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This case was last updated from Los Angeles County Superior Courts on 06/16/2019 at 19:57:25 (UTC).

PAUL ROBINSON VS SURFACE MODIFICATION SYSTEMS ET AL

Case Summary

On 10/11/2017 PAUL ROBINSON filed a Personal Injury - Other Personal Injury lawsuit against SURFACE MODIFICATION SYSTEMS. This case was filed in Los Angeles County Superior Courts, Norwalk Courthouse located in Los Angeles, California. The Judges overseeing this case are LAURA A. SEIGLE and MARGARET MILLER BERNAL. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9206

  • Filing Date:

    10/11/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Norwalk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

LAURA A. SEIGLE

MARGARET MILLER BERNAL

 

Party Details

Plaintiff and Petitioner

ROBINSON PAUL

Defendants and Respondents

SURFACE MODIFICATION SYSTEMS

BAMOLA RAJAN

DOES 1 TO 100

THE HEIRS AND DEVISEES OF RAJAN BAMOLA DECEASED AND ALL PERSONS CLAIMING BY THROUGH OR UNDER SAID DECEDENT

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

THALHEIMER BERNARD J. ESQ.

KAR JOSEPH MICHAEL

Defendant and Respondent Attorneys

HARWELL LEE JR. ESQ.

LEE HARWELL

 

Court Documents

NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; ETC

7/30/2018: NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT; ETC

REPLY TO OPPOSITION TO MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES.

8/23/2018: REPLY TO OPPOSITION TO MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES.

Declaration

10/11/2018: Declaration

Motion to Quash

10/19/2018: Motion to Quash

Minute Order

1/8/2019: Minute Order

Motion to Compel Further Discovery Responses

1/15/2019: Motion to Compel Further Discovery Responses

Motion to Compel Further Discovery Responses

1/15/2019: Motion to Compel Further Discovery Responses

Opposition

2/4/2019: Opposition

Opposition

2/4/2019: Opposition

Case Management Statement

2/15/2019: Case Management Statement

Affidavit

3/4/2019: Affidavit

Unknown

3/7/2019: Unknown

Minute Order

4/12/2019: Minute Order

Minute Order

4/25/2019: Minute Order

Reply

5/16/2019: Reply

Minute Order

5/23/2019: Minute Order

Answer

6/10/2019: Answer

ANSWER OF DEFENDANT SURFACE MODIFICATION SYSTEMS, INC. TO COMPLAINT

1/11/2018: ANSWER OF DEFENDANT SURFACE MODIFICATION SYSTEMS, INC. TO COMPLAINT

58 More Documents Available

 

Docket Entries

  • 06/10/2019
  • Answer to Second Amended Complaint; Filed by SURFACE MODIFICATION SYSTEMS (Defendant)

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  • 06/05/2019
  • at 08:30 AM in Department F, Margaret Miller Bernal, Presiding; Trial Setting Conference - Held

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  • 06/05/2019
  • at 08:30 AM in Department F, Margaret Miller Bernal, Presiding; Order to Show Cause Re: (regarding answer/responsive pleading to the operative complaint) - Held

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  • 06/05/2019
  • Minute Order ( (Trial Setting Conference; Order to Show Cause Re: regarding a...)); Filed by Clerk

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  • 05/23/2019
  • at 1:30 PM in Department C; Hearing on Motion to Strike (Portions of the Second Amended Complaint) - Held

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  • 05/23/2019
  • Minute Order ( (Hearing on Motion to Strike Portions of the Second Amended Co...)); Filed by Clerk

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  • 05/23/2019
  • Order (re: hearing date of 5/23/19); Filed by Clerk

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  • 05/16/2019
  • Reply (Supporting Motion to Strike); Filed by SURFACE MODIFICATION SYSTEMS (Defendant)

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  • 05/16/2019
  • Reply (Supporting Motion to Strike); Filed by SURFACE MODIFICATION SYSTEMS (Defendant)

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  • 05/09/2019
  • Opposition ( TO MOTION TO STRIKE PORTIONIS OF THE SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; REQUEST FOR JUDICIAL NOTICE; AND EXHIBIT 1 HERETO.); Filed by Paul Robinson (Plaintiff)

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95 More Docket Entries
  • 06/13/2018
  • Substitution of Attorney; Filed by PAUL ROBINSON (Plaintiff)

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  • 06/13/2018
  • Minute Order

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  • 01/11/2018
  • ANSWER OF DEFENDANT SURFACE MODIFICATION SYSTEMS, INC. TO COMPLAINT

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  • 01/11/2018
  • Answer; Filed by SURFACE MODIFICATION SYSTEMS (Defendant)

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  • 12/22/2017
  • PROOF OF SERVICE SUMMONS

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  • 12/22/2017
  • Proof-Service/Summons; Filed by Plaintiff/Petitioner

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  • 12/22/2017
  • PROOF OF SERVICE OF SUMMONS

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  • 10/11/2017
  • SUMMONS

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  • 10/11/2017
  • PLAINTIFF'S COMPLAINT FOR DAMAGES:1. ASSAULT AND BATTERY ;ETC

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  • 10/11/2017
  • Complaint; Filed by PAUL ROBINSON (Plaintiff)

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Tentative Rulings

Case Number: BC679206    Hearing Date: April 13, 2021    Dept: C

ROBINSON v. SURFACE MODIFICATION SYSTEMS

CASE NO.: BC679206

HEARING: 4/13/21 @ 9:30 AM

#2

TENTATIVE ORDER

Paul Robinson, Sr.’s motion for leave to substitute Plaintiff pursuant to CCP § 377.31 is DENIED without prejudice.

Opposing Party to give NOTICE.

Paul Robinson, Sr. moves to substitute himself as Plaintiff pursuant to CCP § 377.32.

Plaintiff Paul Robinson filed the instant action on 10/11/17. The operative Second Amended Complaint alleges: Plaintiff began working for Defendant Surface Modification Systems, Inc. in or about April 2010. (SAC, ¶ 13.) “[W]hile working for Defendant…over the years and more so shortly before being wrongfully terminated, Mr. Robinson was regularly subjected to various types of mistreatment, hostility, and eventually suffered corporal punishment, which became a regular practice and a convention that Defendant SMS allowed BAMOLA to employ and exact against Mr. Robinson on regular occasion.” (SAC, ¶ 14.) “On or about August 3, 2017, Plaintiff was at work performing his duties when Defendant BAMOLA angrily yelled at him for his performance twice, called him a ‘fucking retard,’ and then, in his uncontrolled rage BAMOLA punched Mr. Robinson on the left side of his face, causing… serious damage and injury.” (SAC, ¶ 17.) The SAC asserts causes of action for:

1. Assault and Battery

2. Negligence

3. IIED

4. Negligent Hiring, Training, and/or Retention of Unit Employee

5. Wrongful Termination

During the pendency of the action, Defendant Rajan Bamola died (date unknown).

Plaintiff Paul Robinson, Jr. died on 10/3/20.

Plaintiff’s wife, Michele Robinson, died on 12/29/20.

“A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor in interest, subject to Chapter 1 (commencing with Section 7000) of Part 1 of Division 7 of the Probate Code, and an action may be commenced by the decedent’s personal representative or, if none, by the decedent’s successor in interest.” (CCP § 377.30.)

“On motion after the death of a person who commenced an action or proceeding, the court shall allow a pending action or proceeding that does not abate to be continued by the decedent’s personal representative or, if none, by the decedent’s successor in interest.” (CCP § 377.31.)

“A person has no power to administer the estate until the person is appointed personal representative and the appointment becomes effective. Appointment of a personal representative becomes effective when the person appointed is issued letters.” (Prob. Code § 8400(a).)

“A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent’s personal representative on their behalf: (a) The decedent’s surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession. If the parents of the decedent would be entitled to bring an action under this subdivision, and the parents are deceased, then the legal guardians of the decedent, if any, may bring an action under this subdivision as if they were the decedent’s parents. (b)(1) Whether or not qualified under subdivision (a), if they were dependent on the decedent, the putative spouse, children of the putative spouse, stepchildren, parents, or the legal guardians of the decedent if the parents are deceased.” (CCP § 377.60.)

Paul Robinson, Sr. has been appointed as the decedent’s personal representative. (Kar Decl., Ex. 1.)

In opposition, Defendants Yashica Bamola and the Rajan and Yashica Bamola 2017 Trust contends that the appointment is not yet effective because letters have not been issued and the requisite bond has not been posted. (Perkins Decl., Ex. B; Prob. Code 8400(a) and 8480.)

Accordingly, the motion is DENIED without prejudice until letters have been issued and the bond has been posted.

As to Defendant Surface Modification Systems, Inc.’s argument that Michele Robinson’s heirs are indispensable parties, and no probate has been commenced for Michele Robinson, such may be an argument made on demurrer, or during the damages portion of the trial, but not grounds for denial for the motion.

At this juncture, CCP § 377.31 specifically allows Paul Robinson, Sr. to continue the action on behalf of Paul Robinson, Jr.

The court notes, "Generally, 'personal injury damages are community property if the cause of action for the damages arose during the marriage and are not separate property as defined in Family C. 781.” (11 Witkin, Summary of California Law (11th ed. 2020) Community Property, § 40; accord Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2020) ¶ 8:266.) “[M]oney and other property received or to be received by a married person in satisfaction of a judgment for damages for personal injuries, or pursuant to an agreement for the settlement or compromise of a claim for such damages, is community property if the cause of action for the damages arose during the marriage.” (Fam. Code § 780.)

Plaintiff Paul Robinson, Jr.’s personal injury and employment claims arose during marriage, and therefore, when he died, Plaintiff’s claims belonged to Michele Robinson as community property. Upon Michele Robinson’s death, Michele Robinson’s heirs are successors in interest to Michele Robinson’s interests.

Therefore, although Paul Robinson, Sr. may continue the action on behalf of his son, any damages resulting therefrom may be for the benefit of Michele Robinson’s heirs.

Case Number: BC679206    Hearing Date: January 26, 2021    Dept: C

ROBINSON v. SURFACE MODIFICATION SYSTEMS

CASE NO.: BC679206

HEARING: 1/26/21 @ 9:30 AM

#2

TENTATIVE ORDER

I. Defendants Yashica Bamola (Doe 1) and Rajan and Yashica Bamola 2017 Trust (Doe 2)’s demurrer to second amended complaint is SUSTAINED with 30 days leave to amend based on Prob. Code § 9370, claims against the Trust, and the 4th – 5th causes of action. Demurrers based on the statute of limitations and the 1st – 3rd causes of action are OVERRULED. Defendants Yashica Bamola (Doe 1) and Rajan and Yashica Bamola 2017 Trust (Doe 2)’s motion to strike is MOOT in light of the court’s grant of leave to amend.

II. Plaintiff Robinson’s motion for leave to file a supplemental complaint is GRANTED.

III. Plaintiff Robinson’s motion for leave to substitute Rajan Bamola with Yahica Bamola and the Rajan & Yashica 2017 Trust, as his personal representative and successors in interest is DENIED.

IV. Plaintiff Robinson’s motion for leave to substitute Plaintiff for successors in interest per CCP § 377.31 is conditionally GRANTED.

Moving Parties to give NOTICE on their respective motions.

Plaintiff Paul Robinson filed the instant action on 10/11/17. The operative Second Amended Complaint alleges: Plaintiff began working for Defendant Surface Modification Systems, Inc. in or about April 2010. (SAC, ¶ 13.) “[W]hile working for Defendant…over the years and more so shortly before being wrongfully terminated, Mr. Robinson was regularly subjected to various types of mistreatment, hostility, and eventually suffered corporal punishment, which became a regular practice and a convention that Defendant SMS allowed BAMOLA to employ and exact against Mr. Robinson on regular occasion.” (SAC, ¶ 14.) “On or about August 3, 2017, Plaintiff was at work performing his duties when Defendant BAMOLA angrily yelled at him for his performance twice, called him a ‘fucking retard,’ and then, in his uncontrolled rage BAMOLA punched Mr. Robinson on the left side of his face, causing… serious damage and injury.” (SAC, ¶ 17.) The SAC asserts causes of action for:

1. Assault and Battery

2. Negligence

3. IIED

4. Negligent Hiring, Training, and/or Retention of Unit Employee

5. Wrongful Termination

I. Demurrer and Motion to Strike

Defendants Yashica Bamola (Doe 1) and Rajan and Yashica Bamola 2017 Trust (Doe 2) demur to all causes of action on the grounds that they fail to state facts sufficient to constitute causes of action and are uncertain.

Probate Code § 9370

Prob. Code § 9370(a) provides:

An action or proceeding pending against the decedent at the time of death may not be continued against the decedent’s personal representative unless all of the following conditions are satisfied: (1) A claim is first filed as provided in this part. (2) The claim is rejected in whole or in part. (3) Within three months after the notice of rejection is given, the plaintiff applies to the court in which the action or proceeding is pending for an order to substitute the personal representative in the action or proceeding. This paragraph applies only if the notice of rejection contains a statement that the plaintiff has three months within which to apply for an order for substitution.

¶ 3 alleges that Rajan Bamola died on 11/7/17.

Defendants contend that the action is procedurally defective because the SAC does not allege that Plaintiff complied with the provisions of Prob. Code § 9370.

In opposition, Plaintiff contends that Prob. Code § 9370 cannot be fulfilled until Mrs. Bamola is appointed and complies with Prob. Code § 9100(a).

The court notes that Plaintiff subsequently filed a motion for leave to substitute Rajan Bamola with Yahica Bamola and the Rajan & Yashica 2017 Trust, as his personal representative and successors in interest, to be heard concurrently with this demurrer. Judicial Notice is taken of Exhibit 2 to that motion, which shows that Plaintiff filed a creditor’s claim on 7/20/20. However, there is no record before this court that the claim has been rejected in whole or in part.

Accordingly, demurrer is SUSTAINED with 30 days leave to amend.

Statute of Limitations

CCP § 366.2(a) provides:

(a) If a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply.

CCP § 366.2 does not apply to the within action because the action was timely commenced on 10/11/17 against the decedent. The decedent died one month after the action had already commenced. Plaintiff may thereafter continue the action against the decedent’s personal representative or successor in interest pursuant to CCP § 377.41.

Demurrer based on the statute of limitations is OVERRULED.

Trust

A trust itself cannot sue or be sued. “As a general rule, the trustee is the real party in interest with standing to sue and defend on the trust's behalf. [Citations.]” “A claim based on a contract entered into by a trustee in the trustee's representative capacity, … may be asserted against the trust by proceeding against  the trustee in the trustee's representative capacity … .” (Prob. Code, § 18004, italics added.) (Portico Management Group, LLC v. Harrison (2011) 202 Cal.App.4th 464, 473.)

Plaintiff has named the Rajan and Yashica Bamola 2017 Trust as Doe 2, but the Trust itself cannot be sued. However, Yashica Bamola is named as Doe 1, generally. The amendment is therefore ambiguous because it is unclear if Plaintiff is naming Yashica in her individual capacity or in her representative capacity. Accordingly, demurrer is SUSTAINED with 30 days leave to amend.

Claims against Yashica in her Individual Capacity

1st – 3rd CAUSES OF ACTION for Assault & Battery, Negligence, and IIED:

Yashica Bamola contends that the SAC does not allege wrongful conduct against Yashica in her individual capacity. However, ¶ 12 alleges that each Defendant ratified and conspired to do the acts complained of.

The allegations sufficiently allege conspiracy to commit Rajan Bamola’s torts.

Further, with respect to IIED, the court finds that the assault and battery are sufficiently outrageous.

Demurrer is OVERRULED.

4th – 5th CAUSES OF ACTION: Hiring, Training, and/or Retention of Unit Employee and Wrongful Termination:

Only an employer can be liable for negligent hiring, retention, or supervision. (CACI 426.)

An individual who is not an employer cannot commit the tort of wrongful discharge in violation of public policy. (Miklosy v. Regents (2008) 44 Cal.4th 876, 900-901.) An action for wrongful termination in violation of public policy can only be asserted against an employer. An individual who is not an employer cannot commit the tort of wrongful discharge in violation of public policy. (Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1351.)

Plaintiff’s employment claims are against his employer, Surface Modification Systems, Inc., not Yashica Bamola.

In opposition, Plaintiff contends that Yashica is a principal and an owner. However, principals and owners are not the employer. Further, Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133 did not hold that principals may be treated as employers, and therefore, the dicta cited in Plaintiff’s opposition is not on point.

Demurrer is SUSTAINED with 30 days leave to amend.

Motion to strike is MOOT in light of the court’s grant of leave to amend.

II. Motion for Leave to File a Supplemental Complaint

Plaintiff moves for leave to file a supplemental complaint pursuant to CCP §§ 426.50, and 473 - 475.

“A court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading.” (CCP § 473(a)(1).) Judicial policy favors resolution of all disputed matters between the parties in the same lawsuit. Thus, the courts discretion will usually be exercised liberally to permit amendments of the pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) 

Plaintiff seeks leave to add claims for Violation of Voidable Transfers Act and Common Law Fraudulent Transfer.

In opposition, Defendant recasts the motion as one that should have been filed under CCP § 464, and argues that the motion does not qualify under CCP § 464 because the acts occurred before the Second Amended Complaint.

However, Plaintiff’s motion was not filed pursuant to CCP § 464. It was filed pursuant to CCP § 473, and leave to amend would be proper under CCP § 473. It is Plaintiff’s right to choose the statutory basis for his motion.

Even if CCP § 464 was the statutory basis, the court finds that leave to amend is appropriate under these circumstances. CCP § 464 permits the filing of a supplemental complaint to allege “facts material to the case occurring after the former complaint.” Here, Plaintiff’s Complaint was filed on 10/11/17. The Supplemental Complaint alleges that on 10/17/18, Yashica Bamola as trustee of the Rajan & Yashica Bamola 2017 Trust, transferred ownership and recorded title of the real property by grant deed to Defendant Happy 90, LLC. These facts occurred after the filing of the original complaint.

As to whether the claims are properly pled, courts generally do not consider the validity of proposed amendments to a pleading. (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.) The better method is to allow the amendment and permit the opposing party to demurrer or file a motion for judgment on the pleadings. (Atkinson v. Elk Corp. (2006) 109 Cal.App.4th 739, 760.)

In the interest of justice, Plaintiff Robinson’s motion for leave to file a supplemental complaint is GRANTED. Plaintiff will be given leave to add these additional claims to his third amended complaint.

III. Motion for Leave to Substitute Defendant

Plaintiff moves for leave to substitute the claims against Rajan Bamola with claims against Yahica Bamola and the Rajan & Yashica 2017 Trust.

On motion, the court shall allow a pending action or proceeding against the decedent that does not abate to be continued against the decedent’s personal representative or, to the extent provided by statute, against the decedent’s successor in interest, except that the court may not permit an action or proceeding to be continued against the personal representative unless proof of compliance with Part 4 (commencing with Section 9000) of Division 7 of the Probate Code . (CCP § 377.41.)

Exhibit 2 to the motion shows that Plaintiff filed a creditor’s claim on 7/20/20. However, there is no record before this court that the claim has been rejected in whole or in part. Thus, the motion is premature.

Motion is DENIED.

IV. Motion for Leave to Substitute Plaintiff

Plaintiff Paul Robinson moves to substitute Plaintiff per CCP § 377.32.

On motion, the court shall allow a pending action or proceeding against the decedent that does not abate to be continued against the decedent’s personal representative or, to the extent provided by statute, against the decedent’s successor in interest, except that the court may not permit an action or proceeding to be continued against the personal representative unless proof of compliance with Part 4 (commencing with Section 9000) of Division 7 of the Probate Code governing creditor claims is first made. (CCP § 377.41.)

CCP § 377.32 states, in pertinent part, “The person who seeks to…continue a pending action or proceeding as the decedent’s successor in interest under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following: (1) The decedent’s name. (2) The date and place of the decedent’s death. (3) ‘No proceeding is now pending in California for administration of the decedent’s estate.’ (4) If the decedent’s estate was administered, a copy of the final order showing the distribution of the decedent’s cause of action to the successor in interest….. (c) A certified copy of the decedent’s death certificate shall be attached to the affidavit or declaration.” (Id.)

Paul Robinson, Sr. and Shirley Robinson have submitted their declaration pursuant to CCP § 377.32, attesting that Plaintiff Paul Robinson, Jr. died on 10/3/20, and that the declarants are the decedent’s successors in interest.

In opposition, Defendant Surface Modification Systems point out that Paul Robinson, Jr.’s wife is a surviving spouse.

However, in Reply, moving party advises that Plaintiff’s wife recently passed away on 12/29/20. Because this fact is not supported by any declaration, the court will allow Plaintiff to file the necessary declaration prior to the hearing.

The motion is conditionally GRANTED upon the filing of an affidavit confirming Mrs. Robinson’s death.

Case Number: BC679206    Hearing Date: December 01, 2020    Dept: SEC

ROBINSON v. SURFACE MODIFICATION SYSTEMS

CASE NO.: BC679206

HEARING: 12/1/20 @ 9:30 AM

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

#3

TENTATIVE ORDER

I. Defendants Yashica Bamola (Doe 1) and Rajan and Yashica Bamola 2017 Trust (Doe 2)’s demurrer to second amended complaint is SUSTAINED with 30 days leave to amend based on Prob. Code 9370, claims against the Trust, and the 4th – 5th causes of action. Demurrers based on the statute of limitations and the 1st – 3rd causes of action are OVERRULED.

II. Defendants Yashica Bamola (Doe 1) and Rajan and Yashica Bamola 2017 Trust (Doe 2)’s motion to strike is MOOT in light of the court’s grant of leave to amend.

III. Plaintiff Robinson’s motion for leave to file a supplemental complaint is GRANTED.

IV. Plaintiff Robinson’s motion for leave to substitute Rajan Bamola with Yahica Bamola and the Rajan & Yashica 2017 Trust, as his personal representative and successors in interest is DENIED.

Opposing Party to give NOTICE.

Plaintiff Paul Robinson filed the instant action on 10/11/17. The operative Second Amended Complaint alleges: Plaintiff began working for Defendant Surface Modification Systems, Inc. in or about April 2010. (SAC, ¶ 13.) “[W]hile working for Defendant…over the years and more so shortly before being wrongfully terminated, Mr. Robinson was regularly subjected to various types of mistreatment, hostility, and eventually suffered corporal punishment, which became a regular practice and a convention that Defendant SMS allowed BAMOLA to employ and exact against Mr. Robinson on regular occasion.” (SAC, ¶ 14.) “On or about August 3, 2017, Plaintiff was at work performing his duties when Defendant BAMOLA angrily yelled at him for his performance twice, called him a ‘fucking retard,’ and then, in his uncontrolled rage BAMOLA punched Mr. Robinson on the left side of his face, causing… serious damage and injury.” (SAC, ¶ 17.) The SAC asserts causes of action for:

1. Assault and Battery

2. Negligence

3. IIED

4. Negligent Hiring, Training, and/or Retention of Unit Employee

5. Wrongful Termination

I-II. Demurrer and Motion to Strike

Defendants Yashica Bamola (Doe 1) and Rajan and Yashica Bamola 2017 Trust (Doe 2) demur to all causes of action on the grounds that they fail to state facts sufficient to constitute causes of action and are uncertain.

Probate Code § 9370

Prob. Code § 9370(a) provides:

An action or proceeding pending against the decedent at the time of death may not be continued against the decedent’s personal representative unless all of the following conditions are satisfied: (1) A claim is first filed as provided in this part. (2) The claim is rejected in whole or in part. (3) Within three months after the notice of rejection is given, the plaintiff applies to the court in which the action or proceeding is pending for an order to substitute the personal representative in the action or proceeding. This paragraph applies only if the notice of rejection contains a statement that the plaintiff has three months within which to apply for an order for substitution.

¶ 3 alleges that Rajan Bamola died on 11/7/17.

Defendants contend that the action is procedurally defective because the SAC does not allege that Plaintiff complied with the provisions of Prob. Code § 9370.

In opposition, Plaintiff contends that Prob. Code § 9370 cannot be fulfilled until Mrs. Bamola is appointed and complies with Prob. Code § 9100(a).

The court notes that Plaintiff subsequently filed a motion for leave to substitute Rajan Bamola with Yahica Bamola and the Rajan & Yashica 2017 Trust, as his personal representative and successors in interest, to be heard concurrently with this demurrer. Judicial Notice is taken of Exhibit 2 to that motion, which shows that Plaintiff filed a creditor’s claim on 7/20/20. However, there is no record before this court that the claim has been rejected in whole or in part.

Accordingly, demurrer is SUSTAINED with 30 days leave to amend.

Statute of Limitations

CCP § 366.2(a) provides:

(a) If a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply.

CCP § 366.2 does not apply to the within action because the action was timely commenced on 10/11/17 against the decedent. The decedent died one month after the action had already commenced. Plaintiff may thereafter continue the action against the decedent’s personal representative or successor in interest pursuant to CCP § 377.41.

Demurrer based on the statute of limitations is OVERRULED.

Trust

A trust itself cannot sue or be sued. “As a general rule, the trustee is the real party in interest with standing to sue and defend on the trust's behalf. [Citations.]” “A claim based on a contract entered into by a trustee in the trustee's representative capacity, … may be asserted against the trust by proceeding against  the trustee in the trustee's representative capacity … .” (Prob. Code, § 18004, italics added.) (Portico Management Group, LLC v. Harrison (2011) 202 Cal.App.4th 464, 473.)

Plaintiff has named the Rajan and Yashica Bamola 2017 Trust as Doe 2, but the Trust itself cannot be sued. However, Yashica Bamola is named as Doe 1, generally. The amendment is therefore ambiguous because it is unclear if Plaintiff is naming Yashica in her individual capacity or in her representative capacity. Accordingly, demurrer is SUSTAINED with 30 days leave to amend.

Claims against Yashica in her Individual Capacity

1st – 3rd CAUSES OF ACTION for Assault & Battery, Negligence, and IIED:

Yashica Bamola contends that the SAC does not allege wrongful conduct against Yashica in her individual capacity. However, ¶ 12 alleges that each Defendant ratified and conspired to do the acts complained of.

The allegations sufficiently allege conspiracy to commit Rajan Bamola’s torts.

Further, with respect to IIED, the court finds that the assault and battery are sufficiently outrageous.

Demurrer is OVERRULED.

4th – 5th CAUSES OF ACTION: Hiring, Training, and/or Retention of Unit Employee and Wrongful Termination:

Only an employer can be liable for negligent hiring, retention, or supervision. (CACI 426.)

An individual who is not an employer cannot commit the tort of wrongful discharge in violation of public policy. (Miklosy v. Regents (2008) 44 Cal.th 876, 900-901.) An action for wrongful termination in violation of public policy can only be asserted against an employer. An individual who is not an employer cannot commit the tort of wrongful discharge in violation of public policy. (Kim v. Konad USA Distribution, Inc. (2014) 226 Cal.App.4th 1336, 1351.)

Plaintiff’s employment claims are against his employer, Surface Modification Systems, Inc., not Yashica Bamola.

In opposition, Plaintiff contends that Yashica is a principal and an owner. However, principals and owners are not the employer. Further, Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133 did not hold that principals may be treated as employers, and therefore, the dicta cited in Plaintiff’s opposition is not on point.

Demurrer is SUSTAINED with 30 days leave to amend.

Motion to strike is MOOT in light of the court’s grant of leave to amend.

III. Motion for Leave to Amend

In the interest of justice, Plaintiff Robinson’s motion for leave to file a supplemental complaint is GRANTED. Plaintiff may add additional claims in the third amended complaint.

IV. Motion for Leave to Substitute

Plaintiff moves for leave to substitute the claims againsts Rajan Bamola with Yahica Bamola and the Rajan & Yashica 2017 Trust.

On motion, the court shall allow a pending action or proceeding against the decedent that does not abate to be continued against the decedent’s personal representative or, to the extent provided by statute, against the decedent’s successor in interest, except that the court may not permit an action or proceeding to be continued against the personal representative unless proof of compliance with Part 4 (commencing with Section 9000) of Division 7 of the Probate Code . (CCP § 377.41.)

Exhibit 2 to the motion shows that Plaintiff filed a creditor’s claim on 7/20/20. However, there is no record before this court that the claim has been rejected in whole or in part. Thus, the motion is premature.

Motion is DENIED.

Case Number: BC679206    Hearing Date: November 03, 2020    Dept: C

ROBINSON v. SURFACE MODIFICATION SYSTEMS

CASE NO.: BC679206

HEARING: 11/3/20 @ 10:30 AM

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

#5

TENTATIVE ORDER

Plaintiff Robinson’s motion to compel further responses to special interrogatories (set two) is DENIED. No sanction.

Opposing Party to give NOTICE.

This action was filed by Plaintiff PAUL ROBINSON (“Plaintiff”) on October 11, 2017. The relevant facts, as alleged, are as follows: Plaintiff began working for Defendant SURFACE MODIFICATION SYSTEMS, INC. in or about April 2010. (SAC ¶13.) “[W]hile working for Defendant…over the years and more so shortly before being wrongfully terminated, Mr. Robinson was regularly subjected to various types of mistreatment, hostility, and eventually suffered corporal punishment, which became a regular practice and a convention that Defendant SMS allowed BAMOLA to employ and exact against Mr. Robinson on regular occasion….” (SAC ¶14.) “On or about August 3, 2017, Plaintiff was at work performing his duties when Defendant BAMOLA angrily yelled at him for his performance twice, called him a ‘fucking retard,’ and then, in his uncontrolled rage BAMOLA punched Mr. Robinson on the left side of his face, causing…serious damage and injury.” (SAC ¶17.) “As a direct and proximate cause of action or inaction by Defendants, and each of them, and their actions, Plaintiff has suffered and will continue to suffer pain and suffering, loss of sleep, and extreme and severe mental anguish and emotional distress; he has incurred and will continue to incur medical expenses for treatment by psychotherapists and other health professions, and for other incidental expenses; and he has suffered and will continue to suffer a loss of earnings and other employment benefits and job opportunities. The plaintiff is thereby entitled to general and compensatory damages in amounts to be proven at trial.” (SAC ¶45.) In his prayer for relief, Plaintiff seeks “special damages, including, without limit, past and future medical expenses and related expenses, and past and future loss of earnings and earning capacity in an amount to be proven at trial”. (SAC, prayer)

Plaintiff moves to compel Defendant’s further responses to Special Interrogatories (set two).

The court finds the responses are adequate and objections are meritorious.

Plaintiff did not meet and confer on Nos. 27, 28, 32, and 33. Defendant did not respond to Nos. 27, 28, 32, and 33 because they were dependent on whether Defendant’s response to No. 26 was a yes. It was not. These issues could have been addressed during the meet and confer process.

The court further finds Defendant’s privacy objection is meritorious. Personnel files of other non-party employees are protected unless Plaintiff has demonstrated a compelling need for the information. Plaintiff has not met this burden.

Further, the scope of the interrogatories are vague and overbroad. Plaintiff wants to know whether Defendant authorized or ratified Bamola’s conduct. However, Defendant is not aware which of the many incidents Plaintiff is referring to.

Accordingly, the motion is DENIED.

The court declines to award sanctions to either party. Although Plaintiff was unsuccessful, the motion was brought with substantial justification.

Case Number: BC679206    Hearing Date: October 29, 2020    Dept: C

ROBINSON v. SURFACE MODIFICATION SYSTEMS

CASE NO.: BC679206

HEARING: 10/29/2020

#10

TENTATIVE ORDER

Defendant SURFACE MODIFICATION SYSTEMS, INC.’s Motion to Compel Further Responses to Special Interrogatories (set two) is GRANTED.

Moving Party to give notice.

This action was filed by Plaintiff PAUL ROBINSON (“Plaintiff”) on October 11, 2017. The relevant facts, as alleged, are as follows: Plaintiff began working for Defendant SURFACE MODIFICATION SYSTEMS, INC. in or about April 2010. (SAC ¶13.) “[W]hile working for Defendant…over the years and more so shortly before being wrongfully terminated, Mr. Robinson was regularly subjected to various types of mistreatment, hostility, and eventually suffered corporal punishment, which became a regular practice and a convention that Defendant SMS allowed BAMOLA to employ and exact against Mr. Robinson on regular occasion….” (SAC ¶14.) “On or about August 3, 2017, Plaintiff was at work performing his duties when Defendant BAMOLA angrily yelled at him for his performance twice, called him a ‘fucking retard,’ and then, in his uncontrolled rage BAMOLA punched Mr. Robinson on the left side of his face, causing…serious damage and injury.” (SAC ¶17.) “As a direct and proximate cause of action or inaction by Defendants, and each of them, and their actions, Plaintiff has suffered and will continue to suffer pain and suffering, loss of sleep, and extreme and severe mental anguish and emotional distress; he has incurred and will continue to incur medical expenses for treatment by psychotherapists and other health professions, and for other incidental expenses; and he has suffered and will continue to suffer a loss of earnings and other employment benefits and job opportunities. The plaintiff is thereby entitled to general and compensatory damages in amounts to be proven at trial.” (SAC ¶45.) In his prayer for relief, Plaintiff seeks “special damages, including, without limit, past and future medical expenses and related expenses, and past and future loss of earnings and earning capacity in an amount to be proven at trial”. (SAC, prayer)

Defendant moves to compel Plaintiff’s further responses to Special Interrogatories (set two) Nos. 30-34:

· SI No. 30. Please list all medical providers, including the name, address and phone number, that provided YOU with medical care between January 11, 2016 and August 4, 2017.

· SI No. 31. Please list all medications, including the name, dosage and frequency YOU took between January 11, 2016 to August 4, 2017.

· SI No. 32. Please list all medications, including the name, dosage and frequency YOU took between July 31, 2017 and noon August 3, 2017.

· SI No. 33. Please list all medications, including the name, dosage and frequency YOU took on August 2, 2017.

· SI No. 34. Please list all medications, including the name, dosage and frequency YOU took on August 3, 2017 prior to the time Rajan Bamola hit YOU.

Defendant argues that this information is necessary because Plaintiff has placed his medical condition at issue in this case, and because medical records from Kaiser Permanente obtained under subpoena show that Plaintiff stopped seeking treatment from Kaiser in January 2016 and “that he was then blaming Kaiser doctors for the same ailments, inability to work, etc., that he now claims was caused by Mr. Bamola.” (Motion 3:18-21.)

“If the propounding party, on receipt of a response to interrogatories, deems that (1) an answer to a particular interrogatory is…incomplete…or (3) an objection to an interrogatory is without merit or too general, that party may move for an order compelling further response.” (CCP §2030.300(a).)

The Motion is GRANTED in its entirety. Plaintiff has placed his medical and psychological condition at issue in this case. As indicated above, Plaintiff also alleges diminished earning capacity, pain and suffering, emotional distress, loss of sleep, and future medical expenses. The interrogatories at issue are limited in time and scope, and are relevant to the discerning the cause of Plaintiff’s injuries.

Defendant’s request for sanctions is DENIED based on the fact that Plaintiff’s privacy rights are implicated.

Plaintiff’s Evidentiary Objections to Defendant’s Reply and Notice of Lodging are OVERRULED.

Case Number: BC679206    Hearing Date: September 17, 2020    Dept: C

ROBINSON v. SURFACE MODIFICATION SYSTEMS

CASE NO.: BC679206

HEARING:  9/17/20

JUDGE: OLIVIA ROSALES

#4

TENTATIVE ORDER

I. Defendants Yashica Bamola (DOE 1) and Rajan and Yashica Bamola 2017 Trust (DOE 2)’s demurrer to Plaintiff’s Second Amended Complaint is CONTINUED to December 1, 2020.

II. Defendants Yashica Bamola (DOE 1) and Rajan and Yashica Bamola 2017 Trust (DOE 2)’s Motion to Strike is CONTINUED TO December 1, 2020.

Moving Parties to give NOTICE.

Plaintiff’s request for judicial notice is GRANTED. (Evid. Code § 452.)

Defendants Yashica Bamola (DOE 1) and Rajan and Yashica Bamola 2017 Trust (DOE 2)’s demur to each cause of action in the Second Amended Complaint (“SAC”) on the grounds that the causes of action are uncertain, Plaintiff fails to state a cause of action against them, and the Court has no jurisdiction of the subject of the causes of action. Defendants also move to strike punitive damages attorney’s fees, and allegations against the Trust.

This action for assault and battery, and wrongful termination was filed by Plaintiff PAUL ROBINSON on October 11, 2017. The SAC, filed on February 9, 2019 alleges in pertinent part, “At all times herein mentioned, Defendant, RAJAN BAMOLA (‘BAMOLA’), was a resident of the County of Los Angeles, State of California. Defendant, BAMOLA, was at all material times, acting as the employee, agent, and representative of every other defendant. Upon information and belief, BAMOLA subsequently deceased on November 7, 2017.” (SAC, ¶3.) “On or about August 3, 2017, Plaintiff was at work performing his duties when Defendant BAMOLA angrily yelled at him for his performance twice, called him a ‘fucking retard,’ and then, in his uncontrolled rage BAMOLA punched Mr. Robinson on the left side of his face, causing the serious damage and injury as alleged herein (‘Incident’).” (SAC, 17.)

The SAC asserts the following causes of action: (1) Assault and Battery; (2) Negligence; (3) Intentional Infliction of Emotional Distress; (4) Negligent Hiring, Training, and/or Retention of Unit Employee; and (5) Wrongful Termination in Violation of Public Policy.

As Defendants correctly point out, a Trust cannot be sued. A probate or trust estate is not a legal entity and is simply a collection of assets and liabilities. As such, it has no capacity to sue, be sued or defend an action. Any litigation must be maintained by, or against, the executor, administrator or trustee of the estate. (Galdjie v. Darwish (2003) 113 Cal.App.4th 1331, 1344; Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 496; Portico Management Group, LLC v. Harrison (2011) 202 Cal.App.4th 464, 474 [judgment against trust was meaningless and unenforceable].)

Defendants argue and the Court agrees that Plaintiff’s SAC is uncertain in that it is unclear whether Plaintiff is asserting the causes of action against Yashica Bamola (now deceased Defendant Bamola’s wife) (“Yashica”) individually or as a personal representative of Bamola. Further, as a personal representative, there are concerns as to whether Plaintiff can file this action against Yashica without complying with CCP § 377.41.

However, Plaintiff has since filed a motion to substitute her and the Trust as personal representatives of Bamola pursuant to CCP § 377.41, which will affect this ruling. Plaintiff has also filed a motion for leave to amend his pleading to add allegations against Defendants.

As such, the demurrer to the SAC and the motion to strike portions of the SAC are CONTINUED to meet the related motions on December 1, 2020.

Case Number: BC679206    Hearing Date: July 09, 2020    Dept: SEC

ROBINSON v. SURFACE MODIFICATION SYSTEMS

CASE NO.: BC679206

HEARING: 07/09/2020

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

#11

TENTATIVE RULING

I. Plaintiff’s Motion for a Protective Order as to Plaintiff’s Medical Records is DENIED.

II. Plaintiff’s Motion for a Protective Order as to Defendant’s Special Interrogatories (set two) is DENIED.

Opposing Party to give notice.

Motion for Protective Order as to Plaintiff’s Medical Records:

Plaintiff’s Motion is DENIED. Plaintiff’s failure to challenge Defendant’s subpoena by filing a Motion for Protective Order or Motion to Quash, or even by sending a letter to Kaiser Permanente constitutes a waiver of Plaintiff’s right to privacy.

“Any consumer whose personal records are sought by a subpoena duces tecum and who is a party to the civil action in which the subpoena duces tecum is served may, prior to the date for production, bring a motion under Section 1987.1 to quash or modify the subpoena duces tecum. (CCP §1985.3(g).) Here, the date of production on the subpoena at issue was May 15, 2019. It is undisputed that Counsel for Plaintiff did not file a Motion to Quash prior to the date of production.

“When an inspection, copying, testing, or sampling of documents, tangible things, place, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order.” (emphasis added.) (CCP §2031.060(a).) Where production occurred on May 25, 2019, and the instant Motion for Protective Order was not filed until June 1, 2020, it cannot be said that Plaintiff “promptly” moved for a protective order.

Plaintiff seeks the following Order: (1) striking and removing from the e-filing system all copies of Defendant’s Motion to Compel Further Answers to Special Interrogatories; (2) Precluding publishing, use, and/or otherwise disclosing any medical records or information of Plaintiff in any way without first seeking leave of this Court and establishing good cause therefore; (3) requiring Defendant SMS and its counsel to deposit any such private and confidential medical records obtained by any means with the Court forthwith; (4) for disqualification of Lee Harwell, Esq. as counsel in this action for any party; and (5) for monetary sanctions. (See Motion 2:22-28 - 3:1-3.) No Motion to Seal Records or to Disqualify Defendant’s Counsel has been filed or lodged with the Court as of July 1, 2020.

“The court shall impose a monetary sanction…against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (CCP §2017.020(b).)

Defendant’s request for sanctions is granted in part as follows: Plaintiff PAUL ROBINSON and his counsel of records are jointly and severally ORDERED to pay Defendant SURFACE MODIFICATION SYSTEMS, INC. and its counsel of record sanctions in the total amount of $800.00 ($400/hr. x 2 hrs.) no later than 30 days from the Court’s issuance of this Order.

Plaintiff’s Motion for Protective Order as to Special Interrogatories (set two):

Plaintiff moves for a protective order with respect to Defendant SMS’s Special Interrogatories (set two).

“When interrogatories have been propounded, the responding party…may promptly move for a protective order.” (emphasis added.) (CCP §2030.090(a).) The court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. (CCP §2017.020(a).) The Court may make this determination pursuant to a motion for protective order by a party or other affected person. (Id.) The court shall restrict the frequency or extent of use of the discovery methods listed in CCP §2019.010 if it determines either of the following: (1) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive; (2) The selected method of discovery is unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, and the importance of the issues at stake in the litigation. (CCP §2019.030.)

Plaintiff’s Motion for Protective Order is DENIED. Defendant’s Special Interrogatories (set two) was served on February 19, 2020. Plaintiff voluntarily served responses on April 6, 2020. Defendant’s Motion to Compel Plaintiff’s Further Responses to Defendant’s Special Interrogatories (set two) is set for hearing on October 29, 2020. Where it is undisputed that Plaintiff has willingly responded to the discovery at issue, it is unclear what Plaintiff is currently seeking a protective order from. If Plaintiff takes issue with having to provide further responses to Special Interrogatories (set two), then the proper procedure is for Plaintiff to justify any and all objections in his Opposition to Defendant’s Motion to Compel Further Responses to Special Interrogatories (set two) (currently set for hearing on October 29, 2020).

“The court shall impose a monetary sanction…against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (CCP §2017.020(b).)

Defendant’s request for sanctions is granted in part as follows: Plaintiff PAUL ROBINSON and his counsel of records are jointly and severally ORDERED to pay Defendant SURFACE MODIFICATION SYSTEMS, INC. and its counsel of record sanctions in the total amount of $800.00 ($400/hr. x 2 hrs.) no later than 30 days from the Court’s issuance of this Order.

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