concedes that Plaintiff’s original complaint was timely filed against the original Defendants, including decedent Murataliev, in March of 2017. However, Intervenor attempts to argue that because the claims against the Estate were asserted after the statute ran, the attempted amendment must be stricken.

Intervenor’s argument is misplaced. In Litwin v. Estate of Fomela (2010) 186 Cal.App.4th 607, cited by Intervenor, an automobile collision occurred in 2004, and a complaint was filed on May 22, 2008, against the defendant and an amended complaint naming the estate was filed on September 17, 2008. In Litwin, the court held that the original complaint filed against Defendant was untimely and the claims against the estate were also untimely.

Here, the facts at hand are entirely different. The initial complaint against the Defendant, who was alive at the time the complaint was filed, was timely. Intervenor’s attempt to argue that even though the action was timely filed against the decedent, the action must also be filed within the statute of limitations for the Estate defies common sense and law. As a matter of common sense, the estate of a decedent would not be added to the action if there is not yet a decedent. As a matter of law, a Plaintiff does not simply lose their claim because the Defendant died. “Except as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person’s death, but survives subject to the applicable limitations period.” (CCP 377.20(a).)

Here, Murataliev was timely sued within the statute of limitations, and died while this action, at issue as to him, was still pending.

Further, Intervenor’s arguments on pages 17-19 on Section 474 and the relation back doctrine are inapposite in the instant context.

Intervenor also argues that the Estate was not served within the three-year period for commencement of an action.

Here, again, Intervenor’s argument is misplaced and out of context in attempting to argue that the Estate must have been added within three years based on the time for filing the original complaint.

Probate Code Sections 550 et seq. Intervenor argues that Plaintiff failed to follow proper procedures of the probate code to substitute the estate or personal representative.

Intervenor makes arguments on this issue on pages 20-22 of its motion.

As a preliminary matter, the Court is not clear why Intervenor cites to CCP 377.40 and 377.50 because here, Plaintiff proceeded under Probate Code 550 et seq. (See, Meleski v. Estate of Hotlen (2018-3d Dist.) 29 Cal.App.5th 616, 620-21.)

“An action to establish the decedent’s liability for which the decedent was protected by insurance may be commenced or continued under Section 550, and a judgment in the action may be enforced against the insurer, without first filing a claim as provided in this part.” (Prob. Code 9390(a).) “Subject to the provisions of this chapter, an action to establish the decedent’s liability for which the decedent was protected by insurance may be commenced or continued against the decedent’s estate without the need to join as a party the decedent’s personal representative or successor in interest.” (Prob. Code 550(a).) “An action under this chapter shall name as the defendant, “Estate of (name of decedent), Deceased.” Summons shall be served on a person designated in writing by the insurer or, if none, on the insurer. Further proceedings shall be in the name of the estate, but otherwise shall be conducted in the same manner as if the action were against the personal representative.” (Prob. Code 552(a).)

Did Plaintiff comply with the procedures of CA Probate Code, sec’s. 550, et seq.?

It was initially unclear whether Plaintiff followed the proper procedures. However, after this motion was initially heard on 02/10/2023, the Court requested supplemental briefing on this issue. Based on the supplemental briefing submitted by both parties on 4/24/2023, the Court finds that Plaintiff followed the proper procedures of 550 et seq.

Plaintiff properly named the Estate of Izat Murataliev, decedent, and, on November 10, 2021, Plaintiff personally served Koy Saechao, an individual that the proof of service states was authorized to accept service. This proof of service was filed with the Court on November 15, 2021. Insurance defense counsel filed an Answer on behalf of the Estate on December 3, 2021. Intervenor argues that nowhere on this last proof of service does the name Empire or the name of the insurer appear, nor is the name of any entity with which Koy Saechao is associated indicated, nor is the entity for which Koy Saechao was allegedly authorized to accept service named. Intervenor argues that because Empire’s name and/or the name of any insurer does not appear on any proof of service nor was any proof tendered to show that Koy Saechao was the induvial authorized by Empire, or other insurer, to accept service on its behalf, the record lacks the required evidence that proper service was accomplished on an insurer or its authorized representative for service of process as required pursuant to 550 and 552.

There is no law cited requiring Plaintiff to state on the proof of service the facts of its selection of Koy Saechao as the individual to serve. Prior to the supplemental briefing, the Court didn’t know how the Plaintiff decided to serve Koy, nor on what basis Plaintiff claimed Koy was authorized by the Insurer to accept service. However, Plaintiff cleared up this issue in its supplemental briefing with respect to how Plaintiff brought Murataliev’s estate, and therefore his insurance carrier, into the case pursuant to Probate code 552(a).

While there appears to be no case law directly on point, in Plaintiff’s further briefing in support of its opposition to the motion to strike/MJOP, Plaintiff for the first time explains specifically, accompanied by documentary proof, how Plaintiff complied with Probate Code 552(a).

The Plaintiff named as the Defendant, the Estate of Murataliev, deceased, and then served that newly named Defendant by serving the summons and complaint on a person designated in writing by the insurer. There is no requirement that the insurer be named as a defendant nor is there any requirement that the insurer be named on the proof of service. With respect to the basis for Plaintiff’s claim, that Koy Saechao was a person designated in writing by the insurer, to receive the summons and the Complaint under this Probate Code procedure, Plaintiff provides documentation from the California Secretary of State to the effect that Koy Saechao is a registered corporate agent authorized to receive service of process. Empire may argue at the hearing that Plaintiff has not presented a designation of Saechao in writing by the insurer, but instead has presented a written designation of Saechao from the California Secretary of State. This Court finds that would be a distinction without a difference. Plaintiff thus complied with Probate Code 552(a).

Intervenor submitted a Declaration of Kelsie Featherstone, to which Plaintiff objected. That objection is sustained. Additionally, the Court notes that it strains credulity to argue that Plaintiff, as of 11/10/21 when she properly served the DOE amendment under CA Probate Code, sec. 552(a), somehow knew the name of Koy Saechao if Koy was not then listed as a designated agent for service of process of Intervenor.

Is there a time limit applicable these special Probate Code procedures on the facts and procedural posture of this case?

The Court requested further briefing at the 2/10/2023 hearing with respect to whether there is a statute of limitations or time period in which an estate must be named and served under Probate Code 550 et seq., and Probate Code 9390, when a Defendant dies while the case is already pending and at issue as to Defendant.

Here, the Court rejects the time limit-based argument that Intervenor submitted in its supplemental briefing.

Intervenor could not point to any statute or case law that required the decedent’s estate, and therefore the insurance coverage in place, to be brought in within a year of his death under the Probate Code procedure of which Plaintiff is attempting to avail herself. Intervenor’s attempt to argue by analogy is not persuasive because the analogies Intervenor presents all derive from situations where the deceased defendant died before the subject lawsuit was filed, or before the lawsuit was at issue as to the subsequently deceased defendant, or from cases to which the special provisions of Probate Code sec. 550, et seq. relating to insured deceased Defendants do not apply. This Court continues to hold that Mr. Murataliev was properly served by substitute service while alive and the documents in the file reflect that his insurance carrier then filed and served an Answer to the Complaint for Mr. Murataliev. After Murataliev died, with this action still pending and at issue, and being defended by his insurance carrier as per usual, Plaintiff elected to proceed under the applicable Probate Code provisions, and did so properly.

TENTATIVE RULING ON MOTION 1 Empire’s request that Plaintiff’s November 3, 2021, filing entitled “Amendment to Complaint (Fictitious/Incorrect Name) be stricken is DENIED.

The Court GRANTS the motion to strike in so far as dismissing Murataliev from the complaint since Murataliev is deceased.

The Court DENIES Intervenor’s motion in the alternative as to judgment on the pleadings..

Intervenor’s requests for judicial notice of Exhibits A-Q were unopposed. All requests for judicial notice are granted.

MOTION 2

Moving Party: Intervenor, Empire Fire and Marine Insurance Company (Empire or Intervenor) Responding Party: Plaintiff, Donara Grigoryan

Moving Papers: Notice of Motion/Motion; Linhardt Declaration; Dzhundubaev Declaration; Featherstone Declaration; O’Carroll Declaration; Request for Judicial Notice; Larsen Declaration;

[Notice of Joinder filed 2/10/2023 by Defendant, The Estate of Izat Murataliev, to join in the motion to dismiss of Intervenor.]

Opposition Papers: Opposition; Objection to Intervenor’s Request for Judicial Notice; Plaintiff’s Request for Judicial Notice; Plaintiff’s Objection to Intervenor’s Evidence; Boyadzhyan Declaration;

Reply Papers: Reply; Supplemental Larsen Declaration; Response to Plaintiff’s objection to Intervenor’s Evidence

Proof of Service Timely Filed (CRC Rule 3.1300) : Ok 16/21 Court Days Lapsed (CCP 1005(b)): Ok. Proper Address: Ok

RELIEF REQUESTED Intervenor, Empire Fire and Marine Insurance Company, moves to dismiss Plaintiff’s Complaint, filed on March 15, 2017, and “Amendment to Complaint,” filed on November 3, 2021 pursuant to CCP 583.250 and 583.420.

Plaintiff brings this motion on the grounds that (i) Plaintiff cannot simultaneously sue both Defendant Izat Murataliev, a decedent, and his Estate; (ii) no evidence shows Murataliev was ever properly served with a summons in this action, and thus all claims against him must be dismissed for failure to timely serve under Section 583.250 and failure to prosecute under Section 583.420; (iii) Plaintiff’s claims against the Estate must also be dismissed because she failed to substitute a personal representative for the Estate or properly serve the Estate; (iv) the two-year statute of limitations for a motor vehicle case expired on July 21, 2017, and thus any amendment to add the Estate was and is futile; and, although it need not be proven, (v) Empire and its insureds have been significantly prejudiced by Plaintiff’s failure to timely serve Murataliev or his Estate and her failure to prosecute this action.

TENTATIVE RULING Intervenor’s motion to dismiss is DENIED.

Intervenor argues that Murataliev was never properly served. As discussed in the Court’s Motion to Strike/MJOP, the Court found that Murataliev was properly served by substitute service. Further, Murataliev waived the right to challenge service by Answering the Complaint. The cases Intervenor cites in support of its argument that Murataliev did not waive the right to challenge service by Answering the Complaint are factually distinguishable as Defendants in the cases cited by Empire did not Answer the Complaint or where the Defendant later proceeded under CCP 583.250, inapplicable here. Empire then attempts to make a jurisprudential leap from a challenge to service that Murataliev waived to a challenge to the subsequent service on Murataliev’s carrier, but this leap and the argument made in an attempt to support it ignore the distinctive procedure established by the Legislature in Probate Code sections 550, et seq., and 9390. Although Empire titles this motion as a motion to dismiss under CCP 583.250, Empire is bootstrapping its unsupported argument that Murataliev was never served to begin with and that his estate was served beyond a time limit which does not exist in the law. Moreover, Murataliev never claimed while he was alive that the attorney who Answered the Complaint on his behalf, having been retained by Murataliev’s carrier to do so, was not in fact his attorney. This makes the case at bar distinguishable from the cases cited by Empire in footnotes 9-12 of its Reply.

Whether Empire’s claims about fraud with respect to the traffic collision that led to this case have any merit or not does not make either of these motions meritorious.

Intervenor’s request for judicial notice is DENIED as superfluous.

Plaintiff’s request for judicial notice is DENIED as superfluous.

The Court rules on Plaintiff’s Objections to the Declarations Intervenor presents as part of its moving papers as follows: Sustained.

Case Number: ****4195 Hearing Date: February 17, 2023 Dept: E

Hearing Date: 02/17/2023 – 10:00am

Case No:****4195

Trial Date: 03/20/2023

Case Name: DONARA GRIGORYAN v. ENTERPRISE RENT-A-CAR COMPANY et al.

TENTATIVE RULING - MOTION TO COMPEL FURTHER RESPONSES RE: NON-PARTY DEPOSITION SUBPOEANA FOR PRODUCTION OF BUSINESS RECORDS

Moving Party: Intervenor, Empire Fire and Marine Insurance Company

Responding Party: Non-Party, Kevin Kelley

Proof of Service Timely Filed (CRC Rule 3.1300): Ok 16/21 Court Days Lapsed (CCP 1005(b)): Ok Proper Address: Ok

Moving Papers: Motion; Proposed Order; Linhardt Declaration; Separate Statement; Request for Judicial Notice

Opposition: Opposition of Non-Party Kevin Kelley

Reply: Request to Strike Untimely Opposition; Supplemental Linhardt Declaration

The Court considers all moving, opposing, and reply papers.

RELIEF REQUESTED Intervenor, Empire Fire and Marine Insurance Company will and herby does move for an order compelling compliance with and production of records under the deposition subpoena for production of business records served upon third-party B&D Law Group.

This motion is brought pursuant to CCP 1987.1 and 2025.480(a). Intervenor alleges that the subpoena seeks clearly relevant documents from discovery in another action about a car collision involving Defendant Izat Murataliev and Harutyun Ajaryan, which are the same two individuals involved in renting and driving the Enterprise Rent-A-Car vehicle that collided with the vehicle carrying Plaintiff Donara Grigoryan in this case. Despite stating that they intended to produce at least some of the requested documents, B&D has failed to provide a single document or Code-compliant responses to Empire’s subpoena. Moreover, Empire’s discovery is integral to the Court’s order in this case allowing Empire to issue limited third-party document discovery.

BACKGROUND This case arises from a motor vehicle accident which occurred on July 21, 2015, on the SR-170 Freeway in Los Angeles, California wherein Defendant, Izat Murataliev driving a rental vehicle owned and rented by Defendant Enterprise smashed into the back of a vehicle in which Plaintiff, Donara Grigoryan, was a passenger. As a result of the accident, Plaintiff sustained injuries and on March 15, 2017, brought this action to recover for the damages sustained. Plaintiff brought suit against the driver Izat Murataliev as well as Defendants Enterprise Rent-A-Car of Los Angeles who provided the rental vehicle to the driver, and EAN Holdings, LLC. Empire Fire and Marine Insurance Company joined the lawsuit as an Intervenor and filed a Complaint in Intervention.

Further, according to Intervenor’s introduction, Murataliev was not the renter of the Enterprise car; instead, Harutyan Ajarayan had rented the car for Murataliev. Intervenor alleges that after Empire intervened in this case earlier this year, Empire’s counsel learned that five months before our “accident,” Murataliev, driving a car procured for him by Ajarayan—a BMW 750, which had no license plates and which neither Murataliev nor Ajaryan owned—hit another car in which an occupant later filed suit claiming injury. That case was filed in Los Angeles Superior Court as Kevin Kelley v. Izat Murataliev, et al., LASC Case No. BC652521 (the “Kelley Case”).

Given the unusual similarity of the underlying facts, Empire believes that evidence generated during or uncovered in the Kelley Case likely will support Empire’s theory of its case here—namely, that Murataliev and Ajaryan were fraudsters and co-schemers; that the two had a history of attempted frauds involving car accidents; and that the July 21, 2015 crash was the product of a staged accident insurance fraud scheme involving numerous individuals with a documented history of defrauding insurance companies.

The instant motion pertains to Empire seeking documents regarding the Kelley case from B&D Law Group, which represents plaintiff Kevin Kelley.

The Deposition subpoena for production of documents sought as follows:

The documents sought pursuant to this subpoena do not and shall not include (a) any medical records or information that would otherwise be protected by HIPAA or comparable state law; (b) any attorney-client privileged communications; or (c) any attorney-work product.

1. All non-privileged documents relating to or generated in connection with the lawsuit entitled Kevin Kelley v. Izat Murataliev, et al., Los Angeles Superior Court Case No. BC652521 (the “Kelley Action”), including but not limited to the following: all pleadings served or filed in the Kelley Action; written discovery served or received in the Kelley Action: document productions made or received in the Kelley Action; law and motion records; non-medical expert reports; deposition records including recordings (video and/or audio), written transcripts, and exhibits; correspondence; and trial records including but not limited to transcripts, exhibits, demonstrative aids, and trial transcripts.

2. All non-privileged documents and communications relating to all investigations conducted in connection with the claims and allegations asserted in the Kelley Action.

ANLAYSIS As a preliminary matter, Intervenor moves under CCP 2025.480(a) and 1987.1. Confusingly, the Intervenor does not make clear how it met the requirements of either statute.

In any event, the following statutes provide as follows:

CCP 2025.480(a)-(c)

(a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.

(b) This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.

(c) Notice of this motion shall be given to all parties and to the deponent either orally at the examination, or by subsequent service in writing. If the notice of the motion is given orally, the deposition officer shall direct the deponent to attend a session of the court at the time specified in the notice.

Here, Intervenor does not state how it met the timeliness requirements under 2025.480(b). However, according to the Court’s calculation, Intervenor timely moved under 2025.480(b) because B&D served objections on November 7, 2022 and the instant motion was made on 12/20/2022. Therefore, the motion appears to have been made no later than 60 days after objections were served.

Further, Intervenor appears to have met the meet and confer requirement of 2025.480(b) based on paragraphs 9-10 of the Linhardt declaration.

CCP 1987.1

“If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, 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.

(b) The following persons may make a motion pursuant to subdivision (a):

(1) A party.

(2) A witness.

(3) A consumer described in Section 1985.3.

(4) An employee described in Section 1985.6.

(5) A person whose personally identifying information, as defined in subdivision (b) of Section 1798.79.8 of the Civil Code, is sought in connection with an underlying action involving that person’s exercise of free speech rights.”

(CCP 1987.1 (a)-(b)(5).)

Discussion Non-Party asserted seven objections to each of the two requests.

The Court does not find the first objection as to indefinite time and scope/overbreadth to be a valid objection.

The Court does not find the second objection as to harassment/equally available to be valid.

The Court does not find the third objection as to vague/ambiguous/unintelligible to be a valid objection.

The Court does not find the fourth objection as to privacy to be a valid objection.

The Court does not find the fifth objection as to third party privacy to be a valid objection.

The Court does not find the sixth objection as to the collateral source rule to be a valid objection.

The Court does not find the seventh objection as to attorney-client privilege/work-product to be a valid objection.

In particular as to the sixth and seventh objections, the Court finds these objections invalid based of the language in the subpoena that limits the requests to non-privileged documents.

In considering the late Opposition, the Court does not find Opposition’s arguments on privacy rights of third parties to be convincing, with the exception of the fact that social security numbers would have to be redacted.

The Court is not persuaded by Opposition’s ample opportunity argument.

Further, the Court is not persuaded by Opposition’s argument that Empire has no right to documents reflecting attorney-client communications and work-product because the subpoena expressly did not ask for anything privileged.

Also, the Court finds the objections as to vagueness, ambiguity, and overbreadth to be unpersuasive.

Finally, the Court finds the objections as to lack of proper service unpersuasive based on the Reply’s argument that B&D, whose records were subpoenaed, had only one consumer or client to protect – Mr. Kelley. Mr. Kelley was timely served consumer notice of this subpoena before B&D was to produce records. Neither Mr. Murataliev (now deceased), Mr. Ajaryan, nor even Ms. Arakelian, were ever represented by the recipient of the subpoena, B&D; therefore, Intevenor/subpoenaing party/movant had no duty to notify them of a subpoena which did not, by definition, seek any personal or private records of these three persons.

TENTATIVE RULING Motion to compel further responses to the non-party deposition subpoena is GRANTED, with the exception that social security numbers are to be redacted.

Sanctions

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (CCP 2025.480(j)

Although Intervenor requested sanctions of $10,000.00 in its “conclusion” section of the moving papers, Intervenor did not request sanctions in the notice of the motion, as our law requires. Further, in the Court’s view, imposing a sanction on the non-party here would be unjust.

Sanctions are DENIED.

Request for Judicial Notice Intervenor’s requests for judicial notice of Exhibit A, B, and C are granted.

Case Number: ****4195 Hearing Date: February 10, 2023 Dept: E

Hearing Date: 2/10/2023 – 10:00am Case No: ****4195 Trial Date: 03/20/2023 Case Name: DONARA GRIGORYAN v. ENTERPRISE RENT-A-CAR COMPANY et al.

TENTATIVE RULING ON MOTION TO STRIKE OR IN THE ALTERNATIVE MOTION FOR JUDGMENT ON THE PLEADINGS

Moving Party: Intervenor, Empire Fire and Marine Insurance Company (Empire or Intervenor) Responding Party: Plaintiff, Donara Grigoryan

Moving Papers: Notice of Motion/Motion; Proof of Service; Alex Linhardt Declaration; Request for Judicial Notice; Proposed Order

[Notice of Joinder filed 1/20/23 by Defendant, The Estate of Izat Murataliev, to join in the motion of Intervenor.]

Opposition Papers: Opposition.

Reply Papers: Reply; Supplemental Declaration of Alex Linhardt

Preliminary Procedural Matters

Proof of Service Timely Filed (CRC Rule 3.1300): Ok 16/21 Court Days Lapsed (CCP 1005(b)): Ok

Opposition argues that the instant motion was untimely under CCP 1005(b). Plaintiff accurately points out in Opposition that based on service by email on January 19, 2023, this motion would be late because two calendar days must be added, and the motion should have been served by email on January 17, 2023. However, the proof of service for this motion states that the moving papers were also served by personal service on January 19, 2023. January 19, 2023 was 16 Court days before the instant hearing, and the moving papers were therefore timely. (See Board of Trustees of Leland Stanford Junior University v. Ham (2013) 216 Cal.App.4th 330, 336 stating, “The preferred way to serve a defendant, of course, is by personal delivery, as prescribed in section 415.10, as this is the most likely to ensure actual notice to the defendant. [Citation omitted.] Service is deemed complete at the time of delivery.”)

Opposition argues, “Plaintiff’s counsel’s office did not receive the documents via the signatory on the alleged proof of service Alex Linhardt on January 30, 2023.” (Oppo. p.3.) The Court notes how this sentence is confusing and vague. If the Court were to assume that Plaintiff is attempting to argue that personal service was not conducted on January 19, 2023, the Court does not find this argument convincing. Linhardt submitted a supplemental declaration for Intervenor which contained a proof of service in Exhibit 1 of proof of personal service on Plaintiff.

Proper Address: Ok

RELIEF REQUESTED Intervenor, Empire, moves to strike or dismiss (i) Plaintiff’s Amendment to Complaint filed on November 3, 2021, and (ii) Izat Murataliev as a party to the original complaint.

Intervenor moves pursuant to Code of Civil Procedure Sections 435, 436, 438, and 583.250, as well as Probate Code Section 553, and on the grounds that Plaintiff’s Amendment to Complaint is defective because (inter alia): (i) Plaintiff was required to obtain leave of court to amend her complaint but did not do so; (ii) Plaintiff cannot simultaneously sue an individual and his Estate as if he is both alive and dead; (iii) Plaintiff’s attempted amendment effectively dismissed her claim against Defendant Izat Murataliev; (iv) Plaintiff cannot amend her complaint in such a way as to fail to state a viable cause of action; (v) Plaintiff cannot add a new defendant after the statute of limitations has passed where the relation-back doctrine does not apply; (vi) Plaintiff cannot add a new defendant or “rename” a Doe defendant outside the applicable three-year service period; (vii) Plaintiff cannot use Probate Code Sections 550 and 552 to add an Estate after the statute of limitations has passed; and (viii) Plaintiff has not demonstrated that she satisfied the requirements of Probate Code Section 552.

In the alternative, Empire moves for judgment on the pleadings pursuant to CCP 438(d).

BACKGROUND This case arises from a motor vehicle accident which occurred on July 21, 2015, on the SR-170 Freeway in Los Angeles, California wherein Defendant, Izat Murataliev driving a rental vehicle owned and rented by Defendant Enterprise smashed into the back of a vehicle in which Plaintiff, Donara Grigoryan, was a passenger. As a result of the accident, Plaintiff sustained injuries and on March 15, 2017, brought this action to recover for the damages sustained. Plaintiff brought suit against the driver Izat Murataliev as well as Defendants Enterprise Rent-A-Car of Los Angeles who provided the rental vehicle to the driver, and EAN Holdings, LLC. Empire Fire and Marine Insurance Company joined the lawsuit as an Intervenor and filed a Complaint in Intervention. Enterprise and EAN have been dismissed from the case by virtue of summary judgment.

The object of this motion to strike is to strike the pleading that Plaintiff filed on November 3, 2021, the Amendment to Complaint, wherein Plaintiff substituted Doe 1 for the Estate of Murataliev. Meet and Confer Before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike. If an amended pleading is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a motion to strike the amended pleading. (CCP 435.5(a).)

Here, the declaration of Linhardt states that the parties met and conferred but an agreement could not be reached. (Decl. Linhardt 2-3.)

Legal Standard Motion to Strike The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc. 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc. 436(b).) A motion to strike cannot be based upon the grounds that a complaint fails to state facts sufficient to constitute a cause of action, but instead is properly based on grounds of superfluous or abusive allegations, or improprieties in form or procedure. (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528-29.)

The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code. Civ. Proc. 437; Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63 [“In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”].)

ANALYSIS Untimely Motion to Strike Plaintiff’s Opposition argues that this motion to strike is untimely based on 435(b)(1) because it wasn’t filed within the time allowed to respond to a pleading. Plaintiff’s argument is not convincing in light of the Reply and CCP 436. “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (CCP 436, emph. added.)

Service of Murataliev Intervenor argues that there is substantial evidence in the record indicating that Murataliev was never properly served and was never aware of this lawsuit.

The Court finds this argument unavailing.

Murataliev was served by substitute service on December 26, 2017, and competent proof thereof was filed on December 27, 2017. On March 14, 2018, Murataliev Answered the complaint.

September and November Final Status Conference Although Intervenor accurately points out that Plaintiff did not file a statement informing the Court that Murataliev had died or provide any proof of his death after the September 28, 2021, Final Status Conference, this does not take jurisdiction away from this Court. Plaintiff simply did not abide by the September 28, 2021, Minute Order.

Leave of Court to Amend Complaint Intervenor argues that Plaintiff was required to obtain leave of court to amend the pleading to add the Estate of Murataliev, and since leave to amend was not obtained, the Estate should be stricken.

The Court does not find Intervenor’s argument convincing.

Intervenor cites CCP 473(a), but Intervenor’s argument ignores the fact that Plaintiff is appearing to add the Estate as a Defendant in the context of Probate Code 550 et seq.

“An action to establish the decedent’s liability for which the decedent was protected by insurance may be commenced or continued under Section 550, and a judgment in the action may be enforced against the insurer, without first filing a claim as provided in this part.” (Prob. Code 9390(a).) “Subject to the provisions of this chapter, an action to establish the decedent’s liability for which the decedent was protected by insurance may be commenced or continued against the decedent’s estate without the need to join as a party the decedent’s personal representative or successor in interest.” (Prob. Code 550(a).)

Nothing in Prob. Code 550 et seq. or Prob. Code 9390(a) requires Plaintiff to obtain leave of court, in contrast to CCP 377.41, which requires a noticed motion, but is inapplicable to this matter.

Plaintiff cannot simultaneously sue an individual and his Estate as if he is both alive and dead Intervenor argues on page 2 of its Notice of Motion that Plaintiff cannot simultaneously sue an individual and his Estate as if he is both alive and dead.

As a preliminary matter, Intervenor did not address this issue in its motion; it only addressed it on page 2 of its Notice of Motion. However, the Court finds Intervenor’s argument in the instant context unavailing. Here, the Plaintiff brought in the Estate of Murataliev after Murataliev died.

Plaintiff’s attempted amendment effectively dismissed her claim against Defendant Izat Murataliev Intervenor argues that Plaintiff’s attempted amendment effectively dismissed her claim against Defendant Izat Murataliev. Intervenor argues how if Murataliev is not dismissed, there could potentially be a judgment against an individual that is deceased.

Here, the Court agrees with Intervenor’s argument that Izat Murataliev is dismissed because a judgment cannot be obtained against a deceased person.

Plaintiff cannot amend her complaint in such a way as to fail to state a viable cause of action On page 2 of Intervenor’s Notice of Motion, Intervenor argues that Plaintiff cannot amend her complaint in such a way as to fail to state a viable cause of action. This argument is not addressed in the motion, and the Court is entirely unclear as to the argument that Intervenor is making on this issue.

Plaintiff cannot add a new defendant after the statute of limitations has passed where the relation-back doctrine does not apply Intervenor argues that Plaintiff’s claims against the Estate are time barred. In particular, Intervenor argues that Plaintiff cannot rely on the relation-back doctrine to add the Estate as a defendant because the statute of limitations already ran.

Here, the Court finds that Intervenor’s arguments are nonsensical, defying common sense, and supported only by inapposite cases and statutes.

In the instant scenario, the accident at issue occurred on July 21, 2015, and Intervenor concedes that the statute of limitations on the cause of action ran to July 21, 2017. Further, Intervenor concedes that Plaintiff’s original complaint was timely filed against the original defendants in March of 2017. However, Intervenor attempts to argue that because the claims against the Estate were asserted after the statute ran, the attempted amendment must be stricken.

Intervenor’s argument is misplaced. In Litwin v. Estate of Fomela (2010) 186 Cal.App.4th 607, cited by Intervenor, an automobile collision occurred in 2004, and a complaint was filed on May 22, 2008, against the defendant and an amended complaint naming the estate was filed on September 17, 2008. In Litwin, the court held that the original complaint filed against Defendant was untimely and the claims against the estate were also untimely.

Here, the facts at hand are entirely different. The initial complaint against the Defendant, who was alive at the time the complaint was filed, was timely. Intervenor’s attempt to argue that even though the action was timely filed against the decedent, the action must also be filed within the statute of limitations for the Estate defies common sense and law. As a matter of common sense, the estate of a decedent would not be added to the action if there is not yet a decedent. As a matter of law, a Plaintiff does not simply lose their claim because the Defendant died. “Except as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person’s death but survives subject to the applicable limitations period.” (CCP 377.20(a).)

Here, Murataliev was timely sued within the statute of limitations, and died while this action, at issue as to him, was still pending.

Further, Intervenor’s arguments on pages 17-19 on Section 474 and the relation back doctrine are inapposite in the instant context.

Intervenor also argues that the Estate was not served within the three-year period for commencement of an action.

Here, again, Intervenor’s argument is misplaced and out of context in attempting to argue that the Estate must have been added within three years based on the time for filing the original complaint.

Probate Code Sections 550 et seq. Intervenor argues that Plaintiff failed to follow proper procedures of the probate code to substitute the estate or personal representative.

Intervenor makes arguments on this issue on pages 20-22 of its motion.

As a preliminary matter, the Court is not clear why Intervenor cites to CCP 377.40 and 377.50 because here, Plaintiff proceeded under Probate Code 550 et seq. See, Meleski v. Estate of Hotlen (2018-3d Dist.) 29 Cal. App. 5^th 616, 620-621.

“An action to establish the decedent’s liability for which the decedent was protected by insurance may be commenced or continued under Section 550, and a judgment in the action may be enforced against the insurer, without first filing a claim as provided in this part.” (Prob. Code 9390(a).) “Subject to the provisions of this chapter, an action to establish the decedent’s liability for which the decedent was protected by insurance may be commenced or continued against the decedent’s estate without the need to join as a party the decedent’s personal representative or successor in interest.” (Prob. Code 550(a).) “An action under this chapter shall name as the defendant, “Estate of (name of decedent), Deceased.” Summons shall be served on a person designated in writing by the insurer or, if none, on the insurer. Further proceedings shall be in the name of the estate, but otherwise shall be conducted in the same manner as if the action were against the personal representative.” (Prob. Code 552(a).)

Here, however, it is unclear if Plaintiff properly followed all of the procedures of Probate Code 550 et seq. Plaintiff properly named the Estate of Izat Murataliev, decedent, and, on November 10, 2021, Plaintiff personally served Koy Saechao, an individual that the proof of service states was authorized to accept service. This proof of service was filed with the Court on November 15, 2021. Insurance defense counsel filed an Answer on behalf of the Estate on December 3, 2021.

Intervenor argues that nowhere on this last proof of service does the name Empire or the name of the insurer appear, nor is the name of any entity with which Koy Saechao is associated indicated, nor is the entity for which Koy Saechao was allegedly authorized to accept service named. Intervenor argues that because Empire’s name and/or the name of of any insurer does not appear on any proof of service nor was any proof tendered to show that Koy Saechao was the induvial authorized by Empire, or other insurer, to accept service on its behalf, the record lacks the required evidence that proper service was accomplished on an insurer or its authorized representative for service of process as required pursuant to 550 and 552.

There is no law cited requiring Plaintiff to state on the proof of service the facts of its selection of Koy Saechao as the individual to serve. However, based on the facts before the Court, the court is uncertain if Plaintiff fully complied with 552, specifically, Probate Code 552(a), because the Court doesn’t know how the Plaintiff decided to serve Koy or what basis existed for Plaintiff to claim Koy was authorized by the Insurer to accept service.

In addition, neither party makes clear whether there is a time limit/statute of limitations with which Plaintiff is to comply when proceeding Probate Code 550 et seq. and 9390. CCP 366.2 is inapplicable on its face. The Court has found no such statute or time limit, and is prepared to conclude that where, as here, Defendant dies while a case, at issue as to that Defendant, is still pending, and Plaintiff elects to proceed under the special Probate Code 550, et seq., 9390 procedures, the Estate may be substituted in for its decedent at any time before Trial.

Further, the Court is unclear as to how Intervenor has standing to bring this motion based on Intervenor’s reference to Probate Code 553. Intervenor’s statement of standing in footnote 11 of the moving papers is an ipse dixit.

TENTATIVE RULING Empire’s request that Plaintiff’s November 3, 2021, filing entitled “Amendment to Complaint (Fictitious/Incorrect Name)” be stricken is Moot.

The Court GRANTS the motion to strike in so far as dismissing the individual person, Izat Murataliev, from the complaint since he is deceased.

The Court requests further briefing as to whether there is a statute of limitations or time period in which an Estate must be named and served under Probate Code 550 et seq., 9390 when a Defendant dies while the case is already pending and at issue as to Defendant.

The Court requests further briefing as to whether or not Plaintiff complied with 552(a). Specifically, what was the basis for Plaintiff serving Koy Saechao?

Parties are to efile and eserve their further briefing, limited to five (5) pages per party, on or before February 21, 2023. No opposition or reply briefing will be accepted.

Intervenor’s requests for judicial notice of Exhibits A-Q were unopposed. The requests for judicial notice are granted.

Case Number: ****4195 Hearing Date: December 2, 2022 Dept: E

Hearing Date: 12/02/2022 – 8:30am Case No. ****4195 Trial Date: UNSET Case Name: DONARA GRIGORYAN v. ENTERPRISE RENT-A-CAR COMPANY OF LA et al.

TENTATIVE RULING – MOTION TO QUASH

Moving Party: Plaintiff, Donara Grigoryan, and third-party, Manvel Israyelyan

Responding Party: Intervenor Defendant, Empire Fire and Marine Insurance Company (“Empire”)

RELIEF REQUESTED Plaintiff, Donara Grigoryan and third-party Manvel Israyelyan move the Court for an order quashing Empire’s subpoenas issued to the following facilities:

1. T-Mobile USA, Inc., 2710 Gateway Oaks Drive, Suite 150N Sacramento, CA 95833

2. AT&T Mobility, LLC., 330 North Brand Blvd., Suite 700, Glendale, CA 91203

3. Verizon Cellco Partnership dba Verizon Wireless, 180 Washington Valley Road, Bedminster, NJ 07921

This motion is brought pursuant to CCP 1985.3, 1987.1, 2017.020, 2025.410, and 2025.420.

Procedural 16/21 Day Lapse (CCP 12c and 1005(b): ok Proof of Service Timely Filed (CRC, Rule 3.1300): ok Correct Address (CCP 1013, 1013a): ok

Opposition submitted but no Reply submitted.

Moving Papers: Notice of Motion; Separate Statement

Opposition Papers: Opposition; Opposition to Separate Statement; Declaration of Gregory A. Nylen

BACKGROUND [Background is according to Plaintiff’s motion.]

This case arises from a motor vehicle accident which occurred on July 21, 2015, on the SR-170 Freeway in Los Angeles, California wherein Defendant, Izat Muratliev driving a rental vehicle owned and rented by Defendant Enterprise smashed into the back of a vehicle in which Plaintiff, Donara Grigoryan was a passenger. The vehicle that Plaintiff was in sustained extensive damage and was declared a total loss. Plaintiff sustained severe injuries as a result of the accident including an L5-S1 injury for which she was required to undergo surgery for, and therein on March 15, 2017, brought this action to recover for the damages sustained. Plaintiff brought suit against the driver Izat Muratliev as well as Defendants Enterprise Rent-A-Car of Los Angeles who provided the rental vehicle to the driver, Muratliev. Empire Fire and Marine Insurance Company joined the lawsuit as an Intervenor and filed a Complaint in Intervention.

Empire has now issued three subpoenas on August 30, 2022, seeking records on September 22, 2022, of Plaintiff and her husband Manvel Israyelyan’s cell phone records.

The subpoena issued to T-Mobile for Manvel Israyelyan’s records, requested documents as follows:

Any and all phone communications in the form of historical call detail records and tower locations, for cell phone number (818) 445-7070 (hereinafter "Cell Phone Number") for the period of time between 07/1/2015 and the date of production, including but not limited to the categories listed below.

1. Call history for the period 07/1/2105 to the present;

2. Text or short message data (SMS) Message Data (collectively "Text Message Data");

3. All picture or multi-media messaging services (MMS) for the Cell Phone Number;

4. Data usage;

5. Subscriber information, including financially responsible party, billing address, features, and services and equipment; and

6. Statements and related communications, including billing statements, collection notices, payment history, and records.

Instructions: To the extent any Text Message Data content (i.e. substantive text messages) is captured and produced, please provide that content data in a sealed envelope or container marked “Content.”

The subpoena issued to AT&T Mobility for Manvel Israyelyan’s records, requested documents as follows:

Any and all phone communications in the form of historical call detail records and tower locations, for cell phone number (818) 760-0282 (hereinafter "Cell Phone Number") for the period of time between 07/1/2015 and the date of production, including but not limited to the categories listed below.

1. Call history for the period 07/1/2105 to the present;

2. Text or short message data (SMS) Message Data (collectively “Text Message Data”);

3. All picture or multi-media messaging services (MMS) for the Cell Phone Number;

4. Data usage;

5. Subscriber information, including financially responsible party, billing address, features, and services and equipment; and

6. Statements and related communications, including billing statements, collection notices, payment history, and records.

Instructions: To the extent any Text Message Data content (i.e. substantive text messages) is captured and produced, please provide that content data in a sealed envelope or container marked “Content.”

The subpoena issued to Verizon Cellco Partnership dba Verizon Wireless for Donora Grigoryan’s records, requested documents as follows:

Any and all phone communications in the form of historical call detail records and tower locations, for cell phone number (310) 606-1882 (hereinafter "Cell Phone Number") for the period of time between 07/1/2015 and the date of production, including but not limited to the categories listed below.

1. Call history for the period 07/1/2105 to the present;

2. Text or short message data (SMS) Message Data (collectively “Text Message Data”);

3. All picture or multi-media messaging services (MMS) for the Cell Phone Number;

4. Data usage;

5. Subscriber information, including financially responsible party, billing address, features, and services and equipment; and

6. Statements and related communications, including billing statements, collection notices, payment history, and records.

Instructions: To the extent any Text Message Data content (i.e. substantive text messages) is captured and produced, please provide that content data in a sealed envelope or container marked “Content.”

MOTION TO QUASH – LEGAL STANDARD “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, 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(a).)

As a general rule, all unprivileged information that is relevant to the subject matter of the action is discoverable if it would itself be admissible evidence at trial or if it appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc. 2017.010; Schnabel v. Superior Court (1993) 5 Cal.4th 704, 711.) When the information sought to be discovered impacts a person’s constitutional right to privacy, limited protections come into play for that person. (Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 999.) The protections cover both a person’s personal and financial matters. (Id.) The court must balance competing rights — the right of a litigant to discover relevant facts and the right of an individual to maintain reasonable privacy — in determining whether the information is discoverable. (Id.)

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.) The framework for evaluating invasions of privacy in discovery has been clarified in Williams v. Superior Court (2017) 3 Cal.5th 531. There, the California Supreme Court held that, generally, “[t]he 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. The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations. (Williams, 3 Cal.5th at p. 533, citing Hill v. Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.) The court rejected cases which held that the party seeking protected information must always show a compelling need or interest. (Id. at p. 557.) Instead, the court held, “[o]nly obvious invasions of interest fundamental to personal autonomy must be supported by a compelling interest.” (Id.) When lesser interests are at stake, “the strength of the countervailing interest sufficient to warrant disclosure of private information var[ies] according to the strength of the privacy interest itself, the seriousness of the invasion, and the availability of alternatives and protective measures.” (Id.)

Parties may overcome objections on the basis of a right to privacy by demonstrating that the information sought 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.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 859-862.) Once good cause is shown, courts must carefully balance a right of privacy against the interest in having just litigation. (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 371.)

A court may abuse its discretion in denying requests for discovery, or in granting a motion to quash, where it fails to consider interests favoring disclosure, or an order partially limiting rather than outright denying discovery. (Johnson v. Superior Court (2000) 80 Cal.App.4th 1050, 1073 (reversing trial court order quashing entirely deposition notice, and instead ordering discovery of private medical history, but only to the extent relevant.)

ANALYSIS One argument moving party makes is that the instant subpoenas are defective because they violate CCP 1985.3(f) and Public Utilities Code 2891.

CCP 1985.3(f) states as follows, “A subpoena duces tecum for personal records maintained by a telephone corporation which is a public utility, as defined in Section 216 of the Public Utilities Code, shall not be valid or effective unless it includes a consent to release, signed by the consumer whose records are requested, as required by Section 2891 of the Public Utilities Code.”

Under 2891 of the Public Utilities Code:

“(a) No telephone or telegraph corporation shall make available to any other person or corporation, without first obtaining the residential subscriber’s consent, in writing, any of the following information:

(1) The subscriber’s personal calling patterns, including any listing of the telephone or other access numbers called by the subscriber, but excluding the identification to the person called of the person calling and the telephone number from which the call was placed, subject to the restrictions in Section 2893, and also excluding billing information concerning the person calling which federal law or regulation requires a telephone corporation to provide to the person called.

(2) The residential subscriber’s credit or other personal financial information, except when the corporation is ordered by the commission to provide this information to any electrical, gas, heat, telephone, telegraph, or water corporation, or centralized credit check system, for the purpose of determining the creditworthiness of new utility subscribers.

(3) The services which the residential subscriber purchases from the corporation or from independent suppliers of information services who use the corporation’s telephone or telegraph line to provide service to the residential subscriber.

(4) Demographic information about individual residential subscribers, or aggregate information from which individual identities and characteristics have not been removed.

(e) Every violation is a ground for a civil suit by the aggrieved residential subscriber against the telephone or telegraph corporation and its employees responsible for the violation.”

In Opposition, Empire argues that the subpoenas are not procedurally defective because the subpoenas don’t seek the information listed in 2891.

The Court finds Opposition’s argument unavailing. The subpoenas specifically request information that falls under 2891.

Further in Opposition, Empire argues that even if the subpoenas seek information that fell within 2891’s protections, 2894 provides for an exception to liability for telecommunications providers for producing this type of information if a court orders them to do so.

Section 2894 states as follows:

(a) Notwithstanding subdivision (e) of Section 2891, the disclosure of any information by an interexchange telephone corporation, a local exchange telephone corporation, or a provider of commercial mobile radio service, as defined in Section 216.8, in good faith compliance with the terms of a state or federal court warrant or order or administrative subpoena issued at the request of a law enforcement official or other federal, state, or local governmental agency for law enforcement purposes, is a complete defense against any civil action brought under this chapter or any other law, including, but not limited to, Chapter 1.5 (commencing with Section 630) of Part 1 of Title 15 of the Penal Code, for the wrongful disclosure of that information.

(b) As used in this section the following terms have the following meanings:

(1) “Interexchange telephone corporation” means a telephone corporation that is a long-distance carrier.

(2) “Local exchange telephone corporation” means a telephone corporation that provides local exchange services.

Empire has failed to produce evidence or legal authority sufficient to support the Court’s exercise of the discretion implied under sec. 2894 to support, in essence, a waiver of sec. 2891.

These subpoenas also appear to be violative of Federal law; both the Electronics Communications Privacy Act, 18 U.S.C. 2510, et seq., and the Stored Communications Act, 18 U.S.C. 2702.

TENTATIVE RULING Plaintiff’s motion to quash is GRANTED.

A motion must be brought separately as to each discovery method at issue. The instant motion should have been filed as three separate motions to quash and three separate filing fees paid. Instead, Plaintiff filed only one motion to quash three different subpoenas. “[P]ayment of filing fees is both mandatory and jurisdictional.” (Hu vs. Silgan Containers Corp. (1999) 70 Cal. App. 4^th 1261, 1269.)

Plaintiff is Ordered to pay the appropriate filing fees to the Clerk, forthwith.

Case Number: ****4195 Hearing Date: November 18, 2022 Dept: E

Hearing Date: 11/18/2022 – 8:30am Case No. ****4195 Trial Date: UNSET Case Name: DONARA GRIGORYAN v. ENTERPRISE RENT-A-CAR COMPANY OF LA et al.

TENTATIVE RULING – MOTION TO QUASH

Moving Party: Plaintiff, Donara Grigoryan Responding Party: Defendant Intervenor, Empire Fire and Marine Insurance Company

RELIEF REQUESTED Plaintiff moves to quash Empire’s subpoenas issued to the following facilities:

1. Alliance United Insurance Co.; PO Box 2843 Clinton IA 52733

2. Farmers Insurance Exchange c/o Doren Holhl 6301 Ownesmouth Ave

Woodland Hills, CA 91367

3. Geico Casualty Company, PO Box 509119 San Diego, CA 92150

4. Geico Indemnity Company, PO Box 509119 San Diego, CA 92150

5. Kemper Preferred PO Box 2843 Clinton Iowa 52733

6. Liberty Mutual Insurance Co. c/o CSC Lawyers Incorpo Services 2710 Gateway Oaks Dr. Ste 150 N Sacramento, CA 95833

7. Progressive Group of Insurance co CT Corporation Systems 330 N.. Brand

Blvd., Ste 700 Glendale, CA

Procedural 16/21 Day Lapse (CCP 12c and 1005(b): ok Proof of Service Timely Filed (CRC, Rule 3.1300): ok Correct Address (CCP 1013, 1013a): ok

Opposition and Reply submitted.

Moving Papers: Notice of motion; separate statement

Opposition Papers: Opposition; response to separate statement; Cronkrite declaration; Linhardt declaration; proof of service

Reply Papers: Reply

BACKGROUND [Background is according to Plaintiff’s motion.]

This case arises from a motor vehicle accident which occurred on July 21, 2015, on the SR-170 Freeway in Los Angeles, California wherein Defendant, Izat Muratliev driving a rental vehicle owned and rented by Defendant Enterprise smashed into the back of a vehicle in which Plaintiff, Donara Grigoryan was a passenger. The vehicle that Plaintiff was in sustained extensive damage and was declared a total loss. Plaintiff sustained severe injuries as a result of the accident including an L5-S1 injury for which she was required to undergo surgery for, and therein on March 15, 2017, brought this action to recover for the damages sustained. Plaintiff brought suit against the driver Izat Muratliev as well as Defendants Enterprise Rent-A-Car of Los Angeles who provided the rental vehicle to the driver, Muratliev. Empire Fire and Marine Insurance Company joined the lawsuit as an Intervenor and filed a Complaint in Intervention. Empire has now issued seven subpoenas with a production date of September 13, 2022 that Plaintiff moves to quash.

MOTION TO QUASH – LEGAL STANDARD “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, 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(a).)

As a general rule, all unprivileged information that is relevant to the subject matter of the action is discoverable if it would itself be admissible evidence at trial or if it appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc. 2017.010; Schnabel v. Superior Court (1993) 5 Cal.4th 704, 711.) When the information sought to be discovered impacts a person’s constitutional right to privacy, limited protections come into play for that person. (Shaffer v. Superior Court (1995) 33 Cal.App.4th 993, 999.) The protections cover both a person’s personal and financial matters. (Id.) The court must balance competing rights — the right of a litigant to discover relevant facts and the right of an individual to maintain reasonable privacy — in determining whether the information is discoverable. (Id.)

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.) The framework for evaluating invasions of privacy in discovery has been clarified in Williams v. Superior Court (2017) 3 Cal.5th 531. There, the California Supreme Court held that, generally, “[t]he 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. The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations. (Williams, 3 Cal.5th at p. 533, citing Hill v. Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.) The court rejected cases which held that the party seeking protected information must always show a compelling need or interest. (Id. at p. 557.) Instead, the court held, “[o]nly obvious invasions of interest fundamental to personal autonomy must be supported by a compelling interest.” (Id.) When lesser interests are at stake, “the strength of the countervailing interest sufficient to warrant disclosure of private information var[ies] according to the strength of the privacy interest itself, the seriousness of the invasion, and the availability of alternatives and protective measures.” (Id.)

Parties may overcome objections on the basis of a right to privacy by demonstrating that the information sought 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.” (Britt v. Superior Court (1978) 20 Cal.3d 844, 859-862.) Once good cause is shown, courts must carefully balance a right of privacy against the interest in having just litigation. (Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 371.)

A court may abuse its discretion in denying requests for discovery, or in granting a motion to quash, where it fails to consider interests favoring disclosure, or an order partially limiting rather than outright denying discovery. (Johnson v. Superior Court (2000) 80 Cal.App.4th 1050, 1073 (reversing trial court order quashing entirely deposition notice, and instead ordering discovery of private medical history, but only to the extent relevant.)

ANALYSIS

Overbroad/Irrelevant Moving party attempts to argue that the instant seven subpoenas served on the insurance companies are overbroad and irrelevant. Those seven subpoenas are for document production and list two numbers. Number 1 has subparts a to v, and Number 2 has subparts a to e. However, moving party did not meet its burden in demonstrating these subpoenas are overbroad. Moving party did not identify specifically how each request and each subpart is overbroad or irrelevant. Moving party simply states the requests are irrelevant because they relate to Plaintiff’s mother’s fire claims on her home, or her husband’s claims, and incidents not involving Plaintiff. Moving parties fail to explain why any of these issues are irrelevant with respect to the issues raised in the case nor does it discuss why each subpart is irrelevant and overbroad with respect to the case. While the Court is unclear why the requests are overbroad for failure of Plaintiff to adequately explain why they are overbroad, the Court is equally uncertain as to why the requests are relevant to the instant action based on the Opposition’s general explanation that the requests pertain to proving that Plaintiff is committing fraud. Ultimately, since Plaintiff fails to explain why each individual subpoena and each request is overbroad in context of what the issues in the case are, the Court finds Plaintiff’s argument unavailing.

Privacy Right

Moving party attempts to say these requests violate privacy rights. Yet, moving party makes no attempt to identify, as our law requires, any specific privacy right it is asserting.

July 13, 2022, Minute Order Moving party attempts to argue that these subpoenas are outside the Court’s prior July 13, 2022, Minute Order. Plaintiff arguably showed the Court in its moving papers that these are outside the minute order; however, Opposition convinced the Court that the subpoenas seek new information, especially in light of the Reply. The Reply’s mere reference to Empire’s motion to intervene and the 2020 deposition of Bonda do not support the assertion that Empire previously knew about any details of the fraud Empire alleges.

CCP 1985.3(b)(2)-(3)

Prior to the date called for in the subpoena duces tecum for the production of personal records, the subpoenaing party shall serve or cause to be served on the consumer whose records are being sought a copy of the subpoena duces tecum, of the affidavit supporting the issuance of the subpoena, if any, and of the notice described in subdivision (e), and proof of service as indicated in paragraph (1) of subdivision (c). This service shall be made as follows:

(2) Not less than 10 days prior to the date for production specified in the subpoena duces tecum, plus the additional time provided by Section 1013 if service is by mail.

(3) At least five days prior to service upon the custodian of the records, plus the additional time provided by Section 1013 if service is by mail.

(CCP 1985.3(b)(2)-(3).)

Moving party attempts to argue that the subpoenas were served on the insurance companies on August 22, 2022. This argument is unavailing as the Linhardt declaration states in paragraph 7, and supported by Exhibit 3, that the subpoenas themselves were served on the insurance companies on August 29, 2022. The Reply’s argument that paragraph 2 of the Cronkrite declaration shows that Cronkrite served the subpoenas on the insurance companies on August 22, 2022, is unavailing because paragraph 2 of the Cronkrite declaration states that the consumer notices were served on August 22, 2022, not the subpoenas issued to the insurance companies. Therefore, if the subpoenas were served August 29, 2022, to the insurance companies, then five days prior plus two court days would be August 22, 2022. [The subpoenas were served on the insurance companies by personal service.] Thus, the Notices to Consumer appear to have been timely served if Ms. Cronkrite’s Declaration in Opposition to this Motion is to be believed. Further, the Subpoenas themselves were thus served on the seven insurance company respondents over 10 days before the date of production, September 13, 2022.

However, Plaintiff does raise a dispute as to when the consumer notices were served. Plaintiff argues that the consumer notices were served on August 29, 2022, which was the same date that the Subpoenas themselves were served. Empire faces an evidentiary contradiction in attempting to prove that the consumer notices were served 5 days before the subpoenas were served, as our law requires. Although the Cronkrite declaration states that she served the consumer notices on August 22, 2022, in her declaration in paragraph 2, and although Cronkrite attaches an August 23, 2022, proof of delivery from UPS, Cronkrite does not address the fact that her proof of service for the consumer notices alleges that she served the consumer notices on August 29, 2022. Therefore, her declaration in her proof of service for her consumer notices and her declaration in the instant opposition contradict each other, and her declaration for this motion does not state that she made an error; typographical or otherwise.

TENTATIVE RULING A motion must be brought separately as to each discovery method at issue. The instant motion should have been filed as seven separate motions to quash and seven separate filing fees paid. Instead, Plaintiff filed only one motion to quash seven different subpoenas. “[P]ayment of filing fees is both mandatory and jurisdictional.” (Hu vs. Silgan Containers Corp. (1999) 70 Cal. App. 4^th 1261, 1269.)

Defendant is Ordered to pay the appropriate filing fees to the Clerk, forthwith.

If Empire can show the Court by a preponderance of the evidence at oral argument that the consumer notices and subpoenas complied with CCP 1985.3 then the motion to quash will be denied, otherwise it will be granted.

Case Number: ****4195 Hearing Date: September 30, 2022 Dept: E

Hearing Date: 9/30/2022 – 10:00am Case No: ****4195 Trial Date: UNSET (Appellate Stay) Case Name: DONARA GRIGORYAN v. ENTERPRISE RENT-A-CAR COMPANY OF LA ET AL.

TENTATIVE RULING ON MOTION TO COMPEL FURTHER ANSWERS TO DEPOSITION QUESTIONS

Proof of Service Timely Filed (CRC Rule 3.1300): ok 16/21 Court Days Lapsed (CCP 1005(b)): ok Proper Address: ok

Moving Party: Intervenor Defendant, Empire Fire and Marine Insurance Company (“Empire”)

Responding Party: Plaintiff, Donara Grigoryan

Opposition/Reply

“All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.” (CCP 1005(b).)

Here, the Opposition was submitted late. The Opposition was served by email on September 19, 2022, and nine court days before the instant hearing would have been September 16, 2022. However, it does not appear that the Reply addressed the fact that the Opposition was late because no Reply memo was submitted.

Technically, it does not appear that a Reply memo was submitted. On eCourt, two documents were submitted as Reply documents. On eCourt, one is titled “Reply Reply to Intervenor’s Motion to Compel Answer to Deposition Questions and to Permit Discovery,” and another is titled “Declaration Declaration of Carolyn McNiven in Support of Reply to Intervenor’s Motion to Compel Answers to Deposition Questions and to Permit Discovery.” Problematic with these two documents is that they both appear to be identical to each other, and they both appear to be the 205-page declaration of Carolyn Mcniven. This declaration contains an Exhibit A and an Exhibit B but considering the fact that no Reply memo was submitted, the Court has no context as to why these exhibits are being submitted.

RELIEF REQUESTED Empire Fire and Marine Insurance Company moves for an order under CCP 2025.480(a) compelling Plaintiff to provide deposition answers and to permit discovery about her physical condition and any new injuries on the grounds that Plaintiff failed to produce her recent medical records and answer questions about her post-July 2019 medical care at her June 6, 2022, deposition. Specifically, Empire moves to compel answers to the questions reflected in the following lines of the deposition transcript: Pages 49:22 – 52:21; 53:6 – 56:21; 80:24 – 83:20; 84:21 – 85:9; 90:12 – 94:15; 100:8 – 15; 121:4 – 9; and 123:4 – 17.

Empire also makes the instant motion pursuant to CCP 2024.050(a) and 128(a) on the grounds that an order re-opening discovery to allow Empire to question Plaintiff about her current physical condition and her most recent (June 2022) car accident and request production of documents and records concerning the accident and subsequent medical examinations and/or treatments is appropriate.

BACKGROUND On March 15, 2017, Plaintiff filed a complaint against Enterprise Rent-a-Car Company of Los Angeles, EAN Holdings LLC, and Izat Murataliev. Plaintiff alleged that she was a passenger in an automobile and Defendants negligently owned, entrusted, managed, maintained, drove, and operated their vehicle so as to cause said motor vehicle to collide with the automobile that Plaintiff was a passenger in.

On January 20, 2022, this Court granted Empire’s unopposed ex parte application for leave to file its Complaint-in-Intervention. Empire believes that the accident was the product of a staged accident insurance fraud scheme and as such could not rely on its insured (Murataliev’s Estate) to defend its interests in this case.

As to this motion, first, Empire wants Plaintiff to answer the questions that she should have answered at her June 6, 2022, deposition—namely, questions about the claimed lingering effects of the 2015 accident during the three-year period since her last deposition and any medical treatments, tests, or advice that she has obtained from treating providers during that period. Second, Empire wants to obtain updated discovery from Plaintiff (including a deposition and document requests) relating to Plaintiff’s present physical condition and any new treatments and injuries that she may have sustained during this three-year period, including on June 22, 2022, when she was in a two-car accident where one car apparently crossed over three lanes of traffic, hitting another.

PROCEDURAL Timeliness “This motion shall be made no later than 60 days after the completion of the record of the deposition and shall be accompanied by a meet and confer declaration under Section 2016.040.” (CCP 2025.480(b).)

Empire argues, “This motion to compel is also timely; the record of the June 6, 2022, deposition was completed on June 21, 2022, and thus this motion is filed within the required 60 days.” (Empire mot. p.14.) Opposition does not address whether the instant motion is timely or not with respect to the 60-days’ notice.

Empire does not explain how or why the record was complete on June 21, 2022. But, assuming the record was complete on June 21, 2022, the 60^th day thereafter would be Saturday, August 20, 2022. However, the instant motion was filed and served by email on Monday, August 22, 2022.

Moving party, at its Footnote 4 with respect to the 60-day requirement, cites 2025.450(a). The Court is uncertain as to why moving party references 2025.450(a) when the code section pertaining to compelling a further answer when deponent fails to answer a question and the 60-day timeliness issues are from 2025.480(a)-(b).

“Once any party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent. Notwithstanding subdivision (a), for good cause shown, the court may grant leave to take a subsequent deposition, and the parties, with the consent of any deponent who is not a party, may stipulate that a subsequent deposition be taken.” (CCP 2025.610. (a)-(b) [Emph. added].)]

Meet and Confer

The moving party met and conferred but was not able to reach an agreement with opposing counsel. (Decl. Linhardt 13-16.)

Depo Transcript “Not less than five days prior to the hearing on this motion, the moving party shall lodge with the court a certified copy of any parts of the stenographic transcript of the deposition that are relevant to the motion. If a deposition is recorded by audio or video technology, the moving party is required to lodge a certified copy of a transcript of any parts of the deposition that are relevant to the motion.” (CCP 2025.480(h).)

Here, moving party lodged the deposition transcript when filing the instant motion. The June 6, 2022, deposition transcript is attached as Exhibit F in the Linhardt Declaration. Moving party states the transcript was certified by the reporter on June 21, 2022. (Decl. Linhardt 10, Ex. F.)

Moving Party’s (Empire/Intervenor Defendant) Arguments Moving party argues as follows, “By failing to produce her recent medical records and answer questions about her post-July 2019 medical care at her June 6, 2022, deposition, Plaintiff flouted the clear orders of this Court and wasted the time of all counsel and (now) this Court. Empire thus has been forced to seek an order compelling Plaintiff to answer the questions that she refused to answer on June 6th and that were specifically permitted by this Court’s prior order, namely questions about her interactions during the approximately three years since her last deposition with medical providers concerning the injuries that she claims that she sustained in the July 2015 accident. She also should be compelled to describe (i) the medical records that she provided to Dr. Nourian in May or June 2022 in connection with her consultation with him (including MRI reports) and any other recent records of medical care or testing that she received since her July 2019 deposition, none of which she produced in discovery in this case, and (ii) what reasons, if any, she had for withholding these records.” (Empire Mot. p.13.)

Moving party further argues:

Defense counsel were well within their right to ask Plaintiff to describe what she was told by Dr. Nourian when she met with him the week before her July 6, 2022, deposition, including what he had to say about her treatments and tests before and after the July 2015 accident. Rather than allow Plaintiff to answer defense counsel’s questions, Plaintiff’s counsel instructed her not to answer. An attorney should not instruct a client not to answer questions during a deposition without a legal basis for doing so. (Cal. Attorney Guidelines 9(a)(7).)5 Here, Plaintiff’s counsel invoked the Court’s order when he instructed Plaintiff not to answer questions about her interactions with Dr. Nourian in May or June 2022. For example, in the following exchange:

Q: Did you discuss with Dr. Nourian details about your prior your previous accidents before 2015?

MR. MANUKYAN: That's again, inappropriate, counsel. Have you read the judge's order or am I the only one who's read it?

Q: I was actually the who did the ex-parte and –

MR. MANUKYAN: So then I'm sure you have read it. And that's inappropriate and I'm going to instruct her not to answer it. (Linhardt Decl., Ex. F, 53:12-21.)

In this example and in the other instances where Mr. Manukyan relied on the Court’s order as a purported basis for instructing his client not to answer questions about her interactions with Dr. Nourian or her current physical condition, the objections and instructions were manifestly improper as the Court’s order specifically contemplated defense counsel to question Plaintiff about her current condition and treatment since March 2019. (See Linhardt Decl., Ex. C [subsequently granted ex parte application requesting “limited discovery as to Plaintiff’s treatment since March 2019 and potential need for future treatment”]; Ex. D [notice of ruling and minute order granting ex parte application].) Indeed, the Court’s order specifically provided that the reopening of discovery included “a second limited deposition of plaintiff as to plaintiff’s current condition, treatment since March 2019 and plans for future treatment”; therefore, counsel’s reliance on the Court’s order was not wellgrounded. (Id., Ex. D.) Notably, Plaintiff’s counsel did not seek to suspend the deposition and then seek a protective order if indeed they believed that the questioning was outside the scope of the order. Not only was Plaintiff’s objection improper—as the Court’s order permitted the lines of questioning—the procedure of instructing the witness not to answer was likewise improper. The appropriate cure is for the Court to order Plaintiff to complete her deposition and answer fully and completely questions about her medical care—including treatments, testing, and consultations—since July 2019.

(Empire Mot. p.14-15.)

Empire also states as follows, “Empire is also seeking the Court’s permission to question Plaintiff at her deposition about her current physical condition and her most recent (June 2022) car accident and propound document requests upon Plaintiff seeking records concerning the accident and subsequent medical examinations and/or treatments. While arguably a further Court order regarding deposition questioning may not be strictly necessary given the expansiveness of the Court’s prior order—which permitted questioning on all her treatments after March 2019—Empire wishes to ensure that there is not future confusion and motion practice about its ability to probe Plaintiff about these areas. Empire also seeks permission to obtain records from Plaintiff about this latest accident and any treatments or examinations she has had since sustaining any injuries and any claims or damages attributable to it.” (Empire. Mot. p.16-17.)

Empire also argues, “…good cause exists for the Court to use its power and discretion to allow Empire to depose Plaintiff and obtain records from her about the new June 20, 2022, car accident. Further, as the accident occurred after Plaintiff’s deposition concluded, there is no way that Empire could have asked Plaintiff about it at her June 6, 2022, deposition. (Linhardt Decl., 11, Ex. G.) In addition, questions about this new accident are reasonably calculated to lead to the discovery of admissible evidence as they may elicit testimony constituting further proof that Plaintiff stages accidents for a living and is perpetrating a fraud on this court in the process.” (Empire Mot. p.18.)

Opposition (Plaintiff) Plaintiff argues as follows:

EMPIRE entered this action on January 20, 2022, after filing a Motion in Intervention (Exhibit A) in which it represented to the parties and this very Court that its intervention into the case would not enlarge the issues in this litigation. EMPIRE did not at that time file a motion to reopen discovery. Instead, the Estate of Murataliev went in Ex Parte seeking to reopen certain discovery. (Exhibit B). The Court granted the Estate of Murataliev’s motion seeking a “limited” second deposition of Plaintiff Grigoryan. The Court, however, identified that the Estate of Murataliev should be entitled to a limited deposition of Plaintiff “as to Plaintiff’s current condition, treatment since March 2019 and future treatment.” (Exhibit C). Notice of that order was served upon counsel for Empire. Instead of at that point seeking to modify the order to the extent sought, EMPIRE waited until Plaintiff’s second deposition on June 6, 2022, wherein it sought answers to questions outside the scope of that order, then waited another three months before bringing the instant motion seeking now a third deposition.

(Opp. p. 2.)

Plaintiff further argues that:

(1) Empire does not have a right to have this motion heard given that it is being brought after the motion hearing cutoff, (2) EMPIRE does not have standing to bring the instant motion given that the deposition notice was served by the Estate of Murataliev (3) EMPIRE is improperly seeking a motion for reconsideration of its June 10, 2022 Ex Parte Application (4) EMPIRE was dilatory in its seeking of the current discovery, (4) the discovery questions go beyond those in the Court’s prior Order, and (5) Empire and Defendants have subpoenaed the records of the July 2022 accident, set the deposition of Dr. Nourian, and taken the deposition of Dr. Mobin.

(Oppo. p.2.)

Reply

No Reply memo submitted, just a Reply declaration submitted.

LEGAL STANDARD “Unless otherwise limited by order of the court in accordance with this title, any 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, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” (CCP 2017.010.)

“Any party may obtain discovery . . . by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person, an organization such as a public or private corporation, a partnership, an association, or a governmental agency.” (CCP 2025.010.)

“If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent's control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.” (CCP 2025.480(a). See Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1015 n. 3 (the only proper basis to instruct a deponent to not answer a question is an objection based upon a privilege or manifestly irrelevant questions or questions designed to harass.))

“If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition.” (CCP 2025.480(i).)

ANALYSIS

Discovery Cutoff Plaintiff argues that since discovery has closed and it has not been reopened, Empire has no right to have its motion heard. Plaintiff argues as follows, “By simply hearing the motion to compel without first deciding whether discovery should be reopened for that purpose under all of the relevant circumstances, [a] trial court “transgresse[s] the confines of the applicable principles of law” (City of Sacramento v. Drew, supra, 207 Cal.App.3d at p. 1297, 255 Cal.Rptr. 704) and thereby abuse[s] its discretion. Id.” (Oppo. p.5.)

This citation is inapposite. Plaintiff cites a portion of City of Sacramento v. Drew that addresses how an appellate court may reverse a trial court decision denying attorneys’ fees under section 1021.5 for a prejudicial abuse of discretion. Nothing in the portion of the case cited by Plaintiff pertains to discovery.

The Court will briefly address relevant parts of prior Minute Orders in an attempt to clear up confusion as to the discovery cutoff.

December 28, 2021 Minute Order

The December 28, 2021, Minute Order stated, “The Court finds that discovery remains closed.”

January 19, 2022

On January 18, 2022, Defendant, Estate of Izat Murataliev filed an ex parte application for an order permitting further discovery and an order to continue trial.

In relevant part, the January 19, 2022, Minute Order stated as follows:

The Ex Parte Application FOR AN ORDER PERMITTING FURTHER DISCOVERY AND AN ORDER TO CONTINUE TRIAL; DECLARATION OF DAN A. EVERAKES; [PROPOSED] ORDER filed by Estate of Izat Murataliev, Decedent on 01/18/2022 is Granted. without prejudice as to items listed in ex parte application and allowing the Estate to designate 2 experts listed in the ex parte application.

The Ex Parte Application TO CLARIFY DECEMBER 28, 2021 RULING; ALTERNATIVELY, TO ALLOW MOTION FOR SUMMARY JUDGMENT TO BE HEARD WITHIN 30 DAYS OF TRIAL filed by ENTERPRISE RENT-A-CAR COMPANY OF LA, LLC, EAN HOLDINGS, LLC on 01/18/2022 is Denied.,as moot.

All parties are ordered to meet and confer forthwith regarding discovery issue raised by the Estate. All parties are also ordered to meet and confer regarding resolution of the case as a whole, commencing no later than 3/7/2022 and completed no later than 4/8/2022.

(Min. Order 1/19/2022.)

Further, attorneys for Defendant, Estate of Izat Murataliev, filed an unchallenged notice of ruling on the ex parte application on 1/19/2022 [this notice of ruling was only signed by Dennis S. Newitt, attorney for Estate of Izat Murataliev, and was not signed by the Court] that stated in relevant part:

Discovery is only re-opened as to the items listed in the Estate’s Ex Parte Application, which are the treating medical providers listed on Page 6 of the Estate’s Ex Parte Application, as well as issuing subpoenas to obtain plaintiff’s pre-accident films, radiological studies, and a second limited deposition of plaintiff as to plaintiff’s current condition, treatment since March 2019 and plans for future treatment. The Estate may also retain a billing expert and an expert radiologist. The designation of these retained experts shall be governed by the provisions of C.C.P. 2034 and the new trial date. Any other party may serve supplemental expert witness lists only as to the Estate’s designation pursuant to C.C.P. 2034.280 et seq.

If any party objects regarding discovery that the party feels is not permitted, and the parties cannot agree on the disputed discovery, the Court indicated it will rule on the issue if properly before the Court.

The Court further ordered the parties to meet and confer forthwith on undertaking and completing the discovery allowed to the Estate, in particular the depositions of treating health care providers. The parties are ordered to meet and confer regarding a resolution of the case as a whole beginning on March 7, 2022, and completed by April 8, 2022.

With these rulings, the Court indicated the Enterprise defendants’ Ex Parte Application regarding the summary judgment motion is moot and did not rule on that application. Defendant Estate was ordered to give notice.

(1/19/2022 Notice of Ruling on Ex Parte Applications signed by Dennis S. Newitt.)

June 13, 2022 Minute Order The June 13, 2022 Minute Order states in relevant part:

The Ex Parte Application for an order clarifying the discovery cutoff and expert dates as they relate to new parties filed by Empire Fire and Marine Insurance Company on 06/10/2022 is Granted in Part.

The Ex Parte Application PLAINTIFF DONARA GRIGORYANS NOTICE OF EX PARTE APPLICATION AND EX PARTE MOTION FOR PROTECTIVE ORDER TO QUASH DEFENDANTS CCP 2034 DEMAND filed by Donara Grigoryan on 06/09/2022 is Granted in Part.

The Estate of Izat Murataliev is allowed to designate the 2 expert witnesses they have already designated Empire Fire and Marine Insurance Company is allowed third party discovery limited to the 25 subpoenas they have issued.

Empire Fire and Marine Insurance company is also allowed to designate the expert witness they have already designated.

Ex Parte discovery is to proceed per the CCP, as indicated during the hearing. Fact discovery remains closed, except as stated herein.

(Min. Order 6/13/2022.)

July 13, 2022 Minute Order In relevant part, the 7/13/2022 Minute Order states:

The Ex Parte Application ALLOWING LIMITED THIRD-PARTY DOCUMENT DISCOVERY filed by Empire Fire and Marine Insurance Company on 07/12/2022 is Granted in Part.

Counsel for Empire Fire and Marine Insurance Company are ordered to e-file and e-serve on all parties no later than the close of business on 7/20/2022 a list of the 20 subpoenaed documents that they seek authority from the Court to issue. The Ex Parte is granted, subject to the list of subpoenas. Counsel are to indicate which are supplemental to prior subpoenas and which are new and also how it relates to the June 2022 accident of the Plaintiff or other newly discovered information.

Currently pending subpoenas are to be retracted and listed by 7/20/2022.

(Min. Order 7/13/2022.)

Here, the Court does not find that fact discovery is completely closed for Empire or any other party. Neither the minute orders nor notice of rulings say that when reopening discovery that the Court was ONLY opening discovery for the Estate. When the Court said a second limited deposition could be taken of Plaintiff as to Plaintiff’s current condition and treatment since March of 2019 and plans for future treatment, the Court only said this discovery can be done, not that only one party can initiate it.

Standing Plaintiff cites the following portion of 2025.450(a) and adds emphasis as follows, “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony...”

Plaintiff argues that since Empire was not the party that sought leave of Court, nor, since Empire was not the party that noticed the deposition and Estate of Murataliev was the party that sought leave of Court and noticed the deposition, Empire does not have standing to bring this motion to compel.

As a preliminary matter, the Court notes that Plaintiff cites the wrong statutory section. The section that Plaintiff cites – 2025.450(a) – pertains to compelling deponent’s attendance and testimony when deponent fails to appear. The relevant code section is CCP 2025.480(a), which pertains to when a deponent fails to answer a question.

CCP 2025.480(a) states, “If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.”

Notably, CCP 2025.480(a) does not have the same language with respect to “the party giving the notice…” that is seen in 2025.450(a). Instead, in 2025.480(a), the language used is “the party seeking discovery…”

Here, the moving party, Empire, is seeking discovery. Since Opposition did not cite any statutes or case law that indicates Empire lacks standing, the Court does not find Plaintiff’s argument as to lack of standing persuasive.

2024.050(a)

Plaintiff cites the following portion of CCP 2024.050(a), “On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. (b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following:

(1) The necessity and the reasons for the discovery.

(2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.

(3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.

(4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.”

Plaintiff then argues that the prejudice to Plaintiff in being subjected to a third deposition is severe and that this trial was already continued past the initial 5-year period and permitting any further discovery could potentially alter the trial date again could not be afforded.

Plaintiff further argues that while Empire alters its claims that this motion is brought merely to seek questions related to a June 2022 accident, Empire’s true intentions in seeking the third deposition are expressed in their previously filed Motion on June 10, 2022, in which they sought Plaintiff’s third deposition.

The Court does not find Plaintiff’s argument persuasive as Empire has adequately explained why the instant specific discovery is appropriate.

Motion for Reconsideration Plaintiff also argues that the instant motion is an improper motion for reconsideration of its June 10, 2022, ex parte application seeking the third deposition of Plaintiff.

Plaintiff argues that “On June 10, 2022, Empire filed an Ex Parte Application. In that Ex Parte Application Empire stated that it is seeking to take Plaintiff’s Third Deposition. The Ex Parte stated in pertinent part: ‘Murataliev also noticed Plaintiff's deposition, taken on June 6, 2022, relating to her current condition and treatment since March 2019. Plaintiff testified she had many office visits with different medical providers since October 2019, none of which were identified in Plaintiff's responses to Empire and no medical records were produced. Plaintiff's counsel objected to Empire asking Plaintiff any questions relating to the allegations in the Complaint in Intervention and instructed Plaintiff not to answer those questions taking the position that discovery was closed (before Empire was ever a party) … (Daly Decl., 12-15.).’ (Pl. Oppo. p.8-9.)

Therefore, Plaintiff argues that nearly three months after Empire filed the ex parte, Empire is essentially asking this Court to reconsider its prior motion.

Plaintiff further argues that Empire would have had to timely move under CCP 1008 for the Court to reconsider the prior motion, per CCP 1008(a), “within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

Plaintiff further states, “According to the plain language of the statute, a court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon “new or different facts, circumstances, or law. Gilberd v. AC Transit, 32 Cal.App.4th 1494, 1500.” (Oppo. p. 9.) Plaintiff thus argues Empire failed to make a timely motion for reconsideration.

While Plaintiff is correct about the procedure and timeline on a Motion for Reconsideration, Plaintiff’s characterization of the Motion now before the Court is inaccurate. Empire is asking the Court to enforce its prior Order, not to reconsider it.

A Third Deposition Plaintiff argues that Plaintiff has already had two depositions and a third deposition should not be permitted of Plaintiff.

Plaintiff argues as follows:

Code of Civil Procedure 2025.610(a) prohibits a party from taking more than one deposition of a person. The section amplifies that once a party has taken the deposition of a person, "neither the party who gave, nor any other party who has been served with a deposition notice ... may take a subsequent deposition of that deponent."

The exception is identified in CCP 2025.610 which requires a showing of good cause for taking of a second deposition. (See CCP 2025.610 (b)). While Empire was not a party at the time of the first deposition, they received notice for the second deposition and were present to inquire on the limited area permitted by the Court.

(Oppo. p. 10.)

Plaintiff also states that Empire already subpoenaed Ms. Grigoryan’s insurance records for the new accident thereby Empire would be able to obtain said discovery they seek without subjecting Plaintiff to yet another deposition.

The Court does not find this argument persuasive.

Scope of Questions at Second Deposition on June 6, 2022

Plaintiff argues that the questions that Empire seeks to compel from the second deposition are outside the scope of the Court’s order.

Plaintiff argues as follows:

The Court in its January 19, 2022 order allowed the Estate of Murataliev to obtain a limited second session of Plaintiff’s deposition. In that Order the Court did not permit prior accident discussions or prior injury discussions. The order was very clear. (Exhibit C). Yet, in deposing Plaintiff at her June 2022 deposition it was evident that Defense counsel and Empire were attempting to elicit from Plaintiff questions regarding her prior auto accidents specifically and what if at all her current physicians knew about the prior accidents.

This Court should not allow Empire to attempt to back door further questioning under the guise that it may have been something discussed by Plaintiff in a recent visit. Plaintiff went through hours of questioning regarding her recent physicians, her treatment, and her future treatment. Empire does not want to stop there it wants to poke further into what prior and subsequent accidents were discussed with these physicians. That should not be permitted by this Court. It is also significant that Defendant, Estate of Murataliev has already deposed all the physicians that Plaintiff sought treatment with after March 2019, namely Dr. Mobin and Defendant Estate of Murataliev also noticed but did not take the deposition of Dr. Nourian in this action. Any further questioning Defendant or Empire deems necessary were already asked of her current treating physician or can be asked at trial.

(Oppo. p. 10-11.)

The conduct of Plaintiff’s counsel at this second deposition of the Plaintiff has led to the necessity of a third session. Plaintiff’s counsel’s interpretation of this Court’s prior Orders re: discovery is far too narrow and is unsupported by the record. Further, Plaintiff’s counsel had no legal basis for instructing plaintiff not to answer several questions at the deposition. See, infra.

TENTATIVE RULING Generally, this Court agrees with Empire’s argument that Plaintiff can be compelled to answer questions about her post-March 2019 medical care, current physical condition, and most recent June 2022 car accident that allegedly occurred after the June 6, 2022, deposition.

However, Empire’s motion fails to state with specificity to which questions it wants answers compelled. Empire cites several sections with pages and lines, and for many of the referenced sections, there are multiple questions. Empire needs to clarify at the hearing as to which specific questions it is seeking further answers.

The Court agrees with Plaintiff that Empire cannot inquire into matters which occurred before March 2019; however, the Court notes that anything related to Plaintiff’s current medical condition, treatment after March 2019, and alleged June 2022 car accident that occurred after the deposition can be the subject of present inquiry.

Further, the Court agrees with Empire that it was improper for Plaintiff’s counsel to instruct Plaintiff to not answer the questions that were being asked during the deposition. (See Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1015 n. 3 (the only proper basis to instruct a deponent to not answer a question is an objection based upon a privilege or manifestly irrelevant questions or questions designed to harass.))

SANCTIONS

The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP 2025.480(j).)

The moving party did not request sanctions in their notice of motion, and the moving party did not state their hourly fee in its attached declaration. The only reference in moving party’s paper to sanctions is “Monetary sanctions are mandatory unless the Court finds that the deponent acted with substantial justification. (Cal. Civ. Proc. Code 2025.450(g)(1).) (Id.)” (Empire Mot. p. 14.) The code section that Empire refers to is not the correct section with respect to sanctions. Moving party referenced 2025.450, but the proper section would be 2025.480. Further, even in Empire’s moving papers, other than the citation above, Empire did not contain an argument on sanctions. Thus, the Court finds in its discretion that it would be unjust to award sanctions here.

JOINDER

On Monday, September 26, 2022, Defendants Enterprise Rent-A-Car Company of Los Angeles LLC, and EAN Holdings LLC filed a late joinder in support of Intervenor, Empire’s, motion to compel answers to June 6, 2022, deposition questions and to permit discovery about Plaintiff’s June 2022 accident for all the reasons set forth in Intervenor’s notice of motion, memorandum of points and authorities, and Reply. The joinder is immaterial in that this ruling applies to all parties.

Case Number: ****4195 Hearing Date: August 5, 2022 Dept: E

Hearing Date: 08/05/2022 – 8:30am Case No. ****4195 Trial Date: UNSET Case Name: DONARA GRIGORYAN v. ENTERPRISE RENT-A-CAR COMPANY OF LA ET AL

TENTATIVE RULING ON MOTION TO QUASH

Moving Party: Plaintiff, Donara Grigoryan and third-party Manvel Israelyan Responding Party: Intervenor Defendant, Empire Fire and Marine Insurance Company

Proof of Service Timely Filed (CRC Rule 3.1300): OK 16/21 Court Days Lapsed (CCP 1005(b)): OK Proper Address: OK

Oppo but no Reply

RELIEF REQUESTED Plaintiff and third-party Manvel Israelyan move the Court for an order quashing Defendant Intervenor’s, Empire Fire and Marine Insurance Company, subpoenas issued to the following facilities:

i. T-Mobile USA, Inc., seeking MANVEL ISRAYELYAN records

ii. ii. AT&T Mobility, LLC., seeking MANVEL ISRAYELYAN records

iii. iii. Verizon Cellco Partnership dba Verizon Wireless Subpoena ComplianceMail Out- New Jersey seeking Plaintiff’s records.

LEGAL STANDARD Under CCP 1985.3(b), Prior to the date called for in the subpoena duces tecum for the production of personal records, the subpoenaing party shall serve or cause to be served on the consumer whose records are being sought a copy of the subpoena duces tecum, of the affidavit supporting the issuance of the subpoena, if any, and of the notice described in subdivision (e), and proof of service as indicated in paragraph (1) of subdivision (c). This service shall be made as follows:

(1) To the consumer personally, or at his or her last known address, or in accordance with Chapter 5 (commencing with Section 1010) of Title 14 of Part 3, or, if he or she is a party, to his or her attorney of record. If the consumer is a minor, service shall be made on the minor’s parent, guardian, conservator, or similar fiduciary, or if one of them cannot be located with reasonable diligence, then service shall be made on any person having the care or control of the minor or with whom the minor resides or by whom the minor is employed, and on the minor if the minor is at least 12 years of age.

(2) Not less than 10 days prior to the date for production specified in the subpoena duces tecum, plus the additional time provided by Section 1013 if service is by mail.

(3) At least five days prior to service upon the custodian of the records, plus the additional time provided by Section 1013 if service is by mail.

ANALYSIS/TENTATIVE RULING Here, there is no competent proof of when and how the subpoenas or notices to consumers were served. Neither the subpoenas themselves nor the consumer notices have any proofs of service, so the Court does not know how or when they were served. Further, the subpoenaing party in opposition included paragraph 6 of Nylen’s declaration; however, it is not sufficient because there is no foundation for Nylen’s statement as to when and how the subpoenas and consumer notices were served.

Motion to quash all 3 subpoenas is GRANTED.

Case Number: ****4195 Hearing Date: April 15, 2022 Dept: E

Hearing Date: April 15, 2022

Case No: ****4195 Trial Date: August 1, 2022

Case Name: Donara Grigoryan v. Enterprise Rent-A-Car Company of Los Angeles, et al.

TENTATIVE RULINGS ON 2 MOTIONS FOR SUMMARY JUDGMENT

Moving Parties: (1) Defendant EAN Holding LLC

(2) Defendant Enterprise Rent-A-Car Company of Los Angeles

Responding Party: (1)/ (2) Plaintiff Donara Grigoryan

Proof of service timely filed (CRC 317(b)): ok

Correct Address (CCP 1013, 1013(a)): ok

16/+5-day lapse (CCP 1005): ok

RELIEF REQUESTED:

Defendants EAN Holding LLC and Enterprise Rent-A-Car Company of Los Angeles separately request the Court to enter summary judgment in their favor.

BACKGROUND:

Plaintiff Donara Grigoryan initiated this action on March 15, 2017 against Defendants Enterprise Rent-A-Car Company of Los Angeles (“ERAC-LA”), EAN Holding LLC (“EAN”), and Izat Murataliev (“Murataliev”), alleging the following causes of action: (1) motor vehicle negligence and (2) general negligence.

The Complaint alleges that, on July 21, 2015, Murataliev negligently cause the rental vehicle that he was driving to collide with the motor vehicle that Plaintiff was a passenger in. It further alleges that EAN and EAC-LA negligently entrusted the rental vehicle to Murataliev.

After Murataliev passed away, Plaintiff amended the Complaint by filing a Doe amendment on November 3, 2021, adding the Estate of Murataliev as a named defendant in order to proceed against Murataliev’s insurance policy issued by Empire Fire and Marine Insurance Company. On January 20, 2022, Empire Fire and Marine Insurance Company was granted leave to intervene on behalf of the Estate of Murataliev. On January 25, 2022, Plaintiff in Intervention Empire Fire and Marine Insurance Company filed a complaint in intervention alleging that Plaintiff and Murataliev were engaged in a fraudulent scheme.

On March 15, 2019, the Court denied ERAC-LA’s initial motion for summary judgment on the basis that there was a triable issue of material fact as to whether Murataliev possessed a valid license at the time he procured the rental vehicle. (See March 15, 2019 Minute Order.)

On January 28, 2022, EAN and ERAC-LA (collectively, “Movants”) separately filed motions for summary judgment based on evidence not before the Court in March 2019. On April 1, 2022, Plaintiff filed an omnibus opposition directed at both motions. On April 8, 2022, Movants separately filed their replies.

TENTATIVE RULING:

EAN’s Motion for Summary Judgment is GRANTED. ERAC-LA’s Motion for Summary Judgment is GRANTED.

ANALYSIS:

Evidentiary Objections

Plaintiff submits objections to evidence submitted in support of the instant motions for summary judgment. The Court overrules these objections in their entirety because the evidence objected to does not lack foundation and is neither conclusory nor speculative.

Movants submit separate but identical objections to the evidence Plaintiff relied on in support of her opposition to the instant motions for summary judgment. As such, the Court shall address them as if they were one set of objections. It is noted that these objections are not numerically ordered, nevertheless, they are sustained in their entirety because the evidence objected to is inadmissible hearsay and lacks foundation or personal knowledge.

Legal Standard

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. 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.” (Code Civ. Proc., 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

Discussion

As a preliminary matter, it is noted that the Movants’ motions for summary judgment are largely identical because they rely on the same evidence and arguments. Thus, unless otherwise indicated to the contrary, they shall be treated together.

A. Graves Amendment

In EAN’s motion for summary judgment, EAN claims that it cannot be held liable under the federal Graves Amendment because it is merely the owner of the rental vehicle, and it is ERAC-LA, a separate entity from EAN, that rents out the rental vehicle. (EAN’s motion at pg. 9; EAN’s UMF No. 12.) EAN further asserts that it never entered into the rental agreement with Murataliev and did not participate in the rental process. (EAN’s Motion at pg. 9; EAN’s UMF Nos. 13.) Instead, responsibility fell solely on ERAC-LA. (Id.) It is noted that Plaintiff’s omnibus opposition fails to fully address this argument.

The Graves Amendment provides in pertinent part:

An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if –

(1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and

(2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner).

(49 U.S.C. 30106(a).)

The Graves Amendment also contains the following “savings clause” that states:

(b) Financial responsibility laws. Nothing in this section supersedes the law of any State or political subdivision thereof—

(1) imposing financial responsibility or insurance standards on the owner of a motor vehicle for the privilege of registering and operating a motor vehicle; or

(2) imposing liability on business entities engaged in the trade or business of renting or leasing motor vehicles for failure to meet the financial responsibility or liability insurance requirements under State law.

(49 U.S.C. 30106(b).)

While no published California appellate court decision has addressed whether the Graves Amendment preempts California tort law, Vehicle Code 17150 and 17151, other jurisdictions have already adopted the federal law and concluded that it preempts their own state vicarious liability statutes for lessors or renters of vehicles. (See Garcia v. Vanguard Car Rental USA, Inc. (11th Cir. 2008) 540 F.3d 1242; see also Carton v. General Motors Acceptance Corp. (8th Cir. 2010) 611 F.3d 451; Green v. Toyota Motor CreditCorp. (E.D.N.Y. 2009) 605 F.Supp.2d 430.)

Traditionally, California courts have applied California Vehicle Code 17150 and 17151 in allowing plaintiff's recovery from lessors based on vicarious liability. Vehicle Code 17150 provides that “[e]very owner of a motor vehicle is liable and responsible for death or injury to person or property resulting from a negligent or wrongful act or omission in the operation of the motor vehicle … by any person using or operating the same with the permission, express or implied, of the owner.” However, under Vehicle Code 17151, where the basis for liability is permissive use and the relationship between the owner and the driver is not that of principal and agent or master and servant, the owner's liability is limited by statute to $15,000 per person, not to exceed $30,000 per accident.

The Graves Amendment's savings clause states that it does not supersede state laws imposing “financial responsibility” on the owner for the privilege of registering and operating a motor vehicle. (49 U.S.C. 30106(b)(1).) While the Graves Amendment does not define “financial responsibility” itself, the Eleventh Circuit interpreted that phrase to mean “state laws which impose insurance-like requirements on owners or operators of motor vehicles, but permit them to carry, in lieu of liability insurance per se, its financial equivalent, such as a bond or self-insurance.” (Garcia, supra, 540 F.3d at 1247.) The savings clause thus appears to “save” only such laws that impose insurance-like requirements and does not “save” state laws that impose vicarious liability on a rental car company—that is liability based on ownership, not direct liability based upon the company's own negligence—such as Vehicle Code 17150. Therefore, Vehicle Code 17150 and 17151 are not part of “financial responsibility law” within the meaning of the Graves Amendment.

Based on the evidence presented by EAN, the Court finds that EAN has met its burden on summary judgment to show that it is not liable for Plaintiff’s claims under the Graves Amendment because EAN was not involved in the rental process. Thus, the burden now shifts to Plaintiff to show that there is a triable issue of material fact. However, in opposition, Plaintiff merely states that EAN is liable as the owner of the vehicle and does not present any evidence to show that EAN rented the vehicle to Plaintiff.

Accordingly, the Court grants EAN’s motion for summary judgment on this ground.

B. Negligence/Negligent Entrustment

Both Movants argue that they are entitled to summary judgment on Plaintiff’s negligence and/or negligent entrustment causes of action because Plaintiff is unable to establish that they breached a duty of care owed to her.

In Flores v. Court of Appeal of California (2010) 188 Cal.App.4th 1055, the court addressed the question of rental cars and potential liability for rental car companies. Flores held that a rental car agency was not liable for negligent entrustment where the rental agency had complied with the requirements of Vehicle Code 14604, 14608 and 14609 and the customer did not appear impaired or otherwise unfit to drive at the time of rental. (Id. at 1070.) It also held that they were also not required to check DMV records to investigate the driving history that may be relevant to that license status. (Id. at 1067)

Pursuant to Vehicle Code Section 14608, it states:

(a) A person shall not rent a motor vehicle to another person unless both of the following requirements have been met:

(1) The person to whom the vehicle is rented is licensed under this code or is a nonresident who is licensed under the laws of the state or country of his or her residence.

(2) The person renting to another person has inspected the driver’s license of the person to whom the vehicle is to be rented and compared either the signature thereon with that of the person to whom the vehicle is to be rented or the photograph thereon with the person to whom the vehicle is to be rented.

Here, Movants present the following evidence. At the time of renting the vehicle, Murataliev and Mr. Harutyan Ajaryan presented facially valid driver’s license at the time of rental. (UMF Nos. 5-7, 11, 14-17.) ERAC-LA’s rental records indicate that Murataliev’s license information was obtained at the time of the rental. (UMF No. 5.) The document associated with the rental indicates that Mr. Ajaryan was the primary renter with Murataliev as the additional authorized driver. (UMF No. 3.) Murataliev could only have been added as an authorized driver if his driver’s license and date of birth information were entered into ERAC-LA’s records. (UMF nos. 3, 15-16.) Furthermore, there was no indication that Murataliev was impaired or otherwise unfit to drive the rental vehicle. (UMF Nos. 8-11.) Moreover, records from Kyrgyztan confirmed Murataliev’s driver’s license number as 000182357 and birthday as July 18, 1986, and these records matched ERAC-LA’s rental records. (UMF Nos. 3, 5, 15-17.) Additionally, ERAC-LA’s policy does not allow for full license numbers to be printed out for privacy reasons, but other records contained the full license number. (UMF Nos. 3, 5.)

Based on the evidence presented, the Court finds that Movants have met their burden in showing that they complied with Vehicle Code Section 14608 and therefore did not negligently entrust the rental vehicle to Murataliev. The burden now shifts to Plaintiff to show that there is at least one triable issue of material fact.

In opposition, Plaintiff first contends that Murataliev was a resident of California at the time of the collision, and therefore, Movants were required to verify that Murataliev had a valid California driver’s license. (Opposition at pg. 8.) However, this is unpersuasive because Plaintiff fails to show that Movants had a legal duty to investigate whether Murataliev was a California resident when he presented a facially valid Kyrgyzstan license.

Next, Plaintiff argues that ERAC-LA’s employee, Kendra Carter, failed to verify Murataliev’s international driver’s license and did not compare signatures as required by Vehicle Code 14608. (Opposition at pg. 9.) In reply, Movants contend that Plaintiff is misreading this code section to impose the requirement of verifying a signature on the driver’s licenses as well as inspecting the photograph thereon with the intended renter when the statute merely requires one of those actions to be done. (Replies at pp 3-4.) Movants highlight that Ms. Carter did testify that she compared the photograph on the international driver’s license to Murataliev at the time of the rental. (Replies at pp. 4; Bowlby Decl., Exh. B. at pg. 46:23-47:8.) The Court agrees that Defendant complied with the law because Vehicle Code 14608 imposes a disjunctive, not conjunctive, requirement when inspecting and verifying a driver’s license, and Plaintiff’s evidence clearly omitted testimony that showed that this requirement was satisfied.

Plaintiff also argues that it is disputed as to whether Murataliev’s license was ever verified because records from ERAC-LA show two different verifications dates for the rental information—July 20, 2015 and July 21, 2015. (Opposition at pg. 10.) However, this information alone is merely speculative. The operation of ERAC-LA’s system back-up does not create a reasonable inference that the information as to Murataliev’s license changed. Moreover, as stated above, Murataliev’s license information are consistent across documents, and even though in some documents the license number is partially hidden, this is done for privacy reasons.

Plaintiff then asserts that it is disputed as to whether Murataliev was fit to operate a vehicle because Ms. Carter does not recall speaking to him to verify this information. (Opposition at pg. 11.) However, this is unpersuasive because the Complaint does not allege that Murataliev was unfit to drive the rental vehicle or otherwise impaired. “It is well established that the pleadings determine the scope of relevant issues on a summary judgment motion.” (Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) Thus, this is not a material fact. (See California Rules of Court, Rule 3.1350(f)(3).)

Lastly, Plaintiff asserts that Movants failed to follow their own policy when renting a vehicle to Murataliev because their policy requires a renter with a foreign license in a language other than English must also present an International Driver’ Permit or suitable translation. Ms. Carter could not remember, two years after the fact, whether she required this of Murataliev. (Opposition at pp. 11-12.) However, this argument, too, is unpersuasive because internal policies do not establish an affirmative duty when contrary to statute or common law. (Fireman’s Fund Ins. Co. v. Security Pacific Nat. Bank (1978) 85 Cal.App.3d 797, 829.) In this instance, Vehicle Code 14608 merely requires the presentation of a facially valid driver’s license. That Defendant may not have followed their own procedures on this point neither creates legal liability here, nor supersedes the Vehicle Code.

Therefore, because Plaintiff has failed to present evidence sufficient to show that there is a triable issue of material fact, the Court finds that Plaintiff did not meet her burden of proof on these Motions once Defendant’s evidence caused the burden to shift to her. Accordingly, the Court grants summary judgment in favor of both Movants on this ground.

Conclusion

Movants’ motions for summary judgment are granted.

Case Number: ****4195    Hearing Date: January 24, 2020    Dept: E

MOTION TO BIFURCATE

[CCP ;598]

Date: 1/24/20

Case: Grigoryan, et al. v. Enterprise Rent-A-Car , et al. (BC 654195)

TENTATIVE RULING:

The Court in its discretion DENIES the Motion to Bifurcate by Defendants Enterprise Rent-A-Car Company of Los Angeles, LLC and EAN Holdings, LLC’s. The Court does not find that bifurcating the so-called Graves Amendment issue from other issues of liability and damages would promote expedition and economy any more than would a single trial on all issues. The Court is of the view that a jury should hear all the evidence in one trial in this matter and determine the extent of liability (and damages, if applicable) as to each defendant at the end of such trial. The Court does not find that the other issues of motor vehicle negligence and damages to be so disproportionate and separate from the issues of Graves Amendment applicability to warrant separate trials. Indeed, two trials present the material possibility that several witnesses would have to testify twice.