This case was last updated from Los Angeles County Superior Courts on 05/29/2019 at 02:28:49 (UTC).

LILIANA BERNAL VS VIDAL RODRIGUEZ ET AL

Case Summary

On 02/28/2017 LILIANA BERNAL filed a Personal Injury - Other Personal Injury lawsuit against VIDAL RODRIGUEZ. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is GEORGINA T. RIZK. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2122

  • Filing Date:

    02/28/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

GEORGINA T. RIZK

 

Party Details

Plaintiff and Petitioner

BERNAL LILIANA

Defendants and Respondents

RODRIGUEZ VIDAL

PARKER CATHERINE

RODRIGUEZ LUCIA

DOES 1 TO 100

BUSH HILARY

S. D. HERMAN CO. INC. DOE 1

G. HERMAN & SONS INC. DBA S. D. HERMAN

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

KOPPLE JOSHUA

FINKEL JAKE DANIEL ESQ.

KOPPLE JOSHUA L. ESQ.

Defendant Attorneys

GRIFFIN JOHN THOMAS ESQ.

REDFIELD RYAN P. ESQ.

ZYGELMAN CORINE ESQ.

VALENTINE CAROLYN ANN ESQ.

SINGER SYDNEE ROBIN ESQ.

 

Court Documents

ORDER AND STIPULATION TO CONTINUE TRIAL FSC AND RELATED MOTION DISCOVERY DATES PERSONAL INJURY COURTS ONLY CENTRAL DISTRICT

6/21/2018: ORDER AND STIPULATION TO CONTINUE TRIAL FSC AND RELATED MOTION DISCOVERY DATES PERSONAL INJURY COURTS ONLY CENTRAL DISTRICT

ANSWER TO COMPLAINT

7/17/2018: ANSWER TO COMPLAINT

CROSS-DEFENDANTS,VIDAL RODRIGUEZ AND LUCIA RODRIGUEZ' ANSWER TO CROSS-COMPLAINT OF G HERMAN AND SONS, INC. DBA S. D. HERMAN CO. (SUED AS DOE 1)

7/27/2018: CROSS-DEFENDANTS,VIDAL RODRIGUEZ AND LUCIA RODRIGUEZ' ANSWER TO CROSS-COMPLAINT OF G HERMAN AND SONS, INC. DBA S. D. HERMAN CO. (SUED AS DOE 1)

Unknown

7/30/2018: Unknown

NOTICE OF CHANCE OF MAILING ADDRESS

8/20/2018: NOTICE OF CHANCE OF MAILING ADDRESS

Order

12/19/2018: Order

Ex Parte Application

3/6/2019: Ex Parte Application

Notice of Ruling

3/12/2019: Notice of Ruling

Notice of Case Management Conference

4/23/2019: Notice of Case Management Conference

Motion to Compel Further Discovery Responses

5/13/2019: Motion to Compel Further Discovery Responses

PROOF OF SERVICE SUMMONS

6/13/2017: PROOF OF SERVICE SUMMONS

Unknown

6/26/2017: Unknown

SUMMONS CROSS-COMPLAINT

6/26/2017: SUMMONS CROSS-COMPLAINT

PROOF OF SERVICE OF SUMMONS

7/14/2017: PROOF OF SERVICE OF SUMMONS

PROOF OF SERVICE SUMMONS

7/20/2017: PROOF OF SERVICE SUMMONS

ANSWER TO COMPLAINT

7/25/2017: ANSWER TO COMPLAINT

PLAINTIFF'S NOTICE OF ASSOCIATION OF COUNSEL

7/25/2017: PLAINTIFF'S NOTICE OF ASSOCIATION OF COUNSEL

SUBSTITUTION OF ATTORNEY

10/6/2017: SUBSTITUTION OF ATTORNEY

37 More Documents Available

 

Docket Entries

  • 05/13/2019
  • Separate Statement; Filed by Liliana Bernal (Plaintiff)

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  • 05/13/2019
  • Motion to Compel Further Discovery Responses; Filed by Liliana Bernal (Plaintiff)

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  • 05/10/2019
  • at 09:00 AM in Department 61; Case Management Conference - Held - Continued

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  • 05/10/2019
  • Minute Order ( (Case Management Conference)); Filed by Clerk

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  • 05/09/2019
  • Case Management Statement; Filed by Vidal Rodriguez (Defendant); Lucia Rodriguez (Defendant)

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  • 05/07/2019
  • Case Management Statement; Filed by Liliana Bernal (Plaintiff)

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  • 04/30/2019
  • Case Management Statement; Filed by G. HERMAN & SONS, INC., dba S. D. HERMAN (Defendant)

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  • 04/25/2019
  • Case Management Statement; Filed by Hilary Bush (Defendant); Catherine Parker (Defendant)

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  • 04/23/2019
  • Notice of Case Management Conference; Filed by Clerk

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  • 04/22/2019
  • at 1:30 PM in Department 2, Georgina T. Rizk, Presiding; Hearing on Motion for Leave to Amend (Motion for Leave to Amend Cross-Complaint) - Not Held - Vacated by Court

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63 More Docket Entries
  • 06/26/2017
  • DEFENDANTS VIDAL RODRIGUEZ AND LUCIA RODRIGUEZ'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT; ETC.

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  • 06/23/2017
  • Proof-Service/Summons; Filed by Liliana Bernal (Plaintiff)

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  • 06/23/2017
  • PROOF OF SERVICE SUMMONS

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  • 06/13/2017
  • Proof-Service/Summons; Filed by Liliana Bernal (Plaintiff)

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  • 06/13/2017
  • PROOF OF SERVICE SUMMONS

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  • 06/13/2017
  • Proof-Service/Summons; Filed by Liliana Bernal (Plaintiff)

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  • 06/13/2017
  • PROOF OF SERVICE SUMMONS

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  • 02/28/2017
  • Complaint; Filed by Liliana Bernal (Plaintiff)

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  • 02/24/2017
  • COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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  • 02/24/2017
  • SUMMONS

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Tentative Rulings

Case Number: BC652122    Hearing Date: February 10, 2020    Dept: 61

Plaintiff Liliana Bernal’s Motion for Reconsideration of this Court’s January 7, 2020 order granting Defendants Hilary Bush and Catherine Parker’s Motion for Summary Judgment is GRANTED, and this court’s January 7, 2020 order granting Defendants Hilary Bush and Catherine Parker’s Motion for Summary Judgment is DENIED.

  1. MOTION FOR RECONSIDERATION

When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

(Code Civ. Proc. § 1008, subd. (a).)

“The burden under section 1008 is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 213.)

Bernal argues that the January 7, 2020 order granting Parker and Bush’s motion for summary judgment should be reconsidered because deposition testimony from Herman, taken after the motion was heard in October 2019, revealed that Herman had knowledge of facts related to the slipping hazard forming the basis for this complaint, and that this knowledge is attributed to his principals, Parker and Bush, as a matter of law. (Motion at pp. 3–4; Hall v. Rockcliff Realtors (2013) 215 Cal.App.4th 1134, 1141 [“The agent's actual or constructive knowledge of a dangerous condition is imputed to his or her principal, the property owner, who shares with the agent liability for damages proximately caused by a breach of this duty.”].)

Bush and Parker object that Bernal was not diligent in seeking or taking Herman’s deposition and as such may not seek reconsideration based on new evidence. (Opposition at pp. 5–7.) They also argue, in an echo of their motion for summary judgment, that they owed Bernal no duty for defects not on their property. (Opposition at pp. 9–10.)

Defendants argue that Bernal was not diligent in taking Herman’s deposition because although Herman has been a party to this matter since July 2018, Bernal did not take his deposition until December 2019, long after the motion for summary judgment was heard in October of the same year. (Opposition at pp. 5–6.) Bernal in her motion argues that she previously sought ex parte leave for additional time to conduct discovery in September 2019, but the application was denied. (Motion at p. 6.) Bernal also points to her request for additional time, raised in her opposition to the motion for summary judgment. (Motion at p. 6.) Defendants respond that the first notice of deposition for Herman was filed only in November 2019. (Opposition at p. 6.)

Bernal in reply responds that Herman’s deposition was delayed by its substitution of counsel on October 31, 2018, following which the parties stipulated to continue trial to August 2019. (Kopple Decl. ¶ 2.) Bernal represents that she first requested dates for Herman’s deposition on February 15, 2019, but that the efforts to obtain deposition were delayed by Herman’s addition of the City of Los Angeles as a defendant to the case. (Kopple Decl. ¶¶ 3–4.) Parker and Bush filed their motion for summary judgment immediately after the City answered Herman’s cross-complaint, and declined Bernal’s invitation to continue the motion. (Kopple Decl. ¶¶ 8–9.) After efforts to continue the motion were rebuffed, the parties agreed to schedule the deposition of Herman for December 4, 2019. (Kopple Decl. ¶ 9.) Bernal attributes the late scheduling to the difficulty of scheduling a mutually agreeable date among five law firms. (Kopple Decl. ¶ 10.)

Parker and Bush point to the case New York Times Co. v. Superior Court, in which the court of appeal reversed a trial court’s grant of reconsideration for a motion for summary judgment based on a deposition taken after the motion hearing, on the grounds that the testimony was “available to [moving party] throughout the discovery process and was easily obtainable.” (New York Times Co., supra, 135 Cal.App.4th at p. 213.) Although the party seeking reconsideration argued that they were not aware of the testimony until they took the deposition, they also stated that they did not present the evidence because they thought the evidence they had was sufficient to defeat summary judgment. (Id. at pp. 213–14.)

This case is different from New York Times. Unlike that case, Bernal has consistently sought to obtain the deposition testimony at issue before the motions were heard, attempting to schedule continuances with Parker and Bush and with the court, both of which declined the request. Bernal has also presented reasonable explanations for the failure to take Herman’s testimony, such as Herman’s substitution of counsel in late 2018, the addition of the City as a defendant in 2019, and the inability to schedule an early deposition thereafter, at matter which Bernal consistently sought to rectify. The court concludes that Bernal’s motion does not fail for lack of diligence.

The Herman testimony that Bernal argues justifies reconsideration of the Parker and Bush motion led the court to deny Herman’s own motion for summary judgment, based on the following reasoning:

The court concludes that the above evidence creates triable issues of fact as to whether Herman owed and breached its duty of care to Bernal. First, based on the evidence presented, it may be found that Bernal does not attempt to hold Herman liable for the conduct of unaffiliated third parties on a public sidewalk, but conduct that Herman itself invited and abetted by allowing street vendors to use the premises for eating space (and sometimes food-preparation space) for their customers, primarily through picnic tables set up in the premises parking lot. Evidence also may be taken to show that Herman was aware of the use of the premises for this purpose, as he was made aware of the tables and the vendors during his inspections. Much as the property owner and meat-delivery men collaborated to create the sidewalk slipping hazard in Kopfinger, so may it be found that the tenant and the street vendors here collaborated to create the sidewalk slipping hazard. The evidence may further suggest to a reasonable trier of fact that Herman was aware of this collaboration, given the vendors and tables that he witnessed upon his inspections and repeated drives past the premises. And finally, given the photographic and video evidence presented by Bernal, a reasonable trier of fact may conclude that the slip hazards also would have been visible when Herman inspected the property.

(1/14/2020 Ruling at p. 8.) The court previously granted Parker and Bush’s motion on the grounds that they had no actual knowledge of the slipping hazard and had no special duty to inspect the premises that they had leased to a commercial tenant. (1/7/2020 Ruling at pp. 7–8.) If knowledge of the agent is attributed to the principal, then it would seem that the same facts creating triable issues of fact as to Herman create identical issues for Parker and Bush. (See Hall, supra, 215 Cal.App.4th at p. 1141.)

Parker and Bush’s legal arguments in the present motion are much like those addressed by the court in their motion for summary judgment, to the effect that (1) they lacked knowledge of the hazard and (2) they are not responsible for maintaining city sidewalks. (Opposition at pp. 7–9.) But the evidence that Bernal presents here creates triable issues as to the first claim, and the court has already described in previous rulings how the street vendors who likely created the slip hazard on the sidewalk were not strictly a street operation, but were (according to Bernal’s evidence) allowed or invited to use or erect dining areas for their customers on Parker and Bush’s property. Thus neither contention provides a good reason for denying reconsideration here.

Parker and Bush further argue that they lacked control over the premises, based on language in this court’s ruling on their summary judgment motion to the effect that they had no special degree of control over the actions of their commercial tenant such that they had an affirmative duty to inspect the premises. (Opposition at pp. 9–10.) But while the lease did give rise to a duty to inspect, it did give Parker and Bush a contractual right to inspect the premises and to enforce the terms of the lease, including the lessee’s contractual obligation to maintain the facilities (and adjacent sidewalk) in “good order, condition, and repair,” through default procedures. (See Bernal’s 10/15/2019 Opposition, Exh. G.) And although Parker and Bush now argue that they could not have compelled the street vendors to move elsewhere, Bernal’s evidence raises issues as to whether they could have denied the street vendors use of their property for dining facilities, or instituted cleaning or avoidance procedures of their own for the hazards created by collaboration with the vendors.

Parker and Bush also argue that they committed no affirmative act for which negligence may be found. (Opposition at pp. 12–15.) But this argument is effectively addressed by the holding of Kopfinger v. Grand Central Public Market (1964) 60 Cal.2d 852: “When the activities of a business enterprise, conducted for its economic benefit, are such as to create a hazard on the public sidewalk, of which fact the defendants know or have reason to know, and particularly when, as here, the sidewalk is immediately adjacent to the nonenclosed aisles of a large supermarket catering to the passing pedestrian traffic, there exists a duty to protect from injury those so endangered.” (Id. at p. 857.) Additionally, Parker and Bush neglect that special duties to act may become incumbent upon them as owners of property when they become aware of hazards originating from that property. See Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158 [“Premises liability is grounded in the possession of the premises and the attendant right to control and manage the premises; accordingly, mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.”].)

Parker and Bush finally argue that the factors announcedin Rowland v. Christian do not favor the creation of a duty here:

[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.

(Rowland v. Christian (1968) 69 Cal.2d 108, 113.) Parker and Bush’s factorial argument is that street vendors are not inherently dangerous and that municipal ordinances allow them to vend in most sidewalk areas. (Opposition at p. 15.) Yet this argument neglects the duties that an adjacent property owner might owe, not purely as a property owner, but when they take affirmative steps to abet the presence of an adjacent vendor, whom they have reason to know leaves slipping hazards in public sidewalks. When triable issues of fact exist as to these issues, the Rowland analysis does not lie in Parker and Bush’s favor.

Accordingly, the Motion for Reconsideration is GRANTED, and this court’s January 7, 2020 order granting Defendants Hilary Bush and Catherine Parker’s Motion for Summary Judgment is DENIED.

Case Number: BC652122    Hearing Date: November 25, 2019    Dept: 61

Plaintiff Liliana Bernal’s Motion to Compel Further Responses to Requests for Production of Documents from Defendants Hilary Bush and Catherine Parker is DENIED.

  1. MOTION TO COMPEL FURTHER PRODUCTION OF DOCUMENTS

“A party may demand that any other party produce . . . a document that is in the possession, custody, or control of the party on whom the demand is made.” (Code Civ. Proc., § 2031.010(b).) The demanding party may move for an order compelling further response to the demand if the demanding party deems that (1) a statement of compliance with the demand is incomplete, (2) a representation of inability to comply is inadequate, incomplete, or evasive, or (3) an objection in the response is without merit or too general. (Code Civ. Proc., § 2031.310(a).) “The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand,” and “[t]he motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2031.310(b).)

Bernal moves to compel further responses to Requests for Production No. 79 and 80, which asked Bush and Parker to produce communications between themselves and their property manager G. Herman (“Herman”), and between themselves and their tenants in the subject property. (Motion at pp. 3–4.) Bush and Parker responded with objections based on vagueness, relevance, privacy, and attorney-client privilege, and stated that no documents to which objections had been raised would be produced. (Motion at pp. 3–4.) Bernal argues that, although Bush and Parker have produced documents, they have produced them subject to redaction on grounds of privacy and privilege, and such redactions should be removed. (Motion at pp. 6–7.)

The court preliminarily finds that Bernal has shown good cause for the requests at issue, since communications between Bush and Parker and their tenants and property manager are relevant to show whether and what they knew of potential hazards on their property.

In determining whether privacy interests warrant restricting discovery, the court must perform a balancing of interests: “If there is a reasonable expectation of privacy and the invasion of privacy is serious, then the court must balance the privacy interest at stake against other competing or countervailing interests, which include the interest of the requesting party, fairness to the litigants in conducting the litigation, and the consequences of granting or restricting access to the information.” (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1251.) Individuals possess a right of privacy in their financial information. (See Hecht, Solberg, Robinson & Bagley LLP v. Superior Court (2006) 137 Cal.app.4th 579, 593–94 [“The right to privacy in disclosure of financial information affects the scope of discovery.”].)

Bernal objects that Parker and Bush have redacted items “that show things like the cost of roof maintenance or rent that Vidal Produce is paying.” (Motion at p. 6.) Defendants have agreed to produce documents showing repair costs. (Opposition at p. 2.) The court agrees that documents reflecting the financial relationship between Bush, Parker and their tenants and managers possesses at least some minimum privacy protection afforded to individual financial information under the above authority. And although Bernal has shown good cause for the overall categories of documents sought, she has not offered a good reason for why information related to the redacted financial matters should be disclosed, or how they are relevant to proving her case.

Bernal also argues that matters in communications between Herman and Defendants should not be redacted pursuant to the attorney-client privilege, because neither Herman nor Defendants acted as the other’s attorney. (Motion at pp. 2–4.)

The attorney-client privilege attaches to confidential communications between an attorney and the client. (See DP Pham, LLC v. Cheadle 92016) 246 Cal.App.4th 653, 664.) The privilege extends to communications between a client’s agent and the attorney. (See Selten v. Hyon (2007) 152 Cal.App.4th 463, 469 [“By including “authorized representative” in the definition of “client,” the statute extends the privilege to cover not only communications directly between the client and the attorney but also communications between the client's agents and the attorney.”].)

The privilege applies to the redacted communications at issue here. Bush and Parker’s counsel testifies that she and their prior counsel communicated with Herman as Bush and Parker’s agent on matters related to this litigation, given Bush and Parker’s absentee status and Herman’s greater familiarity with the property at issue. (Valentine Decl. ¶ 3.) This arrangement lasted until conflicts became apparent to the parties and Herman retained separate counsel. (Valentine Decl. ¶ 3.) The communications at issue thus do not escape the privilege merely because they are between Herman and Defendants, because those communications were effectively relays of information, inquiries and answers, between an attorney and client, with Herman as a go-between. (See City & County of San Francisco v. Superior Court (1951) 37 Cal.2d 227, 237 [privilege “includes communications through an interpreter, and also communications through a messenger or any other agent of transmission, as well as communications originating with the client's agent and made to the attorney”].)

Bernal argues that certain documents produced by Herman without redaction indicate that Defendants’ redactions are overzealous and cut beyond the privilege into legitimately discoverable matters. (Motion at pp. 8–9.) But the emails presented actually favor Defendants; the content shows Defendants inquiring with Herman about the status of the case and asking what they should do regarding certain litigation-related matters. (Kopple Decl. Exh. C.) These emails are consistent with the evidence presented by Defendants: Herman acting as a go-between for Defendants and their counsel regarding matters of legal advice related to this litigation.

Accordingly, the Motion to Compel Further is DENIED.