This case was last updated from Los Angeles County Superior Courts on 02/23/2021 at 07:58:07 (UTC).

JESSICA KRAMER VS WARREN PROPERTIES 2021 OLIVE

Case Summary

On 11/13/2017 JESSICA KRAMER filed a Personal Injury - Other Personal Injury lawsuit against WARREN PROPERTIES 2021 OLIVE. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are RALPH C. HOFER, MARC D. GROSS and RICHARD J. BURDGE JR.. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3176

  • Filing Date:

    11/13/2017

  • 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

RALPH C. HOFER

MARC D. GROSS

RICHARD J. BURDGE JR.

 

Party Details

Plaintiff and Petitioner

KRAMER JESSICA

Defendants and Respondents

DOES 1 TO 50

WARREN PROPERTIES 2021 OLIVE

2021 OLIVE

WARREN PROPERTIES INC.

WARREN PROPERTIES INC.LLC DBA 2021 OLIVE

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

TOVEG ISAAC ESQ.

ISAAC TOVEG LAW OFFICES OF

TOVEG ISAAC

Defendant and Respondent Attorneys

KIMBALL TIREY & ST. JOHN LLP

TRUONG TIFFANY DANG

GORDON ELI A

BOOTH EILEEN T

BOOTH EILEEN THERESA

YANG JASON

CAUDILL JR. O. BRANDT

MARTINEZ ANTHONY VINCENT

 

Court Documents

Motion to Bifurcate

12/22/2020: Motion to Bifurcate

Declaration - DECLARATION DECLARATION OF TOVEG IN SUPPORT OF PLAINTIFF'S RESPONSE

12/24/2020: Declaration - DECLARATION DECLARATION OF TOVEG IN SUPPORT OF PLAINTIFF'S RESPONSE

Declaration - DECLARATION DECLARATION OF ISAAC TOVEG 3

12/24/2020: Declaration - DECLARATION DECLARATION OF ISAAC TOVEG 3

Declaration - DECLARATION DECLARATION OF ATTORNEY TOVEG 4

12/24/2020: Declaration - DECLARATION DECLARATION OF ATTORNEY TOVEG 4

Objection - OBJECTION TO PLAINTIFFS EVIDENCE IN OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION

12/30/2020: Objection - OBJECTION TO PLAINTIFFS EVIDENCE IN OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION

Separate Statement

12/30/2020: Separate Statement

Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW COURT ORDER CONTINUING CIVIL, TRIA...)

4/20/2020: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW COURT ORDER CONTINUING CIVIL, TRIA...)

Notice of Ruling

2/26/2020: Notice of Ruling

Substitution of Attorney

11/12/2019: Substitution of Attorney

Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL FURTHER DISCOVERY RESPONSES TO FO...)

11/8/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL FURTHER DISCOVERY RESPONSES TO FO...)

Proof of Personal Service

10/7/2019: Proof of Personal Service

Minute Order - MINUTE ORDER (STATUS CONFERENCE RE: MEDIATION AND DISCOVERY;)

7/30/2019: Minute Order - MINUTE ORDER (STATUS CONFERENCE RE: MEDIATION AND DISCOVERY;)

Response - RESPONSE PLAINTIFF KRAMER RESPONSE IN OPPOSITION TO DEF. MOTION FOR TERMINATING SANCTIONS

6/28/2019: Response - RESPONSE PLAINTIFF KRAMER RESPONSE IN OPPOSITION TO DEF. MOTION FOR TERMINATING SANCTIONS

Response - RESPONSE PLAINTIFF KRAMER'S RESPONSE IN OPPOSITION TO DEF. DEMURRER

6/28/2019: Response - RESPONSE PLAINTIFF KRAMER'S RESPONSE IN OPPOSITION TO DEF. DEMURRER

Declaration - DECLARATION OF SAGE S STONE

5/28/2019: Declaration - DECLARATION OF SAGE S STONE

Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL FURTHER DISCOVERY RESPONSES TO SP...)

4/26/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL FURTHER DISCOVERY RESPONSES TO SP...)

Separate Statement

3/21/2019: Separate Statement

MEMORANDUM OF POINTS AND AUTHORITIES EN SUPPORT OF MOTION TO STRIKE PORTIONS OF COMPLAINT

2/21/2018: MEMORANDUM OF POINTS AND AUTHORITIES EN SUPPORT OF MOTION TO STRIKE PORTIONS OF COMPLAINT

179 More Documents Available

 

Docket Entries

  • 04/01/2021
  • Hearing04/01/2021 at 08:30 AM in Department D at 600 East Broadway, Glendale, CA 91206; Order to Show Cause Re: Dismissal After Settlement

    Read MoreRead Less
  • 02/16/2021
  • Docketat 1:30 PM in Department D; Non-Appearance Case Review

    Read MoreRead Less
  • 02/16/2021
  • DocketMinute Order ( (Non-Appearance Case Review Re Notice Of Settlement Of Entire ...)); Filed by Clerk

    Read MoreRead Less
  • 02/16/2021
  • DocketCertificate of Mailing for ((Non-Appearance Case Review Re Notice Of Settlement Of Entire ...) of 02/16/2021); Filed by Clerk

    Read MoreRead Less
  • 02/11/2021
  • Docketat 09:00 AM in Department D; Final Status Conference - Not Held - Continued - Stipulation

    Read MoreRead Less
  • 02/08/2021
  • Docketat 09:00 AM in Department D; Jury Trial - Not Held - Clerical Error

    Read MoreRead Less
  • 02/08/2021
  • Docketat 09:00 AM in Department D; Final Status Conference - Not Held - Advanced and Continued - by Court

    Read MoreRead Less
  • 02/03/2021
  • DocketNotice of Settlement; Filed by Jessica Kramer (Plaintiff)

    Read MoreRead Less
  • 01/28/2021
  • Docketat 09:00 AM in Department D; Final Status Conference - Not Held - Continued - Stipulation

    Read MoreRead Less
  • 01/15/2021
  • Docketat 09:00 AM in Department D; Hearing on Motion to Bifurcate (of Defendant Warren Properties, Inc. dba 2021 Olive) - Not Held - Continued - Stipulation

    Read MoreRead Less
245 More Docket Entries
  • 02/21/2018
  • DocketPoints and Authorities; Filed by Defendant/Respondent

    Read MoreRead Less
  • 02/21/2018
  • DocketDEFENDANT WARREN PROPERTIES, INC.'S POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINT

    Read MoreRead Less
  • 11/13/2017
  • DocketComplaint

    Read MoreRead Less
  • 11/13/2017
  • DocketComplaint; Filed by JESSICA KRAMER (Plaintiff)

    Read MoreRead Less
  • 11/13/2017
  • DocketSUMMONS

    Read MoreRead Less
  • 11/13/2017
  • DocketOrder on Court Fee Waiver (Superior Court)

    Read MoreRead Less
  • 11/13/2017
  • DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

    Read MoreRead Less
  • 11/13/2017
  • DocketSummons (on Complaint)

    Read MoreRead Less
  • 11/13/2017
  • DocketCivil Case Cover Sheet

    Read MoreRead Less
  • 11/13/2017
  • DocketORDER ON COURT FEE WAIVER

    Read MoreRead Less

Tentative Rulings

Case Number: BC683176    Hearing Date: January 08, 2021    Dept: D

TENTATIVE RULING

Calendar: 15

Date: 1/8/2021

Case Number: BC683176 Trial date: February 22, 2021

Case Name: Kramer v. Warren Properties 2021 Olive

MOTION FOR SUMMARY ADJUDICATION

[CCP § 437c; CRC 3.1350 et seq.]

Moving Party: Defendant Warren Properties, Inc. dba 2021 Olive

Responding Party: Plaintiff Jessica Kramer (No Opposition)

Relief Requested:

Summary adjudication of the sixth and seventh causes of action

Causes of Action from Second Amended Complaint

1) Breach of Implied Warranty of Habitability

2) General Negligence

3) Nuisance

4) Breach of Contract

5) Premises Liability

6) Negligence of Hiring, Supervision, Training and Retention

7) Gross Negligence

SUMMARY OF COMPLAINT:

Plaintiff Jessica Kramer alleges that in October of 2015 she contracted to rent a residence in Burbank from defendants Warren Properties, Inc. and 2021 Olive. Plaintiff alleges that defendants breached the implied warranty of habitability by causing and then later failing to correct substandard conditions at the premises, including water leaks and sewer leaks. Plaintiff alleges that she was unaware of the defective sewer and plumbing pipes upon leasing the property, as such issues were not apparent on a reasonable inspection of the unit, and that she notified management of the problems, but defendants failed to properly repair.

Plaintiff alleges that due to the failure to properly repair the plumbing the sewer flooded the unit for a substantial amount of time, as a result of which plaintiff slipped and fell and sustained injuries, and that defendants made only superficial repairs to the walls and did not adequately treat and remediate mold from further infesting the residence.

Plaintiff also alleges that a co-tenant at the premises engaged in sexual assault and harassment, and that the landlord had long had knowledge about that misconduct but delayed in doing anything to address the situation.

ANALYSIS:

CCP § 437c (p): Burdens of Proof

Under CCP § 437c(p)(2) a defendant “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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. 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(f)(1) provides that “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.”

Defendant Warren Properties seeks to establish that plaintiff will be unable to establish all elements of the sixth cause of action for negligent hiring, supervision, training, and retention, and seventh cause of action for gross negligence, and that defendant has a complete defense to those causes of action as they are barred by the applicable statutes of limitations.

Defendant appears to make an initial argument that the court should strike allegations concerning sexual assault which were added in the Second Amended Complaint to the third cause of action for nuisance, arguing that the cause of action is now based on two distinct primary rights. This is not the proper basis of a motion for summary adjudication, however, as it does not dispose of the entire nuisance cause of action, which is concededly based on both sexual assault and alleged substandard conditions in the residence. As noted above, a motion for summary adjudication may be granted “only if it completely disposes of a cause of action.” CCP § 437c(f)(1). The argument does not completely dispose of the nuisance cause of action.

Moreover, the issue is not included in the notice of motion or the separate statement.

Under CRC Rule 3.1350(b):

“If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed facts.”

It is held that a court may not summarily adjudicate claims or defenses unless requested in the notice of motion. Homestead Savings v. Superior Court (1986) 179 Cal. App.3d 494, 498.

The motion is not granted with respect to the nuisance cause of action.

Sixth Cause of Action—Negligent Hiring, Supervision, Training

Defendant argues that this cause of action is barred by the applicable statute of limitations.

Defendant argues that the cause of action based on the alleged negligence of the landlord is subject to the statute of limitations set forth in CCP § 335.1, which permits a two year time period for actions for “injury to… an individual caused by the wrongful act or neglect of another.” Defendant argues that the Second Amended Complaint adding the causes of action based on the alleged negligence of the landlord in connection with the alleged sexual assaults by a co-tenant was filed on April 29, 2019. [UMF No. 27]. Defendant argues that any claims based on conduct occurring before April 29, 2017 would accordingly be barred by the two year statute of limitations.

Defendant then submits evidence based largely on plaintiff’s deposition testimony that plaintiff is basing her causes of action in connection with the landlord’s negligence on several incidents involving plaintiff’s co-tenant Michael James. The first occurred on the day plaintiff moved into the complex, on October 7, 2015, when there was a blackout, and plaintiff claims that during the blackout, James tried to grope plaintiff’s vagina, and felt her legs. [UMF Nos. 1, 4-7, and evidence cited]. Plaintiff testified that she began experiencing sleep problems after this groping occurred, which she attributed to James’ actions. [UMF No. 9, and evidence cited].

Plaintiff also recounts an occasion when James bit her on the bicep or shoulder, which occurred one to two months before a June 2016 pool party. [UMF Nos. 11, 12, 14, and evidence cited]. This evidently would have occurred in April or May of 2016.

A third incident involved James touching plaintiff while they were in the laundry room, when James allegedly grabbed plaintiff’s butt and said he liked girls with big butts. [UMF No. 13, and evidence cited]. This incident occurred one to two months after plaintiff moved in, so before the end of 2015. [UMF No. 13, and evidence cited].

Plaintiff has also reported that there was a pool party in June of 2016, where James exposed himself, and there were a number of tenants present. [UMF No. 14, and evidence cited].

The argument is that none of these incidents occurred within the two year statutory window, before April 29, 2017, so the cause of action is barred by the statute of limitations.

Defendant indicates that plaintiff at her second deposition testified that the pool party incident was not an isolated incident, but that plaintiff witnessed James exposing himself 12 to 19 times at the swimming pool, and did not specify the dates on which those incidents occurred. [UMF No. 14; See Caudill, Jr. Decl., para. 4 Ex. 3, Kramer Depo. II, 302:1-5, 17-24]. This appears to leave a gap in the argument, as it is not clear from this evidence that these incidents occurred at a time barred by the two year statute.

The moving papers also cite to evidence that on June 13, 2016, plaintiff sent an email to defendant’s employee Rachel Lee complaining about James and referring to the pool party at which he exposed himself, James touching her in the laundry room, and James sexually touching inflatable pool toys. [UMF No. 15]. The same day that email was sent to Lee, Lee sent an email to Todd Wolford, defendant’s regional supervisor, who responded to Lee’s email by saying that they needed to take action against James. [UMF No. 16]. On June 15, 2016, two days later, Wolford signed a Notice to Quit and it was hand delivered to James. [UMF No. 17]. James moved out as a tenant June 25, 2016. [UMF No. 18]. The argument is then that any further incidents of James exposing himself had to have occurred before June 25, 2016, which is more than two years prior to the filing of the SAC in April 2019.

The moving papers concede that plaintiff in this matter is claiming that the statute of limitations which applies is the statute of limitations set forth at CCP § 340.16. [UMF No. 27; SAC para. 37].

CCP § 340.16 provides, in pertinent part:

“(a) In any civil action for recovery of damages suffered as a result of sexual assault, where the assault occurred on or after the plaintiff's 18th birthday, the time for commencement of the action shall be the later of the following:

(1) Within 10 years from the date of the last act, attempted act, or assault with the intent to commit an act, of sexual assault against the plaintiff.

(2) Within three years from the date the plaintiff discovers or reasonably should have discovered that an injury or illness resulted from an act, attempted act, or assault with the intent to commit an act, of sexual assault against the plaintiff.

(b)(1) As used in this section, “sexual assault” means any of the crimes described in Section 243.4, 261, 262, 264.1, 286, 287, or 289, or former Section 288a, of the Penal Code, assault with the intent to commit any of those crimes, or an attempt to commit any of those crimes.

(2) For the purpose of this section, it is not necessary that a criminal prosecution or other proceeding have been brought as a result of the sexual assault or, if a criminal prosecution or other proceeding was brought, that the prosecution or proceeding resulted in a conviction or adjudication. This subdivision does not limit the availability of causes of action permitted under subdivision (a), including causes of action against persons or entities other than the alleged person who committed the crime.

(c)(1) This section applies to any action described in subdivision (a) that is commenced on or after January 1, 2019.”

Defendant argues that this section is clearly directed toward extending the statute of limitations with respect to claims against a person committing sexual assault, and that there is no authority that the provision applies to alleged negligent conduct by third parties, as is alleged here. The moving papers do not quote for the court subdivision (b)(2) of the statute, however, which expressly states, “This subdivision does not limit the availability of causes of action permitted under subdivision (a), including causes of action against persons or entities other than the alleged person who committed the crime.” It would appear that the cause of action qualifies as a “civil action for recovery of damages suffered as a result of sexual assault,” against a person other than the alleged person who committed the sexual assault, and the statute on its face would apply. Defendant has cited no case authority to the contrary.

Defendant then seems to argue that several of the incidents would not qualify as sexual assault. However, defendant concedes that the statute references sexual battery (Penal Code section 243.4), and plaintiff has described an incident of which could be construed as the groping of her vagina. [UMF Nos. 1, 4-7, and evidence cited]. This incident, in October 2015, occurred within the ten year statutory time permitted.

Defendant has failed to show that this statute, CCP § 340.16, which appears to apply, bars the cause of action, and the motion on this ground is denied.

Moreover, the pleading also alleges that plaintiff did not discover that defendant had been on notice of the propensities of James to engage in improper behavior until some recent unidentified date, alleging, “Plaintiff just found out that Michael Wayne James has done this to Rachel Lee and other female tenants living on the property.” [SAC, para. 37].

The cause of action is for negligent hiring, training, retention and supervision on the part of defendant, alleging that defendant failed to take appropriate action despite knowing of incidents involving James prior to plaintiff reporting the incidents she experienced.

In general, a cause of action for negligent hiring, training, supervision or retention would require conduct which falls within one of the following categories:

1) The employer had reason to know that the employee because of his qualities, was likely to harm others in view of the work or instrumentalities entrusted to him, or

2) The employer failed to exercise due care in the selection of the employee with respect to a reckless or vicious disposition; or

3) The employer had reason to believe that an undue risk of serious or great harm to third persons existed and the employer failed to investigate.

Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 842-843.

An essential element of such a claim would be that the employer was on notice of the risk of harm. It is held, “there can be no liability for negligent supervision in the absence of knowledge by the principal that the agent or servant was a person who could not be trusted to act properly without being supervised.” Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 395. As noted above, it is alleged here that plaintiff did not discover the knowledge by defendant until recently.

Defendant here seems to argue that plaintiff long ago was aware of the conduct by James which forms the basis of her claim, but points to no evidence which would defeat this theory that plaintiff did not earlier discover the conduct by defendant which forms the basis of her claim, the failure to properly handle managerial employees with direct knowledge of a tenant which posed a risk to other tenants.

The case appears similar to E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, in which the court of appeal reversed the trial court’s dismissal of a claim after sustaining a demurrer without leave to amend on statute of limitations grounds, in a situation where plaintiff, the client of an temporary employment agency, sued the agency after discovering that an employee it had hired through the agency had, over a period of about seven years, embezzled a substantial sum and altered the company’s bank statements. The court of appeal found that the cause of action against the agency had not accrued when the client learned of the employee’s wrongdoing and embezzlement, but when it learned from a police report that the accountant had a prior criminal record, and so first suspected that the employment agency had misrepresented the client’s record. The court of appeal quoted the Supreme Court in Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, stating:

“’under the delayed discovery rule, a cause of action accrues and the statute of limitations begins to run when the plaintiff has reason to suspect an injury and some wrongful cause, unless the plaintiff pleads and proves that a reasonable investigation at that time would not have revealed a factual basis for that particular cause of action.’”

E-Fab, at 1319, italics added by court, quoting Fox, at 803.

The court of appeal in E-Fab noted, also quoting Fox, “’Resolution of the statute of limitations issue is normally a question of fact.’” E-Fab, at 1320, quoting Fox, at 810. The court of appeal in E-Fab went on to observe: “More specifically, as to accrual, ‘once properly pleaded, belated discovery is a question of fact.’” E-Fab, at 1320, quoting Bastian v. County of San Luis Obispo (2nd Dist. 1988) 199 Cal.App.3d 520, 527.

 

The motion is also denied on the ground defendant has failed to establish that the accrual of the statute of limitation, even applying the two-year statute urged by defendant, was not delayed, so that the action is necessarily barred.

The motion also argues that the sixth cause of action lacks merit, as it suggests that defendant failed to properly hire, train and retain property managers and somehow should have known that James was a sexual predator, when there is evidence that a criminal background check was done on James before he moved into the property, which showed no arrests or convictions. [UMF No. 77, and evidence cited]. The argument is then that there is no “competent” “non-hearsay” evidence that James had assaulted anyone before plaintiff.

The motion itself relies on evidence such as the email to Wolford after plaintiff’s report, in which it is stated that when James first moved in he made inappropriate comments directly to Lee, which were reported to “Becky,” and Lee was told to just ignore James, which she had been doing ever since. [Davis Decl., para. 3, Ex. 1]. The email also states, “Back around that time a few of our women tenants said they felt uncomfortable around him…” [Davis Decl., para. 3, Ex. 1]. The motion includes deposition testimony of plaintiff in which she states that, “The things I reported him for, they said they had multiple complaints on him. Rachel felt unsafe around him. She doesn’t want to go near him. She verbatim said, ‘I do not feel comfortable near this man.’” [Caudill, Jr. Decl., para. 3, Ex. 2, Kramer Depo. I, 81:24-82:2].

This evidence appears to support a reasonable inference that defendant’s managing agents had advance knowledge of problems with the tenant, which defendant did not properly address. CCP § 437c(c) provides that “summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” See also Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 718. The motion accordingly is denied as to this cause of action.

Moreover, even if the burden had shifted, plaintiff in opposition submits further evidence that Warren Properties employees Victor Angels and Rachel Lee reported James’ sexual behavior and actions to manager Becky Boyles, who did nothing in response to those reports, including reports that James had been urinating by the pool, showing off his penis, in the presence of children. [Additional Facts Nos. 12-15, 17, 24, and evidence cited; Toveg Decl., Ex. 3, Angel Depo. pp. 23-28, 49; Kramer Decl., paras. 6, 10, 12, 13, ]. Triable issues of fact remain, and the motion is denied.

 

Seventh Cause of Action—Gross Negligence

The motion again argues that this cause of action is barred by the two year statute of limitations pertaining to negligence claims. The motion on this ground is denied for the same reasons set forth above.

Defendant also argues that this cause of action fails because plaintiff will be unable to establish a claim for gross negligence on the facts alleged when defendant was given a Notice to Quit mere days after plaintiff’s complaint was brought to the attention of defendant’s regional supervisor, and the tenant was expeditiously removed. [UMF Nos. 100-103]. This ignores the theory here that defendant was grossly negligent in failing to remove James earlier in response to knowledge of incidents prior to those reported by plaintiff, as discussed above. In addition, as argued in the opposition, plaintiff also bases this cause of action on the existence of persistent sewer leaks at the property, and mold issues. Plaintiff submits evidence that manager Boyles acknowledged the mold and sewer issues at deposition and that maintenance employee Victor Angel testified to sewer leaks occurring over 100 times at the property. [See Additional Facts Nos. 5, 19, and evidence cited; Ex. 4, Boyles Depo. p. 25; Ex. 3, Angel Depo., p. 14]. Triable issues of fact remain, and the motion as to this cause of action accordingly also is denied.

RULING:

CCP 437c(g): Material facts which do or do not create a triable issue of controversy:

Defendant Warren Properties, Inc., dba 2021 Olive’s Motion for Summary Adjudication is DENIED.

Issue 1: Plaintiff’s Sixth Cause of Action is barred by the statute of limitations

Issue 2: Plaintiff’s Seventh Cause of Action is Barred by the statute of limitations

Motion is DENIED. Defendant has failed to meet its initial burden of establishing that the causes of action are barred by the statute of limitations. Specifically, defendant has failed to show how the conduct alleged in the SAC, and upon which plaintiff bases her claims, does not fall within the statutory language of CCP § 340.16, which provides a ten year statute of limitations with respect to civil actions “for recovery of damages suffered as a result of sexual assault.” The statute expressly states that “This subdivision does not limit the availability of causes of action permitted under subdivision (a), including causes of action against persons or entities other than the alleged person who committed the crime.” CCP § 340.16 (b)(2). The moving papers include evidence which would support a reasonable conclusion that plaintiff was subject to sexual battery, when a co-tenant groped her vagina. [UMF Nos. 1, 4-7, 32-35, 37, and evidence cited]. This incident occurred within the statute of limitations provided in CCP § 340.16 in relation to the filing of the Second Amended Complaint.

 

Issue 3: Plaintiff’s Sixth Cause of Action lacks merit

Issue 4: Plaintiff’s Seventh Cause of Action lacks merit

Motion is DENIED. The motion itself relies on evidence which would support a reasonable inference that defendant had knowledge of incidents involving the co-tenant prior to the incidents of which plaintiff complains, and failed to appropriately supervise and manage employees with the responsibility to address such issues, and also acted with direct negligence toward plaintiff. [See Davis Decl., para. 3, Ex. 1; Caudill, Jr. Decl., para. 3, Ex. 2, Kramer Depo. I, 81:24-82:2].

Under CCP § 437c(c), “summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” See also Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 718.

Moreover, plaintiff has submitted evidence further supporting a reasonable inference that defendant failed to appropriately supervise and manage employees with the responsibility to address issues with the co-tenant, and acted with direct negligence toward plaintiff, not only in connection with the co-tenant, but with respect to the condition of the premises. [Additional Facts Nos.5, 12-15, 17, 19, 24, and evidence cited].

Plaintiff Kramer’s Objections to Evidence in Support of Warrant Properties’ Motion for Summary Adjudication are OVERRULED. The Court notes that plaintiff in opposition relies on the deposition transcripts objected to.

Defendant Warren Properties, Inc.’s Objections to Plaintiff’s Evidence in Opposition to Motion for Summary Judgment:

Objections to Declaration of Jessica Kramer: Objection to paragraph 3 is SUSTAINED as to the second

sentence only, “When I moved into…criminal record.” Objection is SUSTAINED to paragraphs 11 and 14. Objections are otherwise OVERRULED.

Objections to Declaration of Issac Toveg are OVERRULED. The court has considered the material only with respect to issues of notice.

GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance. Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court. Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff. If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative.

Case Number: BC683176    Hearing Date: November 08, 2019    Dept: NCD

TENTATIVE RULING

Calendar: 9

Date: 11/8/19

Case No: BC 683176 Trial Date: February 4, 2020

Case Name: Kramer v. Warren Properties, Inc.

MOTIONS TO COMPEL FURTHER RESPONSES TO INTERROGATORIES (2)

Moving Party: Plaintiff Jessica Kramer

Responding Party: Defendant Warren Properties, Inc.

RELIEF REQUESTED:

Further Responses to Form Interrogatories, Set One

Further Responses to Special Interrogatories, Set One

CHRONOLOGY

Date Discovery served : October 4, 2018

Date Responses served: December 7, 2018, no verifications

Verifications received: July 15, 2019

Date Motion served: August 26, 2019

Meet and Confer? Ok, Exhibit 6

FACTUAL BACKGROUND:

Plaintiff Jessica Kramer alleges that in October of 2015 she contracted to rent a residence in Burbank from defendants Warren Properties, Inc. and 2021 Olive. Plaintiff alleges that defendants breached the implied warranty of habitability by causing and then later failing to correct substandard conditions at the premises, including water leaks and sewer leaks. Plaintiff alleges that she was unaware of the defective sewer and plumbing pipes upon leasing the property, as such issues were not apparent on a reasonable inspection of the unit, and that she notified management of the problems, but defendants failed to properly repair.

Plaintiff alleges that due to the failure to properly repair the plumbing the sewer flooded the unit for a substantial amount of time, as a result of which plaintiff slipped and fell and sustained injuries, and that defendants made only superficial repairs to the walls and did not adequately treat and remediate mold from further infesting the residence.

Plaintiff also alleges that a co-tenant at the premises engaged in sexual assault and harassment, and that the landlord had long had knowledge about that misconduct but delayed in doing anything to address the situation.

ANALYSIS:

Procedural

Motions Untimely

The opposition argues that the motions must be denied as not timely brought.

CCP § 2030.300(c) permits a propounding party to move for an order compelling further responses to interrogatories. This subdivision provides:

“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 late 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.”

This time provision is considered mandatory, what is characterized as “quasi-jurisdictional,” so that failure to file within the 45 day time limit is held to render the court “without authority to rule on a motions to compel other than to deny them.” Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410. In Sexton, the Second District held the burden is on the moving party to show the motion is timely, and noted that when the Legislature amended the discovery provisions in 1986, it specifically eliminated a prior statutory provision which permitted the court discretion to extend time for making motions to compel further answers to interrogatories. Now, the court noted, the statutory language “could not be clearer.” Sexton, at 1409.

The moving papers indicate that the responses originally provided to plaintiff on December 7, 2018 were accompanied by a letter from prior counsel for defendant stating “The verifications to the response will follow shortly.” [Toveg Decl., Ex. 1].

Plaintiff then indicates that “Plaintiff did not receive the verifications from defendants until July 15, 2019 as a courtesy copy in the mail.” [Toveg Decl. ¶ 3]. The reply attaches an email from counsel for plaintiff in which he informs counsel for defendant that “Defendant did mail the verification by themselves on July 12, 2019 some without any attachments.” [Reply Toveg Decl., Ex. 8].

Plaintiff argues that the verifications were mailed on July 12, 2019, so that 45 days from this date was August 26, 2019, the date the notice of motion was served and filed. Permitting an additional five days for service by mail would further support the argument that the motions were timely filed.

Defendant in opposition argues that defendant served its verifications on December 10, 2018, so that the deadline to move to compel was January 29, 2019, permitting an additional five days for mailing. Defendant submits the declaration of its former counsel, Eli Gordon, of Kimball, Tirey & St. John, LLP, who states, “On December 10, 2018, my office overnighted to plaintiff’s counsel verifications to the response to form interrogatories with a letter. A true and correct copy of the letter and accompanying verifications is attached hereto as Exhibit B.” [Gordon Decl.¶ 3]. The letter states it is “Sent Via Overnight,” is signed by Tiffany D. Truong, and states, “Please find enclosed are the signed Verifications for the discovery regarding the above matter.” [Gordon Decl., Ex. B]. Verifications are attached, executed on December 6, 2018. [Gordon Decl., Ex. B].

The reply again reiterates that no such verifications were received at the time; the verifications were received in July of 2019, although the verifications did have the December 6, 2018 date. Plaintiff’s counsel also argues that no mention of this December 10 letter was made during meet and confer emails prior to the filing of the motion. However, it appears that current counsel, Jason Yang, did take the position that the deadline to compel further responses to this particular discovery had long passed. [Yang Decl., Ex. C; Toveg Decl., Ex. 7].

The court must accordingly weigh this evidence, as if the verifications were served in December of 2018, these motions are untimely and should not be considered by the court, other than to deny them.

On the one hand, it would appear that plaintiff’s counsel is adamant that he did not receive the December 10, 2018 letter, and did not receive copies of any verifications until July of 2019. It would also appear that former counsel Gordon does not have personal knowledge concerning a letter executed by another attorney, Truong, and defendant has not offered her declaration, or attempted by Gordon’s declaration to create a business records exception to the obviously hearsay problem with the letter. The court finds that plaintiff has sufficiently established that the verifications were not served until July, 2019, and will consider the motion on its merits.

On the other hand, there is no objection to the court’s consideration of the December 10, 2018 letter, and it would appear to be the only documentary proof of when any service took place, as counsel for plaintiff has not submitted, for example, a cover letter or other materials showing when the July, 2019 “receipt” of the verifications with other documents in this matter occurred, and plaintiff admits that the verifications served in July were in fact dated December 6, 2018. In addition, it appears from the meet and confer correspondence that plaintiff’s counsel was anticipating supplemental responses would be served, and may have begun to panic once this possibility no longer seemed to be available to extend the deadline. However, the court does not find THE defendant’s evidence on this issue more credible. Therefore the court does not deny the motions as untimely.

 

Meet and Confer

Defendant in opposition also argues that plaintiff’s motion should be denied for failure of plaintiff to meet and confer in good faith prior to filing the motions.

Under CCP § 2030.300, a where a party brings a motion to compel a further response to interrogatories such a motion “shall be accompanied by a meet and confer declaration under Section 2016.040.

Section 2016.040 requires:

“A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”

A meet and confer may be deemed sufficient where there is an indication that counsel reasonably believed further attempts to informally resolve the matter would be futile. See, e.g. Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431. A determination of whether an attempt at informal resolution is adequate is within the discretion of the trial court, and will be disturbed only for abuse of discretion. Stewart v. Colonial Western Agency, Inc. (2001, 2nd Dist.) 87 Cal.App.4th 1006, 1016-1017 . The factors to be considered in making this determination include whether the dispute arises in a larger, more complex discovery context, the history of the litigation, the nature of the interaction between counsel, the nature of the issues, the type and scope of discovery requested and the prospects for success, as well as any circumstances or time pressures to prepare for an impending trial. Stewart, at 1016-1017.

Defendant in opposition appears to concede that detailed correspondence was sent, basically setting forth the separate statements here, and addressing each issue presented by the motions. [Toveg Decls., Exs. 6]. Defendant argues that this correspondence was sent on August 23, 2019, demanding a response by August 26, 2019, which was unreasonable. The meet and confer was not ideally timed here, but as pointed out in the reply, it appears from defendant’s counsel’s response to the meet and confer that defendant was taking the clear position that further responses would not be forthcoming to the discovery defendant believed had been responded to with verifications so that any motions to compel would be untimely. [Toveg Decl., Ex. 7].

It is fairly clear that the parties had reached an impasse here, and the deadline to move to compel as perceived by plaintiff’s counsel was quickly approaching. It is also not clear that any further meet and confer could have avoided the motions, as defendant continues to take the position that the motions are untimely, and has, in fact entirely failed to address the merits of the motions. The motions are not denied for failure to appropriately meet and confer.

Substantive

Under CCP § 2017.010, “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action...if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” The section specifically provides that “Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action,” and that discovery may be obtained “of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition and location of any document, electronically stored information, tangible thing, or land or other property.”

CCP § 2030.300(a) provides that if the party propounding interrogatories deems that an objection “is without merit or too general” or that “an answer to a particular interrogatory is evasive or incomplete”, “the propounding party may move for an order compelling a further response...”

If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure to fully respond to discovery. Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221. The granting or denial of a motion to compel is in the discretion of the trial court. Coy, at 221-222. A court should generally consider the following factors:

The relationship of the information sought to the issues framed in the pleadings;

The likelihood that disclosure will be of practical benefit to the party seeking discovery;

The burden or expense likely to be encountered by the responding party in furnishing the information sought.

Columbia Broadcast System, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 19.

Here, the oppositions do not address the substance of the motions, so defendant has failed to meet the burden of justifying responses and objections. The motion accordingly is granted, and further responses ordered to be served.

Moreover, a review of the separate statements shows that the Form Interrogatories and Special Interrogatories at issue are largely appropriate contention interrogatories, with responses consisting of boilerplate objections, and statements that defendant has no personal knowledge to respond, terms such as “Incident” are not clear, and that discovery is ongoing. Such boilerplate objections are not appropriate.

Further responses, without objection, are ordered to be served.

ordered to be served.

Sanctions

Moving party seeks sanctions.

CCP § 2030.300 (d) provides that the court “shall impose a monetary sanction...against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, 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, misuse of the discovery process includes “(d) Failing to respond or to submit to an authorized method of discovery.”; “(e) Making, without substantial justification, an unmeritorious objection to discovery”; and “(f) Making an evasive response to discovery.” Where there has been a misuse of the discovery process, under Section 2023.030(a), the 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.”

In this case, if the motion is granted, defendant has made evasive responses to interrogatories, and interposed objections it has failed to justify, and has made these motions necessary.

The court in such a case should award sanctions in favor of the moving party. The sanctions sought are $3,810 and $3,850, although the declarations support only the $3,810 award, so only that maximum should be awarded. The requests include 1 hour at $300 for each motion to review some unidentified “motion,” when plaintiff is the moving party here, so that time should not be awarded. The sanctions sought appear to be generally very high for motions of this nature, which were largely cut and pasted from each other. A significantly reduced sum of sanctions may be awarded in the amount of $2,000.00 per motion plus costs in the amount of $60.00.

If the court denies the motions as untimely, no sanctions should be awarded.

RULING:

Plaintiff’s Motion to Compel Further Responses to Form Interrogatories, Set One, is GRANTED. Defendant Warren Properties, Inc. is ordered to serve further verified responses to Form Interrogatories Nos. 15.1, 16.4 and 17.1, without objection, which provide all information requested. The court has considered the asserted objections and finds they are without merit, and that the opposition fails to justify them, and the court therefore overrules all objections, so that further responses are to be served without objections. The court does not find acceptable a response that discovery is continuing.

Further responses to be served within ten days.

Monetary sanctions in the amount of $2,000.00 [$3,810 requested] plus the $60.00 filing fee are awarded against defendant Warren Properties, Inc., and defendant’s attorney of record, jointly and severally, payable within 30 days. CCP sections 2030.300(d), 2023.010(e) and (f), 2023.030(a).

GRANTED. Defendant Warren Properties, Inc. is ordered to serve further verified responses to Special Interrogatories Nos. 4, 6, 7, 9, 10, 11, 16, 17, 18, 19, 23, 25 and 26, without objection, which provide all information requested. The court has considered the asserted objections and finds they are without merit, , and that the opposition fails to justify them, and the court therefore overrules all objections, so that further responses are to be served without objections.

Further responses to be served within ten days.

Monetary sanctions in the amount of $2000.00 [$3,850 requested] plus the $60.00 filing fee are awarded against defendant Warren Properties, Inc., payable within 30 days. CCP sections 2030.300(d), 2023.010(e) and (f), 2023.030(a).

related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where WARREN PROPERTIES 2021 OLIVE is a litigant