FRANK PEREZ VS CARPARTS.COM, INC.

Tentative Rulings

Case Number: *******2551 Hearing Date: February 7, 2023 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

FRANK PEREZ, Plaintiff(s), vs. CARPARTS.COM, INC., Defendant.	) ) ) ) ) ) ) ) ) ) ) )	CASE NO: *******2551 [TENTATIVE] ORDER RE: MOTION TO DISMISS Dept.: 27 Time: 1:30 p.m. Hearing Date: February 7, 2023
CARPARTS.COM, INC., Cross-Complainant, vs. NGROUP, INC., a South Carolina corporation, and DOES 1-50 Cross-Defendants.	) ) ) ) ) ) ) ) ) ) ) )

I. BACKGROUND

This action arises out of a personal injury matter litigated between Frank Perez (“Plaintiff”) and Carparts.com. The Plaintiff sued Carparts.com for personal injury from a fall Plaintiff suffered on March 23, 2021. Carparts.com (“Cross-Complainant”) subsequently filed a cross-complaint against nGroup, Inc. (“Cross-Defendant”) for (1) contractual indemnity, (2) breach of contract-duty to defend, (3) breach of contract, and (4) declaratory relief (See Motion to Dismiss p. 3 Lines 12-15).

On December 23, 2022, Cross-Defendant filed the current Motion to Dismiss.

On January 25, 2023, Cross-Complainant filed their Opposition.

On January 31, 2023, Cross-Defendant filed their Reply.

II. LEGAL STANDARD OF A MOTION TO DISMISS

The controlling rule is 410.30 of the Code of Civil Procedure, which states “when a court upon motion of a party or its own motion finds in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just.” ( 410.30, subd. (a).) In California, forum selection clauses are valid and may be given effect, in the court's discretion and in the absence of a showing that enforcement of such a clause would be unreasonable.’ The burden of proof is on the plaintiff, and the factors involved in traditional forum non conveniens analysis do not control. Instead, the forum selection clause is presumed valid and will be enforced unless the plaintiff shows that enforcement of the clause would be unreasonable under the circumstances of the case.’ (Korman v. Princess Cruise Lines, Ltd. (2019) 32 Cal.App.5th 206, 213,

216).

III. DISCUSSION

Here, Cross-Complainant has met their burden of showing enforcement of the forum selection clause would be unreasonable under the circumstances of the case for two reasons. First, it is likely Cross-Complainant’s First Amended Cross-Complaint (“FACC”) would be time barred by Chapter 735 of the Illinois Rules of Civil Procedure. Second, Cross-Defendant has availed themselves sufficiently to California’s litigation procedures such that enforcing the forum selection clause now runs counter to the interest of substantial justice.

(1) Statute of Limitations for Contribution and Indemnity –

Cross-Defendant argues in their Reply that Cross-Complainant will not be time barred because the applicable Illinois statute concerns claims for “contribution”, and Cross-Complainant’s claims are (1) contractual indemnity, (2) breach of contract-duty to defend, (3) breach of contract, and (4) declaratory relief. (Reply, 7:2-4). However, the statute reads “Sec. 13-204. Contribution and Indemnity”. (735 ILCS 5/13-204). A reasonable interpretation of the statute would lead one to believe a claim such as Cross-Complainant’s would fall well within the statute’s scope and be subject to the two-year statute of limitations. As both parties point out, this would mean Cross-Complainant would have until April 2, 2023, to obtain Illinois counsel, prepare another cross-complaint, and file it in the appropriate Illinois forum. (See Opposition 8:23-28 and Reply 6: 7-9). As to the Cross-Complainant’s claims, this endangers remedy and invites prejudice.

(2) Cross-Defendant Has Availed Itself to California Litigation –

Here, both parties arguments center on Trident Labs, Inc. v. Merrill Lynch Commercial Finance Corp. In Trident, (2011) 200 Cal.App. 4th 147, 150. In Trident Labs, Inc., Merrill Lynch sought dismissal through its forum selection clause. However, on appeal, the court denied dismissal, citing Merrill Lynch’s extensive use of California’s litigation machinery including: (1) multiple sets of discovery, (2) the filing of several motions, (3) taking numerous depositions, (4) filing for demurrer, and (5) continuing the case for 12 years. (See supra, Trident Labs, at 151). All before moving to dismiss under the forum selection clause it had in its loan agreement with the plaintiff Trident. (Id.). Cross-Defendant distinguishes this case from Trident Labs, Inc. arguing their availment is nowhere as extensive as Merrill Lynch’s. There, Merrill Lynch served seven sets of written discovery, engaged in procedural maneuvers, and filed two counterclaims. (Reply, 4: 13-20) Counter-defendant is correct, in arguing their own availment is not as extensive as Merrill Lynch’s, however, it is more than sufficient. The Court can analogize the facts in the instant case.

Here, Cross-Defendant has been party to the case since at least April of 2022 (See Carparts.com Inc.’s Notice of Motion to Continue Trial, filed on April 20, 2022). Instead of filing a motion to dismiss based on the forum selection clause then, Cross-Defendant has responded to written discovery and appeared at depositions (See Reply, 3: 7-11). Additionally Cross-Defendant has submitted filings to this very court, including a demurrer in May of 2022. Notably, none of those filings were a motion to dismiss until the instant motion.

The court retains discretion to refuse enforcement of a valid forum selection clause if a showing of enforcement of such a clause would be unreasonable. That showing has been made here.

IV. CONCLUSION

In conclusion, Cross-Defendant’s Motion to Dismiss for Forum Non Conveniens Based On Mandatory Forum Selection Clause is: DENIED.

DATED: February 7, 2023.

Hon. Kerry Bensinger

Judge of the Superior Court

Case Number: *******2551 Hearing Date: December 16, 2022 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

FRANK PEREZ, Plaintiff(s), vs. CARPARTS.COM, INC., et al., Defendant(s).

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CASE NO.: *******2551 [TENTATIVE] ORDER RE: DEFENDANTS CARPARTS.COM, INC. MOTION TO CONTINUE TRIAL Dept. 27 1:30 p.m. December 16, 2022

I. INTRODUCTION

On April 2, 2021, Plaintiff Frank Perez (“Plaintiff”) filed this action against Defendant Carparts.com (“Defendant”) (erroneously sued as “Carparts.com, Inc.”) arising from a March 23, 2021, fall from an “order picker” at Defendant’s warehouse in Grand Prairie, Texas. Trial is currently scheduled for March 27, 2023. Defendant seeks an order continuing the trial date to any time after January 30, 2024, and to continue all discovery and motion cut-off deadlines based on the new trial date. The motion is unopposed.

II. LEGAL STANDARD

Trial dates are firm to ensure prompt disposition of civil cases. (Cal. Rules of Court, rule 3.1332(a).) Continuances are thus generally disfavored. (See id. rule 3.1332(b).) Nevertheless, the trial court has discretion to continue trial dates. (Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246.) Each request for continuance must be considered on its own merits and is granted upon an affirmative showing of good cause. (Cal. Rules of Court, rule 3.1332(c); Hernandez, supra, 115 Cal.App.4th at 1246.) Circumstances that may indicate good cause include: (1) the unavailability of an essential lay or expert witness due to death, illness, or other excusable circumstances; (2) the unavailability of a party due to death, illness, or other excusable circumstances; (3) the unavailability of trial counsel due to death, illness, or other excusable circumstances; (4) the substitution of trial counsel where there is an affirmative showing that the substitution is required in the interests of justice; (5) the addition of a new party if (A) the new party has not had a reasonable opportunity to conduct discovery and prepare for trial, or (B) the other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party’s involvement in the case; (6) a party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) a significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. (Cal. Rules of Court, rule 3.1332(c).)

The court must also consider such relevant factors as: (1) the proximity of the trial date; (2) whether there was any previous continuance, extension of time, or delay of trial caused by any party; (3) the length of the continuance requested; (4) the availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) the prejudice that parties or witnesses will suffer as a result of the continuance; (6) if the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) the court’s calendar and the impact of granting a continuance on other pending trials; (8) whether trial counsel is engaged in another trial; (9) whether all parties have stipulated to a continuance; (10) whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) any other fact or circumstance relevant to the fair determination of the motion or application. (Id., rule 3.1332(d).)

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 demonstrating a good faith effort at informal resolution. (Code Civ. Proc., 2024.050, subd. (a).)

The court shall take into consideration any matter relevant to the leave requested, including, but not limited to: (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, and (4) the length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.” (Code Civ. Proc., 2024.050, subd. (b).)

III. DISCUSSION

Defendant argues that good cause exists for a continuance because it has been unable to obtain essential testimony, documents, and other material evidence. Plaintiff’s injuries required that the appointment of a guardian ad litem so that he could participate in discovery. However, one was not appointed until July 2022. Therefore, discovery is still outstanding, including anticipated subpoenas for Plaintiff’s medical records. Also, Defendant recently filed a summary judgment motion on November 10, 2022, but the first available hearing date at the time of filing was January 30, 2024. Defendant alternatively requests for the hearing date on its summary judgment motion be advanced.

Plaintiff does not oppose the motion for a continuance but requests that the Court set the matter for trial at any time between September 2023 and March 2024 because Plaintiff’s counsel has a trial in federal court involving an excessive force claim that is scheduled before the Northern District of Texas on March 27, 2023. Based on the foregoing, the Court finds good cause for a continuance of the trial date and all related dates.

IV. CONCLUSION

Defendant’s motion is GRANTED. Trial is continued from March 27, 2023 to March 6, 2024 at 8:30 a.m. in Department 27. The final status conference is continued from March 13, 2024 to February 21, 2024 at 10:00 a.m. in Department 27. All pretrial deadlines including discovery and motion cut-off dates are to be based on the new trial date.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Case Number: *******2551 Hearing Date: July 14, 2022 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

FRANK PEREZ, Plaintiff(s), vs. CARPARTS.COM, et al., Defendant(s).

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CASE NO.: *******2551 [TENTATIVE] ORDER RE: MOTION TO APPLY TEXAS LAW Dept. 27 1:30 p.m. July 14, 2022

1. INTRODUCTION

On April 2, 2021, Plaintiff Frank Perez (“Plaintiff”) filed this action against Defendant Carparts.com (“Defendant”) (erroneously sued as “Carparts.com, Inc.”) arising from a March 23, 2021, fall from an “order picker” at Defendant’s warehouse in Grand Prairie, Texas. At the time of the incident, Plaintiff was an employee of Cross-Defendant nGroup, Inc. (“nGroup”), which provided supplemental warehouse workers under a Labor Management and Staffing Services Agreement with Defendant.

On April 4, 2022, Defendant filed the operative first amended cross-complaint (“FACC”) against nGroup.

Defendant now moves for the Court to issue an order stating that it will apply Texas law to the substantive and procedural issues and claims raised in the operative Complaint, including the first cause of action for general negligence and second cause of action for premises liability, and the Comparative Negligence and Employer’s Negligence affirmative defenses Defendant raised in its Answer to the Complaint.

Plaintiff opposes. The Court exercise its discretion to consider the opposition, even though it is untimely. Defendant fails to identify sufficient prejudice when it filed a reply on the merits.

Plaintiff in Intervention Avalon Subrogation Partners, LLC as the Subrogation Administrator for United Wisconsin Insurance Company, its Third Party Administrator, Next Level Administrators, and its insured for nGroup, Inc. filed a notice of joinder.

Defendant filed a reply.

1. LEGAL STANDARD

   “[G]enerally speaking the forum will apply its own rule of decision unless a party litigant timely invokes the law of a foreign state. In such event he must demonstrate that the latter rule of decision will further the interest of the foreign state and therefore that it is an appropriate one for the forum to apply to the case before it.” (Hurtado v. Superior Court (1974) 11 Cal.3d 574, 581.)

   This motion is based on the “governmental interests” test.

   The governmental interest test involves three steps: (1) the court determines whether the relevant law of each of the potentially affected jurisdictions with regard to the particular issue in question is the same or different, (2) if there is a difference, the court examines each jurisdiction’s interest in the application of its own law under the circumstances of the particular case to determine whether a true conflict exists, and (3) if the court finds that there is a true conflict, it carefully evaluates and compares the nature and strength of the interest of each jurisdiction in the application of its own law to determine which state’s interest would be more impaired if its policy were subordinated to the policy of the other state. (Kearney v. Salomon Smith Barney, Inc. (2006) 39 Cal.4th 95, 107-108.)

2. DISCUSSION

1. Judicial Estoppel

As a threshold matter, Perez argues that judicial estoppel bars Defendant from asserting that California law does not govern.

Judicial estoppel prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding. (Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 130-131.) California courts consider five factors, applying it when “‘(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.’” (Id. at p. 131)

Here, Plaintiff argues that Defendant invoked the authority of California courts and law by filing the FACC and in its opposition to nGroup’s demurrer. Defendant should not be able to choose to apply California law only when it is convenient to them.

The Court disagrees.

First, as it relates to the FACC, a cross-complaint is treated as an independent action under California law. (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 51-52.) Defendant can maintain separate actions and assert that different law applies to different situations.

Next, as it relates to the opposition to the demurrer, Plaintiff misconstrues the issues. The demurrer to the FACC involved the interpretation of the Labor and Management Staffing Services Agreement. The Complaint involves different issues, including breach of duty and causation relating to Plaintiff’s injuries. Additionally, Plaintiff does not otherwise show with specific citations that Defendant invoked California law regarding negligence and fault apportionment. Finally, Plaintiff does not cite any supporting authority to demonstrate why it should matter that California is the location for Defendant’s insurance polices because Defendant is headquartered in California. Those facts matter are more material to determine jurisdiction, not choice of law, and do not otherwise demonstrate that judicial estoppel is appropriate.

Accordingly, Plaintiff has not satisfied the elements of judicial estoppel for it to apply.

The Court does not need to consider Defendant’s alternative arguments that the Court should exercise its discretion to not apply judicial estoppel even if Plaintiff successfully satisfies the elements of judicial estoppel.

The Court proceeds to the merits.

1. Governmental Interests Test

First, Plaintiff argues that this motion may be premature. More specifically, Plaintiff argues that as the litigation continues certain issues may come up that counsel against making the choice-of-law decisions now. The Court disagrees. Plaintiff relies on Chen v. L.A. Truck Centers, LLC (2017) 7 Cal.App.5th 757, which is no longer good law. (Chen v. Los Angeles Truck Centers, LLC (2019) 7 Cal.5th 862.) Further, this litigation would benefit from an early determination whether Texas law should apply. (Id. at p. 869.) Plaintiff does not otherwise identify a concrete example how an issue may arise that would undermine a determination at this stage of the case.

The Court now applies the governmental interests test.

First, Defendant persuasively explains how Texas and California law differ for actions involving premises liability and negligence. (Motion 7:5-10:3.) Defendant also explains how the application of Texas law would foreclose Plaintiff’s general negligence claim. (Id. 10:16-27.) Plaintiff does not otherwise show that the laws are the same, effectively conceding the first step of the test.

The parties next dispute whether there is a true conflict present between Texas and California.

On one hand, Defendant persuasively shows that Texas has a greater interest than California applying its laws to Plaintiff’s claims. The underlying incident and the injury occurred in Texas at a Texas warehouse. This location is a major factor, though not controlling. (Hernandez v. Burger (1980) 102 Cal.App.3d 795, 801.) At the time of the incident, Plaintiff was a resident of Texas, nGroup had significant business contacts in Texas, the fact witnesses live in Texas, Plaintiff’s employment records are in Texas, and the first treating medical providers for Plaintiff are in Texas. (Hagle Decl. 3-4, 9-10.) Defendant also persuasively shows that California has limited contacts with the case, which simply are that Defendant operates its headquarters in California and nGroup operates an office in California.

On the other hand, Plaintiff fails to explain in the opposition how there is no true conflict. Plaintiff’s opposition cites general principles and focuses on Defendant’s principal place of business located in California. Plaintiff does not provide any factual support for his claim that Defendant directs all fulfillment center operations out of California, and in any event, Plaintiff does not explain how that function has any bearing on the case when the critical issue is nGroup’s labor management practices that gave rise to Plaintiff’s accident. Finally, Plaintiff argues that he was not a resident of Texas, when the contemporaneous employment records say otherwise. (Hagle Reply Decl. Ex. A-B.)

Accordingly, the Court finds that Defendant has satisfied the second step of the governmental interests test.

Finally, the parties dispute which state’s interest would be more impaired if the other state’s law applies. As a preliminary matter, because the Court finds that there is no true conflict, this step is unnecessary. But in any event, Defendant is correct that Texas has a greater interest than California. If California law is applied, specifically the law involving comparative fault, then the will of the Texas Legislature was overridden on how it set up the allocation of fault, specifically foreclosing a plaintiff’s recovery when that plaintiff is more proportionally at fault. Here, the incident occurred in Texas. Texas has a greater interest in ensuring that a company operating in Texas is not exposed to greater liability for an action in which it was not the primary party at fault.

1. CONCLUSION

The Court grants Defendant’s motion.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Case Number: *******2551 Hearing Date: June 23, 2022 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

FRANK PEREZ, Plaintiff(s), vs. CARPARTS.COM, inc., et al., Defendant(s),

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CASE NO.: 21stcv12551 [TENTATIVE] ORDER RE: CROSS-DEFENDANT NGROUP, INC.’S DEMURRER TO DEFENDANT/CROSS-COMPLAINANT CARPARTS.COM, INC.’S FIRST AMENDED CROSS-COMPLAINT Dept. 27 1:30 p.m. June 23, 2022

I. INTRODUCTION

On April 2, 2021, Plaintiff Frank Perez filed this action against Defendant/Cross-Complainant Carparts.com, Inc. (“Carparts.com”). Plaintiff alleges that on March 23, 2021, he fell from an “order picker” at Carparts.com’s warehouse in Grand Prairie, Texas. At the time, Plaintiff was employed by nGroup, Inc. (“nGroup”).

On December 22, 2021, Carparts.com filed a cross-complaint against nGroup for total indemnity, equitable indemnity, implied indemnity, contractual indemnity, breach of contract, and declaratory relief.

On April 4, 2022, Carparts.com filed a first amended cross-complaint (“FACC”) which reduced its claims to: (1) contractual indemnity, (2) breach of contract – duty to defend, (3) breach of contract, and (4) declaratory relief. Carparts.com alleges that its predecessor-in-interest, US Auto Parts Network, Inc. (“U.S. Auto Parts”), entered into a Labor Management and Staffing Services Agreement (the “Agreement”) with nGroup, which operates as an “insourcing” labor management specialist. (FACC, 7-8.) Under this Agreement, nGroup would provide labor and production management services to Carparts.com in positions staffed and managed by nGroup, while Carparts.com would provide facilities and equipment, including any training and operation manuals necessary to operate the equipment in those facilities. (FACC, 9.) Carparts.com alleges the Agreement requires nGroup to indemnify, defend, and hold harmless Carparts.com from and against all claims, lawsuits, costs, and repairs if they arise out of: (1) nGroup’s failure to comply with applicable laws, regulations, or orders, or any negligent act or omissions or intentional misconduct by nGroup, (2) a breach of any obligation of nGroup contained in the Agreement, and (3) any direct claim of worker’s compensation benefits asserted by nGroup’s personnel or their personal representative. (FACC, 10.)

On May 10, 2022, nGroup filed this demurrer to the FACC and each cause of action.

II. LEGAL STANDARD

Choice of Law

The Court addresses nGroup’s claim that this is an action on a contract that requires the application of Illinois law.

California uses section 187 of the Restatement (Second) of Conflict of Laws to determine which laws govern parties’ rights and duties under a contract. (See Nedlloyd Lines B.V. v. Superior Court (1992) 3 Cal.4th 459, 466.) The section 187 approach is to be used each time a conflict arises between the law of the forum state and the law of the chosen state. (See Hurtado v. Superior Court (1974) 11 Cal.3d 574, 581 [no choice-of-law issue where the laws of the two states are identical].) The California Supreme Court in Nedlloyd Lines stated the following:

“Briefly restated, the proper approach under Restatement section 187, subdivision (2) is for the court first to determine either: (1) whether the chosen state has a substantial relationship to the parties or their transaction, or (2) whether there is any other reasonable basis for the parties’ choice of law. If neither of these tests is met, that is the end of the inquiry, and the court need not enforce the parties’ choice of law. If, however, either test is met, the court must next determine whether the chosen state’s law is contrary to a fundamental policy of California. If there is no such conflict, the court shall enforce the parties’ choice of law. If, however, there is a fundamental conflict with California law, the court must then determine whether California has a ‘materially greater interest than the chosen state in the determination of the particular issue....’ (Rest., 187, subd. (2).) If California has a materially greater interest than the chosen state, the choice of law shall not be enforced, for the obvious reason that in such circumstance we will decline to enforce a law contrary to this state’s fundamental policy.”

(Nedlloyd Lines, supra, 3 Cal.4th at p. 466.)

The Court notes that as a preliminary matter, nGroup does not identify whether a conflict of laws even exists. In fact, nGroup cites to both Illinois and California authorities in arguing for the same outcome. But even if the Court entertained a choice-of-law analysis, nGroup’s insistence on applying Illinois law is unsubstantiated. Section 18.3 of the document attached to nGroup’s demurrer states that it “shall be governed by and construed in accordance with the laws of the State of Illinois.” However, the demurrer is devoid of any explanation of whether Illinois has a substantial relationship to the parties or the transaction or whether there is a reasonable basis for the parties’ choice of law. Neither Carparts.com nor nGroup are incorporated in Illinois. Only in its reply brief does nGroup explain that that the first contract the parties entered into was for a Carparts.com facility in LaSalle, Illinois, which became operational on or about March 22, 2020, and that there are now two facilities which it operates with Caparts.com under the same Action. This assertion is not only tardy; it is made without evidence. Accordingly, in ruling on this demurrer, the Court shall apply California law.

Demurrer

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., 452.) A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., 430.10, subd. (e).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

III. DISCUSSION

Meet and Confer

Before filing a demurrer or motion to strike, the demurring or moving party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts. (Code Civ. Proc., 430.41, subd. (a); 435.5, subd. (a).)

nGroup’s counsel submits a declaration which attaches a “meet and confer” letter to the demurrer, dated April 26, 2022. The letter invited Carparts.com’s counsel to discuss the issues raised in this demurrer over the telephone. Carparts.com’s counsel did not respond until May 5, 2022. The requirement to file a declaration is satisfied.

Standing

nGroup first argues that Carparts.com lacks standing to assert any cause of action arising from the Agreement because the document it submits with its demurrer was entered into by U.S. Auto Parts and nGroup. The document attached to nGroup’s demurrer is not properly authenticated by someone with personal knowledge and, even if the document were authenticated, it is squarely outside the pleadings and the Court is unaware of any authority allowing it to judicially notice the existence of an extrinsic document such as this private contract (let alone the contents and significance of its provisions). (Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1145.)

nGroup argues that the document is “incorporated by reference” into the FACC by virtue of paragraph 27, which states: “Due to the privacy concerns, Cross-Complainant does not at this time attach a copy of said agreement to this Cross-Complaint. Cross-Defendant should already be in possession of a copy of the agreement. Additionally, a redacted copy of such agreement has been provided to all parties. Cross-Complainant hereby incorporates said agreement by reference as though fully set forth herein.” nGroup relies on Qualcomm, Inc. v. Certain Underwriters at Lloyd’s London (2008) 161 Cal.App.4th 184, 191 in contending that this Court may consider its submitted document. However, Qualcomm is inapposite. The written documents the court of appeal considered were “attached to the complaint and incorporated therein by reference.” Here, in contrast, no contract was attached to the FACC. Therefore, nGroup’s document is an extrinsic matter that the Court cannot consider on a demurrer.

Carparts.com sufficiently alleges throughout the FACC that it is a party to the Agreement and has fulfilled its obligations under the Agreement. Carparts.com also specifically alleges that “[it] entered into written agreements with [nGroup] wherein [nGroup] agreed and contracted to bind itself to indemnify [Carparts.com] for any and all claims, costs, or damages arising out of or connected in any manner with [nGroup]’s furnishing of labor and production management to [Caparts.com].” (FACC, 25.) At this stage of the action, the Court accepts the allegations of the FACC as true. The Court also judicially notices filings with the Secretary of State indicating that Carparts.com is the new name of U.S. Auto Parts. (RJN, Ex. A.)

Accordingly, nGroup’s demurrer on the grounds that Carparts.com lacks standing is OVERRULED.

The Court additionally notes that nGroup argues in its reply brief that the entire document is relevant to evaluating the FACC because there is an arbitration agreement and a forum selection clause. This is beyond the scope of a demurrer. If nGroup believes that this action should be arbitrated or transferred, nGroup should file a motion to compel arbitration or transfer venue.

Carparts.com’s Contract Claims

One overarching argument that nGroup makes in response to Carparts.com’s contract claims is that the allegations of the FACC contradict what the Agreement actually provides. This assumes that the document attached to nGroup’s demurrer is the Agreement. But, as stated above, the document is not judicially noticeable and it lies outside of the pleadings. To the extent that nGroup relies on specific provisions of the document, those arguments are not considered. Therefore, as nGroup’s demurrer to Carparts.com’s second cause of action is entirely premised on the text of the document, the demurrer to the Second Cause of Action is OVERRULED.

This leaves only the issues of whether Carparts.com’s cause of action for contractual indemnity has accrued, whether Carparts.com was required to attach a copy of the Agreement to the FACC, and whether Carparts.com may seek declaratory relief.

Accrual of Carparts.com’s Indemnity Claim

nGroup argues that Carparts.com cannot yet assert an indemnity claim because the cause of action has not yet accrued. nGroup quotes the following from Valley Crest Landscape Development, Inc. v. Mission Pools of Escondido, Inc. (2015) 238 Cal.App.4th 468: “A cause of action for breach of an express indemnity agreement (contractual indemnity) accrues when the indemnitor sustains the loss by paying the money sought to be indemnified from the indemnitee.”

Here, Carparts.com argues that it has already suffered damages by paying for costs in answering and defending against a subrogation claim by nGroup’s worker’s compensation insurance carrier for the benefits paid out to Plaintiff. Carparts.com also alleges that nGroup shall indemnify it for any and all claims, costs, or damages arising out of nGroup’s negligence or breach of contractual duty and alleges within the FACC that nGroup breached the Agreement. Therefore, Carparts.com has sufficiently alleged its first cause of action.

nGroups demurrer to the First Cause of Action is OVERRULED.

Whether the Agreement Had to Be Attached to the FACC

Carparts.com sufficiently provides excerpts of what it considers the relevant contractual provisions for its indemnity claims. It also sufficiently alleges its breach of contract claim by identifying the Agreement and setting forth its terms as well as nGroup’s alleged breaches. A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect. (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972.) P

Accordingly, nGroup’s demurrer to the Third Cause of Action is OVERRULED.

Declaratory Relief

nGroup challenges Carparts.com’s fourth cause of action for declaratory relief and argues that Carparts.com “has not established a right to indemnity or defense.” As set forth in the rest of this ruling, the Court finds that Carparts.com has sufficiently alleged that it is entitled to indemnity and a defense.

nGroup’s demurrer to the Fourth Cause of Action is OVERRULED.

IV. CONCLUSION

nGroup’s demurrer is OVERRULED in its entirety. nGroup is ordered to file an Answer to the FACC within 20 days.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Case Number: *******2551 Hearing Date: May 17, 2022 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

FRANK PEREZ, Plaintiff(s), vs. CARPARTS.COM, INC., Defendant(s).

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CASE NO.: *******2551 [TENTATIVE] ORDER RE: DEFENDANT CARPARTS.COM, INC.’S MOTION TO CONTINUE TRIAL Dept. 27 1:30 p.m. May 17, 2022

1. INTRODUCTION

On April 2, 2021, Plaintiff Frank Perez filed this action against Defendant Carparts.com (“Defendant”) (erroneously sued as “Carparts.com, Inc.”). Plaintiff alleges that on March 23, 2021, he fell from an “order picker” at Defendant’s warehouse. Defendant filed an Answer on May 21, 2021.

On April 20, 2022, Defendant filed this motion requesting a trial continuance. Trial is currently set for September 30, 2022 and Defendant argues that a continuance of at least 6 months is necessary. The motion is unopposed.

1. LEGAL STANDARD

Trial dates are firm to ensure prompt disposition of civil cases. (Cal. Rules of Court, rule 3.1332(a).) Continuances are thus generally disfavored. (See id. rule 3.1332(b).) Nevertheless, the trial court has discretion to continue trial dates. (Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246.) Each request for continuance must be considered on its own merits and is granted upon an affirmative showing of good cause. (Cal. Rules of Court, rule 3.1332(c); Hernandez, supra, 115 Cal.App.4th at 1246.) Circumstances that may indicate good cause include: (1) the unavailability of an essential lay or expert witness due to death, illness, or other excusable circumstances; (2) the unavailability of a party due to death, illness, or other excusable circumstances; (3) the unavailability of trial counsel due to death, illness, or other excusable circumstances; (4) the substitution of trial counsel where there is an affirmative showing that the substitution is required in the interests of justice; (5) the addition of a new party if (A) the new party has not had a reasonable opportunity to conduct discovery and prepare for trial, or (B) the other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party’s involvement in the case; (6) a party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) a significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. (Cal. Rules of Court, rule 3.1332(c).)

The court must also consider such relevant factors as: (1) the proximity of the trial date; (2) whether there was any previous continuance, extension of time, or delay of trial caused by any party; (3) the length of the continuance requested; (4) the availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) the prejudice that parties or witnesses will suffer as a result of the continuance; (6) if the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) the court’s calendar and the impact of granting a continuance on other pending trials; (8) whether trial counsel is engaged in another trial; (9) whether all parties have stipulated to a continuance; (10) whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) any other fact or circumstance relevant to the fair determination of the motion or application. (Id., rule 3.1332(d).)

1. DISCUSSION

Defendant states that a continuance is necessary because it filed a cross-complaint nGroup, who filed a demurrer and motion to strike which is scheduled to be heard in June 2022. Discovery is still in progress and the parties are waiting until all the parties have appeared to take depositions. Defendant also states that Plaintiff’s medical records require out-of-state commissions which are more time-consuming, and it is unclear whether Plaintiff is capable of testifying or whether a conservator will need to be appointed. Defendant also says that its neuropsychologist expert is not available until November 2022.

This would be the first continuance in the action and the Court finds good cause to briefly continue the trial for approximately 6 months. Defendant’s motion to continue trial is granted.

1. CONCLUSION

Defendant’s unopposed motion is GRANTED. Trial currently scheduled for September 30, 2022 is continued to March 27, 2023 at 8:30 a.m. in Department 27 and the final status conference currently scheduled for September 16, 2022 is continued to March 13, 2023 at 10:00 a.m. in Department 27.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

b'

Case Number: *******2551 Hearing Date: December 22, 2021 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

FRANK PEREZ, Plaintiff(s), vs. CARPARTS.COM, INC., et al., Defendant(s).

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CASE NO.: *******2551 [TENTATIVE] ORDER RE: MOTION FOR LEAVE TO FILE CROSS COMPLAINT; MOTION FOR LEAVE TO FILE FIRST AMENDED ANSWER Dept. 27 1:30 p.m. December 22, 2021

On April 2, 2021, Plaintiff Frank Perez filed this action against Defendant Carparts.com (“Defendant”) (erroneously sued as “Carparts.com, Inc.”). Plaintiff alleges that on March 23, 2021, he fell from an “order picker” at Defendant’s warehouse. Defendant filed an Answer on May 21, 2021.

On October 19, 2021, Defendant filed a motion for leave to file a cross-complaint against nGroup, Inc. (“nGroup”) and Roes 1 through 50.

On the same day, Defendant filed also filed a motion seeking leave to amend its answer to add an affirmative defense of “employer negligence.” Both motions are unopposed.

Leave to File Cross-Complaint

A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint. (Cal. Civ. Proc. Code 428.50 (a).) Any other cross-complaint may be filed at any time before the court has set a date for trial. (Cal. Civ. Proc. Code 428.50 (b).) A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest of justice at any time during the course of the action. (Cal. Civ. Proc. Code 428.50 (c).) Where the proposed cross-complaint arises out of the same transaction as plaintiff’s claim, the court must grant leave to file the cross-complaint so long as defendant is acting in good faith. (Cal. Civ. Proc. Code 426.50.)

Defendant’s proposed cross-complaint asserting causes of action for indemnity, defense, breach of contract, and declaratory relief against nGroup arises from the same events underlying Plaintiff’s action and there is no indication that Defendant is not acting in good faith. Accordingly, Defendant’s Motion is GRANTED and Defendant is ordered to file the proposed cross-complaint within 5 days of the date of this Order.

Leave to File First Amended Answer

The court may, in its discretion and after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading, including adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect. (Code Civ. Proc., 473, subd. (a)(1).) “Public policy dictates that leave to amend be liberally granted.” (Centex Homes v. St. Paul Fire & Marine Ins. Co. (2015) 237 Cal.App.4th 23, 32.)

A motion to amend a pleading must include a copy of the proposed amendment or amended pleading which must be serially numbered to differentiate it from previous pleadings or amendments and must state what allegations in the previous pleading are proposed to be deleted or added, if any, and where, by page, paragraph, and line number, the allegations are located. (Cal. Rules of Court, Rule 3.1324(a).) The motion shall also be accompanied by a declaration attesting to the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and why the request for amendment was not made earlier. (Cal. Rules of Court, Rule 1.324(b).)

Defendant states that initial discovery recently revealed that it had rights against Plaintiff’s employer, nGroup. Upon information and belief, nGroup is a subcontractor who provided labor and production management services to Defendant. Defendant claims Plaintiff injured himself while in the course and scope of his employment for nGroup and that being unable to assert the affirmative defense of employer negligence will be prejudicial.

Defendant’s motion is GRANTED and Defendant is ordered to file its amended answer within 5 days of the date of this order.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.

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b'

Case Number: *******2551 Hearing Date: December 7, 2021 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

FRANK PEREZ, Plaintiff(s), vs. CARPARTS.COM, et al., Defendant(s).

) ) ) ) ) ) ) ) ) ) )

CASE NO.: *******2551 [TENTATIVE] ORDER RE: INTERVENOR’S MOTION FOR LEAVE TO FILE COMPLAINT-IN- INTERVENTION Dept. 27 1:30 p.m. December 7, 2021

On April 2, 2021, Plaintiff Frank Perez (“Plaintiff”) filed this action against Defendant Carparts.com (“Defendant”) (erroneously sued as “Carparts.com, Inc.”) arising from a March 23, 2021, fall from an “order picker” at Defendant’s warehouse. Intervenor Avalon Subrogation Partners, LLC (“Avalon”) seeks leave to file a complaint-in-intervention. Avalon’s Motion is unopposed.

A nonparty shall petition the court for leave to intervene by noticed motion or by ex parte application. The petition shall include a copy of the proposed complaint in intervention or answer in intervention and set forth the grounds upon which intervention rests. (Code Civ. Proc., ; 387, subd. (c).) The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if a provision of law confers an unconditional right to intervene, or the person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by one or more of the existing parties. (Code Civ. Proc., ; 387, subd. (d)(1).) The court may, upon timely application, permit a nonparty to intervene in the action or proceeding if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both. (Code Civ. Proc., ; 387, subd. (d)(2).)

Avalon states that Plaintiff pursued a workers’ compensation claim against his employer, nGroup, Inc. (“nGroup”) and that at that time, nGroup was insured by a policy of workers’ compensation insurance issued by United Wisconsin Insurance Company and administered by Next Level Administrators. Avalon claims that it is the subrogation administrator for United Wisconsin Insurance Company (“UWIC”), nGroup, and Next Level Administrators (“NLA”). Avalon argues that it, by contractual obligation, has the right to seek subrogation and reimbursement for all benefits paid by or to be paid by UWIC and nGroup.

This motion was originally scheduled to be heard on November 2, 2021 but continued so that Avalon could submit a supplemental declaration evidencing the relationship between nGroup, Plaintiff, Carparts.com, Inc., and UWIC. On November 17, 2021, Avalon submitted the declaration of Timothy Supple, its president, who attests that at the time of the incident, March 21, 2021, Avalon was the subrogation administrator for UWIC, nGroup, and NLA. (Supple Decl., ¶ 4.) Supple also declares that as of March 21, 2021, UWIC provided a policy of worker’s compensation insurance to nGroup which was administered by NLA. (Supple Decl., ¶ 5.) This insurance policy covered employees of nGroup. (Supple Decl., ¶ 6.) Plaintiff has pursued a worker’s compensation claim against nGroup, which is being handled and administered by NLA. (Supple Decl., ¶ 9.)

“A workers’ compensation carrier is authorized to attempt recovery of benefits paid either through the maintenance of an independent action (Lab. Code, ; 3852), intervention in the employee’s action (Lab. Code, ; 3853), or assertion of lien rights in the employee’s recovery (Lab. Code, ; 3856, subd. (b).)” (Catello v. I.T.T. General Controls (1984) 152 Cal.App.3d 1009, 1015, fn. 7.) According to Supple, Avalon, by contract, has the right to seek reimbursement for benefits paid by or to be paid by NLA on behalf of UWIC and nGroup resulting from this worker’s compensation claim. (Supple Decl., ¶ 11.) Accordingly, Avalon has standing to intervene in this action.

Avalon’s motion for leave to intervene is GRANTED. Avalon is ordered to file its complaint-in-intervention, attached as Exhibit A to the declaration of Jessica L. Lemoine filed on July 7, 2021, within 5 days of the date of this order.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.

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b'

Case Number: *******2551 Hearing Date: November 2, 2021 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

FRANK PEREZ, Plaintiff(s), vs. CARPARTS.COM, et al., Defendant(s).

) ) ) ) ) ) ) ) ) ) )

CASE NO.: *******2551 [TENTATIVE] ORDER RE: DEFENDANT CARPARTS.COM’S MOTION TO DISMISS OR STAY FOR INCONVENIENT FORUM Dept. 27 1:30 p.m. September 21, 2021

On April 2, 2021, Plaintiff Frank Perez (“Plaintiff”) filed this action against Defendant Carparts.com (“Defendant”) (erroneously sued as “Carparts.com, Inc.”) arising from a March 23, 2021, fall from an “order picker” at Defendant’s warehouse. Intervenor Avalon Subrogation Partners, LLC (“Avalon”) seeks leave to file a complaint-in-intervention. Avalon’s Motion is unopposed.

A nonparty shall petition the court for leave to intervene by noticed motion or by ex parte application. The petition shall include a copy of the proposed complaint in intervention or answer in intervention and set forth the grounds upon which intervention rests. (Code Civ. Proc., ; 387, subd. (c).) The court shall, upon timely application, permit a nonparty to intervene in the action or proceeding if a provision of law confers an unconditional right to intervene, or the person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by one or more of the existing parties. (Code Civ. Proc., ; 387, subd. (d)(1).) The court may, upon timely application, permit a nonparty to intervene in the action or proceeding if the person has an interest in the matter in litigation, or in the success of either of the parties, or an interest against both. (Code Civ. Proc., ; 387, subd. (d)(2).)

Avalon states that Plaintiff pursued a workers’ compensation claim against his employer, nGroup, Inc. (“nGroup”) and that at that time, nGroup was insured by a policy of workers’ compensation insurance issued by United Wisconsin Insurance Company and administered by Next Level Administrators. Avalon claims that it is the subrogation administrator for United Wisconsin Insurance Company, nGroup, and Next Level Administrators. Avalon argues that it, by contractual obligation, has the right to seek subrogation and reimbursement for all benefits paid by or to be paid by United Wisconsin Insurance Company and nGroup.

However, Avalon submits no evidence in support of this motion besides its attorney’s declaration, which lacks personal knowledge as to the relationship between nGroup, Plaintiff, Carparts.com, Inc., or United Wisconsin Insurance Company. Accordingly, the Motion is DENIED without prejudice.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.

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b'

Case Number: *******2551 Hearing Date: November 1, 2021 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

FRANK PEREZ, Plaintiff, vs. CARPARTS.COM, Defendant.

) ) ) ) ) ) ) ) ) ) )

CASE NO.: *******2551 [TENTATIVE] ORDER RE: APPLICATION TO APPEAR AS COUNSEL PRO HAC VICE Dept. 27 1:30 p.m. November 1, 2021

Geoff Henley (“Applicant”) seeks admission to appear as counsel pro hac vice to represent Plaintiff Frank Perez in this action along with Hudson Henley, an active member of the State Bar of California. (Declaration of Geoff Henley, ¶ 1.) Applicant is a resident of Texas and is a member in good standing of the Fifth Circuit Court of Appeals and Northern District of Texas. Applicant is not a resident of California and does not regularly engage in business in California. Applicant has not applied to appear as counsel pro hac vice in California State Court in the past two years.

The application complies with the requirements of California Rules of Court, Rule 9.40, including serving notice and required fees on the State Bar of California. The unopposed application is GRANTED. It is ordered that Geoff Henley be admitted to appear as counsel pro hac vice for the purpose of representing Plaintiff in this action. Applicant shall be subject to all applicable rules of this Court.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.

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b"

Case Number: *******2551 Hearing Date: September 21, 2021 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

FRANK PEREZ, Plaintiff(s), vs. CARPARTS.COM, et al., Defendant(s).

) ) ) ) ) ) ) ) ) ) )

CASE NO.: *******2551 [TENTATIVE] ORDER RE: DEFENDANT CARPARTS.COM’S MOTION TO DISMISS OR STAY FOR INCONVENIENT FORUM Dept. 27 1:30 p.m. September 21, 2021

On April 2, 2021, Plaintiff Frank Perez (“Plaintiff”) filed this action against Defendant Carparts.com (“Defendant”) (erroneously sued as “Carparts.com, Inc.”) arising from a March 23, 2021, fall from an “order picker” at Defendant’s warehouse in Grand Prairie, Texas. Defendant moves to dismiss or stay the action on the grounds of forum non conveniens.

“When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may be just.” (Code Civ. Proc., ; 410.30, subd. (a).) In other words, the doctrine of forum non conveniens “is an equitable doctrine invoking the discretionary power of a court to decline to exercise the jurisdiction it has over a transitory cause of action when it believes that the action may be more appropriately and justly tried elsewhere.” (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751.)

In considering motions based on forum non conveniens, courts undertake a two-part analysis. First, the court determines whether the alternate forum is a suitable place for trial. To be suitable, a forum need only have personal jurisdiction and not have a statute of limitations that would bar the action. (Chong v. Superior Court (1997) 58 Cal.App.4th 1032.) If it is, the next step is to consider the private interests of the litigants and the interests of the public in litigating the matter in one forum or another. (Stangvik, supra, 54 Cal.3d at 751.)

The private interest factors are those that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses. The public interest factors include avoidance of overburdening local courts with congested calendars, protecting the interests of potential jurors so that they are not called upon to decide cases in which the local community has little concern, and weighing the competing interests of California and the alternate jurisdiction in the litigation. (Ibid.) The moving party bears the burden of establishing both components in the analysis. (Ibid.) The trial court has considerable discretion to decide motions based on forum non conveniens. (Ibid.)

Defendant argues that Texas is the appropriate forum. First, Defendant argues Texas is a suitable forum because it does business in Texas and is subject to service within the state. Also, the applicable statute of limitations is 2 years and would not bar Plaintiff’s action. (Texas Civ. Prac. & Rem., ; 16.003, subd. (a).) Defendant next argues that the private and public interests cut in favor of dismissal or a stay. Defendant speculates that all prospective witnesses work and live near its warehouse in Dallas County and that any treating physicians and examining physician experts would likely be in Texas as well. (Paulos Decl., ¶¶ 4-5.) Defendant also argues that although it is incorporated in California, the incidents underlying this lawsuit occurred in Texas and involve Texas residents and neither the Court nor the jury should be burdened with interpreting and applying Texas law.

In opposition, Plaintiff argues that Defendant cannot show that California is more inconvenient than Texas because Plaintiff’s damages witnesses reside in Connecticut. Plaintiff’s sister, Tamara Perez, states that Plaintiff’s family and social connections are in Connecticut. (Perez Decl., ¶¶ 4-6.) She declares that a supervisor told the family that no one had seen the accident and Plaintiff was found on the floor of the warehouse injured. (Id., ¶ 7.) Then, on April 22, 2021, Plaintiff was flown from Texas to Connecticut and has been in Connecticut since. (Id., ¶ 12.)

Defendant has not met its moving burden to establish that the private and public interests favor Texas as a more convenient forum. Defendant does not submit any evidence that its witnesses or the treating physicians reside in Texas; indeed, Defendant does not identify its “prospective” witnesses. Also, California courts have an interest in regulating Defendant's e-commerce company headquartered and incorporated in California even if its warehouse is located in Texas, as business decisions and policies are made in California that have potential ramifications in other states.

Accordingly, Defendant’s motion is DENIED.

Moving party to give notice.

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