This case was last updated from Los Angeles County Superior Courts on 09/17/2020 at 01:49:01 (UTC).

FARLEY POLLARD ET AL VS NICHOLAS ABRAMOVIC ET AL

Case Summary

On 05/10/2018 FARLEY POLLARD filed a Personal Injury - Motor Vehicle lawsuit against NICHOLAS ABRAMOVIC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are JON R. TAKASUGI, HOLLY E. KENDIG and THOMAS D. LONG. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5748

  • Filing Date:

    05/10/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Motor Vehicle

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

JON R. TAKASUGI

HOLLY E. KENDIG

THOMAS D. LONG

 

Party Details

Plaintiffs and Petitioners

POLLARD FARLEY

POLLARD CHELSEA

Defendants and Respondents

ABRAMOVIC NICHOLAS

GROSCH KATJA

DOES 1 TO 25 INCLUSIVE

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

BALADY MICHELLE

WALSH DANIEL C.

KRUGER JACKIE ROSE

Defendant Attorneys

BARTHOLOMEW DEE

WALSH DANIEL CHRISTY

VELASTEGUI MARVIN PATRICIO

 

Court Documents

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE CONTINUANCE OF MOTION FOR SUMMARY JUDGMENT AND...) OF 04/16/2020

4/16/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE CONTINUANCE OF MOTION FOR SUMMARY JUDGMENT AND...) OF 04/16/2020

Notice - NOTICE OF RULING RE MOTION FOR SUMMARY JUDGMENT HEARING

4/20/2020: Notice - NOTICE OF RULING RE MOTION FOR SUMMARY JUDGMENT HEARING

Brief - BRIEF IN OPPOSITION OF MOTION FOR SUMMARY JUDGMENT

4/20/2020: Brief - BRIEF IN OPPOSITION OF MOTION FOR SUMMARY JUDGMENT

Minute Order - MINUTE ORDER (COURT ORDER RE TRIAL SETTING CONFERENCE)

4/3/2020: Minute Order - MINUTE ORDER (COURT ORDER RE TRIAL SETTING CONFERENCE)

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR RECONSIDERATION OF ORDER FOR JUDGMENT O...)

2/4/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR RECONSIDERATION OF ORDER FOR JUDGMENT O...)

Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

12/31/2019: Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

Notice of Ruling

11/13/2019: Notice of Ruling

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

9/19/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

Notice - NOTICE NOTICE OF ERRATA RE: PROOF OF SERVICE OF REQUEST FOR RELIEF FOR LATE FILING AND OPPOSITION TO DEFENDANTS'S MOTION FOR SUMMARY JUDGMENT

9/10/2019: Notice - NOTICE NOTICE OF ERRATA RE: PROOF OF SERVICE OF REQUEST FOR RELIEF FOR LATE FILING AND OPPOSITION TO DEFENDANTS'S MOTION FOR SUMMARY JUDGMENT

Proof of Personal Service -

10/4/2018: Proof of Personal Service -

Answer

2/26/2019: Answer

Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10))

4/5/2019: Minute Order - MINUTE ORDER (HEARING ON DEMURRER - WITH MOTION TO STRIKE (CCP 430.10))

Notice of Ruling

4/15/2019: Notice of Ruling

Answer

4/15/2019: Answer

Motion for Summary Judgment

6/19/2019: Motion for Summary Judgment

Separate Statement

6/19/2019: Separate Statement

Summons -

5/10/2018: Summons -

Complaint -

5/10/2018: Complaint -

32 More Documents Available

 

Docket Entries

  • 05/10/2021
  • Hearing05/10/2021 at 08:30 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Dismissal

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  • 09/16/2020
  • DocketNotice of Ruling; Filed by Nicholas Abramovic (Defendant); Katja Grosch (Defendant)

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  • 09/15/2020
  • Docketat 2:30 PM in Department 31, Thomas D. Long, Presiding; Hearing on Motion for Summary Judgment ((after reconsideration granted)) - Held - Motion Granted

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  • 09/15/2020
  • Docketat 2:30 PM in Department 31, Thomas D. Long, Presiding; Trial Setting Conference - Not Held - Taken Off Calendar by Court

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  • 09/15/2020
  • DocketMinute Order ( (Trial Setting Conference; Hearing on Motion for Summary Judgm...)); Filed by Clerk

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  • 07/24/2020
  • DocketObjection (DEFENDANTS? OBJECTION TO PLAINTIFFS? NOTICE OF RULING ON HEARING REGARDING DEFENDANTS? MOTION FOR SUMMARY JUDGMENT HEARD ON MARCH 13, 202); Filed by Nicholas Abramovic (Defendant); Katja Grosch (Defendant)

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  • 06/30/2020
  • Docketat 08:30 AM in Department 31, Thomas D. Long, Presiding; Trial Setting Conference - Not Held - Continued - Court's Motion

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  • 04/28/2020
  • Docketat 1:30 PM in Department 31, Thomas D. Long, Presiding; Trial Setting Conference - Not Held - Advanced and Continued - by Court

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  • 04/28/2020
  • Docketat 1:30 PM in Department 31, Thomas D. Long, Presiding; Hearing on Motion for Summary Judgment ((after reconsideration granted)) - Not Held - Continued - Court's Motion

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  • 04/20/2020
  • DocketBrief (in Opposition of Motion for Summary Judgment); Filed by Farley Pollard (Plaintiff); Chelsea Pollard (Plaintiff)

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48 More Docket Entries
  • 03/22/2019
  • DocketOpposition (to Defendants' Demurrer and Motion to Strike); Filed by Farley Pollard (Plaintiff); Chelsea Pollard (Plaintiff)

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  • 03/11/2019
  • DocketNotice (DEFENDANTS NOTICE OF HEARING ON DEMURRER AND DEMURRER TO COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF DEE BARTHOLOMEW; PROPOSED ORDER); Filed by Nicholas Abramovic (Defendant); Katja Grosch (Defendant)

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  • 03/11/2019
  • DocketMotion to Strike (not initial pleading); Filed by Nicholas Abramovic (Defendant); Katja Grosch (Defendant)

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  • 02/26/2019
  • DocketAnswer; Filed by Katja Grosch (Defendant)

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  • 10/04/2018
  • DocketProof of Service for Nicholas Abramovic; Filed by Farley Pollard (Plaintiff); Chelsea Pollard (Plaintiff)

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  • 08/29/2018
  • DocketPROOF OF SERVICE FOR KATJA GROSCH

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  • 08/29/2018
  • DocketProof of Service (not Summons and Complaint); Filed by Farley Pollard (Plaintiff); Chelsea Pollard (Plaintiff)

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  • 05/10/2018
  • DocketComplaint; Filed by Farley Pollard (Plaintiff); Chelsea Pollard (Plaintiff)

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  • 05/10/2018
  • DocketSummons; Filed by Farley Pollard (Plaintiff); Chelsea Pollard (Plaintiff)

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  • 05/10/2018
  • DocketComplaint

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Tentative Rulings

Case Number: BC705748    Hearing Date: September 15, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

FARLEY POLLARD, ET AL.,

Plaintiff(s),

vs.

NICHOLAS ABRAMOVIC, ET AL.,

Defendant(s).

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CASE NO: BC705748

[TENTATIVE] ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

Dept. 31

2:30 p.m.

September 15, 2020

 

  1. History of Summary Judgment Motion

    Defendants filed this motion for summary judgment on 6/19/19, setting it for hearing on 9/13/19. Defendants premise their motion on the contention that the parties fully settled all claims that form the basis of this lawsuit, and the doctrine of accord and satisfaction requires the dismissal of the case. The Court continued the hearing on the motion to 11/13/19 to permit Plaintiffs to file opposition to the motion.

    The Court, on 11/13/19, granted the motion for summary judgment. The Court found Defendants met their moving burden to show they are entitled to judgment as a matter of law, and because Plaintiffs failed to file opposition to the motion, they necessarily failed to raise a triable issue of material fact.

    On 2/04/20, the Court granted Plaintiffs’ motion for reconsideration of the motion for summary judgment. The Court found Plaintiffs adequately showed that a variety of procedural errors and miscommunications resulted in their failure to timely oppose the motion. The Court re-set the motion for hearing on 3/13/20 to permit Plaintiffs to substantively oppose the motion.

    On 3/13/20, the Court called the matter for re-hearing. The Court issued a tentative ruling granting the motion for summary judgment. At the conclusion of the hearing, the Court continued the matter and ordered the parties to brief the application of Civil Code §1526 and Commercial Code §3311 to this case. The Court rescheduled the hearing for 4/28/20 and ordered the parties to file briefs on or before 4/20/20. Subsequently, in light of the COVID-19 pandemic, the Court continued the hearing on the motion to 9/15/20.

  2. Motion for Summary Judgment

  1. Established Facts

    The Court, at the 3/13/20 hearing, made clear that it is considering certain enumerated facts to be undisputed for purposes of this motion, and that the parties were to brief the application of the law to those undisputed facts. The Court found that the parties did not have an explicit agreement to resolve their claims prior to receipt of the settlement checks, and Plaintiffs did not execute the release agreement sent with the checks. Defendants mailed the checks for policy limits with a proposed release agreement, and Plaintiffs’ attorney deposited the checks into the client trust account. The checks bear a notation that they are for “full and final” payment of all claims. Plaintiffs have not, to date, returned the money received from the checks.

  2. Civil Code §1526

    Plaintiffs argue Civil Code §1526 applies and precludes Defendants’ accord and satisfaction argument. The first issue is whether §1526 remains good law. Defendants argue it is not. Defendants cite numerous cases holding Commercial Code §3311 repealed §1526 by implication. In Woolridge v. J.L. Electric, Inc. (2002) 96 Cal.App.4th Supp. 52, the appellate court noted a conflict between the two code sections and asked the parties to brief the conflict. The parties did so.

    The court of appeals held:

    The statutes conflict, however, because under Civil Code section 1526 the creditor can “opt out” of an accord and satisfaction while still accepting the check as partial payment but California Uniform Commercial Code section 3311 offers no such choice.

    This statutory conflict has been noted by a number of commentators. (See 3 Witkin, Summary of Cal. Law (2001 supp.) Negotiable Instruments, § 196, p. 231; Hull & Sharma, Satisfaction Not Guaranteed: California's Conflicting Law on the Use of Accord and Satisfaction Checks (1999) 33 Loyola L.A. L.Rev. 1; Casey, Full Payment Condition Checks: California Statutory Conflict (1998) 20 T. Jefferson L.Rev. 97.) The weight of the commentary reaches the same conclusion as the court in Directors Guild, namely, that the two statutes cannot be harmonized, and therefore, California Uniform Commercial Code section 3311, having been enacted most recently, controls.

    Plaintiffs, in their supplemental brief, argue that §1526 “continues being statutory law” because the legislature left it alone when it enacted §3311. Plaintiffs cite no authority for their position, and certainly do not discuss or contrast the large body of law, including the citation above, detailed in Defendants’ brief. The Court finds §1526 does not apply, and §3311 controls. Notably, the Court cited Woolridge in its 3/13/20 tentative ruling, and therefore Plaintiffs were on notice of the Court’s inclination to rely on Woolridge; it was incumbent on Plaintiffs to provide contrary authority in their supplemental brief in order to establish §1526 remains controlling.

  3. Commercial Code §3311

    Plaintiffs also argue that, even if §3311 applies, there is no accord and satisfaction. §3311 provides:

    (a) If a person against whom a claim is asserted proves that (1) that person in good faith tendered an instrument to the claimant as full satisfaction of the claim, (2) the amount of the claim was unliquidated or subject to a bona fide dispute, and (3) the claimant obtained payment of the instrument, the following subdivisions apply.

    (b) Unless subdivision (c) applies, the claim is discharged if the person against whom the claim is asserted proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim.

    (c) Subject to subdivision (d), a claim is not discharged under subdivision (b) if either of the following applies:

    (1) The claimant, if an organization, proves that (A) within a reasonable time before the tender, the claimant sent a conspicuous statement to the person against whom the claim is asserted that communications concerning disputed debts, including an instrument tendered as full satisfaction of a debt, are to be sent to a designated person, office, or place, and (B) the instrument or accompanying communication was not received by that designated person, office, or place.

    (2) The claimant, whether or not an organization, proves that within 90 days after payment of the instrument, the claimant tendered repayment of the amount of the instrument to the person against whom the claim is asserted. This paragraph does not apply if the claimant is an organization that sent a statement complying with subparagraph (A) of paragraph (1).

    (d) A claim is discharged if the person against whom the claim is asserted proves that within a reasonable time before collection of the instrument was initiated, the claimant, or an agent of the claimant having direct responsibility with respect to the disputed obligation, knew that the instrument was tendered in full satisfaction of the claim.

    Plaintiffs’ first argument is that the check was not tendered in “good faith.” Plaintiffs contend this is so because a check should only be tendered after a release is executed. Plaintiffs cite no authority for this position, and it is contrary to established practices. It is quite common to mail a proposed settlement check with a release agreement to be executed. Notably, the check was for the full policy limits on Defendants’ policy, which is a very strong factor in favor of a showing of good faith. Absent contrary evidence, Defendant’s evidence is dispositive.

    Plaintiffs next argue that §3311 does not trump §1526, and §1526 should be given full effect. This argument was discussed above; again, there is no authority cited for Plaintiffs’ position, and their position is contrary to the law discussed in the Court’s prior tentative ruling and in Defendants’ brief.

    Plaintiffs next argue that the “good faith” standard in §3311 should be read in tandem with the 15-day notice requirement in §1526, such that the Court should require a 15-day notice in order to find an accord and satisfaction. Once again, no authority is set forth for this position. The Court cannot find that mailing a settlement check for the full policy limits with a proposed release agreement is not good faith.

    Plaintiffs further argue the checks were sent in an attempt to be sneaky. The Court finds the facts of the case do not support this conclusion.

    Plaintiffs’ final argument is that the debtor is not clearly identified in order for the creditor to know on whose behalf the payments were made. Plaintiffs do not meaningfully dispute the fact that the checks arrived with a proposed release and the parties were identified in all of the documents. This argument therefore also fails.

    Because each of Plaintiffs’ arguments in their supplemental brief fail, the motion for summary judgment is granted. Finally, §3311(c)(2) requires evidence of repayment of the monies received. As has been conclusively established, Plaintiffs have not repaid the monies received. For this additional reason, the motion for summary judgment is granted.

  4. Conclusion

    Defendants met their moving burden to show they are entitled to judgment as a matter of law. The burden therefore shifts to Plaintiffs to raise a triable issue of material fact. Plaintiffs failed to do so, and therefore the motion for summary judgment is granted. Defendants are ordered to give notice.

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

    Dated this 15th day of September, 2020

Hon. Thomas D. Long

Judge of the Superior Court

Case Number: BC705748    Hearing Date: March 13, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

FARLEY POLLARD, ET AL.,

Plaintiff(s),

vs.

NICHOLAS ABRAMOVIC, ET AL.,

Defendant(s).

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CASE NO: BC705748

[TENTATIVE] ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

Dept. 31

1:30 p.m.

March 13, 2020

 

  1. History of Summary Judgment Motion

    Defendants filed this motion for summary judgment on 6/19/19, setting it for hearing on 9/13/19. Defendants premise their motion on the contention that the parties fully settled all claims that form the basis of this lawsuit, and the doctrine of accord and satisfaction requires the dismissal of the case. The Court continued the hearing on the motion to 11/13/19 to permit Plaintiffs to file opposition to the motion.

    The Court, on 11/13/19, granted the motion for summary judgment. The Court found Defendants met their moving burden to show they are entitled to judgment as a matter of law, and because Plaintiffs failed to file opposition to the motion, they necessarily failed to raise a triable issue of material fact.

    On 2/04/20, the Court granted Plaintiffs’ motion for reconsideration of the motion for summary judgment. The Court found Plaintiffs adequately showed that a variety of procedural errors and miscommunications resulted in their failure to timely oppose the motion. The Court re-set the motion for hearing on 3/13/20 to permit Plaintiffs to substantively oppose the motion.

  2. Motion for Summary Judgment

  1. Papers Reviewed

    At this time, the Court has reviewed Defendants’ moving papers (filed on 6/19/19), Plaintiffs’ opposition papers (filed on 2/19/20), and Defendants’ reply papers (filed on 2/26/20).

  2. Burdens on Summary Judgment

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

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

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

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

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

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

  3. Moving Burden

    The Court previously found, in connection with the issue of the moving burden, the following:

    Defendants adequately show, in their moving papers, that their insurance company engaged in settlement negotiations with Plaintiffs after the accident that forms the basis of this case, and ultimately settled the claims for the total amount of $15,000 to each of the two plaintiffs. Defendants show that they actually paid the money per the claims, and that Plaintiffs signed releases making clear that the settlement was a full and final settlement of all claims relating to the accident.

  4. Opposition

    Plaintiffs, in opposition to the motion, argue the motion should be denied because:

  1. Sufficiency of Moving Declaration

    The moving papers are supported by the Declaration of Counsel, Dee Bartholomew, who declares Defendants were involved in an accident from which Plaintiffs claim bodily injuries; Plaintiffs are represented by Jackie Rose Kruger; Defendants, through GEICO, issued two checks in the amount of $15K each payable to Kruger for the benefit of Plaintiffs; Kruger cashed the checks, which specifically state “In full and final settlement of any and all claims” on their face.

    Plaintiffs argue Bartholomew lacks personal knowledge concerning the facts stated, and therefore Defendants are not entitled to judgment as a matter of law. Plaintiffs did not file evidentiary objections with their opposition papers; instead they stated purported objections in their responsive separate statement. This is not proper. CRC 3.1354.

    Bartholomew does not, in her moving declaration, specifically indicate how she has knowledge of all the facts stated. However, in reply Defendants make the reasonable assertion that Bartholomew was acting as staff counsel for GEICO at all relevant times, such that she has personal knowledge concerning the settlement and the checks. Importantly, Plaintiffs do not meaningfully dispute any of the facts in Bartholomew’s declaration; they appear to concede they received and cashed the checks, which are included as Exhibits B and C to the moving papers. The Court finds Bartholomew has personal knowledge concerning the facts relating to the settlement, and lack of personal knowledge does not support denial of the motion.

    Plaintiffs also mention redactions in the checks and argue the Court cannot grant summary judgment based on redacted checks. The Court has reviewed Exhibits B and C and finds all relevant information is included on the checks. Plaintiffs therefore failed to show any redactions support denial of the motion.

  2. Failure to Show Accord and Satisfaction

    Plaintiffs next argue there was no accord and satisfaction. They argue there was no accord and satisfaction because:

  1. Conclusion

    Defendants met their moving burden to show they are entitled to judgment as a matter of law. The burden therefore shifts to Plaintiffs to raise a triable issue of material fact. Plaintiffs failed to do so, and therefore the motion for summary judgment is granted. Defendants are ordered to give notice.

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

    Dated this 13th day of March, 2020

Hon. Thomas D. Long

Judge of the Superior Court

Case Number: BC705748    Hearing Date: February 04, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

FARLEY POLLARD, ET AL.,

Plaintiff(s),

vs.

NICHOLAS ABRAMOVIC, ET AL.,

Defendant(s).

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CASE NO: BC705748

[TENTATIVE] ORDER GRANTING MOTION FOR RECONSIDERATION

Dept. 31

1:30 p.m.

February 4, 2020

 

1. 11/13/19 Motion for Summary Judgment

Defendants filed their motion for summary judgment on 6/19/19, setting it for hearing on 9/13/19. Defendants premised their motion on the contention that the parties fully settled all claims that form the basis of this lawsuit, and the doctrine of accord and satisfaction requires the dismissal of the case.

On 11/13/19, the Court granted Defendants’ motion. The Court ruled as follows:

Defendants adequately show, in their moving papers, that their insurance company engaged in settlement negotiations with Plaintiffs after the accident that forms the basis of this case, and ultimately settled the claims for the total amount of $15,000 to each of the two plaintiffs. Defendants show that they actually paid the money per the claims, and that Plaintiffs signed releases making clear that the settlement was a full and final settlement of all claims relating to the accident.

Defendants met their moving burden to show they are entitled to judgment as a matter of law. The burden therefore shifts to Plaintiffs to raise a triable issue of material fact. This matter was originally set for hearing on 9/19/19. Prior to the hearing, Plaintiffs filed an opposition on two grounds. First, they argued they had not timely received the moving papers. Second, they argued they needed to conduct discovery in order to properly oppose the motion. The Court continued the hearing to 11/13/19 to permit Plaintiffs to complete any necessary discovery and file an opposition. The Court specifically ordered Plaintiffs to file any opposition to the motion at least two weeks prior to the continued hearing date. To date, the Court has not received opposition to the motion. Plaintiffs therefore necessarily failed to meet their burden to raise a triable issue of material fact, and the motion for summary judgment is granted.

Defendants are ordered to give notice.

2. Motion for Reconsideration

Plaintiffs move for reconsideration of the prior ruling, contending they were not aware the hearing on the summary judgment motion was going forward with sufficient time to prepare and file an opposition. Specifically, they contend (a) Defendants failed to give notice of the 9/19/19 ruling continuing the hearing, (b) a conversation between Plaintiffs’ attorney and Defendants’ attorney led Plaintiffs to believe the motion was off calendar, and (c) the Clerk told Plaintiffs the motion was off calendar and then later admitted this was a “coding error”; by the time the coding error was revealed, it was too late to file an opposition.

Summary judgment is, of course, a drastic remedy. Regardless of whether Defendants gave notice, as instructed, of the 9/19/19 ruling, it is clear Plaintiffs knew of the ruling; Plaintiffs submitted on the tentative ruling and admit they read the tentative ruling. The Court’s bigger concern is the confusion that appears to have arisen between Counsel concerning taking the motion off calendar. While Defense Counsel declares this never happened, the problem was exacerbated by confusion on the Court’s own calendar. The Court finds credible Plaintiffs’ attorney’s declaration that he confirmed the matter was off calendar by checking the court’s website and also speaking with the clerk. The Court also finds credible Plaintiffs’ attorney’s declaration that he again checked the court website, after communication with Defense Counsel, on 11/06/19 and saw the hearing was back on calendar, as well as the statement that he spoke with the Clerk on 11/07/19, and she confirmed there had been a coding error, which had been corrected.

Because the hearing was on 11/13/19, Plaintiffs could not have reasonably prepared an opposition to the motion on or after 11/07/19, and any opposition they did prepare would have been untimely. The Court finds the mistake on the court’s eCalendar system constitutes a “new fact or law” that supports reconsideration of the original ruling.

The motion for reconsideration is granted. The Court continues the hearing on the motion for summary judgment for one month, to Wednesday, 3/04/20 at 1:30 p.m. in Department 31 of the Spring Street Courthouse. Plaintiffs MUST SUBMIT a full and complete copy of any and all opposition papers upon which they wish to rely at least two weeks prior to the continued hearing date. Defendants must submit any reply documents at least one week prior to the hearing date. The parties must serve all documents via a method calculated to ensure delivery by the next business day (and also e-mail if Counsel agree to e-mail service), and must submit courtesy copies of the moving, opposition, and reply papers directly to the department at least one week prior to the continued hearing date (the Court no longer has any courtesy copies that were previously submitted).

Plaintiffs are ordered to give notice.

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

Case Number: BC705748    Hearing Date: November 13, 2019    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

FARLEY POLLARD, ET AL.,

Plaintiff(s),

vs.

NICHOLAS ABRAMOVIC, ET AL.,

Defendant(s).

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CASE NO: BC705748

[TENTATIVE] ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

Dept. 3

1:30 p.m.

November 13, 2019

 

Defendants filed this motion for summary judgment on 6/19/19, setting it for hearing on 9/13/19. Defendants premise their motion on the contention that the parties fully settled all claims that form the basis of this lawsuit, and the doctrine of accord and satisfaction requires the dismissal of the case.

Defendants adequately show, in their moving papers, that their insurance company engaged in settlement negotiations with Plaintiffs after the accident that forms the basis of this case, and ultimately settled the claims for the total amount of $15,000 to each of the two plaintiffs. Defendants show that they actually paid the money per the claims, and that Plaintiffs signed releases making clear that the settlement was a full and final settlement of all claims relating to the accident.

Defendants met their moving burden to show they are entitled to judgment as a matter of law. The burden therefore shifts to Plaintiffs to raise a triable issue of material fact. This matter was originally set for hearing on 9/19/19. Prior to the hearing, Plaintiffs filed an opposition on two grounds. First, they argued they had not timely received the moving papers. Second, they argued they needed to conduct discovery in order to properly oppose the motion. The Court continued the hearing to 11/13/19 to permit Plaintiffs to complete any necessary discovery and file an opposition. The Court specifically ordered Plaintiffs to file any opposition to the motion at least two weeks prior to the continued hearing date. To date, the Court has not received opposition to the motion. Plaintiffs therefore necessarily failed to meet their burden to raise a triable issue of material fact, and the motion for summary judgment is granted.

Defendants are ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.