FRANCISCO ROCHA VS ERIC CHAPMAN ET AL

Tentative Rulings

Case Number: ****4148    Hearing Date: January 07, 2021    Dept: M

Hearing Date: January 7, 2021

Moving Parties: Defendants, cross-complainants, and cross-defendants Ray Consulting Group Ventures and Mayan Patel

Responding Party: Defendant, cross-complainant, and cross-defendant Lemoli Avenue HOA [opposition withdrawn on January 5, 2021)

Motion for Determination of Good Faith Settlement

The court considered the moving, opposition, and reply papers and notice of withdrawal of opposition and request for dismissal of Lemoli’s cross-complaint as against moving parties.

RULING

The motion is GRANTED. The court ORDERS that in this action and all related actions, all present claims and cross-complaints of any kind for implied indemnity, equitable comparative contribution and apportionment or partial or comparative indemnity and apportionment based on comparative negligence or comparative fault against Ray Consulting Group Ventures and Mayan Patel be and are dismissed with prejudice. Any and all present and future claims against Ray Consulting Group Ventures and Mayan Patel by or on behalf of joint tortfeasors or co-obligors are barred.

BACKGROUND

On March 15, 2017, Francisco Rocha filed a complaint against Eric Chapman, Canterbury Knolls Construction, and Lemoli Avenue Homeowners Association for negligence. Plaintiff alleges that in September 2015, plaintiff was hired to work on the premises by defendants. From that time to the time of the incident, defendants provided plaintiff with the tools to complete the assigned tasks and the work performed was directed by defendants. Each defendant exercised its retained control over worksite safety conditions of the premises at the time of the incident. Defendants owed plaintiff a duty to use care in ordinary activities, including supplying safe equipment and a safe working environment for plaintiff to perform his work. On September 23, 2015, plaintiff was seriously injured at the premises as a result of performing his tasks on the remodeling and renovation project. Defendants breached their duties by instructing its workers, including plaintiff, to lift a large heavy beam up a ladder without the proper equipment, tools, or safety gear. Defendants are presumptively negligent for plaintiff’s damages for failure to carry the mandatory worker’s compensation insurance.

On August 23, 2018, Lemoli Avenue HOA filed a cross-complaint.

On August 13, 2019, Mayan Patel filed a cross-complaint.

On September 26, 2019, Ray Consulting Group Ventures, Inc. filed a cross-complaint.

DISCUSSION

Defendants Ray Consulting Group Ventures and Mayan Patel request an order that the settlement entered into by and among moving defendant and plaintiff Francisco Rocha was made in good faith.

In City of Grand View Terrace v. Superior Court (1987) 192 Cal. App. 3d 1251, 1261, the court provided the following guidance regarding a motion for a good faith settlement determination:

This court notes that of the hundreds of motions for good faith determination presented for trial court approval each year, the overwhelming majority are unopposed and granted summarily by the trial court. At the time of filing in many cases, the moving party does not know if a contest will develop. If each motion required a full recital by declaration or affidavit setting forth a complete factual response to all of the Tech-Bilt factors, literally thousands of attorney hours would be consumed and inch-thick motions would have to be read and considered by trial courts in an exercise which would waste valuable judicial and legal time and clients’ resources. . . . That is to say, when no one objects, the barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient.

If the good faith settlement is contested, section 877.6, subdivision (d), sets forth a workable ground rule for the hearing by placing the burden of proving the lack of good faith on the contesting party. Once there is a showing made by the settlor of the settlement, the burden of proof on the issue of good faith shifts to the nonsettlor who asserts that the settlement was not made in good faith. If contested, declarations by the nonsettlor should be filed which in many cases could require the moving party to file responsive counterdeclarations to negate the lack of good faith asserted by the nonsettling contesting party.

192 Cal. App. 3d 1251, 1260-1261 (citation omitted).

“[Code of Civil Procedure] Section 877.6 was enacted by the Legislature in 1980 to establish a statutory procedure for determining if a settlement by an alleged joint tortfeasor has been entered into in good faith and to provide a bar to claims of other alleged joint tortfeasors for equitable contribution or partial or comparative indemnity when good faith is shown.” IRM Corp. v. Carlson (1986) 179 Cal. App. 3d 94, 104.

CCP ; 877.6(a)(1) provides, in relevant part, that, on noticed motion, “[a]ny party to an action wherein it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or . . . and one or more alleged tortfeasors or co-obligors . . . .” “A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.” CCP ; 877.6(c). Although a determination that a settlement was in good faith does not discharge any other party from liability, “it shall reduce the claims against the others in the amount stipulated” by the settlement. CCP ; 877(a).

“The party asserting the lack of good faith shall have the burden of proof on that issue.” CCP ; 877.6(d).

In Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499, the California Supreme Court identified the following nonexclusive factors courts are to consider in determining if a settlement is in good faith under section 877.6: “a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants.”

The evaluation of whether a settlement was made in good faith is required to “be made on the basis of information available at the time of settlement.” Tech-Bilt, 38 Cal.3d at 499. “‘[A] defendant’s settlement figure must not be grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate the settling defendant’s liability to be.’ [Citation.]” Id. at 499.

“The party asserting the lack of good faith, who has the burden of proof on that issue (; 877.6, subd. (d)), should be permitted to demonstrate, if he can, that the settlement is so far ‘out of the ballpark’ in relation to these factors as to be inconsistent with the equitable objectives of the statute. Such a demonstration would establish that the proposed settlement was not a ‘settlement made in good faith’ within the terms of section 877.6.” Tech-Bilt, 38 Cal.3d at 499-500.

“Thus, Tech-Bilt held that in determining whether a settlement was made in good faith for purposes of section 877.6, a key factor a trial court should consider is whether the amount paid in settlement bears a reasonable relationship to the settlor’s proportionate share of liability. (Tech-Bilt, supra, 38 Cal.3d at pp. 499–500 . . . .) This is because one of the main goals of section 877.6 is ‘allocating costs equitably among multiple tortfeasors.’ (Tech-Bilt, supra, 38 Cal.3d at p. 502 . . . .).” TSI Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4^th 159, 166. “Accordingly, a court not only looks at the alleged tortfeasor's potential liability to the plaintiff, but it must also consider the culpability of the tortfeasor vis-à-vis other parties alleged to be responsible for the same injury. Potential liability for indemnity to a nonsettling defendant is an important consideration for the trial court in determining whether to approve a settlement by an alleged tortfeasor. [Citation.]” Id. at 166.

The court considered the Tech-Bilt factors as applied to the settlement between moving defendants and plaintiff.

First, as to a rough approximation of plaintiff’s total recovery, defendants assert that plaintiff seeks recovery of economic damages for his medical expenses (his left hand was severely injured), non-economic damages, and attorney’s fees, and that to date, although plaintiff has not identified his claimed medical expenses in discovery, his statement of damages states in excess of $75,000. In their reply, defendants note that plaintiff subsequently provided a supplemental response to discovery requests in February 2020 stating that he was not making a claim for loss of income or loss of earning capacity in this action.

Second, as to moving defendants’ proportionate liability, plaintiff alleges that he was hired by defendants and that defendants owed him a duty to supply safe equipment and a safe working environment and that defendants breached their duty by instructing plaintiff to lift a large, heavy beam up a ladder without the proper equipment, tools, or safety gear, and that negligence is presumed under Labor Code ;3708. Defendants explain that Ray Consulting owns Unit 13924B and that Ray Consulting had asked Eric Chapman to correct defects with Chapman’s construction of the several balconies of units owned by Ray Consulting. Moving defendants assert that they did not hire plaintiff or Chapman and did not issue any payments to them. Moving defendants did not provide plaintiff or Chapman with access to the property on the date of the incident or provide them with any tools, equipment, or instructions. They were also no present at the property and plaintiff never spoke with Ray Consulting or Patel. Defendants argue that a presumption of negligence does not apply because Labor Code ;3708 does not apply to residential employees. In any event, defendants argue, there is no evidence of liability on their part. Patel does not own the unit. Plaintiff does not allege any defects or dangerous condition with the property itself.

Third, as to the amount paid in settlement, the parties settled for $300,000.

Fourth, as to the allocation of settlement proceeds, there is only one plaintiff.

Fifth, the court recognizes that defendants should pay less in settlement than if they were found liable after a trial.

Sixth, as to financial condition and insurance policy limits of settling defendants, the parties settled for the policy limits. Defendants do not address their financial condition.

Seventh, as to whether there is evidence of collusion, fraud, or tortious conduct aimed to injure the interests of the other defendants or cross-defendants, defendants assert that there is none because the parties engaged in good faith negotiations. There is only one cross-complaint as against moving defendants and, defendants argue, cross-complainant has not provided any evidence as to liability and it dismissed the express indemnity claim. The court notes that on January 5, 2021, Lemoli submitted a request for dismissal of the cross-complaint as to Ray Consulting and Patel.

After considering the Tech-Bilt factors, the court finds and determines that the settlement entered into between moving defendants and plaintiff was made in good faith within the meaning of CCP ; 877.6. Therefore, the motion is GRANTED.

Moving defendants are ordered to give notice of the ruling.

Hearing Date: January 7, 2021

Moving Parties: Defendants/cross-complainants/cross-defendants Mayan Patel and Ray Consulting Group Ventures, Inc.

Responding Party: None

Motion for Terminating Sanctions, or in the alternative, for Issue and/or Evidence Sanctions against Lemoli Avenue HOA

The court considered the moving papers. No opposition was filed.

RULING

The motion is MOOT in light of the ruling on the motion for determination of good faith settlement and request for dismissal of the cross-complaint as against Ray Consulting and Mayan Patel.

BACKGROUND

On March 15, 2017, Francisco Rocha filed a complaint against Eric Chapman, Canterbury Knolls Construction, and Lemoli Avenue Homeowners Association for (1) negligence. Plaintiff alleges that in September 2015, plaintiff was hired to work on the premises by defendants. From that time to the time of the incident, defendants provided plaintiff with the tools to complete the assigned tasks and the work performed was directed by defendants. Each defendant exercised its retained control over worksite safety conditions of the premises at the time of the incident. Defendants owed plaintiff a duty to use care in ordinary activities, including supplying safe equipment and a safe working environment for plaintiff to perform his work. On September 23, 2015, plaintiff was seriously injured at the premises as a result of performing his tasks on the remodeling and renovation project. Defendants breached their duties by instructing its workers, including plaintiff, to lift a large heavy beam up a ladder without the proper equipment, tools, or safety gear. Defendants are presumptively negligent for plaintiff’s damages for failure to carry the mandatory worker’s compensation insurance.

On August 23, 2018, Lemoli Avenue HOA filed a cross-complaint.

On August 13, 2019, Mayan Patel filed a cross-complaint.

On September 26, 2019, Ray Consulting Group Ventures, Inc. filed a cross-complaint.

On September 18, 2020, the court granted Ray Consulting Group’s motions to compel further responses to form interrogatories, set one, request for production of documents, set one, and requests for admission, set one as against Lemoli Avenue HOA. The court ordered Lemoli to provide further responses within 45 days to Form Interrogatory No. 12.4 and 17.1, Request for Production of Documents Nos. 3-9, 12-24, and Requests for Admission Nos. 4, 14-17, 20-22, 26-27. The court denied sanctions.

LEGAL AUTHORITY

If a party fails to comply with a court order compelling discovery responses or attendance at a deposition, the court may impose monetary, issue, evidence, or terminating sanctions. CCP ; 2025.450(h) (depositions); ; 2030.290(c) (interrogatories); ; 2031.300(c) (demands for production of documents). CCP ; 2023.030 provides that, “[t]o the extent authorized by the chapter governing any particular discovery method . . . , the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose . . . [monetary, issue, evidence, or terminating] sanctions against anyone engaging in conduct that is a misuse of the discovery process . . . .” CCP ; 2023.010 provides that “[m]isuses of the discovery process include, but are not limited to, the following: . . . (d) Failing to respond or to submit to an authorized method of discovery. . . . (g) Disobeying a court order to provide discovery. . . .”

“The trial court may order a terminating sanction for discovery abuse ‘after considering the totality of the circumstances: [the] conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain the discovery.’” Los Defensores, Inc. v. Gomez (2014) 223 Cal. App. 4th 377, 390 (quoting Lang v. Hochman (2000) 77 Cal. App. 4th 1225, 1246). “Generally, ‘[a] decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.’” Los Defensores, 223 Cal. App. 4th at 390 (citation omitted).

“Under this standard, trial courts have properly imposed terminating sanctions when parties have willfully disobeyed one or more discovery orders.” Los Defensores, 223 Cal. App. 4th at 390 (citing Lang, 77 Cal. App. 4th at 1244-1246 (discussing cases)); see, e.g., Collisson & Kaplan v. Hartunian (1994) 21 Cal. App. 4th 1611, 1617-1622 (terminating sanctions imposed after defendants failed to comply with one court order to produce discovery); Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal. App. 3d 481, 491, disapproved on other grounds in Garcia v. McCutchen (1997) 16 Cal. 4th 469, 478, n. 4 (terminating sanctions imposed against plaintiff for failing to comply with a discovery order and for violating various discovery statutes).

DISCUSSION

Defendant/cross-complainant/cross-defendant Ray Consulting Group Ventures, Inc. requests terminating sanctions against Lemoli Avenue HOA, dismissing the Lemoli’s cross-complaint against Ray Consulting and Mayan Patel or, at a minimum, dismissing Lemoli’s claim for express indemnity against Ray Consulting and Patel. In the alternative, Ray Consulting requests issue and evidence sanctions. In addition, moving party requests monetary sanctions in the amount of $915.

The court notes that Lemoli dismissed its claim for express indemnity on August 28, 2020 and then the cross-complaint on January 5, 2021. Further, in the ruling on the motion for determination of good faith settlement, Lemoli’s cross-complaint was dismissed.

The motion is thus MOOT.

Moving defendants are ordered to give notice of the ruling.

Case Number: ****4148    Hearing Date: September 18, 2020    Dept: M

Hearing Date: September 18, 2020

Moving Parties: Defendant Ray Consulting Group Ventures, Inc.

Responding Party: Defendant Lemoli Avenue HOA

(1) Motion to Compel Further Responses to Form Interrogatories, Set One

(2) Motion to Compel Further Responses to Request for Production, Set One

(3) Motion to Compel Further Responses to Request for Admissions, Set One

The court considered the moving, Lemoli’s counsel’s declaration, and reply papers.

RULING

The motions are GRANTED. Defendant Lemoli Avenue HOA is ordered to respond further to defendant Ray Consulting Group Ventures’ Form Interrogatories, set one, Nos. 12.4 and 17.1, Request for Production, set one, Nos. 3-9, 12-24, and Request for Admissions, set one, Nos. 4, 14-17, 20-22, 26-27, within 45 days.

BACKGROUND

On March 15, 2017, Francisco Rocha filed a complaint against Eric Chapman, Canterbury Knolls Construction, and Lemoli Avenue Homeowners Association for (1) negligence. Plaintiff alleges that in September 2015, plaintiff was hired to work on the premises by defendants. From that time to the time of the incident, defendants provided plaintiff with the tools to complete the assigned tasks and the work performed was directed by defendants. Each defendant exercised its retained control over worksite safety conditions of the premises at the time of the incident. Defendants owed plaintiff a duty to use care in ordinary activities, including supplying safe equipment and a safe working environment for plaintiff to perform his work. On September 23, 2015, plaintiff was seriously injured at the premises as a result of performing his tasks on the remodeling and renovation project. Defendants breached their duties by instructing its workers, including plaintiff, to lift a large heavy beam up a ladder without the proper equipment, tools, or safety gear. Defendants are presumptively negligent for plaintiff’s damages for failure to carry the mandatory worker’s compensation insurance.

On August 23, 2018, Lemoli Avenue HOA filed a cross-complaint.

On August 13, 2019, Mayan Patel filed a cross-complaint.

On September 26, 2019, Ray Consulting Group Ventures, Inc. filed a cross-complaint.

LEGAL AUTHORITY

45-Day Rule: This motion must be served within 45 days after service of the response in question (extended if served by mail, overnight delivery, or fax; see CCP ;1013); otherwise, the demanding party waives the right to compel any further response to the CCP ;2031.010 demand. CCP ;;2031.310(c), 2016.050; see Sperber v. Robinson (1994) 26 Cal. App. 4th 736, 745. The 45-day time limit is mandatory and jurisdictional. Sexton v. Superior Court (1997) 58 Cal. App. 4th 1403, 1410. The parties, however, can also agree in writing on a specific later date by which to file the motion to compel. CCP ;2031.310(c).

Meet-and-Confer Requirement: The motion to compel further responses must be accompanied by a declaration showing “a reasonable and good faith attempt” to resolve the issues outside of court (so-called “meet and confer”). CCP ;;2016.040, 2031.310(b)(2).

Separate Statement: Any motion involving the content of a discovery request or the responses to such a request shall be accompanied by a separate statement. This includes a motion to compel further responses to demand for inspection of documents or tangible things. CRC Rule 3.1020(a)(3).

Interrogatories

CCP ;2030.300 states: “(a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. . . . (3) An objection to an interrogatory is without merit or too general. (b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. (c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories. . . .”

Request for Production of Documents

On receipt of a response to an inspection demand, the demanding party may move for an order compelling further responses to the demand if the demanding party deems that any of the following apply: (1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection in the response is without merit or too general. CCP ;2031.310(a). A statement of compliance shall state that the production, inspection, and related activity demanded will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production. CCP ;2031.220. “A representation of inability to comply with [a] particular demand for inspection . . . shall affirm that a diligent search and reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. This statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” CCP ;2031.230.

A motion to compel further response to requests for production “shall set forth specific facts showing good cause justifying the discovery sought by the inspection demand.” CCP ; 2031.310(b)(1). “To establish ‘good cause,’ the burden is on the moving party to show both: [1] Relevance to the subject matter (e.g., how the information in the documents would tend to prove or disprove some issue in the case); and [2] Specific facts justifying discovery (e.g., why such information is necessary for trial preparation or to prevent surprise at trial). The fact that there is no alternative source for the information sought is an important factor in establishing ‘good cause’ for inspection. But it is not essential in every case.” Weil & Brown, Civil Procedure Before Trial, 8:1495.6 (citations omitted). “Declarations are generally used to show the requisite ‘good cause’ for an order to compel inspection. The declarations must contain ‘specific facts’ rather than mere conclusions.” Id. at 8:1495.7 (citation omitted). “The declarations may be on information and belief, if necessary. However, in such cases, the ‘specific facts’ supporting such information and belief (the sources of the information) must also be alleged.” Id. at 8:1495.8 (citation omitted). “Most declarations are made by the attorney for the moving party, who is usually more familiar with the relevancy and ‘specific facts’ constituting ‘good cause’ for inspection.” Id. at 8:1495.9.

“If ‘good cause’ is shown by the moving party, the burden is then on the responding party to justify any objections made to document disclosure (the same as on motions to compel answers to interrogatories or deposition questions. . . ).” Id. at 8:1496 (citation omitted).

DISCUSSION

Defendant Ray Consulting Group Ventures, Inc. requests that the court order defendant Lemoli Avenue HOA to respond further to:

- Form Interrogatories, Set One, Nos. 12.4 and 17.1

- Request for Production, Set One, Nos. 3-9, 12-24

- Request for Admissions, Set One, Nos. 4, 14-17, 20-22, 26-27.

On November 5, 2019, defendant Ray Consulting served discovery requests on Lemoli. Responses were due by December 10, 2019. At Lemoli’s request, Ray Consulting agreed to provide several extensions to December 26, 2019, January 2, 2020, and then to January 7, 2020. When no responses were provided, Ray Consulting provided another extension to January 13. No responses were provided. On January 21, 2020, Ray Consulting filed motions to compel. On January 28, 2020, Lemoli served verified responses. On February 28, 2020, defense counsel sent a meet and confer letter to Lemoli’s counsel requesting further responses. Having received no response, on March 12, 2020, defense counsel sent a follow up email. Defense counsel did not receive any communications. Defendant filed its motions on March 16, 2020.

In a declaration, Lemoli’s counsel asserts that counsel Lewis Brisbois filed a notice of association of counsel on July 28, 2020 and is in the process of substituting in as Lemoli’s sole counsel of record. Counsel states that co-counsel Veatch Carlson has been largely unresponsive to Lewis Brisbois’ repeated requests for the complete files in this matter. Counsel states that Lemoli is thus unable to prepare an opposition and that counsel would likely not be able to obtain the documents and, if warranted, prepare the supplemental responses by the hearing dates. Counsel requests a continuance to January 2020.

The court denies the request for a continuance. The motions were filed in March 2020, with a hearing date for September 2020. Lemoli’s objections were waived by its untimely responses.

As to the form interrogatories, Lemoli’s responses are incomplete and deficient as stated in the separate statement.

As to the request for production of documents, Lemoli’s objections were waived for failing to timely serve responses. Lemoli’s responses do not comply with CCP ;2031.230 by specifying the reason for the inability to comply. Further, they are deficient as stated in the separate statement.

As to the request for admissions, Lemoli’s objections were waived. Lemoli’s answers are evasive and incomplete. Defendant Ray Consulting asserts that a claimed inability to admit or deny is disingenuous because Lemoli has the information to respond.

The motions are therefore GRANTED.

Sanctions

Under CCP ; 2023.030(a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction 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.” Under CCP ; 2023.010, an example of the misuse of the discovery process is “(d) Failing to respond or to submit to an authorized method of discovery.”

Sanctions are mandatory in connection with motions to compel further responses against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” CCP ; ;2030.300(d), 2031.310(h).

Cal. Rules of Court, Rule 3.1348(a) states: “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

Defendant Ray Consulting requests sanctions against defendant Lemoli and/or its attorneys in the total amount $1,605. The court denies the request for sanctions.

Moving party is ordered to give notice of the ruling.

Case Number: ****4148    Hearing Date: July 29, 2020    Dept: M

Hearing Date: July 29, 2020

Moving Parties: Defendant Ken Gerstenfeld (as Doe 5)

Responding Party: None

Motion for Relief from Default

The court considered the moving papers.

RULING

The motion is GRANTED. The answer is deemed filed.

BACKGROUND

On March 15, 2017, Francisco Rocha filed a complaint against Eric Chapman, Canterbury Knolls Construction, and Lemoli Avenue Homeowners Association for (1) negligence. Plaintiff alleges that in September 2015, plaintiff was hired to work on the premises by defendants. From that time to the time of the incident, defendants provided plaintiff with the tools to complete the assigned tasks and the work performed was directed by defendants. Each defendant exercised its retained control over worksite safety conditions of the premises at the time of the incident. Defendants owed plaintiff a duty to use care in ordinary activities, including supplying safe equipment and a safe working environment for plaintiff to perform his work. On September 23, 2015, plaintiff was seriously injured at the premises as a result of performing his tasks on the remodeling and renovation project. Defendants breached their duties by instructing its workers, including plaintiff, to lift a large heavy beam up a ladder without the proper equipment, tools, or safety gear. Defendants are presumptively negligent for plaintiff’s damages for failure to carry the mandatory worker’s compensation insurance.

On August 23, 2018, Lemoli Avenue HOA filed a cross-complaint.

On August 13, 2019, Mayan Patel filed a cross-complaint.

On September 26, 2019, Ray Consulting Group Ventures, Inc. filed a cross-complaint.

On January 24, 2020, a default was entered against Ken Gerstenfeld (Doe 5).

LEGAL AUTHORITY

“The court may, upon terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” CCP ; 473(b).

“When a default is the attorney’s fault the court must grant a timely noticed motion for relief. The only limitation is when the court finds the default was not in fact the attorney’s fault . . . .” Rogalski v. Nabers Cadillac (1992) 11 Cal. App. 4th 816, 821 (citation omitted). In addition, to obtain mandatory relief under CCP section 473(b), the attorney’s mistake, neglect, surprise or inadvertence must be the proximate cause of the entry. See Milton v. Perceptual Development Corp. (1997) 53 Cal. App. 4th 861, 867 (“The clause in section 473, subdivision (b) which mandates the court to grant relief unless it finds that the default was not in fact caused by lawyer error is not only a credibility testing device. It is also ‘a causation testing device.’” (Citation omitted)).

“[T]he policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.” Fasuyi v. Permatex, Inc. (2008) 167 Cal. App. 4th 681, 697 (citations and internal quotations omitted).

DISCUSSION

Defendant Ken Gerstenfeld requests that the court set aside the default entered against him on January 24, 2020, pursuant to CCP ;473.

In a declaration in support, Ken Gerstenfeld states that he was a principal in an entity “by the name of S/K something.” He believes it was an S corporation that was building 14 townhomes leading up to 2008, which were the subject properties. He states that they sold all the properties at a huge loss and dissolved the corporation in about 2009. He states, “we had nothing to do with the properties after 2009.” He states further that “[w]e were trying to clear up the misunderstanding of the plaintiff and had discussions with them and we understood they were going to dismiss us. I was relying on legal advice from attorney Donald Disimone in this matter. He did not tell me to file an answer. I believed it was all handled.” According to counsel’s declaration, he attended a deposition with Gerstenfeld in this matter and spoke to opposing counsel. He states: “A few emails etc. were sent. It was my understanding that the attorney was going to dismiss the case against Ken Gerstenfeld because it had no basis in law or fact. We supplied information and I just presumed that was the end of it. . . . In hindsight, I should have just had the answer filed instead of relying upon and trusting an attorney to dismiss it.”

The court finds that defendant has met his burden of showing that the default was the result of defense counsel’s mistake, inadvertence, surprise, and/or neglect. Relief is mandatory under CCP ;473(b).

The motion is GRANTED.

Moving defendant is ordered to give notice of the motion.

Case Number: ****4148    Hearing Date: July 28, 2020    Dept: M

Hearing Date: July 29, 2020

Moving Parties: Defendant Ken Gerstenfeld (as Doe 5)

Responding Party: None

Motion for Relief from Default

The court considered the moving papers.

RULING

The motion is GRANTED. The answer is deemed filed.

BACKGROUND

On March 15, 2017, Francisco Rocha filed a complaint against Eric Chapman, Canterbury Knolls Construction, and Lemoli Avenue Homeowners Association for (1) negligence. Plaintiff alleges that in September 2015, plaintiff was hired to work on the premises by defendants. From that time to the time of the incident, defendants provided plaintiff with the tools to complete the assigned tasks and the work performed was directed by defendants. Each defendant exercised its retained control over worksite safety conditions of the premises at the time of the incident. Defendants owed plaintiff a duty to use care in ordinary activities, including supplying safe equipment and a safe working environment for plaintiff to perform his work. On September 23, 2015, plaintiff was seriously injured at the premises as a result of performing his tasks on the remodeling and renovation project. Defendants breached their duties by instructing its workers, including plaintiff, to lift a large heavy beam up a ladder without the proper equipment, tools, or safety gear. Defendants are presumptively negligent for plaintiff’s damages for failure to carry the mandatory worker’s compensation insurance.

On August 23, 2018, Lemoli Avenue HOA filed a cross-complaint.

On August 13, 2019, Mayan Patel filed a cross-complaint.

On September 26, 2019, Ray Consulting Group Ventures, Inc. filed a cross-complaint.

On January 24, 2020, a default was entered against Ken Gerstenfeld (Doe 5).

LEGAL AUTHORITY

“The court may, upon terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.” CCP ; 473(b).

“When a default is the attorney’s fault the court must grant a timely noticed motion for relief. The only limitation is when the court finds the default was not in fact the attorney’s fault . . . .” Rogalski v. Nabers Cadillac (1992) 11 Cal. App. 4th 816, 821 (citation omitted). In addition, to obtain mandatory relief under CCP section 473(b), the attorney’s mistake, neglect, surprise or inadvertence must be the proximate cause of the entry. See Milton v. Perceptual Development Corp. (1997) 53 Cal. App. 4th 861, 867 (“The clause in section 473, subdivision (b) which mandates the court to grant relief unless it finds that the default was not in fact caused by lawyer error is not only a credibility testing device. It is also ‘a causation testing device.’” (Citation omitted)).

“[T]he policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.” Fasuyi v. Permatex, Inc. (2008) 167 Cal. App. 4th 681, 697 (citations and internal quotations omitted).

DISCUSSION

Defendant Ken Gerstenfeld requests that the court set aside the default entered against him on January 24, 2020, pursuant to CCP ;473.

In a declaration in support, Ken Gerstenfeld states that he was a principal in an entity “by the name of S/K something.” He believes it was an S corporation that was building 14 townhomes leading up to 2008, which were the subject properties. He states that they sold all the properties at a huge loss and dissolved the corporation in about 2009. He states, “we had nothing to do with the properties after 2009.” He states further that “[w]e were trying to clear up the misunderstanding of the plaintiff and had discussions with them and we understood they were going to dismiss us. I was relying on legal advice from attorney Donald Disimone in this matter. He did not tell me to file an answer. I believed it was all handled.” According to counsel’s declaration, he attended a deposition with Gerstenfeld in this matter and spoke to opposing counsel. He states: “A few emails etc. were sent. It was my understanding that the attorney was going to dismiss the case against Ken Gerstenfeld because it had no basis in law or fact. We supplied information and I just presumed that was the end of it. . . . In hindsight, I should have just had the answer filed instead of relying upon and trusting an attorney to dismiss it.”

The court finds that defendant has met his burden of showing that the default was the result of defense counsel’s mistake, inadvertence, surprise, and/or neglect. Relief is mandatory under CCP ;473(b).

The motion is GRANTED.

Moving defendant is ordered to give notice of the motion.

Case Number: ****4148    Hearing Date: June 23, 2020    Dept: SWM

Hearing Date: June 23, 2020

Moving Parties: Defendants, cross-complainants, and cross-defendants Mayan Patel and Ray Consulting Group Ventures, Inc.

Responding Party: None

Motion to Compel Eric Chapman, Sr. to Attend, Testify, and Produce Documents at Deposition

The court considered the moving papers.

RULING

The motion is GRANTED. The court orders Eric Chapman, Sr. to appear for his deposition and to produce documents in response to the Mayan Patel and Ray Consulting Group Ventures, Inc.’s deposition subpoena served January 12, 2020, within 30 days at a mutually agreeable place and time.

BACKGROUND

On March 15, 2017, Francisco Rocha filed a complaint against Eric Chapman, Canterbury Knolls Construction, and Lemoli Avenue Homeowners Association for (1) negligence. Plaintiff alleges that in September 2015, plaintiff was hired to work on the premises by defendants. From that time to the time of the incident, defendants provided plaintiff with the tools to complete the assigned tasks and the work performed was directed by defendants. Each defendant exercised its retained control over worksite safety conditions of the premises at the time of the incident. Defendants owed plaintiff a duty to use care in ordinary activities, including supplying safe equipment and a safe working environment for plaintiff to perform his work. On September 23, 2015, plaintiff was seriously injured at the premises as a result of performing his tasks on the remodeling and renovation project. Defendants breached their duties by instructing its workers, including plaintiff, to lift a large heavy beam up a ladder without the proper equipment, tools, or safety gear. Defendants are presumptively negligent for plaintiff’s damages for failure to carry the mandatory worker’s compensation insurance.

On August 23, 2018, Lemoli Avenue HOA filed a cross-complaint.

On August 13, 2019, Mayan Patel filed a cross-complaint.

On September 26, 2019, Ray Consulting Group Ventures, Inc. filed a cross-complaint.

LEGAL AUTHORITY

CCP ;2025.450(a) provides: “If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, . . , 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 . . . described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document . . . described in the deposition notice.”

CCP ;2025.450(b) provides, “A motion under subdivision (a) shall comply with both of the following:

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”

CCP ;1987.1(a) states, “[i]f a subpoena requires the attendance of a witness or the production of books, documents, 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.”

“[U]pon motion reasonably made by the party, judges may rule upon motions for quashing, modifying or compelling compliance with, subpoenas.” Lee v. Swansboro Country Property Owners Ass'n (2007) 151 Cal. App. 4th 575, 582-83. Either the nonparty witness who has been subpoenaed or any party to the action may challenge the deposition subpoena. Weil & Brown, Civ. Proc. Before Trial, ¶ 8:597.

DISCUSSION

Defendants, cross-complainants, and cross-defendants Mayan Patel and Ray Consulting Group Ventures, Inc. request an order compelling Eric Chapman, Sr. to attend, testify, and to produce documents at deposition, pursuant to a deposition subpoena.

Moving parties explain that this matter arises out of injuries plaintiff sustained while working for defendants and cross-defendants Eric Chapman, Sr. and Chapman’s company, Canterbury Knolls Construction. Chapman and Canterbury Knolls Construction have not appeared in this matter. On December 23, 2019, a default was entered against Chapman on moving defendants’ cross-complaint.

On December 27, 2019, moving defendants issued a deposition subpoena for Chapman to appear for deposition and to produce documents on January 28, 2020. On January 12, 2020, moving defendants personally served the subpoena on Chapman. Chapman failed to appear for his deposition. On February 3, 2020, defense counsel sent a letter to Chapman requesting that he contact them to reschedule the deposition. As of the date of filing the motion, Chapman had not responded.

Moving defendants contend that such information, including as to the request for production of documents, is relevant to plaintiff’s claim that he was injured on the premises while working for Chapman. Plaintiff has identified him as a witness. Further, Chapman is named as a cross-defendant for indemnity and contribution.

The court finds that moving defendants properly served Chapman with a deposition subpoena and that he failed to appear and to produce documents. The motion is timely.

According, the motion is GRANTED.

Moving parties are ordered to serve notice of this ruling.