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This case was last updated from Los Angeles County Superior Courts on 04/12/2021 at 09:18:32 (UTC).

LISA GOODRICH VS GUILLERMO EDUARDO PADILLA JR ET AL

Case Summary

On 03/21/2018 LISA GOODRICH filed a Personal Injury - Motor Vehicle lawsuit against GUILLERMO EDUARDO PADILLA JR. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judges overseeing this case are GEORGINA T. RIZK, KRISTIN S. ESCALANTE, MARK A. BORENSTEIN, WILLIAM D. STEWART and SERENA R. MURILLO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9002

  • Filing Date:

    03/21/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Motor Vehicle

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

GEORGINA T. RIZK

KRISTIN S. ESCALANTE

MARK A. BORENSTEIN

WILLIAM D. STEWART

SERENA R. MURILLO

 

Party Details

Plaintiffs, Petitioners and Cross Defendants

GOODRICH LISA

GOODRICH ERIC

Defendants, Respondents and Cross Plaintiffs

GREENWOOD MOTOR LINES INC.

DOES 1-25

PADILLA GUILLERMO EDUARDO JR.

R+L CARRIERS

CARRIERS R+L

GREENWOOD MOTOR LINES INC. DBA R+L CARRIERS A SOUTH CAROLINA CORPORATION

Other

ALDERLAW PC

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

GLOTZER LAW PC

GLOTZER JOSHUA WILLIAM ESQ.

FOLINSKY MARNI B. ESQ.

DESANTIS DANIEL SHELDON ESQ.

ALDER C MICHAEL ESQ.

MCELROY STEPHEN K

MCELROY STEPHEN KELLY ESQ.

MCELROY STEPHEN KELLEY

PLESSALA BRIAN MARTIN

Defendant and Respondent Attorneys

SHIMKIN DAVID A. ESQ.

SHIMKIN DAVID ALLEN ESQ.

Plaintiff and Cross Defendant Attorneys

PLESSALA BRIAN MARTIN

WAINFELD GABRIEL HORACE

WAINFELD GABRIEL HORACE ESQ.

 

Court Documents

Case Management Statement

3/8/2021: Case Management Statement

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: TRANSFER AND REASSIGNMENT OF COMPLICATED PERS...) OF 09/29/2020

9/29/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER RE: TRANSFER AND REASSIGNMENT OF COMPLICATED PERS...) OF 09/29/2020

Reply - REPLY DEFENDANTS' REPLY IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES; DECLARATION OF DAVID A. SHIMKIN

8/25/2020: Reply - REPLY DEFENDANTS' REPLY IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES; DECLARATION OF DAVID A. SHIMKIN

Opposition - OPPOSITION THIRD-PARTY DEPONENT ERIK S. VELIES OPPOSITION TO DEFENDANTS GUILLERMO EDUARDO PADILLAS AND GREENWOOD MOTOR LINES, INC. D/B/A R+L CARRIERS MOTION TO COMPEL ERIK VELIE, ESQ.

8/20/2020: Opposition - OPPOSITION THIRD-PARTY DEPONENT ERIK S. VELIES OPPOSITION TO DEFENDANTS GUILLERMO EDUARDO PADILLAS AND GREENWOOD MOTOR LINES, INC. D/B/A R+L CARRIERS MOTION TO COMPEL ERIK VELIE, ESQ.

Joinder to Motion - JOINDER TO MOTION NOTICE OF JOINDER IN THIRD PARTY DEPONENT ERIKS. VELIE'S OPPOSITION TO DEFENDANTS/CROSSCOMPLAINANTS' MOTION TO COMPEL ERIKS. VELIE TO PROVIDE FURTHER ANSWER TO DE

8/21/2020: Joinder to Motion - JOINDER TO MOTION NOTICE OF JOINDER IN THIRD PARTY DEPONENT ERIKS. VELIE'S OPPOSITION TO DEFENDANTS/CROSSCOMPLAINANTS' MOTION TO COMPEL ERIKS. VELIE TO PROVIDE FURTHER ANSWER TO DE

Motion to Compel Further Discovery Responses

6/16/2020: Motion to Compel Further Discovery Responses

Motion for Summary Adjudication

5/4/2020: Motion for Summary Adjudication

Separate Statement

5/4/2020: Separate Statement

Minute Order - MINUTE ORDER (COURT ORDER RE: CONTINUANCE OF THE 04/29/2020 HEARING ON MOT...)

4/15/2020: Minute Order - MINUTE ORDER (COURT ORDER RE: CONTINUANCE OF THE 04/29/2020 HEARING ON MOT...)

Substitution of Attorney

2/24/2020: Substitution of Attorney

Declaration - DECLARATION IN SUPPORT

2/10/2020: Declaration - DECLARATION IN SUPPORT

Separate Statement

2/10/2020: Separate Statement

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FILED BY CROSS-DEFENDANTS, LI...)

12/4/2019: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION FILED BY CROSS-DEFENDANTS, LI...)

Opposition - OPPOSITION OPPOSITION TO EX-PARTE APPLICATION TO CONTINUE TRIAL

12/3/2019: Opposition - OPPOSITION OPPOSITION TO EX-PARTE APPLICATION TO CONTINUE TRIAL

Answer

9/11/2019: Answer

Notice - NOTICE DEMAND TO EXCHANGE EXPERT WITNESS INFORMATION

7/15/2019: Notice - NOTICE DEMAND TO EXCHANGE EXPERT WITNESS INFORMATION

Cross-Complaint

6/26/2019: Cross-Complaint

Reply - REPLY REPLY ISO MOTION FOR LEAVE

6/19/2019: Reply - REPLY REPLY ISO MOTION FOR LEAVE

128 More Documents Available

 

Docket Entries

  • 04/29/2021
  • Hearing04/29/2021 at 08:30 AM in Department D at 600 East Broadway, Glendale, CA 91206; Case Management Conference

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  • 04/06/2021
  • DocketNotice (NOTICE OF CONTINUANCE OF CASE MANAGEMENT CONFERENCE/TRIALS SETTING CONFERENCE); Filed by Eric Goodrich (Cross-Defendant)

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  • 04/02/2021
  • Docketat 09:00 AM in Department D; Hearing on Motion for Summary Adjudication (of Cross-Complaint Claims for Express Indemnification and Negligent Entrustment filed by Cross-Defendants Lisa Goodrich and Erik Goodrich) - Held - Motion Denied

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  • 04/02/2021
  • Docketat 09:00 AM in Department D; Case Management Conference - Not Held - Continued - Court's Motion

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  • 04/02/2021
  • Docketat 12:00 PM in Department D; Case Management Conference - Not Held - Clerical Error

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  • 04/02/2021
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore

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  • 04/02/2021
  • DocketCertificate of Mailing for ((Hearing on Motion for Summary Adjudication of Cross-Complaint...) of 04/02/2021); Filed by Clerk

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  • 04/02/2021
  • DocketMinute Order ( (Hearing on Motion for Summary Adjudication of Cross-Complaint...)); Filed by Clerk

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  • 03/23/2021
  • Docketat 08:30 AM in Department D; Case Management Conference - Not Held - Continued - Court's Motion

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  • 03/23/2021
  • DocketMinute Order ( (Case Management Conference)); Filed by Clerk

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177 More Docket Entries
  • 05/21/2018
  • DocketAnswer; Filed by Greenwood Motor Lines, Inc. (Defendant); Guillermo Eduardo Padilla, Jr. (Defendant); R+L Carriers (Legacy Party)

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  • 05/21/2018
  • DocketCIVIL DEPOSIT

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  • 05/21/2018
  • DocketDEFENDANTS GUILLERMO EDUARDO PADILLA, JR.'S AND GREENWOOD MOTOR LINES, INC. D/B/A R+L CARRIERS, A SOUTH CAROLINA CORPORATION'S ANSWER TO COMPLAINT; DEMAND FOR JURY TRIAL

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  • 05/09/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 05/09/2018
  • DocketProof-Service/Summons

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  • 04/20/2018
  • DocketProof-Service/Summons; Filed by Lisa Goodrich (Plaintiff)

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  • 04/20/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 03/21/2018
  • DocketCOMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL 1. (MOTOR VEHICLE - PERSONAL INJURIES AND PROPERTY DAMAGE)

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  • 03/21/2018
  • DocketComplaint; Filed by Lisa Goodrich (Plaintiff)

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  • 03/21/2018
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC699002    Hearing Date: April 2, 2021    Dept: D

TENTATIVE RULING
Calendar:                11
Case Number:        BC699002
Date:       4/2/2021 Trial date: None Set
Case Name:        Goodrich v. Padilla, et al. 
MOTION FOR SUMMARY ADJUDICATION
[CCP § 437c; CRC 3.1350 et seq.]
Moving Party: Cross-Defendants Erik Goodrich and Lisa Goodrich
Responding Party: Cross-Complainants Guillermo Eduardo Padilla, Jr. and Greenwood 
Motor Lines, Inc. dba R+L Carriers   
Relief Requested: 
Summary adjudication as to the cause of action for express indemnity in the cross-complaint Summary adjudication as to the claim for negligent entrustment in the first cause of action for negligence 
Causes of Action from Cross-Complaint 
1) Negligence 
2) Contractual Indemnity 
3) Equitable Indemnity 
4) Contribution
5) Declaratory Relief 
SUMMARY OF FACTS:
Plaintiff Lisa Goodrich alleges that on June 19, 2017, while she was a passenger in a vehicle which was entering an intersection, defendant Guillermo Eduardo Padilla, Jr., driving a tractor-trailer, made an unsafe left-hand turn, causing a massive collision, which totaled the vehicle where plaintiff was a passenger and caused a life-changing injury to plaintiff requiring a cervical fusion surgery.  The complaint alleges that defendant was negligent per se, and caused the collision in violation of the California Vehicle Code (failure to yield right of way while making left hand turn).  The complaint alleges that at the time of the collision, defendant was driving a truck owned by defendant R+L Carriers in the course and scope of defendant Padilla’s employment with defendant R+L Carriers.  
Defendants Padilla and R+L Carriers have filed a cross-complaint for negligence, contractual and equitable indemnity, contribution and declaratory relief against plaintiff and cross-defendant Eric Goodrich, alleging that Lisa Goodrich was the owner of the vehicle which defendant Eric Goodrich was driving with the permission and knowledge of Lisa Goodrich, and that cross-defendants negligently owned, operated and controlled the vehicle causing it to collide with the truck owned and operated by cross-complainants.   The cross-complaint alleges that at all relevant times Lisa Goodrich should have known that Eric Goodrich was incompetent and unfit to drive her vehicle. 
The cross-complaint also alleges that on April 6, 2018, Eric Goodrich entered into an agreement with R+L Carriers pursuant to which he agreed to indemnify, defend and hold harmless cross-defendants and to pay fees and costs in connection with any and all liabilities, damages, or losses arising out of or related to the Incident, so that cross-complainants are entitled to recover fees and costs in connection with Lisa Goodrich’s lawsuit.  
This matter was originally heard on February 5, 2021.  At the hearing, the court noted that on January 15, 2021, the court had granted a motion brought by the opposing parties to compel the deposition of the attorney for cross-defendant for the purpose of discovering information in connection with the showing in support of the motion.   The court also noted that on January 29, 2021, cross-complainants filed supplemental papers, purporting to attach a copy of a deposition transcript of a deposition conducted on January 21, 2021.  
The minute order provides:
“The deposition transcript has evidently not yet been signed by the deponent. 
The Declaration and transcript were filed and served on January 29, 2021, only five court days prior to the hearing on the motion. This has allowed insufficient time for the cross-defendants to respond to the submission. 
In addition, the “Supplemental Submission” does not include any analysis of the deposition testimony, but merely attaches it with certain portions bracketed, so that the Court has no guidance with respect to the significance of the testimony to the opposition. 
The hearing on the motion will accordingly be continued to April 2, 2021 at 9:00 a.m. for the limited purpose of permitting the filing of a Supplemental Opposition, limited to addressing the issues presented by the January 21, 2021 deposition testimony, and to permit the filing of a Supplemental Reply, also limited to the addressing the issues presented by the January 21, 2021 deposition testimony, and responding to the Supplemental Opposition.
The matter was set for supplemental opposition to be filed and served no later than March 19, 2021, and supplemental reply to be filed and served no later than March 23, 2021.
No supplemental briefing has been filed.  (The courtroom assistant has confirmed that no further briefing has been filed or served).
ANALYSIS:
CCP § 437c (p):  Burdens of Proof
Under CCP § 437c(p)(2) a cross-defendant “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.  Once the …cross-defendant has met that burden, the burden shifts to the …cross-complainant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.”
CCP § 437c(f)(1) provides that “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”
By this motion, cross-defendant Erik Goodrich seeks to show that cross-complainants will be unable to establish their second cause of action for contractual indemnity, and cross-defendant Lisa Goodrich seeks to show that cross-complainants will be unable to establish their negligent entrustment claim alleged in the first cause of action for negligence. 
Second Cause of Action—Contractual Indemnity
Cross-defendant Erik Goodrich argues that this cause of action cannot be established because the contractual indemnity clause at issue is not sufficient to release claims arising from the negligence of cross-complainants, and so is unenforceable, that the clause is unenforceable as unconscionable, and that enforcement of the clause would violate the public policy in favor of settlements. 
Specifically, the cross-complaint seeks to establish that Erik Goodrich has a duty to indemnify and defend cross-complainants in connection with the claims being made against them in the complaint brought against defendants by plaintiff Lisa Goodrich.  The cross-complaint alleges that Erik Goodrich settled his claims against cross-complainants in connection with the accident which is the subject of the complaint by entering into a settlement agreement, memorialized in a Release, which contains a provision which provides:
“Claimant hereby agrees that it will indemnify, defend and hold harmless Company, from and against any and all liabilities, damages, losses, costs, and expenses, including reasonable attorney fees, arising out of, resulting from or in any way related to the Incident including, but not limited to any and all claims arising from the payment by others of any expenses incurred by Claimant as a result of the Incident. “
[Plessala Decl., Ex. B, Release, sixth paragraph].
Cross-defendant Erik Goodrich argues that this provision, which cross-complainant R+L is now attempting to enforce by tendering to him the defense of the Lisa Goodrich lawsuit brought against R+L for her injuries as a passenger in the accident, is not enforceable because cross-complainant here is seeking to have cross-defendant indemnify cross-complainant for its own active negligence. 
An indemnity agreement that provides indemnification against the indemnitees' own negligence 
"must be clear and explicit and is strictly construed against the indemnitee." Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 628; see also Rooz v. Kimmel (1997) 55 Cal.App.4th 573, 583; City of Oakland v. Oakland Unified School Dist. (1956) 141 Cal.App.2d 733, 736. 
As pointed out in the opposition, this is an issue which cannot be determined on summary adjudication in this matter, as it is not yet clear that cross-complainant will be found to have been negligent in this action, affecting the indemnification provision.  The moving and reply papers in fact base this argument on a vague argument that the other driver Padilla’s actions can only be described as negligent, that R+L is vicariously liable for those acts, and that there is barely any possibility that moving party will be found to have negligently contributed to the accident. This is not a situation where the cross-complainants are seeking a summary adjudication that there be an immediate indemnification, or an immediate assumption of a defense.  
Cross-defendant argues that his interpretation of the provision was that it would release only liens as to his purported damages pursuant to the paragraph immediately preceding the subject paragraph, which provides:
"It is further expressly understood and agreed that Claimant and/or his/her  counsel are responsible for satisfying, compromising, and reimbursing, from the settlement  payment, any outstanding liens, claims or subrogation interests, medical or otherwise, advanced/claimed by any organization, and that Claimant and Claimant's counsel agree to defend and hold harmless the company from and against any claims which are or maybe asserted by any organization with a subrogable claim after the execution and delivery of these settlement proceeds."
[Plessala Decl., Ex. B, Release, fifth paragraph].
The argument accordingly does not establish that the clause is unenforceable as a matter of law here, warranting summary adjudication of the entire cause of action, as it is not established by the motion that the clause is not enforceable against liens, claims or subrogation interests.  
Moreover, the opposition submits evidence which raises triable issues of fact with respect to whether cross-defendant’s negligence in speeding and assuming the intersection was a controlled intersection was the cause of the subject accident. [Response to UMF No. 3, and evidence cited; Additional Fact No. 1, and evidence cited]. The motion on this ground accordingly is denied. 
Cross-defendant next argues that the indemnity provision is unenforceable as unconscionable under the circumstances.  Cross-defendant argues that the indemnity claim in the cross-complaint is unconscionable because cross-defendant did not understand it and his attorney did not explain it to him.  The argument is based in part on a declaration of Erik Goodrich which states:
“Prior to signing the Release, I was never informed by anyone that if I sign the Release, I might be asked to defend R+L or Padilla in a lawsuit by Lisa Goodrich or pay to defend R+L or Padilla for an accident I believe and contend was the fault of Padilla and/or R+L. Nobody ever advised me that the Release provisions might be interpreted to provide anything like this. Obviously, nobody advised me that if I settled the case for $72,500 I might be asked to pay for the defense of R+L and Padilla in an amount that exceeds $72,500. Had I known that R+L might interpret the Release in this way, I would certainly not have signed the Release but would have specified that it be clarified.”
[Goodrich Decl., para. 8].
To successfully establish unconscionability, a party must show that an arbitration agreement was both procedurally and substantively unconscionable.  Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114.   It is the burden of the party attempting to establish the unconscionability of an contractual term to introduce sufficient evidence to establish unconscionability.  Arguelles-Romero v. Superior Court (2010, 2nd Dist.) 184 Cal.App.4th 825, 843. 
As explained by the California Supreme Court in Armendariz, this analysis requires a determination of whether an arbitration agreement is both procedurally and substantively unconscionable.  
“We explained the judicially created doctrine of unconscionability in Scissor-Tail, supra, 28 Cal.3d 807.  Unconscionability analysis begins with an inquiry into whether the contract is one of adhesion. (Id. at pp. 817-819.) “The term [contract of adhesion] signifies a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.” (Neal v. State Farm Ins. Cos. (1961) 188 Cal.App.2d 690, 694 [10 Cal.Rptr. 781].) If the contract is adhesive, the court must then determine whether “other factors are present which, under established legal rules-legislative or judicial-operate to render it [unenforceable].” (Scissor-Tail, supra, 28 Cal.3d at p. 820, fn. omitted.)”
Armendariz, at 113.  
The Court further explained the analysis as follows:
“As explained in A & M Produce Co., supra, 135 Cal.App.3d 473, “unconscionability has both a 'procedural' and a 'substantive' element,” the former focusing on “ 'oppression' ” or “ 'surprise' ” due to unequal bargaining power, the latter on “ 'overly harsh' ” or “ 'one-sided' ” results. (Id. at pp. 486-487.) “The prevailing view is that [procedural and substantive unconscionability] must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability.” (Stirlen v. Supercuts, Inc., supra, 51 Cal.App.4th at p. 1533 (Stirlen).) 
Armendariz, at 114, italics in the original. 
Unlike in the employment context, where there is a presumption of unequal bargaining power and procedural unconscionability, outside the employment context, the party arguing that a contractual provision is unconscionable must produce evidence of the parties bargaining power and circumstances surrounding the execution of an agreement to show that transaction is tainted with surprise or oppression.  Crippen v. Central Valley RV Outlet (2004) 124 Cal.App.4th 1159, 1162, 1164-1166.
Here, as argued in the opposition, there is no evidence of procedural unconscionability, as cross-defendant was represented by counsel, there was no unequal bargaining power, and cross-defendant clearly had the opportunity to review the agreement, and have it explained to him by counsel.  The moving papers have failed to establish any facts which would support a finding of procedural unconscionability, and the motion on this ground is denied.  
Cross-defendant then argues that the indemnity provision, if interpreted to require Erik Goodrich to defend and indemnify cross-complainants against his passenger’s action, violates public policies to foster settlement and against forfeiture.   Cross-defendant relies on the Restatement of Contracts, which provides:
(1) A promise or other term of an agreement is unenforceable on grounds of public policy if legislation provides that it is unenforceable or the interest in its enforcement is clearly outweighed in the circumstances by a public policy against the enforcement of such terms.
(2) In weighing the interest in the enforcement of a term, account is taken of
(a) the parties' justified expectations,
(b) any forfeiture that would result if enforcement were denied, and
(c) any special public interest in the enforcement of the particular term.
(3) In weighing a public policy against enforcement of a term, account is taken of
(a) the strength of that policy as manifested by legislation or judicial decisions,
(b) the likelihood that a refusal to enforce the term will further that policy,
(c) the seriousness of any misconduct involved and the extent to which it was deliberate, and
(d) the directness of the connection between that misconduct and the term.
Restatement of Contracts, 2nd Section 178.
Cross-defendant argues that there is a public policy in favor of resolution of claims by settlement, in reliance on case law and Insurance Code section 1037 (c).   Insurance Code section 1037 (c) applies to the powers of a commissioner in cases of insurance insolvency or delinquency, and provides that the comissioner:
“(c) Shall have authority to compound, compromise or in any other manner negotiate settlements of claims against that person upon such terms and conditions as the commissioner shall deem to be most advantageous to the estate of the person being administered or liquidated or otherwise dealt with under this article.”
It is not clear how this purported public policy would apply here. 
Cross-defendant also argues that there is a public policy disfavoring forfeiture, such as what would occur if cross-complainants are permitted here to settle a claim for $72,500, then turn around and sue for money in excess of the settlement amount under the indemnity provision.    Cross-defendant relies on Civil Code 3275, without providing the text of that legislative enactment, which provides:
“Whenever, by the terms of an obligation, a party thereto incurs a forfeiture, or a loss in the nature of a forfeiture, by reason of his failure to comply with its provisions, he may be relieved therefrom, upon making full compensation to the other party, except in case of a grossly negligent, willful, or fraudulent breach of duty.”
The moving papers have failed to sufficiently establish by the required analysis and weighing that enforcement of the subject indemnity provision would violate the statutory provisions relied upon.  The motion on this ground is denied.  
First Cause of Action—Negligence
To establish a claim for negligent entrustment, a plaintiff must prove all of the following: 
“1. That [name of driver] was negligent in operating the vehicle; 2. That [name of defendant] was an owner of the vehicle operated by [name of driver]; 3. That [name of defendant] knew, or should have known, that [name of driver] was incompetent or unfit to drive the vehicle; 4. That [name of defendant] permitted [name of driver] to use the vehicle; and 5. That [name of driver]'s incompetence or unfitness to drive was a substantial factor in causing harm to [name of plaintiff].” 
Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal. App. 4th 853, 863-864, quoting CACI No. 724.
Under Vehicle Code section 17150:
“Every owner of a motor vehicle is liable and responsible for death or injury to person or property resulting from a negligent or wrongful act or omission in the operation of the motor vehicle, in the business of the owner or otherwise, by any person using or operating the same with the permission, express or implied, of the owner.” 
The motion argues broadly that there is no evidence in this case upon which cross-complainants may prove that Lisa Goodrich had any knowledge that Erik Goodrich was an incompetent driver at the time of the accident.   The separate statement relies on evidence such as deposition testimony that Lisa Goodrich thinks Erik Goodrich is a safe driver, and has never been in a vehicle accident with him before the incident, that he was not talking on a handheld phone, using a navigation system, or was otherwise distracted at the time.  [UMF Nos. 25-33]. 
Those facts, however, include that Erik Goodrich had been in a previous accident, and had a previous speeding ticket.  [UMF Nos. 34, 36].
The opposition argues that the facts relied upon, such as that Erik Goodrich had not taken intoxicating substances before the accident, and that Erik Goodrich was wearing his prescription glasses at the time, are subject to dispute, as Lisa Goodrich could not recall if Erik had consumed alcohol or marijuana within the 24 hours prior to the accident, and there is conflicting evidence and testimony with respect to whether Erik Goodrich was wearing sunglasses, or his required prescription glasses at the time of the accident.  [See Response to UMF Nos.  26, 35, and evidence cited].   The opposition argues that if Erik Goodrich was not wearing his glasses at the time, this is something that Lisa Goodrich should have noticed and could be found negligent for nevertheless permitting him to drive the vehicle.  The opposition also argues that the driving record included two speeding tickets, and the suspension of a drivers’ license in Vermont.  [Additional Fact No. 4, and evidence cited].  Triable issues of fact remain, and the motion is denied. 
RULING:
CCP 437c(g):  Material facts which do or do not create a triable issue of controversy:
Motion of Cross-Defendants for Summary Adjudication of Cross-Complaint Claims for Express Indemnification and Negligent Entrustment:
Motion is DENIED. 
Motion as to Second Cause of Action for Contractual Indemnity is DENIED.   
Cross-defendant Erik Goodrich has failed to sufficiently establish entitlement to summary adjudication of the entire cause of action, and specifically has failed to establish that a determination concerning whether the indemnity agreement releases cross-complainant’s own negligence is appropriate at this juncture, before negligence on the part of any party has been determined.   Cross-defendant also appears to concede that the provision is partly enforceable to the extent applicable to liens, so has failed to establish that the entire provision would be subject to the interpretation evidently urged as a matter of law.  In addition, the opposition has raised 
triable issues of fact with respect to whether there was any negligence on the part of cross-complainant, but that the negligence was on the part of the cross-defendant in failing to yield the right of way. [Response to UMF No. 3, and evidence cited; Additional Fact No. 1, and evidence cited].   Cross-defendant has also failed to sufficiently establish that the indemnity provision is unenforceable as unconscionable under the circumstances, as insufficient evidence of procedural unconscionability is offered.  Cross-defendant has also failed to establish that enforcement of the subject provision would violate public policy.
Motion as to First Cause of Action for Negligence is DENIED. 
Triable issues of fact have been raised with respect to whether cross-defendant Lisa Goodrich negligently entrusted the vehicle.  [UMF Nos. 34, 36; Responses to UMF Nos. 26, 35, and evidence cited; Additional Fact No. 4, and evidence cited].
Plaintiff’s Joinder to Motion of Cross-Defendants for Summary Adjudication of Cross-Complaint for Express Indemnification and Negligent Entrustment is DENIED. 
Evidentiary Objections in Support of Opposition to Cross-Defendants’ Motion for Summary Adjudication are SUSTAINED. 
Erik Goodrich and Lisa Goodrich’s Objections to Evidence in Reply to Opposition to Motion for Summary Judgment are OVERRULED.  The Court does not consider statements made in a separate statement as evidence. 
GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES 
Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance.  Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00.   Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court.  Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff.  If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative. 

Case Number: BC699002    Hearing Date: February 05, 2021    Dept: D

TENTATIVE RULING
Calendar:                1
Case Number:        BC699002
Date:        2/5/21 Trial date: None Set
Case Name:        Goodrich v. Padilla, et al. 
MOTION FOR SUMMARY ADJUDICATION
[CCP § 437c; CRC 3.1350 et seq.]
Relief Requested: 
Summary adjudication as to the cause of action for express indemnity in the cross-complaint Summary adjudication as to the claim for negligent entrustment in the first cause of action for negligence 
Moving Party: Cross-Defendants Erik Goodrich and Lisa Goodrich
Responding Party: Cross-Complainants Guillermo Eduardo Padilla, Jr. and Greenwood Motor 
Lines, Inc. dba R+L Carriers    
Causes of Action from Cross-Complaint 
1) Negligence 
2) Contractual Indemnity 
3) Equitable Indemnity 
4) Contribution
5) Declaratory Relief 
SUMMARY OF FACTS:
Plaintiff Lisa Goodrich alleges that on June 19, 2017, while she was a passenger in a vehicle which was entering an intersection, defendant Guillermo Eduardo Padilla, Jr., driving a tractor-trailer, made an unsafe left-hand turn, causing a massive collision, which totaled the vehicle where plaintiff was a passenger and caused a life-changing injury to plaintiff requiring a cervical fusion surgery.  The complaint alleges that defendant was negligent per se, and caused the collision in violation of the California Vehicle Code (failure to yield right of way while making left hand turn).  The complaint alleges that at the time of the collision, defendant was driving a truck owned by defendant R+L Carriers in the course and scope of defendant Padilla’s employment with defendant R+L Carriers.  
Defendants Padilla and R+L Carriers have filed a cross-complaint for negligence, contractual and equitable indemnity, contribution and declaratory relief against plaintiff and cross-defendant Eric Goodrich, alleging that Lisa Goodrich was the owner of the vehicle which defendant Eric Goodrich was driving with the permission and knowledge of Lisa Goodrich, and that cross-defendants negligently owned, operated and controlled the vehicle causing it to collide with the truck owned and operated by cross-complainants.   The cross-complaint alleges that at all relevant times Lisa Goodrich should have known that Eric Goodrich was incompetent and unfit to drive her vehicle. 
The cross-complaint also alleges that on April 6, 2018, Eric Goodrich entered into an agreement with R+L Carriers pursuant to which he agreed to indemnify, defend and hold harmless cross-defendants and to pay fees and costs in connection with any and all liabilities, damages, or losses arising out of or related to the Incident, so that cross-complainants are entitled to recover fees and costs in connection with Lisa Goodrich’s lawsuit.  
RULING:
CCP 437c(g):  Material facts which do or do not create a triable issue of controversy:
Motion of Cross-Defendants for Summary Adjudication of Cross-Complaint Claims for Express Indemnification and Negligent Entrustment:
The Court notes that on January 15, 2021, the Court granted a motion brought by the opposing parties to compel the deposition of the attorney for cross-defendant Erik Goodrich, Erik Velie, Esq., for the purpose of discovering information in connection with the declaration and deposition testimony submitted by Erik Goodrich in support of the Motion for Summary Adjudication. 
The Court further notes that on January 29, 2021, cross-complainants filed a “Declaration of David A. Shimkin in Support of Supplemental Submission in Opposition to Cross-Defendant’s Motion for Summary Adjudication of Cross-Complaint Claims for Express Indemnification and Negligent Entrustment.”  This declaration attaches what purports to be a copy of a deposition transcript of Mr. Velie conducted on January 21, 2021.  [Shimkin Decl., para. 3, Ex. A].   The deposition transcript has evidently not yet been signed by the deponent.  
The Declaration and transcript were filed and served on January 29, 2021, only five court days prior to the hearing on the motion.  This has allowed insufficient time for the cross-defendants to respond to the submission. 
In addition, the “Supplemental Submission” does not include any analysis of the deposition testimony, but merely attaches it with certain portions bracketed, so that the Court has no guidance with respect to the significance of the testimony to the opposition.  
The hearing on the motion will accordingly be continued to April 2, 2021 at 9:00 a.m. for the limited purpose of permitting the filing of a Supplemental Opposition, limited to addressing the issues presented by the January 21, 2021 deposition testimony, and to permit the filing of a Supplemental Reply, also limited to the addressing the issues presented by the January 21, 2021 deposition testimony, and responding to the Supplemental Opposition.
Supplemental Opposition is to be filed and served no later than March 19, 2021 (14 calendar days prior to the hearing date).  The Supplemental Opposition shall include a copy of the subject deposition transcript which is signed by the deponent.
Supplemental Reply is to be filed and served no later than March 23, 2021 (5 court days prior to the hearing date).  
The Court is also in receipt of a Declaration of Stephen K. McElroy in Further Support of Plaintiff’s Joinder to Cross-Defendant’s Motion for Summary Adjudication, filed January 29, 2021, as well as an Opposition to Declaration of Stephen K. McElroy, filed February 2, 2021.  Those documents were not permitted to be filed, appear improper, and will not be considered by the Court in connection with the merits of the Motion for Summary Adjudication. 
GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES 
Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance.  Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00.   Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court.  Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff.  If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative. 

Case Number: BC699002    Hearing Date: January 15, 2021    Dept: D

TENTATIVE RULING

Calendar: 3

Date: 1/15/2021

Case No: BC 699002 Trial Date: None Set

Case Name:     Goodrich v. Padilla, Jr., et al.MOTIONS TO COMPEL FURTHER RESPONSES TO DISCOVERY (2)

Moving Party: Defendants Guillermo Eduardo Padilla and Greenwood Motor Lines, Inc. (Special Interrogatories)

Responding Party: Plaintiff Lisa Goodrich

Third Party Erik Velie, Esq (Deposition Answers)

Cross-Defendant Erik Goodrich (Deposition Answers)

RELIEF REQUESTED:

Further Responses to Special Interrogatories, Sets 4 and 5 by plaintiff Lisa Goodrich

Further answers to deposition questions and production of subpoenaed documents by

Erik Velie, Esq. related to his representation of cross-defendant Erik Goodrich

MONETARY SANCTION:

Notice stating person/party/counsel against

whom sanction being sought: Velie (Deposition only)

Notice stating amount sought: “Monetary”

Declaration supporting amount sought:

Declaration does not mention sanctions.

CRC separate statement, etc.: ok

DECLARATION SUPPORTING MOTION:

Reasonable and good faith attempt to resolve informally: Ex. H

FACTUAL BACKGROUND

Plaintiff Lisa Goodrich alleges that on June 19, 2017, while she was a passenger in a vehicle which was entering an intersection, defendant Guillermo Eduardo Padilla, Jr., driving a tractor-trailer, made an unsafe left-hand turn, causing a massive collision, which totaled the vehicle where plaintiff was a passenger and caused a life-changing injury to plaintiff requiring a cervical fusion surgery. The complaint alleges that defendant was negligent per se, and caused the collision in violation of the California Vehicle Code (failure to yield right of way while making left hand turn). The complaint alleges that at the time of the collision, defendant was driving a truck owned by defendant R+L Carriers in the course and scope of defendant Padilla’s employment with defendant R+L Carriers.

Defendants Padilla and R+L Carriers have filed a cross-complaint for negligence, contractual and equitable indemnity, contribution and declaratory relief against plaintiff and cross-defendant Eric Goodrich, alleging that Lisa Goodrich was the owner of the vehicle which defendant Eric Goodrich was driving with the permission and knowledge of Lisa Goodrich, and that cross-defendants negligently owned, operated and controlled the vehicle causing it to collide with the truck owned and operated by cross-complainants. The cross-complaint alleges that at all relevant times Lisa Goodrich should have known that Eric Goodrich was incompetent and unfit to drive her vehicle.

The cross-complaint also alleges that on April 6, 2018, Eric Goodrich entered into an agreement with R+L Carriers pursuant to which he agreed to indemnify, defend and hold harmless cross-defendants and to pay fees and costs in connection with any and all liabilities, damages, or losses arising out of or related to the Incident, so that cross-complainants are entitled to recover fees and costs in connection with Lisa Goodrich’s lawsuit.

ANALYSIS:

Special Interrogatories

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

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

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

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

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

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

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

Defendants seek further responses to special interrogatories which ask about plaintiff’s activities prior to the accident in connection with her dominatrix activities, an activity she identified in her deposition she can no longer engage in because of the accident.

Defendants argue that the discovery seeks discoverable information because, although plaintiff has indicated she is not seeking loss of earnings or other damages from her current inability to enjoy those activities, the information sought is relevant to her current condition because doing such activities is something she can no longer do, although she would like to, and the information is relevant to her current condition because plaintiff testified that a broken foot shortly before the accident caused plaintiff to only be able to perform “light sessions,” suggesting that the dominatrix services plaintiff provided pre-accident were of an intense nature, and would inform any analysis of the current condition of plaintiff’s spine.

Plaintiff argues that the information is not discoverable in light of plaintiff’s indication in written discovery, including requests for admissions, that she is not seeking loss of earnings or loss of future earnings, and will not be seeking non-economic damages from any inability of plaintiff to engage in dominatrix activities.

The opposition does not attach the subject discovery foreclosing plaintiff from pursuing those damages. The opposition does submit meet and confer correspondence in which plaintiff’s counsel states that

“2. My client has already told you that she has no recollection of ever being hurt or suffering any aggravation of injury. So, what difference does it make where, when or how she provided “services”? And you were given access to her entire medical history and all of her records. Odd curiosity does not make something reasonably calculated.

3. We have already waived any economic loss related to income. We further agree that no claim will be made for noneconomic damages for any inability to provide “services”, professional or otherwise. We will make a motion in limine to make certain this issue doesn’t come up.”

[McElroy Decl., para. 15, Ex. 5].

The interrogatories at issue seek information such as when is the last time plaintiff provided dominatrix services to a client, whether plaintiff has provided such services since the accident, and if so, when and where, and whether the provision of such services has exacerbated any accident related condition, whether there is a dungeon at plaintiff’s residence, and whether services have been provided there since the accident. The interrogatories also ask when plaintiff started providing dominatrix services, how long sessions lasted, if and why the duration of sessions might have changed, how many sessions plaintiff would provide during a given week in her busiest times, and what physical activities would be carried out when services were provided.

If plaintiff is waiving any claim for damages with respect to the inability to engage in such activities since the time of the accident, including any non-economic and emotional distress damages, or damages of any sort, this would appear to be a situation where the information could have no bearing on the claims being made. The situation appears to instead be comparable to a situation where a defendant would be foreclosed from conducting a mental examination where specific damage claims are clearly waived.

To the extent the argument is that these dominatrix services, and their physically demanding and intense nature, may have somehow affected the condition of plaintiff’s spine when the accident occurred, it would appear that defendants have been provided sufficient information regarding plaintiff’s medical condition prior to the accident, and that the interrogatories do not appear directed at that inquiry in any case. Moreover, the relevant inquiry in a case of this nature is what plaintiff could do prior to the accident, and what she could do afterward, and any prior condition of the spine making her more susceptible to injury in the accident, if relevant, can be explored or established through the discovery already provided.

The court will accordingly require that plaintiff submit a declaration clearly waiving any claims for loss of earnings, loss of future earnings or any non-economic, including emotional distress damages related to plaintiff’s provision of dominatrix services, either for compensation or not for compensation. The motion is denied conditioned on plaintiff’s counsel filing a written statement that plaintiff waives and will not seek any damages based on plaintiff’s alleged inability to provide any dominatrix services. This procedure will require two separate declarations signed under oath by the plaintiff and plaintiff’s counsel, which will be filed with the court.

Sanctions

This leaves the issue of sanctions, which are sought in the opposition.

CCP § 2030.300 (d) provides that the court “shall impose a monetary sanction...against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

It would appear here, that although the motion was unsuccessfully made, the motion was essentially necessary to ensure that plaintiff is unequivocally waiving any claims for damages related to the activities she mentioned in her deposition testimony. The court finds that under the circumstances, it would be unjust to shift the cost of opposing the motion to the moving parties. No sanctions are awarded.

Deposition Testimony

Defendants and cross-complainants Padilla and R&L Carriers seek to compel third party Erik Velie, Esq., the attorney of cross-defendant Erik Goodrich, to provide further answers to deposition questions and to produce subpoenaed documents related to his representation of Goodrich in connection with the settlement agreement/release and indemnification provision that is the subject of claims in the cross-complaint against Erik Goodrich.

Specifically, the cross-complaint seeks to establish that Erik Goodrich has a duty to indemnify and defend cross-complainants in connection with the claims being made against them in the complaint brought against defendants by plaintiff Lisa Goodrich. The cross-complaint alleges that Erik Goodrich settled his claims against cross-complainants in connection with the accident which is the subject of the complaint by entering into a settlement agreement,

memorialized in a Release, which contains a provision which provides:

“Claimant hereby agrees that it will indemnify, defend and hold harmless Company, from and against any and all liabilities, damages, losses, costs, and expenses, including reasonable attorney fees, arising out of, resulting from or in any way related to the Incident including, but not limited to any and all claims arising from the payment by others of any expenses incurred by Claimant as a result of the Incident.

[Shimkin Decl., Ex. B, Release, sixth paragraph].

Cross-complainants argue that Erik Goodrich has filed a motion for summary adjudication in which he seeks to summarily adjudicate the indemnity claim in the cross-complaint on the ground the indemnification provision was unconscionable because cross-defendant did not understand it and his attorney did not explain it to him. The motion is based in part on a declaration of Erik Goodrich which states:

“Prior to signing the Release, I was never informed by anyone that if I sign the Release, I might be asked to defend R+L or Padilla in a lawsuit by Lisa Goodrich or pay to defend R+L or Padilla for an accident I believe and contend was the fault of Padilla and/or R+L. Nobody ever advised me that the Release provisions might be interpreted to provide anything like this. Obviously, nobody advised me that if I settled the case for $72,500 I might be asked to pay for the defense of R+L and Padilla in an amount that exceeds $72,500. Had I known that R+L might interpret the Release in this way, I would certainly not have signed the Release but would have specified that it be clarified.”

[Shimkin Decl., Ex. F, Goodrich Decl., para. 8].

Erik Goodrich in deposition also testified that the indemnification provision was not explained to him:

“Q. Who did not explain it to you?

A. Well, neither the company that was making the settlement offer to me nor my representation.

Q. Did you ever ask anybody to explain this to you?

A. No.”

[Simpkin Decl., Ex. D].

Cross-complainants accordingly argue that any attorney-client privilege on this subject, and what Erik Goodrich’s attorney or others told or advised him about the existence of, meaning or interpretation of the subject provision has been waived by Goodrich, the client, so that the attorney may be compelled to provide the information to explore that subject matter.

The motion also argues that despite the claim that the attorney did not explain the indemnity provision to him, Erik Goodrich argued in the motion memorandum that he and his attorney shared an understanding of the meaning of the agreement:

“Obviously, ERIK GOODRICH and his counsel interpreted the overall indemnity requirement to require him to be responsible for any problems caused to R+L by his failure to satisfy liens and medical expenses. In other words, in case of some subsequent action resulting from some delinquency he caused, he might have to legally protect R+L.”

[Shimkin Decl., Ex. E, Memorandum, p. 13].

Relief is sought under CCP section 2025.480(a), which provides:

“(a) If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.”

A trial court’s determination of a motion to compel discovery cannot be overturned in the absence of an abuse of discretion. 2,022 Ranch v. Superior Court (2003) 113 Cal.App.4th 1377, 1387. With respect to attorney-client privilege, “if the privilege does not appear as a matter of law, the appellate court may not disturb the lower court’s findings if there is substantial evidence to support them.” Id.

CCP § 2025.460(b), governing deposition conduct, provides, in pertinent part:

“(a) The protection of information from discovery on the ground that it is privileged or that it is a protected work product under Chapter 4 (commencing with Section 2018.010) is waived unless a specific objection to its disclosure is timely made during the deposition.

(b) Errors and irregularities of any kind occurring at the oral examination that might be cured if promptly presented are waived unless a specific objection to them is timely made during the deposition. These errors and irregularities include, but are not limited to, those relating to the manner of taking the deposition, to the oath or affirmation administered, to the conduct of a party, attorney, deponent, or deposition officer, or to the form of any question or answer. Unless the objecting party demands that the taking of the deposition be suspended to permit a motion for a protective order under Sections 2025.420 and 2025.470, the deposition shall proceed subject to the objection.

(c) Objections to the competency of the deponent, or to the relevancy, materiality, or admissibility at trial of the testimony or of the materials produced are unnecessary and are not waived by failure to make them before or during the deposition.”

Evidence Code section 954 provides that a client “has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer...”

Evidence Code section 917 provides, in pertinent part:

“(a) Whenever a privilege is claimed on the ground that the matter sought to be disclosed is a communication made in confidence in the course of the lawyer-client....relationship, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof of establishing that the communication was not confidential.”

The work product doctrine is codified at CCP section 2018, which provides, in pertinent part:

“(a) It is the policy of the state to: (1) preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases; and (2) to prevent attorneys from taking undue advantage of their adversary’s industry and efforts.”

(b) Subject to subdivision (c), the work product of an attorney is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice.

(c) Any writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories shall not be discoverable under any circumstances.”

The moving papers argue that Erik Goodrich waived any claimed attorney-client privilege by testifying about his communications with his attorney, Velie, and putting those communications at issue in his motion for summary adjudication.

Cross-complainants rely on Evidence Code section 912, which provides that an attorney-client privilege “is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone.” The scope of a statutory or implied waiver “is narrowly defined and the information required to be disclosed must fit strictly within the confines of the waiver. Transamerica Title Ins. Co. v. Superior Court (1987) 188 Cal.App.3d 1047, 1052. The party opposing the privilege bears the burden of showing there has been an implied waiver. 2,022 Ranch, at 1395.

The argument is that the privilege was waived here as Goodrich disclosed the entirety of his communications with Velie regarding the indemnification provision by claiming that there were no communications, and by submitting his declaration and deposition testimony to that effect. It is also argued that through legal argument concerning the understanding of the meaning of the provision there was a further waiver, and that Goodrich waived any privilege by failing to assert any objections during the actual deposition; evidently, all objections were asserted by the deponent or his attorney.

The moving papers argue that there has also been an implicit waiver, as California courts recognize that an implied waiver may occur where a litigant asserts an “advice of counsel” defense or otherwise puts his attorney-client communications at issue in the litigation. See Venture Law Group v. Superior Court (2004) 118 Cal.App.4th 96, 105; 2,022 Ranch, LLC v. Superior Court (2004) 113 Cal.App.4th 1377, 1395. (“Where privileged information goes to the heart of the claim, fundamental fairness requires that it be disclosed for the litigation to proceed,” quoting Steiny & Co. v. California Electric Supply Co. (2000) 79 Cal.App. 4th 285, 292.)

The opposition filed on behalf of Velie argues that Goodrich has not disclosed a significant portion of any communication, and has consistently asserted the privilege in his deposition, in written objections to the document demands, and in joining in objections during the Velie deposition.

The argument is that Goodrich’s testimony has only been that he never discussed the subject indemnity clause with anyone. It is not clear how this would not constitute a waiver of any objection to an inquiry of the attorney whether there was a discussion which the attorney recalls, limited to the subject of the indemnity clause, and, if so, the substance of that discussion.

This testimony is sufficient to open up the door and implicate fundamental fairness with respect to questions posed to Goodrich’s attorney limited to whether there was in fact such a discussion, and limited to the indemnity provision. The showing would not open up inquiry to all communications concerning the entire settlement negotiations and Release agreement. Questions of the attorney concerning subjects outside of this narrow field of inquiry would either be subject to attorney client or work product protection, which have not been established as waived.

With respect to the argument that Goodrich by making a legal argument concerning his understanding of the indemnity provision, and that it was shared by counsel, is not based on any affirmative representation or waiver made by Goodrich in his declaration, but arguments made by counsel who prepared the papers, who it does not appear was authorized to waive the attorney-client or work product privileges in this respect. Specifically, it does not appear that the attorney’s work product privilege with respect to his assessment of this matter has been waived, and his opinions concerning the meaning and effect of the Release overall, and of the indemnity provision, would not be subject to a waiver. The only relevant and waived line of inquiry would be what the attorney discussed with the client, if anything, concerning the indemnity provision, which would have some impact on the statement made by the client in his declaration that no one, including his representative, explained the provision to him.

Specifically, the attorney can be examined on the statement in the client’s declaration that:

“Prior to signing the Release, I was never informed by anyone that if I sign the Release, I might be asked to defend R+L or Padilla in a lawsuit by Lisa Goodrich or pay to defend R+L or Padilla for an accident I believe and contend was the fault of Padilla and/or R+L. Nobody ever advised me that the Release provisions might be interpreted to provide anything like this.”

[Shimkin Decl., Ex. F, Goodrich Decl., para. 8

This approach would be limited to inquiry concerning only the provision of the Release which would pertain to this defense obligation, specifically, the provision in the Release which provides:

“Claimant hereby agrees that it will indemnify, defend and hold harmless Company, from and against any and all liabilities, damages, losses, costs, and expenses, including reasonable attorney fees, arising out of, resulting from or in any way related to the Incident including, but not limited to any and all claims arising from the payment by others of any expenses incurred by Claimant as a result of the Incident.

[Shimkin Decl., Ex. B, Release, sixth paragraph].

A review of the separate statement shows that the following questions, as so limited, that is, to the indemnity provision and the declaration that Goodrich did not discuss it with anyone, could be pursued in a further deposition:

“Did Mr. Goodrich ever ask you any questions about the settlement agreement?” Limited to the indemnity provision at the sixth paragraph and Goodrich MSA Declaration at paragraph 8.

“Did Mr. Goodrich ever ask you to explain the settlement agreement?” Limited to the indemnity provision at the sixth paragraph of Release, and Goodrich MSA Declaration at paragraph 8.

“More specifically, did Mr. Goodrich ask you to explain that indemnification provision that I read into the record?”

“Did you ever inform Erik Goodrich about the obligation that he had in the agreement regarding defending R&L and Padilla?”

“Are you aware of anybody else who may have given Erik Goodrich such information [about the agreement’s defense obligation]?” Limited to the indemnity provision at the sixth paragraph of Release.

“Moving on to the second sentence [of Goodrich’s declaration], it says: “Nobody ever advised me that the release provisions might be interpreted to provide anything like this.” Are you aware – withdrawn. Did you ever give [him] any information about such an interpretation?” Limited to the indemnity provision at the sixth paragraph of Release, and Goodrich MSA Declaration at paragraph 8.

“Are you aware of anybody else imparting that that might be an interpretation brought by anyone?” Limited to the indemnity provision at the sixth paragraph of Release, and Goodrich MSA Declaration at paragraph 8.

“Next sentence. (Reading). “Obviously, nobody advised me that if I settled the case for $72,500, I might be asked to pay for the defense of R&L and Padilla in an amount that exceeds $72,500.” Are you aware – withdrawn. Did you ever so advise Mr. Goodrich?” Limited to the indemnity provision at the sixth paragraph of Release, and Goodrich MSA Declaration at paragraph 8.

“Are you aware of anybody advising Mr. Goodrich of the consequences as so stated in that sentence?” Limited to the indemnity provision at the sixth paragraph of Release, and Goodrich MSA Declaration at paragraph 8.

The motion will be denied to the remaining questions, including those which inquire into the following:

Whether in the deponent’s practice, was it was his custom and practice to explain, when necessary, contracts to clients.

Whether he reviewed the agreement or read the agreement prior to the client signing it.

Whether he formed an understanding of the meaning of any terms of the agreement.

Whether he sees language with particular effect in the release in this case.

His interpretation or understanding of the indemnity provision.

Whether he has been involved in other settlements in which clients have promised to indemnify and defend.

The circumstances under which the client signed the release, including whether it was sent to the client to sign.

Whether the client has put the attorney on notice of a malpractice action.

Whether there is anything out of the ordinary about the settlement agreement.

The attorney’s assessment of the client’s legal sophistication, awareness of work history, factors taken into account in determining a client’s level of legal sophistication.

Whether the characterization from the client’s motion memorandum of the attorney’s interpretation of the indemnity requirement is accurate.

Whether counsel has any opinion as to whether R&L tricked him by any language in the release.

Whether counsel felt he was given enough time to review the agreement.

Under CCP §2025.480:

“(e) If the court determines that the answer or production sought is subject to discovery, it shall order that the answer be given, or the production be made on the resumption of the deposition.”

Such an order will be made here as limited.

With respect to documents, billing records (Request No. 1) and copies of retainer or engagement agreements (Request No. 3) have not been established as not subject to privilege. See Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2 Cal.5th 282 (billing records); Business & Professions Code § 6149 (“A written fee contract shall be deemed to be a confidential communication within the meaning of subdivision (e) of Section 6068 and of Section 952 of the Evidence Code.” Section 952 defining “confidential communication between client and lawyer.”).

Correspondence relating to the Release and documents relating to the Release will be ordered produced, limited to any contents of those documents specifically pertaining to the indemnity provision, if any.

Sanctions

Moving party seeks sanctions.

Under CCP § 2025.480 (j):

“(j) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

The motion has not unsuccessfully opposed, and, in any case, as noted in the opposition, the moving papers do not include a declaration supporting the sanctions sought.

CCP § 2023.040 clearly requires that:

“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”

(Emphasis added).

The motion is not supported by the appropriate declaration, and sanctions are denied on this ground as well.

RULING:

Motion to Compel Further Responses to Special Interrogatories:

Plaintiff is ordered to prepare and submit to the Court a clear declaration executed by plaintiff documenting plaintiff’s waiver of claims in this action seeking loss of earnings or loss of future earnings, and of any non-economic damages, or damages of any nature, from any claimed inability of plaintiff to engage in dominatrix activities, either for compensation or not for compensation. The motion is DENIED conditioned on the plaintiff and her attorney providing above-referred declarations.

Monetary sanctions sought in the opposition are DENIED, as this motion was evidently necessary to obtain the appropriate documentation of waiver of claims.

Defendants Guillermo Padilla’s and Greenwood Motor Lines, Inc. dba R&L Carriers’ Motion to Compel Erik Velie, Esq. to Provide Further Answers to Deposition Questions and to Produce Subpoenaed Documents:

Motion is GRANTED IN PART. The Court finds that cross-defendant Erik Goodrich has waived the attorney-client privilege with respect to whether the deponent, cross-defendant’s attorney, advised Goodrich regarding the following information

“Prior to signing the Release, I was never informed by anyone that if I sign the Release, I might be asked to defend R+L or Padilla in a lawsuit by Lisa Goodrich or pay to defend R+L or Padilla for an accident I believe and contend was the fault of Padilla and/or R+L. Nobody ever advised me that the Release provisions might be interpreted to provide anything like this.”

[Shimkin Decl., Ex. F, Goodrich Decl., para. 8

Further inquiry will be limited to inquiry concerning only the provision of the Release which would pertain to this defense obligation, specifically, the provision in the Release which provides:

“Claimant hereby agrees that it will indemnify, defend and hold harmless Company, from and against any and all liabilities, damages, losses, costs, and expenses, including reasonable attorney fees, arising out of, resulting from or in any way related to the Incident including, but not limited to any and all claims arising from the payment by others of any expenses incurred by Claimant as a result of the Incident. “

[Shimkin Decl., Ex. B, Release, sixth paragraph].

On the resumption of the deposition, the deponent is ordered to give further answers to the following questions, without objection, limited as so noted:

“Did Mr. Goodrich ever ask you any questions about the settlement agreement?” Limited to the indemnity provision at the sixth paragraph and Goodrich MSA Declaration at paragraph 8.

“Did Mr. Goodrich ever ask you to explain the settlement agreement?” Limited to the indemnity provision at the sixth paragraph of Release, and Goodrich MSA Declaration at paragraph 8.

“More specifically, did Mr. Goodrich ask you to explain that indemnification provision that I read into the record?”

“Did you ever inform Erik Goodrich about the obligation that he had in the agreement regarding defending R&L and Padilla?”

“Are you aware of anybody else who may have given Erik Goodrich such information [about the agreement’s defense obligation]?” Limited to the indemnity provision at the sixth paragraph of Release.

“Moving on to the second sentence [of Goodrich’s declaration], it says: “Nobody ever advised me that the release provisions might be interpreted to provide anything like this.” Are you aware – withdrawn. Did you ever give [him] any information about such an interpretation?” Limited to the indemnity provision at the sixth paragraph of Release, and Goodrich MSA Declaration at paragraph 8.

“Are you aware of anybody else imparting that that might be an interpretation brought by anyone?” Limited to the indemnity provision at the sixth paragraph of Release, and Goodrich MSA Declaration at paragraph 8.

“Next sentence. (Reading). “Obviously, nobody advised me that if I settled the case for $72,500, I might be asked to pay for the defense of R&L and Padilla in an amount that exceeds $72,500.” Are you aware – withdrawn. Did you ever so advise Mr. Goodrich?” Limited to the indemnity provision at the sixth paragraph of Release, and Goodrich MSA Declaration at paragraph 8.

“Are you aware of anybody advising Mr. Goodrich of the consequences as so stated in that sentence?” Limited to the indemnity provision at the sixth paragraph of Release, and Goodrich MSA Declaration at paragraph 8.

The deponent is also ordered to produce further documents in response to Requests Nos. 2 and 4, limited to any documents reflecting communications regarding the indemnity provision set forth at the sixth paragraph of the Release, if any. All other information is to be redacted from responsive documents. Motion is DENIED as to Requests Nos. 1 (billing records), and Request No. 3 (retainer or engagement agreements).

Monetary sanctions sought are DENIED.

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

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

Case Number: BC699002    Hearing Date: January 08, 2021    Dept: D

TENTATIVE RULING

Calendar: 17

Date: 1/8/2021

Case No. BC699002 Trial Date: None Set

Case Name: Goodrich v. Padilla, Jr., et al.

MOTION FOR RECONSIDERATION

[CCP §1008(a)]

Moving Party: Cross-Defendant Erik Goodrich

Responding Party: Defendants/Cross-Complainants Guillermo Eduardo Padilla, Jr. and Greenwood Motor Lines, Inc. dba R+L Carriers

FACTUAL AND PROCEDURAL BACKGROUND:

Plaintiff Lisa Goodrich alleges that on June 19, 2017, while she was a passenger in a vehicle which was entering an intersection, defendant Guillermo Eduardo Padilla, Jr., driving a tractor-trailer, made an unsafe left-hand turn, causing a massive collision, which totaled the vehicle where plaintiff was a passenger and caused a life-changing injury to plaintiff requiring a cervical fusion surgery. The complaint alleges that defendant was negligent per se, and caused the collision in violation of the California Vehicle Code (failure to yield right of way while making left hand turn). The complaint alleges that at the time of the collision, defendant was driving a truck owned by defendant R+L Carriers in the course and scope of defendant Padilla’s employment with defendant R+L Carriers.

Defendants Padilla and R+L Carriers have filed a cross-complaint for negligence, contractual and equitable indemnity, contribution and declaratory relief against plaintiff and cross-defendant Eric Goodrich, alleging that Lisa Goodrich was the owner of the vehicle which defendant Eric Goodrich was driving with the permission and knowledge of Lisa Goodrich, and that cross-defendants negligently owned, operated and controlled the vehicle causing it to collide with the truck owned and operated by cross-complainants. The cross-complaint alleges that at all relevant times Lisa Goodrich should have known that Eric Goodrich was incompetent and unfit to drive her vehicle.

The cross-complaint also alleges that on April 6, 2018, Eric Goodrich entered into an agreement with R+L Carriers pursuant to which he agreed to indemnify, defend and hold harmless cross-defendants and to pay fees and costs in connection with any and all liabilities, damages, or losses arising out of or related to the Incident, so that cross-complainants are entitled to recover fees and costs in connection with Lisa Goodrich’s lawsuit.

On November 6, 2020, a Peremptory Challenge to Judicial Officer (Code Civ. Proc. Section 170.6) was filed as to Ralph C. Hofer, Judge, on behalf of Erik Goodrich, Cross Defendant.

An opposition to Peremptory Challenge was filed on November 6, 2020, and a Reply filed on November 9, 2020.

On November 17, 2020, at a Non-Appearance Case Review, the court denied the Peremptory Challenge, finding:

“Court is in receipt of a Peremptory Challenge pursuant to Section 170.6 of the Code of Civil Procedure filed November 06, 2020 on behalf of Cross-Defendants Erick Goodrich and Lisa Goodrich, to this Court, Judge Ralph C. Hofer.

Court finds that Plaintiff Lisa Goodrich has previously filed a peremptory challenge on October 01, 2020 and October 21, 2020 to Judge John J. Kralik, presiding in North Central - Burbank Branch, Department B.

Court finds that Plaintiffs Lisa Goodrich and Erik Goodrich have already exercised their one Peremptory Challenge on October 01, 2020 and October 21, 2020 as to Judge John J. Krailik, presiding in North Central - Burbank Branch, Department B.

The Peremptory Challenge pursuant to Section 170.6 of the Code of Civil Procedure filed November 06, 2020 on behalf of Cross-Defendants Erick Goodrich and Lisa Goodrich, to this Court, Judge Ralph C. Hofer is DENIED.”

ANALYSIS: (Reconsideration cannot be granted based on a CCP §473 claim, on matter presented at an earlier hearing, or on a later-enacted statute that is not retroactive; Gilberd v. AC Transit, 32 CA4th 1494, 1500; see also Weil & Brown, Civil Procedure Before Trial, §9:328 et seq.).

CCP § 1008(a) provides, in pertinent part:

“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.”

This subdivision further provides:

“For a failure to comply with this subdivision any order made on a subsequent application may be revoked or set aside on ex parte motion.”

Under CCP section 1008, subdivision (e):

“This section specifies the court's jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”

The trial court’s determination of a motion for reconsideration is reviewed for abuse of discretion. See Wiz Technology, Inc. v. Coopers & Lybrand (2003, 2nd Dist.) 106 Cal.App.4th 1, 16.

Cross-defendant Erik Goodrich argues that in denying the peremptory challenge, the court evidently failed to consider briefing submitted concerning the matter, which clarified certain factual matters, and that the court relied on incorrect facts in denying the challenge.

Specifically, the court’s ruling indicates that the court was in receipt of a peremptory challenge filed on behalf of cross-defendants “Erick” (sic) Goodrich and Lisa Goodrich, which cross-defendant argues is incorrect, as the challenge was filed only on behalf of cross-defendant Erik Goodrich. The peremptory challenge, although submitted by counsel for both cross-defendants, does state that it is brought on behalf of Erik Goodrich, with the box checked “Cross Defendant.”

The court’s ruling, as set forth above, also indicated that Lisa Goodrich had previously filed a peremptory challenge on October 1, 2020 and October 21, 2020 to Judge Kralik, which cross-defendant argues is also incorrect: Plaintiff Lisa Goodrich filed a peremptory challenge as to Judge Stewart on October 1, 2020, and defendants Padilla and R+L filed a peremptory challenge as to Judge Kralik on October 21, 2020.

The file reflects that on October 1, 2020, a peremptory challenge to Judge Stewart was filed on behalf of Lisa Goodrich, as “Plaintiff/Petitioner.” On October 21, 2020, a peremptory challenge was filed as to Judge Kralik on behalf of Padilla and R&L Carriers, as “Defendant/Respondent” and “Cross Complainant.”

Cross-defendant argues that the court’s ruling on the current challenge, which was based on the court’s finding that Plaintiffs Lisa Goodrich and Erik Goodrich had already exercised one peremptory challenge was accordingly factually incorrect.

Cross-defendant explains that Erik Goodrich is no longer a plaintiff in this matter, as he has settled with defendants. The settlement and release in fact appears to be one subject of the cross-complaint against this cross-defendant.

The motion also indicates that Erik Goodrich is not making a challenge as a plaintiff in this matter, but as a cross-defendant, and that he is entitled to one challenge in that capacity.

Defendants and cross-complainants argue that Erick Goodrich cannot now bring a challenge because plaintiff Lisa Goodrich has already made a challenge, and these parties are on the same side of the litigation.

Under CCP section 170.6 (a)(4), with respect to motions to challenge a judge pursuant to that section:

“Except as provided in this section, no party or attorney shall be permitted to make more than one such motion in any one action or special proceeding pursuant to this section. In actions or special proceedings where there may be more than one plaintiff or similar party or more than one defendant or similar party appearing in the action or special proceeding, only one motion for each side may be made in any one action or special proceeding.”

Erik Goodrich argues that since he is making the challenge as a cross-defendant, he is not barred by Lisa Goodrich’s previous challenge as a plaintiff, and even though both Lisa Goodrich and Erik Goodrich are cross-defendants to the cross-complaint, they have substantially adverse interests on and may be treated as separate parties for purposes of peremptory challenge.

Specifically, the argument is that Lisa Goodrich is a cross-defendant on the claim of negligent entrustment only, but that R+L is suing Erik Goodrich on a variety of grounds, including express indemnity, with a demand that he defend and indemnify it, which claim, as well as the claim that Erik Goodrich bears responsibility for the incident, from a practical standpoint, creates adversity as between Lisa Goodrich and Erik Goodrich. The motion also argues that any ruling that these parties are on the same side, so that Erik Goodrich is not entitled to a challenge, eliminates Erik Goodrich’s primary interest and stake in the lawsuit of defending against the express indemnity claim, in which Lisa Goodrich has no interest and her exercise of peremptory challenge could not have taken into account.

The motion relies on Johnson v. Superior Court (1958) 50 Cal.2d 693, 700 in which the California Supreme Court found that the provisions of CCP section 170.6 were not unconstitutional and observed:

“Another claim of discrimination is based upon that portion of section 170.6 which relates to multiple parties. The section, after providing that no party or attorney may make more than one motion thereunder in any one action, declares, “... where there may be more than one plaintiff or similar party or more than one defendant or similar party appearing in the action or special proceeding, only one motion for each side may be made in any one action or special proceeding.” We do not understand the quoted provision to mean that, where several parties are joined, they are necessarily confined to one motion regardless of how conflicting their interests may be. One motion for “each side” is permitted, and, where coplaintiffs or codefendants have substantially adverse interests, it is proper to conclude that there are more than two sides in the case. Such might be the situation, for example, where two drivers whose automobiles collide and injure the plaintiff are joined as defendants.”

Johnson, at 700.

Both sides also cite Orion Communications, Inc. v. Superior Court (2014) 226 Cal.App.4th 152, in which the court of appeal held that a trial court had erred in granting a peremptory challenge to a judge filed after a previous challenge had been granted, the case reassigned, judgment entered, and a judgment creditor on an attorney fee award moved to amend the judgment to add a purported alter ego as a judgment debtor. The purported alter ego filed a peremptory challenge to the judge. The court of appeal determined that the purported alter ego in that matter had failed to establish under the statute that it was not on the same “side” as the judgment debtor. The court of appeal summarized the applicable law in such an inquiry as follows:

““[S]ection 170.6 is designed to prevent abuse by parties that merely seek to delay a trial or obtain a more favorable judicial forum. [Citations.] An important element of that design is the limitation, in any one action, of each party to a single motion, or each side to a single motion, should there be more than one plaintiff or defendant. (§ 170.6, subd. [ (a)(4) ].) The phrase ‘only one motion for each side’ contemplates that one side may consist of several parties, and a peremptory challenge by any party disqualifies the judge on behalf of all parties on that side. [Citation.] This limitation also reflects the general aim of the legislation to strike a balance between the needs of litigants and the operating efficiency of the courts. [Citation.] [¶] To effectuate the Legislature's intent, our courts ‘have been vigilant to enforce the statutory restrictions on the number and timing of motions permitted.’ ” (Home Ins., supra, .) To effectuate that intent, our courts have held “when a party on the same side has exercised its right to disqualify a judge, a late-appearing party ‘has no right to challenge the then-current judge[,] because that side has used its one challenge.’ ” (Id. at p. 1033, 22 Cal.Rptr.3d 885, 103 P.3d 283.)

Nevertheless, in certain circumstances, section 170.6 permits the exercise of a peremptory challenge by more than one plaintiff or defendant. (Home Ins., supra, .) In Johnson v. Superior Court , the court interpreted section 170.6's one challenge per side limitation and concluded a party may be considered to be on a different side than other parties with which it is joined when the joined parties have interests that are “substantially adverse.” In Pappa v. Superior Court , the court concluded that after one codefendant disqualified the judge pursuant to section 170.6, the burden was on the party (i.e., the other codefendant) seeking to exercise a subsequent peremptory challenge to establish that her interests were substantially adverse to those of the first codefendant. “Subsequent civil and criminal decisions ... uniformly have recognized that the party seeking a subsequent disqualification of the trial judge has the burden of demonstrating that its interests are substantially adverse to those of a coparty that previously exercised a peremptory challenge—substantially adverse interests are not presumed.” (Home Ins., supra, .)

The question whether joined parties (e.g., codefendants) are on the same side within the meaning of section 170.6 is a factual one. (Home Ins., supra, .) “[A] party that seeks to exercise a subsequent peremptory challenge on the ground that, in effect, it is on a different side from another party despite appearances to the contrary, is required to provide evidence of a conflict to enable the trial court to decide whether the interests of the joined parties are actually substantially adverse.” (Id. at p. 1037, 22 Cal.Rptr.3d 885, 103 P.3d 283, italics added.) “[T]he circumstance that the plaintiff belatedly names a party as a defendant [does not] establish that that party's interests are substantially adverse to earlier named defendants.” (Ibid.) In Home Ins., the court concluded: “The mere likelihood of, or potential for, a conflict between the [joined parties] did not and could not establish, in lieu of a factually sufficient demonstration of substantially adverse interests, that these coparties were on different sides within the meaning of section 170.6.” (Ibid.)

Orion Communications, at 158-159, italics in original.

The court of appeal then found that in that case, the only proper evidence submitted had been a declaration which merely stated a belief of prejudice, but failed to present any evidence on the question of whether the parties had substantially adverse interests and were therefore not on the same side, and that the arguments made in the peremptory challenge were not evidence, but merely argument, and not sufficient to support the claim of the purported alter ego. The court of appeal also found that even if the facts asserted had been considered evidence, they did not sufficiently show substantially adverse interests in the action and motion to amend, noting that the burden under CCP section 170.6 is fairly high:

“It was Sameis's burden to present evidence showing it and DTS have, in fact, substantially adverse interests in the action and motion to amend. Sameis's conclusory assertion that it and DTS have separate counsel because of conflicts of interest is insufficient to meet that burden. Sameis did not describe the nature of the conflict of interest, much less that it involves a conflict in the specific matter at hand—i.e., the motion to amend. The California Supreme Court has stated: “[T]he mere fact that [codefendants] choose to be represented by separate counsel does not show that [a section 170.6] conflict of interests exists.” (Pappa v. Superior Court, supra, .) Therefore, the fact Sameis and DTS chose to have separate counsel because of some unspecified conflict of interest does not show they have substantially adverse interests. Furthermore, the mere likelihood of, or potential for, a conflict between Sameis and DTS did not, and could not, establish they are on different sides within the meaning of section 170.6. (Home Ins., supra, .)

Orion Communications, at 164

Defendants and cross-complainants argue in opposition that the challenge by Erik Goodrich violates the one challenge per side rule, as the interests of Lisa Goodrich and Erik Goodrich are perfectly aligned here, as they both seek to minimize their own possible negligence with respect to the incident and maximize that of the defendants. The argument is that Erik Goodrich has not and cannot meet his burden of showing why there is adversity between himself and the prior challenging party, Lisa Goodrich, an actual conflict.

Defendants also argue that the fact that there is no conflict or adversity between the parties might best be reflected by the fact that they are represented by the same counsel.

The Peremptory Challenge originally filed by Erik Goodrich did not include any evidence other than the declaration that the judicial officer is prejudiced.

The reply filed in support of the challenge in response to the opposition included a declaration of counsel, which recites the procedural history of this matter, but does not state any facts, as required in such a circumstance, to meet Erik Goodrich’s burden as a party that seeks to exercise a subsequent peremptory challenge on the ground he is on a different side from another party despite appearances to the contrary, to provide evidence of a conflict to enable the trial court to decide whether the interests of the joined parties are actually substantially adverse. [See Reply, filed 11/9/20, Plessala Decl.].

The declaration of counsel submitted with this motion for reconsideration adds some testimony concerning the procedural history and counsel’s suspicions that the court did not review all the briefing before making its determination, but again does not explain how the interests of the co-cross-defendants are actually substantially adverse. [See Plessala Decl.].

This would appear to be a situation, as in Orion, in which no evidence on the issue has been submitted, and, as argued in the opposition, the challenge is denied on this ground alone.

Even assuming that the facts argued were established by evidence here, it would appear that the cross-complaint seeks to establish obligations owed by cross-defendant Erik Goodrich to cross-complainants pursuant to the terms of the express release, which claims are not brought against Lisa Goodrich, but it is not sufficiently shown how this additional claim creates some sort of adversity between the co-cross-defendants. The motion concedes that Lisa Goodrich has no interest in that claim, not that the claim creates a conflict between the parties. In fact, it would appear to be in her best interest if Erik Goodrich successfully defeats that claim and avoids having to indemnify and defend against the lawsuit being maintained by Lisa Goodrich. The motion for reconsideration, in fact, appears to assert an argument that the parties are practically speaking adverse, not that there is an actual conflict. The balance of the cross-complaint seeks to shift responsibility for the incident to Erik Goodrich as the permitted driver of the vehicle owned by Lisa Goodrich, or to Lisa Goodrich herself for having entrusted the vehicle to him. There is no question the parties are aligned with respect to these claims being asserted in the cross-complaint.

Overall, it does not appear that it has been sufficiently established that there is a conflict or that the interests of the Erik Goodrich are substantially adverse to those of a Lisa Goodrich, to defeat the argument that the parties are on the same side. After reconsideration of the matter in light of the clarification of the procedural history of this matter, the ruling with respect to the peremptory challenge will be clarified to reflect the appropriate factual background, but the outcome will not change, and the challenge is denied.

RULING:

Motion for Reconsideration of Order Denying Cross-Defendant Erik Goodrich’s Peremptory Challenge is GRANTED.

The Court has reconsidered its November 17, 2020 ruling denying the Peremptory Challenge to Judicial Officer, considered all papers concerning that challenge and this motion, vacates the previous order of November 17, 2020, and issues the following order:

Court is in receipt of a Peremptory Challenge pursuant to Section 170.6 of the Code of Civil Procedure filed November 06, 2020 on behalf of Cross Defendant Erik Goodrich, to this Court, Judge Ralph C. Hofer.

Court finds that Plaintiff Lisa Goodrich has previously filed a peremptory challenge on October 01, 2020 to Judge William D. Stewart, presiding in North Central - Burbank Branch, Department A.

Court finds that Plaintiff and Cross-Defendant Lisa Goodrich and Cross-Defendant Erik Goodrich have already exercised their one Peremptory Challenge on October 01, 2020 as to Judge William D. Stewart, presiding in North Central - Burbank Branch, Department A, and further finds that Cross-Defendant Erik Goodrich has failed to establish by admissible evidence or otherwise that the interests of the co-cross-defendants are in conflict or that the parties have actual substantially adverse interests in the action such that they should not be considered on the same side for purposes of exercising Peremptory Challenge.

The Peremptory Challenge pursuant to Section 170.6 of the Code of Civil Procedure filed November 06, 2020 on behalf of Cross-Defendant Erik Goodrich, to this Court, Judge Ralph C. Hofer is DENIED.

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

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

Case Number: BC699002    Hearing Date: September 30, 2020    Dept: 29

Goodrich  v.  Padilla

Court Order Re: Transfer and Reassignment Of Complicated Personal Injury (“PI”) Case To An Independent Calendar ("IC") Courtroom From Department 29, A PI Hub Court;

The Court's order Re: Transfer of Complicated Personal Injury Case to an Independent Calendar Court, is posted on the court's website.

AFTER REVIEW OF THE FILE, THE COURT MAKES THE FOLLOWING ORDER:

Department 29 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 ordered reassigned and transferred to the NORTH CENTRAL District, the Honorable WILLIAM D. STEWART, Judge presiding in Department "A" of the BURBANK Superior Court, 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.

Any pending motions or hearings, including trial or status conferences, will be reset, continued or vacated at the direction of the newly assigned Independent Calendar Court.  (NOTE:  ALL hearings currently set in Department 29 of the Spring Street Courthouse are taken off calendar subject to being reset and notified by the receiving court Re:  New hearing dates.)

Judicial Assistant is directed to give notice to Plaintiff, who upon receipt of this notice, is ordered to give notice to all Parties of record.

Case Number: BC699002    Hearing Date: January 21, 2020    Dept: 29

Goodrich v. Padilla, et al.

Motion by Cross-Defendants for Separate Trials on the Cross-Complaint is DENIED.

In the complaint, Plaintiff Lisa Goodrich alleges that she was injured in a car collision caused by the negligence of Defendant Guillermo Eduardo Padilla, Jr., who, at the time of the accident, was acting in the course and scope of his employment with Defendant Greenwood Motor Lines, Inc. d/b/a/ R&L Carriers (“R&L Carriers”). Lisa Goodrich was a passenger in the car at the time of the accident. 

Padilla and R&L Carriers have filed a cross-complaint against Lisa Goodrich and Erik Goodrich, the driver of the car, alleging that the accident was caused by Erik Goodrich’s negligence and Lisa Goodrich’s negligent entrustment of her vehicle. The cross-complainants also allege claims for express contractual indemnity, equitable indemnity, and contribution against Erik Goodrich, and declaratory relief against Lisa Goodrich and Erik Goodrich. (Cross-complainants spell Mr. Goodrich’s name “Eric”; the Court uses the spelling in Mr. Goodrich’s papers).

The cross-defendants have moved for a separate trial on the cross-complaint pursuant to section 1048, subd. b of the Code of Civil Procedure, arguing that the cross-complaint consists “almost entirely of equitable causes of action which should be disposed of in a motion for summary adjudication.” Cross-defendants further argue that the “basis for the equitable causes of action in the cross-complaint arise out of the language of the release signed by Mr. Goodrich when he settled with R&L.”

The cross-complainants oppose the motion. They first argue that the Court has already decided the issue by denying the ex parte application on 12/4/2019. Cross-complainants are incorrect. The Court’s minute order states: “The Court finds that Cross-Defendants’ Ex Parte Application for Separate Trial on the Cross-Complaint should be addressed by a properly noticed motion.” The Court thus considers the merits here.

Section 1048, subd. b provides: “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, including a cause of action asserted in a cross-complaint . . . “

Here, the cross-defendants have not established that separate trials would further convenience or judicial economy or are necessary to avoid prejudice. The claims all arise out of a single car accident. The claims in the complaint and the claims for negligence, equitable indemnity, contribution and declaratory relief in the cross-complaint all turn on a determination of who was at fault for the accident and to what extent the parties were at fault. Such issues must necessarily be determined in a single trial.

Nor would a separate trial on the express contractual indemnity claim further judicial economy. It is more efficient for the Court to determine the entire action in a single trial. With respect to prejudice, cross-defendants merely state, in a conclusory manner, that allowing the contractual indemnity claim to be tried with the rest of the case would “mislead and confuse’ the jury, but they do not explain why that would be the case. Any potential confusion can be addressed through jury instructions.

Cross-defendants also argue that the cross-complaint presents equitable issues for the Court to decide and presents causes of action for which cross-defendants expect to obtain summary adjudication. This is not a basis for ordering separate trials.

Moving party is ordered to give notice.

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