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This case was last updated from Los Angeles County Superior Courts on 05/27/2019 at 02:10:49 (UTC).

HOUSSEIN AMINI VS MACY'S CORPORATE SERVICES INC ET AL

Case Summary

On 02/15/2017 HOUSSEIN AMINI filed a Personal Injury - Other Personal Injury lawsuit against MACY'S CORPORATE SERVICES INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are PATRICIA D. NIETO and DEIRDRE HILL. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0793

  • Filing Date:

    02/15/2017

  • Case Status:

    Pending - Other Pending

  • 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

PATRICIA D. NIETO

DEIRDRE HILL

 

Party Details

Plaintiff and Petitioner

AMINI HOUSSEIN

Defendants, Respondents, Cross Plaintiffs and Cross Defendants

JP MORGAN CHASE NATIONAL CORPORATE

MACY'S CORPORATE SERVICES INC

BOMEL CONSTRUCTION CO. INC

JP MORGAN DISTRIBUTION SERVICES INC

SIMON PROPERTY GOUP INC

THE WHITING-TURNER CONTRACTING COMPANY

DOES 1 TO 100

FARALLON CAPITAL MANAGEMENT LLC

DEL AMO FASHION CTR OPERATING CO. (DOE 1)

BOMEL CONSRUCION CO INC.

DEL AMO FASHION CENTER OPERATING COMPANY L.L.C.

SIMON PROPERTY GROUP INC.

DEL AMAN FASHION CENTER OPERATING COMPANY

THE WHITING-TURNER CONTRACT COMPANY INC.

11 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

JOSEPH PIUS ESQ.

JOSEPH PIUS

Defendant and Respondent Attorneys

LONG THOMAS PATRICK

DUNBAR KEVIN T. ESQ.

LUCAS TIMOTHY D

GRANT GENOVESE & BARATTA LLP

LONG T. PATRICK ESQ.

Defendant and Cross Plaintiff Attorneys

LONG T. PATRICK ESQ.

LENKOV JEFFREY M. ESQ.

Cross Defendant Attorney

LENKOV JEFFREY MYLES ESQ.

 

Court Documents

PROOF OF SERVICE SUMMONS

4/16/2018: PROOF OF SERVICE SUMMONS

BOMEL CONSTRUCTION CO., INC.?S ANSWER TO PLAINTIFF?S COMPLAINT

5/15/2018: BOMEL CONSTRUCTION CO., INC.?S ANSWER TO PLAINTIFF?S COMPLAINT

Unknown

5/16/2018: Unknown

ANSWER TO UNVERIFIED COMPLAINT; DEMAND FOR JURY TRIAL

5/16/2018: ANSWER TO UNVERIFIED COMPLAINT; DEMAND FOR JURY TRIAL

NOTICE OF HEARING ON DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

5/25/2018: NOTICE OF HEARING ON DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

REQUEST FOR JUDICIAL NOTICE REGARDING DEFENDANT, JPMORGAN CHASE BANK, NA.'S PROPERTY ADDRESS

5/25/2018: REQUEST FOR JUDICIAL NOTICE REGARDING DEFENDANT, JPMORGAN CHASE BANK, NA.'S PROPERTY ADDRESS

PROOF OF SERVICE SUMMONS

6/6/2018: PROOF OF SERVICE SUMMONS

AMENDMENT TO COMPLAINT

6/11/2018: AMENDMENT TO COMPLAINT

Unknown

7/3/2018: Unknown

REQUEST FOR DISMISSAL

7/13/2018: REQUEST FOR DISMISSAL

Answer

7/27/2018: Answer

Other -

7/30/2018: Other -

Other -

7/30/2018: Other -

Notice of Case Reassignment and Order for Plaintiff to Give Notice

8/15/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Case Management Statement

8/27/2018: Case Management Statement

Case Management Statement

8/29/2018: Case Management Statement

Minute Order

3/5/2019: Minute Order

Amendment to Cross-Complaint

5/7/2019: Amendment to Cross-Complaint

42 More Documents Available

 

Docket Entries

  • 05/08/2019
  • Amendment to Cross-Complaint (Fictitious/Incorrect Name); Filed by Macy's West Stores, Inc. Erroneously Sued As Macy's Corporate Services Inc (Defendant)

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  • 05/07/2019
  • Amendment to Cross-Complaint (Fictitious/Incorrect Name); Filed by Macy's West Stores, Inc. Erroneously Sued As Macy's Corporate Services Inc (Defendant)

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  • 03/21/2019
  • Substitution of Attorney; Filed by DEL AMAN FASHION CENTER OPERATING COMPANY (Defendant)

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  • 03/05/2019
  • at 08:30 AM in Department B, Deirdre Hill, Presiding; Order to Show Cause Re: Dismissal (OSC-Failure to File Dism. or Judg.) - Held

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  • 03/05/2019
  • at 08:30 AM in Department B, Deirdre Hill, Presiding; Case Management Conference - Held

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  • 03/05/2019
  • Minute Order ( (Case Management Conference; Order to Show Cause Re: Dismissal...)); Filed by Clerk

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  • 01/25/2019
  • at 08:30 AM in Department B, Deirdre Hill, Presiding; Case Management Conference - Held - Continued

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  • 01/25/2019
  • at 08:30 AM in Department B, Deirdre Hill, Presiding; Order to Show Cause Re: Dismissal (OSC-Failure to File Dism. or Judg.) - Held - Continued

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  • 01/22/2019
  • at 08:30 AM in Department B, Deirdre Hill, Presiding; Court Order

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  • 01/22/2019
  • Minute Order ( (Court Order Due to the unavailability of the court on 1/25/1...)); Filed by Clerk

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132 More Docket Entries
  • 04/16/2018
  • Proof-Service/Summons; Filed by Houssein Amini (Plaintiff)

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  • 04/16/2018
  • Proof-Service/Summons; Filed by Houssein Amini (Plaintiff)

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  • 04/16/2018
  • Proof-Service/Summons; Filed by Attorney for Plaintiff/Petitioner

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  • 02/15/2017
  • SUMMONS

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  • 02/15/2017
  • COMPLAINT FOR PERSONAL INJURY AND DAMAGES

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  • 02/15/2017
  • Complaint

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  • 02/15/2017
  • Complaint filed-Summons Issued; Filed by null

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  • 02/15/2017
  • Summons; Filed by null

    Read MoreRead Less
  • 02/15/2017
  • Complaint; Filed by Houssein Amini (Plaintiff)

    Read MoreRead Less
  • 06/06/2015
  • Proof-Service/Summons

    Read MoreRead Less

Tentative Rulings

Case Number: BC650793    Hearing Date: January 08, 2021    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

HOUSSEIN AMINI,

Plaintiff,

Case No.:

BC650793

vs.

[Tentative] RULING

MACY’S CORPORATE SERVICES, INC., et al.,

Defendants.

Hearing Date: January 8, 2021

Moving Parties: Defendant and cross-defendant Del Amo Fashion Center Operating Company, L.L.C.

Responding Party: Cross-complainant Macy’s

(1) Motion to Compel Further Responses to Form Interrogatories (Set Two)

(2) Motion to Compel Further Responses and Production to Request for Production of Documents (Set Three)

(3) Motion to Compel Deponents’ Appearance, Further Responses, and for Production of Documents at Deposition

(4) Motion to Compel Further Responses to Requests for Admissions (Set One)

The court considered the moving, opposition, and reply papers.

RULING

The motions are GRANTED.

Macy’s is ordered to respond further without objections to Del Amo’s Form Interrogatory, Set Two, No. 17.1, with respect to RFA Nos. 1, 4-5, 13-14, 17-20, 23-26, 28-32 and Requests for Admissions, Set One, Nos. 1, 17-20, 23, 25, 26, 30, 32 within 20 days.

Macy’s is also ordered to respond further without objections and to produce responsive documents to Requests for Production of Documents, Set Three, Nos. Nos. 1-13 within 20 days.

Counsel are to meet and confer as to scheduling the depositions of Macy’s custodian and PMQ(s), if still necessary after the production of documents above.

Macy’s is ordered to pay monetary sanctions to Del Amo in the amount of $2,100, within 30 days.

BACKGROUND

On February 15, 2017, plaintiff Houssein Amini filed a complaint against Macy’s Corporate Services, Inc., Simon Property Group, Inc., Farallon Capital Management, LLC, JPMorgan Distribution Services Inc., J.P. Morgan Chase National Corporate Services, Inc., The Whiting-Turner Contracting Company, Inc., and Bomel Construction Co., Inc. based on a trip and fall incident on February 19, 2015, located at 3525 W. Carson St., Torrance.

On May 16, 2018, Macy’s West Stores, Inc. filed a cross-complaint against Roes 1 to 20 for express indemnification, equitable indemnification, contribution, and declaratory relief.

On May 18, 2018, The Whiting-Turner Contracting Company filed a cross-complaint against Bomel Construction Company, Inc. for indemnity, contribution, declaratory relief, and breach of contract.

On February 4, 2020, the court granted Macy’s West Stores’ motion for summary judgment.

On March 16, 2020, judgment was entered in favor of Macy’s and against plaintiff.

LEGAL AUTHORITY

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

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

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

Interrogatories

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

Request for Production of Documents

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

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

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

DISCUSSION

Defendant and cross-defendant Del Amo Fashion Center Operating Company, L.L.C. (“Del Amo”) requests that the court order Macy’s West Store’s Inc. (“Macy’s”) to respond further as follows:

- Form Interrogatory, Set Two, No. 17.1 as to RFAs 1, 4-5, 13-14, 17-20, 23-26, 28-32;

- Requests for Production, Set Three, Nos. 1-13;

- Requests for Admissions, Set One, Nos. 1, 17-20, 23, 25, 26, 30, 32;

and to compel deponent appearances by Macy’s Custodian of Record and PMQ on date certain and to provide supplemental responses to the document demand and to produce documents at the deposition.

On March 31, 2020, Del Amo served a Third Amended Deposition Notice with Request for Production of Documents at Deposition on Macy’s custodian of records for lease documents and billing records for May 11, 2020. Del Amo also served Third Amended Deposition Notice with Request for Production of Documents at Deposition on Macy’s PMQ as to Macy’s purported express indemnity claim, its lease documents, its billing support, and contended damages for May 12, 2020. On April 29, 2020, Macy’s served written objections.

Del Amo explains that the cause of action for express indemnity in Macy’s cross-complaint is the only remaining claim in the action. Del Amo asserts that Macy’s is claiming defense costs under its indemnity claim based on a 1980 shopping center lease, entitled “First Agreement Amending and Restating Restriction and Operating Agreement” and as amended multiple times over a span of approximately 40 years.

The discovery requests relate to lease agreements, indemnity agreements, and defense costs. Del Amo argues that Macy’s refuses to produce the express indemnity documentation on which its claim is based; it refuses to produce unredacted attorney’s fees, defense costs or vendor billing of any of its purported damages; and it refuses to produce evidence of any actual payments of its purported damages. Del Amo contends that although Macy’s had filed lease and addendum evidentiary support for its motion for summary judgment against plaintiff, it fails to identify or produce any lease documents or addendums.

In the opposition, Macy’s reiterates its objections.

Lease and indemnity agreements

Request for Production of Documents, Set Three

No. 1 – all commercial leases, leases, and addendums related to Macy’s tenancy at the subject location in effect at the time of the subject incident.

No. 2 – all indemnity agreements between Macy’s and any party related to it tenancy at the subject location in effect at the time of the subject incident.

No. 3 – The 5th Amendment to Supplement to Easement, Restriction and Operating Agreement dated April 25, 2014 between Macy’s and Del Amo.

No. 4 – All amendments, modifications, and addendums to Supplements between Macy’s and Del Amo from 2006 to present.

No. 5 – all amendments, addendums, assignments, and assumption agreements to the First Agreement dated July 8, 1980 in which Macy’s contends supports its claims for indemnity as against Del Amo in connection with the current action and subject claims.

As to Nos. 1 through 5, Macy’s objected that the requests were burdensome and harassing, that the documents were equally available to Del Amo, and that the documents contain confidential trade secrets. Macy’s stated that the documents would only be produced if the parties executed a stipulated confidentiality agreement and protective order.

The court finds that none of Macy’s’ objections have merit. Macy’s has not shown how the agreements are trade secret and, further, it attached lease agreements to its motion for summary judgment against plaintiff. Del Amo has shown good cause for the documents as Macy’s is asserting a claim for express indemnity. The motion is therefore GRANTED as to Nos. 1 to 5.

Request for Production of Documents attached to deposition notice

Nos. 1 and 2 are same as above.

No. 3 – All Macy’s general liability policies that incepted in 2014.

No. 4 – All Macy’s general liability policies that incepted in 2015.

Macy’s objected that the term “incepted” was vague and ambiguous and that the requests for burdensome and harassing.

No. 5 – all documents that refer to additional insured insurers who have agreed to defend Macy’s.

Macy’s objected that the term “additional insured insurers” is vague and that the requests seek attorney work product.

No. 6 – all documents that refer to certificate of insurances issued identifying Del Amo as a certificate holder on Macy’s general liability policy.

Macy’s objected to phrase “certificate holder” and that the request seeks expert opinion.

No. 7 – all documents that refer to additional insured endorsements issued on Macy’s general liability policy referencing the subject policy.

Macy’s objected that the request seeks expert opinion.

No. 16 – all documents which Macy’s contends supports its contention that any person or entity owes indemnity obligations to Macy’s.

Macy’s objected that the request was overly broad and that it seeks attorney-work product and premature expert opinion.

No. 17 – all documents that refer to tenders for insurance participation by Macy’s.

Macy’s objected that the term “insurance participation” is vague.

No. 18 – all documents that refer to tender responses to requests for insurance participation on behalf of Macy’s.

Macy’s objected that the term “insurance participation” is vague.

No. 19 – all documents which Macy’s contends supports its contention that Del Amo owes indemnity obligations to Macy’s.

Macy’s objected that to the extent that the subject lease is already in possession of Del Amo, it is burdensome and harassing to require that the lease be produced again.

The court finds that Macy’s objections lack merit. The motion is GRANTED to compel the depositions of Macy’s custodian and PMQ and to produce documents in response to the above requests at deposition.

Defense costs

Request for Production of Documents, Set Three

No. 6 – All documents evidencing un-redacted attorney billings to the present for which Macy’s demands reimbursement.

No. 7 – all documents evidencing un-redacted vendor billings to the present for which Macy’s demands reimbursement.

No. 8 – all documents evidencing un-redacted defense cost billings to the present for which Macy’s demands reimbursement.

No. 9 – all documents evidencing un-redacted expert cost billings to the present for which Macy’s demands reimbursement.

No. 10 – all documents evidencing un-redacted evidence of payments made to the present on behalf of Macy’s for which it is owed reimbursement.

No. 11 – all documents evidencing un-redacted evidence of outstanding billing, which have not been paid.

No. 12 – all documents evidencing un-redacted billings from April 19, 2018 to the present for which Macy’s demands reimbursement for fees and costs.

No. 13 – all documents evidencing un-redacted evidence of payments made from April 19, 2018 to the present made on behalf of Macy’s for which Macy’s contends it is owed reimbursement.

As to Nos. 6-13, Macy’s objected that the requests seek information protected by the attorney-client privilege and agreed to produce the documents subject to a confidentiality and protective order.

In the opposition, Macy’s offered to produce redacted copies but does not state what parts of the documents should be redacted.

The court finds Macy’s objections lack merit. Del Amo has shown good cause for the billing information as Macy’s is claiming its defense costs as damages under the express indemnity claim.

The motion is GRANTED as to Nos. 6 to 13.

Request for Production of Documents attached to deposition notice

Nos. 8 through 15 are the same as above regarding billings and payments.

The motion is GRANTED.

Requests for Admissions (Set One)

No. 1 – Admit that the First Agreement dated July 9, 1980 as Exh. A is a true and correct copy.

Macy’s objected that the request was vague, ambiguous, and overbroad.

No. 17 – Admit there is no express indemnity provision in Exh. C.

Macy’s objected that the request was vague and calls for attorney work product.

No. 18 – Admit that pursuant to the terms of Exh. C, Del Amo did not agree to indemnify Macy’s for any onsite premise bodily injury claims at subject premises.

See Macy’s objection under No. 17.

No. 19 – Admit that pursuant to the terms of Exh. C, Del Amo did not agree to indemnify Macy’s for any onsite premise bodily injury claims on the subject premises at the location where plaintiff purports to have slipped and fallen on 2/19/15.

Macy’s objected that the request was ambiguous.

No. 20 – Admit that Exh. C does not contain an attorney’s fees provision.

Macy’s objected that the request was vague and ambiguous.

Nos. 23, 25, 26 are same as Nos. 17, 19, 20 except that the requests refer to Exhibit D.

Nos. 30, 32 are same as Nos. 18 and 20 except that the requests refer to Exh. E.

The court finds that Macy’s objections lack merit.

The motion is GRANTED.

Form Interrogatories, Set Two, No. 17.1

Del Amo requests an order as to Form Interrogatory, Set Two, No. 17.1 as to RFA Nos. 1, 4-5, 13-14, 17-20, 23-26, 28-32.

As to Form Interrogatory No. 17.1, as to RFA Nos. 1, 17-20, 23, 25, 26, 30, and 32, the motion is GRANTED in light of the ruling on the requests for admission above.

As to No. 17.1 as to RFA Nos. 4-5, 13-14, 24, 29, and 31, Macy’s’ response was “Denied.” Macy’s responses under 17.1(d), which requests Macy’s to identify all documents that support its response is vague as Macy’s only identifies the “First Agreement” dated July 8, 1980 and “its Amendments.” Macy’s does not identify the “Amendments.” The motion is GRANTED.

As to No. 17.1 as to RFA No. 28, which states, “Admit that Carl L. Goertemoeller, Senior Vice President,” was authorized to execute Exhibit E,” Macy’s responded vague and ambiguous and overbroad as to time and scope. The court finds that Macy’s objection has no merit. The time and scope are as to when the agreement was entered into. The motion is GRANTED.

Sanctions

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

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

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

Del Amo requests a total of $9,923 against Macy’s for the four motions. The court finds that sanctions are warranted. The court awards $2,100 ($155/hr. x 12 hrs. plus $240 in filing fees) in reasonable attorney’s fees against Macy’s.

Moving party is ordered to give notice of the ruling.

Case Number: BC650793    Hearing Date: February 04, 2020    Dept: SWB

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

HOUSSEIN AMINI,

Plaintiff,

Case No.:

BC650793

vs.

[Tentative] RULING

MACY’S CORPORATE SERVICES, INC., et al.,

Defendants.

Hearing Date: February 4, 2020

Moving Parties: Defendant Macy’s West Stores, Inc. (erroneously sued as Macy’s Corporate Services, Inc.)

Responding Party: None

Motion for Summary Judgment

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

RULING

The motion for summary judgment is GRANTED.

BACKGROUND

On February 15, 2017, plaintiff Houssein Amini filed a complaint against Macy’s Corporate Services, Inc., Simon Property Group, Inc., Farallon Capital Management, LLC, JPMorgan Distribution Services Inc., J.P. Morgan Chase National Corporate Services, Inc., The Whiting-Turner Contracting Company, Inc., and Bomel Construction Co., Inc. based on a trip and fall incident on February 19, 2015, located at 3525 W. Carson St., Torrance.

On January 28, 2020, plaintiff filed a request for dismissal as against Macy’s Corporate Services Inc.

LEGAL AUTHORITY

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

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

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP §437c(c).

DISCUSSION

Defendant Macy’s requests summary judgment on the grounds that there are no genuine, triable issues as to any material facts and it is entitled to judgment as a matter of law as to the complaint. In the alternative, Macy’s requests summary adjudication on the following issues:

Issue No. 1: Plaintiff’s claim for negligence fails because he cannot prove that Macy’s owed plaintiff any duty.

Issue No. 2: Plaintiff’s claim for negligence fails because he cannot establish that any act or omission on the part of Macy’s caused his injuries.

In the complaint, plaintiff alleges that he tripped and fell at 3525 W. Carson St., Torrance, on February 19, 2015, at nighttime. He was a customer at the property. He was walking from a parking lot on the premises to a Macy’s department store. There was construction ongoing near the Macy’s department store on the property at the time that plaintiff approached it. As plaintiff approached the Macy’s department store, it was dark at nighttime. The lighting near the store was inadequate to clearly reveal changes in the height of the curb of the sidewalk bordering Macy’s. There was no signage warning of changes in the height of the curb. Plaintiff tripped over the deepened curb as he attempted to step onto the sidewalk.

A landowner has a duty of ordinary care in the management of his or her premises in order to avoid exposing persons to an unreasonable risk of harm. Scott v. Chevron U.S.A. (1992) 5 Cal. App. 4th 510, 515; Brooks v. Eugene Burger Management Corporation (1989) 215 Cal. App. 3d 1611, 1619. “A person who [owns/leases/occupies/controls] property is negligent if he or she fails to use reasonable care to keep the property in a reasonably safe condition. A person who [owns/leases/occupies/controls] property must use reasonable care to discover any unsafe conditions and to repair, replace, and give adequate warning of anything that could be reasonably expected to harm others. . . .” CACI 1001.

“A defendant cannot be held liable for the defective or dangerous condition of property which it [does] not own, possess, or control. Where the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper.” Donnell v. California Western School of Law (1988) 200 Cal. App. 3d 715, 720 (citation omitted). “Without the ‘crucial element’ of control over the subject premises, no duty to exercise reasonable care to prevent injury on such property can be found.” Gray v. America West Airlines, Inc. (1989) 209 Cal. App. 3d 76, 81 (citation omitted). “A person controls property that he or she does not own or lease when he or she uses the property as if it were his or her own. A person is responsible for maintaining, in reasonably safe condition, all areas he or she controls.” CACI 1002.

Defendant contends that on the night of February 19, 2015, plaintiff travelled to the Del Amo Fashion Center located at 3525 W. Carson St., Torrance, intending to eventually patronize the Macy’s store located in the north of the mall. Defendant’s Separate Statement of Undisputed Material Facts (“DUMF”) 1. Plaintiff walked through the parking lot, crossed the street, and headed towards the sidewalk that bordered the northern entrance into the Macy’s store. DUMF 2. There appeared to be construction going on in the street near the sidewalk adjacent to the entrance. DUMF 3. Plaintiff claims the illumination of the street and the sidewalk at the time was dim and that the height of the curb was not illuminated. DUMF 4. Plaintiff firmly planted his right foot on the top of the curb connecting the sidewalk and the street. DUMF 5. The top of the curb on the sidewalk adjacent to the Macy’s store entrance was flat. DUMF 6. As plaintiff attempted to pull his left foot onto the top of the curb to join his right foot, he believes his foot became “stuck,” causing him to fall. DUMF 7. Plaintiff expected the height differential between the street and the top of the curb to be approximately five to six inches. DUMF 8.

Defendant further contends that plaintiff claims that the height differential between the street and the top of the curb was approximately 12” at the time of his fall. DUMF 9. Plaintiff believes the larger than expected height differential caused him to trip and fall. DUMF 10. He claims that he did not notice the height of the curb because of the inadequate lighting of the curb and sidewalk. DUMF 11. The curb and street where plaintiff fell is considered “common area” on the property. DUMF 12. Common areas on the property, including the curb and street where plaintiff fell, are owned, maintained, and controlled by Del Amo. DUMF 13. Macy’s only involvement with the common area is to contribute funds towards the expenses incurred by Del Amo in maintaining and repairing the common areas. DUMF 14. Macy’s also does not control, own, possess, maintain, or repair any lights illuminating the sidewalk and streets belonging to the common areas of the mall, nor does it have such right or responsibility. DUMF 15. Macy’s did not hire, initiate, or carry out any of the construction work located at or near the curb and street where plaintiff fell. DUMF 16. See also Compendium of Exhibits in support of the separate statement.

The court finds that defendant has met its burden of showing that plaintiff cannot establish the elements for negligence or premises liability against defendant. Defendant has shown that it does not own, possess, or control the property where plaintiff fell.

Plaintiff has not filed an opposition. On January 28, 2020, after the time when the opposition was due, plaintiff filed a request for dismissal without prejudice as to Macy’s. The request for dismissal was untimely filed. “A voluntary dismissal is untimely after the time allowed for opposing a summary judgment motion that effectively negates plaintiff’s claims. In such case, the outcome is ‘inevitable’ because plaintiff’s failure to oppose a meritorious motion is itself ground for summary judgment.” Weil & Brown, Civ. Proc. Before Trial, at 11:21.5 (citations omitted).

The motion for summary judgment is therefore GRANTED.

Defendant Macy’s is ordered to give notice of the ruling.

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