Tentative Rulings

Case Number: ****4829 Hearing Date: August 15, 2022 Dept: 32

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged). Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

TENTATIVE RULING

Attorneys Barry A. Drucker and Tigran Martinian of Drucker Law Firm, PC (collectively, “Counsel”) move to be relieved as counsel for plaintiff Omar Santiago Castro.

The Court finds that Counsel has not filed proofs of service in connection with the motion to establish service of the notice of the motion and motion, declaration in support of motion, and proposed order on Plaintiff and all other parties who have appeared in the action, as required. (Cal. Rules of Court, rule 3.1362(d).) In particular, one proof of service filed in connection with the motion indicates that Plaintiff was served with the notice of motion and declaration, but not the proposed order. And the other proof of service does not indicate that the defendants who have appeared in the action have been served with any of the moving papers including the proposed order.

The Court therefore denies the motion as procedurally defective. Counsel is ordered to provide notice of this order and file a proof of service of such.

Case Number: ****4829 Hearing Date: July 6, 2022 Dept: 32

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged). Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

TENTATIVE RULING

MOTION

Plaintiff Omar Santiago sued defendants 3608 Manhattan Avenue, LLC, HB Construction, Timothy R. Roth individually and dba the The Roth Group, and Nathan Roth (“Nathan”) (collectively, “Defendants”) based on injuries Plaintiff alleges he sustained when he fell down an elevator shaft on property owned and controlled by Defendants. Nathan moves to enforce Plaintiff’s compliance with the Court’s May 11, 2022 Order. Defendants 3608 Manhattan Avenue, LLC, HB Construction, Timothy R. Roth individually and dba the The Roth Group join the motion. Plaintiff opposes the motion.

Plaintiff objects to the motion for inadequate notice per Code of Civil Procedure section 1005. The Court notes that Nathan’s proof of service filed in connection with the motion indicates service on Plaintiff on June 13, 2022, by electronic transmission. The Court therefore finds Nathan’s service of the motion to be untimely. (See Code Civ. Proc., 1005, subd. (b); 1010.6, subd. (4)(B) [notice of motion must be served 16 days before the hearing plus 2 court days for service by electronic transmission].) Despite the procedural deficiency, the Plaintiff has nevertheless filed an opposition to the motion with full briefing on the merits. The Court therefore finds Plaintiff will not be prejudiced by the Court’s consideration of the motion on the merits, and exercises its discretion to do so.

ANALYSIS

In its May 11, 2022 Order, the Court granted Plaintiff’s motion to reopen discovery on a limited basis as follows:

1. The parties may conduct discovery related to Guillermo Plascencia, who is a percipient witness having knowledge related to Plaintiff’s claims, including discovery related to the Declaration of Guillermo Plascencia dated March 26, 2022;

2. The parties may conduct discovery related to Hugo Alberto Estevez Gonzales, who is a percipient witness having knowledge related to Plaintiff’s claims, including discovery related to the Declaration of Hugo Alberto Estevez Gonzales dated October 6, 2021; and

3. The parties shall complete the limited discovery on or before August 31, 2022.

(May 11, 2022 Minute Order.)

Nathan moves to “enforce” the Court’s May 11, 2022 Order by directing Plaintiff to appear for deposition and produce documents demanded in the deposition notice Nathan served on Plaintiff. The Court first notes that Nathan has not proffered any authority to establish that the Court is empowered to “enforce” its May 11, 2022 Order in the manner Nathan requests. On that basis alone, the Court is inclined to deny the motion as procedurally defective.

In essence, Nathan moves to compel Plaintiff’s appearance for a second deposition and produce requested documents per a deposition notice. To obtain his requested relief, Nathan must move the Court to reopen discovery and for leave to take a subsequent deposition of Plaintiff because discovery is closed apart from the edicts set forth in the May 11, 2022 Order, which Nathan has not done here.

Consequently, the Court denies the motion. Nathan shall give notice of the Court’s ruling, and file a proof of service of such.

Case Number: ****4829 Hearing Date: May 9, 2022 Dept: 32

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged). Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

TENTATIVE RULING

MOTION

Plaintiff Omar Santiago sued Defendants 3608 Manhattan Avenue, LLC, HB Construction, Timothy R. Roth individually and dba the The Roth Group, and Nathan Roth (collectively, “Defendants”) based on injuries Plaintiff alleges he sustained when he fell down an elevator shaft on property owned and controlled by Defendants. Plaintiff moves to reopen discovery to further investigate Defendants’ alleged new evidence and witnesses disclosed in recent supplemental discovery responses. Defendants oppose the motion and request monetary sanctions.

ANALYSIS

Trial is currently set for October 21, 2022, which the Court set pursuant to Plaintiff’s ex parte application to continue trial. (See March 30, 2022 Minute Order.) Based on the Court’s March 30, 2022 Minute Order, all fact and expert discovery remained closed based on the original trial date of November 4, 2019. (See Code Civ. Proc., 2024.020, subd. (a), 2024.030, 2016.060.)

In determining whether to reopen discovery, the court must consider the necessity of and reasons for the additional discovery, the diligence or lack thereof by the party seeking to reopen discovery in attempting to complete discovery prior to the cutoff, whether permitting the discovery will prevent the case from going forward on the trial date or will otherwise prejudice any party, and any past continuances of the trial date. (See Code Civ. Proc., 2024.050, subd. (b).)

Here, Plaintiff seeks to reopen discovery to investigate new witnesses and evidence Defendants disclosed in their supplemental discovery responses served on March 19, 2022. According to counsel for Plaintiff, Robert J. Golde (“Golde”), Defendants’ supplemental discovery responses disclose new witnesses and theories of defense for which Plaintiff asserts there must be undisclosed evidence in support. (Declaration of Robert J. Golde, 8-15.)

Plaintiff first learned of the inaccuracy on February 2, 2022, during the deposition of Defendants’ person most qualified, Kristen Kamakura (“Kamakura”). (Declaration of Michael L. Justice, 33.) Justice states that Defendants have consistently represented, and thus led Plaintiff to believe, that the subject video footage was true and accurate since it produced the footage on August 2, 2019. (Declaration of Michael L. Justice, 10, 33.) Finally, Justice avers he was unavailable to file this motion prior to February 18, 2022, due to personal circumstances. (Declaration of Michael L. Justice, 34.)

In opposition, Defendants argue Plaintiff’s request to reopen discovery is frivolous. Defendants assert they served their supplemental discovery requests with the intent of cleaning up certain issues before trial, and any alleged newly disclosed evidence was done in good faith and without obligation as Plaintiff had not requested such information in his prior discovery. Finally, Defendants argue Plaintiff’s motion fails to address the statutory requirements for reopening discovery.

The Court finds that Plaintiff has shown good cause for reopening discovery so Plaintiff may investigate Defendants’ new evidence and witnesses disclosed in its supplemental discovery responses. Further, “[t]here is, to be sure, a policy in favor of trying cases on their merits. And it is an important one.” (McClain v. Kissler (2019) 39 Cal.App.5th 399, 405; see also Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [“the law favors disposing of cases on their merits”].)

CONCLUSION AND ORDER

Therefore, the Court grants Plaintiff’s motion to reopen discovery, and orders all discovery and pre-trial discovery motion cutoffs shall be August 31, 2022.

Plaintiff shall give notice of the Court’s ruling and file a proof of service of such.

Case Number: ****4829    Hearing Date: July 30, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Department 32

BACKGROUND

Defendant Residential Elevators, LLC (“R.E.”) seeks a determination that its settlement with Plaintiff Omar Santiago Castro (“Plaintiff”) was made in good faith. Defendants 3608 Manhattan Avenue, LLC, Timothy R. Roth, and HB Construction (“Defendants”) have filed a motion to contest the application for determination of good faith settlement, which R.E. opposes. The Court finds that the settlement was made in good faith.

LEGAL STANDARD

In Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, the court set forth the factors to consider when determining whether a settlement is made in good faith.  The Tech-Bilt factors are: (1) a rough approximation of plaintiff’s total recovery and the settlor’s proportionate liability; (2) the amount paid in settlement; (3) the allocation of settlement proceeds among plaintiffs; (4) a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial; (5) the financial conditions and insurance policy limits of settling defendants; and (6) the existence of collusion, fraud, or tortious conduct aimed to injure the interests of the non-settling defendants.  (Tech-Bilt, Inc. v. Woodward-Clyde & Assoc. (1985) 38 Cal.3d 488, 498-501.)

DISCUSSION

In this case, Plaintiff fell through an elevator shaft at a construction site where he worked as a painter. R.E. was a contractor retained by Defendants to install an elevator at the site. Plaintiff has settled with Residential Elevators for $2,500. Residential Elevators argues that liability is tenuous per Privette v. Superior Court (1993) 5 Cal.4th 689. In that case, the California Supreme Court noted: “At common law, a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor’s negligence in performing the work.” (Privette v. Superior Court (1993) 5 Cal.4th 689, 693.) The Court identified the peculiar risk doctrine as an exception to that general rule. “Under the peculiar risk doctrine, a person who hires an independent contractor to perform work that is inherently dangerous can be held liable for tort damages when the contractor’s negligent performance of the work causes injuries to others.” (Id. at 691.) The reason for the peculiar risk doctrine is to prevent a party from escaping liability for inherently dangerous activities by hiring independent contractors to undertake the inherently dangerous activities on its behalf. (Id. at 693-694.) The Court held, however, that the peculiar risk doctrine does not extend to the employees of independent contractors, because the Workers’ Compensation Act entitles employees to benefits, and employees therefore have recourse for their injuries. (Id. at 702.) Nonetheless, “if a hirer does retain control over safety conditions at a worksite and negligently exercises that control in a manner that affirmatively contributes to an employee's injuries, it is only fair to impose liability on the hirer.” (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 213.)

The Court initially heard this motion on February 25, 2020, and concluded that there may be strong grounds to find that the settlement was reached in good faith. The problem, however, was that R.E. proffered insufficient evidence in support of its position. It appeared to be undisputed that Plaintiff was an employee of a subcontractor hired by Defendants to perform work at the building. However, the Court could not conclude that R.E. did not retain some control over the safety conditions. Therefore, the Court continued the hearing on this motion to permit additional briefing.

R.E. relies on a declaration from Jack Hannah, a representative of R.E. Hannah states that R.E. entered into an agreement with HB Construction, the general contractor for the project. (Declaration of Jack Hannah, ¶ 2.) According to the contract, R.E. would install the elevators, and it was the “sole responsibility” of H.B. to place barricades to prevent access to the elevator shaft. (Id., ¶¶ 5-6 & Exh. B.) Further, Hannah states that R.E. did not have any personnel on site from November 25, 2015 through April 13, 2016. (Id., ¶¶ 12-14.) In other words, there were no R.E. personnel who might have exercised on-site supervision of safety conditions on the date of Plaintiff’s accident (December 14, 2015.) Defendants’ objections to this declaration and exhibit lack merit and are overruled.

Based upon the foregoing, R.E. has proffered sufficient evidence to demonstrate that it retained no control over the safety conditions at the job site, and if anything, HB Construction’s negligence caused the accident at issue. Moreover, there is no evidence suggesting that this settlement was reached in bad faith or reflects any fraudulent intent. Therefore, the Court concludes that the settlement between Plaintiff and Residential Elevators is not “so far ‘out of the ballpark’ . . .” such that it was not in good faith. (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499-500.)

CONCLUSION AND ORDER

The Court grants R.E.’s application for determination of good faith settlement. The Court denies Defendants’ motion to contest the application. The Court finds that the settlement between R.E. and Plaintiff was made in good faith. R.E. shall provide notice and file proof of such with the Court.

DATED: July 30, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: ****4829    Hearing Date: February 26, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Department 32

Defendant Residential Elevators, LLC (“R.E.”) seeks a determination that its settlement with Plaintiff Omar Santiago Castro (“Plaintiff”) was made in good faith. Defendants 3608 Manhattan Avenue, LLC, Timothy R. Roth, and HB Construction (“Defendants”) have filed a motion to contest the application for determination of good faith settlement, which R.E. opposes.

In Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, the court set forth the factors to consider when determining whether a settlement is made in good faith.  The Tech-Bilt factors are: (1) a rough approximation of plaintiff’s total recovery and the settlor’s proportionate liability; (2) the amount paid in settlement; (3) the allocation of settlement proceeds among plaintiffs; (4) a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial; (5) the financial conditions and insurance policy limits of settling defendants; and (6) the existence of collusion, fraud, or tortious conduct aimed to injure the interests of the non-settling defendants.  (Tech-Bilt, Inc. v. Woodward-Clyde & Assoc. (1985) 38 Cal.3d 488, 498-501.)

In this case, Plaintiff fell through an elevator shaft at a construction site where he worked as a painter. R.E. was a contractor retained by Defendants to install an elevator at the site. Plaintiff has settled with Residential Elevators for $2,500. Residential Elevators argues that liability is tenuous per Privette v. Superior Court (1993) 5 Cal.4th 689. In that case, the California Supreme Court noted, “At common law, a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor’s negligence in performing the work.” (Privette v. Superior Court (1993) 5 Cal.4th 689, 693.) The court identified the peculiar risk doctrine as an exception to that general rule. “Under the peculiar risk doctrine, a person who hires an independent contractor to perform work that is inherently dangerous can be held liable for tort damages when the contractor’s negligent performance of the work causes injuries to others.” (Id. at 691.) The reason for the peculiar risk doctrine is to prevent a party from escaping liability for inherently dangerous activities by hiring independent contractors to undertake the inherently dangerous activities on its behalf. (Id. at 693-694.) The court held, however, that the peculiar risk doctrine does not extend to the employees of independent contractors, because the Workers’ Compensation Act entitles employees to benefits, and employees therefore have recourse for their injuries. (Id. at 702.) Nonetheless, “if a hirer does retain control over safety conditions at a worksite and negligently exercises that control in a manner that affirmatively contributes to an employee's injuries, it is only fair to impose liability on the hirer.” (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 213.)

This may be a strong reason for the Court to find the settlement to have been made in good faith. The problem, however, is that R.E. provides insufficient evidence in support of its position that the settlement was made in good faith. It appears to be undisputed that Plaintiff was an employee of a subcontractor hired by Defendants to perform work at the building. However, on this record, the Court cannot conclude that R.E. did not retain some control over the safety conditions. R.E. relies on Exhibit C to Gopal S. Patel’s declaration, which appears to be a contract between the general contractor and R.E. The declaration states:

Barricades and/or any/all other legal methods required by any jurisdiction to prevent access into shaft shall be required outside each floor landing for the protection of workmen and all other subcontractors and/or occupants until the elevator is installed completely and turned over to the homeowner. These devices shall be the sole responsibility of GC.

(Declaration of Gopal S. Patel, Exh. C.) There are two problems with this document. First, the document is not properly authenticated because it is not referenced in the declaration. Second, as counsel, Patel likely cannot authenticate the contract between the parties anyway, as that would be based on hearsay.

Putting that aside, the mere fact that such a contract existed does not mean that R.E. did not somehow cause the accident. For example, there is no declaration from an employee of R.E. confirming that R.E. retained no control over the safety conditions at the workplace and that R.E. actually observed this agreement. Reality is not necessarily consistent with the terms of a contract. Also, the contract addresses only barriers in front of the open elevator shafts. This is not the only potential safety condition at a construction site. For example, on this record, the Court cannot exclude the possibility that R.E. was responsible for policing its worksite for trip hazards (e.g., debris from a sloppy worksite, tools from R.E.’s work, etc.) and that R.E.’s failure to do so caused Plaintiff to trip and fall in the first place. Simply, there is no real evidence in support of R.E.’s request for a finding of good faith, i.e., declaration(s) from R.E. personnel and accompanying exhibits. Nor does R.E. discuss these issues sufficiently in the context of the Tech-Bilt factors. Therefore, the Court cannot determine whether the settlement was made in good faith.

Counsel also relies on Plaintiff’s deposition testimony. Plaintiff testified that he did not know R.E.’s role at the construction site. (Declaration of Gopal S. Patel, ¶ 4.) Plaintiff’s lack of knowledge does not necessarily preclude liability.

Finally, Defendants have demonstrated that R.E. agreed to indemnify Defendants for claims that did not result from Defendants’ sole negligence. (Opposition to Application for Determination of Good Faith Settlement, Exhibit A.) Accordingly, if R.E. bore any responsibility for this accident, R.E. is liable to Defendants. As discussed, the Court cannot exclude the possibility that R.E. bore some responsibility because R.E. provides the Court with no competent evidence. Simply, R.E. ultimately may be entitled to a finding that its settlement was made in good faith, but the Court intends to hold R.E. to its burden.

CONCLUSION AND ORDER

The Court continues the hearing on this motion to March 24, 2020, at 1:30 p.m. R.E. may file a supplemental opposition with competent evidence on or before March 6, 2020. Defendants may file a reply brief within statutory time periods. The Court’s clerk shall provide notice.

DATED: February 25, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court