This case was last updated from Los Angeles County Superior Courts on 06/08/2019 at 04:33:03 (UTC).

IRMA MOJARRO ET AL VS CITY OF WHITTIER

Case Summary

On 04/04/2017 IRMA MOJARRO filed a Personal Injury - Other Personal Injury lawsuit against CITY OF WHITTIER. This case was filed in Los Angeles County Superior Courts, Norwalk Courthouse located in Los Angeles, California. The Judges overseeing this case are LORI ANN FOURNIER, RAUL A. SAHAGUN and MARGARET MILLER BERNAL. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6449

  • Filing Date:

    04/04/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

LORI ANN FOURNIER

RAUL A. SAHAGUN

MARGARET MILLER BERNAL

 

Party Details

Plaintiffs, Petitioners and Guardian Ad Litems

MOJARRO PATRICIA

MOJARRO IRMA

MARTINEZ PEDRO

MOJARRO SILVIA

MOJARRO FELICIANO

MARTINEZ PEDRO JR

STEFANIE OVIATT AN

GARCIA ASHLEY

CUEVAS RENE

CUEVAS SONIA

Defendants, Respondents and Cross Plaintiffs

WHITTIER CITY OF

DOES 1 THROUGH 50

WEST COAST ARBORISTS INC.

WEST COAST ARBORISTS INC

WEST COAST ARGORISTS INC

Cross Defendants and Defendants

WEST COAST ARBORISTS INC.

WEST COAST ARBORISTS INC

WEST COAST ARGORISTS INC

Petitioners, Plaintiffs and Guardian Ad Litems

MOJARRO IRMA

MARTINEZ PEDRO JR.

Minors

MARTINEZ P.

MARTINEZ I.

MARTINEZ J.

CUEVAS A

15 More Parties Available

Attorney/Law Firm Details

Plaintiff, Petitioner and Minor Attorneys

LACK WALTER J. ESQ.

ZULCH WILLIAM FREDRIC

ENGSTROM LIPSCOMB & LACK A PROF CORP

LEINBACH BRIAN JOHN

ZULCH WILLIAM FREDRIC ESQ.

HEFFERNAN BRIAN JOSEPH

Defendant Attorneys

KRANKER GARY S. ESQ.

LAW OFFICES OF NANCY A. HALAS

MUHAR GEORGE ESQ.

JONES & MAYER

BORDIN SEMMER LLP

SPEARMAN JUSTIN F.

YOKA & SMITH LLP

Cross Defendant Attorney

MUHAR GARBER AV AND DUNCAN LAW OFFICES

Other Attorneys

SPEARMAN JUSTIN F. ESQ.

MENDOZA ANDRES

MCMAHAN MARTIN SCOT ESQ.

 

Court Documents

APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM?EX PARTE

4/4/2017: APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM?EX PARTE

APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM; EX PARTE

4/4/2017: APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM; EX PARTE

APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM?EX PARTE

4/4/2017: APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM?EX PARTE

APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM?EX PARTE

4/4/2017: APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM?EX PARTE

APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM?EX PARTE

4/4/2017: APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM?EX PARTE

SUMMONS

4/14/2017: SUMMONS

PROOF OF SERVICE SUMMONS

4/25/2017: PROOF OF SERVICE SUMMONS

SUMMONS

5/19/2017: SUMMONS

Unknown

5/19/2017: Unknown

NOTICE OF ERRATA TO CROSS-COMPLAINT OF CITY OF WHITTIER FOR: 1.IMPLIED INDEMNITY 2.COMPARATIVE CONTRIBUTION 3.TOTAL EQUITABLE INDEMNITY 4.DECLARATORY RELIEF CONTRACTUAL INDEMNITY

5/19/2017: NOTICE OF ERRATA TO CROSS-COMPLAINT OF CITY OF WHITTIER FOR: 1.IMPLIED INDEMNITY 2.COMPARATIVE CONTRIBUTION 3.TOTAL EQUITABLE INDEMNITY 4.DECLARATORY RELIEF CONTRACTUAL INDEMNITY

DEFENDANT'S CITY OF WHITTIER'S ANSWER TO PLAINTIFFS' COMPLAINT FOR DAMAGES FOR: (1) DANGEROUS CONDITION OF PUBLIC PROPERTY ? WRONGFUL DEATH; ETC

5/19/2017: DEFENDANT'S CITY OF WHITTIER'S ANSWER TO PLAINTIFFS' COMPLAINT FOR DAMAGES FOR: (1) DANGEROUS CONDITION OF PUBLIC PROPERTY ? WRONGFUL DEATH; ETC

CROSS-COMPLAINT OF CITY OF WHITTIER FOR: 1. IMPLIED INDEMNITY; ETC

5/19/2017: CROSS-COMPLAINT OF CITY OF WHITTIER FOR: 1. IMPLIED INDEMNITY; ETC

AMENDMENT TO COMPLAINT

6/2/2017: AMENDMENT TO COMPLAINT

PROOF OF SERVICE SUMMONS

6/7/2017: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

6/19/2017: PROOF OF SERVICE SUMMONS

Unknown

6/21/2017: Unknown

ANSWER TO CROSS-COMPLAINT AND DEMAND FOR TRIAL BY JURY

6/21/2017: ANSWER TO CROSS-COMPLAINT AND DEMAND FOR TRIAL BY JURY

Unknown

7/26/2017: Unknown

130 More Documents Available

 

Docket Entries

  • 06/04/2019
  • at 1:30 PM in Department C; Hearing on Motion to Compel (DEFENDANT CITY OF WHITTIER?S NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF PLAINTIFF PABLO MARTINEZ) - Held - Taken under Submission

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  • 06/04/2019
  • at 1:30 PM in Department C; Hearing on Motion to Compel (DEFENDANT CITY OF WHITTIER?S NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF PLAINTIFF ISAAC CUEVAS) - Held - Taken under Submission

    Read MoreRead Less
  • 06/04/2019
  • at 1:30 PM in Department C; Hearing on Motion to Compel (DEFENDANT CITY OF WHITTIER?S NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF PLAINTIFF ANDRES CUEVAS) - Held - Taken under Submission

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  • 06/04/2019
  • at 1:30 PM in Department C; Hearing on Motion for Protective Order - Held - Taken under Submission

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  • 06/04/2019
  • Order (Court's order hearing 6/4/19); Filed by Clerk

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  • 06/04/2019
  • Certificate of Mailing for (Minute Order (Hearing on Motion to Compel DEFENDANT CITY OF WHITTIER?S NOTI...) of 06/04/2019); Filed by Clerk

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  • 06/04/2019
  • Minute Order ( (Hearing on Motion to Compel DEFENDANT CITY OF WHITTIER?S NOTI...)); Filed by Clerk

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  • 06/03/2019
  • at 08:30 AM in Department C; Hearing on Ex Parte Application ( for an Order Shortening Time for Hearing Motion to Compel) - Held

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  • 06/03/2019
  • Minute Order ( (Hearing on Ex Parte Application for an Order Shortening Time...)); Filed by Clerk

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  • 05/31/2019
  • Opposition (Defendant City of Whittier's Opposition to Plaintiffs' Ex Parte Application for an Order Shortening Time for Hearing of Plaintiffs' Motion to Compel Compliance with Inspection Demand CCP 2031.010); Filed by WHITTIER, CITY OF (Legacy Party)

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305 More Docket Entries
  • 04/04/2017
  • APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM EX PARTE

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  • 04/04/2017
  • APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM EX PARTE

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  • 04/04/2017
  • Ord Apptng Guardian Ad Litem; Filed by IRMA MOJARRO (Plaintiff); I MARTINEZ (Legacy Party)

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  • 04/04/2017
  • Ord Apptng Guardian Ad Litem (AS TO IRMA MOJARRO FOR ISABEL MARTINEZ ); Filed by Attorney for Plaintiff

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  • 04/04/2017
  • Ord Apptng Guardian Ad Litem (FOR SONIA CUEVAS FOR ANDRES CUEVAS ); Filed by Attorney for Plaintiff

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  • 04/04/2017
  • Ord Apptng Guardian Ad Litem (PEDRO MARTINEZ, JR FOR PABLO MARTINEZ ); Filed by Attorney for Plaintiff

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  • 04/04/2017
  • Ord Apptng Guardian Ad Litem (PEDRO MARTINEZ, JR FOR JESNSSINE AND JENSSINE MARTINEZ ); Filed by Attorney for Plaintiff

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  • 04/04/2017
  • Ord Apptng Guardian Ad Litem; Filed by SONIA CUEVAS (Plaintiff)

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  • 04/04/2017
  • Complaint Filed-No Summons Issued (DANGEROUS CONDITION/WRONGFUL DEATH PERSONAL INJURY DEMAND FOR JURY TRIAL 4/4/17 CCH243111078 $435.00); Filed by Attorney for Plaintiff

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  • 04/04/2017
  • Ord Apptng Guardian Ad Litem (RE SONIA CUEVAS FOR ISAAC CUEVAS ); Filed by Attorney for Plaintiff

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Tentative Rulings

b'

Case Number: BC656449 Hearing Date: November 17, 2021 Dept: SED

MOJARRO, et al. v. CITY OF\r\nWHITTIER, et al.

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CASE NO.: BC656449

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JUDGE: Raul Sahagun

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HEARING: 11/17/21\r\n@ 1:30 PM

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TENTATIVE ORDER

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The Court reserves\r\nruling on the motion to hear from the parties.

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Defendant\r\nCity of Whittier (“City”) moves to compel the Plaintiff Stefanie Oviatt’s\r\ncompliance with court order re: special interrogatories, sets two and three and\r\nrequests for production of documents, set three pursuant to CCP §§ 2023.010,\r\n2023.030, 2030.290, and 2031.300.

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If anyone engages in conduct that is a misuse\r\nof the discovery process, the court may impose monetary sanction, issue\r\nsanction, evidence sanction, terminating sanction, and contempt sanction. (CCP\r\n§ 2023.030.) Misuses of the discovery\r\nprocess include, but are not limited to, the following… (d) Failing to respond or to submit to an\r\nauthorized method of discovery…. (g) Disobeying a court order to provide discovery.\r\n(h) Making or opposing, unsuccessfully and without\r\nsubstantial justification, a motion to compel or to limit discovery. (CCP § 2023.010.)

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City served Plaintiff with Special\r\nInterrogatories, Set Two, and Requests for Production of Documents, Set Three,\r\non February 17, 2021, and with Special \r\nInterrogatories, Set Three, on February 18, 2021.

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On September 14, 2021, this court ordered Plaintiff\r\nto provide responses by no later than September 29, 2021.

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City contends that “Plaintiff has still failed\r\nto properly and timely serve responses to these requests.” (Motion, 5:23-24.) However, Attorney Spearman concedes that\r\nPlaintiff served responses on October 14, 2021. \r\n(Spearman Decl., ¶ 17.) City does\r\nnot contend that the responses did not contain a verification. Rather, counsel contends that because a proof\r\nof service was not attached, it somehow renders the response “obsolete and\r\nincomplete.” (Id.) City does not provide any authority for this\r\ncontention.

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At this time, the court requests clarification\r\nregarding whether City is in fact in possession of verified responses. Plaintiff Oviatt did not file an opposition.

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The court will hear from the parties.

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'b'

Case Number: BC656449 Hearing Date: October 13, 2021 Dept: SED

MOJARRO, et al. v. CITY OF\r\nWHITTIER, et al.

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CASE NO.: BC656449

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JUDGE: Raul Sahagun

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HEARING: 10/13/21\r\n@ 9:30 AM

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TENTATIVE ORDER

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The court is inclined\r\nto DENY Defendant City of Whittier’s motion to compel the depositions of West\r\nCoast Arborists, Inc.’s officers and employees, and will hear further argument\r\nfrom City.

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Moving Party to give\r\nNOTICE.

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Defendant\r\nCity of Whittier (“City”) moves to compel the deposition of West Coast\r\nArborists, Inc. (“WCA”)’s employees pursuant to CCP §§ 2025.010 and 2025.450.

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“If, after service of a deposition notice, a party to the\r\naction or an officer, director, managing agent, or employee of a party, or a\r\nperson designated by an organization that is a party under Section 2025.230, without\r\nhaving served a valid objection under Section 2025.410, fails to appear for\r\nexamination, or to proceed with it, or to produce for inspection any document,\r\nelectronically stored information, or tangible thing described in the\r\ndeposition notice, the party giving the notice may move for an order compelling\r\nthe deponent’s attendance and testimony, and the production for inspection of\r\nany document, electronically stored information, or tangible thing described in\r\nthe deposition notice.” (CCP § 2025.450(a).) The motion shall set forth\r\nspecific facts showing good cause justifying the production for inspection of\r\nany document, electronically stored information, or tangible thing described in\r\nthe deposition notice.” (CCP §\r\n2025.450(b)(1).)

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City moves to compel the depositions of Patrick\r\nMahoney (“Patrick”), Richard Mahoney (“Richard”), Amelia Menzel, Arlene Biscan,\r\nand Tristyn Ferralez, who City contends are all fact witnesses and employees of\r\nWCA.

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Patrick Mahoney is a signatory to the contract\r\nbetween WCA and the City. Patrick was\r\ndescribed by WCA’s designated PMQ as being personally involved in the\r\ndecision-making process for WCA contracts, scope of work, pricing, and\r\npotential work options. (Spearman Decl.,\r\n¶ 11, Ex. J.) Previously, this court\r\ndeclined to compel the apex deposition of WCA\r\nPresident Patrick Mahoney\r\nbecause less intrusive discovery means was still available, such as conducting WCA’s\r\nPMQ deposition.

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The\r\nPMQ deponent has testified that his involvement with the contract that was in effect at the time of the incident\r\nwas “on a very limited scale,” and that he had no involvement beyond the price,\r\nand no role in types of insurance coverage, revisions to indemnification\r\nportions of contracts, negotiation of contracts with insurance carriers, or\r\nwork performed under the contract in January of 2014. (Id., ¶ 12.)

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Because less intrusive\r\nmeans has been exhausted, the apex objections do not apply to Patrick or\r\nRichard Mahoney.

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However, City has not demonstrated good cause for the\r\ndepositions. The contract is an\r\nintegrated document. Although exceptions\r\nto the parol evidence may exist, City has not articulated what vague or\r\nambiguous terms are contained in the contract that would require an examination\r\nof the parties’ course of conduct.

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Accordingly, the court is inclined to DENY\r\nDefendant City of Whittier’s motion to compel, but will hear further arguments\r\nfrom City.

'b'

Case Number: BC656449 Hearing Date: September 14, 2021 Dept: SED

MOJARRO v. City of Whittier (OVIATT v. CITY\r\nOF WHITTIER, et al.

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CASE No.: LEAD CASE BC656449 (Consolidated Case BC666844)

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HEARING: 9/14/21 @ 9:30 AM

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TENTATIVE ORDER

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Defendant\r\nCity of Whittier’s unopposed motion to compel Plaintiff’s responses to special\r\ninterrogatories, sets two and three, and request for production of documents,\r\nset three is GRANTED.

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Plaintiff\r\nOviatt is ordered to serve responses to special interrogatories and document\r\nrequests, without objections, within 15 days. Costs are imposed against Plaintiff and\r\ncounsel, jointly and severally, in the sum of $1,462.50, payable within 30\r\ndays.

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Moving Parties\r\nto give NOTICE.

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Defendant City of Whittier moves to compel\r\nresponses to special interrogatories and document requests pursuant to CCP §§ 2030.290\r\nand 2031.300.

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CCP\r\n§§ 2030.290(b) and 2031.300(b) allow the propounding party to file a motion to\r\ncompel responses to interrogatories and document requests if a response has not\r\nbeen received. If responses are\r\nuntimely, responding party waives objections. \r\n(CCP §§ 2030.290(a), 2031.300(a).) \r\n

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Plaintiff failed to serve any responses. Accordingly, the motion is GRANTED. Plaintiff is ordered to serve responses\r\nwithout objections within 15 days.

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Sanctions: \r\nCCP §§ 2023.010(d), 2030.290(c), and 2031.300(c) authorize the court to\r\nimpose sanctions for failure to respond to discovery without substantial\r\njustification.

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Here, sanctions are warranted because\r\nPlaintiff failed to serve any responses to discovery. The court finds City’s request of $1,462.50\r\nis reasonable. Accordingly, sanctions\r\nare imposed against Plaintiff and counsel, jointly and severally, in the sum of\r\n$1,462.50, payable within 30 days.

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'

Case Number: BC656449    Hearing Date: March 23, 2021    Dept: SED

MOJARRO, et al. v. CITY OF WHITTIER, et al.

CASE NO.:  BC656449

JUDGE: Raul Sahagun

HEARING 3/23/21 @ 1:30 PM

TENTATIVE ORDER

Defendant West Coast Arborists, Inc.’s unopposed motion to quash Whittier’s notice for the deposition of Adam Rodriguez and request for protective order is GRANTED.

Moving Party to give NOTICE.

Defendant West Coast Arborists, Inc. (“WCA”) moves to quash the deposition of Adam Rodriguez pursuant to CCP §§ 2025.410 and 2025.420.

(a) Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section2016.040.(b) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:(1) That the deposition not be taken at all. (CCP § 2025.420.)

Defendant WCA attests that Rodriguez is the foreman for WCA in a number of cities in the County of Orange. (Macias Decl., ¶ 3.) Rodriguez has never been a foreman in Whittier and did not work in the City of Whittier. (Id.) Rodriguez has never been to Penn Park nor did he ever work on the subject tree. (Id.) Rodriguez has no knowledge of the contract between WCA and Whittier. (Id.)

City of Whittier failed to file any opposition demonstrating good cause for the deposition.

Accordingly, the motion is GRANTED.

Case Number: BC656449    Hearing Date: November 03, 2020    Dept: D

MOJARRO, et al. v. CITY OF WHITTIER, et al.

CASE NO.:  BC656449

JUDGE: Raul Sahagun

HEARING 11/3/20

TENTATIVE ORDER

I. Plaintiffs Mojarro, et al.’s motion for trial preference is DENIED.

II. Defendant City of Whittier’s motion to compel deposition of Patrick Mahoney is DENIED. Motion to compel the person(s) most qualified of West Coast Arborists re: contract issues and production of documents is GRANTED.

City of Whittier to give NOTICE.

I. Trial Preference

Plaintiffs Mojarro, et al. moves for a trial preference pursuant to CCP § 36(b).

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. A civil action subject to subdivision (a) shall be given preference over a case subject to this subdivision. (CCP § 36(b).)

The minor Plaintiffs under 14 years of age are: Isabel Martinez (age 7), Pablo Martinez (age 12), Andres Cuevas (age 11) and Isaac Cuevas (age 9).

However, the minor Plaintiffs only represent 21% of the total number of Plaintiffs in this action. There are 16 other adult Plaintiffs in this case. Therefore, minor Plaintiffs do not represent a “substantial interest in the case as a whole.”

Further, a trial court does not have a mandatory duty to set a preferential trial date, but may exercise its discretion, considering such factors as condition of court calendar, dilatory conduct by plaintiff, prejudice to defendant of accelerated trial date, and likelihood of eventual mandatory dismissal if early trial date is denied. (Salas v. Sears, Roebuck & Co. (1986) 228Cal.Rptr. 504, 42 Cal.3d 342.)

This matter has been pending for over three years, and the Plaintiffs previously represented that they do not intend to seek a trial preference (Spearman Decl., ¶ 4, Ex. 3, p. 5). The court finds that Plaintiffs were dilatory in their request and such would prejudice opposing parties whose discovery have not been completed.

Accordingly, the motion is DENIED.

II.¿Motion to Compel

Defendant City of Whittier moves to compel the deposition of Patrick Mahoney and the person most qualified of West Coast Arborists re: contract issues and production of documents pursuant to CCP §§ 2025.010 and 2025.450.

In opposition, Defendant West Coast Arborists, Inc. (“WCA”) contends that the discovery cut-off had passed.

However, as WCA acknowledged, “With each continuance the deadline for both expert and non-expert discovery was continued to coincide with the new trial date… April 8, 2020.” (Opposition, 5:17-20.) Because of the Covid-19 pandemic, the 4/8/20 trial date was vacated, and the matter was set for a TSC on 11/3/20. Pursuant to Presiding Judge Brazile’s General Orders, all pre-trial dates “are also continued consistent with the new trial date.” (LASC General Order dated 4/14/20 at 6:26-7:2; LASC General Order dated 7/10/20 at 6:7-13). Since trial was continued, but has not been set, the discovery cut-off has not passed.

WCA alternatively argues that its Vice President, Victor Gonzalez was already deposed regarding the contract negotiations. However, the one-deposition rule only applies to natural persons; not to corporate entities. (See CCP § 2025.610.)

Gonzalez’s deposition was in his individual capacity, and not as a PMQ regarding contract issues. Therefore, Gonzalez may be deposed a second time as the PMQ for WCA on contract issues.

At this juncture, the court declines to compel the apex deposition of WCA President Patrick Mahoney. A party seeking to depose a corporation’s apex official must first show that the official possesses unique, relevant knowledge which is not available through less intrusive discovery means.  (Liberty Mutual Ins. Co. v. Superior Ct. (1992) 10 Cal.App.4th 1282, 1289.)  

As City acknowledges in its motion, “If WCA’s PMQ can provide all requested information by way of deposition testimony, then there may be no need to depose Mr. Mahoney.” (Motion, 8:13-14.)

Accordingly, the motion is GRANTED as to WCA’s PMQ and DENIED as to Patrick Mahoney.

Case Number: BC656449    Hearing Date: October 23, 2020    Dept: SED

MOJARRO, et al. v. CITY OF WHITTIER, et al.

CASE NO.:  BC656449

JUDGE: Raul Sahagun

HEARING 10/23/20

TENTATIVE ORDER

Plaintiffs Mojarro, et al.’s unopposed motion for determination of good faith settlement is GRANTED.

Moving Parties to give NOTICE.

Plaintiffs Mojarro, et al. move for good faith settlement determination pursuant to CCP § 877.6.

Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt may seek a judicial determination that a settlement was made in good faith; such a determination bars any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault. The party asserting the lack of good faith shall have the burden of proof on that issue.” (CCP § 877.6 (a), (c)-(d).)

If the nonsettling defendants do not oppose the motion on the good faith issue, a “barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case, is sufficient.” (City of Grand Terrace v. Sup.Ct. (Boyter) (1987) 192 CA3d 1251, 1261.)

The motion and Attorney Leinbach’s declaration set forth grounds for good faith determination. The Mojarro Plaintiffs and Defendant City of Whittier have agreed to settle Plaintiffs’ claims for $28,000,000.00. The settlement was reached through mediation with Hon. Louis N. Meisinger (Ret.). Judge Meisinger allocated settlement proceeds among the Plaintiffs at Ex. B of Leinbach’s declaration.

Plaintiff Oviatt and Defendant West Coast Arborists are not part of the settlement, and have not filed any Opposition to the motion.

Accordingly, the court finds the settlement was made in good faith. Motion is GRANTED.

Case Number: BC656449    Hearing Date: October 19, 2020    Dept: D

MOJARRO, et al. v. CITY OF WHITTIER, et al.

CASE NO.:  BC656449

JUDGE: Raul Sahagun

HEARING:  10/19/20

TENTATIVE ORDER

I. Defendant West Coast Arborists, Inc.’s motion to bifurcate the issues of liability and damages at trial is DENIED. 

II. Plaintiffs Mojarro, et al.’s motion for trial preference is CONTINUED to Tuesday, November 3, 2020 at 9:30 a.m. in Department D.

Plaintiffs to give NOTICE. 

I. Motion to Bifurcate

Defendant West Coast Arborists, Inc. moves to bifurcate issues pursuant to CCP § 598.

“The court may, when ... the ends of justice, or the economy and efficiency of handling litigation would be prompted thereby ...make an order ... 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.”  

Defendants request the court to bifurcate the issues of liability from damages. According to Defendants, the liability phase can be tried in less than a week, while the damages phase is more extensive and concerns 20 Plaintiffs.  

The court finds that bifurcation would not achieve the purpose of judicial economy or be convenient to the witnesses and parties.  The parties’ joint witness list is extensive, including 20 Plaintiffs, percipient witnesses, and multiple experts from each side.  (Opposition, Ex. 9.)  Further, the

Moreover, during these unprecedented times, and in accordance with social distancing guidelines, judicial efficiency is best served by empaneling one set of jurors, rather than two. 

Accordingly, the motion is DENIED.

II. Trial Preference

Plaintiffs Mojarro, et al.’s motion for trial preference is CONTINUED to Tuesday, November 3, 2020 at 9:30 a.m. in Department D.

Case Number: BC656449    Hearing Date: July 08, 2020    Dept: SEF

On March 2, 2020, this Court issued a ruling on Defendant WEST COAST ARBORISTS, INC.’s Ex Parte Application to Transfer this Action to a Long Cause Courtroom. The Order states, “The parties are ORDERED to prepare the Long Cause Binders and submit them to Dept. 1…. Dept. 1 will rule if the case is appropriate for long cause trial court. [ ] This Court sets a Trial Setting Conference for Wednesday, April 15, 2020 at 8:30 a.m. in Dept. SE-F to determine if accepted as Long Cause Trial.” (Order, 03/02/2020.) Due to Covid-19, the Trial Setting Conference was CONTINUED to July 8, 2020.

The status of the parties’ submission(s) of Long Cause Binders to Dept. 1, as Ordered, is unclear. The Court is inclined to CONTINUE both the Trial Setting Conference and the Motion for Trial Preference until after the August 14, 2020 mediation date. The Court requests oral argument from all parties in order to provide the Court with a status update as to the submission of Long Cause Binders. Telephonic appearances are encouraged.

Case Number: BC656449    Hearing Date: February 20, 2020    Dept: SEC

MOJARRO v. CITY OF WHITTIER

CASE NO.:  BC656449

HEARING: 02/20/2020

JUDGE: OLIVIA ROSALES

#7

TENTATIVE ORDER

I. Plaintiff’s Motion to Compel Further Responses to Request for Admissions (set one) is DENIED.

II. Plaintiff’s Motion to Compel Further Responses to Form Interrogatories (set two) is DENIED.

III. Plaintiff’s Motion to Compel Further Responses to Request for Production of Documents (set four) is DENIED.

IV. Plaintiff’s Motion to Compel Further Responses to Request for Production of Documents (set five) is DENIED.

Opposing Party to give notice.

“Except as provided in (b), any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion: (1) To Compel further responses to requests for admission; (2) To compel further responses to interrogatories…; (5) To compel or quash the production of documents or tangible things at a deposition…. (7) For issue or evidentiary sanctions.” (CRC Rule 3.1345(a).) “A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the response to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response….” (CRC Rule 3.1345(c).)

Although not raised in the Opposition(s), Plaintiff has inexplicably failed to file/lodge any Separate Statements in support of the four Motions to Compel Further Responses currently pending before the Court. The provisions of CRC Rule 3.1345 are mandatory; compliance is not optional.

Moreover, the Court reminds counsels of the terms of the General Order Re Mandatory Electronic Filing for Civil issued by Judge Daniel J. Buckley on November 5, 2018. The Order states, in pertinent part: “Regardless of the time of electronic filing, a printed courtesy copy (along with proof of electronic submission) is required for the following documents… G. Motions to Compel Further Discovery” (Gen. Order (d)(4)(A -G).) To date, no Courtesy Copies of the Moving, Opposition, Reply, or Sur-Reply papers for the four Motions to Compel Further have been received by this Court.

Both parties’ requests for sanctions are denied.

Case Number: BC656449    Hearing Date: January 14, 2020    Dept: SEC

MOJARRO, et al. v. CITY OF WHITTER, et al.

CASE NO.:  BC656449

HEARING:  06/04/19

JUDGE: OLIVIA ROSALES

#5

TENTATIVE ORDER

Defendant City of Whittier’s motion to quash and for a protective order regarding the deposition of the City’s former handline attorney, Gary Kranker, and request for monetary sanctions is GRANTED.

Moving Party to give NOTICE.

Defendant City of Whittier moves for a protective order or to quash deposition subpoena pursuant to CCP 1987.1.

If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person. (CCP 1987.1(a).)

The subpoena seeks to depose Gary Kranker, City’s former handling attorney to ascertain information relating to Kranker’s investigation of the incident and communications Kranker had with City employees. City contends the communications are protected by the attorney client privilege and attorney work product doctrine.

Plaintiffs Mojarro, et al., Stefanie Oviatt, and Defendant West Coast Arborists, Inc. oppose the motion.

Depositions of opposing counsel are presumptively improper. (Carehouse Convalescent Hosp. v. Sup.Ct. (2006) 143 Cal.App.4th 1558, 1562.) The practice of taking the deposition of opposing counsel should be severely restricted, and permitted only upon showing of extremely good cause… The circumstances under which opposing counsel may be deposed are limited to those where (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and not privileged; (3) the information is crucial to the preparation of the case. (Spectra-Physics, Inc. v. Superior court (1988) 198 Cal.App.3d 1487, 1496.)

Plaintiffs submit Park Manager Michael Montoya’s deposition testimony, attesting that the city attorneys made the determination of which parts of the trees to keep and which parts to discard. (Montoya Depo, 36:5-17, 71:72:2.) Plaintiffs contend that Kranker directed Montoya to discard the majority of the critical trunk area of the tree. (Id. at 41:12, 41:25.)

Plaintiffs failed to establish good cause to depose City’s former attorney. According to Montoya, the tree was segmented into “preserved” and “discarded” piles. Segments that were “discarded” were placed in a discard pile, and some were sent to the landfill. Although Plaintiffs allege that spoliation has occurred, Plaintiffs have proffered no evidence supporting the assertion that any part of the missing segments is necessary to the case. Looking at Exhibit P, segments of the over 107 feet tree were retained in increments leading up to the branches. This appears to be a reasonable method of preserving evidence of this massive size. There is no evidence before this court that requires the complete preservation of an over 107 feet tree (Terpstra Decl., ¶ 9), and more importantly, there is no evidence that the discarded parts are necessary to the case.

Plaintiff’s expert, Toby Terpstra, declares that there is an “important section” measuring 3 feet between Sections A and B that is missing, Terpstra does not explain why this section is crucial to the case. The parts that were preserved were segments that were located directly below and above this 3 feet section. It is unclear why this particular segment is “important.”

Further, even if the instruction came from Kranker, there is no evidence that Kranker has any other information that is crucial to the preparation of the case.

Accordingly, the motion is GRANTED.

Case Number: BC656449    Hearing Date: October 30, 2019    Dept: SEC

MOJARRO, et al. v. CITY OF WHITTIER

CASE NO.: BC656449

HEARING: 10/30/19

JUDGE: MARGARTE M. BERNAL

#16

TENTATIVE ORDER

Defendant City of Whittier’s motion for summary judgment is DENIED.

Plaintiffs to give NOTICE.

Defendant City of Whittier (“City”) moves for summary judgment pursuant to CCP 437c.

Objections

Plaintiff Oviatt’s evidentiary objections are overruled.

Defendant City’s evidentiary objections are also overruled.

Complaint

This case arises from an incident that occurred on or about 12/17/16, inside Penn Park in Whittier, California. Plaintiffs allege that City failed to maintain a large Blue Gum Eucalyptus tree. At the time of the incident, Plaintiffs were part of a wedding party, and had gathered in Penn Park to take photographs. As Plaintiffs posed for pictures near the base of the tree, it suddenly uprooted, and fell on Plaintiffs, killing Margarita Mojarro. The Complaint, filed on 4/4/17, was amended with leave. The FAC asserts causes of action for:

1. Dangerous Condition – Wrongful Death

2. Dangerous Condition – Personal Injury

3. Negligence (v. West Coast Arborists, Inc.)

Standard

A defendant moving for summary judgment/adjudication has met its burden of showing a cause of action has no merit if the defendant can show one or more elements of the plaintiff’s cause of action cannot be established. (CCP 437c(p)(2).)

Merits

City contends that it is immune from liability pursuant to the “natural condition immunity” provided by Gov. Code 831.2.

Gov. Code 831.2 provides, “Neither a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach.”

City submits the following evidence:

· Penn Park is owned and maintained by City. (Defense Separate Statement (DSS) 1.)

· Tree 142 is a eucalyptus, and situated on a hillside within Penn Park. (DSS 3.)

· The topography of the hillside on which Tree 142 was located has not been altered since 1925. (DSS 4.)

· There is no documentation that human activity created the hill. (DSS 5.)

· Tree 142 is located on a hillside separated by portions of improved public property within Penn Park by a chain link fence. (DSS 6.)

· Outside the chain link fence surrounding the unimproved hillside, the improved public property areas include paved pathways, stairs, picnic tables, garbage cans, and benches. (DSS 7.)

· Areas of the hillside from which the tree fell had been improved (i.e. a staircase across the hill); however, the location where the tree was located was unimproved and unaltered from its natural state. (DSS 8.)

· Plaintiffs were standing on improved property when the incident occurred, whereupon the tree fell from its location on the hillside onto improved public property. (DSS 10.)

City relies on Alana M. v. State of California and Meddock v. County of Yolo. In Alana M. v. State of Cal. (2016) 245 Cal.App.4th 1482, 1487, the court held that the immunity applied where a tree that grew on unimproved public property fell onto improved public property (i.e. a campsite), injuring a three-year-old. In Meddock v. County of Yolo (2013) 220 Cal.App.4th 170, 182, the immunity applied where decaying natural trees located on unimproved property fell onto improved property (i.e. a paved parking lot), injuring the Plaintiff.

City contends that Tree 142 grew on unimproved land, and fell onto Plaintiffs who were standing on improved property, and thus, Alana M. and Meddock are persuasive authorities.

In opposition, Plaintiffs contend that the court should instead apply County of San Mateo v. Superior Court (2017) 13 Cal.App.5th 724, 734. There, triable issues as to whether a campsite area in a campground within a vast public wilderness park was "unimproved public property" when a 72-foot diseased tree growing roughly 20 feet from where a tent was pitched fell on a child sleeping in the tent; there was evidence that the county had artificially altered the terrain by removing nutrient-rich mulch down to bare dirt, by installing a paved road, partially clearing the area of trees, and constructing rudimentary amenities to facilitate cooking, eating and overnight sleeping in the area.

Plaintiffs submit the following evidence:

· Both sides of the chain link fence are part of Penn Park. (Disputed DSS 7.)

· The area where the tree was rooted is part of the improved components of Penn Park. (Disputed DSS 8.)

· The area of Tree 142 included improvements such as fencing, irrigation, retaining wall, electrical, concrete steps with railing. (Plaintiff’s Separate Statement (PSS) 12.)

· The chain link fence that Whittier contends signifies a separation of “improved” vs. “unimproved” is also used throughout the park in improved areas such as a man-made waterfall nearby. (PSS 13.)

· Tree 142 was situated directly next to the entrance stairs and many other improvements. (PSS 16.)

· Penn Park is a developed and improved property in toto. (PSS 17-21.)

· City maintains and risk-manages the area of Tree 142. (PSS 22 -34.)

Based on the evidence submitted, the court finds that triable issues exist regarding whether Tree 142 was located in an “improved” versus “unimproved” area of public property.

In Alana M. v. State of California, there was no evidence before the court of any “artificial physical change in the condition… of the land within 24 feet of the tree” or “any evidence suggesting artificial improvements or human conduct contributed to the danger of the tree… There is no evidence, for example, that leveling the area of the campsites weakened the tree and made it more likely to fall.” (Alana M. v. State of Cal. (2016) 245 Cal.App.4th 1482, 1491.)

Here, unlike Alana M. and analogous to County of San Mateo, Plaintiffs have adduced evidence that the area of Tree 142 included improvements such as fencing, irrigation, retaining wall, electrical, concrete steps with railing (PSS 12) and Tree 142 was situated directly next to the entrance stairs and many other improvements (PSS 16). Therefore, triable issues exist regarding whether City artificially altered the terrain and contributed to the danger of the tree.

Accordingly, the motion is DENIED.

Case Number: BC656449    Hearing Date: October 24, 2019    Dept: SEC

MOJARRO v. CITY OF WHITTIER

CASE NO.:  BC656449

HEARING: 10/24/19

#4

TENTATIVE ORDER

I. Defendant/Cross-Defendant WEST COAST ARBORISTS, INC.’s Motion Compel set for October 24, 2019 is OFF-CALENDAR as MOOT. This matter was advanced and heard on October 10, 2019.

II. Defendant/Cross-Defendant WEST COAST ARBORISTS, INC.’s Motion Compel set for October 24, 2019 is OFF-CALENDAR as MOOT. This matter was advanced and heard on October 10, 2019.

Moving Party to give notice.

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