This case was last updated from Los Angeles County Superior Courts on 05/26/2019 at 04:27:45 (UTC).

GUADALUPE M LOPEZ VS EL MONTE CITY SCHOOL DISTICT ET AL

Case Summary

On 02/02/2017 GUADALUPE M LOPEZ filed a Personal Injury - Other Personal Injury lawsuit against EL MONTE CITY SCHOOL DISTICT. This case was filed in Los Angeles County Superior Courts, Pomona Courthouse South located in Los Angeles, California. The Judges overseeing this case are JON R. TAKASUGI and GLORIA WHITE-BROWN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9021

  • Filing Date:

    02/02/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Pomona Courthouse South

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

JON R. TAKASUGI

GLORIA WHITE-BROWN

 

Party Details

Plaintiff and Petitioner

LOPEZ GUADALUPE M.

Defendants, Respondents, Cross Plaintiffs and Cross Defendants

ALSALEH PROJECT MANAGEMENT INC

THOMPSON ELEMENTARY SCHOOL

EL MONTE CITY SCHOOL DISTRICT

DOES 1 TO 100

ROYAL CONSTRUCTION CORP.

G&Y GENERAL CONTRACTORS INC.

THE NAZERIAN GROUP DOE 1

G&Y GENERAL CONTRACTORS INC

THE NAZERIAN GROUP

AIR DESIGN SOLUTIONS

O C A ELECTRICAL INC.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

YAHOUDAI YOSI ESQ.

RAVIPUDI RAHUL L.

Defendant Attorneys

FOX DANA ALDEN ESQ.

FAENZA CHRISTOPHER EDWARD ESQ.

PAPE KARA ANN

Cross Plaintiff Attorneys

OBERRECHT KIMBERLY SUZANNE

ZIMET MARC JOSEPH

Cross Defendant Attorney

CRISLER TED RUSSELL

 

Court Documents

ORDER] AND STIPULATION TO CONTINUE TRIAL, FSC [AND RELATED MOTION/DISCOVERY DATES} PERSONAL INJURY COURTS ONLY (CENTRAL DISTRICT)

5/3/2018: ORDER] AND STIPULATION TO CONTINUE TRIAL, FSC [AND RELATED MOTION/DISCOVERY DATES} PERSONAL INJURY COURTS ONLY (CENTRAL DISTRICT)

NOTICE OF ASSOCIATION OF COUNSEL

8/7/2018: NOTICE OF ASSOCIATION OF COUNSEL

COMPLAINT FOR DAMAGES: 1. NEGLIGENCE ;ETC

2/2/2017: COMPLAINT FOR DAMAGES: 1. NEGLIGENCE ;ETC

PROOF OF SERVICE OF SUMMONS

4/17/2017: PROOF OF SERVICE OF SUMMONS

PROOF OF SERVICE OF SUMMONS

4/17/2017: PROOF OF SERVICE OF SUMMONS

PROOF OF SERVICE OF SUMMONS

4/17/2017: PROOF OF SERVICE OF SUMMONS

REQUEST FOR DISMISSAL

4/26/2017: REQUEST FOR DISMISSAL

PROOF OF SERVICE OF SUMMONS

5/11/2017: PROOF OF SERVICE OF SUMMONS

 

Docket Entries

  • 05/17/2019
  • Notice of Change of Address or Other Contact Information; Filed by Kimberly Suzanne Oberrecht (Attorney)

    Read MoreRead Less
  • 05/15/2019
  • Amendment to Complaint (Fictitious/Incorrect Name) (Doe 2); Filed by Guadalupe M. Lopez (Plaintiff)

    Read MoreRead Less
  • 05/14/2019
  • Amendment to Cross-Complaint (Fictitious/Incorrect Name) (Roe 2); Filed by Alsaleh Project Management,Inc (Cross-Complainant)

    Read MoreRead Less
  • 05/14/2019
  • Answer; Filed by Alsaleh Project Management,Inc (Cross-Defendant)

    Read MoreRead Less
  • 04/26/2019
  • Notice of Change of Address or Other Contact Information; Filed by The Nazerian Group (Cross-Complainant)

    Read MoreRead Less
  • 04/22/2019
  • Cross-Complaint; Filed by G&Y General Contractors, Inc (Cross-Complainant)

    Read MoreRead Less
  • 04/22/2019
  • Answer; Filed by G&Y General Contractors, Inc (Cross-Defendant)

    Read MoreRead Less
  • 03/08/2019
  • Proof of Service by Substituted Service; Filed by The Nazerian Group (Cross-Complainant)

    Read MoreRead Less
  • 03/06/2019
  • Amendment to Complaint (Fictitious/Incorrect Name) (Doe 1=The Nazerian Group); Filed by Guadalupe M. Lopez (Plaintiff)

    Read MoreRead Less
  • 03/01/2019
  • at 08:30 AM in Department J, Gloria White-Brown, Presiding; Case Management Conference - Held - Continued

    Read MoreRead Less
65 More Docket Entries
  • 04/17/2017
  • PROOF OF SERVICE OF SUMMONS

    Read MoreRead Less
  • 04/17/2017
  • Proof-Service/Summons; Filed by Guadalupe M. Lopez (Plaintiff)

    Read MoreRead Less
  • 04/17/2017
  • Proof-Service/Summons; Filed by Guadalupe M. Lopez (Plaintiff)

    Read MoreRead Less
  • 04/17/2017
  • PROOF OF SERVICE OF SUMMONS

    Read MoreRead Less
  • 03/03/2017
  • Summons; Filed by Clerk

    Read MoreRead Less
  • 03/03/2017
  • Summons Issued; Filed by Clerk

    Read MoreRead Less
  • 02/23/2017
  • Ord Apptng Guardian Ad Litem; Filed by Plaintiff/Petitioner

    Read MoreRead Less
  • 02/02/2017
  • Complaint; Filed by Guadalupe M. Lopez (Plaintiff)

    Read MoreRead Less
  • 02/02/2017
  • COMPLAINT FOR DAMAGES: 1. NEGLIGENCE ;ETC

    Read MoreRead Less
  • 02/02/2017
  • Application ; Filed by Plaintiff/Petitioner

    Read MoreRead Less

Tentative Rulings

Case Number: BC649021    Hearing Date: February 10, 2020    Dept: J

HEARING DATE: Monday, February 10, 2020

NOTICE: Motion #1: OK[1]

Motion #2: OK

Motion #3: OK[2]

RE: Lopez v. El Monte City School District, et al. (BC649021)

______________________________________________________________________________

1. Cross-Defendant Royal Construction Corp.’s DEMURRER TO EL MONTE CITY SCHOOL DISTRICT’S CROSS-COMPLAINT

Responding Party: Cross-Complainant, El Monte City School District

2. Defendant/Cross-Complainant and Cross-Defendant The Nazerian Group’s MOTION

TO BIFURCATE LIABILITY PRIOR TO DAMAGES [joined by G&Y General

Contractors, Inc. and Alsaleh Project Management, Inc.]

Responding Party: Plaintiffs, Guadalupe M. Lopez, a minor, by and through her Guardian

ad Litem, Patricia Diaz; Defendants, El Monte City School District and Thompson Elementary

School

3. Defendant/Cross-Defendant Royal Construction Corp.’s MOTION TO SEVER CROSS-

COMPLAINT FROM PLAINTIFF’S COMPLAINT AT TRIAL

Responding Party: Defendants, El Monte City School District and Thompson Elementary

School

Tentative Ruling

1. Cross-Defendant Royal Construction Corp.’s Demurrer to El Monte City School District’s Cross-Complaint is OVERRULED.

2. Defendant/Cross-Complainant and Cross-Defendant The Nazerian Group’s Motion to

Bifurcate Liability Prior to Damages is TAKEN OFF-CALENDAR.

3. Defendant/Cross-Defendant Royal Construction Corp.’s Motion to Sever Cross-

Complaint from Plaintiff’s Complaint at Trial is TAKEN OFF-CALENDAR.

Background

Plaintiff Guadalupe M. Lopez, a minor, by and through her Guardian ad Litem, Patricia Diaz (“Plaintiff”) alleges that on June 3, 2016, Plaintiff was severely injured after a school aide employee at Thompson Elementary School (“Thompson”) negligently steered Plaintiff’s wheelchair into a construction zone sandbag, causing Plaintiff’s wheelchair to tip over. On February 2, 2017, Plaintiff filed a complaint, asserting causes of action against Defendants El Monte City School District (“District”), Thompson, Royal Construction Corp. (“Royal”), Alsaleh Project Management, Inc. (“APM”) and Does 1-100 for:

  1. Negligence

  2. Violation of Government Code Secs. 815.4, 815.2 and 835

  3. Negligent Supervision

  4. Negligent Hiring and/or Retention

On April 26, 2017, Plaintiff dismissed Thompson, without prejudice. On September 12, 2018, Royal filed a cross-complaint, asserting causes of action against Cross-Defendants District, Thompson, APM and Roes 1-100 for:

  1. Implied Total Indemnity

  2. Equitable Indemnity on a Comparative Fault Basis

  3. Declaratory Relief

On October 2, 2018, APM filed a cross-complaint, asserting causes of action against Cross-Defendants Royal and Roes 1-100 for:

  1. Implied Indemnity

  2. Partial Indemnity

  3. Contribution

  4. Declaratory Relief

On October 16, 2018, Royal filed an Amendment to Cross-Complaint, wherein The Nazerian Group (“Nazerian”) was named in lieu of Roe 1. On October 18, 2018, this action was transferred from the personal injury hub (Department 3) to this department. On October 30, 2018, APM filed an Amendment to Cross-Complaint, wherein Nazerian was named in lieu of Roe 1.

On December 7, 2018, Nazerian filed a cross-complaint, asserting causes of action against Cross-Defendants Royal, APM, G&Y General Contractors, Inc. (“G&Y”), O C A Electrical Inc., Air Design Solutions and Moes 1-100 for:

  1. Indemnification

  2. Apportionment of Fault

  3. Declaratory Relief

  4. Express Indemnity

On March 6, 2019, Plaintiff filed an Amendment to Complaint, wherein Nazerian was named in lieu of Doe 1. On April 22, 2019, G&Y filed a cross-complaint, asserting causes of action against Cross-Defendants Royal, District, APM and Poes 1-50 for:

  1. Equitable/Implied Indemnity

On May 14, 2019, APM filed an Amendment to Cross-Complaint, wherein G&Y was named in lieu of Roe 2. On May 15, 2019, Plaintiff filed an Amendment to Complaint, wherein G&Y was named in lieu of Doe 2. On June 3, 2019, Royal filed an Amendment to Cross-Complaint, wherein G&Y was named in lieu of Roe 2.

On October 30, 2019, the court stayed the entry of summary judgment in favor of APM to give Plaintiff 20 days’ leave to amend the complaint to add a cause of action for general negligence before entry of judgment.

On November 12, 2019, Plaintiff filed a First Amended Complaint (“FAC”), asserting causes of action against District, Royal, APM, Nazerian, G&Y and Does 3-100 for:

  1. Dangerous Condition of Public Property

  2. Negligence

  3. Negligent Hiring/Retention/Supervision and/or Training

On November 27, 2019, District and Thompson filed a cross-complaint, asserting causes of action against Royal, APM, Nazerian, G&Y and Zoes 1-25 for:

  1. Express Contractual Indemnity

  2. Equitable Indemnity on a Comparative Fault Basis

  3. Apportionment of Fault

  4. Declaratory Relief

On December 16, 2019, APM filed an Amendment to Cross-Complaint, wherein District was named in lieu of Roe 3.

The Final Status Conference is set for February 10, 2020. Trial is set for February 18, 2020.

1. Royal’s Demurrer to Cross-Complaint

Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).)

“A demurrer on the ground of the bar of the statute of limitations will not lie where the action may be, but is not necessarily, barred.” (Moseley v. Abrams (1985) 170 Cal.App.3d 355, 359-360.) “It must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred.” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.)

A demurrer for uncertainty, moreover, will be sustained only where the complaint is so bad that the defendant cannot reasonably respond. (CCP § 430.10(f); see Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)

Discussion

Royal demurs to the first and fourth causes of action in the November 27, 2019 cross-complaint.

Meet and Confer

“Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. . .” (CCP §430.41(a).) The meet and confer must take place “at least five days before the date the responsive pleading is due.” (CCP § 430.41(a)(2).)

District complains that the Declaration of Martin McMahan does not indicate when the meet and confer took place and confirms that counsel attempted to meet and confer via email and not in person or by telephone. The court determines that a sufficient meet and confer was undertaken for the purposes of this instant demurrer. District fails to advise the court how District was prejudiced in any way by an email meet and confer correspondence.

Merits

First Cause of Action (i.e., Express Contractual Indemnity)

The elements of an express contractual indemnity cause of action are: (1) the parties’ contractual relationship, (2) the indemnitee’s performance of that portion of the contract which gives rise to the indemnification claim, (3) the facts showing a loss within the meaning of the parties’ indemnification agreement, and (4) the amount of damages sustained. (Four Star Electric, Inc. v. F&H Construction (1992) 7 Cal.App.4th 1375, 1379.)

Royal contends that this cause of action fails because the foundational contract(s) were not attached to the cross-complaint, nor was a verbatim recitation of the terms of the contract(s) set out in the cross-complaint.

A plaintiff, however, “may plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 199.) District has pled, in relevant part, that (1) the contracts between District and Cross-Defendants contain express indemnity provisions, which “provide that Cross-Defendants shall indemnify and hold harmless Cross-Complainants against any and all claims, costs, suits, and damages, including reasonable attorney’s fees and costs of defense arising out of Cross-Defendants’ and/or Cross-Defendants’ subcontractors’ negligent acts, errors, or omissions, including suits, claims, damages, losses, or expenses attributable to bodily injury,” that (2) “the claim alleged by Plaintiff in the underlying action involve[s] personal injuries,” and that (3) “all injuries and damages were caused by the acts or omissions of the Cross-Defendants, and each of them, arising out of and in connection with the performance of Cross-Defendants’ obligations pursuant to the written agreements entered into by each of them with the Cross-Complainants.” (Cross-Complaint, ¶¶10-11.)

Inasmuch as the first cause of action has been adequately pled, Royal’s demurrer to same is overruled.

Fourth Cause of Action (i.e., Declaratory Relief)

Royal contends that District “has neither attached the contract or contracts, nor does it cite the verbatim language to this Court, making it impossible for the Court to make any determination of declaration with respect to the contract(s).” (Demurrer, 5:21-23.) Not so, As set forth above, District has adequately pled the legal effect of the contract; accordingly, Royal’s demurrer to the fourth cause of action is overruled.

2. Motion to Bifurcate

Legal Standard

“The court may, when the convenience of witnesses, the ends of justice, or the economy and

efficiency of handling the litigation would be promoted thereby, on motion of a party, after

notice and hearing, make an order, no later than the close of pretrial conference in cases in which

such pretrial conference is to be held, or, in other cases, no later than 30 days before the trial

date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any

part thereof in the case. . .” (CCP § 598.)

Discussion

Nazerian moves the court for an order, per CCP § 598, to bifurcate the trial so that the issue of liability is tried in advance of the issue of damages.

Nazerian represents that the issue of liability will be much shorter to try than the issue of damages.

Nazerian’s motion for bifurcation is taken off-calendar. This is a trial court issue for the trial judge to determine. Nazerian is instructed to renew its request to bifurcate with the trial judge.

3. Motion to Sever

Legal Standard

“The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute or this state or of the United States.” (CCP § 1048(b).)

Discussion

Royal moves the court, per CCP § 1048(b), for an order to sever the trial of the cross-complaint between District and Royal from the trial of Plaintiff’s complaint.

Royal’s motion for severance is taken off-calendar. Again, this is a trial court issue for the trial judge to determine. Royal is instructed to renew its request to bifurcate with the trial judge.


[1] Motion #1 was filed and overnight mail-served on January 10, 2020 and originally set for hearing on February 6, 2020. On February 3, 2020, moving party filed an amended notice of ruling, advising that the hearing had been rescheduled by the court to February 10, 2020.

[2] Motion #3 was filed and personally served on January 22, 2020 and originally set for hearing on February 14, 2020. On January 27, 2020, moving party filed and email and overnight mail-served a “Notice of Advancing of Hearing Date. . .,” advising therein that the court has rescheduled the hearing to February 10, 2020.

Case Number: BC649021    Hearing Date: February 07, 2020    Dept: J

HEARING DATE: Friday, February 7, 2020

NOTICE: OK

RE: Lopez v. Citrus Obstetrics and Gynecology Medical Associates, Inc., et al. (BC692954) [AMENDED]

______________________________________________________________________________

 

Plaintiffs Magaly Lopez’s and Austin Lopez’s, a minor by and through his Guardian ad

Litem, Magaly Lopez’s MOTION FOR ORDER COMPELLING CITRUS VALLEY

MEDICAL CENTER, INC.’S EMPLOYEES TO APPEAR AND TESTIFY AT

DEPOSITION

Responding Party: Defendant, Citrus Valley Medical Center, Inc.

Tentative Ruling

See below.

Background

Plaintiffs Magaly Lopez (“Magaly”) and Austin Lopez, a minor by and through his Guardian ad Litem, Magaly Lopez (“Austin”) (collectively, “Plaintiffs”) contend that defendants failed to diagnose and treat Magaly’s infection, failed to diagnose fetal abnormalities and were otherwise negligent in rendering care to Magaly and Austin.

On March 29, 2018, this case was transferred from Department 92 (personal injury hub) to this instant department. On April 23, 2018, Plaintiffs dismissed their sixth cause of action against Citrus Obstetrics and Gynecology Medical Associates, Inc. (Citrus Obstetrics”), Jason Sean Begley, M.D. (“Begley”), Ian Douglas Macagy, M.D. (“Macagy”), Carols Beharie, M.D. (“Beharie”), Western University of Health Sciences (“Western University”) and Stephanie White, D.O. (“White”), without prejudice. On April 23, 2018, Magaly dismissed her third cause of action against Citrus Valley Medical Center, Inc. (“CVMC”), without prejudice.

On August 16, 2018, Plaintiffs filed a First Amended Complaint, asserting causes of action against Defendants Citrus Obstetrics, CVMC, Begley, Macagy, Beharie, Western University, White, Perpetua A. Lawa-Alejo, M.D. (Doe 1), Gilbert Furman, M.D. (Doe 2), Mitchell R. Goldstein, M.D. (Doe 3), Mita Shah, M.D. (Doe 4), Pediatrix Medical Group of California (Doe 5) and Does 6-100 for:

  1. Medical Negligence
  2. Negligent Infliction of Emotional Distress

On September 13, 2019, the court granted Western University’s and White’s Motions for Summary Judgment. The Final Status Conference is set for November 9, 2020. Trial is set for November 17, 2020.

Legal Standard

“The service of a deposition notice under Section 2025.240 is effective to require any deponent who is a party to the action or an officer, director, managing agent, or employee of a party to attend and to testify, as well as to produce any document, electronically stored information, or tangible thing for inspection and copying.” (CCP § 2025.280(a).)

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

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 § 2025.450(b).)

“If a motion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, 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 § 2025.450(g)(1).)

Discussion

Plaintiffs move for an order compelling CVMC to produce its employees for depositions.

Plaintiffs also seek $8,956.20 in monetary sanctions against CVMC and its attorney Laura

Stephan (“Stephan”).

General Order Non-Compliance

 

Pursuant to the November 5, 2018 General Order Re Mandatory Electronic Filing for Civil, litigants are required to provide printed courtesy copies of all filings, including pleadings and motions (including attachments such as declarations and exhibits) of 26 pages or more and pleadings and motions that include points and authorities. Here, the court did not receive a courtesy copy of the papers filed by Plaintiffs and only received a courtesy copy of the papers filed by CVMC upon request by the court’s staff. Counsel is admonished. Counsel is instructed to comply with the court’s general order in future filings.

Analysis

The instant motion was filed on January 13, 2020. The court notes that on December 12, 2019, CVMC filed a “Motion for Protective Order Regarding Depositions of Citrus Valley Medical Center, Inc. Nursing Staff” (“Protective Order”), which is set for hearing on April 3, 2020. The Protective Order pertains to the three Notices of Depositions at issue in the instant motion.

Based on the above, the court CONTINUES the hearing on the instant motion to April 3, 2020.

Case Number: BC649021    Hearing Date: January 30, 2020    Dept: J

HEARING DATE: Thursday, January 30, 2020

NOTICE: OK[1]

RE: Lopez v. El Monte City School District, et al. (BC649021)

______________________________________________________________________________

Defendant Royal Construction Corp.’s MOTION FOR SUMMARY JUDGMENT

Responding Party: Plaintiff Guadalupe M. Lopez, a minor, by and through her Guardian

ad Litem, Patricia Diaz; Defendant, El Monte City School District

Tentative Ruling

Defendant Royal Construction Corp.’s Motion for Summary Judgment is DENIED.

Background

Plaintiff Guadalupe M. Lopez, a minor, by and through her Guardian ad Litem, Patricia Diaz (“Plaintiff”) alleges that on June 3, 2016, Plaintiff was severely injured after a school aide employee at Thompson Elementary School (“Thompson”) negligently steered Plaintiff’s wheelchair into a construction zone sandbag, causing Plaintiff’s wheelchair to tip over. On February 2, 2017, Plaintiff filed a complaint, asserting causes of action against Defendants El Monte City School District (“District”), Thompson, Royal Construction Corp. (“Royal”), Alsaleh Project Management, Inc. (“APM”) and Does 1-100 for:

  1. Negligence

  2. Violation of Government Code Secs. 815.4, 815.2 and 835

  3. Negligent Supervision

  4. Negligent Hiring and/or Retention

On April 26, 2017, Plaintiff dismissed Thompson, without prejudice. On September 12, 2018, Royal filed a cross-complaint, asserting causes of action against Cross-Defendants District, Thompson, APM and Roes 1-100 for:

  1. Implied Total Indemnity

  2. Equitable Indemnity on a Comparative Fault Basis

  3. Declaratory Relief

On October 2, 2018, APM filed a cross-complaint, asserting causes of action against Cross-Defendants Royal and Roes 1-100 for:

  1. Implied Indemnity

  2. Partial Indemnity

  3. Contribution

  4. Declaratory Relief

On October 16, 2018, Royal filed an Amendment to Cross-Complaint, wherein The Nazerian Group (“Nazerian”) was named in lieu of Roe 1. On October 18, 2018, this action was transferred from the personal injury hub (Department 3) to this department. On October 30, 2018, APM filed an Amendment to Cross-Complaint, wherein Nazerian was named in lieu of Roe 1.

On December 7, 2018, Nazerian filed a cross-complaint, asserting causes of action against Cross-Defendants Royal, APM, G&Y General Contractors, Inc. (“G&Y”), O C A Electrical Inc., Air Design Solutions and Moes 1-100 for:

  1. Indemnification

  2. Apportionment of Fault

  3. Declaratory Relief

  4. Express Indemnity

On March 6, 2019, Plaintiff filed an Amendment to Complaint, wherein Nazerian was named in lieu of Doe 1. On April 22, 2019, G&Y filed a cross-complaint, asserting causes of action against Cross-Defendants Royal, District, APM and Poes 1-50 for:

  1. Equitable/Implied Indemnity

On May 14, 2019, APM filed an Amendment to Cross-Complaint, wherein G&Y was named in lieu of Roe 2. On May 15, 2019, Plaintiff filed an Amendment to Complaint, wherein G&Y was named in lieu of Doe 2. On June 3, 2019, Royal filed an Amendment to Cross-Complaint, wherein G&Y was named in lieu of Roe 2.

On October 30, 2019, the court stayed the entry of summary judgment in favor of APM to give Plaintiff 20 days’ leave to amend the complaint to add a cause of action for general negligence before entry of judgment.

On November 12, 2019, Plaintiff filed a First Amended Complaint (“FAC”), asserting causes of action against District, Royal, APM, Nazerian, G&Y and Does 3-100 for:

  1. Dangerous Condition of Public Property

  2. Negligence

  3. Negligent Hiring/Retention/Supervision and/or Training

On November 27, 2019, District and Thompson filed a cross-complaint, asserting causes of action against Royal, APM, Nazerian, G&Y and Zoes 1-25 for:

  1. Express Contractual Indemnity

  2. Equitable Indemnity on a Comparative Fault Basis

  3. Apportionment of Fault

  4. Declaratory Relief

On December 16, 2019, APM filed an Amendment to Cross-Complaint, wherein District was named in lieu of Roe 3.

The Final Status Conference is set for February 10, 2020. Trial is set for February 18, 2020.

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119 [emphasis theirs].)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (CCP § 437c(p(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action of a defense thereto.” (CCP § 437(p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Id. at 467; CCP § 437c(c).)

Discussion

Royal moves the court for an order entering summary judgment in its favor and against

Plaintiff.

Procedural Deficiencies

Plaintiff’s objections are contained solely in the responsive separate statement, in violation of California Rules of Court (“CRC”) Rule 3.1354(b) (“[a]ll written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. . .”). The court declines to consider or rule on Plaintiff’s improper objections. (Hadjat v. State Farm Mut. Auto. Ins. Co. (2012) 211 Cal.App.4th 1, 9.)

Plaintiff’s responsive separate statement also contains citations to legal authority, which violates CRC Rule 3.1350. (See Page v. MiraCosta Community College Dist. (2009) 180 Cal.App.4th 471, 479, fn. 2 [i.e., “[w]e are compelled to note that many of the purported disputes set forth in Page’s responsive separate statements are premised on arguments or characterizations about the legal sufficiency of facts and documents, even when respondents repeat almost verbatim allegations from Page’s verified writ petition. To the extent disputes are premised on such argumentative statements or statements that go beyond the assertedly undisputed fact, they are ineffective to create triable issues”] and Ovajan Investors, Inc. v. California Coastal Com. (1997) 54 Cal.App.4th 373, 388 [i.e., “[t]o support the dispute, Ojavan Investors’ opposing separate statement refers to Government Code section 66499.11, paragraphs 2 through 8 of cross-defendant Bogart’s declaration, four exhibits and Civil Code section 1468. Reference to the statutes in the separate statement constitutes improper legal argument”].)

Plaintiff’s responsive separate statement also violates CRC Rule 3.1350(f)(2) (i.e., “[a]n opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers.”) Although Plaintiff indicates in response to each of Royal’s undisputed facts that the facts are disputed or undisputed, Plaintiff does not cite to any evidence in support of any contended disputes.

Evidentiary Objections

At the outset, the court rules on Royal’s evidentiary objections as follows: OVERRULED as to Nos. 1-7 and 9-11 and SUSTAINED as to No. 8.

Merits

On November 12, 2019, Plaintiff filed a First Amended Complaint (“FAC”) for (1) Dangerous Condition of Public Property (against District and Thompson only); (2) Negligence (against Royal, APM, Nazerian and G&Y only) and (3) Negligent Hiring/Retention/Supervision/Training (against District and Thompson only). Plaintiff has alleged, in relevant part, the following: Plaintiff is confined to a wheelchair for mobility. (FAC, ¶13.) On June 3, 2016, Plaintiff was on the premises at Thompson as a special needs student. (Id.) On that date, Plaintiff was being escorted through school property by a severely disabled student, who negligently steered the wheelchair into a construction zone sandbag, causing the wheelchair to tip over and severely injure Plaintiff. (Id.) Royal, APM, Nazerian, and G&Y were, upon information and belief, independent contractors hired by District to perform certain repairs, construction and renovations on the subject premises owned by District. (Id., ¶14.) Royal, APM, Nazerian and G&Y, upon information and belief, installed and placed the subject sandbags adjacent to a commonly used walkway, thereby negligently creating a dangerous condition which contributed to the incident which injured plaintiff. (Id., ¶15.) Royal, APM, Nazerian, and G&Y owed a duty of care to all reasonable foreseeable people, including Plaintiff, to conduct repairs, construction, renovation and improvement services on the subject premises in a safe and reasonable manner. (Id., ¶28.) Royal, APM, Nazerian and G&Y breached said duty of care by carelessly and negligently placing and installing sandbags adjacent to a commonly used walkway without providing sufficient warnings, guarding or other protection for users of the walkway (Id., ¶29.) Royal, APM, Nazerian and G&Y negligently managed, controlled, operated, supervised, performed work, and selected, hired, engaged and permitted others to perform repairs, construction, renovations and improvements on the subject premises resulting in the creation of a dangerous, defective and unsafe condition on the subject premises, including but not limited to the erection of temporary fencing and the placing of sandbags adjacent to a commonly used walkways and allowed such condition to remain on the subject premises with full knowledge of their existence, resulting in Plaintiff being thrown from her wheelchair and sustaining injuries. (Id., ¶¶30-31.)

“The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages.” (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.)

Royal clarifies for the court that “control is not an issue in this motion. The basis of the subject motion is that Royal Construction could not have contributed to causing the subject incident since it did not place the cardboard of the sandbags to the position that they were in when the subject incident occurred.” (Reply, 3:27-4:2.) The court notes that in the “Argument” portion of Royal’s moving papers, Royal identifies the elements of a cause of action for negligence, provides caselaw for the proposition that the existence of duty if a question of law, sets forth two sentences regarding ownership, possession, or control, and then hones in on intervening and superceding cause.

A complete defense to a cause of action for negligence is that of an intervening and superceding cause. CACI 432 sets forth the elements of third-party conduct as a superceding cause affirmative defense, as follows: (1) The third party’s conduct occurred after defendant’s conduct, (2) A reasonable person would consider the third party’s conduct as a highly unusual or an extraordinary response to the situation, (3) Defendant did not know and had no reason to expect that the third party would act in a negligent/wrongful manner and (4) The kind of harm resulting from the third party’s conduct was different from the kind of harm that could have been reasonably expected from defendant’s conduct.

“A superceding cause relieves a defendant from tort liability for a plaintiff’s injuries, if both the intervening act and the results of the act are not foreseeable. ‘[W]hat is required to be foreseeable is the general character of the event or harm. . . not its precise nature or manner of occurrence. Whether an intervening force is superceding or not generally presents a question of fact, but becomes a matter of law where only one reasonable conclusion may be reached.’” (Ash v. North American Title Co. (2014) 223 Cal.App.4th 1258, 1274 [citations omitted].)

Royal has submitted the following evidence: Royal did a construction project for District at Thompson, which began in or about August 2015 and was completed in or about August 2017. (Royal Separate Statement [hereinafter, “MSS”], No. 2.) APM was the project management company overseeing Royal’s construction project for District. (MSS No. 3.) In or about August or September 2015, Royal installed temporary fencing in the area were the subject incident occurred. (MSS No. 4.) APM directed Royal in the installation of the temporary fencing, which was in an area outside of Royal’s parameter of work; this was in an area where another project was being done by Nazerian. (Santos Decl., ¶5.) As part of the installation of the temporary fencing, sandbags are placed at the base of the fencing to stabilize the temporary fencing. (MSS No. 5.) The sandbags are placed about every ten to twelve feet along the temporary fencing. (MSS No. 6.) Royal did not move the temporary fencing or sandbags in or near the area where the subject accident occurred after Royal Construction initially installed it. (Chan Decl., ¶8.) The area where the subject incident occurred was changed after Royal initially installed the temporary fencing and sandbags in that area. (Id., ¶9.) The Nazerian Group or its subcontractors cut a trench diagonally across the walkway to installed electrical conduit; in the process of doing this and the other work in the area, the Nazerian Group or its subcontractors changed the placement of the sandbags and placed cardboard in the area where the subject incident occurred. (Id.)

The court determines that Royal has not met its moving burden; more specifically, Royal has failed to show that movement of the sandbags by another construction contractor was not foreseeable and the results which it caused were not foreseeable. The motion for summary judgment, then, is DENIED.


[1] On October 30, 2019, the court granted Plaintiff’s motion for trial preference; at that time, the trial date scheduled for May 5, 2020 was advanced to October 30, 2019 and continued to February 18, 2020. The instant motion was filed on November 8, 2019 and set for hearing on January 22, 2020. On January 22, 2020, the hearing was continued to January 30, 2020. The January 22, 2020 minute order expressly states that “[t]he court finds good cause to continue motion.” On January 24, 2020, Royal filed (mail and email served that day) a “Notice of Ruling Re. . . Motion for Summary Judgment,” advising therein, in relevant part, as follows: “Having issued a tentative ruling denying Royal’s Motion for Summary Judgment as procedurally improper, the Court heard oral argument and thereafter ruled as follows: 1. The Court found good cause existed to approve and permit Royal’s filing of its Motion for Summary Judgment within 30 days prior to trial. 2. The Court continued the hearing of Royal’s Motion for Summary Judgment to January 30, 2020 at 8:30 a.m. in Department J. 3. No further briefing or submissions are permitted.”

Case Number: BC649021    Hearing Date: January 22, 2020    Dept: J

HEARING DATE: Wednesday, January 22, 2020

NOTICE: See below

RE: Lopez v. El Monte City School District, et al. (BC649021)

______________________________________________________________________________

Defendant Royal Construction Corp.’s MOTION FOR SUMMARY JUDGMENT

Responding Party: Plaintiff Guadalupe M. Lopez, a minor, by and through her Guardian

ad Litem, Patricia Diaz

Tentative Ruling

Defendant Royal Construction Corp.’s Motion for Summary Judgment is DENIED.

Background

Plaintiff Guadalupe M. Lopez, a minor, by and through her Guardian ad Litem, Patricia Diaz (“Plaintiff”) alleges that on June 3, 2016, Plaintiff was severely injured after a school aide employee at Thompson Elementary School (“Thompson”) negligently steered Plaintiff’s wheelchair into a construction zone sandbag, causing Plaintiff’s wheelchair to tip over. On February 2, 2017, Plaintiff filed a complaint, asserting causes of action against Defendants El Monte City School District (“District”), Thompson, Royal Construction Corp. (“Royal”), Alsaleh Project Management, Inc. (“APM”) and Does 1-100 for:

  1. Negligence

  2. Violation of Government Code Secs. 815.4, 815.2 and 835

  3. Negligent Supervision

  4. Negligent Hiring and/or Retention

On April 26, 2017, Plaintiff dismissed Thompson, without prejudice. On September 12, 2018, Royal filed a cross-complaint, asserting causes of action against Cross-Defendants District, Thompson, APMand Roes 1-100 for:

  1. Implied Total Indemnity

  2. Equitable Indemnity on a Comparative Fault Basis

  3. Declaratory Relief

On October 2, 2018, APM filed a cross-complaint, asserting causes of action against Cross-Defendants Royal and Roes 1-100 for:

  1. Implied Indemnity

  2. Partial Indemnity

  3. Contribution

  4. Declaratory Relief

On October 16, 2018, Royal filed an Amendment to Cross-Complaint, wherein The Nazerian Group (“Nazerian”) was named in lieu of Roe 1. On October 18, 2018, this action was transferred from the personal injury hub (Department 3) to this department. On October 30, 2018, APM filed an Amendment to Cross-Complaint, wherein Nazerian was named in lieu of Roe 1.

On December 7, 2018, Nazerian filed a cross-complaint, asserting causes of action against Cross-Defendants Royal, APM, G&Y General Contractors, Inc. (“G&Y”), O C A Electrical Inc., Air Design Solutions and Moes 1-100 for:

  1. Indemnification

  2. Apportionment of Fault

  3. Declaratory Relief

  4. Express Indemnity

On March 6, 2019, Plaintiff filed an Amendment to Complaint, wherein Nazerian was named in lieu of Doe 1. On April 22, 2019, G&Y filed a cross-complaint, asserting causes of action against Cross-Defendants Royal, District, APM and Poes 1-50 for:

  1. Equitable/Implied Indemnity

On May 14, 2019, APM filed an Amendment to Cross-Complaint, wherein G&Y was named in lieu of Roe 2. On May 15, 2019, Plaintiff filed an Amendment to Complaint, wherein G&Y was named in lieu of Doe 2. On June 3, 2019, Royal filed an Amendment to Cross-Complaint, wherein G&Y was named in lieu of Roe 2.

On October 30, 2019, the court stayed the entry of summary judgment in favor of APM to give Plaintiff 20 days’ leave to amend the complaint to add a cause of action for general negligence before entry of judgment.

On November 12, 2019, Plaintiff filed a First Amended Complaint (“FAC”), asserting causes of action against District, Royal, APM, Nazerian, G&Y and Does 3-100 for:

  1. Dangerous Condition of Public Property

  2. Negligence

  3. Negligent Hiring/Retention/Supervision and/or Training

On November 27, 2019, District and Thompson filed a cross-complaint, asserting causes of action against Royal, APM, Nazerian, G&Y and Zoes 1-25 for:

  1. Express Contractual Indemnity

  2. Equitable Indemnity on a Comparative Fault Basis

  3. Apportionment of Fault

  4. Declaratory Relief

On December 16, 2019, APM filed an Amendment to Cross-Complaint, wherein District was named in lieu of Roe 3.

The Final Status Conference is set for February 10, 2020. Trial is set for February 18, 2020.

Discussion

Royal moves the court for an order entering summary judgment in its favor and against

Plaintiff.

The motion is DENIED as procedurally improper. On October 30, 2019, the court granted Plaintiff’s motion for trial preference; at that time, the trial date scheduled for May 5, 2020 was advanced to October 30, 2019 and continued to February 18, 2020. The instant motion was filed on November 8, 2019 and set for hearing on January 22, 2020. CCP § 437c(a)(3) provides that “[t]he motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.” January 22, 2020 is less than 30 days before February 18, 2020.

Royal failed to obtain approval from the court to have the motion heard within 30 days of the trial date prior to filing the motion. In Robinson v. Woods (2008) 168 Cal.App.4th 1258, the Second District, Division One Court of Appeal held that the trial court abused its discretion when the trial court excused defendant’s failure to comply with CCP § 437c(a) after the fact. Although Royal, in its October 24, 2019 response to Plaintiff’s motion for trial preference, requested that Royal be provided sufficient time to prepare and file a motion for summary judgment in the event preference was granted, Royal did not ask that any such motion be permitted to be heard on a date less than 30 days before trial. The October 30, 2019 minute order, the Order Granting Plaintiff’s Motion for Trial Preference filed October 30, 2019 and the Notice of Ruling filed and mail-served on November 5, 2019, moreover, are all silent in this regard.

Case Number: BC649021    Hearing Date: December 23, 2019    Dept: J

HEARING DATE: Monday, December 23, 2019

NOTICE: OK[1]

RE: Lopez v. El Monte City School District, et al. (BC649021)

______________________________________________________________________________

Defendant Alsaleh Project Management, Inc.’s MOTION FOR SUMMARY JUDGMENT

Responding Party: Plaintiff Guadalupe M. Lopez, a minor, by and through her Guardian

ad Litem, Patricia Diaz; Defendant Royal Construction Corp.; Defendant El Monte City School

District

Tentative Ruling

Defendant Alsaleh Project Management, Inc.’s Motion for Summary Judgment is DENIED.

Background

Plaintiff Guadalupe M. Lopez, a minor, by and through her Guardian ad Litem, Patricia Diaz (“Plaintiff”) alleges that on June 3, 2016, Plaintiff was severely injured after a school aide employee at Thompson Elementary School (“Thompson”) negligently steered Plaintiff’s wheelchair into a construction zone sandbag, causing Plaintiff’s wheelchair to tip over. On February 2, 2017, Plaintiff filed a complaint, asserting causes of action against Defendants El Monte City School District (“District”), Thompson, Royal Construction Corp. (“Royal”), Alsaleh Project Management, Inc. (“APM”) and Does 1-100 for:

  1. Negligence

  2. Violation of Government Code Secs. 815.4, 815.2 and 835

  3. Negligent Supervision

  4. Negligent Hiring and/or Retention

On April 26, 2017, Plaintiff dismissed Thompson, without prejudice. On September 12, 2018, Royal filed a cross-complaint, asserting causes of action against Cross-Defendants District, Thompson, APMand Roes 1-100 for:

  1. Implied Total Indemnity

  2. Equitable Indemnity on a Comparative Fault Basis

  3. Declaratory Relief

On October 2, 2018, APM filed a cross-complaint, asserting causes of action against Cross-Defendants Royal and Roes 1-100 for:

  1. Implied Indemnity

  2. Partial Indemnity

  3. Contribution

  4. Declaratory Relief

On October 16, 2018, Royal filed an Amendment to Cross-Complaint, wherein The Nazerian Group (“Nazerian”) was named in lieu of Roe 1. On October 18, 2018, this action was transferred from the personal injury hub (Department 3) to this department. On October 30, 2018, APM filed an Amendment to Cross-Complaint, wherein Nazerian was named in lieu of Roe 1.

On December 7, 2018, Nazerian filed a cross-complaint, asserting causes of action against Cross-Defendants Royal, APM, G&Y General Contractors, Inc. (“G&Y”), O C A Electrical Inc., Air Design Solutions and Moes 1-100 for:

  1. Indemnification

  2. Apportionment of Fault

  3. Declaratory Relief

  4. Express Indemnity

On March 6, 2019, Plaintiff filed an Amendment to Complaint, wherein Nazerian was named in lieu of Doe 1. On April 22, 2019, G&Y filed a cross-complaint, asserting causes of action against Cross-Defendants Royal, District, APM and Poes 1-50 for:

  1. Equitable/Implied Indemnity

On May 14, 2019, APM filed an Amendment to Cross-Complaint, wherein G&Y was named in lieu of Roe 2. On May 15, 2019, Plaintiff filed an Amendment to Complaint, wherein G&Y was named in lieu of Doe 2. On June 3, 2019, Royal filed an Amendment to Cross-Complaint, wherein G&Y was named in lieu of Roe 2.

On October 30, 2019, the court stayed the entry of summary judgment in favor of APM to give Plaintiff 20 days’ leave to amend the complaint to add a cause of action for general negligence before entry of judgment.

On November 12, 2019, Plaintiff filed a First Amended Complaint (“FAC”), asserting causes of action against District, Royal, APM, Nazerian, G&Y and Does 3-100 for:

  1. Dangerous Condition of Public Property

  2. Negligence

  3. Negligent Hiring/Retention/Supervision and/or Training

On November 27, 2019, District and Thompson filed a cross-complaint, asserting causes of action against Royal, APM, Nazerian, G&Y and Zoes 1-25 for:

  1. Express Contractual Indemnity

  2. Equitable Indemnity on a Comparative Fault Basis

  3. Apportionment of Fault

  4. Declaratory Relief

On December 16, 2019, APM filed an Amendment to Cross-Complaint, wherein District was named in lieu of Roe 3.

The Final Status Conference is set for February 10, 2020. Trial is set for February 18, 2020.

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119 [emphasis theirs].)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (CCP § 437c(p(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action of a defense thereto.” (CCP § 437(p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Id. at 467; CCP § 437c(c).)

Discussion

APM moves the court for an order entering summary judgment in its favor and against

Plaintiff.

APM’s motion was originally heard on October 30, 2019; at that time, the court continued the hearing on the motion to December 12, 2019 and ordered summary judgment stayed to give Plaintiff 20 days leave to amend the complaint to add a cause of action for general negligence before entry of judgment.

On November 12, 2019, Plaintiff filed a First Amended Complaint (“FAC”) for (1) Dangerous Condition of Public Property (against District and Thompson only); (2) Negligence (against Royal, APM, Nazerian and G&Y only) and (3) Negligent Hiring/Retention/Supervision/Training (against District and Thompson only). Plaintiff has alleged, in relevant part, the following: Plaintiff is confined to a wheelchair for mobility. (FAC, ¶13.) On June 3, 2016, Plaintiff was on the premises at Thompson as a special needs student. (Id.) On that date, Plaintiff was being escorted through school property by a severely disabled student, who negligently steered the wheelchair into a construction zone sandbag, causing the wheelchair to tip over and severely injure Plaintiff. (Id.) Royal, APM, Nazerian, G&Y were, upon information and belief, independent contractors hired by District to perform certain repairs, construction and renovations on the subject premises owned by District. (Id., ¶14.) Royal, APM, Nazerian, and G&Y owed a duty of care to all reasonable foreseeable people, including Plaintiff, to conduct repairs, construction, renovation and improvement services on the subject premises in a safe and reasonable manner. (Id., ¶28.) Royal, APM, Nazerian and G&Y breached said duty of care by carelessly and negligently placing and installing sandbags adjacent to a commonly used walkway without providing sufficient warnings, guarding or other protection for users of the walkway (Id., ¶29.) Royal, APM, Nazerian and G&Y negligently managed, controlled, operated, supervised, performed work, and selected, hired, engaged and permitted others to perform repairs, construction, renovations and improvements on the subject premises resulting in the creation of a dangerous, defective and unsafe condition on the subject premises, including but not limited to the erection of temporary fencing and the placing of sandbags adjacent to a commonly used walkways and allowed such condition to remain on the subject premises with full knowledge of their existence, resulting in Plaintiff being thrown from her wheelchair and sustaining injuries. (Id., ¶¶30-31.)

“The elements of any negligence cause of action are duty, breach of duty, proximate cause, and damages.” (Peredia v. HR Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 687.) “’A tort, whether intentional or negligent, involves a violation of a legal duty, imposed by statute, contract or otherwise, owed by the defendant to the person injured. Without such duty. Any injury is

“damnum absque injuria”—injury without wrong. [Citations.].’” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 292, quoting 5 Witkin, Summary of Cal. Law (10th ed. 1988) Torts, § 6, p. 61.) “The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion.” (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614.) “Whether this essential prerequisite to a negligence cause of action has been satisfied in a particular case is a question of law to be resolved by the court. (Id.) Whether a duty exists, however, may depends upon the resolution of underlying factual issues for which there may be a factual dispute: “[t]hus, if the record can support competing inferences, or if the facts are not yet sufficiently developed, ‘”an ultimate finding on the existence of a duty cannot be made prior to a hearing on the merits,”’ and summary judgment is precluded.” (Id. at 615 [citations omitted].)

APM has submitted the following evidence: In June of 1999, APM contracted with District for construction project management services for various modernization and growth projects throughout the district. (APM Separate Statement (“MSS” No. 6.) This Agreement for Project Management Services was in full force and effect on the day of the subject accident. (Alsaleh Decl., ¶3.) The Agreement provides, in pertinent part, that “[t]he PROJECT MANAGER shall not be responsible for, nor have control or charge of, construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the project, since these are solely Contractor’s responsibility. . .” and that “the project manager shall not be responsible for, nor have control over, the acts or omissions of the contractors, subcontractors, any of their agents or employees, or any other persons performing any work.” (Id.) As Project Manager, APM functioned as El Monte’s representative for the subject project. (Id., ¶5.) During the construction phase of the contract, APM administered the construction contracts as provided in the general conditions of the construction contracts. (Id., ¶6.) APM provided contract administration as the agent and representative which is distinguished from (1) the continuous inspection of the District’s project inspector or (2) the architects’ site visits during the construction phase. (Id., ¶7.) APM was responsible for maintaining a daily log of activities at the site, including but not limited to weather conditions, number of contractor’s employees, subcontractors, subcontractor employees and others at the site, general nature of work in progress, any special events or activities, anything that may delay the schedule or increase cost, and any other information that the Project Manager in its discretion determines that it will include in its log. (Id., ¶8.) APM would provide monthly construction cost reports for the project showing approved budget, current estimate, original and adjusted contract amount for each construction contract, approved changes and anticipated changes, and develop construction billing forecasts. (Id., ¶9.) APM would also hold site project progress meetings during construction. (Id., ¶10.) APM did not install the fence surrounding the subject walkway where the accident occurred. (Id., ¶12.) APM did not control or oversee the manner or method for construction of the fencing. (Id., ¶13.) APM did not supply materials to build the fencing at the construction site. (Id., ¶14.) APM did not place any sandbags at the construction site. (Id., ¶15.) APM did not instruct any third party to place any sandbags at the construction site. (Id., ¶16.) APM did not control or oversee the manner, method or area of placement of the sandbags at the construction site. (Id., ¶17.) APM did not supply or maintain the sandbags. (Id., ¶18.) APM did not require, order, or direct the placement of the sandbags at the construction site. (Id., ¶19.) APM did not control the means or methods of any contractor’s or subcontractor’s work at the subject project. (Id., ¶¶20-21.) APM did not pay any contractor or its employees or any subcontractor either a salary or any type of hourly compensation. (Id., ¶¶22-23.)

In opposition, Royal has submitted a declaration from Ferwin Santos (“Santos”), who served as Project Manager on the construction project done for District at Thompson. (Santos Decl., ¶2.) Santos’ duties on the project included negotiating the contract, coordinating the progress of the project, executing change orders, determining if changes impacted cost, scheduling and overseeing day-to-day activities. (Id.) Santos interacted on a daily basis with APM personnel. (Id.) APM oversaw the job being done by Royal as well as another construction job being done at Thompson; the general contractor on the other construction job was Nazerian. (Id., ¶3.) APM directed Royal in the installation of temporary fencing in an area outside of Royal’s parameter of work. (Id., ¶4.) This was an area where another project was being done by Nazerian. (Id.) Royal did not work in this area which included the walkway where the incident occurred. (Id.) Royal did not have Nazazerian’s plans, or any plans, for work in Nazerian’s area including plans that set forth where the temporary fencing should be placed for Nazerian’s work. (Id.) APM specifically told Royal where to put this temporary fencing; otherwise, Royal would not have known where APM wanted the temporary fencing placed. (Id.) Sandbags were used to stabilize the temporary fencing. (Id., ¶5.) APM inspected and approved the setup of the temporary fencing and the positioning of the sandbags after out in place by Royal. (Id.) Royal only moved the temporary fencing (and sandbags) at the project when directed to do so by, or with the approval of, APM. (Id.) Royal did not move the temporary fencing or sandbgas form the time it initially placed the temporary fencing and sandbags in the area where the subject incident occurred to the time of the subject incident. (Id.) Between the times Royal placed the temporary fencing and sandbags near the area where the subject incident occurred and the subject incident, the temporary fencing and sandbags were being moved by the personnel working on the Nazerian project on almost a daily basis. (Id., ¶6.) There would be discussions on occasion at the weekly management meetings regarding the temporary fencing at the school on both Royal’s project and Nazerian’s project. (Id.) When issues related to temporary fencing arose related to the Nazerian project, APM took responsibility for taking care of the issue and notifying Nazerian to take the necessary corrective action. (Id.) Nazerian was not part of the weekly management meetings because it was not part of Royal’s project. (Id.)

Plaintiff has submitted APM meeting minutes from March 16, 2016 (i.e., Weekly Project Meeting 22) which reflect as follows: “Temp. Fencing/Site Access/Job Site Keys: 02-24-16: (SC)[2] Nazerian needs to protect temporary fencing. (AA)[3] Will issue notice to Nazerian they are responsible to protect all temporary fencing. 03-16-06: (AA) Good with temporary fencing at this time.” (Sanvictores Decl., ¶8, Exh. 7.) Plaintiff has also submitted APM meeting minutes from April 20, 2016 (i.e., Weekly Project Meeting 24) which reflect as follows: “Temp Fencing/Site Access/Job Site Keys: 04-07-16: (DR)[4] Will be changing the temporary fencing between Buildings B&C for demo work. 04-20-16: (SC) Would like to make sure that Nazerian is taking care of temporary fencing. There is a safety concern that Nazerian is leaving the fencing open during school hours. Need to be closed. (AA) Will notify Nazerian about this issue.” (Id.)

The court determines that opposing parties have succeeded in raising triable issues of material fact as to duty. There is, at a minimum, conflicting evidence from APM and Royal regarding whether APM has control over the placement of the temporary fencing and sandbags. The motion for summary judgment, then, is DENIED.


[1] Motion #1 was originally set for hearing on November 1, 2019 and subsequently advanced to October 30, 2019. On that latter date, the court continued the hearing to December 12, 2019 and ordered summary judgment stayed “to give Plaintiff 20 days leave to amend the complaint to add a cause of action for general negligence before entry of judgment.” On December 5, 2019, the court rescheduled the December 12, 2019 hearing to December 23, 2019.

[2] “(SC)” corresponds to “Sonny Chan” of Royal, as set forth on Page 1.

[3] “(AA)” corresponds to Atta Alsaleh of APM, as set forth on Page 1.

[4] “(DR)” corresponds to David Razipour of Alsaleh, as set forth on Page 1.

Case Number: BC649021    Hearing Date: November 01, 2019    Dept: J

HEARING DATE: Friday, November 1, 2019

NOTICE: OK

RE: Lopez v. El Monte City School District, et al. (BC649021)

______________________________________________________________________________

Defendant Alsaleh Project Management, Inc.’s MOTION FOR SUMMARY JUDGMENT

Responding Party: Plaintiff Guadalupe M. Lopez, a minor, by and through her Guardian

ad Litem, Patricia Diaz; Defendant Royal Construction Corp.

Tentative Ruling

See below.

 

Background

Plaintiff Guadalupe M. Lopez, a minor, by and through her Guardian ad Litem, Patricia Diaz (“Plaintiff”) alleges that on June 3, 2016, Plaintiff was severely injured after a school aide employee at Thompson Elementary School (“Thompson”) negligently steered Plaintiff’s wheelchair into a construction zone sandbag, causing Plaintiff’s wheelchair to tip over. On February 2, 2017, Plaintiff filed a complaint, asserting causes of action against Defendants El Monte City School District (“District”), Thompson, Royal Construction Corp. (“Royal”), Alsaleh Project Management, Inc. (“Alsaleh”) and Does 1-100 for:

  1. Negligence

  2. Violation of Government Code Secs. 815.4, 815.2 and 835

  3. Negligent Supervision

  4. Negligent Hiring and/or Retention

On April 26, 2017, Plaintiff dismissed Thompson, without prejudice. On September 12, 2018, Royal filed a cross-complaint, asserting causes of action against Cross-Defendants District, Thompson, Alsaleh and Roes 1-100 for:

  1. Implied Total Indemnity

  2. Equitable Indemnity on a Comparative Fault Basis

  3. Declaratory Relief

On October 2, 2018, Alsaleh filed a cross-complaint, asserting causes of action against Cross-Defendants Royal and Roes 1-100 for:

  1. Implied Indemnity

  2. Partial Indemnity

  3. Contribution

  4. Declaratory Relief

On October 16, 2018, Royal filed an Amendment to Cross-Complaint, wherein The Nazerian Group (“Nazerian”) was named in lieu of Roe 1. On October 18, 2018, this action was transferred from the personal injury hub (Department 3) to this department. On October 30, 2018, Alsaleh filed an Amendment to Cross-Complaint, wherein Nazerian was named in lieu of Roe 1.

On December 7, 2018, Nazerian filed a cross-complaint, asserting causes of action against Cross-Defendants Royal, Alsaleh, G&Y General Contractors, Inc. (“G&Y”), O C A Electrical Inc., Air Design Solutions and Moes 1-100 for:

  1. Indemnification

  2. Apportionment of Fault

  3. Declaratory Relief

  4. Express Indemnity

On March 6, 2019, Plaintiff filed an Amendment to Complaint, wherein Nazerian was named in lieu of Doe 1. On April 22, 2019, G&Y filed a cross-complaint, asserting causes of action against Cross-Defendants Royal, District, Alsaleh and Poes 1-50 for:

  1. Equitable/Implied Indemnity

On May 14, 2019, Alsaleh filed an Amendment to Cross-Complaint, wherein G&Y was named in lieu of Roe 2. On May 15, 2019, Plaintiff filed an Amendment to Complaint, wherein G&Y was named in lieu of Doe 2. On June 3, 2019, Royal filed an Amendment to Cross-Complaint, wherein G&Y was named in lieu of Roe 2.

The Final Status Conference is set for April 27, 2020. Trial is set for May 5, 2020.

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119 [emphasis theirs].)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (CCP § 437c(p(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action of a defense thereto.” (CCP § 437(p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Id. at 467; CCP § 437c(c).)

“The pleadings play a key role in a summary judgment motion.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues. . .” (Orange County Air Pollution Control Dist. v. Superior Court (1972) 27 Cal.App.3d 109, 113) and to serve “as the outer measure of materiality” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.) “[A] motion by a defendant under section 437c of the Code of Civil Procedure necessarily includes a test of the sufficiency of the complaint. . . Motions for summary judgment in such situations have otherwise been allowed as being in legal effect motions for judgment on the pleadings.” (C.L. Smith Co. v. Roger Ducharme, Inc. (1977) 65 Cal.App.3rd 735, 745.) “Summary judgment cannot be granted on a ground not raised by the pleadings. Conversely, summary judgment cannot be denied on a ground not raised by the pleadings.” (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663.)

Discussion

Alsaleh moves the court for an order entering summary judgment in its favor and against

Plaintiff.

On February 2, 2017, Plaintiff filed a complaint for (1) Negligence (against District and Thompson only); (2) Violation of Government Code Sections 815.4, 815.2 and 835 against Royal and Alsaleh only); (3)Negligent Supervision (against District and Thompson only) and (4) Fore Negligent Hiring and/or Retention (against District and Thompson only). The only cause of action, then, presently asserted against Alsaleh is for Violation of Government Code Sections 815.4, 815.2 and 835.

Government Code § 815.4 provides that “[a] public entity is liable for injury proximately caused by a tortious act or omission or an independent contractor of the public entity to the same extent that the public entity would be subject to such liability if it were a private person. Nothing in this section subjects a public entity for the act or omission of an independent contractor if the public entity would not have been liable for the injury had the act or omission been that of an employee or the public entity.”

Government Code § 815.2 states that “(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative. (b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”

Government Code § 835 provides that “[e]xcept as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

Alsaleh is not a public entity (Alsaleh Decl., ¶24); accordingly, it would appear, at first blush, that the motion should be summarily granted. Alsalah additionally argues that “[a]ssuming that Plaintiff’s Complaint is amended to allege Negligence against [Alsalah],” it is entitled to summary judgment on the basis that Alsaleh owed no duty to Plaintiff. (Motion, 7:3-12:12). The court, however, cannot grant summary judgment on a ground not raised by the pleadings.

Plaintiff, in opposition, concedes that “Plaintiff alleged causes of actions [sic] against [Alsaleh] for violation of Government Code Sections 815.4, 815.2 and 835” and that “Plaintiff understands that [Alsaleh] is not a public entity.” (Opposition, 9:19-20.) Plaintiff, though, asserts that Plaintiff can successfully amend the complaint to assert a negligence cause of action against Alsaleh and refers to a November 20, 2019 hearing date on a Motion for Leave to Amend. (Id., 9:17-18 and 9:20-22.) Although Plaintiff reserved November 20, 2019 as a hearing date for a Motion for Leave to Amend, Plaintiff never actually filed the motion. With that said, “[i]n the course of deciding a motion for summary judgment, if a trial court concludes the complaint is insufficient as a matter of law, it may elect to treat the hearing of the judgment motion as a motion for judgment on the pleadings and grant the opposing party an opportunity to file an amended complaint to correct the defect .. .[T]he action should not be dismissed. Rather, it should be treated the same as if a motion for judgment on the pleadings were granted. Plaintiff should be given leave to amend the complaint to cure the defect (assuming the defect is curable). Summary judgment should be stayed pending the amendment.” (Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1384 [internal quotations and citations omitted]; see also Bostrom, supra, 35 Cal.App.4th at 1663 [“However, if summary judgment is granted on the ground that the complaint is legally insufficient, but it appears from the materials submitted in opposition to the motion that the plaintiff could state a cause of action, the trial court should give the plaintiff an opportunity to amend the complaint before entry of judgment”].) “[A] request for leave to amend a complaint need not be made before a hearing on a motion for summary judgment; rather, it may be made at the hearing or any time before entry of judgment.” (Prue, supra, 242 Cal.App.4th at 1385.) “Denial of leave to amend a complaint is an abuse of discretion unless the complaint shows on its face that it is incapable of amendment to state a viable cause of action.” (Id.)

In accordance with the above authorities, summary judgment is stayed to give Plaintiff 20 days’ leave to amend the complaint to add a cause of action for general negligence before entry of judgment.

Case Number: BC649021    Hearing Date: October 30, 2019    Dept: J

HEARING DATE: Wednesday, October 30, 2019

NOTICE: OK

RE: Lopez v. El Monte City School District, et al. (BC649021)

______________________________________________________________________________

Plaintiff Guadalupe M. Lopez, a minor, by and through her Guardian ad Litem, Patricia Diaz’s MOTION FOR TRIAL PREFERENCE

Responding Party: Defendant, El Monte City School District

Tentative Ruling

Plaintiff Guadalupe M. Lopez, a minor, by and through her Guardian ad Litem, Patricia Diaz’s Motion for Trial Preference is GRANTED.

 

Background

Plaintiff Guadalupe M. Lopez, a minor, by and through her Guardian ad Litem, Patricia Diaz (“Plaintiff”) alleges that on June 3, 2016, Plaintiff was severely injured after a school aide employee at Thompson Elementary School (“Thompson”) negligently steered Plaintiff’s wheelchair into a construction zone sandbag, causing Plaintiff’s wheelchair to tip over. On February 2, 2017, Plaintiff filed a complaint, asserting causes of action against Defendants El Monte City School District (“District”), Thompson, Royal Construction Corp. (“Royal”), Alsaleh Project Management, Inc. (“Alsaleh”) and Does 1-100 for:

  1. Negligence

  2. Violation of Government Code Secs. 815.4, 815.2 and 835

  3. Negligent Supervision

  4. Negligent Hiring and/or Retention

On April 26, 2017, Plaintiff dismissed Thompson, without prejudice. On September 12, 2018, Royal filed a cross-complaint, asserting causes of action against Cross-Defendants District, Thompson, Alsaleh and Roes 1-100 for:

  1. Implied Total Indemnity

  2. Equitable Indemnity on a Comparative Fault Basis

  3. Declaratory Relief

On October 2, 2018, Alsaleh filed a cross-complaint, asserting causes of action against Cross-Defendants Royal and Roes 1-100 for:

  1. Implied Indemnity

  2. Partial Indemnity

  3. Contribution

  4. Declaratory Relief

On October 16, 2018, Royal filed an Amendment to Cross-Complaint, wherein The Nazerian Group (“Nazerian”) was named in lieu of Roe 1. On October 18, 2018, this action was transferred from the personal injury hub (Department 3) to this department. On October 30, 2018, Alsaleh filed an Amendment to Cross-Complaint, wherein Nazerian was named in lieu of Roe 1.

On December 7, 2018, Nazerian filed a cross-complaint, asserting causes of action against Cross-Defendants Royal, Alsaleh, G&Y General Contractors, Inc. (“G&Y”), O C A Electrical Inc., Air Design Solutions and Moes 1-100 for:

  1. Indemnification

  2. Apportionment of Fault

  3. Declaratory Relief

  4. Express Indemnity

On March 6, 2019, Plaintiff filed an Amendment to Complaint, wherein Nazerian was named in lieu of Doe 1. On April 22, 2019, G&Y filed a cross-complaint, asserting causes of action against Cross-Defendants Royal, District, Alsaleh and Poes 1-50 for:

  1. Equitable/Implied Indemnity

On May 14, 2019, Alsaleh filed an Amendment to Cross-Complaint, wherein G&Y was named in lieu of Roe 2. On May 15, 2019, Plaintiff filed an Amendment to Complaint, wherein G&Y was named in lieu of Doe 2. On June 3, 2019, Royal filed an Amendment to Cross-Complaint, wherein G&Y was named in lieu of Roe 2.

The Final Status Conference is set for April 27, 2020. Trial is set for May 5, 2020.

Legal Standard

“A civil action to recover damages for wrongful death or personal injury shall be entitled to preference upon the motion of any party to the action who is under 14 years of age unless the court finds that the party does not have a substantial interest in the case as a whole. . .” (CCP §36(b).)

If a motion is granted under CCP § 36, the court must set a trial date not more than 120 days from the date that the motion is granted. (CCP § 36(f).) Finally, CCP § 36(c)(1) requires that all essential parties be served with process or have appeared in the action in order to grant a motion for preference.

Discussion

Plaintiff moves the court, per CCP § 36(b), for an order granting trial preference in this action.

Plaintiff was born on December 7, 2007. (Lucas Decl., ¶3.) The court finds that Plaintiff has a substantial interest in the action because she is the only named Plaintiff in the case. Plaintiff’s counsel represents that all essential parties have been served or have appeared in this action. (Id., ¶2.)

District does not oppose the motion, but requests that trial be set no sooner than February 27, 2020, which is 120 days after the hearing date for the motion so that it may complete discovery. District represents that the following discovery is underway: (1) Plaintiff’s mental and psychological examination (scheduled for November 11, 2019), (2) deposition of treating doctor Jay Desai (scheduled for October 29, 2019), (3) deposition of treating doctor Gordon McComb (scheduled for October 29, 2019), (4) deposition of treating doctor Mohammed Rasekhi (scheduled for October 30, 2019) and (5) District’s further remand on Plaintiff to identify and to produce additional documents, served on October 14, 2019. District further represents that there will be at least a dozen experts designated by the parties involved in this case, and notes that the upcoming holiday season will interfere with pre-trial discovery to some extent. District also requests the full 120 days to allow for sufficient time to complete private mediation, which it represents is tentatively scheduled for December 2019.

The court determines that Plaintiff has satisfied the requirements under CCP § 36(b); accordingly, the motion is GRANTED. The Trial and Final Status Conference dates will be set at the time of the hearing.