This case was last updated from Los Angeles County Superior Courts on 12/29/2020 at 17:34:23 (UTC).

MIGUEL ROJAS HERNANDEZ ET AL VS POTRERO INC ET AL

Case Summary

On 02/02/2017 MIGUEL ROJAS HERNANDEZ filed a Personal Injury - Other Personal Injury lawsuit against POTRERO INC. This case was filed in Los Angeles County Superior Courts, Norwalk Courthouse located in Los Angeles, California. The Judges overseeing this case are LORI ANN FOURNIER, RAUL A. SAHAGUN, LEE W. TSAO and JOHN A. TORRIBIO. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9204

  • Filing Date:

    02/02/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

LORI ANN FOURNIER

RAUL A. SAHAGUN

LEE W. TSAO

JOHN A. TORRIBIO

 

Party Details

Plaintiffs

HERNANDEZ MIGUEL ROJAS

ROJAS GUADALUPE

MIGUEL ROJAS HERNANDEZ AN

GEMINI INSURANCE COMPANY

GUADALUPE ROJAS AN

HERNANDEZ AN INDIVIDUAL MIGUEL ROJAS

Appellant and Defendant

CALIFORNIA FORCE PATROL INC.

Defendants and Cross Defendants

CALIFORNIA FORCE PATROL INC

EL POTRERO CLUB AND RESTAURANT

JOHN DOE 1

JOHN DOE 2

POTRERO INC

JOHN DOE 1 AN INDIVIDUAL

CALIFORNIA FORCE PATROL INC.

POTRERO INC. DBA EL POTRERO CLUB AND

GEMINI INSURANCE COMPANY ON BEHALF OF

DOE 1 AN INDIVIDUAL JOHN

TSAY AN INDIVIDUAL SHYR-JIN

Respondents and Defendants

EL POTRERO CLUB AND RESTAURANT

POTRERO INC

MIGUEL ROJAS HERNANDEZ AN

Cross Plaintiff and Defendant

POTRERO INC. DBA EL POTRERO CLUB AND

Others

PRINDLE AMARO GOETZ HILLYARD ET AL

BERKOVICH GARY LAW OFFICES OF

10 More Parties Available

Attorney/Law Firm Details

Plaintiff Attorneys

LIBMAN MICHAEL J.

LAW OFFICES OF MICHAEL J. LIBMAN APC

BERKOVICH GARY ESQ.

BERKOVICH GARY

LIBMAN MICHAEL JACOB

Defendant and Cross Plaintiff Attorneys

VEATCH CARLSON

POLITO STEVEN MARK

PATEL GOPAL SOMABHAI

WEINSTEIN MARK A. ESQ.

WEISS KARYNNE GAIL

Cross Defendant and Respondent Attorneys

LORBER GREENFIELD POLITO & PENGILLY LLP

LORBER GREENFIELD & POLITO LLP

GAFA LAUREN SAMANTHA

PASCOE WILLIAM THOMAS

 

Court Documents

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

8/16/2018: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Reply - Reply to Gemini's Opposition to Plaintiff's Motion to Quash Subpoenas Duces Tecum

10/23/2018: Reply - Reply to Gemini's Opposition to Plaintiff's Motion to Quash Subpoenas Duces Tecum

Answer - ANSWER TO FIRST AMENDED CXOMPLAINT

8/30/2019: Answer - ANSWER TO FIRST AMENDED CXOMPLAINT

Opposition - OPPOSITION RESPONSE AND OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE SAC

9/3/2019: Opposition - OPPOSITION RESPONSE AND OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE SAC

Ex Parte Application - EX PARTE APPLICATION PLAINTIFFS EX-PARTE APPLICATION FOR AN ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT TO ALLEGE PUNITIVE DAMAGES AGAINST P

9/3/2019: Ex Parte Application - EX PARTE APPLICATION PLAINTIFFS EX-PARTE APPLICATION FOR AN ORDER SHORTENING TIME TO HEAR MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT TO ALLEGE PUNITIVE DAMAGES AGAINST P

Order - ORDER PROPOSED ORDER

9/4/2019: Order - ORDER PROPOSED ORDER

Minute Order - MINUTE ORDER (MANDATORY SETTLEMENT CONFERENCE (MSC))

9/4/2019: Minute Order - MINUTE ORDER (MANDATORY SETTLEMENT CONFERENCE (MSC))

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION EXPARTE APPLICATION FOR AN OR...)

9/4/2019: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION EXPARTE APPLICATION FOR AN OR...)

Minute Order - MINUTE ORDER (MANDATORY SETTLEMENT CONFERENCE (MSC))

9/4/2019: Minute Order - MINUTE ORDER (MANDATORY SETTLEMENT CONFERENCE (MSC))

Answer

9/5/2019: Answer

Stipulation and Order - STIPULATION AND ORDER RE: CONTINUANCE OF MOTION FOR SUMMARY JUDGMENT

9/30/2019: Stipulation and Order - STIPULATION AND ORDER RE: CONTINUANCE OF MOTION FOR SUMMARY JUDGMENT

Notice - NOTICE OF UNAVAILABILITY

10/17/2019: Notice - NOTICE OF UNAVAILABILITY

Opposition - OPPOSITION OF DEF/X-COMPLAINANT POTRERO, INC TO PLAINTIFFS' MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

10/18/2019: Opposition - OPPOSITION OF DEF/X-COMPLAINANT POTRERO, INC TO PLAINTIFFS' MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

Minute Order - MINUTE ORDER (COURT ORDER VACATING FINAL STATUS CONFERENCE SET FOR 10/28/2019;)

10/23/2019: Minute Order - MINUTE ORDER (COURT ORDER VACATING FINAL STATUS CONFERENCE SET FOR 10/28/2019;)

Reply - REPLY PLAINTIFFS REPLY TO DEFENDANT POTRERO, INC.S OPPOSITION TO PLAINTIFFS MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT TO ALLEGE PUNITIVE DAMAGES AGAINST POTRERO, INC. AND ADD NEW PA

10/24/2019: Reply - REPLY PLAINTIFFS REPLY TO DEFENDANT POTRERO, INC.S OPPOSITION TO PLAINTIFFS MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT TO ALLEGE PUNITIVE DAMAGES AGAINST POTRERO, INC. AND ADD NEW PA

Declaration - DECLARATION OF WILLIAM PASCOE IN SUPPORT OF MOTION OF CFP FOR MOTION TO COMPEL

10/28/2019: Declaration - DECLARATION OF WILLIAM PASCOE IN SUPPORT OF MOTION OF CFP FOR MOTION TO COMPEL

Proof of Service by Mail

10/28/2019: Proof of Service by Mail

Notice of Motion - NOTICE OF MOTION TO COMPEL DEPOSITION TESTIMONY

10/28/2019: Notice of Motion - NOTICE OF MOTION TO COMPEL DEPOSITION TESTIMONY

455 More Documents Available

 

Docket Entries

  • 06/04/2021
  • Hearing06/04/2021 at 08:30 AM in Department F at 12720 Norwalk Blvd., Norwalk, CA 90650; Order to Show Cause Re: regarding answer/responsive pleading to the operative complaint/status of rulings on the demurrer hearings

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  • 05/13/2021
  • Hearing05/13/2021 at 10:30 AM in Department C at 12720 Norwalk Blvd., Norwalk, CA 90650; Hearing on Demurrer - with Motion to Strike (CCP 430.10)

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  • 11/12/2020
  • Docketat 10:30 AM in Department C; Hearing on Motion to Compel (Defendant Shyr Jin-Tsay's Deposition and to Vacate the Discovery Stay as to Shyr Jin-Tsay) - Not Held - Advanced and Continued - by Court

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  • 10/27/2020
  • Docketat 10:30 AM in Department C; Hearing on Motion to Compel Further Discovery Responses (to Request For Admissions) - Not Held - Advanced and Vacated

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  • 10/27/2020
  • Docketat 10:30 AM in Department C; Hearing on Motion to Compel Further Discovery Responses (to Request For Admissions Set One) - Not Held - Advanced and Vacated

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  • 09/11/2020
  • Docketat 1:50 PM in Department C; Court Order

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  • 09/11/2020
  • DocketCertificate of Mailing for ((Court Order) of 09/11/2020); Filed by Clerk

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  • 09/11/2020
  • DocketMinute Order ( (Court Order)); Filed by Clerk

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  • 09/09/2020
  • Docketat 08:30 AM in Department F; Order to Show Cause Re: (regarding answer/responsive pleading to the operative complaint/status of rulings on the demurrer hearings) - Held - Continued

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  • 09/09/2020
  • DocketMinute Order ( (Order to Show Cause Re: regarding answer/responsive pleading ...)); Filed by Clerk

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840 More Docket Entries
  • 02/15/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 02/15/2017
  • DocketOrder to Show Cause; Filed by Clerk

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  • 02/15/2017
  • DocketORDER TO SHOW CAUSE HEARING

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  • 02/15/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 02/02/2017
  • DocketSummons; Filed by Plaintiff/Petitioner

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  • 02/02/2017
  • DocketComplaint filed-Summons Issued; Filed by an MIGUEL ROJAS HERNANDEZ (Plaintiff); an GUADALUPE ROJAS (Plaintiff)

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  • 02/02/2017
  • DocketCOMPLAINT FOR: 1. ASSAULT AND BATTERY: ETC.

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  • 02/02/2017
  • DocketComplaint filed-Summons Issued; Filed by Attorney for Plaintiff

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  • 02/02/2017
  • DocketComplaint; Filed by Miguel Rojas Hernandez (Plaintiff); Guadalupe Rojas (Plaintiff); an MIGUEL ROJAS HERNANDEZ (Plaintiff) et al.

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  • 02/02/2017
  • DocketSUMMONS

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Tentative Rulings

Case Number: ****9204 Hearing Date: February 17, 2022 Dept: C

HERNANDEZ v. POTRERO, INC.

CASE NO.: ****9204

HEARING: 02/17/22

Add-On 1

TENTATIVE ORDER

The Report and Recommendations Re: (1) Motion to Quash Notice of Deposition of Michael Gold; and (2) Motion for Protective Order to Preclude the Deposition of Dr. Michael Gold; and Requests for Monetary Sanctions FILED on December 17, 2021 is ADOPTED. Absent Opposition, the Court is inclined to sign the Proposed Order submitted by the Discovery Referee.

Moving Party to give Notice.



b'

Case Number: ****9204 Hearing Date: October 7, 2021 Dept: C

HERNANDEZ v. POTRERO, INC.
CASE NO.: ****9204
HEARING: 10/07/21
#6
TENTATIVE ORDER
The Court will hear from the parties as to whether to adopt the Discovery Referee’s Recommendations.
'


b'

Case Number: ****9204 Hearing Date: August 4, 2021 Dept: C

HERNANDEZ v. POTRERO, INC.

CASE NO.: ****9204

HEARING: 08/04/21

JUDGE: RAUL A. SAHAGUN

#7

ORDER

The Hearing Regarding the Discovery Referee’s Recommendations is CONTINUED to Thursday, October 7, 2021 at 1:30 p.m. in Dept. SE-C.

Court Clerk to give Notice.

'


Case Number: ****9204    Hearing Date: May 13, 2021    Dept: C

HERNANDEZ v. POTRERO INC.

CASE NO.:  ****9204

HEARING:  05/13/21

#6

TENTATIVE ORDER

I. Defendants ROBERT TSAY and SHYR-JIN TSAY’s Demurrer to Plaintiffs’ Third Amended Complaint is SUSTAINED without leave to amend.

II. Defendants/Cross-Complainant POTRERO, INC. and Defendants ROBERT TSAY and SHYR-JIN TSAY’s Motion to Strike Portions of Plaintiffs’ Third Amended Complaint is GRANTED without leave to amend.

Moving Party to give notice.

Defendants’ Request for Judicial Notice is GRANTED. Cal. Ev. Code ;452.

This intentional tort action was filed by Plaintiffs MIGUEL ROJAS HERNANDEZ and GUADALUPE ROJAS (“Plaintiffs”) on February 2, 2017, and arises out of a February 8, 2015 incident where Plaintiff Miguel Hernandez Rojas was attacked by two unknown assailants with a glass beer bottle at the El Potrero nightclub.

On August 7, 2020, the operative Third Amended Complaint (“TAC”) was filed. The TAC asserts the following causes of action: (1) Assault and Battery; (2) Intentional Infliction of Emotional Distress; (3) Premises Liability; (4) General Negligence; (5) Negligent Infliction of Emotional Distress; (6) Loss of Consortium; and (7) Request for Punitive Damages.

Defendants ROBERT TSAY and SHYR-JIN TSAY (“Moving Parties”) generally and specially demur to Plaintiffs’ fourth, fifth, and sixth causes of action.

Moving Parties argue that Plaintiffs’ fourth, fifth, and sixth causes of action are fatally uncertain. This argument lacks merit because “[a] special demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made.” (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145-146.) Moreover, demurrers for uncertainty are disfavored and will only be sustained where the pleading is so bad that the defendant cannot reasonably respond, i.e. he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of Calif. Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Ibid.) Here, it is clear from the Moving Parties’ other arguments that they understand what Plaintiffs’ TAC at least attempts to allege, and there is no true uncertainty. The demurrer is not sustained on the basis of uncertainty.

Moving Parties are identified as “manager, director and/or officer of POTRERO Inc.” (TAC ¶10.) Plaintiffs allege that “prior to February 8, 2015, POTRERO INC. and individuals ROBERT TSAY and SHYR-JIN TSAY, in their individual capacity, and/or any other capacity corporate or otherwise, had actual and/or constructive notice and knowledge that empty beer bottles can be used as weapons at the hands of POTRERO INC.’s patrons, were in fact used as such in the past, and knew or had every reason to know that the empty beer bottles posed a high risk of serious bodily injury and/or harm to Plaintiff and other patrons at the POTRERO INC prior to and on the date of the incident. Having actual and/or constructive notice of the aforementioned danger these here defendants intentionally, consciously, deliberately, recklessly and maliciously chose to disregard the known danger that the empty beer bottles posed to Plaintiff and other patrons for the sake of defendants’ profit and monetary gain to the utter disregard of the Plaintiffs’ and patron’s safety….” (TAC ¶29.) Plaintiffs also include a portion of ROBERT TSAY’s deposition transcript wherein ROBERT TSAY seemingly testifies that the use of glass bottles at the club was a financial decision. (TAC ¶29.)

“Directors or officers of a corporation do not incur personal liability for torts of the corporation merely by reason of their official position, unless they participate in the wrong or authorize or direct that it be done. They may be liable, under the rules of tort and agency, for tortious acts committed on behalf of the corporation. [Citations.] As the Supreme Court explained in Frances T: ‘It is well settled that corporate directors cannot be held vicariously liable for the corporation’s torts in which they do not participate. Their liability, if any, stems from their own tortious conduct, not from their status as directors or officers of the enterprise. [Citation.] ‘[A]n officer or director will not be liable for torts in which he does not personally participate, of which he has no knowledge, or to which he has not consented….While the corporation itself may be liable for such acts, the individual officer or director will be immune unless he authorizes, directs, or in some meaningful sense actively participates in the wrongful conduct.’ [Citation.] [¶] Directors are jointly liable with the corporation and may be joined as defendants if they personally directed or participated in the tortious conduct.[Citations.]” (PMC, Inc. v. Kadisha (2000) 78 Cal.App.4th 1368, 1379.)

Plaintiffs fail to allege any facts to support individual liability against the Moving Parties. Accordingly, the demurrer to the fourth, fifth, and sixth causes of action is SUSTAINED without further leave to amend. The Court notes that there are no facts alleged in the TAC to suggest that an alter ego relationship exists between the Moving Defendants and the corporate defendant. Moreover, although Plaintiffs have attached a proposed Fourth Amended Complaint to the Opposition, no Motion for Leave to File an Amended Complaint has been filed with the Court.

Motion to Strike

A motion to strike lies either when (1) there is “irrelevant, false or improper matter inserted in any pleading”; or (2) to strike any pleading or part thereof “not drawn or filed in conformity with the laws of this state, a court rule or order of court.” (CCP ;436.)

The basis for punitive damages must be pled with specificity. Plaintiffs must allege specific facts showing that Defendants’ conduct was oppressive, fraudulent, or malicious. (Smith v. Superior Court (1992) Cal.App.4th 1033, 1041-1042.)

Defendants’ Motion to Strike punitive damages is GRANTED without leave to amend. The Court finds that Plaintiffs have failed to allege sufficient facts to support a prayer for punitive damages against Defendants. Specifically, there are no facts alleged to suggest that Defendants knowingly or intentionally caused or ratified conduct that can be classified as oppressive, fraudulent, or malicious.



Case Number: ****9204    Hearing Date: August 26, 2020    Dept: C

HERNANDEZ, et al. v. POTRERO, INC., et al.

CASE NO.:  ****9204

HEARING 8/26/20

JUDGE: OLIVIA ROSALES

[Remote appearances are encouraged and will be given priority.]

#6

TENTATIVE ORDER

The court reserves ruling on the motion, and will hear from the parties.

Defendant California Force Patrol, Inc. moves for appointment of a Discovery Referee pursuant to CCP ; 639.

“(a) … (5) When the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.” (CCP ; 639(a)(5).)

The Court is to review the following factors to determine whether the appointment of a referee is appropriate: "...(l) there are multiple issues to be resolved; (2) there are multiple motions to be heard simultaneously; (3) the present motion is only one in a continuum of many; (4) the number of documents to be reviewed (especially in issues based on assertion of privilege) make the inquiry inordinately time-consuming." (Taggares, et al. v. Superior Ct. (1998) 62 Cal.App.4th 94, 105.) The Court has the authority to appoint if "one or more of the above factors make an appropriate reference." (Id. at 106.) The court may also consider other factors in favor of appointment, including whether there is a contentious dispute between the parties (Id. at 98); whether an appointment would encourage or facilitate a reasonable approach to discovery (Id. at 104), and whether a neutral officer is required to preside over deposition proceedings (DeBlase v. Superior Ct. (1986) 41 Cal.App.4th 1279, 1284.)

The court finds that a Discovery Referee is appropriate in this action. The parties have a history of contentious discovery disputes. Gemini Insurance Company initially sought the appointment of a Discovery Referee in December of 2017. However, at that time, there was insufficient evidence to support the appointment of a discovery referee at Plaintiff’s sole expense. The request was renewed in October of 2018 when the discovery disputes went unresolved. That motion was withdrawn as there was a stay of proceedings in effect at the time.

Since that time, the parties have been unable to resolve their discovery disputes informally. Motions for a protective order, motions to quash, and ex parte applications were filed to prevent Plaintiffs’ counsel from taking the deposition of trial counsel. Those motions have since been withdrawn. Two discovery motions have been reserved for October 27, 2020. Further, witness depositions were being interrupted and allegations of threatening behavior at depositions are being asserted by both sides. There are 15 percipient witness depositions to be taken, and another 15 expert depositions to be taken before trial. Further, despite three court orders requiring Plaintiff Hernandez to be deposed a second time, Defendants have not been able to depose Hernandez.

At this juncture, based on the contentious nature of this action, the age of this case, counsels’ conduct at the depositions, and the parties’ continued inability to resolve their own discovery disputes, the court finds that a Discovery Referee is best suited for this matter, and can give the parties the immediate assistance that they require.

On 7/29/20, this court ordered the parties to each file a Statement of Preferred Referees, along with any statement regarding the parties’ inability to pay a pro rata share of the referee’s fees; and to appear at a continued hearing on 8/12/20.

This court is in receipt of Plaintiff’s Statement of Preferred Referees. Defendant did not file any Statement of Preferred Referees and did not appear at the 8/12/20 hearing.

In his statement, and at the hearing, Plaintiff’s counsel represented that his clients have the inability to pay their pro rata share of the discovery fees. Absent any evidence to the contrary, this court will accept counsel’s representation. (DeBlase v. Superior Court (1996) 41 Cal.App.4th 1279, 1283.) Therefore, pursuant to CCP ; 639(d)(6)(A), this court may not appoint a referee unless Defendant agrees “voluntarily to pay [Plaintiffs’] additional share of the referee’s fee.”

Since Defendant did not appear at the 8/12/20 hearing, the court continued the hearing to determine whether Defendant will voluntarily agree to pay the discovery referee fees.

It appears the Court’s notice to defendants was sent to the incorrect addresses and therefore defendants did not receive notice of the August 12th hearing.

The court will therefore consider the Defendant’s statement of preferred referees and Defendant will be given an opportunity to respond to this court’s query regarding CCP ; 639(d)(6)(A).



Case Number: ****9204    Hearing Date: August 12, 2020    Dept: C

HERNANDEZ, et al. v. POTRERO, INC., et al.

CASE NO.:  ****9204

HEARING 8/12/20

JUDGE: OLIVIA ROSALES

[Remote appearances are encouraged and will be given priority.]

TENTATIVE ORDER

Defendant California Force Patrol, Inc.’s motion for appointment of discovery referee is GRANTED.

Clerk to give NOTICE.

Defendant California Force Patrol, Inc. moves for appointment of a Discovery Referee pursuant to CCP ; 639.

“(a) … (5) When the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.” (CCP ; 639(a)(5).)

The Court is to review the following factors to determine whether the appointment of a referee is appropriate: "...(l) there are multiple issues to be resolved; (2) there are multiple motions to be heard simultaneously; (3) the present motion is only one in a continuum of many; (4) the number of documents to be reviewed (especially in issues based on assertion of privilege) make the inquiry inordinately time-consuming." (Taggares, et al. v. Superior Ct. (1998) 62 Cal.App.4th 94, 105.) The Court has the authority to appoint if "one or more of the above factors make an appropriate reference." (Id. at 106.) The court may also consider other factors in favor of appointment, including whether there is a contentious dispute between the parties (Id. at 98); whether an appointment would encourage or facilitate a reasonable approach to discovery (Id. at 104), and whether a neutral officer is required to preside over deposition proceedings (DeBlase v. Superior Ct. (1986) 41 Cal.App.4th 1279, 1284.)

The court finds that a Discovery Referee is appropriate in this action. The parties have a history of contentious discovery disputes. Gemini Insurance Company initially sought the appointment of a Discovery Referee in December of 2017. However, at that time, there was insufficient evidence to support the appointment of a discovery referee at Plaintiff’s sole expense. The request was renewed in October of 2018 when the discovery disputes went unresolved. That motion was withdrawn as there was a stay of proceedings in effect at the time.

Since that time, the parties have been unable to resolve their discovery disputes informally. Motions for a protective order, motions to quash, and ex parte applications were filed to prevent Plaintiffs’ counsel from taking the deposition of trial counsel. Those motions have since been withdrawn. Two discovery motions have been reserved for October 27, 2020. Further, witness depositions were being interrupted and allegations of threatening behavior at depositions are being asserted by both sides. There are 15 percipient witness depositions to be taken, and another 15 expert depositions to be taken before trial. Further, despite three court orders requiring Plaintiff Hernandez to be deposed a second time, Defendants have not been able to depose Hernandez.

At this juncture, based on the contentious nature of this action, the age of this case, counsels’ conduct at depositions, the parties’ continued inability to resolve their own discovery disputes, and the court’s overloaded calendar due to the Covid-19 pandemic, the court finds that a Discovery Referee is best suited for this matter, and can give the parties the immediate assistance that they require.

Accordingly, the motion is GRANTED.

At the hearing on 7/28/20, this court ordered the parties to each file a Statement of Preferred Referees, along with any statement regarding the parties’ inability to pay a pro rata share of the referee’s fees.

This court is in receipt of Plaintiff’s Statement of Preferred Referees. Defendant did not file any Statement.

The court orders the appointment of the referee for all discovery purposes in this action. (CCP ; 639(c).)

As delineated above, exceptional circumstances in this matter warrants the appointment of a discovery referee based on the multiple discovery issues that have yet to be resolved in this matter, the contentious nature of the parties and/or counsel, and the need for a neutral officer to preside over deposition proceedings if the need arises. (CCP ; 639(d)(2).)

The subject matter of this lawsuit concerns assault, battery, and premises liability allegations. (CCP ; 639(d)(3).)

The Court appoints Amy Fisch Solomon, Esq. at the maximum hourly rate of $490.00. Ms. Solomon’s business address is 1851 E. First Street, Suite 1600, Santa Ana, CA 92705, and her telephone number is (714) 834-1340. (CCP ; 639(d)(4) and (5).)

The court notes that no party has submitted any evidence establishing their inability to pay a pro rata share of the referee’s fee, and there is no record that any party is proceeding in forma pauperis. (CCP ; 639(d)(6)(A).)



Case Number: ****9204    Hearing Date: July 28, 2020    Dept: C

HERNANDEZ, et al. v. POTRERO, INC., et al.

CASE NO.:  ****9204

HEARING 7/28/20

JUDGE: OLIVIA ROSALES

[Remote appearances are encouraged and will be given priority.]

#7

TENTATIVE ORDER

I. Defendants Robert and Shyr-Jin Tsay’s demurrer to Plaintiffs’ second amended complaint is SUSTAINED with 10 days leave to amend.

II. Defendants Robert and Shyr-Jin Tsay’s motion to strike is MOOT.

III. Defendant California Force Patrol, Inc.’s motion for appointment of discovery referee is GRANTED.

IV. Motion to compel Defendant Shyr Jin-Tsay’s deposition and to vacate the discovery stay as to Shyr Jin-Tsay is DENIED.

Plaintiff to give NOTICE.

I-II. Demurrer and Motion to Strike

Defendants Robert Tsay (“Robert”) and Shyr-Jin Shay (“Shyr-Jin”) demurs to the 4th – 6th causes of action on the grounds that they fail to state facts sufficient to constitute causes of action and are uncertain.

Newly added Defendants Robert and Shyr-Jin are identified as “manager, director and/or officer of Potrero Inc.” (SAC, ¶ 10.) However, the SAC does not contain any allegations of wrongful conduct on the part of these individuals. "Ordinarily, a corporation is regarded as a legal entity separate and distinct from its stockholders, officers and directors." (Communist Party v. 522 Valencia, Inc. (1995) 35 Cal.App.4th 980, 993). "It is well settled that corporate directors cannot be held vicariously liable for the corporation's torts in which they do not participate. Their liability, if any, stems from their own tortious conduct, not from their status as directors or officers of the 14 enterprise." (Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 503).

Plaintiffs fail to allege any facts supporting individual liability against these demurring Defendants. Accordingly, demurrer is SUSTAINED with 10 days leave to amend. Accompanying motion to strike is MOOT in light of the court’s grant of leave to amend.

III. Discovery Referee

Defendant California Force Patrol, Inc. moves for appointment of a Discovery Referee pursuant to CCP ; 639.

“(a) … (5) When the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.” (CCP ; 639(a)(5).)

The Court is to review the following factors to determine whether the appointment of a referee is appropriate: "...(l) there are multiple issues to be resolved; (2) there are multiple motions to be heard simultaneously; (3) the present motion is only one in a continuum of many; (4) the number of documents to be reviewed (especially in issues based on assertion of privilege) make the inquiry inordinately time-consuming." (Taggares, et al. v. Superior Ct. (1998) 62 Cal.App.4th 94, 105.) The Court has the authority to appoint if "one or more of the above factors make an appropriate reference." (Id. at 106.) The court may also consider other factors in favor of appointment, including whether there is a contentious dispute between the parties (Id. at 98); whether an appointment would encourage or facilitate a reasonable approach to discovery (Id. at 104), and whether a neutral officer is required to preside over deposition proceedings (DeBlase v. Superior Ct. (1986) 41 Cal.App.4th 1279, 1284.)

The court finds that a Discovery Referee is appropriate in this action. The parties have a history of contentious discovery disputes. Gemini Insurance Company initially sought the appointment of a Discovery Referee in December of 2017. However, at that time, there was insufficient evidence to support the appointment of a discovery referee at Plaintiff’s sole expense. The request was renewed in October of 2018 when the discovery disputes went unresolved. That motion was withdrawn as there was a stay of proceedings in effect at the time.

Since that time, the parties have been unable to resolve their discovery disputes informally. Motions for a protective order, motions to quash, and ex parte applications were filed to prevent Plaintiffs’ counsel from taking the deposition of trial counsel. Those motions have since been withdrawn. Two discovery motions have been reserved for October 27, 2020. Further, witness depositions were being interrupted and allegations of threatening behavior at depositions are being asserted by both sides. There are 15 percipient witness depositions to be taken, and another 15 expert depositions to be taken before trial. Further, despite three court orders requiring Plaintiff Hernandez to be deposed a second time, Defendants have not been able to depose Hernandez.

At this juncture, based on the contentious nature of this action, the age of this case, counsels’ conduct at depositions, the parties’ continued inability to resolve their own discovery disputes, and the court’s overloaded calendar due to the Covid-19 pandemic, the court finds that a Discovery Referee is best suited for this matter, and can give the parties the immediate assistance that they require.

Accordingly, motion is GRANTED. Costs to be borne equally between the parties.

The parties are ordered to meet and confer regarding a Discovery Referee. If the parties cannot agree on a Discovery Referee, each party will file a separate Statement of Preferred Referees, listing its top two Referees. This court will select a Discovery Referee from the lists, and will notify the parties of the court’s selection.

IV. Deposition

Plaintiffs’ motion to compel Defendant Shyr Jin-Tsay’s deposition; to vacate discovery stay; and for sanctions is DENIED.

On 12/18/19, this court imposed a stay on all discovery until the hearing on appointing a discovery referee. Any discovery prior to 7/28/20 violates the discovery stay. The stay will be lifted once a Discovery Referee is chosen.



Case Number: ****9204    Hearing Date: January 23, 2020    Dept: SEC

HERNANDEZ v. POTRERO, INC.

CASE NO.: ****9204

HEARING: 01/23/2020

JUDGE: OLIVIA ROSALES

#7

TENTATIVE ORDER

Defendant CALIFORNIA FORCE PATROL, INC’s Motion for Appointment of Discovery Referee is DENIED. CCP ;639.

Moving Party to give Notice.

“When the parties do not consent, the court may, upon the written motion of any party, or of its own motion, appoint a referee in the following cases…. (5) When the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon.” (CCP ;639(a)(5).) Such an appointment is authorized only where necessary, and it is improper to issue a blanket order directing any and all discovery motions to a referee for routine matters. (See Hood v. Superior Court (1999) 72 Cal.App.4th 446, 449 fn. 4.) An appointment is justified only where the majority of factors justifying reference, including that multiple issues need to be resolved, multiple motions must be heard simultaneously, the present motion is only one in a continuum of many, and there are numerous and voluminous documents to be reviewed which make the inquiry inordinately time consuming, are present. (See Taggares v. Superior Court (1998) 62 Cal.App.4th 94.; See also CRC Rule 3.920(c).)

Currently, there are only four discovery hearings scheduled to take place before this Court. This does not appear to satisfy the requirement of multiple, simultaneous, continuous, or complex discovery issues contemplated in appointing a referee. While the Court acknowledges that the litigation in this case appears contentious, that alone is not sufficient to grant a Motion for a Discovery Referee. The motion to appoint a discovery referee is denied.

The Court notes that this is Defendant’s second request for the appointment of a discovery referee.



Case Number: ****9204    Hearing Date: November 21, 2019    Dept: SEC

HERNANDEZ v. POTRERO, INC.
CASE NO.:  ****9204
HEARING:  11/21/19
JUDGE: RAUL A. SAHAGUN
#7
TENTATIVE ORDER 
Defendant CALIFORNIA FORCE PROTECTION, INC.’s Motion to Compel Plaintiff’s Second Deposition is GRANTED. 
Moving Party to give notice. 
“(a) Once a party has taken the deposition of any natural person, including that of a party to the action, neither the party who gave, nor any other party who has been served with a deposition notice pursuant to Section 2025.240 may take a subsequent deposition of that deponent. (b) Notwithstanding subdivision (a), for good cause shown, the court may grant leave to take a subsequent deposition….” (emphasis added.) (CCP ;2025.610.)  
Here, CFPI argues that there is good cause to grant leave to obtain a second deposition of Plaintiff as the Complaint has been amended twice since Plaintiff’s last deposition, and new facts have been alleged against CFPI. CFPI also argues that a second deposition is necessary because at the time this action was filed, CFPI was suspended and was precluded from partaking in discovery.  Moreover, CFPI indicates that Plaintiff has failed to comply with IDC Order(s) compelling his further answers to deposition questions—whether that is the case is not properly before the Court at this time. 
The Motion to Compel a Second Deposition is granted. The parties are ordered to meet and confer to choose a mutually available date and time for the subsequent deposition, no later than fifteen days from the Court’s issuance of this Order. 
CFPI’s requests for sanctions are denied. A second deposition cannot occur without leave of Court. 


Case Number: ****9204    Hearing Date: October 31, 2019    Dept: SEC

HERNANDEZ v. POTRERO, INC.

CASE NO.:  ****9204

HEARING: 10/31/19

JUDGE: MARGARET M. BERNAL

#2

TENTATIVE ORDER

Plaintiffs MIGUEL ROJAS HERNANDEZ and GUADALUPE ROJAS’s Motion for Leave to File a Second Amended Complaint is GRANTED.

Moving Party to give Notice.

The Proposed Second Amended Complaint, attached as Exhibit 1 to the Declaration of Michael J. Libman is NOT deemed served and filed as of the hearing date. Plaintiffs MIGUEL ROJAS HERNANDEZ and GUADALUPE ROJAS are ORDERED to SERVE and FILE its Second Amended Complaint within 5 court days of October 31, 2019. Responsive pleadings are to be filed in accordance with the rules of civil procedure.

California recognizes “a general rule of…liberal allowance of amendments…” (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 939.) It has also long been recognized that “even if the proposed legal theory is a novel one, ‘the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) In light of great liberality employed when ruling on a motion for leave to amend, the court will not normally consider the validity of the proposed amended pleading since grounds for demurrer or motion to strike are premature. Thus, absent prejudice to the opposing party, courts are bound to apply a policy of great liberality in permitting amendments to the complaint “at any stage of the proceedings, up to and including trial.” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.)

Here, the Court finds that Plaintiffs should be afforded the opportunity to allege a claim for punitive damages and add additional defendants ROBERT TSAY and SHYR-JIN TSAY. Defendant(s) maintain the right to demur, file a motion to strike, or move for summary judgment. Plaintiffs’ Motion is granted.



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