ROBERTO MARTINEZ VS GURDEEP SINGH ET AL

Tentative Rulings

Case Number: ****0521 Hearing Date: June 6, 2022 Dept: D

6/6/2022

Dept. D

Rafael Ongkeko, Judge presiding

Martinez v. Singh, et al. (****0521)

Plaintiff Martinez’ motion for attorneys’ fees and costs pursuant to CCP 2033.420

as against Defendant Singh in the amount of $1,438,341.27

Tentative Ruling: Plaintiff’s motion for attorney fees and costs of proof sanctions is GRANTED IN PART as to RFA Nos. 6, 19, 22, and 33 and DENIED as to the remainder. The court awards $18,750 as and for Plaintiff’s reasonable expenses for costs of proof incurred pursuant to CCP 2033.420. The clerk shall insert this amount onto the amended judgment.

Evidentiary rulings:

Defendant’s objections to Agarwal declaration: Sustain all.

Defendant’s objections to Khakshooy declaration: Sustain all.

Objections to Exhibits A and H (Agarwal declaration):

As to Exhibit A: Overrule as to Align Claims letter of 11/22/17. Sustain all other pages.

As to Exhibit H: Overruled. However, the court assigns no weight to this document.

Plaintiffs’ Motion for Costs of Proof

A party to a civil action may propound a written request that another party “admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact.” (CCP 2033.010.) “Requests for admission are not restricted to facts or documents, but apply to conclusions, opinions, and even legal questions.” (City of Glendale v. Marcus Cable Associates, LLC (2015) 235 Cal.App.4th 344, 353.) “The primary purpose of requests for admissions is to set at rest triable issues so that they will not have to be tried; they are aimed at expediting trial.” (Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 509.)

CCP 2033.420 subd. (a) provides: “If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under [section 2033.010], and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees.”[1]

The party who propounded the RFA must “prove the truth” of the matter at issue before being entitled to recover expenses. (CCP 2033.420(a); Evid. Code 190 [“ ‘Proof’ is the establishment by evidence of a requisite degree of belief concerning a fact in the mind of the trier of fact or the court.”].)

To avoid an order to pay the propounding party’s expenses under the general rule of CCP 2033.420(a), under subd. (b), the responding/denying party must establish at least one of these four exceptions to the general rule:

(1) An objection to the request was sustained or a response to it was waived under Section 2033.290.

(2) The admission sought was of no substantial importance.

(3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter.

(4) There was other good reason for the failure to admit.

See Samsky v. State Farm (2019) 37 Cal.App.5^th 517, 523.

Plaintiff seeks all of his legal fees and costs purportedly incurred in proving the matters in certain RFAs from 5/24/18, the date of Singh’s responses, to the present. Those amounts are $90,441.27 in costs and a lodestar of $336,975 in attorneys’ fees plus a 4.0 multiplier, for total attorneys’ fees of $1,347,900.

According to Plaintiff’s motion, Defendant improperly denied twelve (12) liability-related requests for admission (RFA Nos. 2-3, 6, 11-13, 19, 22-25, and 33) and three (3) damage-related requests (RFA Nos. 34, 37, and 39).

RFAs:

Arranged into logical groups, there are four groups which are liability-related RFAs and one group which is damage-related:

Group 1: Basic accident facts: RFA nos. 24 and 25.

Group 2: Singh’s negligence: RFA nos. 2 and 23.

Group 3: Singh as sole cause: RFA nos. 3, 11-13.

Group 4: Plaintiff not a cause and/or zero fault: RFA nos. 6, 19, 22, and 33.

Group 5: Plaintiff’s injuries/damages: RFA nos. 34, 37, and 39.

As far as the liability RFAs, Plaintiff proved the truth at trial of the matters in Groups 1 through 4. (See Special Verdict)

But as far as the damage group (Group 5), Plaintiff proved some, but not the entirety of each broad request, as the special verdict reflects. Plaintiff did not even have a loss of earnings claim as implied in RFA no. 39, and thus this was not an issue of “substantial importance.” (CCP 2033.420(b)(2)) Even if there were some partial proof as to the other two RFAs in Group 5 (#34, as to the neck; #37 as to the shoulder), Defendant’s then-response of “lacking sufficient knowledge” as of 5/24/18 was a “good reason for [his] failure to admit.” (CCP 2033.420(b)(4)) The medical experts disagreed, with the jury essentially accepting the defense’s position on future medical care and, as a consequence, only a modest value for Plaintiff’s non-economic damages. Contrary to Plaintiff’s position, Dr. Edwards, Singh’s medical expert, did not himself opine that all of Plaintiff’s neck issues were causally related to the accident. Nor was there any defense testimony that supported Plaintiff’s left shoulder condition as being entirely caused by the 2015 accident, as opposed to the accident in 2017. Plaintiff is not entitled to damages-related attorneys’ fees and costs under CCP 2033.420.

Liability RFAs[2]

Group 1: Basic accident facts (RFA nos. 24 and 25)

RFA no. 24: Admit that on May 11, 2015, at approximately 11:00 a.m., YOU collided into a tractor trailer driven by defendant ALBERT PEREZ. Response: Deny.

RFA no. 25: Admit that on May 11, 2015, at approximately 11:00 a.m., when YOU collided into defendant ALBERT PEREZ’ tractor trailer, YOU pushed his tractor trailer into PLAINTIFF’S vehicle. Response: Deny.

Group 2: Singh’s negligence (RFA nos. 2 and 23)

RFA no. 2: Admit that YOU were negligent with respect to PLAINTIFF at the time of the ACCIDENT. Response: Deny.

RFA no 23: Admit that YOU were driving unsafely on the date of the ACCIDENT. Response: Deny.

Group 3: Singh as sole cause (RFA nos. 3, 11-13)

RFA no. 3: Admit that YOUR actions were the sole cause of the ACCIDENT. Response: Deny.

RFA no. 11: Admit that YOU are 100% at fault for the subject ACCIDENT.

Response: Deny.

RFA no. 12: Admit that YOU caused the ACCIDENT which is the subject of this lawsuit. Response: Deny.

RFA no. 13: Admit that no other PERSON or party in any way caused or contributed to the subject ACCIDENT. Response: Deny.

Group 4: Plaintiff not a cause and/or zero fault (RFA nos. 6, 19, 22, and 33)

RFA no. 6: Admit that PLAINTIFF did not contribute to the cause of the ACCIDENT. Response: Deny.

RFA no. 19: Admit that PLAINTIFF was not comparatively negligent as a result of the ACCIDENT. Response: Deny.

RFA no. 22: Admit that PLAINTIFF did not cause the ACCIDENT. Response: Deny.

RFA no. 33: Admit that PLAINTIFF is not in any way responsible for the ACCIDENT. Response: Deny.

The subject matters in these four groups of RFAs cover everything a jury would typically be charged with finding, with only the dollar amounts of damages left undecided. Taken to its logical conclusion, Plaintiff’s sweeping motion for fees and costs must be based on his belief that as of Singh’s RFA responses on 5/24/18,[3] just one year into the litigation, Singh should simply have accepted Plaintiff’s claims and admitted each of these RFAs, obviating the need for any litigation at all (except for the amount of an expected settlement or, failing that, a verdict on damages only), be they pleadings, discovery, or trial. But Plaintiff’s far-reaching position ignores the parties’ disputed issues throughout the entire litigation regarding comparative negligence (between Perez and Singh) and the true nature and extent of injuries to Plaintiff caused by the subject three-vehicle incident; in particular, Perez’ negligence, if any, and the cause, nature and extent of Plaintiff’s claimed injuries and need for future surgery, if any. These unresolved issues had to be proven, not simply because Singh denied them, but because of Plaintiff’s decisions to keep Perez in the case and claim injuries and future treatment which had no causal relationship to the 2015 accident. With one exception discussed below, Singh’s denials on these matters were appropriate and meet his burden under paragraphs (3) and (4) of CCP 2033.420, subd. (b).

Plaintiff’s motion leans heavily, if not entirely, on inadmissible hearsay evidence. This hearsay evidence purports to show that in April 2019 Perez’ then-defense counsel informed Plaintiff’s counsel that as between codefendants Perez and Singh, Singh admitted liability and paid Perez’ property damage ($8,818.42). Singh’s purported admission and property damage settlement supposedly occurred in August, 2015, three months after the May 2015 accident and two years before Singh’s answer was even filed in this case. The same hearsay evidence shows that although Perez denied liability and rejected Plaintiff’s claims as early as 9/4/15, Perez’ insurer also offered Plaintiff $15,000 to settle. Of course, this offer was not good enough because we know that Plaintiff eventually filed his complaint in May 2017, and decided to name Perez anyway, a decision that must include an inference of an inherent good faith filing against Perez.[4]

Ignoring whatever relevance there may be to Singh’s insurer’s “admission of liability” vis- -vis Perez,[5] Plaintiff now wants to piggyback the Perez-Singh property damage settlement to a full admission of Singh’s liability not only on all key issues as between Singh and Plaintiff, but also to show zero liability for Perez, despite Plaintiff himself suing Perez and attempting to prove Perez’ liability during the trial. In the court’s view, this is clearly insufficient for purposes of this motion.

We also know that in November 2017 Singh’s insurance adjuster told Plaintiff that due to the need for additional information regarding Plaintiff’s prior medical history, they could neither accept nor deny Khakshooy’s 238-page demand made on 11/2/17. Neither Plaintiff nor Singh offers this settlement demand in evidence. But we also know that Plaintiff had a head-on accident in his tractor on 10/18/17, just 2 weeks before this voluminous settlement demand. Did the demand include information regarding the head-on accident? If so, what did it say in that regard? Given this second, more serious accident, was there “good reason” for Singh’s failure to admit Plaintiff’s RFAs just seven months later? Based on all the evidence, the court does make such a finding. The significance of the 2017 head-on accident to Plaintiffs’ damage case (and the jury’s correspondingly negative evaluation of the damages requested) cannot be overestimated.

With respect to liability, having rejected Perez’ pre-litigation settlement offer, Plaintiff cannot ignore his naming Perez as a co-defendant and later maintaining that there were genuine disputed issues of material fact as to Perez’ liability during Perez’ motion for summary judgment. True, the jury found Perez had zero liability, but that is not what Plaintiff contended throughout the trial. It would not be reasonable for Singh to have admitted being solely at fault under these circumstances at any point in time during this litigation, much less on 5/24/18, nor would it be equitable to have Plaintiff benefit from his own failed legal strategy.

Group 4 RFAs. Defendant Singh has shown a reasonable ground to prevail at least on some of the high-value damage issues and that he had other good reasons for failing to admit most of the RFAs in question. However, Singh’s failure to admit the RFAs in Group 4 (plaintiff’s zero fault) does warrant an award under CCP 2033.420. There was no reasonable ground for Singh to believe Plaintiff bore any responsibility for his own injuries nor was there any other good reason for Singh’s failure to so admit. Plaintiff was parked legally on the side of the road with his engine off, clear of the through travel lanes. The existence of a purported red curb was complete speculation, or, to steal a phrase, a veritable red herring. Had Singh (or Perez) seriously contended as much, it would not have been difficult for them to return to the familiar scene to document the no-parking or stopping zone to show Plaintiff’s negligence. Flares or triangles were not shown to be required under the circumstances, nor would their absence have been a contributing factor in causing Singh’s vehicle to collide with Perez’ vehicle, then pushing the latter into Plaintiff’s lawfully parked vehicle. Other truckers’ custom and practice in using the parking area to wait for future assignments was not disputed. The defendants’ attempt to show Plaintiff’s conduct was somehow negligent failed miserably.

Reasonable fees and costs for Group 4

Reasonable fees for Group 4: The court finds that 25 hours are reasonable for Plaintiff’s attorneys’ work throughout this case on the sole issue of their client’s lack of contributory negligence. A reasonable hourly rate for either attorney is $750. A multiplier is not warranted. No costs are awarded on this issue. Fees of $18,750 are awarded in favor of plaintiff and his counsel.

With the exception of Group 4, Plaintiff having failed to prove entitlement to attorneys’ fees and costs, there is no need to rule on whether the balance of Plaintiff’s fees and costs requests are reasonable.

b"

Case Number: ****0521 Hearing Date: September 30, 2021 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff, Roberto Martinez (“Plaintiff”) filed this action against Defendants, Gurdeep Singh, Habir Singh, Perez Paper Recycling, and Albert Perez for damages arising from a three-vehicle accident. The complaint alleges claims for (1) negligence, including claims for motor vehicle negligence, negligent entrustment, negligent training, negligent undertaking, negligent supervision and negligent retention, and (2) negligence per se.

Defendants Perez Paper Recycling (“PPR) and Albert Perez (“Perez”) (collectively, “Perez Defendants”) now move for summary judgment. Plaintiff and defendants Gurdeep Singh and Habir Singh (collectively, the “Singh Defendants”) each filed an opposition to the motion. PPR and Perez filed a reply to each opposition.

2. Motion for Summary Judgment

a. Moving Argument

The Perez Defendants argue they are entitled to summary judgment because the evidence shows that (1) Perez, who was PPR’s employee, did not breach any duty of care to Plaintiff, (2) but for being sideswiped by Gurdeep Singh’s truck, Perez would not have impacted Plaintiff’s vehicle, and (3) Plaintiff does not have any evidence to establish negligence against the Perez Defendants. The Perez Defendants contend Plaintiff’s harm was caused by the negligent driving of Gurdeep Singh, who suddenly and unexpectedly struck Perez’s truck and pushed him into Plaintiff’s truck.

b. Opposing Argument

Plaintiff argues there are triable issues of fact concerning the claims against the Perez Defendants, and it is undisputed that Perez’s vehicle struck Plaintiff’s vehicle. Plaintiff argues there is a triable issue of fact as to whether Perez’s vehicle did something that precipitated the events that led to Plaintiff’s vehicle being struck. Further, Plaintiff argues there is a triable issue of fact as to whether or not Perez was going at such a high speed such as to ricochet off Gurdeep Singh’s truck and strike Plaintiff’s vehicle.

c. The Singh Defendants’ Opposition and Standing

The court notes the Perez Defendants’ instant motion is directed only at Plaintiff’s complaint, and there is no cross-complaint asserted between the Perez Defendants and the Singh Defendants. The court has not located specific California authority directly addressing whether a co-defendant can oppose another co-defendant’s motion for summary judgment. However, the court finds the California district court case of Eckert v. City of Sacramento (E.D. Cal. 2009) 2009 WL 3211278, instructive. In Eckert, the Court stated:

Union Pacific raises a procedural question that has been infrequently addressed: “[i]n the absence of cross-claims, may one co-defendant be the sole ... opposition to another co-defendant's motion for summary judgment?” Blonder v. Casco Inn Residential Care, Inc., 2000 WL 761895, at *1 (D.Me. May 4, 2000). The Blonder Court answered the question in the negative, concluding that in the absence of a crossclaim, a co-defendant lacks standing to oppose his co-defendant's motion for summary judgment. Id.

The Blonder court looked to the “principles underlying Rule 56,” when concluding that the non-moving co-defendants lacked standing to oppose the motion, stating:

Rule 56 is intended to avoid trial when appropriate and to bring about summary justice whenever legally proper. Requiring Plaintiff to prosecute her claims against [Defendants] ... when she no longer believes such claims to be viable would be contrary to the principle of Rule 56 that trials ... should be avoided when appropriate.

Id. The rationale of Blonder is persuasive, and other courts have come to the same conclusion. See Fraioli v. Lemcke, 328 F.Supp.2d 250, 263 n. 4 (D.R.I.2004) (“[S]ince none of the defendants in this case have filed cross claims against each other, the defendants are not adverse parties who are entitled to object to each others' motions for summary judgment.”); Dixon v. County of Alameda, 1997 WL 220311, at *6 n. 8 (N.D.Cal. Apr.18, 1997) (noting that co-defendant did not have standing to oppose co-defendant's motion for summary judgment); C.F. Bean Corp. v. Clayton Indus. Ltd., 1996 WL 470644, at *1(E.D.La. Aug.19, 1996) (same).

Under the rationale of Blonder, since there is no crossclaim between the Defendants, Union Pacific and the City are not adverse parties and the City therefore does not have standing to oppose Union Pacific's motion for summary judgment. The City's arguments opposing Union Pacific's motion will therefore not be considered.

(Id. at 3.) The court finds the rationale set forth, and referred to in, Eckert is persuasive. Furthermore, CCP ; 437c does not provide standing for a co-defendant to oppose a motion for summary judgment that does not seek relief against it. (See CP ; 437c(p)(2) [If the defendant meets its burden to show that a cause of action has no merit by showing that an element of the cause of action cannot be established, “the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”].)

Accordingly, the court declines to consider the Singh Defendants’ opposition to the Perez Defendants’ motion for summary judgment.

d. Evidentiary Objections

The Perez Defendants, in their reply to Plaintiff’s opposition, submit an objection to Exhibit D attached the declaration of Sandeep Agarwal, Esq. The objection is not material to the disposition of the motion, and thus, the court declines to rule on it at this time.

e. Burdens on Summary Judgment

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. ;437c(c).) Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Id. at ;437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Ibid.)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at ;437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” Aguilar, supra, 25 Cal.4^th at 865-66.

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

(Leyva v. Garcia (2018) 20 Cal.App.5^th 1095, 1103.)

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at ;437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

f. The Perez Defendants’ Separate Statement

California Rules of Court, rule 3.1350(d)(1) states:

(1) The Separate Statement of Undisputed Material Facts in support of a motion must separately identify:

(A) Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion; and

(B) Each supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion.

Here, Plaintiff argues the Perez Defendants’ separate statement does not comply with this provision. However, the separate statement sufficiently identifies the causes of action for which the Perez Defendants seek summary judgment, or in the alternative adjudication.

g. Analysis

“ ‘The elements of a cause of action for negligence are duty, breach, causation, and damages.’ [Citation.]” (Johnson v. Prasad (2014) 224 Cal.App.4th 74, 78.)

Here, the Perez Defendants assert the accident occurred on May 11, 2015, at the fork at southbound Maritime Street and Navy Roadway in the Port of Oakland at about 11:00 a.m. (UMF 2.) “In the area where the subject incident occurred, southbound Maritime Street has two lanes and forks to continue to the left. At that same fork in the roadway going straight, Navy Roadway begins.” (UMF 3.) Gurdeep Singh was driving a truck southbound on Maritime Street in the number one lane, approaching the fork, while Perez was driving a truck owned by PPR in the number two lane on Maritime Street behind and to the rear of Singh’s truck intending to go straight. (UMF 4-5.) The Perez Defendants contend Perez was driving the speed limit and wearing corrective lenses at the time of the accident. (UMF 6.)

The Perez Defendants assert Gurdeep Singh changed from the number one lane into the number two lane to continue driving straight and heard a sound upon impact with Perez. (UMF 7.) Gurdeep Singh did not see Perez’s truck at any point prior to impact, and while changing into the number two lane at the fork, Gurdeep Singh collided with the driver side of Perez’s truck. (UMF 8-10.) Perez applied his brakes upon impact, but Gurdeep Singh’s truck pushed Perez’s truck to the right and into the driver side of Plaintiff’s vehicle, which was parked on the side of the road. (UMF 11-12.) There were no other witnesses to the accident, and Gurdeep Singh admitted to not taking any evasive measures to preventing the accident. (UMF 14-15.) Plaintiff did not see either vehicle prior to impact. (UMF 17.)

In opposition, Plaintiff disputes that Perez bears no fault for the collision with Plaintiff and resulting damage, as his speed may have been a contributing factor. Plaintiff asserts that if Perez was initially following the rear of Gurdeep Singh’s truck, but the accident occurred when Singh changed lanes to his right after he put his right turn signal on, then Perez had to speed up for the accident to occur. (Opp. UMF 6-7.) The deposition testimony of Perez concerning whether he was driving at the speed limit is as follows:

Q.· ·How fast was your vehicle going when he· struck your vehicle?

A.· ·I would say speed limit.

Q.· ·Which is?

A.· ·Oh, I don't know the posted speed limit there.

(Opp. Compendium of Exhibits, Exh. B. at p. 38:18-23.) Thus, the testimony does not indisputably prove that Perez was driving at the speed limit, as he didn’t know what the speed limit was. In making every reasonable inference in non-moving Plaintiff’s favor, there is, at a minimum, an issue of fact concerning whether Perez sped up improperly after being behind Gurdeep Singh’s truck and before the accident occurred. Moreover, the court notes Gurdeep Singh testified at his deposition that he did not have any damage to his truck or the passenger side-view mirror, which contradicts the Perez Defendant’s assertion that the truck pushed Perez’s truck. (Opp. Compendium of Exhibits, Exh. A. at p. 48:11-21.) Therefore, there are material issues of fact as to how the accident occurred and whether Gurdeep Singh is solely at fault for causing the accident.

The Perez Defendants fail to establish they are entitled to judgment as a matter of law.

3. Conclusion

The Perez Defendants’ motion for summary judgment is denied.

Moving Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Dated this 30^th day of September, 2021

Case Number: ****0521    Hearing Date: May 7, 2021    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

A motion for summary judgment was reserved for hearing in this court for 5/7/21. However, as of 5/5/21, no such motion has been filed in connection with the hearing. Therefore, the motion for summary judgment is taken off-calendar.

Moving party’s counsel is reminded to take matters off-calendar when they become moot or are no longer going forward. Not taking matters off calendar promptly is inconsiderate to other litigants who may need an earlier hearing and is wasteful of the court’s time.

Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Dated this 7^th day of May, 2021

Case Number: ****0521    Hearing Date: December 26, 2019    Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background Facts

Plaintiff, Roberto Martinez filed this action against Defendants, Gurdeep Singh, Habir Singh, Perez Paper Recycling, and Albert Perez for damages arising out of a three-vehicle semi accident.

2. Motion to Compel Production of Defense Medical Report

a. Parties’ Positions

Defendants, Gurdeep and Habir Singh had Plaintiff’s IME conducted by Harvey Lawrence Edmonds, MD on 10/04/19. Plaintiff made numerous e-mail requests for a copy of the report, and Defendants consistently said they would provide the report once it was prepared/received.

Defendants, in opposition, indicate they provided the report on 12/10/19, rendering the motion moot. Defendants argue the motion must be denied because it was not timely filed and served. Defendants also contend the report was not due until 15 days prior to trial, rather than 30 days after examination, as Plaintiff contends.

Plaintiff, in reply, contends the report was due 30 days after the examination. Plaintiff contends the report that was finally provided is deficient. Plaintiff indicates 12/26/19 was the first available date for hearing and was selected in light of the upcoming trial date. Plaintiff reiterates the request for sanctions.

b. Timeliness of Motion

Plaintiff filed the motion on 11/27/19 and served it by mail the same day. Defendants contend the 12/26/19 hearing date fails to comply with the notice requirements of CCP ;1005. Sixteen court days after 11/27/19 fell on 12/23/19. Five court days later is 12/28/19.

Notably, it is likely Plaintiff counted backward from the hearing date, rather than forward from the service date. Sixteen court days before 12/26/19 fell on 12/03/19, and five calendar days prior to 12/03/19 fell on 11/28/19.

Plaintiff’s method of calculating the time is incorrect. CCP ;12. In any event, because this is a very close distinction, because of the numerous court holidays intervening, and because Defendants addressed the merits of the motion, the Court will rule on the motion on its merits. See Carlton v. Quint (2000) 77 Cal.App.4^th 690, 697, holding that a party who argues the merits of a motion waives any argument concerning lack of timely service.

c. Proper Date for Service of the Report

CCP ;2032.610(b) provides, “If the option under subdivision (a) is exercised, a copy of the requested reports shall be delivered within 30 days after service of the demand, or within 15 days of trial, whichever is earlier.” Defendants argue they were permitted to serve the report 15 days prior to trial. This is a mis-reading of the Code, which clearly stated, “whichever is earlier.” In this case, 30 days after the 10/04/19 IME fell on or about 11/04/19, and 15 days prior to trial falls on 1/14/20. 11/04/19 is “earlier” than 1/14/20, and therefore Defendants were required to produce the report by 11/04/19.

d. Report

Defendants contend the motion is substantively moot because they produced the report after they received the motion. Plaintiff, in reply contends the report is defective because it fails to contain the required information. Neither Defendants nor Plaintiff included a copy of the report with the opposition or the reply, so the Court cannot make a determination in this regard. The Court orders Counsel to meet and confer to resolve issues concerning any deficiencies in the report.

e. Sanctions

CCP ;2032.620(a) permits a plaintiff to make a motion to compel production of a defense medical report if the defendant does not timely produce the report. ;2032.620(b) requires the Court to impose sanctions unless the Court finds the other party acted with substantial justification or there are other circumstances that make imposition of sanctions unjust. Because of the lack of proper notice of the motion, sanctions are not imposed.

Plaintiff is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.