This case was last updated from Los Angeles County Superior Courts on 08/15/2019 at 09:40:39 (UTC).

KEVIN TASHMAN VS 200 N FAIR OAKS LLC ET AL

Case Summary

On 11/17/2017 KEVIN TASHMAN filed a Personal Injury - Other Personal Injury lawsuit against 200 N FAIR OAKS LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is JON R. TAKASUGI. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4017

  • Filing Date:

    11/17/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

JON R. TAKASUGI

 

Party Details

Plaintiff and Petitioner

TASHMAN KEVIN

Defendants, Respondents, Cross Defendants and Cross Plaintiffs

PASADENA SHELL INC.

DOES 1 TO 50

200 N. FAIR OAKS LLC

ANABI OIL CORPORATION

FASTECH DBA FASTECH

FASTECH AN ENTITY UNKNOWN DOE 1

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

OUNJIAN ROBERT ESQ.

Defendant and Respondent Attorneys

BORDIN-WOSK JOSHUA ESQ.

COLMAN JONATHAN H. ESQ.

TRAN STEPHANIE

BUEHLER MARK BERNARD

Cross Defendant Attorneys

BYSZEWSKI BRAD

BORDIN-WOSK JOSHUA

 

Court Documents

Motion for Summary Judgment

6/20/2019: Motion for Summary Judgment

Separate Statement

6/20/2019: Separate Statement

Brief

6/20/2019: Brief

Notice of Change of Address or Other Contact Information

7/15/2019: Notice of Change of Address or Other Contact Information

DEFENDANT/CROSS-DEFENDANT PASADENA SHELL, INC'S ANSWER TO DEFENDANT/CROSS-COMPLAINANT ANABI OIL CORPORATION'S CROSS-COMPLAINT

2/15/2018: DEFENDANT/CROSS-DEFENDANT PASADENA SHELL, INC'S ANSWER TO DEFENDANT/CROSS-COMPLAINANT ANABI OIL CORPORATION'S CROSS-COMPLAINT

NOTICE OF LIEN

8/1/2018: NOTICE OF LIEN

NOTICE AND ACKNOWLEDGMENT OF RECEIPT CIVIL

9/20/2018: NOTICE AND ACKNOWLEDGMENT OF RECEIPT CIVIL

Amendment to Complaint (Fictitious/Incorrect Name)

12/5/2018: Amendment to Complaint (Fictitious/Incorrect Name)

Answer

2/11/2019: Answer

Cross-Complaint

2/11/2019: Cross-Complaint

Summons

2/11/2019: Summons

Notice of Posting of Jury Fees

2/11/2019: Notice of Posting of Jury Fees

Notice of Deposit - Jury

2/27/2019: Notice of Deposit - Jury

[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Person

3/12/2019: [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Person

Answer

3/13/2019: Answer

Cross-Complaint

3/15/2019: Cross-Complaint

Answer

3/18/2019: Answer

Proof of Service by Mail

3/19/2019: Proof of Service by Mail

26 More Documents Available

 

Docket Entries

  • 11/17/2020
  • Hearingat 08:30 AM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012; : OSC RE Dismissal

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  • 11/18/2019
  • Hearingat 08:30 AM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial

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  • 11/04/2019
  • Hearingat 10:00 AM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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  • 09/24/2019
  • Hearingat 13:30 PM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 07/15/2019
  • DocketNotice of Change of Address or Other Contact Information; Filed by Mark Bernard Buehler (Attorney)

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  • 06/20/2019
  • DocketSeparate Statement; Filed by 200 N. Fair Oaks, LLC (Defendant); Anabi Oil Corporation (Defendant)

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  • 06/20/2019
  • DocketBrief (Evidence in support of MSJ); Filed by 200 N. Fair Oaks, LLC (Defendant); Anabi Oil Corporation (Defendant)

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  • 06/20/2019
  • DocketMotion for Summary Judgment; Filed by 200 N. Fair Oaks, LLC (Defendant); Anabi Oil Corporation (Defendant)

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  • 05/21/2019
  • DocketNotice of Change of Address or Other Contact Information; Filed by Mark Bernard Buehler (Attorney)

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  • 05/17/2019
  • Docketat 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Jury Trial - Not Held - Continued - Stipulation

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46 More Docket Entries
  • 01/09/2018
  • DocketAnswer; Filed by Pasadena Shell, Inc. (Defendant)

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  • 12/20/2017
  • DocketProof-Service/Summons; Filed by Kevin Tashman (Plaintiff)

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  • 12/20/2017
  • DocketProof-Service/Summons; Filed by Kevin Tashman (Plaintiff)

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  • 12/20/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 12/20/2017
  • DocketProof-Service/Summons; Filed by Kevin Tashman (Plaintiff)

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  • 12/20/2017
  • DocketPROOF OF SERVICE SUMMONS AND COMPLAINT

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  • 12/20/2017
  • DocketPROOF OF SERVICE SUMMONS AND COMPLAINT

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  • 11/17/2017
  • DocketSUMMONS

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  • 11/17/2017
  • DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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  • 11/17/2017
  • DocketComplaint; Filed by Kevin Tashman (Plaintiff)

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Tentative Rulings

Case Number: ****4017 Hearing Date: May 31, 2022 Dept: X

Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE: May 31, 2022 TRIAL DATE: October 4, 2022

CASE: KEVIN TASHMAN, an individual, v. 200 N. FAIR OAKS, LLC, an entity of unknown form; ANABI OIL CORPORATION, an entity of unknown form; PASADENA SHELL, INC., an entity of unknown form; and DOES 1 through 50, inclusive.

CASE NO.: ****4017

MOTION FOR SUMMARY JUDGMENT

MOVING PARTY: Defendant and Cross-Complainant Fueling and Service Technologies, Inc. (“Fastech”)

RESPONDING PARTY: Defendant and Cross-Complainant Anabi Oil Corporation (“Anabi”)

Plaintiff Kevin Tashman (“Plaintiff”)

SERVICE: Filed March 10, 2022

OPPOSITION: Anabi opposition filed May 13, 2022

Plaintiff opposition filed May 17, 2022

REPLY: Filed May 23, 2022

RELIEF REQUESTED

Fastech moves for summary judgment.

BACKGROUND

This complaint arises out of Plaintiff Kevin Tashman’s (“Plaintiff”) personal injury claim. Plaintiff alleges that he fell down a “manhole” or “step plate” while on a property located at or near 200 N. Fair Oaks Avenue, Pasadena, California. On November 17, 2017, Plaintiff filed a form complaint against Defendants 200 N. Fair Oaks, LLC, Anabi Oil Corporation, and Pasadena Shell, Inc. alleging two causes of action for (1) negligence and (2) premises liability.

TENTATIVE RULING

Fastech’s motion for summary judgment is DENIED.

OBJECTIONS TO EVIDENCE

Plaintiff’s objections numbers one, two, and three are overruled.

Anabi’s objections numbers one and two are overruled.

LEGAL STANDARD

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.) “A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code of Civil Procedure section 473c subd. (a)(1).) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code of Civil Procedures section 473c subd. (c).)

A three-step analysis is employed in ruling on motions for summary judgment. First, the court identifies the issues framed by the pleadings. Next, the court determines, when the moving party is the defendant, whether it has produced evidence showing one or more of the elements of the cause of action cannot be established or there is a complete defense to that cause of action. If the defendant does so, the burden shifts to the plaintiff to show the existence of a triable issue of material fact as to that cause of action or defense. (Kline v. Turner (2001) 87 Cal.App.4th 1369, 1373.) The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Ibid.; see also Dore v. Arnold Worldwide, Inc. (2006) 39 Cal. 4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].)

“A defendant moving for summary judgment must show that one or more elements of the plaintiff's cause of action cannot be established or that there is a complete defense. The defendant can satisfy its burden by presenting evidence that negates an element of the cause of action or evidence that the plaintiff does not possess and cannot reasonably expect to obtain evidence needed to establish an essential element. (Veera v. Banana Republic, LLC, (2016) 6 Cal.App.5th 907, 914.)

DISCUSSION

The sole issue presented in Fastech’s motion is whether it owed a duty of care to Plaintiff. Fastech asserts it did not because its limited contract with Anabi required it to only make repairs as requested by Anabi. Fastech asserts that its conduct, at most, amounts to nonfeasance.

“The elements of a cause of action for negligence are duty, breach, causation, and damages.” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529.) “The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Legal Standard for Duty

Generally, everyone has a duty of care not to cause an unreasonable risk of harm or injury to others. (Civ. Code, 1714, subd. (a).)” (Mayes v. La Sierra University (2022) 73 Cal.App.5th 686, 687.) “Whether a given case falls within an exception to this general rule, or whether a duty of care exists in a given circumstance, ‘is a question of law to be determined on a case-by-case basis.’ ” (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472.)

Whether a duty of case exists is determined through the “balancing of various factors, including ‘ “[T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” ’ [citation.]” (Laabs v. Southern California Edison Co. (2009) 175 Cal.App.4th 1260, 1272.) “The foreseeability of the harm, though not determinative, has become the chief factor in duty analysis.” (Scott v. Chevron U.S.A. (1992) 5 Cal.App.4th 510, 515.)

“[I]n analyzing duty the court's task ‘ “ ‘is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.’ [Citation.] Viewed in this light, the question of foreseeability in a ‘duty’ context is a limited one for the court, and readily contrasted with the fact-specific foreseeability questions bearing on negligence (breach of duty) and proximate causation posed to the jury or trier of fact. [Citation.]” ’ ” (Laabs v. Southern California Edison Co., supra, 175 Cal.App.4th at p. 1273.)

Relevant Facts

Fastech and Anabi had an agreement where Fastech would provide “fueling service & compliance testing.” (SSUF No. 1.) During his deposition, Milton Dan McGill (“McGill”), Fastech’s person most knowledgeable, reviewed several photographs and identified different components to the manhole. Within the manhole there is a platform, a sump, “which contains the equipment for the underground storage tank” (Exhibit E at p. 28:7-9), and a spill containment bucket. The sump and platform were originally installed by Fastech but the photographed components were not the original platforms Fastech installed. (SSUF No. 19.) The platform consisted of a metal plate and a ring. (SSUF No. 24.) The plate can be lifted straight up out of the hole, and the ring is normally permanently attached to the plate. (SSUF No. 26.)

On June 12, 2017, Anabi called Fastech for a call for service. (SSUF No. 29.) Fastech technician Stephen Thai (“Thai”) responded to the service call. (SSUF No. 30.) Thai typed customer notes after completing the job. (SSUF No. 33.) Thai noted he “[u]sed rag and mopping cleaned cause flat form of fill sump broken.” (Exhibit E, at p. 56:24-25.) Further Thai wrote “[r]ecommend replaced flat form on fill sump diesel”. (Exhibit E, at p. 58:21-22.) McGill stated he believed Thai mean to note issues with the “platform”. (SSUF No. 20.) The incident at issue in this case occurred on June 23, 2017. (SSUF No. 40.)

Misfeasance Versus Nonfeasance

Fastech argues that it owed no duty to Plaintiff or Anabi regarding issues with the platform or sump because those components fell outside of its contract with Anabi.

There is a ‘distinction between action and inaction, or misfeasance and nonfeasance. Misfeasance exists when the defendant is responsible for making the plaintiff's position worse, i.e., defendant has created a risk. Conversely, nonfeasance is found when the defendant has failed to aid plaintiff through beneficial intervention.’ ” (Doe v. United State youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 128.) “Even in the case of nonfeasance, there are ‘recognized exceptions to the general no-duty-to-protect rule,’ one of which is the special relationship doctrine. [Citations.] ‘A defendant may owe an affirmative duty to protect another from the conduct of third parties if he or she has a “special relationship” with the other person.’ [Citation.]” (Ibid.)

A special relationship may arise out of a contract in which a repair company agrees for a fee to keep a piece of equipment in repair, perform all work necessary for the safety and maintenance of the equipment, and make periodic inspections of the equipment.” (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1204.)

Fastech asserts that its contract with Anabi does not encompass the parts at issue here. The contract references Exhibits A, B, and C, which Fastech also repeatedly references. Fastech argues, and the Court agrees, that nothing in Exhibit A, B, or C of the contract explicitly mentions the step plate or platform components at issue here.

However, that is not the end of the inquiry. Fastech’s argues that its scope of work under the contract is to be “on call” to respond to pump alarms and perform repairs. (SSUF No. 1.) Fastech argues it owes no duty to affirmative ensure all parts or components are properly maintained outside of a requested repair. Thus, Fastech argues, its failure to ensure that repair the platform or ensure Anabi was aware of the defect was nonfeasance.

Fastech also relies on Seo v. All-Makers Overhead Doors, supra, 97 Cal.App.4th 1193 (“Seo”), to support its arguments. In Seo, the plaintiff sued a gate repair company after his arm was crushed while he attempted to close a sliding gate. (Id. at p. 1198.) The company had no contract to regularly service the gate but had repaired the gate on previous occasions. (Ibid.) The Court held that the claims against the gate repair company amounted to nonfeasance because it had not manufactured or installed the gate or toggle switch nor negligently repaired the gate. (Id. at p. 1203.)

Fastech argues that Seo is directly analogous to the present case. However, Fastech’s arguments do not entirely convince this Court that its actions can be viewed strictly as nonfeasance. First, Fastech did have a contract with Anabi to provide services, such as clearing alarms. (Exhibit L.) Pursuant to that agreement, Thai visited the location of the incident to resolve a separate problem. During that visit, Thai noticed water around the diesel fill sump and guessed that water leaked through because of a broken “flat form”. (Montoya Decl. 21, Exhibit B.) The facts here are different than those in Seo, where the gate-repair company was alleged to have failed to warn or correct a design defect. (Seo, supra, 97 Cal.App.4th at p. 1203.) Fastech had an ongoing relationship with Anabi that brought its technician into contact with the broken components.

Further, Fastech did engage in affirmative conduct that could be viewed as misfeasance. The Court preliminarily notes that the contract at issue is rife with technical terms that are not clearly explained in Fastech’s motion. However, even if Fastech is correct in stating that it had no contractual duty to affirmatively repair or inspect the broken sump and platform, it did notify Anabi that the “flat form” was broken. This could be viewed as an affirmative action that created confusion for Anabi regarding what issues needed to resolve or parts were in need of replacement. Put another way, the evidence could be viewed as supporting the position that Fastech did not simply fail to warn, but rather that it warned Anabi in an incorrect manner. There is a triable issue of fact as to whether, by erroneously listing a faulty component, Fastech made Plaintiff’s position worse. If viewed in that context, Fastech’s actions are more than simply nonfeasance.

The Court is not (presently at least) ruling that Fastech engaged in an affirmative action so as to create a duty owed to Plaintiff. Rather, the Court finds that Fastech has failed to meet its burden of establishing that it owed no duty to Plaintiff. Fastech has failed to establish that its actions were simply nonfeasance, which would require a special relationship to form the basis of liability. Additionally, because the Court rules that Fastech has not met its burden of establishing its actions constitute nonfeasance, the Court does not reach the issue of whether a special duty existed between the party to impose liability if Fastech’s actions were nothing more than nonfeasance.

CONCLUSION

Fastech’s motion for summary judgment is denied. Moving party to provide notice.

Dated: May 31, 2022

Joel L. Lofton

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit. Parties intending to appear are strongly encouraged to appear remotely.



Case Number: ****4017 Hearing Date: March 9, 2022 Dept: X

Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE: March 9, 2022 TRIAL DATE: No date set

CASE: KEVIN TASHMAN, an individual, v. 200 N. FAIR OAKS, LLC, an entity of unknown form; ANABI OIL CORPORATION, an entity of unknown form; PASADENA SHELL, INC., an entity of unknown form; and DOES 1 through 50, inclusive.

CASE NO.: ****4017

MOTION TO COMPEL FURTHER DISCOVERY RESPONSES

MOVING PARTY: Defendant Pasadena Shell, Inc. (“Pasadena Shell”)

RESPONDING PARTY: Plaintiff Kevin Tashman (“Plaintiff”)

SERVICE: Filed January 19, 2022

OPPOSITION: Filed February 24, 2022

REPLY: Filed March 2, 2022

RELIEF REQUESTED

Pasadena Shell moves for an order compelling Plaintiff to produce further responses to its request for production set three, form interrogatories set two, and special interrogatories set four.

Pasadena Shell also requests sanctions in the amount of $1,560.

BACKGROUND

This complaint arises out of Plaintiff Kevin Tashman’s (“Plaintiff”) personal injury claim. Plaintiff alleges that he fell down a “manhole” or “step plate” while on a property located at or near 200 N. Fair Oaks Avenue, Pasadena, California. On November 17, 2017, Plaintiff filed a form complaint against Defendants 200 N. Fair Oaks, LLC, Anabi Oil Corporation, and Pasadena Shell, Inc. alleging two causes of action for (1) negligence and (2) premises liability.

TENTATIVE RULING

Pasadena Shell’s request to compel further responses to requests for production numbers 38 and 39 is DENIED.

Pasadena Shell’s request to compel further responses to requests for admissions numbers 20, 21, and 22 is DENIED.

Pasadena Shell’s request to compel further responses as to all other requests for admission, form interrogatories, and special interrogatories is GRANTED.

The court declines to award sanctions.

LEGAL STANDARD

On receipt of a response to discovery requests, the party requesting may move for an order compelling further responses for interrogatories (Code Civ. Proc. 2030.300), requests for admission (Cod. Civ. Proc. section 2033.290), and request for production (Code Civ. Proc. section 2031.310). “Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing, the requesting party waives any right to compel further response to the requests for admission.” (Code Civ. Proc. section 2033.290, subd. (c).)

DISCUSSION

I. PRELIMINARY ISSUES

Special Interrogatories

Plaintiff first asserts that Pasadena Shell’s motion to compel further responses to special interrogatories set four should be denied because Pasadena Shell failed to attach a separate statement. Pasadena Shell did fail to provide a separate statement with its initial motion but included the separate statement with its reply.

“Although the court rule requiring a separate statement on a motion to compel further responses (Cal. Rules of Court, rule 3.1020) would permit the trial court to continue or deny a motion to compel when no separate statement is provided, it does not limit a trial court's discretion to compel further answers notwithstanding the absence of a separate statement.” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 409, fn. 14.)

Here, because Pasadena Shell included its separate statement, albeit late, and because Plaintiff’s arguments opposing the current motion are focused on the privacy issues discussed below and not addressed to any specific discovery request, the Court does not find Pasadena Shell’s failure to submit a separate statement with the initial motion as grounds for denial at this time.

II. OVERVIEW OF FURTHER RESPONSES SOUGHT

Pasadena Shell seeks an order compelling Plaintiff to produce additional documents relating to Amber Clements (“Clements”), a potential witness. Pasadena Shell argues that Plaintiff’s allegations that he has suffered a traumatic brain injury (“TBI”) make the sought-after discovery relevant. Additionally, Pasadena Shell asserts that Plaintiff contends that the TBI after the alleged incident made him an angry, short-tempered person. Thus, Pasadena Shell argues that the sought-after discovery is relevant to impeach Plaintiff by showing that he had a propensity for violence prior to the alleged incident. Pasadena Shell also argues that because it seems that Clements is going to testify that Plaintiff has become abusive because of the alleged TBI, the sought-after discovery is relevant.

Pasadena Shell seeks a motion to compel further responses to the following inquiries.

Request for Production

Request for Production No. 38: Please produce any and all videos YOU have recorded of Amber Clements when she would become upset within the last year. (“YOU,” “YOUR,” “YOURSELF” or “PLAINTIFF” refers to the responding party, and includes the agents, employees, attorneys, accountants, investigators, and anyone else acting on behalf of the responding party).

Request for Production No. 39: Please produce any and all videos YOU have recorded of Amber Clements whereby YOU asked her if she was going to kill herself.

Form Interrogatory

Form Interrogatory No. 17.1: Is your response to each request for admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission:

(a) state the number of the request;

(b) state all facts upon which you base your response;

(c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and

(d) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each

Special Interrogatory

Special Interrogatory No. 44: IDENTIFY each PERSON who accompanied YOU to the consultation YOU had with Lana Goldshmit, LCSW.

Special Interrogatory No. 45: IDENTIFY each PERSON who accompanied YOU to the appointment YOU had with Clifford Alexander Querol, M.D.

Special Interrogatory No. 46: Do YOU dispute Amber Clement’s claims that YOU have physically abused her within the last year?

Special Interrogatory No. 47: If YOU dispute Amber Clement’s claims that YOU have physically abused Amber Clements within the last year, please state with specificity any and all facts in support of YOUR position.

Special Interrogatory No. 48: If YOU dispute Amber Clement’s claims that YOU have physically abused Amber Clements within the last year, please IDENTIFY all individuals with knowledge in support of YOUR position.

Special Interrogatory No. 49: If YOU dispute Amber Clement’s claims that YOU have physically abused Amber Clements within the last year, please IDENTIFY all DOCUMENTS in support of YOUR position.

Special Interrogatory No. 50: Do YOU dispute Amber Clement’s claims that YOU have physically abused your kids within the last year?

Special Interrogatory No. 51: If YOU dispute Amber Clement’s claims that YOU have physically abused your kids within the last year, please state with specificity any and all facts in support of YOUR position.

Special Interrogatory No. 52: If YOU dispute Amber Clement’s claims that YOU have physically abused your kids within the last year, please IDENTIFY all individuals with knowledge in support of YOUR position.

Special Interrogatory No. 53: If YOU dispute Amber Clement’s claims that YOU have physically abused your kids within the last year, please IDENTIFY all DOCUMENTS in support of YOUR position

Special Interrogatory No. 54: Do YOU dispute Amber Clement’s claims that YOU have physically abused her kids within the last year?

Special Interrogatory No. 55: If YOU dispute Amber Clement’s claims that YOU have physically abused her kids within the last year, please state with specificity any and all facts in support of YOUR position.

Special Interrogatory No. 56: If YOU dispute Amber Clement’s claims that YOU have physically abused her kids within the last year, please IDENTIFY all individuals with knowledge in support of YOUR position.

Special Interrogatory No. 57: If YOU dispute Amber Clement’s claims that YOU have physically abused her kids within the last year, please IDENTIFY all DOCUMENTS in support of YOUR position.

Request for Admission

Request for Admission No. 15: Admit that YOU told Amber Clements that she has mental problems.

Request for Admission No. 16: Admit that YOU told Amber Clements that she is a “stupid bitch.”

Request for Admission No. 17: Admit that YOU told Amber Clements that she is a “bad mother.”

Request for Admission No. 18: Admit that YOU told Amber Clements that she is a “liar.”

Request for Admission No. 19: Admit that YOU told Amber Clements that she has “difficulty with being honest.”

Request for Admission No. 20: Admit that YOU asked Amber Clements if she was going to kill herself within the last year.

Request for Admission No. 21: Admit that YOU have accused Amber Clements of sexually abusing YOUR child.

Request for Admission No. 22: Admit that YOU have accused Amber Clement’s family of sexually abusing YOUR child.

Request for Admission No. 23: Admit that in November of 2020, YOU physically slammed Amber Clements into a wall.

Request for Admission No. 24: Admit that in November of 2020, YOU physically dragged her chest of drawers out of her closet.

Request for Admission No. 25: Admit that within the last year, YOU took a hammer to a television in response to one of YOUR kids misbehaving

Request for Admission No. 26: Admit that YOU held Ms. Clement’s son Cayden up against a wall by his throat

Request for Admission No. 27: Admit that YOU have physically hit Ms. Clement’s son, Cayden

Request for Admission No. 28: Admit that YOU stole money from Amber Clement’s financial account

Plaintiff’s Response

To the various categories of discovery requests, Plaintiff responded with the same or similar objection language: “Objection. The request is vague, ambiguous, burdensome, unintelligible and compound. Further, the request is not likely to lead to the discovery of admissible evidence at the time of trial. The request seeks information which is wholly unrelated to the subject matter of the instant litigation and is therefore intended solely to harass. The request calls for a legal conclusion. The request violates Plaintiff’s right to privacy.”

III. DISCUSSION

Code of Civil Procedure section 2017.010, in relevant part, provides that “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”

The California Constitution provides Californians with a right to privacy. (Cal. Const., art. 1, section 1.) The California Supreme Court has held that “[t]he party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 552 (“Williams”), citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.) “The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.” (Ibid.)

“A threatened invasion of privacy can, to be sure, be extremely grave, and to the extent it is, to conclude in a given case that only a compelling countervailing interest and an absence of alternatives will suffice to justify the intrusion may be right.” (Williams, supra, 3 Cal.5th 531, 557.) The California Supreme Court, however, noted that the “compelling interest” test was not the starting point of the inquiry but rather that “Courts must instead place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing interests the opposing party identifies, as Hill requires.”

In Tylo v. Superior Court (1997) 55 Cal.App.4th 1379, 1388, the Court stated that “[t]here can be no doubt that the marital relationship serves as a foundation for an assertion of the right to privacy”.

Plaintiff first argues that the discovery requests are aimed at circumstances that involve allegations of abuse on or around May of 2021 and are thus not relevant to Plaintiff’s asserted violent propensity prior to the alleged incident. (Opp. to RFP at p. 4:9-20.)

Plaintiff also argues that the allegations of domestic abuse are “impermissibly collateral” (Opp. to RFP at p. 7:22. Plaintiff asserts that Pasadena Shell is seeking discovery to transform the present action into “a domestic relations trial”. (Opp. To RFP at p. 8:15.) Plaintiff arguments generally pertain to whether the sought-after discovery is admissible.

Pasadena Shell asserts that Plaintiff has repeatedly placed his temperament at issue in the present case by (1) claiming he was a patient person before the alleged injury (Mot. RFP at p. 2:19-20, Sampson Decl. 3, Exhibit B) and (2) claiming he lost custody of his daughter because he became more volatile because of the alleged incident (Mot. RFP at pp. 2:24-3:5, Sampson Decl. 3, Exhibit B). Additionally, Pasadena Shell asserts that there is deposition testimony that demonstrates that Plaintiff had acted violently in prior relationships before the events of the alleged incident. (Mot. RFP at pp 3:12-4:21, Sampson Decl. 4 and 5, Exhibit C and D.)

Specific to Clements, Pasadena Shell asserts that Plaintiff and Clements had filed requests for restraining orders against each other. (Mot. RFP at pp 4:24-5:11, Sampson Decl. 7 and 8, Exhibits E and F.) Pasadena Shell further asserts that Clements had asserted that Plaintiff’s actions were a result of the TBI from the alleged incident. (Sampson Decl. 8, Exhibit F.)

The primary issue with Plaintiff’s arguments is that he has failed to apply the Hill standard for asserting a privacy right as stated by the Court in Williams. Plaintiff has instead jumped straight into asserting that Pasadena Shell is required to state a compelling interest and that Pasadena Shell fails to do so. Plaintiff does assert a valid privacy interest protecting information regarding his marital relationship. However, Plaintiff does not satisfy either of the other two threshold questions by establishing “an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.” (Williams, supra, 3 Cal.5th at p. 552.)

First, Plaintiff has not established how he has a reasonable expectation of privacy regarding allegations of abuse when he has directly placed his temperament, including the way he acts towards his family, at issue by claiming it is part of the damages he suffered from the injuries caused by the alleged incident. The ruling in Tylo v. Superior Court, supra, 55 Cal.App.4th 1379 is instructive here, although the Court there did not apply the Hill test. In Tylo, the Court held that discovery into the plaintiff’s marital relationship was improper because the party seeking the information had failed to establish a nexus between the damages alleged by the plaintiff and the damages that maybe have arisen from possible stressors in the plaintiff’s marriage. (Id. at p. 1388.)

Here, Plaintiff stated that the TBI from the alleged incident has caused him to become violent towards his family, in contrast to his prior disposition. Because he has stated his change in disposition and violent actions are a result of the injuries he sustained from the alleged incident, Plaintiff fails to claim he has a reasonable expectation of privacy in information that demonstrates the extent to his alleged changes and violent actions.

Additionally, Plaintiff’s assertions that the alleged incident has made him a more violent person, even to the point of losing custody of his daughter, undermines any argument that the sought-after discovery involving the extent of his violent actions towards his family is a serious intrusion into his privacy under a Hill analysis. Plaintiff has placed his actions towards his family directly at issue in this case and cannot now say that a party seeking information along those lines is seriously threatening his privacy.

Plaintiff made a blanket objection to each of Pasadena Shell’s discovery inquiries into his marital business and now makes a similar blanket argument to this Court that all aspects of his marital relationship are protected. Plaintiff has failed to meet his burden of establishing that he should be protected from Pasadena Shell’s discovery requests.

However, the Court finds that Pasadena Shell’s request for productions numbers 38 and 39, which seek videos of Clements, is irrelevant to the subject at hand. Pasadena Shell’s motion to compel further responses to its request for production numbers 38 and 39 are denied.

Additionally, Pasadena Shell’s motion to compel further responses to requests for admission numbers 20, 21, and 22, is denied as irrelevant.

Pasadena Shell’s motion to compel further responses is granted as to all other discovery requests.

Monetary Sanctions

The court finds that the Plaintiff’s privacy-based objections were supported by substantial justification and therefore declines to award any sanctions in connection with this motion.

CONCLUSION

Pasadena Shell’s request to compel further responses to requests for production numbers 38 and 39 is denied.

Pasadena Shell’s request to compel further responses to requests for admissions numbers 20, 21, and 22 is denied.

Pasadena Shell’s request to compel further responses as to all other requests for admission, form interrogatories, and special interrogatories is granted. Moving party to give notice.

Dated: March 9, 2022

Joel L. Lofton

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court indicating their

intention to submit. Parties intending to appear are strongly encouraged to appear remotely



b'

Case Number: ****4017 Hearing Date: August 20, 2021 Dept: D

TENTATIVE RULING
Calendar: 15
Date: 8/20/2021
Case No: ****4017 Trial Date: None Set
Case Name: Tashman v. 200 N. Fair Oaks, LLC, et al.
MOTION TO BIFURCATE
Moving Party: Plaintiff Kevin Tashman
“Joinder” filed by Defendants, Cross-Defendants and Cross-Complainants Anabi Oil Corporation and 200 N. Fair Oaks, LLC
Responding Party: No Opposition
Thirty days before trial?: Yes
RELIEF REQUESTED:
Order bifurcating trial on liability and damages in this matter.
SUMMARY OF FACTS:
Plaintiff Kevin Tashman alleges that on June 24, 2017, plaintiff was injured due to the negligence of defendants 200 N. Fair Oaks, LLC, Anabi Oil Corporation and Pasadena Shell, Inc., when, in the process of delivering fuel to underground fuel tanks located on defendants’ property, plaintiff fell through a “man hole” or “step plate” or other type of vault cover which created a defective condition. The form complaint alleges causes of action for general negligence and premises liability.
Defendants have filed cross-complaints for indemnity and contribution and named as cross-defendants additional parties such as the servicer of the subject premises, and plaintiff’s employer, and cross-defendants have filed various cross-complaints as well.
ANALYSIS:
Plaintiff Kevin Tashmant brings this motion seeking to have the court set a trial date for a liability phase of trial, and to issue an order that should plaintiff prevail on liability a date for a damages phase will be set with sufficient time between phases for the parties to designate damages experts and conduct damages discovery. Plaintiff also encourages the court to set a mandatory settlement conference or mediation completion date after the first phase of trial as the parties will then be well positioned to resolve the case.
CCP ; 1048 provides that “(b) The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial… of any separate issue..., preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.”
Plaintiff seeks relief under CCP ; 598, which provides, in pertinent part:
“The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order... that the trial of any issue or any part thereof shall precede the trial of any other issue or part thereof in the case…”
Section 598 was adopted in 1963 as the result of Judicial Council recommendations and “Its objective is avoidance of waste of time and money caused by unnecessary trial of damage questions in cases where the liability issue is resolved against the plaintiff.” Trickey v. Superior Court (1967) 252 Cal.App.2d 650, 653, citation omitted.
The determination of whether to bifurcate the trial of issues in a single action “is a matter within the discretion of the trial court, whose ruling will not be disturbed on appeal absent a manifest abuse of discretion.” Downey Savings & Loan Assn. v. Ohio Casualty Ins. Co. (2nd Dist. 1987) 189 Cal.App.3d 1072, 1086 (noted to have been superseded by statute on another issue in Yang v. Peoples Benefit Ins. Co. (2007) 2007 U.S.Dist Lexis 41331), citing McArthur v. Schaffer (1943) 58 Cal.App.2d 724, 727.
California courts have recognized that bifurcation is proper where liability is a simple matter while damages require testimony from multiple witnesses, or where only a small fraction of the evidence would be repeated, and the trial court had determined the ends of justice would be served by bifurcation. Trickey, supra, at 653; Kaiser Steel Corp. v. Westinghouse Elec. Corp. (2nd Dist., 1976) 55 Cal.App.3d 737, 745-746 (noted superseded by statute on other grounds in Barnett v. American-Cal Medical Services (2nd Dist. 1984) 156 Cal.App.3d 260).
The request here is unusual, as it is made by plaintiff, who is evidently not arguing that it is likely that the liability phase will be against plaintiff, so result in an outcome which would eliminate the need for a damages phase. This would ordinarily be the major efficiency to justify such a bifurcation order.
The request is also unusual as it is for trial bifurcation of a jury trial, with phases to evidently be tried to two different juries, with a significant gap of time in between the trials.
Plaintiff has indicated that without bifurcation, the trial could last for twelve weeks or more. There is no indication of how long the trial would be expected to last in total if it is bifurcated. The argument is vaguely that the parties are likely to call 15 or more witnesses during the liability phase, and 25 witnesses with respect to damages. It appears that plaintiff would prefer to postpone the expense and effort of conducting damages expert discovery until after a determination of liability and the proportionate share of liability of each party is determined, at which point, the parties could discuss settlement.
In any case, this appears to present a situation where the matter is a personal injury action which would likely be tried in a personal injury trial court, rather than in this court. In addition, it would appear that the matter may qualify to be tried in a long cause court. In either case, the court is not inclined to make a case management determination such as whether to conduct a bifurcated proceeding as requested with respect to a case which will not be tried by this court.
The motion accordingly is denied without prejudice to the parties seeking such an order from the trial court to which the matter is assigned for trial.
RULING:
Plaintiff’s Motion to Bifurcate Liability and Damages is DENIED WITHOUT PREJUDICE to plaintiff seeking such relief from the trial court to which this matter is ultimately assigned for trial.
Joinder in Plaintiff’s Motion to Bifurcate is DENIED WITHOUT PREJUDICE.
GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES
Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect/Microsoft Teams offers audio and video appearance at a cost of $15.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear. Anyone who appears in person for the hearing, regardless of vaccination status, must wear a face mask over both the nose and mouth. If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.
'


Case Number: ****4017    Hearing Date: September 25, 2020    Dept: E

MOTION FOR SUMMARY JUDGMENT (2)

[CCP ;437c]

MOTION FOR LEAVE TO FILE FIRST AMENDED CROSS-COMPLAINT

[CCP ;472]

Date: 9/25/20 (2:00 PM)

Case: Kevin Tashman v. 200 N. Fair Oaks LLC et al. (****4017)

TENTATIVE RULING:

I. DEFENDANTS ANABI OIL CORPORATION AND 200 N. FAIR OAKS, LLC’S MOTION FOR SUMMARY JUDGMENT (FILED JUNE 20, 2019)

Defendants Anabi Oil Corporation and 200 N. Fair Oaks, LLC’s Motion for Summary Judgment is DENIED.

Defendants contend they did not have a duty to ensure that the sump lid through which plaintiff fell on June 24, 2017 was in a reasonably safe condition.

Charles Montoya, a wholesale account manager at Anabi Oil Corporation (“Anabi”), declares that Pasadena Shell, Inc. (“Pasadena Shell”) is responsible for maintenance of the property and keeping the premises safe for all persons. (Montoya Decl. ¶ 3.) Montoya also declares that Pasadena Shell is obligated to immediately notify Anabi if any portion of the premises needs maintenance and to perform interim maintenance to keep the premises in a safe condition. (Montoya Decl. ¶ 3.) On July 16, 2019, Montoya, as Person Most Qualified for Anabi, testified that, on the date of the incident, Anabi was responsible for repairs to the diesel manhole, but Pasadena Shell was responsible for daily inspections of the premises, including the sump lid located in the manhole. (Pl. Ex. P at 83:12-23.)

Montoya’s view is consistent with certain portions of the Retail Facility Lease (“RFL”) between Anabi and Pasadena Shell, effective from September 1, 2014 to August 31, 2017. Section 8 of the RFL states: “At Lessee’s own expense, Lessee [i.e. Pasadena Shell] shall timely perform the maintenance obligations set forth in Exhibit B, as may be amended by Lessor [i.e. Anabi] from time to time upon written notice to Lessee. (UMF 3 and evidence cited.) Section 8 of the RFL also states: “Notwithstanding Lessor’s maintenance obligations, Lessee has the primary obligation to keep the Premises safe for all persons. Accordingly, Lessee shall immediately notify Lessor if any portion of the Premises is in need of maintenance by Lessor and shall perform any necessary interim maintenance to keep the Premises in a safe condition until such time as Lessor is able to do so within a reasonable time after receipt of notice from Lessee.” (Defs. Ex. 1 at 4.)

The terms of the RFL, however, do not necessarily support moving defendants’ position that they have no responsibility for checking the integrity of the sump lid underneath the manhole cover. It is true that Exhibit B, Section H, Subsection 1 of the RFL provides that Pasadena Shell is required to check the underground tanks for water and to keep the manholes clean. (Ex. B to Def. Ex. 1.) That obligation is consistent with the deposition testimony of William Hawatmeh, the owner of Pasadena Shell, who testified that his responsibilities in operating Pasadena Shell include cleaning water and diesel in the manholes, including water in a spill bucket inside the manholes. (Pl. Ex. H at 43:19-44:22; Pl. Ex. J at 48:4-49:7.) Hawatmeh also testified, however, that Pasadena Shell was not supposed to attempt to maintain the underground storage tanks because doing so would set off an alarm. (Pl. Ex. H at 99:4-100:4.) Indeed, according to Hawatmeh, Anabi was purportedly responsible for inspecting below-ground equipment, which includes the sump lid at issue. (Pl. Ex. J at 55:21-56:10, 129:15-19, 130:4-6.) This assertion by Hawatmeh is consistent with Exhibit B, Section N of the RFL, which states: “Any necessary repairs and replacements to below-ground equipment will be performed by Lessor and assessed to Lessee in full after such work is completed.” (Defs. Ex. 1 at 18.)

Notably, Anabi’s PMK Montoya testified that Exhibit B, Section H, Subsection 1 of the RFL does not reference the sump lid, or the plate inside the manhole. (Pl. Ex. P at 91:23-92:2.) Montoya also testified that “equipment” underneath the definition of “Premises” in the RFL could include the sump lid. (Defs. Ex. 1 at 2; Pl. Ex. P at 180:4-181:7.) In addition, on December 16, 2019, Montoya, as Person Most Qualified for Fair Oaks, testified that he was not certain who was responsible for certain parts of the manhole. (Pl. Ex. B at 31:10-32:2.)

Given the RFL’s silence about which entity is supposed to ensure that the below-ground sump lid is maintained in a reasonably safe condition, a reasonable trier of fact could rely on Exhibit B, Section N of the RFL and the testimony of Hawatmeh to conclude that Anabi was responsible for inspecting the sump lid for any defects. Based on the ambiguity of the lease and the competing testimony described above, a triable issue exists as to which party or parties bore responsibility for inspecting the sump lids underneath the manhole covers. (Blaustein v. Burton (1970) 9 Cal.App.3d 161, 184 [“Even where a question of interpretation of contractual provisions is involved on a motion for summary judgment, it is settled that, if the opposing interpretations are both reasonable, a question of fact is raised which precludes summary judgment”].)

In addition, even if Pasadena Shell assumed the responsibility to inspect the sump lids per the RFL, Anabi, as the undisputed owner of the underground storage tanks, nonetheless has a nondelegable duty to maintain the sump lids in a reasonably safe condition. “[A] landlord cannot escape liability for failure to maintain property in a safe condition by delegating such duty to an independent contractor.” (Srithong v. Total Investment Co. (1994) 23 Cal.App.4th 721, 726 [citing Brown v. George Pepperdine Foundation (1943) 23 Cal.2d 256, 259-60].) “If an independent contractor, no matter how carefully selected, is employed [by the possessor of land] to [maintain property], the possessor is answerable for harm caused by the negligent failure of his contractor to put or maintain the buildings and structures in reasonably safe condition[.]” (Srithong, 23 Cal.App.4th at 726 [quoting Brown, 23 Cal.2d at 260 (internal quotations omitted)].)

Further, the Court finds there is evidence from which a trier of fact could conclude Anabi had both actual and constructive notice of the dangerous condition.

With respect to actual notice, on June 12, 2017, Anabi had called its contractor, Fastech, to respond to an alarm in the subject diesel sump at the Pasadena Shell station. (Pl. Ex. T.) Stephen Thai, a maintenance technician from Fastech, indicated in a Customer Note that the sump lid (indicated as “flat form” in the Customer Note) was broken and recommended replacing the lid. (Pl. Ex. T; Pl. Ex. G at 37:18-38:5.) Thai has testified that the metal ring that surrounded the sump lid was cracked and missing rivets connecting the ring to the lid, causing the lid covering the sump to be loose. (Pl. Ex. G at 32:7-35:8; 35:25-37:2.) Pursuant to Fastech’s practice, when a technician discovers that a sump lid is broken, that technician must, among other things, write down the issue on the work order. (Pl. Ex. F at 41:14-21.) Thai followed this procedure with the June 12, 2017 work order. (Pl. Ex. G at 22:15-23:20.) The Person Most Knowledgeable for Fastech testified that Fastech would then send the work order along with the invoice to the customer, i.e., Anabi. (Pl. Ex. M at 59:7-60:15.) While it may be true that the invoice, which was dated after the June 24, 2017 incident (Pl. Ex. 4 to Ex. 24 [invoice dated June 30, 2017]), might not have been received by Anabi until July 10, 2017 (see Pl. Ex. 16 at 35:8-36:12), Anabi is still charged with Fastech’s knowledge of the sump lid’s condition prior to the incident. As our Supreme Court long ago held, “a nondelegable duty operates, not as a substitute for liability based on negligence, but to assure that when a negligently caused harm occurs, the injured party will be compensated by the person whose activity caused the harm and who may therefore properly be held liable for the negligence of his agent, whether his agent was an employee or an independent contractor.” (Maloney v. Rath (1968) 69 Cal.2d 442, 446, abrogated on other grounds as stated in SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 602.) In the Reply, defendants contend it would be “outlandish to impute the actions/knowledge” of Fastech to Anabi and argue Fastech has no agency relationship with Anabi because it is an independent contractor, but defendants cite no authority for these propositions, which run contrary to seemingly settled law concerning a landlord’s nondelegable duty and liability for the actions (or inaction) of the independent contractors it hires. (Reply at 6-7.)

Even if Anabi cannot be charged with Fastech’s actual knowledge, there exist triable issues of fact concerning Anabi’s constructive notice of the sump lid’s condition, which is sufficient to support liability for Anabi. “The plaintiff need not show actual knowledge where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence. . . . . Whether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury, and the cases do not impose exact time limitations. Each accident must be viewed in light of its own unique circumstances.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206–07.)

About a month prior to the incident, Gregory Harris II, a fuel delivery driver for Cox Petroleum, experienced a problem with gasoline not properly draining into the tank at Pasadena Shell. (Pl. Ex. 10 at 86:19-87:5.) The manager of Pasadena Shell contacted somebody from Anabi, which then contacted its vendor to conduct repairs at gasoline stations. (Pl. Ex. 10 at 87:6-9.) In connection with addressing that problem, Harris observed that the service technician opened all the manhole covers, platforms, and equipment to fix the problem. (Pl. Ex. 10 at 94:19-95:17, 89:7-10.) Further, as discussed above, on June 12, 2017 (12 days prior to the incident), service technician Thai was called out to look into the sump lid due to the triggering of an alarm. (Pl. Ex. G at 20:14-23; Pl. Ex. 24:12-15.) Moreover, upon inspection, Thai discovered that the sump lid was damaged and in need of repair. From these incidents, a trier of fact could reasonably conclude that, well in advance of plaintiff’s accident, there were known problems with the sump lid and that a reasonable inspection of the sump lid would have led to discovery that it was damaged.

Here, Montoya (Anabi’s wholesale account manager) and Jon Acosta (Anabi’s wholesale account representative) testified that they visited the property regularly. Montoya states that he would visit every couple of weeks to see if anything was noticeably deficient. (Pl. Ex. E at 49:9-16.) Acosta estimated he visited the property about 20 times from the beginning of 2017 up to June 2017. (Pl. Ex. 1 at 31:19-32:4.) However, Montoya never inspected the fuel sump. (Pl. Ex. E at 48:18-49:24.) Had he done so, as Montoya stated in his deposition, the defect in the sump lid was noticeable on visual inspection. (Pl. Ex. E at 75:1-19.) Thus, because the sumps were experiencing issues beginning at least in May 2017, a reasonable trier of fact could find that someone from Anabi should have inspected the sumps and discovered that they were damaged. (Ortega v Kmart Corp. (2001) 26 Cal.4th 1200, 1207 [“The owner must inspect the premises or take other proper action to ascertain their condition, and if, by the exercise of reasonable care, the owner would have discovered the condition, he is liable for failing to correct it”].)

Finally, with respect to defendant 200 N. Fair Oaks, LLC (“Fair Oaks”), defendants contend that, because Anabi is the owner of the underground tanks and fuel systems at the Shell station, Fair Oaks cannot be held liable for plaintiff’s injuries. (Pl. Ex. D at 22:3-24; 28:23-29:2.) However, Fair Oaks is also co-owner of the land where the tank and fuels systems are kept and the on which the diesel manhole through which plaintiff fell is located. (Pl. Ex. D at 23:1-14.) Accordingly, Fair Oaks is subject to the same nondelegable duty to maintain the premises in a reasonably safe condition as Anabi. (Knell v. Morris (1952) 39 Cal.2d 450, 456 [“It is well settled that the possessor of land is answerable for the negligent failure of an independent contractor to put or maintain buildings and structures thereon in reasonably safe condition”].) Even though Fair Oaks leased the Shell station premises to Anabi, who then leased the premises to Pasadena Shell (Pl. Ex. D at 24:13-20), Fair Oaks cannot disclaim itself of this nondelegable duty.

Because a reasonable trier of fact could find that defendants had actual or constructive notice that the sump lid was defective, a triable issue exists as to whether defendants are liable for failing to address that dangerous condition.

The motion for summary judgment is DENIED.

II. DEFENDANTS ANABI OIL CORPORATION AND 200 N. FAIR OAKS, LLC’S MOTION FOR SUMMARY JUDGMENT (FILED DECEMBER 12, 2019)

Defendants Anabi Oil Corporation and 200 N. Fair Oaks, LLC’s Motion for Summary Judgment is DENIED.

In the second motion for summary judgment, defendants contend that plaintiff’s claims fail under the Privette doctrine. As a preliminary matter, defendant 200 N. Fair Oaks, LLC withdrew the motion based on the Privette doctrine. (Reply at 3:26.) Accordingly, the Court rules only as to Anabi Oil Corporation.

On November 1, 2014, Anabi contracted with H.F. Cox, Inc. (“Cox Petroleum” or “Cox”), plaintiff’s employer, to fill its underground tanks with diesel fuel. (Montoya Decl ¶ 8; Def. Ex. 4.) Under Paragraph 4 of the Transportation Agreement between Anabi and Cox, “As it relates to Shipper, Carrier shall have responsibility of the personnel used in the operation of the Equipment and shall perform the services hereunder as an independent contractor.” (UMF 9.)

The Privette doctrine states that “a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor's negligence in performing the work.” (Srithong v. Total Investment Co. (1994) 23 Cal.App.4th 721, 725–26, citing Privette v. Superior Court (1993) 5 Cal.4th 689, 693.) Here, the Court finds that plaintiff effectively disputes applicability of the Privette doctrine by showing triable issues as to whether Anabi retained control over the defective sump lid and whether Anabi negligently exercised such control. (See Hooker v. Department of Transportation (2002) 27 Cal. 4th 198, 214.)

William Hawatmeh, the owner of Pasadena Shell, contends that Fastech would have to report damaged sump lids to Anabi, which would then replace the sump lids. (UMF 57 and evidence cited.) Anabi was ultimately responsible for performing necessary repairs on below-ground equipment, which would reasonably include sump lids, and replacing defective sump lids. (UMF 53, 54 and evidence cited.) The Retail Facility Lease contains an ambiguity concerning whether Anabi is responsible for inspecting the integrity of the sump lids contained below the manhole covers. (UMF 29-31 and evidence cited.) A triable issue also exists regarding whether Anabi affirmatively contributed to plaintiff’s fall by failing to inspect the sump lid prior to the incident, despite having at least constructive notice of the defect in the lid. Affirmative contributions can be based on omissions. (Hooker, 27 Cal.4th at 212, fn. 3.) As discussed in the first motion for summary judgment, based on prior problems with the fuel sumps in May 2017 and June 12, 2017, a triable issue exists regarding whether Anabi should have reasonably known about the damaged sump lid and whether Anabi should have conducted in-depth inspections of the sump lids at Pasadena Shell prior to the incident. (PAMF 35, 42, 43, 48 and evidence cited.)

A triable issue also exists regarding whether Anabi may be held liable for breach of a nondelegable duty imposed by regulation. Code of Federal Regulations 1926.502(i)(2) requires the sump lid to be able to support twice the weight of employees. Defendants note that the definition of “cover” in this regulation encompasses walking and working surfaces. (C.F.R. 1926.502(i).) Plaintiff presented the testimony of Fastech’s Person Most Knowledge, Daniel McGill, who testified that fuel delivery drivers will step onto the sump lid to be able to reach the below-ground fuel fill and connect the fuel truck to the underground tank. (Pl. Ex. M at 37:11-40:3.) Accordingly, a triable issue exists as to whether it was foreseeable that fuel delivery drivers would step on the sump lid such that the sump lid here is subject to the regulation requiring it to support twice the weight of one standing on it. (See Evard v. Southern California Edison (2007) 153 Cal.App.4th 137, 146 [“A nondelegable duty may arise when a statute or regulation requires specific safeguards or precautions to ensure others' safety . . . . Privette did not abolish liability for breach of a nondelegable duty imposed by statute or regulation”].)

Accordingly, plaintiff presents a triable issue concerning whether Anabi may be held liable for its own negligence in failing to discover and replace the damaged sump lid prior to the incident.

Another exception to the Privette doctrine concerns concealed conditions: “The hirer as landowner may be independently liable to the contractor’s employee, even if it does not retain control over the work, if (1) it knows or reasonably should know of a concealed, preexisting hazardous condition on its premises; (2) the contractor does not know and could not reasonably ascertain the condition; and (3) the landowner fails to warn the contractor.” (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 675.)

Anabi owns the underground storage tanks and equipment, including where plaintiff fell. (PAMF 24 and evidence cited.) As discussed above, a reasonable trier of fact could find that based on the previous problems with the fuel sumps prior to the incident, Anabi should have known about the damaged sump lid and/or should have inspected the sump lids prior to plaintiff’s fall. (PAMF 35, 42, 43, 48 and evidence cited.) Plaintiff also declares that on the date of the incident, he was unable to see that the ring of the sump lid had disconnected from the lid. (PAMF 51, 59 and evidence cited.) Anabi also failed to notify Tashman or his employer about the defective sump lid. (PAMF 61 and evidence cited.) Accordingly, the exception to the Privette doctrine set forth in Kinsman may apply in this action.

The motion for summary judgment is DENIED. Defendants’ Objection No. 8 is OVERRULED. Plaintiff’s averment regarding the defect in the sump lid is not admitted for the truth of the cause of the defect, but rather to demonstrate that plaintiff may not have been able to see that the sump lid was defective. The remaining objections are not ruled on as they are not dispositive to this motion. (CCP ; 437c(q).)

III. DEFENDANTS ANABI OIL CORPORATION AND 200 N. FAIR OAKS, LLC’S MOTION FOR LEAVE TO FILE FIRST AMENDED CROSS-COMPLAINT

Cross-complainants Anabi Oil Corporation and 200 N. Fair Oaks, LLC’s Motion for Leave to File First Amended Cross-Complaint is GRANTED.

The assertion of an express indemnity cause of action against H.F. Cox, Inc. would not be futile. Labor Code ; 3864 allows a third party to seek indemnification from an employer for liability to an employee if there is a written agreement to do so. (Lab. Code ; 3864 [“If an action as provided in this chapter prosecuted by the employee . . . against the third person results in judgment against such third person . . . the employer shall have no liability to reimburse or hold such third person harmless on such judgment . . . in absence of a written agreement so to do executed prior to the injury”].) The Transportation Agreement contains an express indemnity provision. (Louro Decl. ¶ 3.)

Plaintiff contends that defendants unreasonably delayed in filing this motion. Absent a showing of prejudice, delay in seeking an amendment alone does not justify denial of leave to amend. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-65.) While defendants may file a future motion for summary judgment based on the purported negligence of H.F. Cox, Inc., plaintiff would not be prejudiced with the filing of an amended cross-complaint because trial is not set in this action. Plaintiff has time to conduct discovery to dispute defendants’ allegations of his employer’s negligence.

Cross-complainants Anabi Oil Corporation and 200 N. Fair Oaks, LLC are to file their First Amended Cross-Complaint attached to their counsel’s declaration as Exhibit A no later than five (5) court days hereof.



Case Number: ****4017    Hearing Date: January 07, 2020    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

KEVIN TASHMAN,

Plaintiff,

v.

200 N. FAIR OAKS, LLC, ET AL.,

Defendants.

Case No.: ****4017

ORDER TRANSFERRING COMPLICATED PERSONAL INJURY (PI) CASE TO AN INDEPENDENT CALENDAR (IC) COURT

After review of the court file, the Court makes the following order:

Department 3 of the Personal Injury Court has determined that the above entitled action is complicated based upon the number of pretrial hearings and/or the complexity of the issues presented.

AT THE DIRECTION OF DEPARTMENT 1:

This case is hereby transferred and reassigned to the following Independent Calendar Court in THE NORTH CENTRAL DISTRICT, JUDGE CURTIS KIN presiding in DEPT. E of the GLENDALE Courthouse, for all purposes except trial. Department 1 hereby delegates to the Independent Calendar Court the authority to assign the cause for trial to that Independent Calendar Court.

The Order is signed and filed this date, and incorporated herein by reference. Any pending motions or hearings, including trial and status conferences, will be reset, continued or vacated at the direction of the newly assigned Independent Calendar court.

Upon receipt of this notice, counsel for Plaintiff shall give notice to all parties of record.

DATED: January 7, 2020 ___________________________

Hon. Jon Takasugi

Judge of the Superior Court



Case Number: ****4017    Hearing Date: December 11, 2019    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

KEVIN TASHMAN,

Plaintiff(s),

vs.

200 N. FAIR OAKS, LLC, ET AL.,

Defendant(s).

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Case No.: ****4017

[TENTATIVE] ORDER DENYING MOTION TO COMPEL

Dept. 3

1:30 p.m.

December 11, 2019

Plaintiff scheduled the hearing on this motion to compel for 11/18/19.  Because the parties had an Informal Discovery Conference scheduled for 11/14/19, the Court continued the hearing on the motion to 12/11/19.  The parties participated in an IDC on 11/14/19, and the issues were resolved.  On 11/27/19, Defendant filed an opposition brief indicating Defendant has complied with all obligations per the IDC discussion.  Any reply to the opposition was due on or before 12/04/19.  The Court has not received reply papers.  In light of Defendant’s representation that it has complied with the parties’ agreement, and in light of the lack of reply, the motion to compel is denied.  No sanctions are imposed.

Plaintiff is ordered to give notice. 

Parties who intend to submit on this tentative must send an email to the court at sscdept3@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.  


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