This case was last updated from Los Angeles County Superior Courts on 10/28/2020 at 04:26:22 (UTC).

HENRY PARK VS R&S HIS CORP

Case Summary

On 04/10/2018 HENRY PARK filed a Personal Injury - Other Personal Injury lawsuit against R S HIS CORP. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are LAURA A. SEIGLE and EDWARD B. MORETON. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1426

  • Filing Date:

    04/10/2018

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

LAURA A. SEIGLE

EDWARD B. MORETON

 

Party Details

Plaintiff and Petitioner

PARK HENRY

Defendants and Respondents

DOES 1 TO 10

R&S HIS CORP.

SUPER MERCADO LATINO MARKET

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

KIM ANDREW ESQ.

Defendant Attorney

YEE STEVEN R. ESQ.

 

Court Documents

Opposition - OPPOSITION DECLARATION OF NIALL A. FORDYCE IN SUPPORT OF DEFENDANT R & S HIS CORP. DBA SUPER MERCADO LATINO MARKET'S OPPOSITION TO PLAINTIFF HENRY PARK'S MOTION TO SET ASIDE JUDGMENT

8/6/2020: Opposition - OPPOSITION DECLARATION OF NIALL A. FORDYCE IN SUPPORT OF DEFENDANT R & S HIS CORP. DBA SUPER MERCADO LATINO MARKET'S OPPOSITION TO PLAINTIFF HENRY PARK'S MOTION TO SET ASIDE JUDGMENT

Declaration - DECLARATION DECLARATION OF NIALL A. FORDYCE IN SUPPORT OF DEFENDANT R & S HIS CORP. DBA SUPER MERCADO LATINO MARKET'S OPPOSITION TO PLAINTIFF HENRY PARK'S MOTION TO SET ASIDE JUDGMENT

8/6/2020: Declaration - DECLARATION DECLARATION OF NIALL A. FORDYCE IN SUPPORT OF DEFENDANT R & S HIS CORP. DBA SUPER MERCADO LATINO MARKET'S OPPOSITION TO PLAINTIFF HENRY PARK'S MOTION TO SET ASIDE JUDGMENT

Declaration - DECLARATION DECLARATION OF STEVEN R. YEE IN SUPPORT OF DEFENDANT R & S HIS CORP DBA SUPER MERCADO LATINO MARKET'S JUDGMENT IN FAVOR OF R & S HIS CORP DBA SUPER MERCADO LATINO MARKET AND

4/14/2020: Declaration - DECLARATION DECLARATION OF STEVEN R. YEE IN SUPPORT OF DEFENDANT R & S HIS CORP DBA SUPER MERCADO LATINO MARKET'S JUDGMENT IN FAVOR OF R & S HIS CORP DBA SUPER MERCADO LATINO MARKET AND

Notice of Entry of Judgment / Dismissal / Other Order

4/21/2020: Notice of Entry of Judgment / Dismissal / Other Order

Minute Order - MINUTE ORDER (COURT ORDER RE: MOTION TO SET ASIDE THE JUDGMENT)

4/22/2020: Minute Order - MINUTE ORDER (COURT ORDER RE: MOTION TO SET ASIDE THE JUDGMENT)

Notice - NOTICE NOTICE OF ENTRY OF FINAL JUDGMENT IN FAVOR OF DEFENDANT R & S HIS CORP DBA SUPER MERCADO LATINO MARKET AND AGAINST HENRY PARK

5/1/2020: Notice - NOTICE NOTICE OF ENTRY OF FINAL JUDGMENT IN FAVOR OF DEFENDANT R & S HIS CORP DBA SUPER MERCADO LATINO MARKET AND AGAINST HENRY PARK

Notice of Ruling

3/17/2020: Notice of Ruling

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 03/18/2020

3/18/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 03/18/2020

Objection - OBJECTION DEFENDANT R & S HIS CORP DBA SUPER MERCADO LATINO MARKET'S REPLY TO PLAINTIFF'S OPPOSITON TO ITS MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THER

2/28/2020: Objection - OBJECTION DEFENDANT R & S HIS CORP DBA SUPER MERCADO LATINO MARKET'S REPLY TO PLAINTIFF'S OPPOSITON TO ITS MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THER

Notice - NOTICE DEFENDANT R & S HIS CORP DBA SUPER MERCADO LATINO MARKET'S NOTICE OF TAKING OF INFORMAL DISCOVERY CONFERENCE OFF CALENDAR

2/13/2020: Notice - NOTICE DEFENDANT R & S HIS CORP DBA SUPER MERCADO LATINO MARKET'S NOTICE OF TAKING OF INFORMAL DISCOVERY CONFERENCE OFF CALENDAR

Declaration - DECLARATION DECLARATION OF EMINEH ISSAIAN IN SUPPORT OF DEFENDANT R & S HIS CORP, DBA SUPER MERCADO LATINO MARKET'S MOTION FOR SUMMARY JUDGMENT

12/16/2019: Declaration - DECLARATION DECLARATION OF EMINEH ISSAIAN IN SUPPORT OF DEFENDANT R & S HIS CORP, DBA SUPER MERCADO LATINO MARKET'S MOTION FOR SUMMARY JUDGMENT

Notice of Lodging - NOTICE OF LODGING DEFENDANT R & S HIS CORP, DBA SUPER MERCADO LATINO MARKET'S NOTICE OF LODGMENT OF EXHIBITS

12/16/2019: Notice of Lodging - NOTICE OF LODGING DEFENDANT R & S HIS CORP, DBA SUPER MERCADO LATINO MARKET'S NOTICE OF LODGMENT OF EXHIBITS

Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL AND FINAL STATUS CONFERENCE AND TO DEEM THE NEW TRIAL DATE AS THE INITIAL TRIAL DATE

11/7/2019: Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL AND FINAL STATUS CONFERENCE AND TO DEEM THE NEW TRIAL DATE AS THE INITIAL TRIAL DATE

Notice of Ruling

10/28/2019: Notice of Ruling

Motion for Leave - NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE FIRST AMENDED ANSWER TO PLAINTIFF'S COMPLAINT

8/21/2019: Motion for Leave - NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE FIRST AMENDED ANSWER TO PLAINTIFF'S COMPLAINT

Motion to Compel - MOTION TO COMPEL DEFENDANT R & H HIS CORP. DBA SUPER MERCADO LATINO MARKET'S MOTION TO COMPEL PLAINTIFF HENRY PARK'S FURTHER RESPONSES TO R & H HIS CORP. DBA SUPER MERCADO LATINO MA

3/11/2019: Motion to Compel - MOTION TO COMPEL DEFENDANT R & H HIS CORP. DBA SUPER MERCADO LATINO MARKET'S MOTION TO COMPEL PLAINTIFF HENRY PARK'S FURTHER RESPONSES TO R & H HIS CORP. DBA SUPER MERCADO LATINO MA

Notice - NOTICE DEFENDANT R & S HIS CORP. DBA SUPER MERCADO LATINO MARKET'S NOTICE NON-OPPOSITION TO R & S HIS CORP. DBA SUPER MERCADO LATINO MARKET'S MOTION TO COMPEL PLAINTIFF HENRY PARK'S FURTHER

4/10/2019: Notice - NOTICE DEFENDANT R & S HIS CORP. DBA SUPER MERCADO LATINO MARKET'S NOTICE NON-OPPOSITION TO R & S HIS CORP. DBA SUPER MERCADO LATINO MARKET'S MOTION TO COMPEL PLAINTIFF HENRY PARK'S FURTHER

SUMMONS -

4/10/2018: SUMMONS -

39 More Documents Available

 

Docket Entries

  • 08/21/2020
  • DocketNotice of Ruling; Filed by R&S His Corp. (Defendant)

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  • 08/19/2020
  • Docketat 08:30 AM in Department 27, Edward B. Moreton, Presiding; Hearing on Motion to Set Aside/Vacate Judgment (CCP 473) - Held - Motion Denied

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  • 08/19/2020
  • DocketMinute Order ( (Hearing on Motion to Set Aside/Vacate Judgment (CCP 473))); Filed by Clerk

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  • 08/06/2020
  • DocketDeclaration (DECLARATION OF NIALL A. FORDYCE IN SUPPORT OF DEFENDANT R & S HIS CORP. dba SUPER MERCADO LATINO MARKET'S OPPOSITION TO PLAINTIFF HENRY PARK'S MOTION TO SET ASIDE JUDGMENT); Filed by R&S His Corp. (Defendant)

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  • 08/06/2020
  • DocketDeclaration (DECLARATION OF NIALL A. FORDYCE IN SUPPORT OF DEFENDANT R & S HIS CORP. dba SUPER MERCADO LATINO MARKET'S OPPOSITION TO PLAINTIFF HENRY PARK'S MOTION TO SET ASIDE JUDGMENT); Filed by R&S His Corp. (Defendant)

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  • 08/06/2020
  • DocketOpposition (DECLARATION OF NIALL A. FORDYCE IN SUPPORT OF DEFENDANT R & S HIS CORP. dba SUPER MERCADO LATINO MARKET'S OPPOSITION TO PLAINTIFF HENRY PARK'S MOTION TO SET ASIDE JUDGMENT); Filed by R&S His Corp. (Defendant)

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  • 07/28/2020
  • Docketat 08:30 AM in Department 27, Edward B. Moreton, Presiding; Trial Setting Conference - Not Held - Vacated by Court

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  • 05/07/2020
  • Docketat 08:30 AM in Department 27, Edward B. Moreton, Presiding; Jury Trial - Not Held - Advanced and Vacated

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  • 05/06/2020
  • DocketMemorandum of Costs (Summary); Filed by R&S His Corp. (Defendant)

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  • 05/01/2020
  • DocketNotice (NOTICE OF ENTRY OF FINAL JUDGMENT IN FAVOR OF DEFENDANT R & S HIS CORP DBA SUPER MERCADO LATINO MARKET AND AGAINST HENRY PARK); Filed by R&S His Corp. (Defendant)

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54 More Docket Entries
  • 02/27/2019
  • DocketNotice (DEFENDANT R&S CORP. DBA SUPER MERCADO LATINO MARKET'S NOTICE OF UNAVAILABILITY OF COUNSEL); Filed by R&S His Corp. (Defendant); Super Mercado Latino Market (Legacy Party)

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  • 08/01/2018
  • DocketAnswer; Filed by R&S His Corp. (Defendant); Super Mercado Latino Market (Legacy Party)

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  • 08/01/2018
  • DocketDEFENDANTS RANDS CORP.DBA SUPER MERCADO LATINO MARKETS ANSWER TO PLAINTIFFS COMPLIANT

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  • 07/12/2018
  • DocketREQUEST FOR ENTRY OF DEFAULT

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  • 07/12/2018
  • DocketRequest for Entry of Default / Judgment; Filed by Plaintiff/Petitioner

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  • 07/12/2018
  • DocketProof of Service (not Summons and Complaint); Filed by Plaintiff/Petitioner

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  • 07/12/2018
  • DocketProof of Service

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  • 04/10/2018
  • DocketComplaint; Filed by Henry Park (Plaintiff)

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  • 04/10/2018
  • DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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  • 04/10/2018
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC701426    Hearing Date: August 19, 2020    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA 

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

HENRY PARK,

Plaintiff,

vs.

R&S HIS CORP. dba SUPER MERCADO LATINO MARKET, et al.,

Defendants.

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BC701426

[TENTATIVE] ORDER RE: PLAINTIFF’S MOTION TO SET ASIDE JUDGMENT

Dept. 27

8:30 a.m.

August 19, 2020

On April 10, 2018, plaintiff Henry Park filed this action against defendant R&S HIS Corp. dba Super Mercado Latino Market arising from an October 17, 2016 fall from a ladder.  On March 16, 2020, the Court issued a minute order granting Defendant’s Motion for Summary judgment filed on December 16, 2019. On April 17, 2020, Plaintiff filed this Motion to Vacate under Code of Civil Procedure section 473(b) claiming excusable neglect of counsel.  

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”  (Code Civ. Proc., § 473, subd. (b).)  

The mandatory relief provision of section 473(b) does not apply to summary judgement as it is neither a default, default judgment, nor a dismissal.  However, discretionary relief is available if a party can demonstrate that the inadvertence, mistake, surprise or neglect of counsel was a mistake a reasonably prudent person may have made under the same circumstances.  (See Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 229 (citing Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.)  “Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is therefore not excusable.  To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.”  (Zamora, supra, 28 Cal.4th at 258.)  

To qualify for discretionary relief under section 473(b), the party seeking relief must show (1) a proper ground for relief, and (2) the party has raised that ground in a procedurally proper manner, within any applicable time limits i.e., apply for relief within a reasonable time not to exceed six months after the judgment, dismissal, or proceeding was taken.  (Zamora, supra, 28 Cal.4th at 258.)  

The terms mistake, inadvertence, surprise, and excusable neglect warranting relief under section 473(b) are defined as follows: “Mistake is not a ground for relief under section 473, subdivision (b), when ‘the court finds that the “mistake” is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law....’¿(8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 155, p. 749.)  Further, ‘[t]he term “surprise,” as used in section 473, refers to “ ‘some condition or situation in which a party ... is unexpectedly placed to his injury, without any default or negligence of¿¿his own, which ordinary prudence could not have guarded against.’ ” (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 611.)  Finally, as for inadvertence or neglect, ‘[t]o warrant relief under section 473 a litigant's neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances. The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief.”¿(Hearn v. Howard¿(2009) 177 Cal.App.4th 1193, 1206.)

Plaintiff argues “the failure to contest the tentative ruling was due to either the ongoing settlement or excusable mistake on the part of plaintiff’s counsel to conclude that there was a settlement prior to the hearing.”  (Mot. at 4:-6; see Declaration of Andrew Kim ¶¶ 2-4.)  

Mr. Kim states that on March 5, 2020, he and defense counsel, Niall A. Fordyce, spoke in the hallway after the Court continued the hearing on Defendant’s summary judgment motion to March 16, 2020.  (Kim Decl., ¶ 3.)  According to Mr. Kim, Mr. Fordyce “encouraged” Plaintiff to settle.

On March 15, 2020, Mr. Fordyce purportedly emailed Mr. Kim asking if Plaintiff would submit to the tentative ruling on the summary judgment motion, which was in Defendant’s favor.  (Kim Decl., ¶ 3.)  Mr. Kim states that he asked his client to come to the office and execute settlement documents on the morning of March 16, 2020. These documents, a W-9 and a dismissal, were sent to defense counsel at 9:59 a.m.   At 10:20 a.m., defense counsel emailed the Court stating both parties submit to the tentative ruling granting Defendant’s summary judgment motion.  

Plaintiff does not submit evidence showing a settlement offer existed at the time of the 9:59 a.m. email.   In fact, defense counsel attaches emails showing that a previous settlement offer, made on December 31, 2019, was rejected by Plaintiff on February 6, 2020.   (Declaration of Steven R. Yee, Exs. A&B.)  There is no evidence demonstrating that Mr. Kim was justified in believing a settlement offer was outstanding or that he made an excusable mistake outside the realm of professional incompetence.  

Plaintiff’s Motion is DENIED.  

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  

Dated this 19th day of August 2020

Hon. Edward B. Moreton, Jr. 

Judge of the Superior Court

Case Number: BC701426    Hearing Date: March 16, 2020    Dept: 27

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

On October 17, 2016, Plaintiff Henry Park fell from a ladder as he was replacing a light bulb on the premises of Defendant R&S His Corp. dba Super Mercado Latino Market. On April 10, 2018, Plaintiff filed this action for premises liability. On about June 26, 2018, Plaintiff filed a worker’s compensation claim against Defendant for his injuries from this accident. (Exhs. C, D.) In the application, Plaintiff stated that Defendant was his employer and the accident had occurred at “Job Site” when he “Fell Off From 16 Feet Height Ladder.” (Exh. C.) On March 12, 2019, the worker’s compensation action was closed and a compromise and release was filed. (Exh. C.) In his June 14, 2019 deposition, Plaintiff testified he was paid money as a result of the worker’s compensation action. (Exh. B, p. 65.)

Defendant moves for summary judgment on the ground that the worker’s compensation action was the sole remedy for Plaintiff’s injuries.

LEGAL STANDARD

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.)  The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“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 or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

ARGUMENT

Defendant’s objections are overruled.

The Workers Compensation Act (“WCA”) governs compensation to employees for injuries incurred in the course and scope of their employment. (Cal. Const., art. XIV, § 4; Cal. Labor Code, § 3201; Charles J. Vacanti, M.D., Inc. v. State Compensation Insurance Fund (2001) 24 Cal.4th 800, 810.) Compensation under the WCA is an employee’s exclusive remedy against an employer for injuries sustained out of and in the course of employment. (Cal. Labor Code, §§ 3600(a), 3602(a).) Whether exclusivity bars a cause of action against an employer depends on whether the alleged injury falls within the scope of the exclusive remedy provisions. (See Charles J. Vacanti, M.D., Inc., supra, 24 Cal.4th at 811.) The exclusive remedy provisions apply only in cases of industrial personal injury or death. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 16.) The statutory restriction does not affect an employee’s rights to damages in tort from entities with which the employee has no employment relationship. (Caso v. Nimrod Productions, Inc. (2008) 163 Cal.App.4th 881, 888.)

Defendant established a prima facie case that this action is barred because Plaintiff filed a worker’s compensation claim stating he was injured while on the job and employed by Defendant and received money from settling that claim.

Plaintiff does not dispute the facts set forth in Defendant’s Separate Statement of Undisputed Facts. Indeed, Defendant did not file a response to the Separate Statement. Instead, Defendant argues he was not an employee of Defendant, and he crossed out parts of the compromise and release that settled the worker’s compensation proceeding. Defendant submits a declaration stating that he was paid by a Mr. Im who hired him to perform work at Defendant’s store, and that his lawyer told him he could both file a worker’s compensation claim against Defendant and a civil action against Defendant for the same accident.

Plaintiff cites no law that allows a person to file a worker’s compensation claim against a defendant claiming the defendant was his employer and then litigate a separate civil action against the same defendant for the same injuries claiming the defendant was not his employer. Such a rule would subvert the purpose of the worker’s compensation law to provide the exclusive remedy for employee injuries sustained at work and would encourage plaintiffs to make contradictory allegations in the two forums.

Plaintiff attaches to his declaration a document entitled “Order Approving Compromise and Release and Award.” The first page of the document states that the Worker’s Compensation Appeals Board approved the compromise. That document identifies Plaintiff as “Employee” and Defendant as “Employer.” Plaintiff claims he was an “injured employee” who “alleges that while employed as a carpenter, sustained injury arising out of and in the course of employment” at Defendant’s location on October 17, 2016. The document states in paragraph 2, that upon approval of the compromise agreement by the Worker’s Compensation Appeals Board and payment, “the employee releases and forever discharges the above-named employer(s) . . . from all claims and causes of action, whether now know or ascertained or which may hereafter arise or develop as a result of the above-referenced injury(ies), . . . .” In paragraph 9, the parties agree “there are no other injures/body parts/systems as between the parties herein except those set forth in this C&R.” These terms, among others, make clear that Plaintiff was injured in the scope of his work for Defendant, and Plaintiff released Defendant from all claims arising as a result of the injuries from falling off the ladder.

Plaintiff points to some crossed out language. One crossed-out sentence stated Plaintiff “expressly releases and discharges R&S His Corporation . . . from any and all claims, actions, and/or proceedings arising from the injury or injuries which are the subject of the claims herein,” and that Plaintiff would dismiss this civil action. This release language was not necessary because similar release language was already contained in paragraph 2, which the parties did not cross out. If the parties had intended Plaintiff not to release Defendant at all in the worker’s compromise settlement, they would have also crossed out paragraph 2.

By asserting contrary positions in the worker’s compensation proceeding and here, Plaintiff runs afoul of judicial estoppel. “‘Judicial estoppel prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding.’” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181.) Judicial estoppel applies when a plaintiff successfully takes one position in a worker’s compensation proceeding and then a totally inconsistent position in a civil action. (Id. at pp. 190-191.) Plaintiff successfully took the position in the worker’s compensation proceeding that he was an employee injured in the scope of his employment and he received money as a result of that claim. He cannot now take a contrary position.

In sum, the Order Approving Compromise and Release and Award shows Plaintiff was injured while employed by Defendant. Therefore, worker’s compensation exclusivity bars this action. In addition, it shows Plaintiff released Defendant from all claims arising as a result of the injuries Plaintiff sustained on October 17, 2016, which is another reason this action is barred and summary judgment is warranted.

Accordingly, the motion for summary judgment is GRANTED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org. Parties who do not submit ARE STRONGLY ENCOURAGED to participate in the hearing via Courtcall so as to minimize the number of people entering the courthouse.

Case Number: BC701426    Hearing Date: October 24, 2019    Dept: 4B

[TENTATIVE] ORDER RE: MOTION FOR LEAVE TO FILE FIRST AMENDED ANSWER

Plaintiff Henry Park filed this action against R & S HIS Corp. dba Super Mercado Latino Market (“Defendant”) on April 10, 2018 alleging negligence and premises liability arising from a fall from a ladder at Defendant’s business place. Defendant seeks to file a first amended answer to assert a new defense for workers’ compensation exclusive remedy because it was previously ignorant of Plaintiff’s worker’s compensation claim (which has been settled) and because Plaintiff formerly responded with “not relevant” to Defendant’s form interrogatory seeking information about his employer. This motion is unopposed.

The Court may, in its discretion and after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading, including adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect. (Code Civ. Proc. § 473, subd. (a)(1).) “This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.)

A motion to amend a pleading must include a copy of the proposed amendment or amended pleading and must state what allegations in the previous pleading are proposed to be deleted or added. (Cal. Rules of Court, Rule 3.1324(a).) The motion shall also be accompanied by a declaration attesting to the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and why the request for amendment was not made earlier. (Cal. Rules of Court, Rule 1.324(b).)

Defendant has satisfied the procedural requirements set forth by California Rule of Court 3.1324 and shown good cause. Defendant’s unopposed motion to file a first amended answer is GRANTED. Defendant shall file the first amended answer within 10 days of the date of this order.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.