This case was last updated from Los Angeles County Superior Courts on 06/04/2019 at 06:29:31 (UTC).

MARK ELLENSOHN VS CITY OF BURBANK ET AL

Case Summary

On 01/30/2017 MARK ELLENSOHN filed a Personal Injury - Other Personal Injury lawsuit against CITY OF BURBANK. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are RALPH C. HOFER, LAURA A. MATZ, MARC D. GROSS and JON R. TAKASUGI. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8515

  • Filing Date:

    01/30/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

RALPH C. HOFER

LAURA A. MATZ

MARC D. GROSS

JON R. TAKASUGI

 

Party Details

Plaintiff and Petitioner

ELLENSOHN MARK

Defendants and Respondents

DOES 1-100

BURBANK DEPARTMENT OF WATER AND POWER

BURBANK CITY OF

HHS CONSTRUCTION INC.

HHS CONSTRUCTION. INC.

FRONTIER CALIFORNIA INC. (DOE 4)

VERIZON CALIFORNIA INC.

MCI COMMUNICATIONS SERVICES INC.

MCI COMMUNICATIONS SERVICES. INC. DOE2

FRONTIER CALIFORNIA INC. DOE 4

Defendant and Cross Plaintiff

MCI COMMUNICATIONS SERVICES INC.

Defendant and Cross Defendant

HHS CONSTRUCTION INC.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

METTIAS LAW FRIM APLC

HARPER BARBARA S. ESQ.

METTIAS LAW FIRM APLC THE

BARBARA S HARPER A PROFESSIONAL LAW CORP

Defendant and Respondent Attorneys

DIAMOND SCOTT R. ESQ.

BARNES CAROLYN A.

DIAMOND SCOTT RORY

ALBANO AMELIA

FLOYD SKEREN & KELLY LLP

DIAMOND & DRAGOJEVIC LLP

LARIN MICHAEL J. ESQ.

DIAMOND SCOTT RORY ESQ.

BARNES CAROLYN ANN

POSNER BLAKELY SETH

LYNBERG & WATKINS

Cross Defendant Attorney

HAYES PHILLIP MICHAEL

6 More Attorneys Available

 

Court Documents

Unknown

1/30/2018: Unknown

Unknown

1/30/2018: Unknown

Unknown

2/21/2018: Unknown

Proof of Service (not Summons and Complaint)

4/4/2018: Proof of Service (not Summons and Complaint)

Proof of Service of Summons and Complaint

4/4/2018: Proof of Service of Summons and Complaint

Unknown

5/4/2018: Unknown

Declaration

6/6/2018: Declaration

NOTICE OF ERRATA RE INCORRECT DATE OF PROOF OF SERVICE ON SERVING PLAINTIFFS OPPOSITION TO DEMURRER AND MARK ELLENSOHNS DECLARATION IN SUPPORT THEREOF

6/12/2018: NOTICE OF ERRATA RE INCORRECT DATE OF PROOF OF SERVICE ON SERVING PLAINTIFFS OPPOSITION TO DEMURRER AND MARK ELLENSOHNS DECLARATION IN SUPPORT THEREOF

Amendment to Complaint (Fictitious/Incorrect Name)

6/18/2018: Amendment to Complaint (Fictitious/Incorrect Name)

Challenge To Judicial Officer - Peremptory (C.C.P., ? 170.6)

7/20/2018: Challenge To Judicial Officer - Peremptory (C.C.P., ? 170.6)

Minute Order

7/25/2018: Minute Order

Opposition

8/31/2018: Opposition

Case Management Statement

9/11/2018: Case Management Statement

Case Management Statement

9/17/2018: Case Management Statement

Case Management Statement

9/21/2018: Case Management Statement

Summons

11/7/2018: Summons

Request for Judicial Notice

4/12/2019: Request for Judicial Notice

Motion for Summary Judgment

4/16/2019: Motion for Summary Judgment

106 More Documents Available

 

Docket Entries

  • 04/16/2019
  • Proof of Service (not Summons and Complaint); Filed by HHS CONSTRUCTION, INC. (Defendant)

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  • 04/16/2019
  • Separate Statement; Filed by HHS CONSTRUCTION, INC. (Defendant)

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  • 04/16/2019
  • Affidavit (STATEMENT OF EVIDENCE IN SUPPORT OF HHS CONSTRUCTION, INC.'S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S COMPLAINT AND BURBANK'S CROSS-COMPLAINT, OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES); Filed by HHS CONSTRUCTION, INC. (Defendant)

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  • 04/16/2019
  • Motion for Summary Judgment; Filed by HHS CONSTRUCTION, INC. (Defendant)

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  • 04/16/2019
  • Memorandum of Points & Authorities; Filed by HHS CONSTRUCTION, INC. (Defendant)

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  • 04/12/2019
  • Separate Statement; Filed by BURBANK CITY OF (Defendant)

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  • 04/12/2019
  • Request for Judicial Notice; Filed by BURBANK CITY OF (Defendant)

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  • 04/12/2019
  • Separate Statement; Filed by BURBANK CITY OF (Defendant)

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  • 04/12/2019
  • Motion for Summary Judgment; Filed by BURBANK CITY OF (Defendant)

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  • 04/12/2019
  • Request for Judicial Notice; Filed by BURBANK CITY OF (Defendant)

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188 More Docket Entries
  • 01/30/2018
  • Notice; Filed by Plaintiff/Petitioner

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  • 01/30/2018
  • Receipt (civil deposit ); Filed by Attorney for Plaintiff/Petitioner

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  • 01/30/2018
  • Notice (of posting jury fees ); Filed by Attorney for Plaintiff/Petitioner

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  • 01/30/2018
  • Notice; Filed by Plaintiff/Petitioner

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  • 01/30/2017
  • Complaint

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  • 01/30/2017
  • COMPLAINT FOR DAMAGES: 1, (GOV. CODE SEC. 835 DANGEROUS CONDITLO OF) PUBLIC PROP RTYL

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  • 01/30/2017
  • Complaint; Filed by MARK ELLENSOHN (Plaintiff)

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  • 01/30/2017
  • Civil Case Cover Sheet

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  • 01/30/2017
  • SUMMONS

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  • 01/30/2017
  • Summons (on Complaint)

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Tentative Rulings

Case Number: BC648515    Hearing Date: February 07, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 12

Case Number: BC 648515

Date: 2/7/20 Trial date: None Set

Case Name: Ellensohn v. City of Burbank, et al.

MOTIONS FOR SUMMARY JUDGMENT/ADJUDICATION (2) MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

Moving Party: Defendant City of Burbank

Defendant/Cross-defendant HHS Construction, Inc.

Responding Party: Plaintiff Mark Ellensohn

Relief Requested:

Summary judgment in favor of defendant City of Burbank

In the alternative, summary adjudication of issues

Summary Judgment in favor of defendant/cross-defendant HHS Construction, Inc.

In the alternative, summary adjudication of issues

Causes of Action from Second Amended Complaint

1) Dangerous Condition of Public Property v. City of Burbank, Burbank DWP

2) General Negligence v. All Defendants

3) Premises Liability v. All Defendants

4) Motor Vehicle v. Does

SUMMARY OF COMPLAINT:

Plaintiff Mark Ellensohn alleges that on June 9, 2015, plaintiff was traveling on Interstate 5 southbound approximately 100 feet north of Alameda Avenue in the City of Burbank, where a low hanging live and uncovered electrical wire was stretched across the freeway, hanging at such a height that it posed an unreasonable and foreseeable risk of contact by tall vehicles passing below.

Plaintiff alleges that as he was approaching the site of the overhanging electrical wire, a tall truck ahead of plaintiff’s vehicle struck the wire, causing the wire to fall and strike the windshield of plaintiff’s vehicle, causing a significant blast of electricity and light, and explosion. The wire became entangled around plaintiff’s vehicle, forcing plaintiff’s vehicle to slow down and pull to the side of the road. Plaintiff alleges that immediately after the collision, although plaintiff was visibly shaken up, he was unaware of any personal injuries resulting from the collision, but that several months later he began experiencing vision deficiencies, and after medical professionals were unable to determine the cause or source of plaintiff’s problem, plaintiff underwent a surgical procedure on May 2, 2016, during which plaintiff’s ophthalmologist observed fluid in his right eye and concluded that the damage to the eye was consistent with damage due to exposure to an intense burst of bright light. Plaintiff alleges that as a result of the electrical explosion, he has suffered damage to his eye, including permanent vision loss and permanent damage, as well as nervous suffering and mental anguish.

The motions for summary judgment/adjudication were originally heard on August 23, 2019. The court set forth its tentative ruling, which was to grant the motion filed by the City of Burbank, based on plaintiff’s failure to submit admissible evidence establishing that a claim was submitted to the City on behalf of plaintiff.

The tentative was also to deny the motion brought by HHS Construction, Inc., on the ground plaintiff had submitted evidence raising triable issues of material fact with respect to whether the parties could establish that the work performed by HHS included latent defects, supporting an exception to the completed and accepted work defense.

The matters were heard, and the court continued the motion by the City of Burbank for additional briefing, with supplemental briefs by defendant to be served and filed by August 27, 2019, and responsive briefs to be served and filed by noon on August 29, 2019. Plaintiff has filed two further declarations, and defendant the City has filed a sur-reply and an amended sur-reply.

The court continued the motion brought by HHS Construction, Inc. only on the limited issue of Express Indemnity set forth on page 16 of the moving papers. The minute order states that the motion “is continued to specifically address the issue of ‘Express Indemnity’ raised in the moving papers on page 16. Counsel for plaintiff represents the Court that it was address [sic] in the opposition papers.” The matter was continued to August 30, 2019.

On August 30, 2019, the matter was called for hearing. The court informed counsel there was no tentative ruling due to information set forth in the opposition papers that may materially change the original tentative ruling, and that the court had insufficient time to prepare a new tentative ruling. The minute order states:

“Court informs counsel that a ‘Triable Issue of Fact’ was raised regarding the ‘notice of claim issue.’ Court gives counsel its reasons as more fully reflected in the official notes of the Court reporter.”

The court heard from counsel and continued the motions to November 1, 2019. On November 1, 2019, the matters were continued to this date, with the Motion to Leave to File a Cross-Complaint for Equitable Relief to scheduled as a “place holder” to be reset if necessary after the summary judgment hearings.

RULING:

CCP 437c(g): Material facts which do or do not create a triable issue of controversy:

Defendant City of Burbank’s Motion for Summary Judgment or in the Alternative for Summary Adjudication on the Issue of Failure of a Government Claim, Dangerous Condition of Public Property Under the Torts Claim Act and Proximate Cause:

The court has considered the Declaration of Courtney Perdue, the Declaration in Further Support of Opposition to Burbank’s Motion for Summary Judgment, and Defendant City of Burbank’s Amended Sur-Reply to Plaintiff’s Further Support of Opposition to Burbank’s Motion for Summary Judgment.

Motion is DENIED.

Defendant has established that plaintiff’s claim here, a suit for money damages against the City, a public entity, is required to be presented pursuant to a written claim under Government Code § 945.4, and that a search of the City’s claims report site and records showed no results for any claim filed by Mark Ellensohn. [See UMF No. 37, and evidence cited, Alvarez Decl. ¶¶ 3-5]. This testimony is supported by screenshots of the searches in the described program and claim log, which show “We did not find any results for ellensohn,” and only reference plaintiff in connection with having searched for a claim. [Exs. L, M]. The City has also requested that the court take judicial notice of the fact that the City’s records do not contain a claim filed by plaintiff, which notice has been taken by the court. This is sufficient to shift the burden to plaintiff to raise triable issues of material fact.

In response to this showing, plaintiff has submitted the declaration of an attorney working for the law firm representing plaintiff in 2016, who personally recalls this matter, recalls the staff being told to calendar a return date for the claim, and personally drafted and sent an email to plaintiff informing plaintiff, “As to your claim against the City, it has been served and I have instructed my staff to follow up regarding any response.” [Perdue Decl. ¶¶ 2-5, Ex. A]. This is sufficient evidence, if credited by the trier of fact, to support a reasonable inference that a claim was submitted on behalf of plaintiff. Plaintiff has also raised triable issues of material fact with respect to whether the claim was timely served within 60 days of plaintiff learning his alleged injuries were a direct result of the subject incident. [Ellensohn Decl. ¶¶ 3-12].

Defendant City of Burbank’s UNOPPOSED Request for Judicial Notice is GRANTED.

Motion to HHS Construction, Inc. for Summary Judgment/Adjudication of Issues is DENIED.

Plaintiff has submitted evidence raising triable issues of material fact with respect to whether the parties can establish that the work performed by moving party HHS included latent defects, supporting an exception to the completed and accepted work defense. [See Plaintiff’s Additional Facts Nos. 1-12, and evidence cited; Ebersole Decl. ¶¶ 3-10, 12]. The motion is denied for the reasons set forth in the court’s previous tentative ruling and minute order of August 23, 2019, and for the reasons discussed below.

To the extent HHS Construction, Inc. seeks summary adjudication of the issue that MCI’s claim against HHS for Express Indemnity is barred because plaintiff’s claims arise or are alleged to arise out of MCI’s active or sole negligence, the court has considered the argument set forth in the moving papers beginning at page 16, and finds that the moving papers fail to appropriately present the issue for determination, as the issue is not set forth in the notice of motion, as required under CRC Rule 3.1350(b):

“If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed facts.”

Although the issue is set forth as part of Issue No. 3 in the Separate Statement, it is not clearly distinguished from the other issues. Moreover, the evidence necessary to establish entitlement to summary adjudication of the issue, as opposed to the issue of the completed and accepted work doctrine, is not set forth or specifically referenced in the separate statement. Such evidence would include the language of the subject express indemnity provision and the language of the operative complaint brought by plaintiff against MCI. This failure to include this evidence in the separate statement may have resulted in some confusion with respect to the necessity of plaintiff or of MCI to respond to it in opposition to the motion. The court finds that under the circumstances, cross-defendant has failed to meet its initial burden of establishing that express indemnity cannot be established by MCI here. In addition, plaintiff in opposition to both motions has submitted evidence suggesting that plaintiff’s theory in this matter is not limited to a failure to maintain and inspect, a duty undertaken by MCI alone, but a direct failure on the part of HHS to properly install the guys, hardware, and line in order to prevent the line from falling or sagging. [Ebersole Decl. ¶¶ 7, 8, 10]. The issue of whether MCI’s conduct may only be construed as active negligence has not been established in the moving papers.

HHS Construction’s Objections to Plaintiff’s Evidence are OVERRULED as not in proper format.

HHS Construction’s Motion for Leave to File Cross-Complaint for Equitable Relief:

Matter is on calendar as a place-holder. Parties to discuss re-setting of motion.

Case Number: BC648515    Hearing Date: January 01, 2020    Dept: NCD

Calendar Item No.19

Case: BC648515 MARK ELLENSOHN VS. CITY OF BURBANK

RELIEF REQUESTED:  HERING ON MOTION FOR SUMMARY JUDGMENT/ SUMMARY ADJUDICATION OF ISSUES ON PLAINTIFF'S COMPLAINT AND ALL CROSS-DEFENDANT HHS CONSTRUCTION INC.

CONTINUED TO 1/03/2020, AT 9:00 A.M., IN DEPARTMENT D TO BE RE-SET

CALENDAR CONGESTION