GUADALUPE M LOPEZ VS EL MONTE CITY SCHOOL DISTICT ET AL

Tentative Rulings

Case Number: BC649021 Hearing Date: February 1, 2023 Dept: O

HEARING DATE: February 1, 2023

RE: GUADALUPE M LOPEZ VS EL MONTE CITY SCHOOL DISTICT ET AL (BC649021)

Hearing re Minor’s Compromise and Approval of Special Needs Trust

Tentative Ruling

Hearing re Minor’s Compromise and Approval of Special Needs Trust is GRANTED, contingent upon the Plaintiff incorporating the minor required changes below, the matter needs to be continued for notice reasons discussed below.

Background

This civil action arises from allegations of injury while in the care of a school. Plaintiff, Guadalupe Lopez, is 14 years old. Petitioner, Patricia Diaz, now brings a Petition to Approve Compromise as parent of plaintiff. The parties tentatively have settled the action for a gross $3.5 million, with a net of $1,720,026.26 payable to plaintiff after deduction for fees, costs, etc. (Calculations of the net proceeds are in the Petition to Approve Compromise. The December 13, 2021 order on the prior compromise petition indicated $1,735,909.51 in net settlement funds.) Petitioner now proposes to distribute the net settlement proceeds into a special need trust (SNT) for the benefit of plaintiff. Specifically, petitioner seeks to fund $1,370,026.26 cash to the SNT and use the remaining $350,000 to buy an annuity that would pay into the SNT at $1,778.05 per month for 20 years guaranteed.

Discussion

The Probate Department suggests the following changes:

THE PROPOSED SNT TRUST INSTRUMENT

Petitioner provides briefing of the SNT issues at Attachment 18b(4) (court’s pdf at p. 171). The proposed SNT is provided as Exhibit B (court’s pdf at p. 214). The SNT instrument meets legal requirements and is ready for approval as detailed below:

I. Payback Provision

A cornerstone requirement of an SNT instrument is that it have a “payback provision” whereby any trust assets remaining upon termination of the SNT by death of the beneficiary (or any other reason), the remaining trust assets shall be “paid back” to the state to the extent of benefits received by the beneficiary. The idea is that the assets in a SNT are deemed to be exempt from counting toward the $2,000 asset limit for purposes of calculating benefits eligibility, but then that fiction ends upon beneficiary’s death and the state recovers those funds before they are distributed to beneficiary’s heirs. The existence of this payback provision is the most basic requirement of a SNT instrument. Without that provision, the SNT beneficiary would almost immediately lose benefits eligibility. Put another way, the SNT assets would not qualify as exempt and instead they would be counted toward beneficiary’s $2,000 asset limit. The SNT instrument here contains adequate payback provisions in Article Six, Section 2 of the proposed SNT (court’s pdf at p. 225).

II. CRC Rule 7.903(c) and LASC Rule 4.116 Requirements

The main requirements for court created or funded trusts are set forth at California Rules of Court (CRC), Rule 7.903(c) and LASC Rule 4.116(b). The proposed SNT instrument meets those requirements and is ready for approval.

ADDITIONAL REQUESTS FOR RELIEF:

The following requests for additional relief beyond those required to create and fund a SNT are made in the SNT briefing at Attachment 18b(4):

Petitioner requests authority for trustee to invest in mutual funds and bonds with maturity dates greater than five years to provide for a higher rate of investment return. (Court’s pdf at p. 180.) This request would provide for a broader investment authority than the statutory baseline but is common when the trust assets will be large and the investment horizon is long (where plaintiff is fairly young). COURT GRANTS THIS REQUEST.

Petitioner requests authority to purchase a specially equipped handicapped accessible vehicle to transport plaintiff, using SNT funds up to $89,000. Petitioner provides an estimate for the vehicle at Exhibit D. (Request at court’s pdf, p. 181. Estimate at court’s pdf, p. 236.) Title would be held by petitioner, with the trust indicated as lienholder to secure the trust’s interest in the vehicle. The trust would pay for insurance, registration, and maintenance. COURT GRANTS THIS REQUEST.

FINDINGS

When ultimately approving the establishment or funding of a SNT from settlement proceeds, the court must make the following findings pursuant to Probate Code section 3604(b) (there are factual allegations in the Petition to Approve Compromise and its attachments supporting the settlement that generally cover the requisite findings):

1. The SNT beneficiary has a disability which substantially impairs the individual’s ability to provide for her own care or custody and constitutes a substantial handicap;
2. The SNT beneficiary is likely to have special needs that will not be met without the trust;
3. The money to be paid to the trust does not exceed the amount that appears reasonably necessary to meet the SNT beneficiary’s special needs.

TRUSTEE AND BOND

Petitioner proposes LeeAnn Hitchman and Annelise Hitchman, private professional fiduciaries (PPF), shall act as initial SNT trustee. Normally, bond must be required of a trustee unless the trustee is a corporate fiduciary. (California Rules of Court, Rule 7.903(c)(5), Probate Code section 2320.) A PPF does not meet that requirement and bond should be required.

In the SNT briefing, petitioner calculates $1,565,957.71 based upon the SNT funding amount, annual income (annuit payments), investment returns, and the additional statutory amount required for any recovery on the bond, which appears to be correct. The figure is rounded up to $1,566,000 in the proposed order. **** COURT REQUIRES A $1,566,000 bond (Yep need an additional $42.29).****

NOTICE

When seeking approval of a SNT, notice of the hearing and service of the petition must be made upon three state agencies including the Dept. of Mental Health, Dept. of Developmental Services, and Dept. of Health Care Services. (Probate Code sections 3602(f), 3611(c).) A separate proof of service filed 1/27/23 indicates this notice of hearing and proof of service but it indicates mailing on 1/27/23, only five days prior to the 2/1/23 hearing. Service must be 15 days by mail. ****THE COURT CONTINUES THE HEARING TO SATISFY THE NOTICE REQUIREMENT.**** Be prepared to select a date that gives appropriate notice.

THE PROPOSED ORDER

A proposed order bearing a 10/31/22 Received stamp was reviewed in eCourt. The following requirements apply to an order on the SNT:

I. General Orders

The order approving the SNT must include a copy (or the terms) of the proposed SNT instrument to capture the text of the trust being approved. The text can be attached to the Judicial Council form order approving the Petition to Approve Compromise. Satisfied.

The order also should include any additional orders made, including bond requirements, and any allowed fees or rulings on special requests for relief. Satisfied at Attachment 8b(2) (order pdf at p. 8).

II. Housekeeping Orders

The proposed order should address the general findings set forth in the Findings section of this memo above. Satisfied at Attachment 8b(2).

When the funding of a SNT is allowed, the court order should include language requiring petitioner to file an accounting within a year, with a specific 14 month date specified to allow time for drafting and filing. Satisfied at Attachment 8b(2), para. 14, which sets a 2/28/23 due date for the first SNT accounting. ****Date should be in 2024 and around April to allow for 14 months. Need correction.****

An order establishing an SNT also should include language requiring the submission of a Notice of Commencement of Proceedings for a Court Supervised Trust on LASC Form PRO 044 within 60 days. It is that filing that will hand the case off to start the trust administration for the SNT that will host the future SNT accountings and any bond issues or other trust issues. A name search does not indicate that a trust supervision case was ever opened in probate based upon the court’s prior December 14, 2021 order granting the compromise and approving the SNT. The requirement of a filing of a trust action is generally stated at Attachment 8b(2), paragraph 9.

The civil court will set an OSC in its own department 60 days following the next appearance to ensure that the probate case has been opened and that any required bond has been submitted. At the OSC, if those requirements have been met then the civil court can wrap-up its case. The requirement of an OSC is stated in the order at Attachment 8b(2), paragraph 9. ****The court will insert a 60 day date in the blank provided there for the OSC on the next court date.****

Attachment 8b(2) addresses the additional requests for relief discussed in this memo (investment authority and authority to purchase the $89,000 vehicle). ****AS COURT GRANTED THOSE requests the proposed order will need to be changed.****

Based on the foregoing, this case is continued one last time to TBD.

Case Number: BC649021 Hearing Date: September 1, 2022 Dept: R

GUADALUPE M LOPEZ VS EL MONTE CITY SCHOOL DISTICT ET AL (BC649021)

Hearing re Minor’s Compromise and Approval of Special Needs Trust

Tentative Ruling

Hearing re Minor’s Compromise and Approval of Special Needs Trust is DENIED without prejudice.

Background

This civil action arises from allegations of injury while in the care of a school. Plaintiff, Guadalupe Lopez, is 14 years old. Petitioner, Patricia Diaz, now brings a Petition to Approve Compromise as parent of plaintiff. The parties tentatively have settled the action for a gross $3.5 million, with a net of $1,720,026.26 payable to plaintiff after deduction for fees, costs, etc. (Calculations of the net proceeds are in the Petition to Approve Compromise. The December 13, 2021 order on the prior compromise petition indicated $1,735,909.51 in net settlement funds.) Petitioner now proposes to distribute the net settlement proceeds into a special need trust (SNT) for the benefit of plaintiff. Specifically, petitioner seeks to fund $1,370,026.26 cash to the SNT and use the remaining $350,000 to buy an annuity that would pay into the SNT at $1,778.05 per month for 20 years guaranteed.

Discussion

The following defects have been noted by the Probate Department:

i. The newly proposed SNT instrument is not attached to the current petition, which is improper. Technically the SNT instrument is not before the court because it is not presented with the petition.

ii. The signatures lines for counsel and petitioner in the current petition filed on 5/17/22 state “8/13/21” signature dates, which are the dates for the signatures on the prior petition that was granted by the court in December 2021. A comparison of the signatures at p. 10 of the Judicial Council petitions filed on 8/31/21 and 5/17/22 show that they are exactly the same signatures, including the same overwriting of the “8” in the date next to petitioner’s signature line. This is a new petition, however, purportedly seeking the approval of an entirely different SNT, and therefore it is improper for counsel to resubmit a copy of the same petition with old signatures.

iii. There is confusion about the funding amounts for the cash and annuity portions of the settlement because the figures above as stated in the petition do not match those stated in Schedule A to the proposed order (order pdf at p. 28). Schedule A states that the net settlement is $1,370,026.26 (not 1,720,026.26 as stated at Section 16f of the petition), with $250,000 (not $350,000 as stated in Section 18b(3) of the petition) to be used to purchase an annuity and $1,140,909.51 cash (not $1,370,026.26 as stated in Section 18b(4) of the petition) to be funded into the SNT.

iv. Petitioner proposes LeeAnn Hitchman, a private professional fiduciary (PPF), shall act as initial SNT trustee. Normally, bond must be required of a trustee unless the trustee is a corporate fiduciary. (California Rules of Court, Rule 7.903(c)(5), Probate Code section 2320.) A PPF does not meet that requirement and bond should be required. There is no briefing regarding SNT issues and therefore no discussion or calculation of bond. In the current proposed order, however, a $1,333,000 bond requirement is stated. (Order pdf at p. 9, paragraph 7.) It is unclear how that amount is calculated because there is no SNT briefing and there is uncertainty about the amount funded into the SNT as described in a prior section of this memo. Moreover, bond was calculated as $1.7 million in the prior petition and it is unclear why the amount would have decreased (it appears that the $1.7 million figure would have been correct based upon the higher of the two proposed funding amounts plus annuity payments and an additional statutory amount for any costs of recovery on the bond). Clarification of the bond amount or require $1.7 million bond.

v. When seeking approval of a SNT, notice of the hearing and service of the petition must be made upon three state agencies including the Dept. of Mental Health, Dept. of Developmental Services, and Dept. of Health Care Services. (Probate Code sections 3602(f), 3611(c).) There is no proof of service to these agencies for the current petition and proposed SNT and therefore notice is deficient.

b'

Case Number: BC649021 Hearing Date: November 22, 2021 Dept: R

Amended 11/19/21 SNT tentative addedPetitioner Patricia Diaz’s PETITION FOR APPROVAL OF COMPROMISE OF CLAIM OR ACTION OR DISPOSITION OF PROCEEDS OF JUDGMENT FOR MINOR OR PERSON WITH A DISABILITY

Responding Party: None (unopposed, as of 11/17/21, 10:00 a.m.)

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. (“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.

On July 21, 2021, Plaintiff filed a conditional “Notice of Settlement of Entire Case.”

An Order to Show Cause Re: Dismissal (Settlement) is set for January 24, 2022.

Discussion

Petitioner Patricia Diaz (“Petitioner”) seeks court approval of a settlement between minor claimant Guadalupe Melanie Lopez (“Claimant”) and Defendants in the total amount of $3,500,000.00.

At the outset, Petitioner originally filed a petition on August 31, 2021, which came on calendar for hearing on September 23, 2021; at that time, the court noted certain deficiencies with the petition and continued the hearing to November 22, 2021. On October 13, 2021, Petitioner filed a new petition.

The court has reviewed the petition filed October 13, 2021. At the outset, the following review does not encompass a review of the special needs trust, which has been separately reviewed by the Probate Division. (Los Angeles Superior Court Local Rule 4.115, subd. (c).)

The petition is properly filed on Judicial Council form MC-350 and is verified. The petition explains that on June 3, 2016 at 8:30 a.m., while at Thompson Elementary School, 4544 Maxson Rd., El Monte, CA 91732, Claimant was being pushed in her wheelchair through a construction zone by another student. Claimant’s wheelchair struck a sandbag that was adjacent to temporary fencing and her wheelchair tipped over. Claimant fell forward in her wheelchair and struck her head on the asphalt. (Petition, ¶¶ 4-5.)

Claimant suffered a skull fracture and traumatic brain injury as a result of the incident. (Id., ¶ 6.) Claimant underwent craniotomy surgery at Children’s Hospital of LA and went to follow-up neurology appointments for her injuries. (Id., ¶ 7.)

Petitioner represents that Claimant has not recovered completely from the effects of the injuries and that the following injuries from which Claimant has not recovered are permanent: traumatic brain injury—behavioral changes, including self-abuse and violent outbursts. (Id., ¶ 8(c).) Petitioner has now provided the court with a Neurosurgery Outpatient Clinic Note dated September 1, 2016 from Children’s Hospital Los Angeles (“CHLA”), as well as a Pediatric Neurological Re-Evaluation and Report of Interpretation of Electroencephalogram, both dated March 2, 2021, from Ronald S. Gabriel, M.D. of Neurology-Pediatric Neurology Associates.

Again, the total amount offered by all Defendants to Claimant is $3,500,000.00--$1,666,666.67 from District, $416,666.67 from APM, $416,666.67 from Royal, $500,000.00 from Nazerian and $500,000.00 from G&Y (Id., ¶ 10, Attachment 10(b).) The terms of the settlement are as follows: $1,250,000.00 is to be paid by Liberty Mutual Insurance Company on behalf of District, Royal, and APM; $1,250,000.00 is to be paid by ASCIP on behalf of District; $500,000.00 is to be paid by Nazerian and $500,00.00 is to be paid by G&Y. Plaintiff will dismiss all Defendants with prejudice after court approval of the settlement. (Id., ¶ 10(c).) No Defendant named above has offered to pay money to any person(s) other than Claimant to settle claims arising out of the same incident that resulted in Claimant’s injury. (Id., ¶ 11(a).)

Total medical expenses, before any reductions, are $64,834.29, which are all paid. (Id., ¶ 12(a).)

The total medical expenses to be paid or reimbursed from the proceeds are $48,625.72; the total of negotiated, contractual, or statutory reductions are $16,208.57. (Id.) Notice of this claim or action has been given to the Director of Health Care Services and, in full satisfaction of its lien rights, Medi-Cal has agreed to accept reimbursement in the amount of $48,625.72. (Id., ¶ 12(b)(4).) Petitioner has attached a June 26, 2018 Notice of Medi-Cal Lien (erroneously labeled as Attachment 4(a)), as well as a December 23, 2019 notice from the Department of Health Care Services (erroneously labeled as Attachment 4(c)).

Petitioner is requesting approval for attorney’s fees of $1,575,00.00 to be reimbursed from proceeds of the settlement. (Id., ¶ 13(a). This is 45% of the gross settlement recovery. Petitioner and the attorney do have an agreement for services provided in connection with the claim giving rise to this petition. (Id., ¶ 17.) Petitioner has now attached declarations from attorneys Spencer R. Lucas (“Lucas”) and Rahul Ravipudi (“Ravipudi”) and the Honorable Peter Polos (Ret.) (“Polos”) as Attachment 13a, as well as a copy of the retainer agreement signed by Petitioner on June 25, 2016 as Exhibits 1 thereto.

The court must use a reasonable fee standard when approving and allowing the amount of attorney’s fees payable from money or property paid or to be paid for the benefit of a minor or a person with a disability. (Cal. Rules Court Rule 7.955, subd. (a)(1); Probate Code ; 3601.) The court must give consideration to the terms of the retainer agreement and must evaluate same based on the facts and circumstances existing at the time it was made. (Cal. Rules Court Rule 7.955, subd. (a)(2).) In determining a reasonable attorney’s fee, the court may consider nonexclusive factors set forth in California Rules of Court Rule 7.955, subdivision (b), including (1) the fact that a minor or person with a disability is involved and the circumstances of that minor or person with a disability, (2) The amount of the fee in proportion to the value of the services performed, (3) The novelty and difficulty of the questions involved and the skill required to perform the legal services properly, (4) the amount involved and the results obtained, (5) the time limitations or constraints imposed by the representative of the minor or person with a disability or by the circumstances, (6) the nature and length of the professional relationship between the attorney and the representative or the minor or person with a disability, (7) the experience, reputation, and ability of the attorney or attorneys performing the legal services, (8) the time and labor required, (9) the informed consent of the representative of the minor or person with a disability to the fee, (10) the relative sophistication of the attorney and the representative or the minor or person with a disability, (11) the likelihood, if apparent to the representative of the minor or person with a disability when the representation agreement was made, that the attorney’s acceptance of the particular employment would preclude other employment, (12) whether the fee is fixed, hourly, or contingent, (13) if the fee is contingent: (A) the risk of loss borne by the attorney; (B) the amount of costs advanced by the attorney and (C) the delay in payment of fees and reimbursement of costs paid by the attorney and (14) statutory requirements for representation agreements applicable to particular cases or claims.

“California Rules of Court, rule 7.955 does not dictate a presumptively reasonable percentage or mathematical method of determining the appropriate attorney fees under a contingency agreement . . . what is reasonable in applying the factors in California Rules of Court, rule 7.955 in any particular case may comprise a range of percentages.” (Schultz v. Jeppesen Sanderson, Inc. (2018) 27 Cal.App.5^th 1167, 1175.)

The court has reviewed the retainer agreement, as well as the declarations submitted by Lucas, Ravipudi and Polos. No declaration appears to have been submitted by any counsel from Javaheri & Yahoudai (“J&Y”). The retainer agreement provides for a 45% contingency fee if the recovery is obtained after mediation, arbitration hearing, settlement conference, or trial. A Rule 2-200 Disclosure and Authorization to Associate Panish Shea & Boyle LLP as Counsel signed by Petitioner on August 1, 2018 reflects that J&Y and Panish Shea & Boyle LLP (“Panish”) are to split fees equally.

With all due respect to counsel, the court believes that an award of $1,575,000.00 in attorney’s fees, which is 45% of the gross settlement recovery, is excessive when viewed under the factors set forth above. Although counsel’s credentials are impressive and this case was heavily litigated (involving 38 depositions, 3-4 sets of written discovery and pre-trial supplemental discovery to each of the five defendants, extensive law and motion, three mediation briefs and one Mandatory Settlement Conference brief), the fact remains that Claimant is a 14-year-old child who has shunted hydrocephalus secondary to holoprosencephaly. This condition admittedly preexisted the June 3, 2016 accident; however, Claimant sustained a skull fracture and traumatic brain injury in the accident which has apparently resulted in behavioral changes, including self-abuse and violent outbursts. Claimant is undoubtedly in need of lifelong, around the clock care. The court notes that the fee in this case was contingent; however, counsel has not provided the court with any rough approximation of time expended on this matter. Lucas attests that the case was so demanding that he had to reduce his caseload; however, he fails to state the length of time this reduction occurred. Counsel has not provided the court with any information relative to Petitioner’s sophistication; further, while counsel represents that Petitioner “has agreed to the settlement and the requested attorneys’ fees herein,” counsel does not provide a declaration from Petitioner or any further information to this effect.

The court will reduce attorney’s fees to $1,166,666.67, which is approximately 33 1/3 % of the gross recovery.

Petitioner is also requesting approval for costs of $385,464.77 to be so reimbursed. Petitioner has submitted a 42-page Case Expense Report from Panish Shea & Boyle LLP, as well as what appears to be an itemized report of costs from Javaheri & Yahoudai, as Attachment 13(b).

Petitioner represents that the net balance of the proceeds of settlement is $1,490,909.51, $350,00.00 of which will be invested in a single-premium deferred annuity and $1,140,909.51 of which will be paid or transferred to the trustee of a special needs trust established under Probate Code section 3604 for the benefit of Claimant. (Id., ¶¶ 15 and 18.)

The petition is granted, subject to the separate review of the special needs trust. Attorney’s fees are reduced by $408,333.40, from $1,575,000.00 to $1,166,666.67. This $408,333.40 is to be added to the $1,140,909.51 (i.e., for a total of $1,549242.90) paid or transferred to the trustee of the special needs trust for Claimant’s benefit.xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

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

TENTATIVE RULING Part 2, THE PROPOSED SNT TRUST INSTRUMENT [AMENDED]

At Attachment 18(b)(4) to the Petition to Approve Compromise, Petitioner provides a declaration of counsel regarding the SNT issues[.] The text of the proposed SNT instrument was attached thereto as Exhibit 3[.] The court finds that the SNT now meets legal requirements and is ready for approval as detailed below:

I. Payback Provision

A cornerstone requirement of an SNT instrument is that it have a “payback provision” whereby if there are any trust assets remaining upon termination of the SNT by death of the beneficiary (or any other reason), they shall be “paid back” to the state to the extent of benefits received by the beneficiary. The idea is that the assets in a SNT are deemed to be exempt from counting toward the $2,000 asset limit for purposes of calculating benefits eligibility, but then that fiction ends upon beneficiary’s death and the state recovers those funds before they are distributed to beneficiary’s heirs. The existence of this payback provision is the most basic requirement of a SNT instrument. Without that provision, the SNT beneficiary would almost immediately lose benefits eligibility. Put another way, the SNT assets would not qualify as exempt and instead they would be counted toward beneficiary’s $2,000 asset limit.

The SNT instrument here contains adequate payback provisions in Section 4.01 of the proposed SNT.

II. CRC Rule 7.903(c) and LASC Rule 4.116 Requirements

The main requirements for court created or funded trusts are set forth at California Rules of Court (CRC), Rule 7.903(c) and LASC Rule 4.116(b). The proposed SNT instrument meets those requirements and is therefore approved.

ADDITIONAL REQUESTS FOR RELIEF:

The following requests for additional relief are made in counsel’s SNT declaration that are beyond those that are foundational to creating and funding a SNT:

• Petitioner requests authority to pay $5,830 to SNT counsel for fees regarding drafting the SNT instrument and related petition. (Court’s pdf at p. 172, paragraph 5.) This request is normal in a compromise petition that includes a SNT. The request is granted.

• Petitioner requests authority to purchase a specially equipped handicapped accessible vehicle to transport plaintiff, using SNT funds up to $89,000. Petitioner provides two estimates for the vehicle at Exhibit 1 and 2 to counsel’s declaration. The court approves the request and orders that title to the vehicle be held in the name of the parent with a lien by the SNT, and the court will hear from the parties regarding who will pay for the vehicle maintenance, insurance, etc.

FINDINGS

The court finds as follows:

1. The SNT beneficiary has a disability which substantially impairs the individual’s ability to provide for her own care or custody and constitutes a substantial handicap;

2. The SNT beneficiary is likely to have special needs that will not be met without the trust;

3. The money to be paid to the trust does not exceed the amount that appears reasonably necessary to meet the SNT beneficiary’s special needs.

TRUSTEE AND BOND

Petitioner proposes LeeAnn Hitchman, a private professional fiduciary (PPF), shall act as initial SNT trustee. In counsel’s declaration supporting the SNT issues, bond is calculated as $1.7 million based upon the amount of the initial funding plus annual income and a required additional for any cost of recovery on the bond. The court approves LeeAnn Hitchman as the initial SNT trustee and sets bond at $1.7 million dollars.

NOTICE

When seeking approval of a SNT, notice of the hearing and service of the petition must be made upon three state agencies including the Dept. of Mental Health, Dept. of Developmental Services, and Dept. of Health Care Services. (Probate Code sections 3602(f), 3611(c).) The court finds that petitioner has filed the appropriate proof of service and notice.

THE PROPOSED ORDER

The order approving the SNT must include a copy (or the terms) of the proposed SNT instrument to capture the text of the trust being approved. The proposed SNT instrument meets those requirements

The order should include any additional orders made, including bond requirements, and any allowed fees or rulings on special requests for relief. The proposed SNT instrument meets those requirements at Attachment 13.

The proposed order should address the general findings set forth in the Findings section of this memo above. The proposed SNT instrument meets those requirements at Attachment 13.

The proposed order must be resubmitted based on the comments below.

Page 1 of 4 (form MC-351) item 1 needs to show the correct name of the Judge and courtroom.

In attachment 1 of the proposed order, there is a two page statement of ways that the SNT instrument meets the requirements of CRC Rule 7.903(c). Inasmuch as there is no basis for these to be included in the order this needs to be deleted.

An accounting is ordered to be filed on or before January ______, 2023.

The court orders the submission of a Notice of Commencement of Proceedings for a Court Supervised Trust on LASC Form PRO 044 within 60 days. (May be included in Attachment 13, paragraph 10).

Any proposed order needs to be amended to include the reduction of the attorney’s fees in the recalculation of the amounts awarded to the claimant and placed into the SN.

The Court also orders the following dates to be calendared:

OSC Re: submission of proposed amended order on December ____, 2021

OSC Re: filing of bond and filing a probate case on January _____ , 2022

[Parties to select appropriate dates with the Court Clerk in Department EAR (909) 802-1117)]

'

b'

Case Number: BC649021 Hearing Date: September 23, 2021 Dept: R

Petitioner Patricia Diaz’s PETITION FOR APPROVAL OF COMPROMISE OF CLAIM OR ACTION OR DISPOSITION OF PROCEEDS OF JUDGMENT FOR MINOR OR PERSON WITH A DISABILITY

Responding Party: None (unopposed, as of 9/14/21, 2:34 p.m.)

Tentative Ruling The hearing on Petitioner Patricia Diaz’s Petition for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Minor or Person with a Disability is CONTINUED TO (December 7, 2021).

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.

On July 21, 2021, Plaintiff filed a conditional “Notice of Settlement of Entire Case.”

An Order to Show Cause Re: Dismissal (Settlement) is set for September 28, 2021.

Discussion

Petitioner Patricia Diaz (“Petitioner”) seeks court approval of a settlement between minor claimant Guadalupe Melanie Lopez (“Claimant”) and Defendants in the total amount of $3,500,000.00.

The court has reviewed the petition. At the outset, the following review does not encompass a review of the special needs trust, which has been separately reviewed by the Probate Division. (Los Angeles Superior Court Local Rule 4.115, subd. (c).)

The petition is properly filed on Judicial Council form MC-350 and is verified. The petition explains that on June 3, 2016 at 8:30 a.m., while at Thompson Elementary School, 4544 Maxson Rd., El Monte, CA 91732, Claimant was being pushed in her wheelchair through a construction zone by another student. Claimant’s wheelchair struck a sandbag that was adjacent to temporary fencing and her wheelchair tipped over. Claimant fell forward in her wheelchair and struck her head on the asphalt. (Petition, ¶¶ 4-5.)

Claimant suffered a skull fracture and traumatic brain injury as a result of the incident. (Id., ¶ 6.) Claimant underwent craniotomy surgery at Children’s Hospital of LA and went to follow-up neurology appointments for her injuries. (Id., ¶ 7.)

Petitioner represents that Claimant has not recovered completely from the effects of the injuries and that the following injuries from which Claimant has not recovered are permanent: traumatic brain injury—behavioral changes, including self-abuse and violent outbursts. (Id., ¶ 8(c).) Petitioner, however, has failed to provide the court with a doctor’s report containing a diagnosis of Claimant’s injuries or a prognosis for Claimant’s recovery and a report of Claimant’s current condition, as required.

Again, the total amount offered by all Defendants to Claimant is $3,500,000.00--$1,666,666.67 from District, $416,666.67 from APM, $416,666.67 from Royal and $500,000.00 from Nazerian. (Id., ¶ 10, Attachment 10(b).) Although Petitioner references, in Paragraph 10, that “Defendants and amounts offered continued on Attachment 10b,” no Attachment 10b appears to have been provided. Attachment 10b presumably lists G&Y as another settling Defendant, based on the information provided in Paragraph 10(c). This Attachment must be provided.

The terms of the settlement are as follows: $1,250,000.00 is to be paid by Liberty Mutual Insurance Company on behalf of District, Royal, and APM; $1,250,000.00 is to be paid by ASCIP on behalf of District; $500,00.00 to be paid by G&Y. Plaintiff will dismiss all Defendants with prejudice after court approval of the settlement. (Id., ¶ 10(c).) No Defendant named above has offered to pay money to any person(s) other than Claimant to settle claims arising out of the same incident that resulted in Claimant’s injury. (Id., ¶ 11(a).)

Total medical expenses, before any reductions, are $64,834.29, which are all paid. (Id., ¶ 12(a).) The total medical expenses to be paid or reimbursed from the proceeds are $48,625.72; the total of negotiated, contractual, or statutory reductions are $16,208.57. (Id.) Notice of this claim or action has been given to the Director of Health Care Services and, in full satisfaction of its lien rights, Medi-Cal has agreed to accept reimbursement in the amount of $48,625.72. (Id., ¶ 12(b)(5).) Petitioner has not attached a copy of the notice and proof of delivery, nor a copy of the final Medi-Cal demand letter or letter agreement as Attachment 12b(4)(c).

Petitioner is requesting approval for attorney’s fees of $1,575,00.00 to be reimbursed from proceeds of the settlement. (Id., ¶ 13(a). Petitioner and the attorney do have an agreement for services provided in connection with the claim giving rise to this petition. (Id., ¶ 17.) Petitioner has not attached a declaration from the attorney as Attachment 13a, nor has Petitioner attached a copy of any written attorney fee agreement as Attachment 17a. Petitioner is also requesting approval for costs of $385,464.77 to be so reimbursed; Petitioner, however, has not attached proofs of the fees and expenses incurred.

Petitioner represents that the net balance of the proceeds of settlement is $1,490,909.51, $350,00.00 of which will be invested in a single-premium deferred annuity and $1,140,909.51 of which will be paid or transferred to the trustee of a special needs trust established under Probate Code section 3604 for the benefit of Claimant. (Id., ¶¶ 15 and 18.)

****************ADDITIONALLY THE FOLLOWING ISSUES MUST ALSO BE CORRECTED********************

THE PROPOSED SNT TRUST INSTRUMENT

At Attachment 18(b)(4) to the Petition to Approve Compromise, petitioner provides a declaration of counsel regarding the SNT issues (court’s pdf at pp. 24 et. seq.). The text of the proposed SNT instrument is attached thereto as Exhibit 3 (court’s pdf at pp. 32 et. seq.) The SNT does not meet legal requirements and is not ready for approval as detailed below:

I. Payback Provision

A cornerstone requirement of an SNT instrument is that it have a “payback provision” whereby any trust assets remaining upon termination of the SNT by death of the beneficiary (or any other reason), the remaining trust assets shall be “paid back” to the state to the extent of benefits received by the beneficiary. The idea is that the assets in a SNT are deemed to be exempt from counting toward the $2,000 asset limit for purposes of calculating benefits eligibility, but then that fiction ends upon beneficiary’s death and the state recovers those funds before they are distributed to beneficiary’s heirs. The existence of this payback provision is the most basic requirement of a SNT instrument. Without that provision, the SNT beneficiary would almost immediately lose benefits eligibility. Put another way, the SNT assets would not qualify as exempt and instead they would be counted toward beneficiary’s $2,000 asset limit. The SNT instrument here contains adequate payback provisions in Section 4.02 of the proposed SNT (court’s pdf at p. 41).

II. CRC Rule 7.903(c) and LASC Rule 4.116 Requirements

The main requirements for court created or funded trusts are set forth at California Rules of Court (CRC), Rule 7.903(c) and LASC Rule 4.116(b).

The proposed SNT instrument does not meet the following requirements of CRC Rule 7.903(c), labelled by quoted subsection, and the court should continue the hearing for a new proposed SNT instrument:

(c)(2) Prohibit modification or revocation without court approval;

(c)(4) Prohibit investments by the trustee other than those permitted under Probate Code section 2574;

(c)(5) Require persons identified in (3) to post bond in the amount required under Probate Code section 2320 et seq.;

(c)(6) Require the trustee to file accounts and reports for court approval in the manner and frequency required by Probate Code sections 1060 et seq. and 2620 et seq.;

(c)(7) Require court approval of changes in trustees and a court order appointing any successor trustee; and

(c)(8) Require compensation of the trustee, the members of any advisory committee, or the attorney for the trustee, to be in just and reasonable amounts that must be fixed and allowed by the court. The instrument may provide for periodic payments of compensation on account, subject to the requirements of Probate Code section 2643 and rule 7.755.

The proposed SNT instrument also does not meet the following requirements of LASC Rule 7.116(b), labelled by quoted subsection, and the court will continue the hearing for a new proposed SNT instrument:

(b)(2) Any purchase of a personal residence for a beneficiary may be made only if authorized by the court pursuant to the rules applicable to conservatorships and guardianships. (See Prob. Code, ; 2571.);

(b)(3) Any sale of a personal residence of the beneficiary may be made only if authorized by the court pursuant to the rules applicable to conservatorships and guardianships. (Prob. Code, ; 2540(b).) Such sales must be returned to court for confirmation. (See Prob. Code, ; 10300 et seq.); and

(b)(4) The trustee may not borrow money, lend money, give security, lease, convey, or exchange any property of the estate without prior authorization of the court. (Prob. Code, ; 2550.)

There are additional provisions in the proposed SNT instrument that are objectionable for other reasons. At two places, the trust instrument shields trustee from liability for his or her actions except for instances of the trustee’s “gross negligence, willful neglect, or unlawful act.” (See Section 5.02 at court’s pdf, p. 43 and Section 6.05 at court’ pdf, p. 45.) These provisions typically are not allowed in a SNT trust instrument and it is suggested that the court require their removal in an improved proposed SNT instrument.

ADDITIONAL REQUESTS FOR RELIEF:

The following requests for additional relief are made in counsel’s SNT declaration that are beyond those that are foundational to creating and funding a SNT:

· Petitioner requests authority to pay $5,830 to SNT counsel for fees regarding drafting the SNT instrument and related petition. (Court’s pdf at p. 25, paragraph 5.) This request is normal in a compromise petition that included a SNT. Court’s discretion whether to grant this request.

· Petitioner requests authority to purchase a specially equipped handicapped accessible vehicle to transport plaintiff, using SNT funds up to $89,000. Petitioner provides two estimates for the vehicle at Exhibit 1 and 2 to counsel’s declaration. (Request at court’s pdf at pp. 25-26, paragraphs 6-10. Estimates at court’s pdf, pp. 28 and 30.) While these requests are common, normally there is additional language to state that title would be held in the name of the parent, with a lien on title in favor of the SNT and that the SNT would pay for all registration, maintenance, insurance, etc. Court’s discretion whether to grant this request, though if granted it is suggested that the court require that title to the vehicle be held in the name of the parent with a lien by the SNT, and with clarification regarding who will pay for the vehicle maintenance, insurance, etc.

FINDINGS

When ultimately approving the establishment or funding of a SNT from settlement proceeds, the court must make the following findings pursuant to Probate Code section 3604(b) (there are factual allegations in the Petition to Approve Compromise and its attachments supporting the settlement that generally cover the requisite findings):

1. The SNT beneficiary has a disability which substantially impairs the individual’s ability to provide for her own care or custody and constitutes a substantial handicap;
2. The SNT beneficiary is likely to have special needs that will not be met without the trust;
3. The money to be paid to the trust does not exceed the amount that appears reasonably necessary to meet the SNT beneficiary’s special needs.

TRUSTEE AND BOND

Petitioner proposes LeeAnn Hitchman, a private professional fiduciary (PPF), shall act as initial SNT trustee. Normally, bond must be required of a trustee unless the trustee is a corporate fiduciary. (California Rules of Court, Rule 7.903(c)(5), Probate Code section 2320.) A PPF does not meet that requirement and bond should be required.

In counsel’s declaration supporting the SNT issues, bond is requested as $1,498,385, though a calculation is not provided.

NOTICE

When seeking approval of a SNT, notice of the hearing and service of the petition must be made upon three state agencies including the Dept. of Mental Health, Dept. of Developmental Services, and Dept. of Health Care Services. (Probate Code sections 3602(f), 3611(c).) Proofs of service on file in this case indicate this service and notice appears to be complete.

THE PROPOSED ORDER

A proposed order was not provided for review. (While we can see case filings in our case viewer, we do not have eCourt and cannot see proposed orders under submission unless a pdf is provided to us when review of the SNT is requested. A proposed order should be requested from petitioner, and a pdf sent to us along with the new hearing date, to facilitate review prior to the next hearing. The following requirements apply to an order on the SNT:

I. General Orders

The order approving the SNT must include a copy (or the terms) of the proposed SNT instrument to capture the text of the trust being approved. The text can be attached to the Judicial Council form order approving the Petition to Approve Compromise.

The order also should include any additional orders made, including bond requirements, and any allowed fees or rulings on special requests for relief.

II. Housekeeping Orders

The proposed order should address the general findings set forth in the Findings section of this memo above.

When the funding of a SNT is allowed, the court order should include language requiring petitioner to file an accounting within a year, with a specific 14 month date specified to allow time for drafting and filing.

An order establishing an SNT also should include language requiring the submission of a Notice of Commencement of Proceedings for a Court Supervised Trust on LASC Form PRO 044 within 60 days. It is that filing that will hand the case off to start the trust administration for the SNT that will host the future SNT accountings and any bond issues or other trust issues.

The civil court also should set an OSC in its own department in 60 days to ensure that the probate case in Ventura has been opened and that any required bond has been submitted. At the OSC, if those requirements have been met then the civil court can wrap-up its case.

RECOMMENDATION

1. Court’s discretion regarding approval of the settlement terms, plaintiff’s attorney fees, etc.

2. The SNT instrument is NOT ready for approval.

6. When petition is approved, court to require an accounting in one year and specify a due date in 14 months to allow time for drafting and filing. The court will set an OSC in this department in 60 days to ensure the filing of bond and the filing in probate of the Notice of Commencement of Proceedings for a Court Supervised Trust on LASC Form PRO 044.

7. Need New proposed order for review.

The hearing on the petition is continued to (December 7th) Petitioner must correct the above deficiencies forthwith

'

Case Number: BC649021    Hearing Date: December 18, 2020    Dept: J

HEARING DATE: Friday, December 18, 2020

NOTICE: OK[1]

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 TO STRIKE DEFENDANT THE NAZERIAN GROUP’S NOVEMBER 16, 2020 EXPERT DESIGNATION

Responding Party: Defendant, The Nazerian Group

Tentative Ruling

Plaintiff Guadalupe M. Lopez, a minor, by and through her Guardian ad Litem, Patricia Diaz’s Motion to Strike Defendant The Nazerian Group’s November 16, 2020 Expert Designation 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. (“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 December 18, 2020. Trial is set for January 5, 2021.

Legal Standard

“Any party may make a demand for an exchange of information concerning expert trial witnesses without leave of court. . .” (Code Civ. Proc., ; 2034.220.)

A demand for an exchange of expert witness information “shall specify the date for the exchange of lists of expert trial witnesses, expert witness declarations, and any demanded production of writings. The specified date of exchange shall be 50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date, unless the court, on motion and a showing of good cause, orders an earlier or later date of exchange.” (Code Civ. Proc., ; 2034.230, subd. (b).)

“A party who has been served with a demand to exchange information concerning expert trial witnesses may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., ; 2034.250, subd. (a).) “The court, for good cause shown, may make any order that justice requires to protect any party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. The protective order may include, but is not limited to, one or more of the following directions: (1) That the demand be quashed because it was not timely served . . .” (Code Civ. Proc., ; 2034.250, subd. (b).)

“Within 20 days after the exchange . . ., any party who engaged in the exchange may submit a supplemental expert witness list containing the name and address of any experts who will express an opinion on a subject to be covered by an expert designated by an adverse party to the exchange, if the party supplementing an expert witness list has not previously retained an expert to testify on that subject.” (Code Civ. Proc., ; 2034.280, subd. (a).)

“On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to do either or both of the following: (1) Augment that party’s expert witness list and declaration by adding the name and address of any expert witness whom that party has subsequently retained. (2) Amend that party’s expert witness declaration with respect to the general substance of the testimony that an expert previously designated it expected to

give . . .” (Code Civ. Proc., ; 2034.610, subd. (a).)

Additionally, “[o]n motion of any party who has failed to submit expert witness information on the date specified in a demand for that exchange, the court may grant leave to submit that information on a later date.” (Code Civ. Proc., ; 2034.710, subd. (b).)

Discussion

Plaintiff moves the court for an order striking Nazerian’s November 16, 2020 exchange of expert witness designations, which seeks to add school safety expert Marian B. Stephens (“Stephens”) and pediatric neuropsychologist Nicholas Thaler, Ph.D. (“Thaler”), and fir a protective order wherein Plaintiff is not required to take the depositions of Stephens and Thayer.

Plaintiff instituted this action on February 2, 2017; trial was set for August 2, 2018. On May 3, 2018, the August 2, 18 trial date was continued to December 3, 2018, per stipulation and order. On October 18, 2018, this action was transferred from the personal injury hub (Department 3) to this department. On July 17, 2019, the court set trial for May 5, 2020. On October 30, 2019, the court granted Plaintiff’s motion for trial preference; at that time, the trial date was reset to February 18, 2020. On December 30, 2019, the parties simultaneously exchanged expert witness information. On January 20, 2019, Nazerian served a supplemental designation.

The trial date was subsequently continued to March 4, 2020 and then to March 17, 2020 before being vacated by the court on March 23, 2020. On August 12, 2020, the court set trial for January 5, 2021.

On August 25, 2020, Nazerian served its “Demand for Exchange of Expert Witness Information and Production of Expert Reports and Writings,” listing therein a November 16, 2020 date of exchange. (Luetto Decl., ¶2, Exh. A.) On August 27, 2020, District filed its “Ex Parte Application for Clarification of the Court’s August 12, 2020 Minute Order, or Alternatively to Specially Set a Hearing Date and Shorten the Time to Hear Defendant’s Noticed Motion for the Same” (“Ex Parte Application”) and “Motion for Clarification of the Court’s August 12, 2020 Minute Order” (Motion for Clarification”); on August 31, 2020, the court heard the Ex Parte Application, ordered further briefing on the Motion for Clarification and advised that an order would issue without any further oral argument. On October 23, 2020, the court provided the following ruling on submitted matter:

“The court has read and considered all counsels additional briefs submitted to the court as ordered on the 8/31/20 minute order re: Hearing on Ex Parte Application for Clarification of the Court’s August 12, 2020 [Order].

The court now rules as follows[:] The court clarifies the August 12, 2020 ruling—All pre-trial dates including discovery cut-off dates for trial are continued consistent with the new trial date. The court further finds this is consistent with General Order 020-00 issued by Presiding Judge Kevin Brazile. The August 12, 2020 Minute Order did operate to reopen discovery. The Discovery cut-off is tied to the January 5, 2021 trial date.”

Nazerian asserts that the court’s August 12, 2020 and October 23, 2020 orders permitted Nazerian to serve expert designations 50 days before the continued January 5, 2021 trial date in this matter after the trial date was vacated and then reset and continued. Nazerian, however, fails to provide the court with any legal authority for this position. The court’s mere continuance of the discovery cut-off date consistent with the new trial date did not act to eradicate a completed expert designation exchange. The Code provides for mechanisms to augment an expert witness list or to seek relief to allow for a tardy designation, neither of which Nazerian has elected to employ.

Finally, Nazerian’s contention that Plaintiff has waived any argument about Nazerian’s November 16, 2020 designation by serving her own expert designation fails, inasmuch as Plaintiff simply re-served her initial expert designation on that date.

The motion is granted.

Case Number: BC649021    Hearing Date: July 13, 2020    Dept: J

HEARING DATE: Monday, July 13, 2020

NOTICE: OK[1]

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

______________________________________________________________________________

Defendant/Cross-Defendant Royal Construction Corp.’s MOTION TO COMPEL EL MONTE CITY SCHOOL DISTRICT TO APPEAR AND PRODUCE DOCUMENTS AT DEPOSITION

Responding Party: Defendants, El Monte City School District

Tentative Ruling

Defendant/Cross-Defendant Royal Construction Corp.’s Motion to Compel El Monte City School District to Appear and Produce Documents at Deposition is summarily DENIED as untimely.

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.

A Trial Setting Conference is set for July 13, 2020.

Legal Standard

Code of Civil Procedure section 2025.480(a) states that “[t]he service of a deposition notice . . . 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.”

Section 2025.450(a) provides that “[i]f, 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. . ., fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or things described in the deposition notice, the party noticing the deposition may move for an order compelling the deponent’s attendance and testimony, and the production of any document, electronically stored information, or things described in the deposition notice.”

A motion to compel deposition 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. (Code Civ. Proc., ; 2025.450, subd. (b)(2).)

The motion shall also 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. (Code Civ. Proc., ; 2025.450, subd. (b)(1).) “Good cause” for production of documents may be established where it is shown that the request is made in good faith and that the documents sought are relevant to the subject matter and material to the issues in the litigation. See Associated Brewers Distributing Co. v. Superior Court of Los Angeles County (1967) 65 Cal.2d 583, 588.

A court shall impose monetary sanctions if the motion to compel is granted, unless the one subject to sanction acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (Code Civ. Proc., ; 2025.450, subd. (g)(1).)

Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement providing all information necessary to understand each discovery request and all the responses at issue. (California Rules of Court [“CRC”] Rule 3.1345(a),(c).)

Discussion

Royal moves the court for an order compelling District to appear and produce documents at deposition.

Royal’s motion is summarily denied as untimely. “[A]ny party shall be entitled as a matter of right to complete discovery proceedings on or before the 30^th day, and to have motions concerning discovery heard on or before the 15^th day, before the date initially set for the trial of the action.” (Code Civ. Pro. ; 2024.020, subd. (a).) “Except as provided in Section 2024.050[2], a continuance or postponement of the trial date does not operate to reopen discovery proceedings.” (Code Civ. Pro. ; 2024.020, subd. (b).) “Once the discovery cutoff date has run and discovery has closed, the only means provided in the Civil Discovery Act for reopening discovery is a motion for leave of court.” (In re Marriage of Boblitt (2014) 223 Cal.App.4^th 1004, 1024; CCP ; 2024.050(a) [“On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set . . .”].) Royal has not filed a motion seeking such relief under CCP ; 2024.050(a).

Parties can agree to extend the discovery cutoff, “but it shall be confirmed in a writing that specifies the extended date.” (CCP ; 2024.060.)

This action was filed on February 2, 2017; at that time, trial was set for August 2, 2018. On May 3, 2018, an “Order and Stipulation to Continue Trial, FSC [and Related Motion/Discovery Dates]” (“Order”) was filed, wherein the trial date was continued to December 3, 2018; the order provided that “all discovery and motion cut-offs dates will be based upon new trial date.”

On October 18, 2018, this action was transferred from the personal injury hub (Department 3) to this department; accordingly, the December 3, 2018 trial date was vacated. On July 17, 2019, the court scheduled trial for May 5, 2020. On October 30, 2019, after granting Plaintiff’s motion for trial preference, the court rescheduled the May 5, 2020 trial date to February 18, 2020. On February 10, 2020, the court vacated the February 18, 2020 trial date. On February 18, 2020, the court rescheduled trial to March 4, 2020. On March 4, 2020, the court continued the trial date to March 17, 2020. The court subsequently vacated the March 17, 2020 trial date, as per a March 23, 2020 minute order, and scheduled a Trial Setting Conference for May 28, 2020. The court reset the Trial Setting Conference for July 10, 2020, per a “Notice of Continuance Due to COVID-19 State of Emergency Declarations” filed April 22, 2020. None of the court’s trial date continuances state that discovery and motion cut-off dates were extended.

None of Royal’s email exhibits reflect an agreement between the parties to extend the discovery cutoff date to a “specifie[d] . . . extended date.” The fact that District produced a PMQ—Lawrence Tang, the District’s Head of Information Technology—on certain categories, and also produced certain documents does not compel a different result here. District was under no obligation to produce a PMQ or documents on any other categories and, in fact, District objected to same on the basis of CCP ; 2024.020. (See McMahan Decl., ¶10, Exh. L.)

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.4^th 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.4^th 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.4^th 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.4^th 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.

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.4^th 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.4^th 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.4^th 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.4^th 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.4^th 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.4^th 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.4^th 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.5^th 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.4^th 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.

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.4^th 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.4^th 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.4^th 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.4^th 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.4^th 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.5^th 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 (10^th 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.4^th 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.

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.4^th 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.4^th 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.4^th 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.4^th 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.4^th 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.3^rd 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.4^th 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.4^th 1367, 1384 [internal quotations and citations omitted]; see also Bostrom, supra, 35 Cal.App.4^th 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.4^th 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.