Tentative Rulings

Case Number: ****3071    Hearing Date: February 22, 2021    Dept: 32

PLEASE NOTE: Parties who intend to submit on this tentative must send an email to the court at sscdept32@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear in-person or remotely.

TENTATIVE RULING

MOTION

Defendants Austin Butler and Holly Butler (“Defendants”) prevailed on their summary judgment motion against Plaintiff Martin Balmaceda (“Plaintiff”). Defendants filed a memorandum of costs on January 15, 2021. Plaintiff moves to tax Defendants’ claimed costs.

ANALYSIS

Code of Civil Procedure section 1033.5, subdivision (a) sets forth items that are allowable as costs.  Allowable costs under Section 1033.5 must be “reasonably necessary to the conduct of this litigation rather than merely convenient or beneficial to its preparation” and “reasonable in amount.” (Code Civ. Proc., ; 1033.5, subds. (c)(2)-(3).) “Items not mentioned in [Section 1033.5] and items assessed upon application may be allowed or denied in the court’s discretion.” (Code Civ. Proc., ; 1033.5, subd. (c)(4).)

On a motion to tax, “[i]f the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. However, because the right to costs is governed strictly by statute a court has no discretion to award costs not statutorily authorized.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774, internal citations omitted.) “The court’s first determination, therefore, is whether the statute expressly allows the item, and whether it appears proper on its face. If so, the burden is on the objecting party to show them to be unnecessary or unreasonable.” (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131, internal citations omitted.) The objecting party does not meet this burden by arguing that the costs were not necessary or reasonable but must present evidence and prove that the costs are not recoverable. (Litt v. Eisenhower Med. Ctr. (2015) 237 Cal.App.4th 1217, 1224; Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1557.)

As Plaintiff did not “recover any relief against” Defendants, Defendants are the prevailing parties in this action.  (Code Civ. Proc., ; 1032, subd. (a)(4).) They are therefore entitled to recover their costs.

Plaintiff objects to Defendants’ claimed costs as unsubstantiated. Defendants have now advanced documentation to support the costs they seek to recover. Accordingly, this objection is unfounded.

Plaintiff moves to tax Defendants’ claimed costs for the filing fee for a discovery motion Defendants filed against Plaintiff’s treating physician. Plaintiff argues that, because the motion was not directed at Plaintiff, Defendants cannot recover their costs for filing the from Plaintiff. Plaintiff cites no authority to support this position. As prevailing parties, Defendants are entitled to recover costs that were “reasonably necessary to the conduct of this litigation . . . ,” regardless of whether Defendants incurred the costs as a result of Plaintiff’s litigation tactics. (See Code Civ. Proc., ; 1033.5, subd. (c)(2).)

Plaintiff correctly points out that Defendants cannot recover for the fees Plaintiff’s treating physicians charged for their attendance at deposition. (Baker-Hoey v. Lockheed Martin Corp. (2003) 111 Cal.App.4th 592 [recoverable costs “do not include a treating physician's reasonable and customary hourly or daily fees which must be paid . . . in order to take the deposition of the treating physician”].) Accordingly, the Court grants the motion to tax $8,400 of Defendants’ claimed deposition costs.

Plaintiff also points out that Defendants cannot recover for the cost of photocopies of exhibits. Photocopies of exhibits are recoverable as costs only if used at trial. (Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1556.) Accordingly, the Court grants the motion to tax $241.70 of Defendants’ claimed photocopying costs.

CONCLUSION AND ORDER

Therefore, the Court grants Plaintiff’s motion to tax costs, in part, and taxes Defendants’ deposition costs in the amount of $8,400 and photocopying costs in the amount of $241.70. The Court denies Plaintiff’s motion to tax costs regarding costs associated with a filing fee and service of process. Defendants are ordered to provide notice of this order and file proof of service of such.

Case Number: ****3071    Hearing Date: December 02, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Department 32

BACKGROUND

Plaintiff Martin Balmaceda (“Plaintiff”) filed this action against Defendants Austin Butler and Holly Butler (collectively, “Defendants”) following a motor vehicle collision with co-defendant Zhicheng Liu (“Liu”), who is Holly Butler’s father. Defendants move for summary judgment on Plaintiff’s complaint. Defendants also move for summary adjudication on the issue whether their liability is limited to $15,000. Finally, the Court set an Order to Show Cause why Zhicheng Liu should not be dismissed for failure to serve the summons and complaint. The Court grants Defendants’ motion and dismisses Liu with prejudice.

PROCEDURAL HISTORY

Plaintiff alleges that he was involved in a motor vehicle collision with Liu on December 30, 2015. Plaintiff filed this action on November 9, 2017. Defendants filed an answer on June 19, 2018, but Liu has not appeared in this case.

On November 4, 2019, Defendants first moved for summary judgment, which was noticed for hearing on January 22, 2020. Plaintiff opposed the motion but sought a continuance in order to serve and depose Liu, in order to develop evidence in opposition to the motion. The Court granted Plaintiff’s request and continued the hearing to April 30, 2020. Due to the pandemic, the Court continued the hearing to July 22, 2020.

Plaintiff again sought a continuance in order to serve and depose Liu, in order to develop evidence in opposition to the motion. The Court again continued the hearing to December 2, 2020. The Court authorized Plaintiff to file a supplemental opposition in the event that he deposes Liu. Plaintiff filed nothing in advance of the hearing.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.]  There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  

DISCUSSION

A. Order to Show Cause re: Dismissal of Zhicheng Liu

As an initial matter, the Court dismisses the case against Zhicheng Liu with prejudice. The Court previously issued an Order to Show Cause on Plaintiff’s failure to serve Liu. Liu was named as a defendant in the initial complaint, which was filed on November 9, 2017. As of December 2, 2020, Plaintiff still has not served Liu. Per Code of Civil Procedure section 583.210, the Court is required to dismiss cases against parties who have not been served within three years. The rules passed in response to the pandemic do not extend this deadline for service. To the extent the Court has discretion, the Court declines to extend this deadline. Plaintiff has had ample time to serve Liu. Therefore, the case against Zhicheng Liu is dismissed with prejudice.

B. Defendants’ Motion for Summary Judgment

Plaintiff’s theory of the case against Defendants is that they negligently entrusted the vehicle to Liu. To state a cause of action for negligent entrustment against Defendants, Plaintiff must prove that: (1) Liu negligently operated a vehicle owned by Defendants; (2) Defendants knew or should have known that Liu was incompetent or unfit to drive the vehicle; (3) Defendants permitted Liu to use the vehicle anyway; and (4) Liu’s incompetence or unfitness harmed Plaintiff. (Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 863-864.)

Defendants argue that they did not permit Liu to use the vehicle. Defendants rely on a declaration from Austin Butler stating that he did not give Liu permission to drive the vehicle. (Declaration of Austin Butler, ¶ 2.) Defendants also rely on a declaration from Holly Butler. Holly Butler states that she permitted Liu to drive the vehicle only when Holly was present as a passenger when Liu was preparing to take his driving test to obtain a driver’s license. (Declaration of Holly Butler, ¶ 2.) Holly Butler states that she and her family moved to Puerto Rico shortly before the accident and left the vehicle at Liu’s house before she relocated, but did not authorize him to use the vehicle except to take his driving test. (Id., ¶ 5.) Holly Butler states that she made arrangements for Liu’s neighbor to drive him to his driving test in the vehicle. (Id., ¶ 6.) Holly Butler states that Liu was licensed in China prior to relocating to the United States, and she was not aware that he had any prior traffic collisions or even citations. (Id., ¶ 8.) This evidence is sufficient to satisfy Defendants’ prima facie burden and shift the burden to Plaintiff to proffer sufficient evidence to give rise to a triable issue. Plaintiff proffers no evidence to contradict the depositions of Austin and Holly Butler.

Plaintiff again seeks a continuance of the hearing on this motion. At this point, the Court denies the request. This accident happened approximately five years ago. Plaintiff filed this action three years ago, less than two months before the statute of limitations ran. Thus, Plaintiff has had five years to locate Liu and three years to serve him, to no avail. The Court has continued this motion for summary judgment almost one year (from January 22, 2020, to the present) to allow Plaintiff to serve Liu. There is nothing in the record suggesting that Plaintiff will be able to serve Liu with a deposition subpoena if afforded more time.

Plaintiff argues that there is no prejudice in continuing this case. The Court disagrees. As of today, this case is 1,133 days old, which is over three years old. The California Rules of Court, Standard 2.2, sets a goal that all unlimited civil cases should be resolved within two years, and that even “exceptional” civil cases should be resolved within three years. The failure to resolve cases expeditiously impacts the rights of other litigants seeks their day in court.

Finally, the Court denies the request for a continuance because it finds that Plaintiff’s counsel has been dilatory in attempting to serve Liu with a deposition subpoena. Plaintiff’s counsel did not contact and retain Aaron Lukken to serve Liu with the summons and complaint until August 2019. (Declaration of Aaron Lukken, ¶¶ 7-8.) In other words, Plaintiff’s counsel waited almost four years after the accident and almost two years after the case was filed to attempt to locate and serve Liu. Moreover, it is not clear that Plaintiff’s counsel actually sought to serve Liu with a deposition subpoena, as the deposition subpoena is not listed among the documents to be served on Liu. According to Lukken:

On August 24, 2019, [Plaintiff’s counsel] engaged me to arrange for translation and service of the following documents:

• Summons

• Complaint (Personal Injury)

• Causes of Action—Motor Vehicle and General Negligence

• Civil Case Cover Sheet with Addendum

• Notice of Case Assignment with 7th Amended General Order

• Statement of Damages

(Id., ¶ 8.) Simply, there is no evidence in the record that Plaintiff’s counsel attempted to serve a deposition subpoena on Liu. Therefore, the Court denies the request for a continuance.

CONCLUSION AND ORDER

The Court grants Defendants’ motion for summary judgment. The Court dismisses Zhicheng Liu for failure to serve the summons and complaint within the three year time period under Code of Civil Procedure section 583.210. Defendants’ counsel shall provide notice and file proof of such with the Court.

DATED: December 2, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: ****3071    Hearing Date: September 15, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Department 32

BACKGROUND

Defendants Austin Butler and Holly Butler (“Defendants”) move to enforce a subpoena served on Deponent Wilker Orthopedic & Spine Institute (“Deponent”). Plaintiff Martin Balmaceda sought treatment from Moshe H. Wilker, M.D. (“Wilker”), a physician in Deponent’s office, in connection with the underlying accident. Defendants previously took Wilker’s deposition but now seek the testimony of Deponent’s Person Most Knowledgeable. The unopposed motion is granted.

LEGAL STANDARD

Code of Civil Procedure section 1987.1 provides, “If a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by [a party or a witness] . . . may make an order . . . directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (Code Civ. Proc., ; 1987.1.)

DISCUSSION

Defendants have satisfied the applicable requirements for the Court to grant this motion. First, Defendants personally served Deponent with a subpoena for the production of records. Second, Defendants personally served the motion on Deponent as required. (Cal. Rules of Court, rule 3.1346.) Third, Defendants have shown that Deponent failed to comply with the deposition subpoena and produce the documents Defendants sought. Defendants are not required to make a further showing. (See Code Civ. Proc., ;; 1987.1, 2025.480.)

The Court finds that Plaintiff has sufficiently waived the physician-patient privilege to grant this motion. A plaintiff who seeks to recover for personal injuries waives the physician-patient privilege to some extent. (Britt v. Superior Court (1978) 20 Cal.3d 844, 863-864.) Plaintiff has put his injuries at issue in this action. Therefore, Defendants are entitled to issue subpoenas for documents and testimony concerning the treatment of these injuries.

The Court finds no good cause for Deponent to fail to produce a Person Most Knowledgeable. To the extent Deponent contends that the document production is burdensome or unnecessary, it should have filed a motion for protective order or opposed this motion. Deponent did neither.

The Court understands that Wilker objected to appearing for the deposition on the basis that he already sat for deposition. While Defendants deposed Wilker previously, they did so in his individual capacity. Defendants may depose the person most qualified to testify on behalf of Deponent. (Code Civ. Proc., ; 2025.610, subd. (c)(1).)

Defendants seek sanctions against Deponent in the amount of $2,820. The Court finds that Deponent’s failure to produce subpoenaed documents and a Person Most Knowledgeable for a deposition without good cause constitutes an abuse of the discovery process warranting sanctions. The Court orders sanctions in the amount of $1,900 based upon eight hours of attorney time at $230 per hour plus one filing fee of $60. However, the Court stays the sanctions order. If Deponent complies with this order, the sanctions order shall be vacated. In other words, Deponent will be excused from paying the sanctions if it complies with this order.

CONCLUSION AND ORDER

Defendants’ motion to compel the testimony of the Person Most Knowledgeable on behalf of Wilker Orthopedic and Spine Institute is granted. The Wilker Orthopedic and Spine Institute shall produce its Person Most Knowledgeable with respect to the topics at issue within thirty (30) days of notice of this order.

The Court orders the Wilker Orthopedic and Spine Institute to pay sanctions to Defendants in the amount of $1,900. However, the Court stays this sanctions order. If the Wilker Orthopedic and Spine Institute complies with this order, the sanctions order shall be vacated.

Defendants shall provide notice and file proof of such with the Court.

DATED: September 15, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: ****3071    Hearing Date: July 22, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Department 32

Plaintiff Martin Balmaceda (“Plaintiff”) filed this action against Defendants Austin Butler and Holly Butler (collectively, “Defendants”) following a motor vehicle collision. Defendants owned the vehicle at issue in the collision. Holly Butler’s father, co-defendant Zhicheng Liu, was driving the vehicle involved in the collision. Even though the accident occurred on December 30, 2015, and the complaint was filed on November 9, 2017, Plaintiff still has not served Liu.

On November 4, 2019, Defendants moved for summary judgment on Plaintiff’s complaint for general and motor vehicle negligence. However, Defendants filed evidence with their reply brief, which the Court could not consider at the hearing because Plaintiff has not had an opportunity to respond. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.) Therefore, the Court continued the hearing on this motion to July 22, 2020, and afforded Plaintiff an opportunity to respond to the new evidence. The Court also continued the trial date to December 2, 2020.

Plaintiff opposes the motion but seeks a continuance to serve and depose Zhicheng Liu, in order to develop evidence in opposition to the motion. Plaintiff’s counsel proffers a declaration detailing Plaintiff’s efforts to do so. This constitutes good cause to continue the hearing on the motion for summary judgment, per Code of Civil Procedure 437c(h). Moreover, pursuant to the Presiding Judge’s order of July 10, 2020, the current trial date must be continued.

Based upon the foregoing, the Court continues the hearing on the motion for summary judgment and advances and vacates the dates for the final status conference and trial, as well as the Order to Show Cause re: Service of Zhicheng Liu and Dismissal. The Court sets the following dates:

Hearing on Motion for Summary Judgment: December 2, 2020, at 1:30 p.m.

OSC re: Service of Zhicheng Liu and Dismissal: December 2, 2020, at 1:30 p.m.

Trial Setting Conference: December 2, 2020, at 1:30 p.m.

In the event that Plaintiff deposes Zhicheng Liu, he may file a supplemental opposition of three (3) pages or less detailing this new evidence. If Plaintiff does so, Defendant may file a supplemental reply brief of three (3) pages or less. Both shall be filed within statutory time periods. The Court’s clerk shall provide notice.

DATED: July 20, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: ****3071    Hearing Date: January 22, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Department 32

BACKGROUND

Plaintiff Martin Balmaceda (“Plaintiff”) filed this action against Defendants Austin Butler and Holly Butler (collectively, “Defendants”) following a motor vehicle collision. Defendants owned the vehicle at issue in the collision. Holly Butler’s father, co-defendant Zhichgeng Liu, was driving the vehicle involved in the collision. Even though the accident occurred on December 30, 2015, and the complaint was filed on November 9, 2017, Plaintiff still has not served Liu. Trial in this matter is set for March 19, 2020. Now, Defendants move for summary judgment on Plaintiff’s complaint for general and motor vehicle negligence. Plaintiff opposes the motion but also seek a continuance to serve Liu. Plaintiff’s request for a continuance is denied, and the motion is granted.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.]  There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  

DISCUSSION

A. Request for Continuance

Plaintiff requests a continuance of the hearing on the motion for summary judgment in order to serve Liu in hopes of deposing him. The request is denied. As an initial matter, trial is set for March 19, 2020, and a motion for summary judgment must be heard at least 30 days before trial, meaning that this motion must be heard on or before February 18, 2020. Plaintiff provides no basis to conclude that Liu will be served and/or deposed in the next four weeks. Plaintiff has not sought a trial continuance, and it is not appropriate to seek affirmative relief in an opposition. Regardless, the Court denies any request for a trial continuance. The accident in this case occurred on December 30, 2015, and the complaint was filed on November 8, 2017. To date, the case is over two years old. There is no good cause for a continuance. Indeed, the Trial Court Delay Reduction Act recommends that all unlimited civil cases be disposed of within 24 months. (California Rules of Court, Standard 2.2: Trial Court Disposition Time Goals.) While there are cases in which that is not possible, this case is a relatively straightforward car accident case. There is no basis for a trial continuance. Therefore, Plaintiff’s request for a continuance of the hearing on this motion, and any request for a continuance of the trial date, is denied.

B. Motion for Summary Judgment

Plaintiff’s theory of the case is that Defendants negligently entrusted the vehicle to Liu, who was involved in the accident. To state a cause of action for negligent entrustment against Defendants, Plaintiff must prove that: (1) Liu negligently operated a vehicle owned by Defendants; (2) Defendants knew or should have known that Liu was incompetent or unfit to drive the vehicle; (3) Defendants permitted Liu to use the vehicle anyway; and (4) Liu’s incompetence or unfitness harmed Plaintiff. (Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 863-864.)

Defendants rely on a declaration from Austin Butler stating that he is not the registered owner of the vehicle. (Declaration of Austin Butler, ¶ 1.) Austin Butler also states that he did not give Liu permission to drive the vehicle. (Declaration of Austin Butler, ¶ 2.)

Defendants rely on a declaration from Holly Butler. Holly Butler states that she permitted Liu to drive the vehicle only when Holly was present as a passenger when Liu was preparing to take his driving test to obtain a driver’s license. (Declaration of Holly Butler, ¶ 2.) Holly Butler states that she moved to Puerto Rico shortly before the accident and left the vehicle at Liu’s house before she relocated, but did not authorize him to use the vehicle except to take his driving test. (Id., ¶ 5.) Holly Butler states that she made arrangements for Liu’s neighbor to drive him to his driving test in the vehicle. (Id., ¶ 6.) Holly Butler states that Liu was licensed in China prior to relocating to the United States, and she was not aware that he had any prior traffic collisions or even citations. (Id., ¶ 8.)

This evidence is sufficient to satisfy Defendants’ prima facie burden and shift the burden to Plaintiff to proffer sufficient evidence to give rise to a triable issue. In opposition, Plaintiff proffers a repair estimate from Defendants’ insurer, which lists Austin Butler as the owner of the vehicle at issue. (Plaintiff’s Supporting Evidence in Opposition to Defendants’ Motion for Summary Judgment, Exhibit 6.) Regardless, Plaintiff proffers no evidence that either Austin or Holly Butler permitted Liu to drive the car. Nor does Plaintiff proffer any evidence that Austin or Holly Butler knew that Liu was incompetent or unfit to drive the vehicle. The mere lack of a driver’s license is prima facie evidence of incompetence. (Standt v. Cannon (1938) 29 Cal.App.2d 509, 517.)

CONCLUSION AND ORDER

Defendants’ motion for summary judgment is granted with respect to Austin and Holly Butler. The Court vacates the trial date and sets an Order to Show Cause re: Service of Zhichgeng Liu for December 9, 2020, at 8:30 a.m. Defendants shall provide notice and file proof of such with the Court.

DATED: January 22, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court