This case was last updated from Los Angeles County Superior Courts on 08/15/2019 at 09:50:54 (UTC).

LIWEN HSU TOGI VS CITY OF SOUTH PASADENA

Case Summary

On 10/18/2017 LIWEN HSU TOGI filed a Personal Injury - Other Personal Injury lawsuit against CITY OF SOUTH PASADENA. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judges overseeing this case are WILLIAM D. STEWART and STEPHEN I. GOORVITCH. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0186

  • Filing Date:

    10/18/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

WILLIAM D. STEWART

STEPHEN I. GOORVITCH

 

Party Details

Petitioner and Plaintiff

TOGI LIWEN HSU

Respondents, Defendants and Cross Defendants

DOES 1 TO 20

SOUTH PASADENA CITY OF

WEST COAST ARBORISTS INC. DOE 6

Defendant and Cross Plaintiff

WEST COAST ARBORISTS INC. DOE 6

Intervenor

CHURCH MUTUAL INSURANCE COMPANY

Attorney/Law Firm Details

Petitioner and Plaintiff Attorneys

SU AIHUI ESQ.

SU AIHUI

Respondent and Defendant Attorneys

D'ORO FRANK J. ESQ.

D'ORO FRANK JOSEPH JR

MCMAHAN MARTIN SCOT

Defendant and Cross Defendant Attorney

D'ORO FRANK JOSEPH JR

Other Attorneys

LAUGHLIN FALBO LEVY & MORESI

 

Court Documents

Objection

6/14/2019: Objection

Reply

6/14/2019: Reply

Response

6/14/2019: Response

Declaration

6/14/2019: Declaration

Minute Order

6/21/2019: Minute Order

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

6/21/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Brief

6/28/2019: Brief

Response

6/28/2019: Response

Minute Order

7/3/2019: Minute Order

Certificate of Mailing for

7/3/2019: Certificate of Mailing for

Order

7/3/2019: Order

Notice of Ruling

7/5/2019: Notice of Ruling

NOTICE OF MOTION AND MOTION FOR LEAVE TO INTERVENE; ETC

7/17/2018: NOTICE OF MOTION AND MOTION FOR LEAVE TO INTERVENE; ETC

NOTICE OF MOTION AND MOTION FOR LEAVE TO INTERVENE;MEMORANDUM OF POINTS AND AUTHORTIES IN SUPPORT THEREOF;AND ETC.

7/17/2018: NOTICE OF MOTION AND MOTION FOR LEAVE TO INTERVENE;MEMORANDUM OF POINTS AND AUTHORTIES IN SUPPORT THEREOF;AND ETC.

CROSS-COMPLAINT

8/22/2018: CROSS-COMPLAINT

SUMMONS - CROSS-COMPLAINT

8/22/2018: SUMMONS - CROSS-COMPLAINT

Proof of Service by 1st Class Mail

8/30/2018: Proof of Service by 1st Class Mail

PROOF OF SERVICE SUMMONS

8/30/2018: PROOF OF SERVICE SUMMONS

62 More Documents Available

 

Docket Entries

  • 02/10/2020
  • Hearingat 09:30 AM in Department B at 300 East Olive, Burbank, CA 91502; Jury Trial

    [+] Read More [-] Read Less
  • 01/30/2020
  • Hearingat 08:30 AM in Department B at 300 East Olive, Burbank, CA 91502; Final Status Conference

    [+] Read More [-] Read Less
  • 08/07/2019
  • Docketat 10:00 AM in Department 5, Stephen I. Goorvitch, Presiding; Final Status Conference - Not Held - Vacated by Court

    [+] Read More [-] Read Less
  • 07/05/2019
  • DocketNotice of Ruling; Filed by SOUTH PASADENA, CITY OF (Defendant)

    [+] Read More [-] Read Less
  • 07/03/2019
  • Docketat 2:10 PM in Department B; Ruling on Submitted Matter

    [+] Read More [-] Read Less
  • 07/03/2019
  • DocketOrder (Court's Order re: Motion for Summary Judgment); Filed by Clerk

    [+] Read More [-] Read Less
  • 07/03/2019
  • DocketMinute Order ( (Ruling on Submitted Matter)); Filed by Clerk

    [+] Read More [-] Read Less
  • 07/03/2019
  • DocketCertificate of Mailing for (Minute Order (Ruling on Submitted Matter) of 07/03/2019); Filed by Clerk

    [+] Read More [-] Read Less
  • 06/28/2019
  • DocketBrief (Plaintiff Liwen Hsu Togi's Brief in Response to Four Cases Cited by Defendant City of South Pasadena During Motion for Summary Judgment); Filed by LIWEN HSU TOGI (Plaintiff)

    [+] Read More [-] Read Less
  • 06/28/2019
  • DocketResponse (DEFENDANT CITY OF SOUTH PASADENA'S RESPONSE TO PLAINTIFF'S ADDITIONAL BRIEFING WITH REGARD TO MOTION FOR SUMMARY JUDGMENT); Filed by SOUTH PASADENA, CITY OF (Defendant)

    [+] Read More [-] Read Less
87 More Docket Entries
  • 12/27/2017
  • DocketProof of Service (not Summons and Complaint)

    [+] Read More [-] Read Less
  • 12/27/2017
  • DocketProof of Service (not Summons and Complaint)

    [+] Read More [-] Read Less
  • 12/27/2017
  • DocketProof of Service (not Summons and Complaint); Filed by LIWEN HSU TOGI (Plaintiff)

    [+] Read More [-] Read Less
  • 11/27/2017
  • DocketAnswer; Filed by SOUTH PASADENA, CITY OF (Defendant)

    [+] Read More [-] Read Less
  • 11/27/2017
  • DocketANSWER OF CITY OF SOUTH PASADENA TO COMPLAINT; DEMAND FOR JURY TRIAL

    [+] Read More [-] Read Less
  • 11/14/2017
  • DocketPROOF OF SERVICE SUMMONS

    [+] Read More [-] Read Less
  • 11/14/2017
  • DocketProof-Service/Summons; Filed by LIWEN HSU TOGI (Plaintiff)

    [+] Read More [-] Read Less
  • 10/18/2017
  • DocketPLAINTIFF'S COMPLAINT FOR DAMAGES

    [+] Read More [-] Read Less
  • 10/18/2017
  • DocketComplaint; Filed by LIWEN HSU TOGI (Plaintiff)

    [+] Read More [-] Read Less
  • 10/18/2017
  • DocketSUMMONS

    [+] Read More [-] Read Less

Tentative Rulings

Case Number: ****0186 Hearing Date: July 26, 2022 Dept: 3

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT 3

LIWEN HSU TOGI ;

Plaintiff,

vs.

CITY OF SOUTH PASADENA , et al.,

Defendants.

Case No.:

****0186

Hearing Date:

July 26, 2022

Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

WEST COAST ARBORISTS, INC.’S MOTION FOR SUMMARY JUDGMENT

AND RELATED CROSS-ACTION

MOVING PARTY: Defendant/Cross-Defendant West Coast Arborists, LLC

RESPONDING PARTY: Defendant/Cross-Complainant City of South Pasadena

West Coast Arborists, Inc.’s Motion for Summary Judgment

The court considered the moving papers, opposition, and reply papers filed in connection with the motion.

BACKGROUND

This action arises out of a trip and fall incident involving an uplift in a sidewalk caused by a tree root. Plaintiff Liwen Hsu Togi filed this action on October 18, 2017, against Defendant City of South Pasadena (the “City”). On August 22, 2018, the City filed a cross-complaint against West Coast Arborists, LLC (“WCA”) alleging causes of action for apportionment of fault, indemnification, declaratory relief, and breach of contract. On October 16, 2018, WCA filed its own cross-complaint against the City for equitable indemnity, apportionment, and declaratory relief. On August 24, 2020, the court granted WCA’s motion for summary judgment as to Plaintiff’s action.

WCA now moves for summary judgment as to the City’s cross-complaint.

EVIDENCE

The court grants WCA’s request for judicial notice as to Exhibits A through P.

The court denies the City’s request for judicial notice as to Exhibits A and B.

The court finds it unnecessary to rule on WCA’s evidentiary objections submitted with its reply. (Code Civ. Proc., 437c, subd. (q).)

LEGAL STANDARD

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ( Code Civ. Proc., 437c ","ParentCiteID":null,"Processed":true,"Citation":{"current_string":"Code Civ. Proc., 437c, subd. (c)","original_string":"Code Civ. Proc., 437c, subd. (c)","error":null,"fullText":"Code Civ. Proc., 437c, subd. (c)","refers_to_cite":null,"shortText":"Code Civ. Proc., 437c","isParallel":false,"parallel":"","legistlativeHistory":null,"isLegislativeHistory":false,"start":2817,"end":2851,"pattern":"","readOrderIndex":2817,"index":212,"citeType":1,"CiteShepSignal":0,"CiteShepSignalLink":null,"story":"wdMainTextStory","PinPage":"","name":"CITRUS_BOOKMARK1","foundBy":null,"FullTextParen":null,"ParentheticalType":null,"IntermediateCite":false,"TOAHeading":null,"ts":{"$id":"1","End":834,"Offset":2605,"Start":0,"nref":0,"nind":0,"story":"wdMainTextStory","namedRanges":[{"$id":"2","Name":"CITRUS_BOOKMARK1","Range":{"$id":"3","ts":{"$ref":"1"},"_Start":212,"_End":246,"_Text":"“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., 437c, subd. (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) "},"foundBy":null,"pattern":null,"tabName":null},{"$id":"4","Name":"CITRUS_BOOKMARK3","Range":{"$id":"5","ts":{"$ref":"1"},"_Start":387,"_End":447,"_Text":"“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., 437c, subd. (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) "},"foundBy":"PsychCase","pattern":"Full.CaseCitation","tabName":"39 Cal. 3d 311"},{"$id":"6","Name":"CITRUS_BOOKMARK4","Range":{"$id":"7","ts":{"$ref":"1"},"_Start":774,"_End":831,"_Text":"“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., 437c, subd. (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) "},"foundBy":"PsychCase","pattern":"Full.CaseCitation","tabName":"53 Cal. 4th 861"},{"$id":"8","Name":"Psych_Cite_60","Range":{"$id":"9","ts":{"$id":"10","End":8522,"Offset":2605,"Start":0,"nref":0,"nind":0,"story":"wdMainTextStory","namedRanges":[{"$ref":"2"},{"$ref":"4"},{"$ref":"6"},{"$ref":"8"}],"Range":{"$id":"11","ts":{"$ref":"10"},"_Start":0,"_End":8522,"_Text":"“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., 437c, subd. (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) When a defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., 437c, subd. (p)(2).) DISCUSSION Allegations of the FAC On or about April 14, 2018, Plaintiff underwent cosmetic surgery at Defendants’ Pasadena location. (FAC, 6.) The procedure was a Brazilian Butt Lift (“BBL”) and was performed by Dr. Azad. (FAC, 6.) During the procedure, Dr. Azad performed liposuction on Plaintiff’s arms, flanks, back, abdomen, and inner thighs, and then transferred the fat into Plaintiff’s buttocks. (FAC, 7.) Post-surgery, Defendants’ medical staff applied a medium-sized full bodysuit garment onto Plaintiff and sent her home. (FAC, 8.) Two days later, on April 16, 2018, Plaintiff returned for her first post-operation appointment and discovered two fluid-filled blisters on her right and left flank. (FAC, 9.) Plaintiff was taken out of the medium-sized garment and placed into a larger garment. (FAC, 9.) Plaintiff was left with severe scarring of her midsection, especially on her left flank; hard, raised areas; skin darkening; uneven rippling in her abdomen; and little to no sensitivity in her midsection. (FAC, 10.) Subsequently, over the course of five months, Plaintiff began receiving non-invasive radiofrequency treatment by Defendants’ medical staff to help reinforce the problem areas and assist in the appearance of scars and skin darkening. (FAC, 11.) Plaintiff also began receiving Triamcinolone (“Kenolog”) injections directly into the scarred areas. (FAC, 11.) On or about September 15, 2018, when Plaintiff received her medical records from Defendants, she discovered that the original improperly fitted garment contributed to her blisters and eventual disfigurement. (FAC, 13.) Plaintiff received a second medical opinion on January 10, 2019, wherein she was informed that her surgery and aftercare were substandard and that the radiofrequency and Kenolog treatments could not have repaired the damage. (FAC, 14.) As a result of her disfigurement, Plaintiff began to suffer Body Dysmorphic Disorder and was later diagnosed as suffering from bipolar disorder. (FAC, 17-18.) First Cause of Action: Medical Negligence Defendants contend that the first cause of action is without merit because Plaintiff cannot establish the elements of breach or causation. “The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.) “The standard of care in a medical malpractice case requires that medical service providers exercise that…degree of skill, knowledge and care ordinarily possessed and exercised by members of their profession under similar circumstances. The standard of care against which the acts of a medical practitioner are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action….” (Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 108, fn. 1, quoting Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215.) Therefore, in medical malpractice cases, “expert opinion testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care….” (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 741.) Plaintiff’s theory of liability is that her injuries were caused by the removal of too much fat and/or by being placed in the wrong sized garment after her surgery by the medical staff. (Defendants’ Undisputed Material Fact (“UMF”) 2.) In support of their motions, Defendants offer the expert declaration of Terry Dubrow, MD. Dr. Dubrow is board certified in Plastic Surgery by the American Board of Plastic Surgery and has been in private practice as a plastic surgeon since 1995. (Harwood Decl., 4, Ex. A, 2 (hereinafter “Dubrow Decl.”).) Based on Dr. Dubrow’s education, training, and experience, he is familiar with the standard of care for cosmetic surgeons, cosmetic surgical facilities and their staff practicing within the communities in California. (Dubrow Decl., 4.) Dr. Dubrow’s opinions are informed by his detailed review of the operative complaint, the patient chart and treatment records for Plaintiff, and photographs produced by Plaintiff in response to Defendants’ discovery requests. (Dubrow Decl., 5.) It is Dr. Dubrow’s expert opinion that Dr. Azad and the other Defendants met the standard of care in the community with regard to the care and treatment they provided to Plaintiff. (UMF 33.) With respect to the amount of fat removed from Plaintiff’s body, Dr. Dubrow’s opinion is that Dr. Azad’s treatment plan (lipodystrophy of the full abdomen, mons pubis, bilateral inner thighs, bilateral flanks, bilateral hips, bilateral later back, bilateral posterior aspect of the arms, and sacrum) and his execution of the plan (performance of the SAFE liposuction technique using a MicroAire for removal of fat) was within the standard of care. (Dubrow Decl., 38(a), (d).) With respect to Plaintiff’s post-operative care and treatment, Dr. Dubrow’s opinion is that given her approximate size, it was within the standard of care to place her in medium sized garments. (Dubrow Decl., 38(e).) Moreover, it is Dr. Dubrow’s expert opinion that no negligent act or omission by Defendants caused or significantly contributed to Plaintiff’s injuries because (1) development of bilateral flank wounds is a known complication of liposuction that can occur in the absence of negligence, and (2) the garments in which Plaintiff was placed were appropriate. (Dubrow Decl., 39.) In opposition, Plaintiff offers the expert declaration of Juris Bunkis, MD FACS. Dr. Bunkis is a double-board certified plastic surgeon and has been in private practice specializing in aesthetic surgery since 1984. (Theodosiadis Decl., 3, Ex. 1, 1 (hereinafter “Bunkis Decl.”).) In forming his opinions, Dr. Bunkis relied on the same documents as Dr. Dubrow, as well as a comprehensive physical examination of Plaintiff on January 10, 2019. (Bunkis Decl., 5.) Dr. Bunkis opines that Plaintiff has “scar against muscle” and that “the skin and fat died.” (Bunkis Decl., 39.) Dr. Bunkis states that he “cannot tell in retrospect” if “the skin and fat died” because too much fat was removed or because of the excessively tight dressing. (Bunkis Decl., 39.) However, Dr. Bunkis opines that either way, “this was medical negligence.” (Bunkis Decl., 39.) According to Dr. Bunkis, Plaintiff was placed in a compression garment that was too tight, which was a breach of the duty to place Plaintiff in a proper-sized compression garment and which was a substantial factor in causing Plaintiff’s injuries. (Bunkis Decl., 40.) Dr. Bunkis then concludes that “[t]o a reasonable degree of medical probability, Dr. Azad and other defendants by acts and omissions committed Medical Negligence….” and that Plaintiff’s procedure and aftercare “were not within the community standard of care.” (Bunkis Decl., 42-43.) Defendants object to Dr. Bunkis’s declaration, and in particular, his conclusions, as conclusory. Defendants argue that Dr. Bunkis has offered no explanation or factual support for his conclusions that Defendants deviated from the standard of care or that those deviations are what caused Plaintiff’s injuries. The court agrees. "}},"_Start":608,"_End":613,"_Text":"“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., 437c, subd. (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) When a defendant seeks summary judgment, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., 437c, subd. (p)(2).) DISCUSSION Allegations of the FAC On or about April 14, 2018, Plaintiff underwent cosmetic surgery at Defendants’ Pasadena location. (FAC, 6.) The procedure was a Brazilian Butt Lift (“BBL”) and was performed by Dr. Azad. (FAC, 6.) During the procedure, Dr. Azad performed liposuction on Plaintiff’s arms, flanks, back, abdomen, and inner thighs, and then transferred the fat into Plaintiff’s buttocks. (FAC, 7.) Post-surgery, Defendants’ medical staff applied a medium-sized full bodysuit garment onto Plaintiff and sent her home. (FAC, 8.) Two days later, on April 16, 2018, Plaintiff returned for her first post-operation appointment and discovered two fluid-filled blisters on her right and left flank. (FAC, 9.) Plaintiff was taken out of the medium-sized garment and placed into a larger garment. (FAC, 9.) Plaintiff was left with severe scarring of her midsection, especially on her left flank; hard, raised areas; skin darkening; uneven rippling in her abdomen; and little to no sensitivity in her midsection. (FAC, 10.) Subsequently, over the course of five months, Plaintiff began receiving non-invasive radiofrequency treatment by Defendants’ medical staff to help reinforce the problem areas and assist in the appearance of scars and skin darkening. (FAC, 11.) Plaintiff also began receiving Triamcinolone (“Kenolog”) injections directly into the scarred areas. (FAC, 11.) On or about September 15, 2018, when Plaintiff received her medical records from Defendants, she discovered that the original improperly fitted garment contributed to her blisters and eventual disfigurement. (FAC, 13.) Plaintiff received a second medical opinion on January 10, 2019, wherein she was informed that her surgery and aftercare were substandard and that the radiofrequency and Kenolog treatments could not have repaired the damage. (FAC, 14.) As a result of her disfigurement, Plaintiff began to suffer Body Dysmorphic Disorder and was later diagnosed as suffering from bipolar disorder. (FAC, 17-18.) First Cause of Action: Medical Negligence Defendants contend that the first cause of action is without merit because Plaintiff cannot establish the elements of breach or causation. “The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage.” (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.) “The standard of care in a medical malpractice case requires that medical service providers exercise that…degree of skill, knowledge and care ordinarily possessed and exercised by members of their profession under similar circumstances. The standard of care against which the acts of a medical practitioner are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action….” (Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 108, fn. 1, quoting Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 215.) Therefore, in medical malpractice cases, “expert opinion testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care….” (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 741.) Plaintiff’s theory of liability is that her injuries were caused by the removal of too much fat and/or by being placed in the wrong sized garment after her surgery by the medical staff. (Defendants’ Undisputed Material Fact (“UMF”) 2.) In support of their motions, Defendants offer the expert declaration of Terry Dubrow, MD. Dr. Dubrow is board certified in Plastic Surgery by the American Board of Plastic Surgery and has been in private practice as a plastic surgeon since 1995. (Harwood Decl., 4, Ex. A, 2 (hereinafter “Dubrow Decl.”).) Based on Dr. Dubrow’s education, training, and experience, he is familiar with the standard of care for cosmetic surgeons, cosmetic surgical facilities and their staff practicing within the communities in California. (Dubrow Decl., 4.) Dr. Dubrow’s opinions are informed by his detailed review of the operative complaint, the patient chart and treatment records for Plaintiff, and photographs produced by Plaintiff in response to Defendants’ discovery requests. (Dubrow Decl., 5.) It is Dr. Dubrow’s expert opinion that Dr. Azad and the other Defendants met the standard of care in the community with regard to the care and treatment they provided to Plaintiff. (UMF 33.) With respect to the amount of fat removed from Plaintiff’s body, Dr. Dubrow’s opinion is that Dr. Azad’s treatment plan (lipodystrophy of the full abdomen, mons pubis, bilateral inner thighs, bilateral flanks, bilateral hips, bilateral later back, bilateral posterior aspect of the arms, and sacrum) and his execution of the plan (performance of the SAFE liposuction technique using a MicroAire for removal of fat) was within the standard of care. (Dubrow Decl., 38(a), (d).) With respect to Plaintiff’s post-operative care and treatment, Dr. Dubrow’s opinion is that given her approximate size, it was within the standard of care to place her in medium sized garments. (Dubrow Decl., 38(e).) Moreover, it is Dr. Dubrow’s expert opinion that no negligent act or omission by Defendants caused or significantly contributed to Plaintiff’s injuries because (1) development of bilateral flank wounds is a known complication of liposuction that can occur in the absence of negligence, and (2) the garments in which Plaintiff was placed were appropriate. (Dubrow Decl., 39.) In opposition, Plaintiff offers the expert declaration of Juris Bunkis, MD FACS. Dr. Bunkis is a double-board certified plastic surgeon and has been in private practice specializing in aesthetic surgery since 1984. (Theodosiadis Decl., 3, Ex. 1, 1 (hereinafter “Bunkis Decl.”).) In forming his opinions, Dr. Bunkis relied on the same documents as Dr. Dubrow, as well as a comprehensive physical examination of Plaintiff on January 10, 2019. (Bunkis Decl., 5.) Dr. Bunkis opines that Plaintiff has “scar against muscle” and that “the skin and fat died.” (Bunkis Decl., 39.) Dr. Bunkis states that he “cannot tell in retrospect” if “the skin and fat died” because too much fat was removed or because of the excessively tight dressing. (Bunkis Decl., 39.) However, Dr. Bunkis opines that either way, “this was medical negligence.” (Bunkis Decl., 39.) According to Dr. Bunkis, Plaintiff was placed in a compression garment that was too tight, which was a breach of the duty to place Plaintiff in a proper-sized compression garment and which was a substantial factor in causing Plaintiff’s injuries. (Bunkis Decl., 40.) Dr. Bunkis then concludes that “[t]o a reasonable degree of medical probability, Dr. Azad and other defendants by acts and omissions committed Medical Negligence….” and that Plaintiff’s procedure and aftercare “were not within the community standard of care.” (Bunkis Decl., 42-43.) Defendants object to Dr. Bunkis’s declaration, and in particular, his conclusions, as conclusory. Defendants argue that Dr. Bunkis has offered no explanation or factual support for his conclusions that Defendants deviated from the standard of care or that those deviations are what caused Plaintiff’s injuries. The court agrees. "},"foundBy":null,"pattern":null,"tabName":null}],"Range":{"$id":"12","ts":{"$ref":"1"},"_Start":0,"_End":834,"_Text":"“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., 437c, subd. (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) "}},"master":"","kernel_data":"Code Civ. Proc., 437c, subd. (c)Code Civ. Proc., 437c, subd. (c)Code Civ. Proc., 437c, subd. (c)cite"},"IconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"Display":"Code Civ. Proc., 437c, subd. (c)","CitationRichText":"Code Civ. Proc., 437c, subd. (c)","IconShepardSignal":{"Id":-1,"Title":"No Analysis","IconType":0,"ImagePath":"/Content/Images/blank.jpg","Description":null},"ShepardSignalLink":null,"ShowShepardSignal":false,"ShowParentLink":false,"ParentCitation":null,"SuggestionsForCitation":[],"SuggestionsForCite":[],"SelectedSuggestion":null,"IsSuggestionEnabled":false,"UseCurrentIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"UseSuggestionIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"OriginalUseCurrentIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"CitationMarkupText":"Code Civ. Proc., 437c, subd. (c)","ShortText":"Code Civ. Proc., 437c","IsParentCorrect":true,"IsParentCorrectableConfirmed":false,"IsParentUnknownConfirmed":false,"IsParentCorrectable":false,"IsParentUnknown":false,"CitationOriginalText":"Code Civ. Proc., 437c, subd. (c)","ModifiedCiteText":null,"MarkUp":null,"IsCheckCurrent":false,"PreviousCitationRetain":null},"CQ":"","TOA":"","html":"

Code Civ. Proc., 437c, subd. (c)

"}" id="-297542143">Code Civ. Proc., 437c, subd. (c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. ( PsychCase Full.CaseCitation 39 Cal. 3d 311 ","ParentCiteID":null,"Processed":true,"Citation":{"current_string":"Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850","original_string":"Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850","error":null,"fullText":"Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850","refers_to_cite":null,"shortText":"39 Cal. 3d 311","isParallel":false,"parallel":"","legistlativeHistory":null,"isLegislativeHistory":false,"start":2992,"end":3052,"pattern":"Full.CaseCitation","readOrderIndex":2992,"index":387,"citeType":1,"CiteShepSignal":4,"CiteShepSignalLink":"https: advance.lexis.com/api/shepards?context=1000516&id=urn:contentItem:7XW4-F4N1-2NSF-C04W-00000-00","story":"wdMainTextStory","PinPage":"318","name":"CITRUS_BOOKMARK3","foundBy":"PsychCase","FullTextParen":null,"ParentheticalType":null,"IntermediateCite":false,"TOAHeading":null,"ts":{"$ref":"1"},"master":" RESULTS_2","kernel_data":"Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850Full.CaseCitationciteCaseNameXYZZY v. KamalaCaseName.FirstPartyBlankCaseName.FirstParty._PatternParty.PartyCaseName.FirstParty.PartyBlankCaseName.SecondPartyKirwanCaseName.SecondParty._PatternParty.PartyCaseName.SecondParty.PartyKirwanCaseName.vv.CourtParenthetical (1985) CourtParenthetical._PatternCourtParenthetical.CourtParentheticalCourtParenthetical.Date1985 CourtParenthetical.Date._PatternCourtParenthetical.Date.DateCourtParenthetical.Date.Year1985CourtParenthetical.Date.Year._PatternCourtParenthetical.Date.Year.YearCourtParenthetical.Date.Year.Year1985CourtParenthetical.ForbiddenComma._PatternForbiddenComma.ForbiddenCommaCourtParenthetical.Switch ( [ L (CourtParenthetical.Switch ( [ L.((CourtParenthetical.Switch ( [ L._PatternSwitch ( [ L.Switch ( [ LCourtParenthetical.Switch ) ] R) CourtParenthetical.Switch ) ] R.))CourtParenthetical.Switch ) ] R._PatternSwitch ) ] R.Switch ) ] RFirstPartyBlank HAS_AUTHORITATIVE_DATAYESNY L Paren(NY R Paren)Reporter39 Cal.3d 311, 318Reporter.[[Reporter.]]Reporter. PinPages318Reporter. PinPages._PatternPinPages.PinPagesReporter. PinPages.First318Reporter. PinPages.First. PageNumber318Reporter. PinPages.First._PatternFirstPageInRange.FirstPageInRangeReporter._PatternReporter.ReporterReporter.FirstPage311Reporter.NameCal. 3dReporter.pagepageReporter.Reporter.pagepageReporter.RequiredComma, Reporter.RequiredComma._PatternRequiredComma.RequiredCommaReporter.RequiredComma.Comma,Reporter.Volume39RequiredComma, RequiredComma._PatternRequiredComma.RequiredCommaSecondPartyKirwan suprasupra, supra.,, supra._PatternShortCaseSupra.ShortCaseSuprasupra.suprasupramaster_name RESULTS_2"},"IconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"Display":"Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850","CitationRichText":"Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850","IconShepardSignal":{"Id":4,"Title":"Validity questioned - cases","IconType":0,"ImagePath":"/Content/Images/IconSignalQuestionedAnalysis.gif","Description":null},"ShepardSignalLink":"https: advance.lexis.com/api/shepards?context=1000516&id=urn:contentItem:7XW4-F4N1-2NSF-C04W-00000-00","ShowShepardSignal":true,"ShowParentLink":false,"ParentCitation":null,"SuggestionsForCitation":[],"SuggestionsForCite":[],"SelectedSuggestion":null,"IsSuggestionEnabled":false,"UseCurrentIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"UseSuggestionIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"OriginalUseCurrentIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"CitationMarkupText":"Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850","ShortText":"39 Cal. 3d 311","IsParentCorrect":true,"IsParentCorrectableConfirmed":false,"IsParentUnknownConfirmed":false,"IsParentCorrectable":false,"IsParentUnknown":false,"CitationOriginalText":"Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850","ModifiedCiteText":null,"MarkUp":null,"IsCheckCurrent":false,"PreviousCitationRetain":null},"CQ":"","TOA":"","html":"

Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850

"}" id="-1219663847">Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. ( PsychId Id Id. at p. 403 ","ParentCiteID":"CITRUS_BOOKMARK3","Processed":true,"Citation":{"current_string":"Ibid.","original_string":"Ibid.","error":null,"fullText":"Ibid.","refers_to_cite":null,"shortText":"Id. at p. 403","isParallel":false,"parallel":null,"legistlativeHistory":null,"isLegislativeHistory":false,"start":3213,"end":3218,"pattern":"Id","readOrderIndex":3212,"index":3213,"citeType":1,"CiteShepSignal":0,"CiteShepSignalLink":null,"story":"wdMainTextStory","PinPage":"","name":"CITRUS_BOOKMARK60","foundBy":"PsychId","FullTextParen":"Ibid.","ParentheticalType":null,"IntermediateCite":false,"TOAHeading":null,"ts":{"$ref":"10"},"master":" RESULTS_2","kernel_data":"Ibid.Ibid.Ibid. Id.CaseUIdciteCaseNameXYZZY v. KamalaCaseName.FirstPartyBlankCaseName.FirstParty._PatternParty.PartyCaseName.FirstParty.PartyBlankCaseName.SecondPartyKirwanCaseName.SecondParty._PatternParty.PartyCaseName.SecondParty.PartyKirwanCaseName.vv.CourtParenthetical (1985) CourtParenthetical._PatternCourtParenthetical.CourtParentheticalCourtParenthetical.Date1985 CourtParenthetical.Date._PatternCourtParenthetical.Date.DateCourtParenthetical.Date.Year1985CourtParenthetical.Date.Year._PatternCourtParenthetical.Date.Year.YearCourtParenthetical.Date.Year.Year1985CourtParenthetical.ForbiddenComma._PatternForbiddenComma.ForbiddenCommaCourtParenthetical.Switch ( [ L (CourtParenthetical.Switch ( [ L.((CourtParenthetical.Switch ( [ L._PatternSwitch ( [ L.Switch ( [ LCourtParenthetical.Switch ) ] R) CourtParenthetical.Switch ) ] R.))CourtParenthetical.Switch ) ] R._PatternSwitch ) ] R.Switch ) ] RFirstPartyBlank HAS_AUTHORITATIVE_DATAYESIdIbid.Id._PatternIbidGraph.IbidGraphId.ForbiddenComma._PatternForbiddenComma.ForbiddenCommaId.IdIbid.master_name RESULTS_2NY L Paren(NY R Paren)Reporter39 Cal.3d 311, 318Reporter.[[Reporter.]]Reporter. PinPages318Reporter. PinPages._PatternPinPages.PinPagesReporter. PinPages.First318Reporter. PinPages.First. PageNumber318Reporter. PinPages.First._PatternFirstPageInRange.FirstPageInRangeReporter._PatternReporter.ReporterReporter.FirstPage311Reporter.NameCal. 3dReporter.pagepageReporter.Reporter.pagepageReporter.RequiredComma, Reporter.RequiredComma._PatternRequiredComma.RequiredCommaReporter.RequiredComma.Comma,Reporter.Volume39RequiredComma, RequiredComma._PatternRequiredComma.RequiredCommaSecondPartyKirwan suprasupra, supra.,, supra._PatternShortCaseSupra.ShortCaseSuprasupra.suprasupra"},"IconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"Display":"Ibid.","CitationRichText":"Ibid.","IconShepardSignal":{"Id":-1,"Title":"No Analysis","IconType":0,"ImagePath":"/Content/Images/blank.jpg","Description":null},"ShepardSignalLink":null,"ShowShepardSignal":false,"ShowParentLink":true,"ParentCitation":null,"SuggestionsForCitation":[],"SuggestionsForCite":[],"SelectedSuggestion":null,"IsSuggestionEnabled":false,"UseCurrentIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"UseSuggestionIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"OriginalUseCurrentIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"CitationMarkupText":"Ibid.","ShortText":"Id. at p. 403","IsParentCorrect":true,"IsParentCorrectableConfirmed":false,"IsParentUnknownConfirmed":false,"IsParentCorrectable":false,"IsParentUnknown":false,"CitationOriginalText":"Ibid.","ModifiedCiteText":null,"MarkUp":null,"IsCheckCurrent":false,"PreviousCitationRetain":null},"CQ":"","TOA":"","html":"

Ibid.

"}" id="-222524707">Ibid.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” ( PsychCase Full.CaseCitation 53 Cal. 4th 861 ","ParentCiteID":null,"Processed":true,"Citation":{"current_string":"Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389","original_string":"Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389","error":null,"fullText":"Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389","refers_to_cite":null,"shortText":"53 Cal. 4th 861","isParallel":false,"parallel":"","legistlativeHistory":null,"isLegislativeHistory":false,"start":3379,"end":3436,"pattern":"Full.CaseCitation","readOrderIndex":3379,"index":774,"citeType":1,"CiteShepSignal":2,"CiteShepSignalLink":"https: advance.lexis.com/api/shepards?context=1000516&id=urn:contentItem:554Y-9V21-J9X6-H4RV-00000-00","story":"wdMainTextStory","PinPage":"872","name":"CITRUS_BOOKMARK4","foundBy":"PsychCase","FullTextParen":null,"ParentheticalType":null,"IntermediateCite":false,"TOAHeading":null,"ts":{"$ref":"1"},"master":" RESULTS_3","kernel_data":"Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389Full.CaseCitationciteCaseNameXYZZY v. KamalaCaseName.FirstPartyC.A.CaseName.FirstParty._PatternParty.PartyCaseName.FirstParty.PartyC.A.CaseName.SecondPartyWilliam S. Hart Union High School Dist.CaseName.SecondParty._PatternParty.PartyCaseName.SecondParty.PartyWilliam S. Hart Union High School Dist.CaseName.vv.CourtParenthetical (2012) CourtParenthetical._PatternCourtParenthetical.CourtParentheticalCourtParenthetical.Date2012 CourtParenthetical.Date._PatternCourtParenthetical.Date.DateCourtParenthetical.Date.Year2012CourtParenthetical.Date.Year._PatternCourtParenthetical.Date.Year.YearCourtParenthetical.Date.Year.Year2012CourtParenthetical.ForbiddenComma._PatternForbiddenComma.ForbiddenCommaCourtParenthetical.Switch ( [ L (CourtParenthetical.Switch ( [ L.((CourtParenthetical.Switch ( [ L._PatternSwitch ( [ L.Switch ( [ LCourtParenthetical.Switch ) ] R) CourtParenthetical.Switch ) ] R.))CourtParenthetical.Switch ) ] R._PatternSwitch ) ] R.Switch ) ] RFirstPartyC.A. HAS_AUTHORITATIVE_DATAYESNY L Paren(NY R Paren)Reporter53 Cal.4th 861, 872Reporter.[[Reporter.]]Reporter. PinPages872Reporter. PinPages._PatternPinPages.PinPagesReporter. PinPages.First872Reporter. PinPages.First. PageNumber872Reporter. PinPages.First._PatternFirstPageInRange.FirstPageInRangeReporter._PatternReporter.ReporterReporter.FirstPage861Reporter.NameCal. 4thReporter.pagepageReporter.Reporter.pagepageReporter.RequiredComma, Reporter.RequiredComma._PatternRequiredComma.RequiredCommaReporter.RequiredComma.Comma,Reporter.Volume53RequiredComma, RequiredComma._PatternRequiredComma.RequiredCommaSecondPartyWilliam S. Hart Union High School Dist. suprasupra, supra.,, supra._PatternShortCaseSupra.ShortCaseSuprasupra.suprasupramaster_name RESULTS_3"},"IconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"Display":"Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389","CitationRichText":"Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389","IconShepardSignal":{"Id":2,"Title":"Possible negative treatment - cases","IconType":0,"ImagePath":"/Content/Images/IconSignalPossibleNegative.gif","Description":null},"ShepardSignalLink":"https: advance.lexis.com/api/shepards?context=1000516&id=urn:contentItem:554Y-9V21-J9X6-H4RV-00000-00","ShowShepardSignal":true,"ShowParentLink":false,"ParentCitation":null,"SuggestionsForCitation":[],"SuggestionsForCite":[],"SelectedSuggestion":null,"IsSuggestionEnabled":false,"UseCurrentIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"UseSuggestionIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"OriginalUseCurrentIconIndicator":{"Id":1,"Title":"Cite is formatted correctly, its long and short form are automatically being updated, and it will be included in TOA.","IconType":1,"ImagePath":"~/Content/Images/CCF/RecognizedNoSuggestions.png","Description":"Number of cites recognized by system as valid."},"CitationMarkupText":"Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389","ShortText":"53 Cal. 4th 861","IsParentCorrect":true,"IsParentCorrectableConfirmed":false,"IsParentUnknownConfirmed":false,"IsParentCorrectable":false,"IsParentUnknown":false,"CitationOriginalText":"Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389","ModifiedCiteText":null,"MarkUp":null,"IsCheckCurrent":false,"PreviousCitationRetain":null},"CQ":"","TOA":"","html":"

Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389

"}" id="-2089375105">Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

DISCUSSION

Express Indemnity and Duty to Defend

In its cross-complaint, the City alleges that it entered into an Agreement for Services (the “Agreement”) with WCA that contains an indemnification/hold harmless provision. (Cross-Compl., Ex. A., para. 7.) The City alleges it tendered to WCA the defense of Plaintiff’s lawsuit against the City, but WCA did not respond to the tender and has refused to defend and indemnify the City from the claims asserted in Plaintiff’s complaint. The City’s claims against WCA for breach of contract and declaratory relief rest on those allegations.

Under the indemnification provision, WCA agreed to defend and indemnify the City against all claims “occurring or arising directly out of the negligent acts, recklessness or willful misconduct of [WCA] in the performance of its services under [the] Agreement.” (WCA’s Undisputed Material Fact (“UMF”) 2.) WCA contends that because the “services” are limited to those expressly contained in the Agreement and no language in the Agreement required WCA to inspect and report sidewalk damage, Plaintiff’s injuries could not have occurred or arisen “directly” out of WCA’s negligent performance of its “services” under the Agreement.

First, the court notes that WCA offers no analysis of or support for its first contention—that “services” (as the term is used in the indemnification provision) is limited to those expressly contained in the Agreement. Presumably, WCA is arguing that “services” is equivalent to the defined term “Services” as set forth in paragraph 1 of the Agreement. That paragraph provides that “Services” are “the tasks, obligations, and services set forth in the ‘Scope of Services’ attached to and incorporated into [the] Agreement as Exhibit A.” (Cross-Compl., Ex. A, para. 1.) It is essentially undisputed that the Scope of Services does not explicitly include inspecting and reporting sidewalk damage. (See UMF 4.) But because the defined term “Services” is not used in the indemnification provision, it is ambiguous whether “services” is, in fact, limited to those expressly contained in the Agreement.

Second, the court notes that WCA offers no evidence tying Plaintiff’s injuries to the inspection/reporting of sidewalk damage. Nothing in Plaintiff’s complaint or the City’s cross-complaint identifies the failure to inspect or report sidewalk damage as the negligent conduct at issue, and WCA has not presented any discovery responses or other evidence that sets forth the factual basis for Plaintiff’s or the City’s theory of liability against WCA. To the extent that WCA is requesting judicial notice of WCA’s prior motion for summary judgment against Plaintiff in order to incorporate the evidence from that prior motion into WCA’s pending motion against the City, the request is procedurally improper. And to the extent that WCA is using the court’s earlier order granting summary judgment in favor of WCA against Plaintiff to shortcut its burden as the moving party in WCA’s motion against the City, that, too, is improper. In any event, WCA’s contention that Plaintiff’s injuries could not have occurred or arisen out of any negligent, reckless, or willful act by WCA because the court’s prior order found WCA owed no duty to Plaintiff, overstates the prior order’s findings. Moreover, collateral estoppel does not apply to the express indemnity claim because the issue decided in the prior summary judgment motion is not identical with the one presented here. (Cf. Columbus Line, Inc. v. Gray Line Sight-Seeing Companies Associated, Inc. (1981) 120 Cal.App.3d 622, 629 [finding that summary judgment determination “that Gray Line was not negligent toward plaintiffs” was identical to cross-complainant’s attempt to seek equitable indemnity “from Gray Line on the ground that it was negligent toward plaintiffs”].[1]) In WCA’s summary judgment motion on Plaintiff’s complaint, the issue decided was that there was no triable issue of fact as to whether WCA was negligent toward Plaintiff under any theory, including a contract theory; the court found no liability because WCA owed no duty to Plaintiff. The issue in WCA’s pending motion is whether a triable issue of fact exists that Plaintiff’s injuries arose from WCA’s negligent performance of its services under the Agreement. While the evidence and argument involving these issues may overlap, they are not identical, and thus collateral estoppel does not shift the summary judgment burden.[2]

Accordingly, the court finds WCA has not carried its initial burden of showing the City cannot establish that WCA breached its contract by failing to defend or indemnify the City and that, accordingly, no merit exists to the City’s claims for breach of contract and declaratory relief. Because WCA is moving for summary judgment, not summary adjudication, and because the presence of any triable issue requires denial of the motion for summary judgment, the court need not consider WCA’s arguments about the City’s equitable causes of action.

CONCLUSION

Based on the foregoing, the court denies WCA’s motion for summary judgment.

The City is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: July 25, 2022

Colin Leis

Judge of the Superior Court


[1] It is worth pointing out footnote 5 of the Columbus Line, Inc. opinion, where the Court of Appeal observed that on a summary judgment motion, the court is limited to determining “whether facts have been presented which give rise to a triable issue; the court may not pass upon the issue itself.”

[2] The court also notes that the argument that collateral estoppel bars the express indemnity claims appears to have been raised for the first time in WCA’s reply, which is also improper. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.)



Case Number: ****0186 Hearing Date: April 6, 2022 Dept: 3

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT 3

LIWEN HSU TOGI ;

Plaintiff,

vs.

CITY OF SOUTH PASADENA , et al.,

Defendants.

Case No.:

****0186

Hearing Date:

April 6, 2022

Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

DEFENDANT/CROSS-DEFENDANT WEST COAST ARBORISTS, INC.’S MOTION FOR PROTECTIVE ORDER RE DEPOSITION OF PERSON(S) MOST KNOWLEDGEABLE; REQUEST FOR SANCTIONS

AND RELATED CROSS-ACTION

MOVING PARTY: Defendant/Cross-Defendant West Coast Arborists, LLC

RESPONDING PARTY: Defendant/Cross-Complainant City of South Pasadena

Defendant/Cross-Defendant West Coast Arborists, Inc.’s Motion for Protective Order re Deposition of Person(s) Most Knowledgeable; Request for Sanctions

The court considered the moving papers, opposition, and reply papers filed in connection with the motion.

BACKGROUND

This action arises out of a trip and fall incident involving an uplift in a sidewalk caused by a tree root. Plaintiff Liwen Hsu Togi filed this action on October 18, 2017 against Defendant City of South Pasadena (the “City”). On August 22, 2018, the City filed a cross-complaint against West Coast Arborists, LLC (“WCA”) alleging causes of action for apportionment of fault, indemnification, declaratory relief, and breach of contract. On October 16, 2018, WCA filed its own cross-complaint against the City for equitable indemnity, apportionment, and declaratory relief. On August 24, 2020, the court granted WCA’s motion for summary judgment as to Plaintiff’s action. There is a pending motion for summary judgment by WCA as to the City’s cross-complaint.

On January 13, 2022, the City served a Sixth Amended Notice of Taking Oral Deposition and for Production of Documents and Things on WCA, seeking testimony from WCA’s person most knowledgeable on 54 different subject categories and production of certain documents. (McMahan Decl., 6, Ex. D.) On February 9, 2022, WCA served its objections to the deposition notice. (McMahan Decl., 7, Ex. E.)

WCA now moves for a protective order prohibiting the City from taking the deposition of WCA’s PMK and from demanding the production of documents pursuant to the deposition notice.

DISCUSSION

As an initial procedural matter, the court notes that WCA failed to file a separate statement pursuant to California Rules of Court, rule 3.1345. The instant motion involves the content of discovery requests, and so, WCA was required to submit an accompanying separate statement. The lack of a separate statement is a problem where, as here, the objections to the subject categories are broadly worded. WCA argues that “virtually every” subject category seeks the application of law to facts by a corporate witness, that “many” of the categories are unintelligible, that “several” of the categories seek information that would require the disclosure of attorney-client communications and attorney work product, and that “virtually all” of the categories seek testimony regarding topics that have already been decided in WCA’s favor. Without clarity about which objection applies to which category, the court’s task of determining whether the requested relief is appropriate is made that much more difficult. Despite this procedural defect, the court exercises its discretion to consider the merits of WCA’s motion, though the court admonishes WCA that compliance with applicable procedural rules is required for all future motions.

First, WCA argues that the City’s cross-complaint was rendered moot upon the granting of WCA’s summary judgment motion. But there is a pending dispositive motion on that issue, so the court need not and does not make a determination about the “mootness” of the City’s claims on the instant motion for a protective order.

Second, WCA argues that the “majority” of the categories improperly seek legal conclusions requiring the application of law to fact by a deponent. WCA contends that “legal contention” questions may not be asked at a deposition. (See Rifkind v. Superior Court (1994) 22 Cal.App.4th 1255, 1259 [propriety of deposition questions that ask a party deponent to state all facts, list all witnesses and identify all documents that support or pertain to a particular contention in that party’s pleadings].) But as noted by the City, the identified categories in the deposition notice are not legal contention questions. If legal contention questions are asked at deposition, WCA’s counsel may make the appropriate objection. Moreover, the court does not find that any of the 54 subject categories necessarily require the asking of legal contention questions. In other words, for every one of the 54 subject categories, the court can conceive of fact-based questions that are relevant to the category that can be answered by WCA’s PMK. Therefore, the court does not find that a protective order preventing wholesale the deposition of WCA’s PMK to be warranted.

Third, WCA argues that “many” of the categories can only be answered based on communications with counsel. WCA offers Categories 1, 3, 7, and 15 as examples. The court disagrees. None of these categories necessarily require asking questions that implicate the attorney-client or work product privilege.

Fourth, WCA argues that the City’s indemnity claims against WCA are baseless, and so requiring a PMK to answer questions relating to those claims is harassing and burdensome. But as discussed above, the pending motion for summary judgment is the better and more appropriate vehicle for determining whether any claims are baseless.

Fifth, WCA argues that parol evidence regarding the understanding of the parties is irrelevant and inadmissible. Even so, that does not bar discovery of facts relating to the parties’ understanding of the agreements they entered into.

Lastly, WCA argues that the document production requests are also improper. For the same reasons as set forth above, the court finds that WCA’s objections to the document requests are without merit.

CONCLUSION

Based on the foregoing, the court denies WCA’s motion for a protective order.

The court orders WCA to pay $2,050 in sanctions to the City within 30 days of the date of this order.

The City is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: April 6, 2022

Colin Leis

Judge of the Superior Court



Case Number: ****0186 Hearing Date: January 10, 2022 Dept: 3

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT 3

LIWEN HSU TOGI ;

Plaintiff,

vs.

CITY OF SOUTH PASADENA , et al.,

Defendants.

Case No.:

****0186

Hearing Date:

January 10, 2022

Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

DEFENDANT AND CROSS-COMPLAINANT CITY OF SOUTH PASADENA’S MOTION TO LIFT DISCOVERY STAY CURRENTLY IN PLACE

AND RELATED CROSS-ACTION

MOVING PARTY: Defendant and Cross-Complainant City of South Pasadena

RESPONDING PARTY: Cross-Defendant West Coast Arborists, LLC

Defendant and Cross Complainant City of South Pasadena’s Motion to Lift Discovery Stay Currently in Place

The court considered the moving papers, opposition, and reply papers filed in connection with the motion.

BACKGROUND

This action arises out of a trip and fall incident involving an uplift in a sidewalk caused by a tree root. Plaintiff Liwen Hsu Togi filed this action on October 18, 2017 against Defendant City of South Pasadena (the “City”). On August 22, 2018, the City filed a cross-complaint against West Coast Arborists, LLC (“WCA”) alleging causes of action for apportionment of fault, indemnification, declaratory relief, and breach of contract. On October 16, 2018, WCA filed its own cross-complaint against the City for equitable indemnity, apportionment, and declaratory relief.

On August 24, 2020, the court granted WCA’s motion for summary judgment as to Plaintiff’s action. On October 23, 2020, the court issued an order staying discovery between the City and WCA. There is a pending motion for summary judgment by WCA as to the City’s cross-complaint currently set for March 14, 2022.

The City now moves to lift the discovery stay so that it can conduct discovery in order to oppose WCA’s motion for summary judgment.

DISCUSSION

The City contends that WCA breached a contract for care and maintenance of the City’s trees by failing to report trees that could be hazardous, including sidewalk damage caused by trees and by failing to defend and indemnify the City against Plaintiff’s claim. The City contends that in order to oppose WCA’s motion for summary judgment, the City needs to depose WCA’s president and CEO, Patrick Mahoney, regarding the omission of a “sidewalk damage” field from certain site detail documents. (Ferrante-Alan Decl., 3, Exs. B2-B4.) The City argues that the omission of the “sidewalk damage” field from the documents is relevant to the question of whether WCA had a duty to inspect for sidewalk damage. In addition, the City seeks to depose Mr. Mahoney regarding the parameters of the maintenance contract and WCA’s performance thereunder in order to develop a theory that sidewalk inspections were an implied term of the maintenance contract. The City also argues that Mr. Mahoney is the only person with knowledge about the indemnity clause in the maintenance contract and WCA’s failure to respond to the tender of defense letter sent to him. According to the City, WCA would not be prejudiced by the deposition of Mr. Mahoney, while the City would be greatly prejudiced if unable to conduct discovery to oppose the motion for summary judgment.

WCA counters that lifting the discovery stay for the reasons set forth by the City would be pointless because the court’s order granting WCA’s motion for summary judgment as to Plaintiff’s action forecloses the City’s ability to prevail on its own cross-complaint. WCA argues that the court’s finding that WCA had no duty to Plaintiff precludes the City from continuing to litigate its equitable indemnity claims. As for the remaining causes of action, WCA contends that the summary judgment order precludes a finding of fault on the part of WCA.

Based on the arguments presented, the Court finds that the City has demonstrated good cause to lift the discovery stay.

CONCLUSION

Based on the foregoing, the court grants the City’s motion to lift the discovery stay.

The City is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: January 10, 2022

Colin Leis

Judge of the Superior Court



b'

Case Number: ****0186 Hearing Date: November 30, 2021 Dept: 3

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT 3

LIWEN HSU TOGI ;

Plaintiff,

vs.

CITY OF SOUTH PASADENA , et al.,

Defendants.

Case No.:

****0186

Hearing Date:

November 30, 2021

Time:

8:30 a.m.

[TENTATIVE] ORDER RE:

DEFENDANT’S MOTION TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA, AND REQUEST FOR SANCTIONS IN THE AMOUNT OF $2,565 AGAINST STEPHEN BROWN AND HIS COUNSEL, MARTIN S. MCMAHAN

AND RELATED CROSS-ACTION

MOVING PARTY: Cross-Complainant City of South Pasadena

RESPONDING PARTY: Cross-Defendant West Coast Arborists, LLC

Defendant’s Motion to Compel Compliance with Deposition Subpoena, and Request for Sanctions in the Amount of $2,565 against Stephen Brown and His Counsel, Martin S. McMahan

The court considered the moving papers, opposition, and reply papers filed in connection with the motion.

BACKGROUND

This action arises out of a trip and fall incident involving an uplift in a sidewalk caused by a tree root. Plaintiff Liwen Hsu Togi filed this action on October 18, 2017 against Defendant City of South Pasadena (the “City”). On August 22, 2018, the City filed a cross-complaint against West Coast Arborists, LLC (“WCA”) alleging causes of action for apportionment of fault, indemnification, declaratory relief, and breach of contract. On October 16, 2018, WCA filed its own cross-complaint against the City for equitable indemnity, apportionment, and declaratory relief.

On August 25, 2020, the City served the Deposition Subpoena for Personal Appearance and Notice of Taking Oral Deposition of Stephen Brown (the “Deposition Subpoena”) on counsel for the parties. (Ferrante-Alan Decl., ¶ 6, Ex. 7.) Mr. Brown is a former employee of WCA. The Deposition Subpoena was personally served on Mr. Brown on September 10, 2020. (Ferrante-Alan Decl., ¶ 7, Ex. 8.) On September 11, 2020, WCA served objections to the Deposition Subpoena. (Ferrante-Alan Decl., ¶ 8, Ex. 9.) The parties attempted to meet and confer to resolve WCA’s objections, to no avail. (Ferrante-Alan Decl., ¶¶ 9-12.)

The City now moves to compel Stephen Brown to comply with the Deposition Subpoena.

DISCUSSION

As noted by WCA, on October 23, 2020, Judge Kralik in Department B of the North Central District issued an order granting WCA’s motion to quash the Deposition Subpoena and request for protective order. The City does not dispute that it is now seeking compliance with the same deposition subpoena that was the subject of the October 23, 2020 order. The City merely argues that it was improper for the court to “base a ruling to quash a subpoena on dicta from another ruling.” (Reply, p. 7:15-16.) To the extent that the City is seeking reconsideration of the October 23, 2020 order, the City has not complied with the requirements set forth in Code of Civil Procedure section 1008, subdivision (a). Therefore, the court finds that the Deposition Subpoena has already been ordered quashed and a protective order is in place preventing the City from deposing Mr. Brown. Furthermore, the court declines to issue any rulings as to prospective subpoenas that have yet to be served.[1]

WCA requests the issuance of sanctions against the City and/or its attorneys on the basis that there was no justification for the filing of the instant motion. (Code Civ. Proc., ; 1987.2, subd. (a).) The court finds that the City’s motion was made without substantial justification and that sanctions are appropriate. The court further finds that the requested amount, $2,050 for attorney fees, is reasonable. (McMahan Decl., ¶ 19.)

CONCLUSION

Based on the foregoing, the court denies the City’s motion to compel.

The court orders the City to pay $2,050 to WCA within 30 days of the date of this order.

WCA is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: November 30, 2021

_____________________________

Colin Leis

Judge of the Superior Court


[1] The court encourages the parties to participate in an Informal Discovery Conference prior to bringing any more discovery motions.

'


Case Number: ****0186    Hearing Date: May 14, 2021    Dept: B

Superior Court of California

County of Los Angeles

North Central District

Department B

liwen hsu togi,

Plaintiff,

v.

city of south pasadena,

Defendant.

Case No.:

Hearing Date: May 14, 2021

[TENTATIVE] order RE:

motion to sever the cross-actions from plaintiff’s complaint

On April 16, 2021, Defendant West Coast Arborists, Inc. filed a motion to sever the cross-actions from Plaintiff’s complaint.

The jury trial is currently set for July 13, 2021.

On May 4, 2021, the Stipulation and Order Re Severance of Cross-Complaints from Main Action was signed and entered.

As such, the motion to serve the cross-actions from Plaintiff’s complaint is moot.

Defendant West Coast Arborists, Inc.’s motion to sever is taken off-calendar.

Defendant shall provide notice of this order.

DATED: May 14, 2021 ___________________________

John Kralik

Judge of the Superior Court



Case Number: ****0186    Hearing Date: October 23, 2020    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

liwen hsu togi,

Plaintiff,

v.

city of south pasadena,

Defendant.

Case No.: ****0186

Hearing Date: October 23, 2020

[TENTATIVE] order RE:

(1) motion to compel further responses; and

(2) motion to quash deposition subpoena

BACKGROUND

A. Allegations

Plaintiff Liwen Hsu Togi (“Plaintiff”) alleges that on March 3, 2017, she fell as a result of a dangerous condition while on her way to work. She alleges that Defendants were the possessors, controllers, managers, designers, maintainers, inspectors, supervisors, and owners of the portion of public sidewalk, parkway, and trees abutting the real property at 1013 Mound Avenue, South Pasadena, California 91030. The complaint, filed October 18, 2017, alleges a single cause of action for negligence/premises liability.

On August 22, 2018, Defendant City of South Pasadena (“City”) filed a cross-complaint against Cross-Defendant West Coast Arborists, Inc. (“WCA”), alleging causes of action for: (1) indemnification; (2) apportionment of fault; (3) declaratory relief; and (4) breach of contract.

On October 16, 2018, WCA filed a cross-complaint against City for: (1) equitable indemnity; (2) contribution; and (3) declaratory relief.

B. Discovery Motions

On June 12, 2020, City filed a motion to compel WCA’s further responses to special interrogatories, set one (“SROG”). City seeks $2,920.00 in sanctions. On October 9, 2020, WCA filed an opposition brief. On October 16, 2020, City filed the reply.

On September 21, 2020, WCA filed a motion to quash City’s deposition subpoena to former employee Stephen Brown and request for a protective order. On October 8, 2020, City filed an opposition to the motion.[1] On October 16, 2020, WCA filed the reply.

DISCUSSION OF MOTION TO COMPEL FURTHER RESPONSES

City moves to compel WCA’s further response to SROG No. 2 only.

SROG No. 2 asks WCA to identify any and all of its employees who pruned the subject tree (Inventory ID No. 155337) during the calendar year 2019.

In response, WCA objected on the basis that the SROG was vague and ambiguous, violates attorney client and attorney work product privileges, violates WCA’s and/or third party’s right of privacy, violates CCP ; 2030.060 as it includes subparts and is compound, and seeks irrelevant discovery that is not reasonably calculated to lead to the discovery of admissible evidence.

WCA’s objections on the basis that the SROG was vague and ambiguous lacks merit as the SROG is straightforward and asks for the identity of WCA’s employees who pruned the subject tree (identified by number) in 2019. WCA has also not explained in its objection how the SROG is compound and why it is unable to respond.

The objection that this information would be privileged under the attorney-client privilege or the attorney work product doctrine also lacks merit because identifying which of WCA’s employees pruned a tree is not an attorney-client communication, nor do such facts involve an attorney’s impressions, conclusions, opinions, or legal research/theories. With regard to privacy concerns, WCA has not substantiated its objection on this ground.

Lastly, WCA objected on the ground of relevance because the subject accident occurred on March 3, 2017, but the SROG seeks information about the subject tree in 2019. In the moving papers, City argues that whether a defect existed in 2019 is relevant as to whether there was a defect at the time of the Plaintiff’s fall, particularly if there is no evidence that any alleged defect was repaired or addressed. City also seeks information whether WCA had a duty to inspect the area near the tree because WCA previously submitted a report: (a) in September 2014 stating there was no sidewalk damage; (b) but differently, omitting the sidewalk damage category in the September 2014 report; and (c) stating “no damage” to the sidewalk in March 2019. (Shapiro Decl., Ex. C [September 2014 WCA Report]; Ex. D [September 2014 WCA Report with omission]; Ex. E [March 2019 WCA Report].)

Here, the Court will find that the information sought by City is relevant to the action. Although the accident occurred in 2017, the only grid prunes WCA performed on the subject tree occurred in 2014 and 2019. In the SROG requests, City sought the employees who pruned the subject tree in 2014 and 2019 (SROG Nos. 1 and 2, respectively). As this the only recorded information by WCA regarding the subject tree, the discovery on the two grid prunes surrounding the subject accident may contain information that is reasonably calculated to lead to the discovery of admissible evidence.

As such, the motion is granted as to SROG No. 2.

The Court grants City’s request for sanctions in a reasonable amount of $665.00 ($205/hour x 3 hours, plus $50 telephonic appearance fees).

WCA’s request for sanctions in the amount of $2,050.00 is denied.

DISCUSSION OF MOTION TO COMPEL COMPLIANCE WITH DEPOSITION SUBPOENA

WCA moves to quash City’s deposition subpoena issued on former WCA employee Stephen Brown and for a protective order. WCA argues that the Court granted WCA’s motion for summary judgment on August 24, 2020, finding there was no dispute as to liability against WCA. In light of this, WCA argues that City is unnecessarily seeking discovery against WCA.

Mr. Brown is a former employee of WCA, who retired on August 28, 2018. (Brown Decl., ¶2.) City issued the deposition subpoena for personal appearance on Mr. Brown on August 25, 2020 and personally served him on September 10, 2020, seeking to depose him on September 15, 2020 via video-conferencing. (Id., Ex. A.) Concurrently, City served a Notice of Taking Oral Deposition of Mr. Brown via remote video conference, which informed Mr. Brown that he must have a computer/iPad/tablet to review and mark up exhibits and must download the Zoom and AgileLaw applications, or else inform City’s counsel at least 5 business days prior to the scheduled deposition so that City can provide the needed devices and/or a suitable location for the deposition. (Id., Ex. B.) The notice also asks for an email address to send the video conferencing link. (Id.) City stated that it reserves the right to continue the deposition and/or seek sanctions as appropriate if Mr. Brown failed to comply. (Id.)

In response to the deposition subpoena and notice of deposition, WCA’s counsel advised City that he would be representing Mr. Brown for the deposition and served an objection to the deposition on the grounds that the deposition subpoena was not timely served, the instructions were burdensome and oppressive because it required that Mr. Brown have electronic devices and software or that Mr. Brown appear remotely in contravention to stay-at-home orders. (Mot., Ex. C.) WCA also argues that Mr. Brown’s testimony is no longer the subject to adjudication in light of the Court’s order granting WCA’s motion for summary judgment on the complaint. (Id.)

In opposition, City argues that despite the Court granting WCA’s motion for summary judgment on the complaint, City may still seek discovery from WCA regarding City’s cross-complaint alleged against WCA. City argues that it was not a party to WCA’s motion for summary judgment on Plaintiff’s complaint (i.e., regarding negligence and duty with respect to Plaintiff) and thus no findings were made as to City’s cross-complaint.[2]

At the deposition of Ernesto Macias, Mr. Macias testified that Mr. Brown allegedly had a conversation with Jessie Barajas (of City) regarding the “Sidewalk Damage” field in the Arbor Access program wherein Mr. Barajas instructed Mr. Brown to turn off the sidewalk damage field. (Mot., Ex. E.) City argues that this representation cannot be verified unless Mr. Brown is deposed because Mr. Macias’ statement is currently inadmissible hearsay.

While City argues Mr. Brown’s testimony is necessary to address and clarify what obligations WCA owed to City, the scope of work performed by WCA, and whether WCA’s action or inaction amounted to a breach of its contract with City, the Court previously discussed City’s suspicions regarding whether or not the “Sidewalk Damage” field in the ArborAccess program was applied. In its ruling on WCA’s motion for summary judgment (which City substantively opposed), the Court found that whether the sidewalk damage field was omitted was a non-issue and did not affect the Court’s analysis regarding whether WCA was contractually obligated to report sidewalk damage. In other words, the resolution of whether Mr. Brown was instructed to turn off the sidewalk damage field was a collateral dispute and did not bear on the ultimate liability of WCA to Plaintiff or City.

This appears to be the only purpose for which City seeks to depose Mr. Brown. Thus, the Court grants the motion to quash the deposition subpoena and for a protective order to prevent City from deposing Mr. Brown for this purpose.

WCA did not seek sanctions in connection with this motion. City’s request for sanctions for opposing the motion is denied.

City’s motion to compel compliance with the deposition subpoena of Mr. Brown is set for hearing on January 15, 2021. The Court notes that it would be inclined to rule on the motion to compel in a manner consistent with this motion to quash.

CONCLUSION AND ORDER

City’s motion to compel WCA’s further responses to SROG No. 2 is granted. WCA shall provide a further response within 20 days of notice of this order. WCA and its counsel of record, jointly and severally, are ordered to pay monetary sanctions in the amount of $665.00 to City, by and through counsel, within 20 days of notice of this order.

WCA’s motion to quash the deposition subpoena issued on Mr. Brown and for a protective order is granted.

City shall provide notice of this order.


[1] The Court notes that City filed a motion to compel Stephen Brown’s compliance with deposition subpoena on September 30, 2020, which is set to be heard on January 15, 2021.

[2] WCA’s motion for summary judgment was directed against Plaintiff’s complaint only and not on the cross-complaints. The Court notes, however, that City opposed WCA’s motion for summary judgment and that Plaintiff’s opposition papers essentially relied on City’s arguments. (Plaintiff did not file her own separate statement in opposition.)



Case Number: ****0186    Hearing Date: August 21, 2020    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

liwen hsu togi,

Plaintiff,

v.

city of south pasadena,

Defendant.

Case No.: ****0186

Hearing Date: August 21, 2020 (cont. from July 10, 2020)

[TENTATIVE] order RE:

motion for summary judgment

BACKGROUND

A. Allegations

Plaintiff Liwen Hsu Togi (“Plaintiff”) alleges that on March 3, 2017, she fell as a result of a dangerous condition while on her way to work. She alleges that Defendants were the possessors, controllers, managers, designers, maintainers, inspectors, supervisors, and owners of the portion of public sidewalk, parkway, and trees abutting the real property at 1013 Mound Avenue, South Pasadena, California 91030. The complaint, filed October 18, 2017, alleges a single cause of action for negligence/premises liability.

On August 22, 2018, Defendant City of South Pasadena (“City”) filed a cross-complaint against Cross-Defendant West Coast Arborists, Inc. (“WCA”), alleging causes of action for: (1) indemnification; (2) apportionment of fault; (3) declaratory relief; and (4) breach of contract.

On October 16, 2018, WCA filed a cross-complaint against City for: (1) equitable indemnity; (2) contribution; and (3) declaratory relief.

B. Motion for Summary Judgment

On March 6, 2020, WCA filed a motion for summary judgment, arguing that there are no triable issues of material facts as to the alleged negligence of WCA.

On June 25, 2020, City filed an opposition to the motion.

On June 26, 2020, Plaintiff filed an opposition brief.

On July 2, 2020, WCA filed the reply.

The matter was initially on calendar on July 10, 2020. In the opposition papers, City and Plaintiff had requested a continuance of the motion to permit the completion of discovery. The Court granted the request to allow the deposition of Ernesto Macias to go forward. The Court set a briefing schedule to allow City and Plaintiff to file a supplemental opposition papers by August 7, 2020, and for WCA to file supplemental reply papers by August 14, 2020.

On August 7, 2020, City filed supplemental opposition papers. On August 14, 2020, WCA filed supplemental reply papers. The supplemental papers focus on whether WCA has a contractual duty to report sidewalk damage.

EVIDENTIARY OBJECTIONS

With the opposition brief, City submitted a single evidentiary objection to the Declaration of Ernesto Macias at paragraph 4 in support of WCA’s motion. The objection is overruled. With the supplemental opposition, City submitted additional evidentiary objections to the same declaration of Mr. Macias. The additional objections are overruled.

With the reply brief, WCA submitted evidentiary objections to the declaration of Kristine Courdy and declaration of Greg Monfette. It is unclear whether WCA is objecting to the declaration in their entirety or only certain portions of the declarations, as the format of the objections are not compliant with CRC Rule 3.1354. Thus, the objections are overruled.

With the supplemental reply, WCA submitted evidentiary objections to declarations of Ms. Courdy and Mr. Monfette again.

PLAINTIFF’S OPPOSITION

CCP ;437c(b)(3) states that the “opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those fact are undisputed. … Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.”

Plaintiff filed an opposition brief with a supporting memorandum of points and authorities and a joinder to City’s Compendium of Exhibits (COE). Plaintiff did not file a separate statement in support of the opposition brief. Instead, Plaintiff’s memorandum of points and authorities cites to City’s additional material facts (AMF).

On July 10, 2020, the Court ordered Plaintiff to file a separate statement if she intended to oppose the motion by August 7, 2020. The Court has reviewed its records and does not find that Plaintiff has filed a separate statement or her own opposing evidence. Thus, the Court has discretion to grant WCA’s motion for summary judgment against Plaintiff. In addition, a joinder to City’s separate statement and compendium of exhibits is not proper. There is no code provision allowing for the joinder of another party’s separate statement. Nevertheless, the Court will consider the arguments in Plaintiff’s opposition as they are similar to those raised by City. Moreover, WCA has not objected to Plaintiff’s opposition papers and even states in the reply brief that Plaintiff’s opposition arguments are essentially identical to the City’s opposition.

The Court notes that even if considering City’s arguments, separate statement, and evidence as Plaintiff’s own, the Court would still grant WCA’s motion against Plaintiff for the reasons stated below.

DISCUSSION

The elements of a premises liability claim and negligence claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) Duty is a question of law for the court. (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770.)

WCA argues that it is entitled to summary judgment because it owed no duty of care to Plaintiffs. WCA argues that: (1) it did not own, legally possess, or otherwise control the subject property such that it owed a duty of care to the general public or Plaintiff; (2) it did not owe a duty to Plaintiff pursuant to any agreement; and (3) it did not owe a duty under a special relationship with Plaintiff.

A. Did WCA Owe a Duty to Plaintiff Based on Ownership, Possession, or Control of the Subject Premises?

In premises liability cases, summary judgment may properly be granted where a defendant unequivocally establishes its lack of ownership, possession, or control of the property alleged to be in a dangerous or defective condition.” (Gray v. America West Airlines, Inc. (1989) 209 Cal.App.3d 76, 81.)

In support of its initial burden, WCA provides the following facts: Plaintiff asserts a single cause of action for negligence/premises liability against WCA, alleging that on March 3, 2017, she was walking across a parkway abutting real property at 1013 Mound Avenue in South Pasadena when she tripped and fell on a portion of a sidewalk that was raised approximately 6 inches above the level of the parkway. (WCA Fact 1-2; McMahan Decl., Ex. A [Compl.].) According to Kristine Courdy (PMK for City), City owns the property where the subject incident occurred, such that WCA did not own, legally possess, or control the subject property. (WCA Fact 3-4; McMahan Decl., Ex. B [Courdy Depo. at 151:2-8, 280:3-281:3, 101:23-102:9, 124:13-23]; see Ernesto Macias Decl., ¶3.)

In opposition, City[1] does not dispute that WCA did not own the property, but disputes that WCA had control over the trees on the subject property where the incident occurred. (City Fact 3-4.) In support of City’s argument that WCA had control of the trees and hence the ground around the trees in the parkway, City cites to paragraph 9 of the parties’ Agreement for Services at paragraph 9 (entitled “INDEPENDENT CONTRACTOR STATUS”). Paragraph 9 states that the City and WCA agree that WCA shall perform its services as an independent contractor and “shall have control of all work and the manner in which it is performed.” Even if the Court were to accept City’s argument that WCA had “control” over the trees for the period that they performed work on the trees, the issue in this case is the sidewalk over which Plaintiff tripped and fell—not over the tree or roots.

Further, the use of the word “control” is only in relation to the independent contractor status to perform the work. City has not provided evidence or case law showing that the word “control” as used in the agreement meant that WCA would have control of the trees during the entire duration of the contract. Rather, WCA’s interaction with the trees appears to have only occurred every 4 to 6 years in rotation. (See City Additional Material Fact [AMF] 16.) “[I]n identifying the defendant with whom control resides, location of the power to correct the dangerous condition is an aid.” (Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 832.) There is not dispute that the sidewalks were owned and controlled by City and that City performed its own inspection of the sidewalks. (See WCA Fact 16-17.)

As such, WCA has established that it did not owe a duty to Plaintiff on the theory that it owned, possessed, or controlled a defective or dangerous condition on the premises. The Court notes that WCA brought a motion for summary judgment and did not move alternatively for summary adjudication on the various issues. Regardless, by finding that WCA did not owe a duty for lack of ownership, possession, or control of the subject property, this in itself would be insufficient to dispose of the case against WCA.

B. Did WCA Owe a Duty to Plaintiff Based on the Agreement?

Next, WCA argues that its contract with City did not create a duty to Plaintiff to ensure the subject sidewalk was safe. WCA also argues that the contract did not create a duty for WCA to report to City the condition of the sidewalk. It argues that its duty extended only to City and not to Plaintiff.

WCA provides facts showing that City and WCA entered into the Agreement for Services on January 21, 2009 (operative in September 2014), whereby WCA was to perform tree service work for City. (WCA Fact 5-6; McMahan Decl., Ex. C [Agreement for Services].) The Agreement sets forth WCA’s duties for tree service work and includes an integration provision that no representation by any party nor any agreement, statement, or promise not contained in the Agreement shall be valid/binding, unless there was a writing signed by the parties. (WCA Fact 7-8; Agreement for Services, ¶35.) WCA argues that the Agreement contains no provision that WCA report on the condition of sidewalks in the city and thus it was not required to report the condition of the subject sidewalk.[2] (WCA Fact 9-10; see Courdy Depo. at 244:1-4, 245:12-16, 246:7-15, 252:3-6, 218:18-219:13; Macias Decl., ¶4.) Ernesto Macias (Safety and Claims Manager of WCA) states that WCA never reported the condition of any sidewalk in the city as a part of its work under the Agreement and Eddie Munoz (WCA’s PMK re sidewalks) states that his department never received any reports or requests regarding the subject sidewalk. (WCA Fact 11; Macias Decl., ¶4; Courdy Depo. at 306:10-307:20; McMahan Decl., Ex. J [Munoz (City PMK re sidewalks) Depo. at 74:12-23].)

Prior to performing its duties under the Agreement, WCA conducted an “inventory” of City’s trees, such as the tree’s location, species, diameter of trunk, height, and, if requested, noticeable damage to a sidewalk near a tree. (WCA Fact 13; Macias Decl., ¶5; McMahan Decl., Ex. D [Arbor Access Site Detail Report for subject tree].) The Arbor Access Site Detail Report shows that WCA did not note any sidewalk damage near the tree when it conducted inventory prior to starting its work for City. (WCA Fact 14.) WCA last trimmed the tree prior to the subject incident on September 16, 2014. (WCA Fact 15; Arbor Access Site Detail Report; Courdy Depo. at 194:23-195:1, 234:9-20.) WCA states that the City Park’s Supervisor checks WCA’s work to verify it has been completed properly and that WCA does not get paid until City makes such verification. (WCA Fact 21-22; Courdy Depo. at pp.184-189, 230:10-14, 234:9-20.) WCA states that it was paid for trimming the subject tree on September 16, 2014. (WCA Fact 23; Macias Decl., ¶5; Courdy Depo. at p.232.)

WCA also provides evidence that on June 25, 2014, Emily Yu (City intern) inspected the subject sidewalk, recorded there was a ½ inch displacement, and gave it the lowest possible rating of 1 (out of 4). (WCA Fact 16-17; McMahan Decl., Ex. E [Yu Depo. at 37:13-24, pp.46-48, pp.62-63]; Ex. F [Yu’s 6/25/14 Inspection Report at p.3]; Ex. G [Photograph of Subject Sidewalk and Tree].) Ms. Courdy (Deputy Public Works Director for City) also testified that she went out to subject location after the subject incident and did not see any problem with the subject sidewalk and would not expect anyone to report a problem. (WCA Fact 19-20.) Thus, prior to WCA’s tree-trimming services at the subject location and following Plaintiff’s trip-and-fall, City did not note any issues with the sidewalk.

WCA also argues that it is shielded from liability based on the “completed and accepted” doctrine, relying on Jones v. P.S. Development Co. (2008) 166 Cal.App.4th 707, Sanchez v. Swinerton & Wallberg Co. (1996) 47 Cal.App.4th 1461, and Neiman v. Leo A. Daly Co. (2012) 210 Cal.App.4th 962. (Mot. at pp.7-8.) However, this doctrine only applies in certain cases to shield contractors from liability for negligence. (Jones, supra, 166 Cal.App.4th at 711-712 [trip and fall case where plaintiff tripped over the mounting bolts that secured an explosive detection system machine].) Ordinarily, the rule is applied in connection with a contractor’s negligent creation of a dangerous condition of a structure. (See 6 Witken, Summary 11th Torts (2020) ;1304; see e.g., Sanchez, supra, 47 Cal.App.4th at 1464, 1466-71 [involving a subcontractor who was hired to construct the entrance stairway and landing of a new building]; Neiman, supra, 210 Cal.App.4th at 964 [the doctrine precluded an architect’s negligence liability for lack of contrast marking stripes on stairs pursuant to the architect’s plans during construction of a theater].) Thus, the Court does not find that the completed and accepted doctrine apply to the facts of this case.

Nevertheless, WCA has upheld its initial burden on this theory of duty because it has shown that it was retained to trim the tree at the subject location of the incident in September 2014 and that it did not have any contractual duty to report on the condition of the sidewalk near the tree. Further, even if WCA did make sidewalk damage reports on the trees as it was performing trimming services, WCA did not find any sidewalk damage in 2014 (which was consistent with Ms. Yu’s report) and WCA did not have any ongoing duty to continue inspecting and making additional sidewalk reports. Thus, the burden shifts to the opposing party to raise a triable issue of material fact.

In City’s opposition, City provides a copy of the parties’ “Tree Inventory Scope of Work” document for Job number 14255, dated July 17, 2009, which was produced by WCA’s PMK during deposition. (City’s Additional Material Fact [AMF] 6; City’s Compendium of Exhibits [COE], Ex. M.) The document states that WCA is to inventory sidewalks with a 1-inch deflection or ramping.

City also provides copies of WCA’s Site Detail documents for September 16, 2014 and March 29, 2019, which included a section for “Sidewalk Damage”, to which WCA stated “No.” (City AMF 9; City COE, Exs. B-C.) City argues that at the deposition of Kristine Courdy (City’s PMK), WCA attempted to introduce a work order for the subject tree dated September 16, 2014, but which lacked/redacted the field for recording sidewalk damage. (City AMF 11; City COE, Ex. D, Ex. H [Courdy Depo. at pp.191-192].) Andrew Pineda (WCA’s PMK) stated that he did not know if/when the “Sidewalk Damage” field was added or removed and if WCA would edit/remove such fields. (City AMF 13; City COE, Ex. J [Pineda Depo. at pp. 36, 71, 87].)

While City argues that there is a contractual duty for WCA to report sidewalk damage, City’s own additional material facts (AMF) refute that the sidewalk at the subject tree was in fact reportable for damage. For example, in City’s AMF 20, it states that “City did look at this sidewalk, in the direction a pedestrian would have traveled on the sidewalk itself and that aspect of the sidewalk showed no damage. The alleged ‘defect’ was in the height differential between the edge of the sidewalk and the parkway, something the City would not have been looking for but would have been within the purview of a crew trained in tree trimming and tree maintenance checking for root intrusion.” Also, City’s AMF 21 states: “Although the uplift between the parkway and the sidewalk would not be considered sidewalk damage with respect to the customary use of the sidewalk by pedestrians traveling on the sidewalk itself, it would be observable by a crew trained in tree trimming and tree maintenance pruning an adjacent tree.” The Site Detail document included a field for “Sidewalk Damage” only and not sidewalk differential between the sidewalk and the parkway.

Neither the Agreement for Services nor the Scope of Services at the Tree Maintenance Services provide for reporting sidewalk damage. Further, while City has provided the Tree Inventory Scope of Work document, it is unclear whether this document was in effect in 2017 when the accident occurred (or at the time of the 2014 and 2019 grid prunes of the subject tree), plus it is not a signed writing that would add to or modify the terms of the Agreement for Services. Even if the Tree Inventory Scope of Work document did apply at the time of the incident, it does not state whether damage between the sidewalk and parkway is reportable as “sidewalk damage”, which is different than deflection/ramping. As stated in the integrated Agreement for Services, modifications to WCA’s services must be in writing signed by the parties. Based on City’s opposition papers, City has not presented opposing evidence showing that there was an executed document expanding WCA’s tree maintenance services to include reporting sidewalk damages and/or uplifts between parkways and sidewalks.

Next, City argues that there is a legally binding implied agreement between City and WCA to look for and report sidewalk damage. In Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1204, the Court of Appeal discussed whether a special relationship arose out of a contract where there was no written or oral agreement. In Seo, the evidence was undisputed that the property owner called the defendant gate repair company on certain occasions for specific repairs. The plaintiff argued that an implied contract to regularly inspect and maintain the gate arose during the defendant’s monthly visits to the property, but the appellate court found this argument to be unpersuasive because defendant had been called to work only on an as-needed basis for specific repairs, many of which did not involve the entry gate (which was the source of injury in Seo), and defendant’s inspection of the potentiometer before repairing a gate. The court found that neither the frequency of repair calls nor the inspection of the potentiometer gave rise to an inference of an implied contract between the property owner and defendant to regularly inspect and maintain the gate.

Similarly, here, WCA was contracted to perform work on the trees in the City of South Pasadena when requested. (WCA Fact 5.) In this case, WCA performed the grid prune involving the subject tree in 2014 and 2019. As such, WCA’s obligation to maintain the tree only occurred twice in a span of 5 years, including any purported duty to report sidewalk damage. WCA’s contractual duty to perform tree maintenance services on the particular tree were even more infrequent than Seo, plus the fact that the tree had been pruned and the sidewalk had been commented upon in 2014 (once prior to the 2017 incident) is not sufficient to show that an implied contractual duty existed for WCA to report sidewalk damage.

With the supplemental opposition, City argues that WCA checked the diameter at breadth height (DBH) for tree trunks and tree height as an ongoing service despite an absence of written terms. (City Suppl. Fact 4, 6.) City argues that CCR Title 8, ;3427(a)(1) and the American National Standards Institute at Z133 3.4.8 states that prior to climbing trees or performing work on a tree, the employer qualified arborist shall visually inspect the tree, including root collar and the area immediately surrounding the tree. (City Supp. Fact 15, 17.) City then argues that WCA was required to look at the base of all trees it worked on.

However, Mr. Macias testified in his deposition that WCA inspected the DBH and height each time the tree was trimmed. (Macias Depo. at p.86.) Thus, there is no real dispute that WCA inspected the trees before it performed work on them. Further, inspecting the DBH, height, trees, and surrounding area does not mean that WCA had an ongoing contractual duty to check DBH, height, or the trees after fulfilling a service order. The Court notes that even if WCA did, the DBH and height of a tree are not relevant to the issue of duty to inspect the sidewalk. Also, the CCR and American National Standards Institute do not impose duties to report sidewalk damage. Rather, the code sections appear to impose a duty to inspect the trees and premises to ensure the servicer’s safety while performing work.

Next, City (again) argues there is a field in the ongoing work history order to note sidewalk damages, which appears in multiple versions of WCA’s Arbor Access records. (City Suppl. Fact at 8.) City argues that though the January 2009 contract has no written requirement to observe sidewalk damage, Mr. Macias admits that in 2009, data collectors were instructed to look for sidewalk deflection or ramping of 1 inch or greater at City’s request. (Id. at 14.) [3]

As discussed above, even if WCA agreed to report sidewalk damage and 1-inch deflection nor ramping, the facts of this case are not regarding adjacent sidewalk-to-sidewalk slabs that are contemplated by that direction. Rather, Plaintiff allegedly tripped as a result of stepping from the grassy parkway area onto the sidewalk in 2017. (WCA Fact 2 [undisputed]; see e.g., City Opp. at Ex. F.) As reported by WCA and Ms. Yu, the sidewalk itself had no reportable damage in 2014. In the absence of any contractual terms regarding sidewalk damage reporting, the scope of WCA’s purported duties to report damage are not defined. Even if the Court were to consider the July 17, 2009 “Tree Inventory Scope of Work” document as binding on all subsequent work (as opposed to subsequent tree pruning service orders, or just the initial inventory itself), that document only mentions reporting of sidewalk deflection or ramping—not sidewalk-to-parkway issues.

As such, the Court does not find that City and Plaintiff have raised triable issues of material fact on whether WCA owed a contractual duty to report sidewalk damage and ensure the safety of sidewalks.

C. Did WCA Owe a Duty to Plaintiff Based on a Special Relationship?

Finally, WCA argues that it was not in a special relationship with Plaintiff such that a duty arose by a matter of law.

WCA relies on Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193 where the Court of Appeal provided examples of special relationships between parties. Such relationships included: landowner or possessor and person coming on the land; manufacturer or supplier of goods and buyer or user; vendor, lessor, or contractor and purchaser, lessee or owner of real property; common carrier and passenger; innkeeper and guest; a person who is required by law to take, or who voluntarily takes, custody of another; voluntary assumption of a duty upon which a person reasonably relies; psychotherapists and patients; law enforcement and particular members of the public; parties with a relationship of dependence; proprietors of bowling alleys, restaurants, apartment houses, and hospitals and their customers; and school districts and students. (Seo, supra, 97 Cal.App.4th at 1203.) The Seo Court also stated that “[a] special relationship may also arise out of a statutory duty or a contractual duty. (Id. [emphasis added].) “If a special relationship arises out of a contractual duty, the duty is owed not only to the parties to the contract but also to those persons intended to be benefited by the performance of the contract.” (Id.)

Here, WCA has shown that it was not in a special relationship, such as landowner/invitee or innkeeper/guest, with City or Plaintiff.

In opposition, City and Plaintiff argue that there was a special relationship based on contract. However, for the reasons discussed above, WCA has upheld its initial burden in showing that it did not owe a contractual duty to City or Plaintiff to maintain and ensure the safety of the sidewalks and report sidewalk damage, and City and Plaintiff failed to raise a triable issue of material fact on the matter. A “special relationship” should not be inferable based on implied obligations of an integrated written contract. How, in such a case, would the duty even be defined if it is only by implication? Was WCA just supposed to know that it was to inspect for side displacement when the City’s own inspector did not do so? Parties to a contract who want to impose duties upon their contractual partners should at least be willing to state them in a manner that puts the other party on notice regarding the scope of the duty. If the City of South Pasadena wanted WCA to inspect the sidewalks for the kind of condition at issue here, it should have said so.

As such, the Court finds that WCA has upheld its initial burden on this issue and does not find that City and Plaintiff have raised triable issues of material fact thereto. As such, the motion for summary judgment is granted.

CONCLUSION AND ORDER

WCA’s motion for summary judgment is granted.

WCA shall provide notice of this order.


[1] For ease of discussion, the Court refers to City and City’s opposition papers. As discussed above, Plaintiff’s arguments are essentially identical to City’s arguments. As noted above, Plaintiff has not filed a separate statement or opposing evidence.

[2] The Agreement’s Exhibit A Scope of Services at the Tree Maintenance Services document includes work for grid/annual tree trimming, full trim based on service or special request, palm tree trimming, tree removal, tree planting, tree watering, crew rental, arborist services, tree inventory using GPS, specialty equipment rates, and material at cost plus. There is no mention of the reporting of sidewalk conditions.

[3] City argues that WCA engaged in suspicious behavior because some of the Arbor Access documents produced in discovery omitted the sidewalk damage field. However, the Court finds that that this is a non-issue as it does not affect the analysis whether WCA was contractually obligated to report sidewalk damage. (See City Supp. Fact 8-12.) It appears that the City at all times had access to all versions of this database, so it was not misled by production of a document without the sidewalk damage field.



Case Number: ****0186    Hearing Date: July 10, 2020    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

liwen hsu togi,

Plaintiff,

v.

city of south pasadena,

Defendant.

Case No.: ****0186

Hearing Date: July 10, 2020

[TENTATIVE] order RE:

motion for summary judgment

BACKGROUND

A. Allegations

Plaintiff Liwen Hsu Togi (“Plaintiff”) alleges that on March 3, 2017, she fell as a result of a dangerous condition while on her way to work. She alleges that Defendants were the possessors, controllers, managers, designers, maintainers, inspectors, supervisors, and owners of the portion of public sidewalk, parkway, and trees abutting the real property at 1013 Mound Avenue, South Pasadena, California 91030. The complaint, filed October 18, 2017, alleges a single cause of action for negligence/premises liability.

On August 22, 2018, Defendant City of South Pasadena (“City”) filed a cross-complaint against Cross-Defendant West Coast Arborists, Inc. (“WCA”), alleging causes of action for: (1) indemnification; (2) apportionment of fault; (3) declaratory relief; and (4) breach of contract.

On October 16, 2018, WCA filed a cross-complaint against City for: (1) equitable indemnity; (2) contribution; and (3) declaratory relief.

B. Motion for Summary Judgment

On March 6, 2020, WCA filed a motion for summary judgment, arguing that there are no triable issues of material facts as to the alleged negligence of WCA.

On June 25, 2020, City filed an opposition to the motion.

On June 26, 2020, Plaintiff filed an opposition brief.

On July 2, 2020, WCA filed the reply.

DISCUSSION

A. City and Plaintiff’s Request for a Continuance

In the opposition briefs, City and Plaintiff request that the Court grant a continuance to permit the completion of discovery or to deny WCA’s motion in its entirety. (See City Opp. at p.15; Pl. Opp. at p.10.)

In reply, WCA argues that City and Plaintiff have not identified the legal basis for the request for continuance. However, it is apparent that the request for continuance is being brought under CCP ;437c(h). For example, City and Plaintiff cite to Frazee v. Seely (2002) 95 Cal.App.4th 627 and Bahl v. Bank of America (2001) 89 Cal.App.4th 389, which are cases that discuss a party’s request for continuance under subsection (h).

CCP ;437c(h) states: “If it appears from the affidavits submitted in  or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made n response to the motion is due.”

City and Plaintiff argue that the depositions of WCA’s employees Ernesto Macias and Herminio Padillas will take place on July 15, 2020, which is 5 days after the hearing on this motion for summary judgment. City’s counsel, David M. Ferrante-Alan, states in his declaration that City noticed the deposition of WCA’s PMK on November 16, 2019, December 4, 2019, January 29, 2020, April 27, 2020, May 28, 2020, and June 12, 2020 for various topics such as the Arbor Access program, WCA’s employees who pruned the subject tree in 2014 and 2019, including requests for production of documents. (Ferrante-Alan Decl., ¶¶3-6.) Mr. Ferrante-Alan states during the 7-month time frame of sending the first deposition notice, WCA has served objections and requested that the depositions be continued, and as a courtesy City honored the requests for continuance. (Id., ¶7.) He states that WCA produced Pineda and Garcia regarding Arbor Access and the subject tree, but they both had limited knowledge on the subjects and WCA did not produce documents. (Id., ¶¶8-10.) Mr. Ferrante-Alan states that he scheduled the deposition of Mr. Macias (whose declaration WCA primarily relies on in its moving papers), but the Macias deposition was rescheduled. (Id., ¶12.) Counsel states that due to the logistics dealing with COVID-19, the deposition was scheduled after the hearing on this motion for summary judgment. (Id., ¶13.)

The Court finds that there is sufficient basis to grant the request for continuance. For the most part, the Court is simply sympathetic with regard to the general difficulty that all parties may be having in dealing with the widespread fear of the COVID-19 virus. The Court will continue the hearing on the motion for summary judgment for a modest period to allow the deposition of Mr. Macias to go forward on July 15, 2020 and provide time for the parties to file supplemental briefs following the deposition. The purpose of the continuance is limited to the conduct of the deposition of Mr. Macias on the subjects of his declaration in support of the summary judgment motion.

CONCLUSION AND ORDER

WCA’s motion for summary judgment is continued to August 21, 2020 at 8:30 a.m.

Provided the deposition of Ernesto Macias goes forward on July 15, 2020, this should provide sufficient time for the parties to consider the content of Mr. Macias’ deposition testimony. If the parties intend to file any supplemental papers, the following briefing schedule shall apply: (a) any supplemental opposition brief, supplemental separate statement, and exhibits shall be filed by City and Plaintiff at least 10 court days prior the continued hearing date (August 7, 2020); (b) if Plaintiff intends to oppose the motion, she should file a separate statement as required under CCP ;437c(b)(3) at least 10 court days prior to the continued hearing date (August 7, 2020); and (c) any supplemental reply brief, responsive separate statement, and exhibits shall be filed by WCA at least 5 court days prior to the continued hearing date (August 14, 2020). The supplemental briefs containing arguments shall not exceed 10 pages; this page limitation does not apply to the separate statement or evidence.

WCA shall provide notice of this order.



related-case-search

Dig Deeper

Get Deeper Insights on Court Cases


Latest cases where CHURCH MUTUAL INSURANCE COMPANY is a litigant

Latest cases where SOUTH PASADENA CITY OF is a litigant