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

  • 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

KOPPLE JOSHUA L. ESQ.

FINKEL JAKE DANIEL ESQ.

Defendant Attorneys

REDFIELD RYAN P. ESQ.

SINGER SYDNEE ROBIN ESQ.

GRIFFIN JOHN THOMAS ESQ.

ZYGELMAN CORINE ESQ.

VALENTINE CAROLYN ANN ESQ.

 

Court Documents

NOTICE OF CHANGE OF FIRM NAMES

4/16/2018: NOTICE OF CHANGE OF FIRM NAMES

AMENDMENT TO COMPLAINT

5/22/2018: AMENDMENT TO COMPLAINT

SUMMONS

5/22/2018: SUMMONS

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

PROOF OF SERVICE SUMMONS

7/3/2018: PROOF OF SERVICE SUMMONS

AMENDMENT TO COMPLAINT

7/13/2018: AMENDMENT TO COMPLAINT

ANSWER TO COMPLAINT

7/17/2018: ANSWER TO COMPLAINT

CROSS-COMPLAINT FOR 1. IMPLIED INDEMNITY; 2. CONTRIBUTION; AND 3. DECLARATORY RELIEF 4. EXPRESS INDEMNTIY/BREACH OF CONTRACT

7/17/2018: CROSS-COMPLAINT FOR 1. IMPLIED INDEMNITY; 2. CONTRIBUTION; AND 3. DECLARATORY RELIEF 4. EXPRESS INDEMNTIY/BREACH OF CONTRACT

SUMMONS CROSS-COMPLAINT

7/17/2018: SUMMONS CROSS-COMPLAINT

Unknown

7/17/2018: Unknown

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

Substitution of Attorney

10/31/2018: Substitution of Attorney

Order

12/19/2018: Order

Minute Order

12/19/2018: Minute Order

Ex Parte Application

12/19/2018: Ex Parte Application

Notice of Ruling

12/21/2018: Notice of Ruling

37 More Documents Available

 

Docket Entries

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

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

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

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

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

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

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

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

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

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  • 04/22/2019
  • Docketat 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
  • DocketDEFENDANTS VIDAL RODRIGUEZ AND LUCIA RODRIGUEZ'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT; ETC.

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

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  • 06/23/2017
  • DocketPROOF OF SERVICE SUMMONS

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

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  • 06/13/2017
  • DocketPROOF OF SERVICE SUMMONS

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

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  • 06/13/2017
  • DocketPROOF OF SERVICE SUMMONS

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

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

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  • 02/24/2017
  • DocketSUMMONS

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Tentative Rulings

Case Number: ****2122    Hearing Date: May 24, 2021    Dept: 61

Defendant, Cross-Complainant, and Cross-Defendant G. Herman & Sons, Inc.’s Motion to Bifurcate Trial is DENIED.

I. MOTION TO BIFURCATE

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 cause of action . . . or of any separate issue . . . .” (Code Civ. Proc., ; 1048, subd. (b).) Additionally, “[t]he 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 any part thereof in the case . . . .” (Code Civ. Proc., ; 598.)

It is within the discretion of the court to bifurcate issues or order separate trials of actions, such as for breach of contract and bad faith, and to determine the order in which those issues are to be decided.” (Royal Surplus Lines Ins. Co., Inc. v. Ranger Ins. Co. (2002) 100 Cal.App.4th 193, 205.) “The major objective of bifurcated trials is to expedite and simplify the presentation of evidence.” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 888.)

Herman moves to bifurcate trial on the issues of liability and damages. Herman argues that the issue of liability is an essential prerequisite to the issue of damages, and that the liability issue may be tried in a few days as a straightforward matter, while the issue of Bernal’s medical damages will require multiple witnesses and complex testimony. (Motion at p. 6.) Herman’s counsel testifies that the liability phase is expected to involve a few witnesses (“Plaintiff, Plaintiff’s sister (Liliana Bernal, Lucia Pimental, the Defendants, the City, and a few experts”) while the damages phase could involve seven days of trial regarding the $342,000 in medical bills claimed by Plaintiff for her knee arising from the incident. (Zygleman Decl. ¶¶ 6–8.)

Herman points out that Plaintiff “has designated three retained damages experts and two retained liability experts, while she has designated three non-retained damages experts and two non-retained liability experts.” (Zygelman Decl. ¶ 9.) Herman’s counsel testifies that Defendants Bush and Parker have designated 70 non-retained experts, and that the Defendants (except the City) have shared damages experts in this case. (Zygelman Decl. ¶ 12.) Herman opines in its motion, “Although not all 70 treating physicians will be called, it is anticipated that a majority will be.” (Motion at pp. 7–8.)

Plaintiff in opposition contends that the damages portion of the case is not so complex as Herman’s characterization, and argues that it is liability, not damages, that will occupy the most attention at trial — meaning that bifurcation of the damages issue will not save much time. (Opposition at p. 2.) Bernal questions whether Herman or the other defendants truly intend to call 36 physicians on the issue of Plaintiff’s knee injury, particularly when (in Bernal’s characterization) the parties’ experts agree that Bernal requires knee-replacement surgery, and the only issues are the necessary extent of revisions to that surgery and Plaintiff’s life-care plans going forward. (Opposition at p. 4.) Bernal also notes that four witnesses — Bernal, her sister, and two first responders — would have to be called to the stand twice, once each for both liability and damage phases of the trial. (Opposition at p. 5.)

Herman has not made a showing that bifurcation would expedite proceedings here. The argument that the damages issue will be so complex as to require the testimony of dozens of medical witnesses consists of no substantive argument as to the complexity of the issues involved, but rather a counting of the names of potential un-retained witnesses without any explanation as to why their testimony will be necessary. Counted against this is the risk that bifurcation will slow rather than speed proceedings, as a second trial on damages — against any of the four defendants — would require a second round of opening and closing arguments, jury instructions, and deliberation. Herman has not shown that the benefits of a bifurcated trial on damages and liability outweigh the risks.

Herman also argues that bifurcation of trial will prevent the damages issue from coloring the jury’s decision on the liability question, potentially resulting in an unfair trial. (Motion at p. 10.) But the risk of this outcome may be reduced by instructing the jury not to make such an inference. (See People v. Lopez (2020) 46 Cal.App.5th 505, 525.)

Accordingly, the motion to bifurcate is DENIED.



Case Number: ****2122    Hearing Date: May 21, 2021    Dept: 61

Defendant, Cross-Complainant, and Cross-Defendant G. Herman & Sons, Inc.’s Motion to Reopen Discovery and Motion to Compel Deposition of Cross-Defendant City of Los Angeles’s Person Most Knowledgeable are both GRANTED.

Herman to provide notice.

I. MOTION TO REOPEN DISCOVERY

The discovery cut-off date is 30 days before the original trial date, and the motion cut-off date is 15-days before the original trial date. (see Code Civ. Proc., ; 2024.020, subd. (a).) “Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings.” (Code Civ. Proc., ; 2024.020, subd. (b).)

A party may move to take discovery or have a discovery motion heard after the cut-off date, as follows:

(a) On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following:

(1) The necessity and the reasons for the discovery.

(2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.

(3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.

(4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.

(Code Civ. Proc., ; 2024.050, subds. (a), (b).)

On June 21, 2018, the parties stipulated to continue trial to February 26, 2019, along with all discovery dates. (6/21/2018 Stipulation and Order.) On December 19, 2018, the court again ordered trial continued to August 27, 2019, with the discovery cutoff dates following the trial. (12/19/2018 Order.) This trial date was vacated on May 10, 2019, on representations that Herman was bringing a motion to file a cross-complaint against the City of Los Angeles. (5/10/2019 Order.) On August 20, 2019, this court ordered trial to be scheduled for March 2, 2021. (8/20/2019 Order.) Trial was continued on January 28, 2021, to take place on August 3, 2021. (1/28/2021 Order.)

Herman moves to compel the deposition of the person most knowledgeable (PMK) for the City’s Bureau of Street Services, on the grounds that it has been attempting to secure this deposition since September 18, 2019, but that the City has stated that the appropriate person is not available until November of this year, after trial is currently scheduled. (Zygelman Decl. ¶¶ 4, 18.) The parties previously agreed to deposition on February 18, 2021, but this deposition had to be rescheduled after counsel for Plaintiff provided notice of unavailability for religious reasons. (Zygelman Decl. ¶ 12.)

The City did produce a PMK for a deposition that took place on April 7, 2021 — William Cadena (Cadena) — but this witness could not testify on a number of topics contained in the deposition notice, but was a night employee and could not testify to the City’s policies and practices with regard to daytime street vendors, as are at issue in the present case. (Zygelman Decl. ¶ 19.)

Good cause exists to reopen discovery here. The City is a party to this case, and the testimony of its PMK regarding policies and practices as to vendors in the area and time of Bernal’s injury is relevant. Herman has been reasonably diligent in pursuing depositions on this issue. Moreover, although the City represented in informal correspondence that the proper PMK was not available, it has not submitted an opposition to the present motion arguing so. This suggests that Herman’s desired relief may be given without further continuance of trial or prejudice to the parties.

Accordingly, the motion to reopen discovery to allow Herman’s motion to compel to be heard is GRANTED.

II. MOTION TO COMPEL DEPOSITION

A party may make a motion compelling a witness’s deposition “after service of a deposition notice” if that witness “fails to appear for examination, or to proceed with it.” (Code Civ. Proc. ; 2025.450, subd. (a).) The motion must include a meet-and-confer declaration and show good cause for the discovery sought. (Code Civ. Proc. ; 2025.450, subd. (b)(1), (2).)

As discussed above, Herman moves to compel the deposition of City’s PMKs on all topics within 15 days and before the current August 3 trial date. (Motion at p. 2.) Alternatively, Herman moves to continue the trial date to allow the deposition to be taken. (Ibid.)

Bernal has submitted an opposition to the motion, limited to Herman’s alternative request for a continuance of trial, noting that trial has been repeatedly been continued in this case. (Opposition at p. 2.)

Herman has shown good cause for why the deposition ought to be taken. Once again, City has submitted no opposition defending its contention that the appropriate PMK cannot be produced until November, and there is no reason to believe the deposition cannot be accomplished before the currently scheduled trial date. This being the case, there is no need to order a continuance.

The motion to compel deposition is therefore GRANTED.



Case Number: ****2122    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: ****2122    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.



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