This case was last updated from Los Angeles County Superior Courts on 05/14/2022 at 14:38:39 (UTC).

JESUS FABIOLA MORENO LOPEZ, ET AL. VS MK DIAMOND PRODUCTS, INC., A CALIFORNIA CORPORATION , ET AL.

Case Summary

On 01/29/2019 JESUS FABIOLA MORENO LOPEZ filed a Personal Injury - Other Product Liability lawsuit against MK DIAMOND PRODUCTS, INC , A CALIFORNIA CORPORATION . This case was filed in Los Angeles County Superior Courts, Van Nuys Courthouse East located in Los Angeles, California. The Judges overseeing this case are JON R. TAKASUGI, THOMAS D. LONG, VIRGINIA KEENY, CHARLES C. LEE, SHIRLEY K. WATKINS, BERNIE C. LAFORTEZA, AUDRA MORI, HOLLY E. KENDIG and VALERIE SALKIN. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******2928

  • Filing Date:

    01/29/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Product Liability

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

JON R. TAKASUGI

THOMAS D. LONG

VIRGINIA KEENY

CHARLES C. LEE

SHIRLEY K. WATKINS

BERNIE C. LAFORTEZA

AUDRA MORI

HOLLY E. KENDIG

VALERIE SALKIN

 

Party Details

Plaintiffs

LOPEZ JESUS FABIOLA MORENO

MORENO BY AND THROUGH HER GUARDIAN AD LITEM JESUS FABIOLA MORENO LOPEZ EVELYN LOPEZ

MORENO BY AND THROUGH HIS GUARDIAN AD LITEM JESUS FABIOLA MORENO LOPEZ JESUS EVERARDO LOPEZ

MORENO BY AND THROUGH HIS GUARDIAN AD LITEM JESUS FABIOLA MORENO LOPEZ FABIAN LOPEZ

Cross Defendants and Defendants

SVAP III NORTH RANCH GATEWAY LLC A LIMITED LIABILITY DELAWARE CORPORATION

VILLEGAS HECTOR

C.M. VOGEL ELECTRIC INC. A CALIFORNIA CORPORATION

MK DIAMOND PRODUCTS INC. A CALIFORNIA CORPORATION

VOGEL CHARLES M.

CH REALTY IV/NORTH RANCH L.P. A DELAWARE LIMITED PARTNERSHIP

CH REALTY IV/NORTH RANCH L.P. A DELEWARE LIMITED PARTNERSHIP

HUYNH JULIE

WESTLAKE NAIL BAR

HUYNH CRYSTAL

Cross Plaintiffs, Defendants and Cross Defendants

MK DIAMOND PRODUCTS INC. A CALIFORNIA CORPORATION

WESTLAKE NAIL BAR

Not Classified By Court

STATE COMPENSATION INSURANCE FUND

Attorney/Law Firm Details

Plaintiff Attorneys

ASATRYAN MHER

FARIAS JAIME G.

Cross Defendant, Defendant and Cross Plaintiff Attorneys

AGELLO FRANK P.

ARNOLD COURTNEY ELISE

WALDROP SHANNA MARIE

ELLROD ANTHONY JAMES

GREEN BJORN C

BACA RICARDO

ROY RAJ D.

 

Court Documents

Motion for Determination of Good Faith Settlement (CCP 877.6)

5/12/2022: Motion for Determination of Good Faith Settlement (CCP 877.6)

Request for Entry of Default / Judgment

12/28/2021: Request for Entry of Default / Judgment

Request for Dismissal

1/20/2022: Request for Dismissal

Declaration - DECLARATION DECLARATION OF MHER ASATRYAN RE: ORDER TO SHOW CAUSE

1/27/2022: Declaration - DECLARATION DECLARATION OF MHER ASATRYAN RE: ORDER TO SHOW CAUSE

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (ORDER TO SHOW CAUSE RE: WHY SANCTIONS IN THE AMOUNT OF $150 S...) OF 02/03/2022

2/3/2022: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (ORDER TO SHOW CAUSE RE: WHY SANCTIONS IN THE AMOUNT OF $150 S...) OF 02/03/2022

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: WHY SANCTIONS IN THE AMOUNT OF $150 S...)

2/3/2022: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: WHY SANCTIONS IN THE AMOUNT OF $150 S...)

Notice - NOTICE NOTICE RE CONTINUANCE OF TRIAL SETTING CONFERENCE

2/3/2022: Notice - NOTICE NOTICE RE CONTINUANCE OF TRIAL SETTING CONFERENCE

Proof of Service by Mail

2/4/2022: Proof of Service by Mail

Status Report

3/2/2022: Status Report

Minute Order - MINUTE ORDER (TRIAL SETTING CONFERENCE)

3/10/2022: Minute Order - MINUTE ORDER (TRIAL SETTING CONFERENCE)

Notice of Rejection Default/Clerk's Judgment

11/19/2021: Notice of Rejection Default/Clerk's Judgment

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR JUDGMENT ON THE PLEADINGS; CASE MANAGEM...)

11/22/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR JUDGMENT ON THE PLEADINGS; CASE MANAGEM...)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION FOR JUDGMENT ON THE PLEADINGS; CASE MANAGEM...) OF 11/22/2021

11/22/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON MOTION FOR JUDGMENT ON THE PLEADINGS; CASE MANAGEM...) OF 11/22/2021

Order - ORDER RE: MOTION FOR JUDGMENT ON THE PLEADINGS

11/22/2021: Order - ORDER RE: MOTION FOR JUDGMENT ON THE PLEADINGS

Request for Entry of Default / Judgment

11/23/2021: Request for Entry of Default / Judgment

Notice of Rejection Default/Clerk's Judgment

11/30/2021: Notice of Rejection Default/Clerk's Judgment

Notice of Rejection Default/Clerk's Judgment

12/21/2021: Notice of Rejection Default/Clerk's Judgment

Answer

10/26/2021: Answer

105 More Documents Available

 

Docket Entries

  • 11/14/2022
  • Hearing11/14/2022 at 09:30 AM in Department T at 6230 Sylmar Ave., Van Nuys, CA 91401; Jury Trial

    Read MoreRead Less
  • 11/01/2022
  • Hearing11/01/2022 at 08:30 AM in Department T at 6230 Sylmar Ave., Van Nuys, CA 91401; Final Status Conference

    Read MoreRead Less
  • 08/17/2022
  • Hearing08/17/2022 at 08:30 AM in Department T at 6230 Sylmar Ave., Van Nuys, CA 91401; Status Conference

    Read MoreRead Less
  • 06/06/2022
  • Hearing06/06/2022 at 08:30 AM in Department T at 6230 Sylmar Ave., Van Nuys, CA 91401; Hearing on Motion for Determination of Good Faith Settlement (CCP 877.6)

    Read MoreRead Less
  • 05/12/2022
  • Docketat 10:00 AM in Department 31; Final Status Conference - Not Held - Vacated by Court

    Read MoreRead Less
  • 05/12/2022
  • DocketMotion for Determination of Good Faith Settlement (CCP 877.6); Filed by Charles M. Vogel (Defendant)

    Read MoreRead Less
  • 04/29/2022
  • Docketat 08:30 AM in Department T; Hearing on Motion for Determination of Good Faith Settlement (CCP 877.6) - Not Held - Rescheduled by Party

    Read MoreRead Less
  • 04/29/2022
  • Docketat 08:30 AM in Department T; Hearing on Motion for Determination of Good Faith Settlement (CCP 877.6) - Not Held - Rescheduled by Party

    Read MoreRead Less
  • 03/10/2022
  • Docketat 08:30 AM in Department T, Shirley K. Watkins, Presiding; Trial Setting Conference - Held

    Read MoreRead Less
  • 03/10/2022
  • DocketMinute Order ( (Trial Setting Conference)); Filed by Clerk

    Read MoreRead Less
128 More Docket Entries
  • 03/26/2019
  • DocketSummons (on Complaint); Filed by Jesus Fabiola Moreno Lopez (Plaintiff); Evelyn Lopez Moreno, by and through her guardian ad litem, Jesus Fabiola Moreno Lopez (Plaintiff); Jesus Everardo Lopez Moreno by and through his guardian ad litem, Jesus Fabiola Moreno Lopez (Plaintiff) et al.

    Read MoreRead Less
  • 03/11/2019
  • DocketOther - (Clerk of Court Notice of Clerical Error and Correction); Filed by Clerk

    Read MoreRead Less
  • 02/04/2019
  • DocketStanding Order re PI Procedures and Hearing Dates; Filed by Clerk

    Read MoreRead Less
  • 02/04/2019
  • DocketCertificate of Mailing for ([Standing Order re PI Procedures and Hearing Dates] and Standing Order re PI Procedures and Hearing Dates); Filed by Clerk

    Read MoreRead Less
  • 01/29/2019
  • DocketApplication And Order For Appointment of Guardian Ad Litem (for Fabian); Filed by Jesus Fabiola Moreno Lopez (Plaintiff); Evelyn Lopez Moreno, by and through her guardian ad litem, Jesus Fabiola Moreno Lopez (Plaintiff); Jesus Everardo Lopez Moreno by and through his guardian ad litem, Jesus Fabiola Moreno Lopez (Plaintiff) et al.

    Read MoreRead Less
  • 01/29/2019
  • DocketApplication And Order For Appointment of Guardian Ad Litem (for Evelyn); Filed by Jesus Fabiola Moreno Lopez (Plaintiff); Evelyn Lopez Moreno, by and through her guardian ad litem, Jesus Fabiola Moreno Lopez (Plaintiff); Jesus Everardo Lopez Moreno by and through his guardian ad litem, Jesus Fabiola Moreno Lopez (Plaintiff) et al.

    Read MoreRead Less
  • 01/29/2019
  • DocketApplication And Order For Appointment of Guardian Ad Litem (for Jesus); Filed by Jesus Fabiola Moreno Lopez (Plaintiff); Evelyn Lopez Moreno, by and through her guardian ad litem, Jesus Fabiola Moreno Lopez (Plaintiff); Jesus Everardo Lopez Moreno by and through his guardian ad litem, Jesus Fabiola Moreno Lopez (Plaintiff) et al.

    Read MoreRead Less
  • 01/29/2019
  • DocketCivil Case Cover Sheet; Filed by Jesus Fabiola Moreno Lopez (Plaintiff); Evelyn Lopez Moreno, by and through her guardian ad litem, Jesus Fabiola Moreno Lopez (Plaintiff); Jesus Everardo Lopez Moreno by and through his guardian ad litem, Jesus Fabiola Moreno Lopez (Plaintiff) et al.

    Read MoreRead Less
  • 01/29/2019
  • DocketComplaint; Filed by Jesus Fabiola Moreno Lopez (Plaintiff); Evelyn Lopez Moreno, by and through her guardian ad litem, Jesus Fabiola Moreno Lopez (Plaintiff); Jesus Everardo Lopez Moreno by and through his guardian ad litem, Jesus Fabiola Moreno Lopez (Plaintiff) et al.

    Read MoreRead Less
  • 01/29/2019
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

    Read MoreRead Less

Tentative Rulings

Case Number: *******2928    Hearing Date: April 8, 2021    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

JESUS FABIOLA MORENO LOPEZ, ET AL,

Plaintiff(s),

vs.

MK DIAMOND PRODUCTS, INC., ET AL.,

Defendant(s).

)

)

)

)

)

)

)

)

)

)

)

Case No.: *******2928

[TENTATIVE] ORDER GRANTING DEFENDANT’S MOTION TO COMPEL COMPLIANCE WITH SUBPOENA

Dept. 31

1:30 p.m.

April 8, 2021

  1. Background

    Plaintiffs, Jesus Fabiola Moreno Lopez, et al. filed this action against Defendant, MK Diamond Products, Inc. (“MK”), C.M. Vogel Electric, Inc., Charles M. Vogel (“Vogel”), et al. for damages relating to the death of Decedent Everado Lopez Rosas (“Decedent”) during a construction job on 2/3/17. The complaint alleges causes of action for (1) strict products liability, (2) negligence, (3) premises liability, and (4) negligent hiring, retention and supervision.

    On 4/29/19, MK filed a cross-complaint against Vogel for contribution, implied indemnity, and declaratory relief. MK asserts the subject construction job was being completed under Vogel’s general contractor’s license. Vogel allegedly revealed during his deposition that one of the entities Vogel loaned his contractor’s license to is non-party CM Vogel Construction, Inc. (“CM VCI”). MK provides that on 10/5/20, it issued a deposition subpoena to investigate the relationship between Vogel and CM VCI, but Vogel’s counsel served an objection to the subpoena, and CM VCI has refused to comply with the deposition subpoena.

    The subpoena requests: “Documents related to all work performed by Charles M. Vogel, SSN: UNKNOWN, on any and all projects, between 9/1/2010 and the present, including but not limited to all payments made to Charles M. Vogel, as an employee or independent contractor, also including copies of checks, ledgers, computer print-outs, invoices, reports, correspondence, reports and any digital or electronic files.” (Mot. Baca Decl. ¶ 4.)

    MK now moves for an order to compel CM VCI to produce records pursuant to the deposition subpoena served on it.

  2. Motion to Compel compliance with Deposition Subpoena for Business Records

  1. Parties’ Positions

    MK argues the category of documents requested in the subpoena are reasonably particularized, but CM VCI is being evasive and refusing to comply with the subpoena. MK asserts that while Vogel’s counsel served an objection to the subpoena, CM VCI has not served any objections or filed for a protective order. MK contends Vogel put CM VCI’s records at issue when Vogel testified during his deposition that he loaned his contractor’s license to the company, so CM VCI’s records will confirm the pattern and practice of Vogel lending out his contractor’s license without vetting or training individuals. MK contends the records will either support or refute Vogel’s testimony that he is not involved with CM VCI, and the credibility of a witness is always relevant. Further, MK avers the requested records are not privileged, and the records cannot be obtained from any other source.

    Non-party CM VCI filed an opposition to the motion. CM VCI argues MK fails to show good cause as to why MK is entitled to the requested documents, as MK has already gotten an admission the Vogel loaned out his license to another contractor for the job at issue and was uninvolved in it. CM VCI asserts that given these admissions, it is unnecessary to establish pattern and practice of Vogel’s conduct, as such evidence is normally excludable at trial, and any such evidence is not relevant. Further, CM VCI argues the ten-year timeframe in the subpoena is overbroad, and the subpoena is seeing Vogel’s financial records which violate Vogel’s right to privacy.

    In reply, MK contends CM VCI’s opposition is untimely, and that CM VCI cannot claim a privilege on behalf of Vogel. Further, MK avers there is good cause to order CM VCI to produce the requested records.

  2. Timeliness of Opposition

    MK argues the opposition is untimely because it was served with the opposition after business hours on 3/25/21. However, MK fails to cite any authority holding that papers served electronically must be served during business hours. Nine court days before the hearing was 3/25/21, and this is the date CM VCI filed and served its opposition. Further, even if the opposition was untimely, in the absence of any prejudice, and given MK’s reply on the merits, the court would exercise its discretion to consider the opposition.

  3. Analysis

    The service of a deposition notice, pursuant to CCP ; 2025.240, is effective to require any party deponent to attend, testify, and produce materials for inspection at a deposition. (CCP ; 2025.280(a).) To require the attendance and testimony of a non-party deponent, as well as his or her production of any document or tangible thing for inspection and copying, the party seeking discovery must serve on that deponent a deposition subpoena, pursuant CCP ; 2020.010, et seq. (CCP ;; 2020.010(b), 2025.280(b); See also Sears, Roebuck & Co. v. National Union Fire Insurance Company of Pittsburgh (2005) 131 Cal.App.4th 1342, 1350 [discovery from nonparties is governed by CCP ;; 2020.010, et seq., and is primarily carried out by way of subpoena].)

    If a deponent fails to answer any question or to produce any document, the party seeking discovery may move the court for an order compelling that answer or production. (CCP ; 2025.480(a).) If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given or the production be made on the resumption of the deposition. (CCP ; 2025.480(i).)

    “[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action,” (Code Civ. Proc., ; 2017.010.) “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement ...” (citation).” These rules are applied liberally in favor of discovery, (Colonial Life & Accident Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790), and contrary to popular belief fishing expeditions are permissible in some cases. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 385.)

    In this case, MK avers the documents go to Vogel’s credibility, the frequency of how often Vogel loaned his contractor’s license out, and whether he ever provided safety training to those individuals working under his contractor’s license. CM VCI did not serve an objection to the deposition subpoena nor file a motion quash. While CM VCI contends the requested evidence is likely to be excluded at trial, this alone does not establish the documents requested are not discoverable. (Greyhound Corp., 56 Cal.2d at 385.)

    Furthermore, although Vogel has admitted he loaned out his permit for the job at issue and he was uninvolved in it, as MK argues in its reply, the evidence may be relevant to impeach Vogel at trial if necessary. Moreover, while Vogel served an objection to the subpoena, it is the burden of the objecting party to support the applicability of a particular privilege. (See Denari v. Superior Court (1989) 215 Cal.App.3d 1488, 1494-95.) Vogel, however, did not file an opposition to the instant motion, and does not establish the appropriateness of any objections served. Additionally, although CM VCI argues the requested documents violate Vogel’s right to privacy, CM VCI does not cite any authority providing it may assert a privacy objection as a non-party on behalf of Vogel. CM VCI further does dispute there is no alternative method for MK to obtain the requested information.

    The motion to compel compliance with the deposition subpoena is granted. CM VCI is ordered to comply with the subject subpoena and produce the requested documents within 20 days.

    Sanctions are mandatory. (CCP ; 2025.480(j).) MK requests sanctions in the amount of $1,487.00 against CM VCI. MK is awarded 2.9 hours for preparing the motion, one hour for preparing the reply and one hour for appearing at the hearing all at the rate of $195 per hour, for a total of $955.50 in attorney’s fees. Further, the court awards MK the $60 motion filing fee and the $23 video appearance fee as costs.

    Sanctions are sought and imposed against CM VCI. CM VCI is ordered to pay sanctions to MK, by and through counsel of record, in the total amount of $1,038.50, within twenty days.

    Moving Defendant is ordered to give notice.

    Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

    Dated this 8th day of April, 2021

Hon. Thomas D. Long

Judge of the Superior Court


Case Number: *******2928 Hearing Date: November 22, 2021 Dept: T

JESUS FABIOLA MORENO LOPEZ et al.,

Plaintiffs,

vs.

MK DIAMOND PRODUCTS, INC., et al.,

Defendants.

CASE NO: *******2928

[TENTATIVE] ORDER RE:

MOTION FOR JUDGMENT ON THE PLEADINGS

Dept. T

8:30 a.m.

November 22, 2021

[TENTATIVE] ORDER: Defendants Charles M. Vogel and Hector Villegas’ Motion for Judgment on the Pleadings as to the Complaint is MOOT.

Cross-Defendants Charles M. Vogel and Hector Villegas’ Motion for Judgment on the Pleadings as to the two Cross-Complaints is DENIED.

Defendants and Cross-Defendants Charles M. Vogel and Hector Villegas’ Request for Judicial Notice is GRANTED DESPITE THE FACT THAT THE DOCUMENT SUBMITTED IS INCOMPLETE but not as to any hearsay or facts in dispute within it.

INTRODUCTION

Defendants and Cross-Defendants Charles M. Vogel (“Vogel”) and Hector Villegas (“Villegas”) (collectively “Defendants”) move for Judgment on the Pleadings as to Plaintiffs Jesus Fabiola Moreno Lopez’s et al. (collectively “Plaintiffs”) Complaint, Cross-Complainant MK Diamond Products, Inc.’s (“MKDP”) Cross-Complaint and Cross-Complainant Westlake Nail Bar’s (“Nail Bar”) Cross-Complaint. The motion places into issue: Plaintiffs’ Complaint’s third Cause of Action (“COA”) for negligence and fifth COA for negligent hiring, retention, and supervision; MKDP’s Cross-Complaint’s first COA for contribution, second COA for implied indemnity, and third COA for declaratory relief; and Nail Bar’s Cross-Complaint’s first COA for comparative indemnity and apportionment, second COA for equitable indemnity, and third COA for declaratory relief.

PROCEDURAL

Defendants assert that Plaintiffs have settled their action with Defendants. Due to the settlement, Defendants withdraw the motion specifically as to Plaintiffs’ Complaint. The Court does not consider the arguments as to Plaintiffs’ Complaint only and the motion as to the Complaint only is MOOT.

The remainder of the motion against the Cross-Complaints filed by MKDP and Nail Bar remain at issue and are considered below.

The Court notes that Nail Bar has not filed an opposition to the motion.

DISCUSSION

Defendants argue the exclusivity and preemption laws of the Workers Compensation Appeals Board (“WCAB”) to move against the allegations of the two Cross-Complaints. (LC secs.3600 – 3602 and 5300.) In support of this argument, Defendants rely upon WCAB’s “Order Approving Compromise & Release” (“Order”) (Defendants’ Request for Judicial Notice (“RJN”) Exh. 1; Defendants’ RJN Exh. 1 is an incomplete copy of the Order. It is missing paragraphs 3-9 of the Compromise & Release “Addendum A.” They also rely on Plaintiffs’ responses to Requests for Admissions (“RFA”) admitting to the receipt of Workers’ Compensation benefits from a policy where Co-Defendant CM Vogel Electric Inc. (“Vogel Electric”) was the insured. (Decl. of Agello, Exhs. 5-8.) The Order has attached to it the Compromise & Release (“C&R”) between Everardo Lopez Rosas (“Everardo” – the employee/decedent), Vogel Electric (the employer) and State Compensation Insurance Fund (“State Fund” – the insurer.) Judicial notice of other court records and files is limited to matters that are indisputably true. (Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482-484; Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97, 113.)

Of note is the fact that the moving parties are Vogel and Villegas, as individuals. In order for these two individuals to support their argument of exclusivity/preemption, Defendants must present facts either in the Complaint or within the RJN to show that the injury arose “out of and in the course of the employment.” (LC sec. 3600(a).)

The Order/C&R and the Responses to the RFA’s do not support the contention that Villegas was Everardo’s employer. Even so, the Order/C&R only show that the employer was Vogel Electric. (RJN Exh. 1, second and third page.) The Order/C&R further show that Villegas was not even a party to the WCAB action as an employer or in any other capacity. (See RJN Exh. 1, first page, caption to the Order.) Plaintiffs’ responses to the RFA’s or the RFA’s that are attached make no reference to Villegas. The attached RFA’s only request admissions related to Vogel and Vogel Electric (Decl. of Agello, Exhs. 5-8, Plaintiffs’ Response to RFA nos. 9-12.) The court notes that RFA no. 16 attached as Exh. 5 requests an admission that Everardo was an employee of Villegas but Plaintiff’s response is cut-off and only shows objections. All other RFAs fail to even reference Villegas. The RFA’s attached as Exhs. 6-8 are cut-off at RFA no. 15 and do not even attach RFA no. 16. Further, the allegations in the Complaint do not allege that Villegas was Everardo’s employer. Plaintiffs’ only allege that Villegas was an unlicensed, untrained laborer or plumber and “worked with” Everardo intermittently. (Compl. par. 19.) The use of “with” rather than “for” in the allegation would tend to show that Villegas and Everardo were co-workers rather than employer-employee. Without more facts, it is not established for the purposes of the instant motion that an employer-employee relationship existed between Villegas and Everardo. Without facts showing such a relationship, Defendants have not met their initial burden to show Workers’ Compensation exclusivity/preemption specifically as to Villegas. The motion submitted by Villegas is DENIED.

MKDP’s Opposition submits that Everardo was “classified as an employee.” (Oppo. pg. 5:1-2.) However, the assertion glosses over who the employer is. Based upon the documents presented by Vogel, the employer is not shown to be Villegas. MKDP attaches Vogel’s responses to Special Interrogatories wherein Vogel attests to Villegas being a sub-contractor and Everardo being employed by Villegas (Response to SI no. 1.) However, this goes against MKDP’s position in opposition to this motion. Further, Vogel’s discovery responses cannot be judicially noticed because Vogel is the moving/adverse party. On a demurrer/motion for judgment on the pleadings, a court may take judicial notice of plaintiff's own affidavits and unequivocal discovery responses based on plaintiff's personal knowledge, even if they contradict the complaint. (Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 83-84; Williams v. Southern Calif. Gas Co. (2009) 176 Cal.App.4th 591, 600.) On the other hand, judicial notice will not be taken of an opposing party's or third party's declarations that contradict the complaint. (Big Valley Band of Pomo Indians v. Sup.Ct. (McAllister) (2005) 133 Cal.App.4th 1185, 1191.) Vogel’s discovery responses are that of a third party in relation to MKDP and Plaintiffs.

Vogel’s contention that he is the employer of Everardo is not shown to be an indisputable truth for purposes of taking judicial notice. As shown above, the Order/C&R only show Vogel Electric being the employer. As was the case with Villegas, Vogel is not shown to be a party to the WCAB action. Plaintiffs’ responses to the RFA’s expressly deny or object to the RFA regarding receipt of benefits from a policy where Vogel is the named insured. (Decl. of Agello, Exhs. 5-8, Plaintiffs’ Response to RFA nos. 9-10.) Plaintiffs’ responses to the RFA’s only admit to receiving benefits from a policy that named Vogel Electric as the insured. (Decl. of Agello, Exhs. 5-8, Plaintiffs’ Response to RFA nos. 11-12.) Further, the allegations of the Complaint assert that either Vogel Electric and/or Vogel hired Everardo. (Compl. par. 19.) With the denial by Plaintiffs’ in the RFA’s, the Order/C&R not showing Vogel to be the employer, and the allegations in the Complaint alleging employment with Vogel Electric or Vogel, the Court cannot take judicial notice of the “fact” that Vogel was the employer of Everardo because this is not shown to be an indisputable truth. Due to the failure to show that an employer-employee relationship with Vogel is an indisputable truth, the Court cannot take judicial notice of the allegation that Vogel and Everardo were in such a relationship. Without more facts, Vogel fails to support his initial burden showing exclusivity/preemption. Vogel’s motion is DENIED.

IT IS SO ORDERED, ____________________ TO GIVE NOTICE.


Case Number: *******2928 Hearing Date: February 2, 2022 Dept: T

TENTATIVE RULING

OSC re sanctions as to plaintiff for failure to serve CM Vogel Electric discharged as having been set in error.

OSC re sanctions as to Westlake Nail Bar for failure to serve CM Vogel Electric granted in the sum of $150. No proof of service filed. No written response to OSC timely received.


related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where CH REALTY IV/NORTH RANCH L.P. A DELAWARE LIMITED PARTNERSHIP is a litigant

Latest cases where MK DIAMOND PRODUCTS INC. A CALIFORNIA CORPORATION is a litigant

Latest cases where C.M. VOGEL ELECTRIC INC. is a litigant

Latest cases where STATE COMPENSATION INSURANCE FUND is a litigant